Text of AR HB 1628 (2017)

Stricken language would be deleted from and underlined language would be added to present law. *JMB102* 02-21-2017 13:07:31 JMB102 State of Arkansas 1 91st General Assembly A Bill 2 Regular Session, 2017 HOUSE BILL 1628 3 4 By: Representative B. Smith 5 By: Senators Rapert, Collins-Smith 6 7 For An Act To Be Entitled 8 AN ACT TO CREATE THE HEALTHCARE FREEDOM OF CONSCIENCE 9 ACT; AND FOR OTHER PURPOSES. 10 11 12 Subtitle 13 TO CREATE THE HEALTHCARE FREEDOM OF 14 CONSCIENCE ACT. 15 16 17 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: 18 19 SECTION 1. Arkansas Code Title 17, Chapter 80, is amended to add an 20 additional subchapter to read as follows: 21 Subchapter 4 — Healthcare Freedom of Conscience Act 22 23 17-80-401. Title. 24 This subchapter shall be known and may be cited as the "Healthcare 25 Freedom of Conscience Act". 26 27 17-80-402. Legislative findings — Purpose. 28 (a) The General Assembly finds that: 29 (1) The public policy of the state is to respect and protect the 30 fundamental right of conscience of individuals and entities who provide 31 healthcare services; and 32 (2) Without comprehensive protection, healthcare rights of 33 conscience may be violated in various ways, including without limitation 34 harassment, demotion, salary reduction, transfer, termination, loss of 35 staffing privileges, denial of aid or benefits, administrative penalty, 36 HB1628 2 02-21-2017 13:07:31 JMB102 punishment, or sanction, and refusal to license or certify. 1 (b) The purpose of this subchapter is to: 2 (1) Protect as a basic civil right the right of healthcare 3 providers, healthcare institutions, and healthcare payers to decline to 4 counsel, advise, provide, perform, assist, or participate in providing or 5 performing healthcare services that may violate their consciences; and 6 (2) Prohibit all forms of discrimination, disqualification, 7 coercion, disability, or liability upon a healthcare provider, healthcare 8 institution, and healthcare payer that declines to provide or perform any 9 healthcare service that violates their consciences. 10 11 17-80-403. Definitions. 12 As used in this subchapter: 13 (1) "Conscience" means the religious, moral, or ethical 14 principles held by a healthcare provider, institution, or payer which may be 15 determined by reference to existing or proposed religious, moral, or ethical 16 guidelines, mission statements, constitutions, bylaws, articles of 17 incorporation, regulations, or other relevant documents; 18 (2) "Discriminate" means an adverse action taken in retaliation 19 as a result of the conscience of an individual or entity, including without 20 limitation: 21 (A) Termination; 22 (B) Transfer; 23 (C) Refusal of staff privileges; 24 (D) Denial, deprivation, or disqualification or licensure 25 or certification; 26 (E) Adverse administrative or disciplinary action; 27 (F) Demotion; 28 (G) Loss of career specialty; 29 (H) Reassignment to a different shift; 30 (I) Reduction of wages or benefits; 31 (J) Refusal to award any grant, contract, or other 32 program; 33 (K) Refusal to provide residency training opportunities; 34 (L) Refusal to authorize the creation, expansion, 35 improvement, acquisition, affiliation, or merger; or 36 HB1628 3 02-21-2017 13:07:31 JMB102 (M) Other penalty or disciplinary retaliatory action; 1 (3) "Employer" means an individual or entity that pays for or 2 provides health benefits or health insurance coverage as a benefit to the 3 employees of the individual or entity; 4 (4) "Healthcare institution" means a public or private 5 organization, corporation, partnership, sole proprietorship, association, 6 agency, network, joint venture, or other entity involved in providing 7 healthcare services, including without limitation: 8 (A) A hospital; 9 (B) A clinic; 10 (C) A medical center; 11 (D) An ambulatory surgical center; 12 (E) A private physician's office; 13 (F) A pharmacy; 14 (G) A nursing home; 15 (H) A medical school that is part of an institution of 16 higher education; 17 (I) A nursing school; 18 (J) A medical training facility; 19 (K) A person, association, corporation, or other entity 20 attempting to establish a new healthcare institution or operating an existing 21 healthcare institution; or 22 (L) Other institution or location where healthcare 23 services are provided to a person; 24 (5) "Healthcare payer" means an entity or employer that 25 contracts, pays, or arranges for payment of a healthcare service or product, 26 including without limitation: 27 (A) A health management organization; 28 (B) A health plan; 29 (C) An insurance company; 30 (D) A management services organization; 31 (E) A person, association, corporation, or other entity 32 that owns, operates, supervises, or manages a healthcare payer; or 33 (F) A person, association, corporation or other entity 34 attempting to establish a new healthcare payer or operating an existing 35 healthcare payer; 36 HB1628 4 02-21-2017 13:07:31 JMB102 (6) "Healthcare provider" means an individual who may be asked 1 to participate