Text of AL SB 312 (2010)

SB312 1 116900-2 2 By Senators Glover, Erwin, Sanford, Beason, Waggoner, Marsh, 3 Pittman, Brooks, Smith, Dixon, Orr, Holley and French 4 RFD: Health 5 First Read: 02-FEB-10 6 Page 0 116900-2:n:01/26/2010:JRC/th LRS2010-499R1 1 2 3 4 5 6 7 SYNOPSIS: Under current law, health care authorities 8 are vested with the authority to make and to alter 9 appropriate rules and regulations for the conduct 10 of any health care facility and properties owned or 11 operated by it. 12 This bill would give health care providers, 13 health care institutions, and health care payers 14 the following: The authority to refuse to perform 15 or to participate in health care services that 16 violate their conscience; immunity from civil, 17 criminal, or administrative liability for refusing 18 to provide or participate in a health care service 19 that violates their conscience; immunity from 20 discrimination or disciplinary action including 21 termination, transfer, refusal of staff privileges, 22 shift reassignment, or wage or benefits reduction 23 for declining to participate in a health care 24 service that violates their conscience. Further, 25 the bill would provide for injunctive relief and 26 back pay for violation. 27 Page 1 1 A BILL 2 TO BE ENTITLED 3 AN ACT 4 5 Relating to health care, allows health care 6 providers, institutions, and payers to decline to perform any 7 health care service that violates their conscience and provide 8 remedies for persons who exercise that right and suffer 9 consequences as a result. 10 BE IT ENACTED BY THE LEGISLATURE OF ALABAMA: 11 Section 1. This act may be known and cited as the 12 "Health Care Rights of Conscience Act." 13 Section 2. The Legislature hereby finds and 14 declares: 15 (a) It is the public policy of the State of Alabama 16 to respect and protect the fundamental right of conscience of 17 all individuals who provide health care services. 18 (b) Without comprehensive protection, health care 19 rights of conscience may be violated in various ways, such as 20 harassment, demotion, salary reduction, transfer, termination, 21 loss of staffing privileges, denial of aid or benefits, and 22 refusal to license, or refusal to certify. 23 (c) It is the purpose of this act to protect as a 24 basic civil right the right of all health care providers, 25 institutions and payers to decline to counsel, advise, pay 26 for, provide, perform, assist, or participate in providing or 27 Page 2 performing certain enumerated health care services that 1 violate their consciences. 2 (d) Accordingly, it is the purpose of this act to 3 prohibit all forms of discrimination, disqualification, 4 coercion, disability, or liability upon such health care 5 providers, institutions, and payers that decline to perform 6 any enumerated health care service that violates their 7 conscience. 8 Section 3. The following words and terms shall have 9 the meanings ascribed to them in this section, unless 10 otherwise required by their respective context: 11 (1) CONSCIENCE. The religious, moral, or ethical 12 principles held by a health care provider, the health care 13 institution, or health care payer. For purposes of this act, a 14 health care institution or health care payer's conscience 15 shall be determined by reference to its existing or proposed 16 religious, moral, or ethical guidelines, mission statement, 17 constitution, bylaws, articles of incorporation, regulations, 18 or other relevant documents. 19 (2) EMPLOYER. Any individual or entity that pays for 20 or provides health benefits or health insurance coverage as a 21 benefit to its employees, whether through a third party, a 22 health maintenance organization, a program of self insurance, 23 or some other means. 24 (3) HEALTH CARE INSTITUTION. Any public or private 25 organization, corporation, partnership, sole proprietorship, 26 association, agency, network, joint venture, or other entity 27 Page 3 that is involved in providing health care services, including, 1 but not limited to: Hospitals, clinics, medical centers, 2 ambulatory surgical centers, private physician's offices, 3 pharmacies, nursing homes, university medical schools and 4 nursing schools, medical training facilities, or other 5 institutions or locations wherein health care services are 6 provided to any person. 7 (4) HEALTH CARE PAYER. Any entity or employer that 8 contracts for, pays for, or arranges for the payment of, in 9 whole or in part, any health care service or product, 10 including, but not limited to: Health maintenance 11 organizations, health plans, insurance companies, or 12 management services organizations. 