What changed between these versions
A complete substitute amendment, v2 fundamentally restructures the bill's approach to prohibiting organ transplant discrimination. While retaining the core purpose, v2 shifts from establishing new, parallel definitions and prohibitions to explicitly integrating its requirements within existing federal disability laws like the Americans with Disabilities Act and the Rehabilitation Act of 1973. This includes a revised definition of 'covered entity' and new reporting requirements for the Department of Health and Human Services.
Overview
The bill underwent extensive changes throughout, effectively being a complete rewrite. · V2 fundamentally restructures the bill's legal approach, clarifying its relationship with existing federal disability laws and narrowing the scope of entities directly covered by its specific provisions, while adding new oversight mechanisms.
The second version of S. 1782 is a complete substitute amendment, fundamentally altering the bill's operative mechanism. Instead of creating new, standalone definitions and prohibitions, v2 explicitly integrates its anti-discrimination requirements for organ transplants into existing federal disability laws, specifically the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. This includes a revised, narrower definition of 'covered entity' and a new requirement for the Department of Health and Human Services to report annually to Congress on enforcement activities. The core intent to prevent discrimination based on disability in organ transplants remains, but the legal pathway and scope of application have been significantly reframed.
Major additions
This new subsection mandates the Secretary of Health and Human Services to prepare and submit an annual report to Congress. The report must detail activities carried out under the section, including the number of discrimination complaints received, the resolution process, results, necessary resources for the Office for Civil Rights, and recommendations for improving enforcement.
This addition introduces a new oversight and accountability mechanism, requiring regular reporting on the implementation and enforcement of the bill's anti-discrimination provisions. It provides Congress with ongoing visibility into the effectiveness and challenges of addressing disability discrimination in organ transplants.
This new subsection clarifies that nothing in the bill should be construed to modify or alter existing requirements for the privacy or security of individually identifiable health information under HIPAA regulations (45 CFR parts 160 and 164) or for the confidentiality of substance use disorder patient records under 42 CFR part 2.
This addition ensures that the bill's provisions for reasonable modifications and auxiliary aids, particularly those involving communication with support networks or designated persons, do not inadvertently override or conflict with established federal health information privacy and security laws. It provides legal certainty regarding data protection.
Deletions
V1 defined "qualified individual" as an individual who, with or without a support network, provision of auxiliary aids and services, or reasonable modifications to policies or practices, meets eligibility requirements for the receipt of a human organ.
The deletion of this specific definition means that v2 no longer provides an explicit, standalone definition for "qualified individual" within the bill itself. Instead, v2 introduces "qualified individual with a disability" and refers to the meaning given in existing federal disability laws (ADA, Rehab Act 504). This shifts the interpretation of who is "qualified" to established legal frameworks rather than a specific definition within this Act.
V1 provided a specific definition for "reasonable modifications to policies or practices" that included communication with support persons, consideration of support networks for compliance with health requirements, and the use of supported decision-making.
The deletion of this detailed definition means that v2 no longer explicitly enumerates these specific types of modifications within its definitions section. Instead, v2 introduces "reasonable modifications" and refers to the meaning given in existing federal disability laws. While Section 4(c)(1)(B) of v2 still mentions "supported decision-making," the broader, explicit inclusions from v1's definition are now implicitly covered by reference to broader federal law, potentially altering the emphasis or specificity.
V1 defined "support network" as one or more people selected by the qualified individual or their guardian to provide assistance or guidance, including family, friends, unpaid supporters, religious congregation members, and community center personnel.
The removal of this definition means that the concept of a "support network" is no longer explicitly defined within the bill. While the idea of support is still present in v2's Section 4(b)(2) clarification regarding compliance, the detailed scope and composition of such a network are no longer specified by this Act, relying instead on broader interpretations from existing disability law.
V1 explicitly stated that the bill's provisions applied to the evaluation, listing, transplant, and post-organ-transplant treatment of a qualified individual, and to the process for receipt of related services.