in any way in a healthcare service, including without 2 limitation: 3 (A) A physician; 4 (B) A physician's assistant; 5 (C) A nurse; 6 (D) A nurse's aide; 7 (E) A medical assistant; 8 (F) A healthcare institution employee; 9 (G) A pharmacist; 10 (H) A researcher; 11 (I) A student or faculty of a medical school or nursing 12 school; 13 (J) A counselor; 14 (K) A social worker; or 15 (L) Any professional, paraprofessional, or other 16 individual who furnishes or assists in the providing or performing of 17 healthcare services; 18 (7) "Healthcare service" means a phase of patient medical care, 19 treatment, or procedure, including without limitation: 20 (A) Patient referral; 21 (B) Counseling; 22 (C) Therapy; 23 (D) Testing; 24 (E) Research; 25 (F) Instruction; 26 (G) Prescribing, dispensing, or administering of any drug, 27 medication, or device; 28 (H) Surgery; or 29 (I) Other care or treatment provided by a healthcare 30 provider or healthcare institution; and 31 (8) "Reasonably accommodate" or "reasonable accommodation" means 32 an arrangement to accommodate beliefs or practices consistent with Title VII 33 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as existing on 34 January 1, 2017. 35 36 HB1628 5 02-21-2017 13:07:31 JMB102 17-80-404. Freedom of conscience for healthcare providers. 1 (a) A healthcare provider: 2 (1) Has the right to not participate in a healthcare service 3 that violates his or her conscience; and 4 (2) Shall not be required to participate in a healthcare service 5 that violates his or her conscience. 6 (b) A healthcare provider shall not be civilly, criminally, or 7 administratively liable for declining to participate in a healthcare service 8 that violates his or her conscience. 9 (c) Except as provided in subsections (d) and (e) of this section, a 10 person, healthcare provider, health institution, public institution, private 11 institution, public official, or any board or agency that certifies 12 competency in medical specialties shall not discriminate against a healthcare 13 provider in any manner based upon his or her declining to participate in a 14 healthcare service that violates his or her conscience. 15 (d) Action taken by a health institution or employer of a healthcare 16 provider is not discrimination under this subchapter if the action is taken 17 as a reasonable accommodation to the conscience rights of a healthcare 18 provider. 19 (e) This section does not prohibit an employer or potential employer 20 of a healthcare provider from designating the participation in a healthcare 21 service as a fundamental requirement for a position by providing a written 22 certification that the healthcare service is directly related and essential 23 to a core purpose of the employer. 24 (f) This section applies only to individual healthcare services and 25 does not authorize a healthcare provider to refuse to provide healthcare 26 services to a patient based on the identity or status of the patient. 27 28 17-80-405. Freedom of conscience for healthcare institutions. 29 (a) Except as provided in subsection (d) of this section, a healthcare 30 institution: 31 (1) Has the right to not participate in a healthcare service 32 that violates the conscience of the healthcare institution; 33 (2) Shall not be required to participate in a healthcare service 34 that violates the conscience of the healthcare institution; and 35 (3) Shall not be civilly, criminally, or administratively liable 36 HB1628 6 02-21-2017 13:07:31 JMB102 for declining to provide or participate in a healthcare service that violates 1 the conscience of the healthcare institution. 2 (b) A person, public institution, private institution, or public 3 official shall not discriminate against a healthcare institution in any 4 manner based upon declining to provide or participate in a healthcare service 5 that violates the conscience of the healthcare institution. 6 (c) A public official, agency, institution, or entity shall not deny 7 any form of aid, assistance, grant, or benefit in any manner to coerce, 8 disqualify, or discriminate against a healthcare institution in any manner 9 based upon declining to provide or participate in a healthcare service that 10 violates the conscience of the healthcare institution. 11 (d) Subsection (a) of this section applies only if the healthcare 12 institution: 13 (1) Promptly informs the patient or an individual authorized to 14 make healthcare decisions for the patient that the healthcare institution 15 will not provide the healthcare services for reasons of conscience; and 16 (2)(A) If a request for transfer is made by the patient or on 17 the behalf of the patient, makes all reasonable efforts to assist in a prompt 18 transfer of the patient and provides continuing care to the patient until a 19 transfer can be effected or until a determination has been made that a 20 transfer cannot be effected. 21 (B) If a transfer cannot be effected, the healthcare 22 institution shall not be compelled to provide or participate in a healthcare 23 service that violates the conscience of the healthcare institution. 