13 (5) HEALTH CARE PROVIDER. Any individual who may be 14 asked to participate in any way in a health care service, 15 including, but not limited to: A physician, physician's 16 assistant, nurse, nurse's aide, medical assistant, hospital 17 employee, clinic employee, nursing home employee, pharmacist, 18 pharmacy employee, researcher, medical or nursing school 19 faculty, student, or employee, counselor, social worker, or 20 any professional, paraprofessional, or any other person who 21 furnishes, or assists in the furnishing of, health care 22 services. 23 (6) HEALTH CARE SERVICE. Any phase of patient 24 medical care, treatment or procedure, including, but not 25 limited to, the following: Patient referral, counseling, 26 therapy, testing, diagnosis or prognosis, research, 27 Page 4 instruction, prescribing, dispensing or administering any 1 device, drug, or medication, surgery, or any other care or 2 treatment rendered by health care providers or health care 3 institutions for abortion, artificial birth control, 4 artificial insemination, assisted reproduction, human cloning, 5 euthanasia, human embryonic stem cell research, fetal 6 experimentation, physician-assisted suicide, and 7 sterilization. 8 (7) PARTICIPATE. To counsel, advise, provide, 9 perform, assist in, refer for, admit for purposes of 10 providing, or participate in providing, any health care 11 service or any form of such service. 12 (8) PAY or PAYMENT. To pay, contract for, or 13 otherwise arrange for the payment of, in whole or in part. 14 Section 4. (a) A health care provider has the right 15 not to participate, and no health care provider shall be 16 required to participate, in a health care service that 17 violates his or her conscience. 18 (b) No health care provider shall be civilly, 19 criminally, or administratively liable for declining to 20 participate in a health care service that violates his or her 21 conscience. 22 (c) It shall be unlawful for any person, health care 23 provider, health care institution, public or private 24 institution, public official, or any board which certifies 25 competency in medical specialties to discriminate against any 26 health care provider in any manner based on his or her 27 Page 5 declining to participate in a health care service that 1 violates his or her conscience. For purposes of this act, 2 discrimination includes, but is not limited to: Termination, 3 transfer, refusal of staff privileges, refusal of board 4 certification, adverse administrative action, demotion, loss 5 of career specialty, reassignment to a different shift, 6 reduction of wages or benefits, refusal to award any grant, 7 contract, or other program, refusal to provide residency 8 training opportunities, or any other penalty disciplinary or 9 retaliatory action. 10 Section 5. (a) A health care institution has the 11 right not to participate, and no health care institution shall 12 be required to participate, in a health care service that 13 violates its conscience. 14 (b) A health care institution that declines to 15 provide or participate in a health care service that violates 16 its conscience shall not be civilly, criminally, or 17 administratively liable if the institution provides a consent 18 form to be signed by a patient before admission to the 19 institution stating that it reserves the right to decline to 20 provide or participate in health care services that violate 21 its conscience. 22 (c) It shall be unlawful for any person, public or 23 private institution, or public official to discriminate 24 against any health care institution, or any person, 25 association, corporation, or other entity attempting to 26 establish a new health care institution or operating an 27 Page 6 existing health care institution, in any manner, including, 1 but not limited to, any denial, deprivation or 2 disqualification with respect to licensure; any aid 3 assistance, benefit, or privilege, including staff privileges; 4 or any authorization, including authorization to create, 5 expand, improve, acquire, or affiliate or merge with any 6 health care institution, because such health care institution, 7 or person, association, or corporation planning, proposing, or 8 operating a health care institution, declines to participate 9 in a health care service which violates the health care 10 institution's conscience. 11 (d) It shall be unlawful for any public official, 12 agency, institution, or entity to deny any form of aid, 13 assistance, grants, or benefits, or in any other manner to 14 coerce, disqualify, or discriminate against any person, 15 association, corporation, or other entity attempting to 16 establish a new health care institution or operating an 17 existing health care institution because the existing or 18 proposed health care institution declines to participate in a 19 health care service contrary to the health care institution's 20 conscience. 