This section, which ensured comprehensive application of the anti-discrimination rules across the entire transplant process, has been deleted as a standalone provision. V2's "Related services" definition in Section 2(7) now includes "evaluation and listing on the transplant waiting lists," and the general prohibitions in Section 4(a) cover various stages, but the explicit, overarching statement of application from v1 is removed, replaced by a more general "Rule of Construction" in v2.
V1 stated that nothing in the Act should be construed to supersede any State or local law that provides greater rights to qualified individuals with respect to organ transplants.
This standalone provision, which explicitly preserved stronger state and local protections, has been deleted. V2 incorporates a similar concept into its "Rule of Construction" in Section 5, stating that nothing in the Act limits rights under other Federal or State laws that provide additional protections. The intent is similar, but the specific framing as an "Effect on Other Laws" section is removed.
Modifications
This modification substantially changes the scope of entities directly regulated by the bill. V1's definition was broad, encompassing most healthcare providers involved in organ transplants. V2's definition limits coverage to entities receiving federal financial assistance or public entities under ADA Title II. This means private healthcare providers not receiving federal funds and not classified as public entities might fall outside the direct scope of this bill's specific provisions, although they would still be subject to broader ADA and Rehabilitation Act requirements.
Before
V1 defined "covered entity" as any licensed provider of health care services (including various facilities and practitioners) and any transplant hospital that is in interstate commerce or substantially affects it.
After
V2 defines "covered entity" as (A) any entity operating a program or activity, involving an organ transplant or related services, receiving Federal financial assistance; or (B) any public entity covered by title II of the Americans with Disabilities Act of 1990 that carries out such activities.
This is a minor terminological change with no operative impact on the meaning or scope of what constitutes an "organ" for the purposes of the Act, as it still refers to the same external definition.
Before
V1 defined "human organ" as having the meaning given in section 301(c) of the National Organ Transplant Act.
After
V2 defines "organ" as having the meaning given the term "human organ" in section 301(c) of the National Organ Transplant Act.
This change streamlines the bill by aligning the definition with established legal frameworks. It means that the interpretation of who is a "qualified individual with a disability" for organ transplant purposes will be consistent with broader federal disability rights law, rather than a unique definition within this specific Act. This could broaden or narrow the interpretation depending on how the specific inclusions of v1's definition compare to existing case law and regulations under ADA/Rehab Act.
Before
V1 defined "qualified individual" as an individual who, with or without a support network, provision of auxiliary aids and services, or reasonable modifications to policies or practices, meets eligibility requirements for the receipt of a human organ.
After
V2 defines "qualified individual with a disability" by referring to the meaning given in title II of the Americans with Disabilities Act of 1990, section 504 of the Rehabilitation Act of 1973, and any other applicable Federal law, including their implementing regulations.
Similar to the "qualified individual" change, this aligns the bill's requirements for reasonable modifications with established federal disability law. While v2 Section 4(c)(1)(B) explicitly mentions "supported decision-making," the broader implications of "reasonable modifications" will now be governed by the interpretations and precedents of the ADA and Rehabilitation Act, potentially offering a more consistent but less specifically enumerated set of requirements within this bill.
Before
V1 defined "reasonable modifications to policies or practices" with specific inclusions such as communication with support persons, consideration of support networks for compliance, and the use of supported decision-making.
After
V2 defines "reasonable modifications" by referring to the meaning given in or for the Americans with Disabilities Act of 1990, section 504 of the Rehabilitation Act of 1973, and any other applicable Federal law, including their implementing regulations.
This modification explicitly clarifies that the anti-discrimination provisions apply to the critical stage of being placed on transplant waiting lists, which was implicitly covered by "evaluation" in v1 but is now explicitly stated. The addition of "including the process by which an individual receives such services" further broadens the scope to ensure the entire procedural aspect of obtaining related services is covered.
Before
V1 defined "related services" as services related to an organ transplant consisting of evaluation, counseling, treatment (including postoperative), provision of information, and any other physician-recommended service.
