HB2741

SECTION 1. Title. This Act may be cited as the "Healthcare Providers Rights of Conscience Act of 2008."

SECTION 2. Legislative findings and purposes. The legislature finds that it is the public policy of Hawaii to respect and protect the fundamental right of conscience of all individuals who provide healthcare services. Without comprehensive protection, healthcare rights of conscience may be violated in various ways, such as harassment, demotion, salary reduction, transfer, termination, loss of staffing privileges, denial of aid or benefits, and refusal of license, or refusal to certify. It is the purpose of this Act to protect as a basic civil right the right of all healthcare providers, institutions and payers to decline counsel, advise, pay for, provide, perform, assist, or participate in providing or performing healthcare services that violate their consciences. Such healthcare services may include, but are not limited to, abortion, artificial birth control, artificial insemination, assisted reproduction, human cloning, euthanasia, human embryonic stem-cell research, fetal experimentation, physician-assisted suicide, and sterilization.

Accordingly, it is the purpose of this Act to prohibit all forms of discrimination, disqualification, coercion, disability, or liability upon such healthcare providers, institutions and payers that decline to perform any health care service that violates their conscience.

SECTION 3. Definitions. As used in this Act:

"Conscience" means the religious, moral or ethical principles held by a healthcare provider, the healthcare institution or healthcare payer. For purposes of this Act, a health care institution or healthcare payer's conscience shall be determined by reference to its existing or proposed religious, moral or ethical guidelines, mission statement, constitution, bylaws, articles of incorporation, regulations, or other relevant documents.

"Employer" means any person, business, partnership, association, corporation, including the State or any of its political subdivisions, a trust, or nonprofit entity that pays for or provides health benefits or health insurance coverage as a benefit to its employees, whether through a third party, a health maintenance organization, a program of self insurance, or some other means.

"Healthcare institutions" means an institution, facility or agency licensed, certified or otherwise authorized or permitted by law to provide health care in the ordinary course of business, including but not limited to: hospitals, clinics, medical centers, ambulatory surgical centers, private physician's offices, pharmacies, nursing homes, university medical schools and nursing schools, medical training facilities, or other institutions or locations wherein healthcare services are provided to any person.

"Healthcare payer" means any entity or employer that contracts for, pays for, arranges for the payment of, in whole or in part, any healthcare service or product, including, but not limited to health maintenance organizations, health plans, insurance companies, or management services organizations.

"Healthcare provider" means an institution, facility or agency licensed, certified, or otherwise authorized or permitted by law to provide health care in the ordinary course of business, including, but not limited to: a physician, physician's assistant, nurse, nurses' aide, medical assistant, hospital employee, clinic employee, nursing home employee, pharmacist, pharmacy employee, researcher, medical or nursing school faculty, student or employee, counselor, social worker, or any professional, paraprofessional, or any other person who furnishes, or assists in the furnishing or, healthcare services.

"Health care service" means any program, private or public, other than federal facilities or services, whether organized for profit or not, used, operated, or designed to provide medical diagnosis, treatment, nursing, rehabilitative, or preventative care to any person or persons, including, but not limited to, the following: patient referral, counseling, therapy, testing, diagnosis or prognosis, research, instruction, prescribing, dispensing or administering any device, drug, or medication, surgery, or any other care or treatment rendered by healthcare providers or healthcare institutions.

"Participate" in a healthcare service means to counsel, advise, provide, perform, assist in, refer for, admit for purposes of providing, or participate in providing, any healthcare service or any form of such service.

"Pay" or "payment" means pay, contract for, or otherwise arrange for the payment of, in whole or part.

SECTION 4. Rights of conscience of health care providers. (a) A healthcare provider has the right to participate, and no healthcare provider shall be required to participate in a healthcare service that violates his or her conscience.

(b) No healthcare provider shall be civilly, criminally, or administratively liable for declining to participate in a healthcare service that violates his or her conscience.

(c) It shall be unlawful for any person, healthcare provider, healthcare institution, public or private institution, public official, or any board which certifies competency in medical specialties to discriminate against any healthcare provider in any manner based on his or her declining participate in a healthcare service that violates his or her conscience. For purpose of this Act, discrimination includes, but is not limited to: termination, transfer, refusal of staff privileges, refusal of board certification adverse administrative action, demotion, loss of career specialty, reassignment to a different shift, reduction of wages or benefit refusal to award or grant, contract, or other program, refusal to provide residency training opportunities, or any other penalty, disciplinary or retaliatory action.

