House Study Bill 139 - Introduced HOUSE FILE _____ BY (PROPOSED COMMITTEE ON JUDICIARY BILL BY CHAIRPERSON HOLT) A BILL FOR An Act relating to protections for medical practitioners, 1 health care institutions, and health care payors including 2 those related to the exercise of conscience, whistleblower 3 activities, and free speech, and providing penalties. 4 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 5 TLSB 1974YC (4) 91 lh/ko
H.F. _____ Section 1. SHORT TITLE. This Act shall be known and may be 1 cited as the Medical Ethics Defense Act. 2 Sec. 2. NEW SECTION . 135S.1 Definitions. 3 As used in this chapter, unless the context otherwise 4 requires: 5 1. a. Conscience means the ethical, moral, or religious 6 beliefs or principles held by a medical practitioner, health 7 care institution, or health care payor. 8 b. With respect to persons who are institutions, 9 corporations, or other legal entities, conscience is 10 determined by reference to that entitys governing documents 11 including but not limited to published ethical, moral, or 12 religious guidelines or directives, mission statements, 13 constitutions, articles of incorporation, bylaws, policies, or 14 regulations. 15 2. Discrimination means an adverse action, including but 16 not limited to any penalty, disciplinary, or retaliatory action 17 taken against, or a threat of adverse action communicated to, a 18 medical practitioner, health care institution, or health care 19 payor as a result of the refusal of the medical practitioner, 20 health care institution, or health care payor to participate 21 in a health care service on the basis of conscience. 22 Discrimination not does include the negotiation or purchase of 23 insurance or a health care service by a nongovernmental entity 24 or individual, the refusal to use or purchase insurance or a 25 health care service by a nongovernmental entity or individual, 26 or a health care institutions good-faith effort to accommodate 27 a medical practitioners, health care institutions, or health 28 care payors exercise of conscience. 29 3. Health care institution means an organization, 30 corporation, partnership, association, agency, network, sole 31 proprietorship, joint venture, or other entity that provides 32 a health care service. 33 4. Health care payor means an employer; a health plan; 34 a management services organization; any entity, including a 35 -1- LSB 1974YC (4) 91 lh/ko 1/ 10
H.F. _____ health service corporation, health maintenance organization, 1 or any similar corporation or organization, or an employer 2 offering self-insurance, that provides a health benefit plan; 3 or any other entity that pays for or arranges for payment, in 4 whole or in part, for a health care service. 5 5. Health care service means medical research and medical 6 care provided to a patient or client at any time during the 7 patients or clients course of treatment, including but 8 not limited to testing; diagnosis; record making; referral; 9 prescribing, dispensing, or administering any drug, medication, 10 or device; therapy or counseling; and preparation or 11 arrangement for a surgical procedure. 12 6. Medical practitioner means a person who facilitates 13 or participates, or who is asked to facilitate or participate 14 in a health care service, including but not limited to a 15 health-related professional licensed by a board designated in 16 section 147.13, and any other person licensed, certified, or 17 otherwise authorized or permitted by the laws of this state 18 to administer a health care service in the ordinary course 19 of business or in the practice of a profession. Medical 20 practitioner includes any student enrolled in an educational 21 institution who is a prospective medical practitioner. 22 8. Participate in a health care service means to provide, 23 perform, assist with, facilitate, refer for, provide counseling 24 for, advise with regard to, admit for the purposes of 25 providing, or take part in a health care service in any way. 26 Sec. 3. NEW SECTION . 135S.2 Exercise of conscience for 27 health care institutions, health care payors, and medical 28 practitioners exception. 29 1. a. A medical practitioner, health care institution, 30 or health care payor has the right not to participate in 31 or pay for a health care service that violates the medical 32 practitioners, health care institutions, or health care 33 payors conscience. This paragraph shall not be construed to 34 waive or modify a duty a medical practitioner, health care 35 -2- LSB 1974YC (4) 91 lh/ko 2/ 10