After
V2 defines "related services" as services, including the process by which an individual receives such services, related to an organ transplant consisting of evaluation and listing on the transplant waiting lists, counseling, treatment (including postoperative), provision of information, and any other physician-recommended service.
This change integrates the anti-discrimination mandate directly into the statutory framework governing organ procurement and transplantation networks. It makes the prohibition part of the existing regulatory structure for organ allocation, rather than a separate, general prohibition. This could provide a more direct legal hook for enforcement within the organ allocation system.
Before
V1 was a standalone section stating that the board of directors described in the Public Health Service Act shall not issue policies that would prohibit or hinder a qualified individual's access to an organ transplant solely on the basis of disability.
After
V2 amends Section 372(b)(2)(B) of the Public Health Service Act (42 U.S.C. 274(b)(2)(B)) to require that medical criteria for allocating organs "shall not include medical criteria that would discriminate on the basis of disability in access to an organ transplant."
This modification clarifies that the bill's prohibitions are to be interpreted and applied in harmony with established federal disability rights laws, reinforcing their legal foundation. The addition of the "otherwise discriminate" clause broadens the scope of prohibited actions beyond the specific four listed, ensuring comprehensive coverage against disability-based discrimination in organ transplants and related services.
Before
V1 stated that a covered entity may not, solely on the basis of a qualified individual's disability, determine ineligibility, deny, refuse referral, or refuse waiting list placement.
After
V2 prefaces the prohibition with "Consistent with section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.), and any other applicable Federal law, including their implementing regulations," and adds a fifth prohibited action: "otherwise discriminate based on disability with respect to the provision of an organ transplant or related services."
This modification shifts the legal standard for when disability can be considered. Instead of a standalone "medically significant" determination, v2 requires such considerations to be consistent with established federal disability rights law, including specific regulations like 45 CFR 84.56 (which deals with medical treatment under Section 504). This provides a more defined and legally precedent-based framework for professional judgment in treatment decisions.
Before
V1 allowed a covered entity to take disability into account if a physician, following an individualized evaluation, found it "medically significant to the receipt of the organ transplant or related services." It also clarified this doesn't require medically inappropriate care.
After
V2 allows a covered entity to take the disability into account "in carrying out a program or activity consistent with section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.), and any other applicable Federal law, including their implementing regulations, including section 84.56 of title 45, Code of Federal Regulations, as in effect on the date of enactment of this Act."
This modification aligns the clarification with the broader legal framework of reasonable modifications and auxiliary aids under federal disability law, rather than relying on the specific "support network" definition from v1. It reinforces that accommodations, as defined by existing law, must be considered to enable compliance.
Before
V1 clarified that if a qualified individual has a necessary support network to ensure compliance with health requirements, their inability to independently comply cannot be construed as medically significant.
After
V2 clarifies that if a qualified individual with a disability would be able to comply with health requirements if given "necessary reasonable modifications to policies, practices, or procedures, or appropriate auxiliary aids and services," their inability to independently comply may not be taken into account.
This modification strengthens the legal basis for requiring reasonable modifications by grounding it in established federal law. The explicit inclusion of "supported decision-making" ensures that this specific type of accommodation, which was part of v1's detailed definition of reasonable modifications, remains a clear expectation under v2.
Before
V1's Section 4(c) generally stated that a covered entity shall make reasonable modifications to policies or practices if necessary, unless it would fundamentally alter them.
After
V2's Section 4(c)(1)(A) explicitly states that a covered entity shall make reasonable modifications to policies, practices, or procedures consistent with ADA, Rehab Act 504, and other applicable Federal law, unless fundamental alteration. Section 4(c)(1)(B) explicitly includes "the use of supported decision-making, when needed."
This modification reinforces the legal obligation to provide auxiliary aids and services by explicitly referencing established federal disability rights laws, ensuring consistency in interpretation and application.
Before
V1's Section 4(d)(1) stated that a covered entity shall take steps to ensure a qualified individual is not denied a procedure due to absence of auxiliary aids, unless fundamental alteration or undue burden.