24 (e) This section applies only to individual healthcare services and 25 does not authorize a healthcare provider to refuse to provide healthcare 26 services to a patient based on the identity or status of the patient. 27 28 17-80-406. Freedom of conscience for health payers. 29 (a) Except as provided in subsections (c) and (d) of this section, a 30 healthcare payer: 31 (1) Has the right to decline to pay for a healthcare service 32 that violates the conscience of the healthcare payer; 33 (2) Shall not be required to pay or arrange for payment of a 34 healthcare service that violates the conscience of the healthcare payer; and 35 (3) Shall not be civilly, criminally, or administratively liable 36 HB1628 7 02-21-2017 13:07:31 JMB102 for declining to pay or arrange for payment of a healthcare service that 1 violates the conscience of the healthcare payer. 2 (b) A person, public institution, private institution, or public 3 official shall not discriminate against a healthcare payer in any manner 4 based upon declining to pay or arrange for payment of a healthcare service 5 that violates the conscience of the healthcare payer. 6 (c)(1) A healthcare payer shall file its conscience policies annually 7 with the State Insurance Department. 8 (2) The annual filing shall include: 9 (A) A comprehensive list by billing code of any and all 10 products, services, and procedures that the healthcare payer shall not make 11 payment for reasons of conscience; and 12 (B) Other relevant information that may be required by 13 rule of the department. 14 (3) A copy of the filing shall be provided annually to each 15 beneficiary of the healthcare payer and made available to the general public 16 by posting the information on the website of the healthcare payer. 17 (4) An annual filing shall not be required for any year in which 18 the healthcare payer will not exercise its conscience rights under this 19 subchapter. 20 (d) A healthcare payer shall not use a conscience objection to: 21 (1) Refuse to contract with a healthcare provider, healthcare 22 institution, or beneficiary; or 23 (2) Refuse or reduce payments: 24 (A) To a beneficiary, healthcare provider, or healthcare 25 institution for any product, services, or procedure that are not included in 26 the annual filing required in subsection (c) of this section; or 27 (B) For healthcare services to a patient based upon the 28 identity or status of the patient. 29 (e) A healthcare payer shall not compel by undue influence, fraud, or 30 duress a beneficiary, healthcare provider, or healthcare institution to 31 accept a contract or contract amendment that violates the conscience of the 32 beneficiary, healthcare provider, or healthcare institution. 33 (f) The department may issue rules and take other actions as necessary 34 or appropriate to enforce this section. 35 36 HB1628 8 02-21-2017 13:07:31 JMB102 17-80-407. Appropriate services and life-sustaining treatment. 1 This subchapter does not condone, authorize, or approve withholding 2 appropriate provision of healthcare services or life-sustaining treatment to 3 patients. 4 5 17-80-408. Civil remedies. 6 (a)(1) A civil action for damages or injunctive relief, or both, may 7 be brought for a violation of this subchapter. 8 (2) A claim that the violation of this subchapter was necessary 9 to prevent additional burden or expense on any other healthcare provider, 10 healthcare institution, healthcare payer, individual, or patient shall not be 11 an affirmative defense. 12 (b)(1) Unless their sovereign immunity is protected under Arkansas 13 Constitution, Article 5, § 20, an individual, association, corporation, 14 entity, or healthcare institution injured by a public individual, private 15 individual, association, agency, entity, or corporation as a result of any 16 conduct prohibited by this subchapter may commence a civil action. 17 (2)(A) Upon a finding of a violation of this subchapter, the 18 aggrieved party shall be entitled to recover treble damages, including 19 without limitation damages related to: 20 (i) Pain and suffering sustained by the individual, 21 association, corporation, entity, or healthcare institution; 22 (ii) The cost of the civil action; and 23 (iii) Reasonable attorney's fees. 24 (B) However, the total amount of damages shall not be less 25 than five thousand dollars ($5,000) for each violation in addition to the 26 costs of the civil action and reasonable attorney's fees. 27 (3) Damages shall be cumulative and are not exclusive of other 28 remedies that may be afforded under state or federal law. 29 (c) A court may award injunctive relief including without limitation 30 ordering the reinstatement of a healthcare provider to his or her prior 31 position. 32 33 17-80-409. Applicability. 34 This subchapter is supplemental to existing conscience protections 35 within the Arkansas Code and does not affect the existing conscience 36 HB1628 9 02-21-2017 13:07:31 JMB102 protection laws within the state. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36