H.F. _____ institution, or health care payor may have to participate in or 1 pay for a health care service that does not violate the medical 2 practitioners conscience. 3 b. A medical practitioner, health care institution, or 4 health care payor who refuses to participate in a health care 5 service under this section shall not be discriminated against 6 for the medical practitioners, health care institutions, or 7 health care payors exercise of conscience. 8 2. A health care payor shall not decline to pay for a health 9 care service due to a medical practitioners, health care 10 institutions, or health care payors refusal to participate 11 in a health care service under this section if the health care 12 payor is contractually obligated to pay for the health care 13 service. 14 3. This section shall not be construed to relieve a health 15 care institution of the requirement to provide emergency 16 medical services to individuals as required under 42 U.S.C. 17 1395dd. 18 4. Notwithstanding any other provision of this chapter to 19 the contrary, a medical practitioner, health care institution, 20 or health care payor that holds itself out to the public as 21 religion-based, states in the entitys governing documents 22 that the entity has a religious purpose or mission, and that 23 has internal operating policies or procedures that implement 24 the entitys religious beliefs, shall have the right to make 25 employment, staffing, contracting, and admitting privilege 26 decisions consistent with the entitys religious beliefs. 27 Sec. 4. NEW SECTION . 135S.3 Exercise of conscience 28 immunity. 29 1. A medical practitioner, health care institution, 30 or health care payor shall not be civilly, criminally, or 31 administratively liable for the medical practitioners, 32 health care institutions, or health care payors exercise of 33 conscience. 34 2. A health care institution shall not be civilly, 35 -3- LSB 1974YC (4) 91 lh/ko 3/ 10
H.F. _____ criminally, or administratively liable for the exercise of 1 conscience by a medical practitioner employed, contracted, or 2 granted admitting privileges by the health care institution. 3 Sec. 5. NEW SECTION . 135S.4 Whistleblower protections. 4 1. A medical practitioner, health care institution, or 5 health care payor shall not be discriminated against because 6 the medical practitioner, health care institution, or health 7 care payor does any of the following: 8 a. Provides, causes to be provided, or intends to provide 9 or cause to be provided information relating to a suspected 10 violation of this chapter to the medical practitioners, 11 health care institutions, or health care payors employer, 12 the attorney general, any state agency charged with protecting 13 health care rights of conscience, the United States department 14 of health and human services, the United States commission 15 on civil rights, or any other federal agency charged with 16 protecting health care rights of conscience. 17 b. Testifies or intends to testify in a proceeding 18 concerning a violation of this chapter. 19 c. Assists or participates, or intends to assist or 20 participate, in a proceeding under this chapter. 21 2. It shall be unlawful to discriminate against a medical 22 practitioner, health care institution, or health care payor 23 because the medical practitioner, health care institution, 24 or health care payor discloses information that the medical 25 practitioner, health care institution, or health care payor 26 reasonably believes evidences any of the following: 27 a. A violation of any law or rule. 28 b. A violation of any standard of care or ethical guidelines 29 for the provision of any health care service. 30 c. Gross mismanagement, a gross waste of funds, an abuse 31 of authority, practices or methods of treatment that may put 32 patient or client health at risk, or a substantial and specific 33 danger to public health or safety. 34 3. This section shall not be construed to exempt a 35 -4- LSB 1974YC (4) 91 lh/ko 4/ 10
H.F. _____ person from the requirements of the federal Health Insurance 1 Portability and Accountability Act of 1996, Pub. L. No. 2 104-191, including amendments thereto and regulations 3 promulgated thereunder, or any other applicable confidentiality 4 and patient or client privacy requirements. 5 Sec. 6. NEW SECTION . 135S.5 Free speech protections 6 notification of complaints penalty. 7 1. The department of health and human services, a licensing 8 board designated under chapter 147, or any other state 9 licensing or certifying entity of a medical practitioner shall 10 not reprimand, sanction, or revoke or threaten to revoke a 11 license or certification of a medical practitioner, health care 12 institution, or health care payor who is licensed or certified 13 by the department, licensing board, or other licensing or 14 certifying entity, for engaging in speech, expressive activity, 15 or association protected under the first amendment to the 16 Constitution of the United States, unless the department, 17 licensing board, or other licensing or certifying entity 18 demonstrates by clear and convincing evidence that the medical 19 practitioners, health care institutions, or health care 20 payors speech, expressive activity, or association was the 21 direct cause of physical harm to a person with whom the medical 22 practitioner, health care institution, or health care payor had 23 a medical practitioner-patient or medical practitioner-client 24 relationship within the three years immediately preceding the 25 incident of physical harm. 26 2. a. Within twenty-one days of receipt of a complaint 27 that alleges a violation of speech, expressive activity, or 28 association protected under subsection 1 that may result 29 in revocation of a medical practitioners, health care 30 institutions, or health care payors license, certification, 31 or registration, the department, licensing board, or other 32 licensing or certifying entity shall provide the medical 33 practitioner, health care institution, or health care payor 34 with a copy of the complaint. 35 -5- LSB 1974YC (4) 91 lh/ko 5/ 10
