SB257.DOC

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

SECTION 2. The legislature finds that it is necessary to respect and protect the fundamental right of conscience of all individuals who provide medical 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 to license or refusal to certify.

It is the purpose of this Act to:

(1) Protect the right of all healthcare providers, institutions, and payers to decline to counsel, advise, pay for, provide, perform, assist, or participate in providing or performing medical services that violate their consciences. Such medical services may include abortion, artificial birth control, artificial insemination, assisted reproduction, human cloning, euthanasia, human embryonic stem-cell research, fetal experimentation, physician-assisted suicide, and sterilization; and

(2) Prohibit all forms of discrimination, disqualification, coercion, disability, or liability upon healthcare providers, institutions, and payers that decline to perform any medical service which violates their conscience.

SECTION 3. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

HEALTHCARE PROVIDERS RIGHTS OF CONSCIENCE ACT

§ ‑1 Definitions. For the purposes of this chapter, the following terms shall be defined as follows:

"Conscience" means the religious, moral, or ethical principles held by a healthcare provider, the healthcare institution, or healthcare payer. A healthcare provider, a healthcare 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 individual or 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 institution" means any public or private organization, corporation, partnership, sole proprietorship, association, agency, network, joint venture, or other entity that is involved in providing medical services, including but not limited to hospitals, clinics, medical centers, ambulatory surgical centers, private physicians' offices, pharmacies, nursing homes, university medical schools and nursing schools, medical training facilities, or other institutions or locations wherein medical 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 medical service or product, including but not limited to health maintenance organizations, health plans, insurance companies, or management services organizations.

"Healthcare provider" means any individual who may be asked to participate in any way in a medical service, 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 of, medical services.

"Medical service" means any phase of patient medical care, treatment or procedure, including but not limited to 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" means to counsel, advise, provide, perform, assist in, refer for, admit for purposes of providing, or participate in providing, any medical service or any form of such service.

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

§ ‑2 Rights of conscience of healthcare providers. (a) A healthcare provider has the right not to participate, and no healthcare provider shall be required to participate, in a medical service that violates the healthcare provider's conscience.

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

(c) It shall be unlawful for any person, healthcare provider, healthcare institution, public or private institution, public official, or any board that certifies competency in medical specialties to discriminate against any healthcare provider in any manner based on the healthcare provider's declining to participate in a medical service that violates the healthcare provider's conscience. For purposes 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 any grant, contract, or other program, refusal to provide residency training opportunities, or any other penalty, disciplinary, or retaliatory action.

§ ‑3 Rights of conscience of healthcare institutions. (a) A healthcare institution has the right not to participate, and no healthcare institution shall be required to participate, in a medical service that violates its conscience.

(b) A healthcare institution that declines to provide or participate in a medical 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 medical 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 the healthcare institution, or person, association, or corporation planning, proposing, or operating the healthcare institution, declines to participate in a medical service that 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 or operating an existing healthcare institution because the existing or proposed healthcare institution declines to participate in a medical service contrary to the healthcare institution's conscience.

§ ‑4 Rights of conscience of healthcare payers. (a) A healthcare payer has the right to decline to pay for, and no healthcare payer shall be required to pay for or arrange for the payment of, any medical 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 medical 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 attempting to establish a new healthcare payer or 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, because a healthcare payer, or a person, association, corporation, or other entity planning, proposing, or operating a healthcare payer declines to pay for or arrange for the payment of any medical service that violates its conscience. "Authorization", for purposes of this subsection shall include but not be limited to any authorization to create, expand, improve, acquire, or affiliate or merge with, any healthcare payer.

(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 medical service that is contrary to its conscience.

§ ‑5 Civil Remedies. (a) A civil action for damages or injunctive relief, or both, may be brought for the violation of any provision of this chapter. It shall not be a defense to any claim arising out of the violation of this chapter that the violation was necessary to 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 chapter may commence a civil action. Upon the court's finding that a violation of this chapter has occurred, the aggrieved party shall be entitled to recover triple the actual damages, including pain and suffering, sustained by the individual, association, corporation, entity, or healthcare institution, the costs of the action, and reasonable attorney's fees; but in no case shall recovery be less than $5,000 for each violation in addition to the costs of the action and reasonable attorney's fees. These damage remedies shall be cumulative and not exclusive of other remedies afforded under any other state or federal law.

(c) The court, in a civil action, may award injunctive relief, including but not limited to, ordering reinstatement of a healthcare provider to the healthcare provider's prior job position."

SECTION 4. The provisions of this Act are declared to be severable, and if any provision, word, phrase, or clause of this Act or the application thereof to any person shall be held invalid, such invalidity shall not affect the validity of the remaining portions of this Act.

SECTION 5. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	257
TWENTY-FIFTH LEGISLATURE, 2009
STATE OF HAWAII