SECTION 5. Rights of conscience of health care institutions. (a) A healthcare institution has the right not to participate, and no healthcare institution shall be required to participate, in a healthcare service that violates its conscience.

(b) A healthcare institution that declines to provide or participate in a healthcare service that violates its conscience shall not be civilly, criminally, or administratively liable if the institution provides a consent form to be signed by a patient before admission to the institution stating that it reserves the right to decline to provide or participate in healthcare services that violate its conscience.

(c) It shall be unlawful for any person, public or private institution, or public official to discriminate against any healthcare institution, or any person, association, corporation, or other entity attempting to establish a new healthcare institution or operating an existing healthcare institution, in any manner, including but not limited to any denial, deprivation or disqualification with respect to licensure; any aid assistance, benefit or privilege, including staff privileges; or any authorization, including authorization to create, expand, improve, acquire, or affiliate or merge with any healthcare institution, because such healthcare institution, or person, association, or corporation planning, proposing, or operating a healthcare institution, declines to participate in a healthcare service which violates the healthcare institution's conscience. (d) It shall be unlawful for any public official, agency, institution, or entity to deny any form of aid, assistance, grants, or benefits, or in any other manner to coerce, disqualify, or discriminate against any person, association, corporation, or other entity attempting to establish a new healthcare institution because the existing or proposed healthcare institution declines to participate in a healthcare service contrary to the healthcare institution's conscience.

SECTION 6. Rights of conscience of healthcare payers. (a) A healthcare payer has the right to decline to pay, and no healthcare payer shall be required to pay for or arrange for the payment of any healthcare service or product that violates its conscience.

(b) No healthcare payer and no person, association, corporation, or other entity that owns, operates, supervises, or manages a healthcare payer shall be civilly or criminally liable by reason of the healthcare payer's declining to pay for or arrange for the payment of any healthcare service that violates its conscience.

(c) It shall be unlawful for any person, public or private institution, or public official to discriminate against any healthcare payer, or any person, association, corporation, or other entity (i) attempting to establish a new healthcare payer or (ii) operating an existing healthcare payer, in any manner, including but not limited to, any denial, deprivation, or disqualification with respect to licensure, aid, assistance, benefit, privilege, or authorization, including, but not limited to any authorization to create, expand, improve, acquire, or affiliate or merge with, any healthcare payer, because a healthcare payer, or a person, association, corporation, or other entity planning, proposing, or operating a healthcare payer of any healthcare service that violates its conscience. (d) It shall be unlawful for any public official, agency, institution, or entity to deny any form of aid, assistance, grants, or benefits, or in any other manner to coerce, disqualify, or discriminate against any healthcare payer, or any person, association, corporation, or other entity attempting to establish a new healthcare payer or operating an existing healthcare payer because the existing or proposed healthcare payer declines to pay for, or arrange for the payment of, any healthcare service that is contrary to its conscience.

SECTION 7. Civil remedies. (a) A civil action for damages or injunctive relief, or both, may be brought for the violation of any provision of this Act. It shall be not be a defense to any claim arising out of the prevent additional burden or expense on any other healthcare provider, healthcare institution, individual, or patient.

(b) Any individual, association, corporation, entity, or healthcare institution injured by any public or private individual , association, agency, entity, or corporation by reason of any conduct prohibited by this Act may commence a civil action. Upon finding a violation of this Act, the aggrieved party shall be entitled to recover threefold the actual damages, including pain and suffering, sustained by such individual, association, corporation, entity, or healthcare institution, the costs if the action, and reasonable attorney's fees; but in no case shall recovery be less than $5,000 for each violation in addition to costs of the action and reasonable attorney's fees. These damages remedies shall be cumulative and not exclusive of other remedies afford under any other state or federal law.

(c) The court in such civil action may award injunctive relief, including, but not limited to, ordering reinstatement of a healthcare provider to his or her prior job position.

SECTION 8. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 9. This Act shall take effect on January 1, 2009.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	2741
TWENTY-FOURTH LEGISLATURE, 2008
STATE OF HAWAII