H.F. _____ b. If the department, licensing board, or other licensing or 1 certifying entity fails to provide a copy of the complaint to 2 the medical practitioner, health care institution, or health 3 care payor within twenty-one days of receipt, the department, 4 licensing board, or other certifying entity shall pay the 5 medical practitioner, health care institution, or health care 6 payor an administrative penalty of five hundred dollars for 7 each day of noncompliance. 8 3. The state shall not contract with, recognize, approve, 9 or require a medical practitioner, health care institution, 10 or health care payor to obtain a certification or credential 11 issued or approved by the department of health and human 12 services, a licensing board designated under chapter 147, 13 or any other licensing or certifying entity of a medical 14 practitioner, health care institution, or health care payor 15 that revokes or refuses to issue a certification or credential 16 to the medical practitioner, health care institution, or 17 health care payor if the medical practitioner, health care 18 institution, or health care payor is in compliance with this 19 chapter and did not provide medical advice or treatment to a 20 patient or client. 21 Sec. 7. NEW SECTION . 135S.6 Unlawful interference 22 relief. 23 1. It is unlawful for a person to interfere or attempt to 24 interfere with the exercise of conscience not to participate in 25 a health care service, or in the whistleblower or free speech 26 rights and protections under this chapter, whether by duress, 27 coercion, or any other means. 28 2. A health care institution, health care payor, or medical 29 practitioner that alleges injury by unlawful interference 30 by a person under this chapter may bring a civil action in 31 a court of competent jurisdiction. If a court of competent 32 jurisdiction finds a person liable under this section, the 33 court may order any of the following: 34 a. Injunctive relief, when appropriate, including but not 35 -6- LSB 1974YC (4) 91 lh/ko 6/ 10
H.F. _____ limited to reinstatement of a medical practitioner to the 1 medical practitioners previous position, or reinstatement 2 or reactivation of licensure or certification of a medical 3 practitioner, or reactivation or reinstatement of licensure of 4 a health care institution or a health care payor. 5 b. Monetary damages for injuries suffered. 6 c. Reasonable costs and attorney fees. 7 3. The rights, remedies, and prohibitions contained in this 8 chapter shall be in addition to and cumulative of any other 9 right, remedy, or prohibition accorded by common law or state 10 or federal law. This chapter shall not be construed to deny, 11 abrogate, or impair any such common law or statutory right, 12 remedy, or prohibition. 13 4. Any additional burden or expense to another medical 14 practitioner, health care institution, or health care payor 15 arising from the exercise of conscience pursuant to this 16 chapter shall not be a defense to a violation of this chapter. 17 5. A person shall not bring a civil action against a person 18 who declines to use or purchase a health care service from 19 a medical practitioner, health care institution, or health 20 care payor because of the medical practitioners, health care 21 institutions, or health care payors exercise of conscience 22 under this chapter. 23 Sec. 8. NEW SECTION . 135S.7 Severability. 24 If any provision of this chapter or its application to any 25 person or circumstance is held invalid, the invalidity shall 26 not affect other provisions or applications of this chapter 27 which can be given effect without the invalid provision or 28 application, and to this end the provisions of this chapter are 29 severable. 30 EXPLANATION 31 The inclusion of this explanation does not constitute agreement with 32 the explanations substance by the members of the general assembly. 33 This bill relates to protections for medical practitioners 34 (practitioner), health care institutions (institution), and 35 -7- LSB 1974YC (4) 91 lh/ko 7/ 10