21 Section 6. (a) A health care payer has the right to 22 decline to pay, and no health care payer shall be required to 23 pay for or arrange for the payment of, any health care service 24 or product that violates its conscience. 25 (b) No health care payer and no person, association, 26 corporation, or other entity that owns, operates, supervises, 27 Page 7 or manages a health care payer shall be civilly or criminally 1 liable by reason of the health care payer's declining to pay 2 for or arrange for the payment of any health care service that 3 violates its conscience. 4 (c) It shall be unlawful for any person, public or 5 private institution, or public official to discriminate 6 against any health care payer, or any person, association, 7 corporation, or other entity: (i) attempting to establish a 8 new health care payer or (ii) operating an existing health 9 care payer, in any manner, including, but not limited to, any 10 denial, deprivation, or disqualification with respect to 11 licensure, aid, assistance, benefit, privilege, or 12 authorization, including, but not limited to, any 13 authorization to create, expand, improve, acquire, or 14 affiliate or merge with, any health care payer, because a 15 health care payer, or a person, association, corporation, or 16 other entity planning, proposing, or operating a health care 17 payer declines to pay for or arrange for the payment of any 18 health care service that violates its conscience. 19 (d) It shall be unlawful for any public official, 20 agency, institution, or entity to deny any form of aid, 21 assistance, grants, or benefits, or in any other manner to 22 coerce, disqualify, or discriminate against any health care 23 payer, or any person, association, corporation, or other 24 entity attempting to establish a new health care payer or 25 operating an existing health care payer because the existing 26 or proposed health care payer declines to pay for, or arrange 27 Page 8 for the payment of, any health care service that is contrary 1 to its conscience. 2 Section 7. Nothing in this act shall be construed to 3 authorize or shield from liability the denial, on the basis of 4 a patient's race or present or predicted disability, of a 5 health care service that a health care provider, health care 6 institution, or health care payer provides to others. For 7 purposes of this act, the term "disability" has the meaning 8 given to it by Title 42 U.S.C. §12102(2)(a). 9 Section 8. (a) An action for injunctive relief may 10 be brought for the violation of any provision of this act. It 11 shall not be a defense to any claim arising out of the 12 violation of this act that such violation was necessary to 13 prevent additional burden or expense on any other health care 14 provider, health care institution, individual, or patient. 15 (b) Any individual, association, corporation, 16 entity, or health care institution injured by any public or 17 private individual, association, agency, entity, or 18 corporation by reason of any conduct prohibited by this act 19 may commence an action for injunctive relief. Upon finding a 20 violation of this act, the aggrieved party shall be entitled 21 to recover the costs of the action, and reasonable attorney's 22 fees. These remedies shall be cumulative, and not exclusive of 23 other remedies afforded under any other state or federal law. 24 (c) The court in such action may award injunctive 25 relief, including, but not limited to, ordering reinstatement 26 Page 9 of a health care provider to his or her prior job position and 1 back pay. 2 (d) The Alabama Legislature, by joint resolution, 3 may appoint one or more of its members, who sponsored or 4 co-sponsored this act in its official capacity, to intervene 5 as a matter of right in any case in which the 6 constitutionality of this law is challenged. 7 Section 9. If any provision, word, phrase, or clause 8 of this act or the application thereof to any person or 9 circumstance is held invalid, such invalidity shall not affect 10 the provisions, words, phrases, clauses, or applications of 11 this act which can be given effect without the invalid 12 provision, word, phrase, clause, or application and to this 13 end, the provisions, words, phrases, and clauses of this act 14 are declared severable. 15 Section 10. This act shall become effective on the 16 first day of the third month following its passage and 17 approval by the Governor, or its otherwise becoming law. 18 Page 10