After
V2's Section 4(c)(2) explicitly states that a covered entity shall take steps consistent with ADA, Rehab Act 504, and other applicable Federal law, to ensure no qualified individual with a disability is excluded or denied services due to absence of appropriate auxiliary aids and services, unless fundamental alteration or undue burden.
This modification provides a clearer framework for enforcement, directing the HHS OCR to follow specific procedures and to apply remedies consistent with established federal disability rights laws. This could lead to more standardized and robust enforcement actions.
Before
V1 stated that an individual alleging a violation may bring a claim to the HHS Office for Civil Rights for expedited resolution, and clarified that this does not limit other available remedies.
After
V2 states that when a complaint is brought to HHS OCR, the Office "shall consider the complaint, consistent with the Office's practices and procedures, for expedited complaint resolution or early complaint resolution, as appropriate and as appropriate, may require a remedy, consistent with the enforcement remedies for a violation of section 504... ADA...".
This modification streamlines the bill by consolidating related provisions. By explicitly listing the ADA and Rehabilitation Act, it reinforces that this bill is intended to complement and operate within the existing framework of federal disability rights law, rather than creating an entirely new, separate set of rights. It ensures that individuals can still pursue remedies under other, potentially broader, anti-discrimination statutes.
Before
V1 had two separate sections: Section 5 detailed the application of the Act's provisions to all parts of the organ transplant process, and Section 6 stated that nothing in the Act supersedes State or local laws providing greater rights.
After
V2 consolidates these into a single "Rule of Construction" that states nothing in the Act shall be construed to invalidate or limit the rights, remedies, and procedures, including legal standards, available to an individual aggrieved under the ADA, Section 504 of the Rehabilitation Act, or any other applicable Federal or State law that provides additional protections.
Scope
Complete substitute — Changes are scattered throughout the bill, affecting definitions, the scope of regulated entities, the legal framework for prohibitions, and enforcement mechanisms. — V2 represents a meaningful change in policy direction by shifting from a standalone anti-discrimination framework to one explicitly integrated and consistent with existing federal disability rights laws (ADA, Rehabilitation Act). — The changes fundamentally alter how the bill interacts with existing federal disability laws, as v2 explicitly ties its provisions to the ADA and Rehabilitation Act, whereas v1 largely mirrored their concepts without explicit integration. The new definition of "covered entity" also significantly changes the interaction with the healthcare provider landscape.
Impact analysis
Healthcare providers and transplant hospitals (specifically private entities not receiving federal financial assistance)
Narrowing of direct regulatory scope under this specific Act.
V1 broadly covered "any licensed provider of health care services" and "any transplant hospital" in interstate commerce. V2 narrows the definition of "covered entity" to those receiving federal financial assistance or public entities under ADA Title II.
Individuals with disabilities seeking organ transplants
Procedural clarification and potential strengthening of enforcement through alignment with existing law and new oversight.
V1 created specific definitions and prohibitions. V2 integrates these protections into existing federal disability laws (ADA, Rehab Act 504), ensuring consistency with established legal precedents and interpretations. V2 also adds an explicit "otherwise discriminate" clause and a new reporting mechanism for enforcement.
The Department of Health and Human Services (specifically the Office for Civil Rights)
Increased administrative burden and formalized enforcement responsibilities, coupled with increased congressional oversight.
V1 allowed individuals to bring claims to OCR for expedited resolution. V2 provides more specific instructions for OCR's complaint handling, requiring consideration for expedited or early resolution consistent with existing practices, and explicitly ties remedies to ADA/Rehab Act enforcement. V2 also adds a new annual reporting requirement to Congress.
Organ procurement and transplantation networks (specifically the board of directors described in the Public Health Service Act)
Increased legal clarity and direct statutory obligation regarding non-discriminatory organ allocation criteria.
V1 prohibited the board from issuing policies that hinder access based on disability. V2 amends the Public Health Service Act to explicitly state that medical criteria for allocating organs "shall not include medical criteria that would discriminate on the basis of disability."