H.F. _____ health care payors (payor), involving exercise of conscience, 1 whistleblower activities, and free speech. 2 The bill provides definitions for conscience, 3 discrimination, health care institution, health care 4 payor, health care services, medical practitioner, and 5 participate in a health care service. 6 The bill provides that a practitioner, institution, or 7 payor has the right not to participate in or pay for a health 8 care service (service) that violates the practitioners, 9 institutions, or payors conscience. A practitioner, 10 institution, or payor who refuses to participate in a service 11 due to exercise of conscience shall not be discriminated 12 against for refusing to participate. 13 The bill is not to be construed to relieve a practitioner, 14 institution, or payor of the requirement under federal law to 15 provide emergency medical services to certain individuals. 16 The bill provides that a practitioner, institution, or payor 17 that holds itself out to the public as religion-based, as 18 described in the bill, shall have the right to make employment, 19 staffing, contracting, and admitting privilege decisions 20 consistent with the entitys religious beliefs. 21 The bill provides that a practitioner, institution, or payor 22 shall not be civilly, criminally, or administratively liable 23 for the practitioners, institutions, or payors exercise of 24 conscience. An institution shall not be civilly, criminally, 25 or administratively liable for the excise of conscience by 26 a practitioner employed, contracted, or granted admitting 27 privileges by the institution. 28 The bill provides whistleblower protections by providing 29 that a practitioner, institution, or payor shall not be 30 discriminated against because the practitioner, institution, or 31 payor takes certain actions, as described in the bill, relating 32 to a suspected violation of the bill. The bill prohibits 33 discrimination against a practitioner, institution, or payor 34 because the practitioner, institution, or payor discloses 35 -8- LSB 1974YC (4) 91 lh/ko 8/ 10
H.F. _____ information as described in the bill. The bill is not to 1 be construed to exempt a person from the requirements of the 2 federal Health Insurance Portability and Accountability Act. 3 The bill also provides that the department of health 4 and human services (HHS), a health professional licensing 5 board, or any other state licensing or certifying entity of 6 a practitioner, institution, or payor shall not reprimand, 7 sanction, or revoke or threaten to revoke a license or 8 certification of a practitioner, institution, or payor 9 for engaging in speech, expressive activity (activity), 10 or association protected under the first amendment unless 11 HHS, the licensing board, or other licensing or certifying 12 entity demonstrates by clear and convincing evidence that 13 the speech, activity, or association was the direct cause 14 of physical harm to a person with whom the practitioner, 15 institution, or payor had a medical practitioner-patient or 16 medical practitioner-client relationship within the three 17 years immediately preceding the incident of physical harm. 18 Within 21 days of receiving a complaint alleging a violation 19 of speech, activity, or association as described in the bill, 20 HHS, a licensing board, or other licensing or certifying entity 21 shall provide the practitioner, institution, or payor with a 22 copy of the complaint. If HHS, a licensing board, or other 23 licensing or certifying entity fails to provide the complaint 24 within 21 days, HHS, the licensing board, or other certifying 25 entity shall pay the practitioner, institution, or payor an 26 administrative penalty of $500 for each day of noncompliance. 27 If HHS, a licensing board, or other licensing or certifying 28 entity revokes or refuses to issue a certification or 29 credential to a practitioner, institution, or payor who is in 30 compliance with the bill and did not provide medical advice or 31 treatment to a patient or client, the state shall not contract 32 with, recognize, approve, or require the certification or 33 credential issued or approved by HHS, the licensing board, or 34 other licensing or certifying entity. 35 -9- LSB 1974YC (4) 91 lh/ko 9/ 10
H.F. _____ The bill provides that it is unlawful for a person to 1 interfere or attempt to interfere with the right not to 2 participate in or pay for a service, or with the whistleblower 3 or free speech rights and protections authorized under the 4 bill. An institution, payor, or practitioner injured by 5 unlawful interference under the bill is entitled to bring a 6 civil action that, if successful, may result in relief as 7 detailed in the bill. The bill shall not be construed to deny, 8 abrogate, or impair a common law or statutory right, remedy, 9 or prohibition. An additional burden or expense arising from 10 another practitioners, institutions, or payors exercise 11 of conscience is not a defense to a violation of the bill. 12 The bill prohibits a person from bringing a civil action 13 against a person who declines to use or purchase a service 14 from a practitioner, institution, or payor exercising their 15 conscience. 16 The bill includes a severability clause. 17 -10- LSB 1974YC (4) 91 lh/ko 10/ 10