Text of AR SB 289 (2021)

Stricken language would be deleted from and underlined language would be added to present law. Act 462 of the Regular Session *JMB006* 03-09-2021 11:54:54 JMB006 State of Arkansas As Engrossed: H3/9/21 1 93rd General Assembly A Bill 2 Regular Session, 2021 SENATE BILL 289 3 4 By: Senators K. Hammer, Beckham, Bledsoe, Flippo, T. Garner, Gilmore, Hester, Irvin, B. Johnson, M. 5 Johnson, Rapert, G. Stubblefield, D. Sullivan 6 By: Representatives B. Smith, Beck, Bentley, Breaux, Brown, Cloud, Gazaway, Ladyman, Lowery, 7 Lundstrum, McCollum, Payton, Penzo, Richmond, Rye, Speaks, Womack 8 9 For An Act To Be Entitled 10 AN ACT TO CREATE THE MEDICAL ETHICS AND DIVERSITY 11 ACT; AND FOR OTHER PURPOSES. 12 13 14 Subtitle 15 TO CREATE THE MEDICAL ETHICS AND 16 DIVERSITY ACT. 17 18 19 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: 20 21 SECTION 1. Arkansas Code Title 17, Chapter 80, is amended to add an 22 additional subchapter to read as follows: 23 Subchapter 5 — Medical Ethics and Diversity Act 24 25 17-80-501. Title. 26 This subchapter shall be known and may be cited as the "Medical Ethics 27 and Diversity Act". 28 29 17-80-502. Legislative findings and purpose. 30 (a) The General Assembly finds that: 31 (1) The right of conscience is a fundamental and unalienable 32 right; 33 (2) The right of conscience was central to the founding of the 34 United States, has been deeply rooted in the history and tradition of the 35 United States for centuries, and has been central to the practice of medicine 36 As Engrossed: H3/9/21 SB289 2 03-09-2021 11:54:54 JMB006 through the Hippocratic oath for millennia; 1 (3) Despite its importance, threats to the right of conscience 2 of medical practitioners, healthcare institutions, and healthcare payers have 3 become increasingly more common and severe in recent years; 4 (4) The swift pace of scientific advancement and the expansion 5 of medical capabilities, along with the notion that medical practitioners, 6 healthcare institutions, and healthcare payers are mere public utilities, 7 promise only to exacerbate the current crisis unless something is done to 8 restore the importance of the right of conscience; and 9 (5) It is the public policy of this state to protect the right 10 of conscience of medical practitioners, healthcare institutions, and 11 healthcare payers. 12 (b) It is the purpose of this subchapter to protect all medical 13 practitioners, healthcare institutions, and healthcare payers from 14 discrimination, punishment, or retaliation as a result of any instance of 15 conscientious medical objection. 16 17 17-80-503. Definitions. 18 As used in this subchapter: 19 (1)(A) "Conscience" means the religious, moral, or ethical 20 beliefs or principles of a medical practitioner, healthcare institution, or 21 healthcare payer. 22 (B) "Conscience" of an institutional entity or corporate 23 body may be determined by reference to existing or proposed documents, 24 including without limitation any published religious, moral, or ethical 25 guidelines or directives, mission statements, constitutions, bylaws, articles 26 of incorporation, policies, regulations, or other relevant documents; 27 (2)(A) "Discriminate" means to take an adverse action against, 28 or communicate a threat of adverse action to, any medical practitioner, 29 healthcare institution, or healthcare payer as a result of a decision by a 30 medical practitioner, healthcare institution, or healthcare payer to decline 31 to participate in a healthcare service on the basis of the conscience of the 32 medical practitioner, healthcare institution, or healthcare payer, including 33 without limitation: 34 (i) Termination; 35 (ii) Refusal of staff privileges; 36 As Engrossed: H3/9/21 SB289 3 03-09-2021 11:54:54 JMB006 (iii) Refusal of board certification; 1 (iv) Adverse administrative or disciplinary action; 2 (v) Demotion; 3 (vi) Loss of career specialty; 4 (vii) Reduction of wages, benefits, or privileges; 5 (viii) Refusal to award any grant, contract, or 6 other program; 7 (ix) Refusal to provide residency training 8 opportunities; 9 (x) Refusal to authorize the creation, expansion, 10 improvement, acquisition, affiliation, or merger of a healthcare institution; 11 (xi) Reassignment to a different shift or job title; 12 (xii) Addition or increase of administrative duties; 13 (xiii) Denial, deprivation, or disqualification of 14 licensure; 15 (xiv) Disqualification from or withholding of 16 financial aid or other financial assistance; and 17 (xv) Any other penalty or disciplinary retaliatory 18 action, whether executed or threatened. 19 (B) "Discrimination" does not include the negotiation or 20 purchase of insurance by a nongovernment entity; 21 (3) "Healthcare institution" means a public or private 22 organization, corporation, partnership, sole proprietorship, association, 23 agency, network, joint venture, or other entity involved in providing 24 healthcare services, including without limitation: 25 (A) A hospital; 26 (B) A clinic; 27 (C) A medical center; 28 (D) An ambulatory surgical center; 29 (E) A private physician's office; 30 (F) A pharmacy; 31 (G) A nursing home; 32 (H) A medical training facility; 33 (I) An individual, association, corporation, or other 34 entity attempting to establish a new healthcare institution or operating an 35 existing healthcare institution; and 36 As Engrossed: H3/9/21 SB289 4 03-09-2021 11:54:54 JMB006 (J) Any other institution or location where healthcare 1 services are provided to an individual; 2 (4) "Healthcare payer" means an employer, health plan, health 3 maintenance organization, insurance company, management services 4 organization, or any other entity that pays for or arranges for the payment 5 of any healthcare service provided to a patient, whether the payment is made 6 in whole or in part; 7 (5) "Healthcare service" means medical care provided to a 8 patient at any time over the entire course of treatment, including without 9 limitation: 10 (A) Initial examination; 11 (B) Patient referral; 12 (C) Counseling or psychological therapy; 13 (D) Therapy; 14 (E) Testing; 15 (F) Research; 16 (G) Diagnosis or prognosis; 17 (H) Instruction; 18 (I) Dispensing or administering, or both, of any drug, 19 medication, or device; 20 (J) Set up or performance of a surgery or other procedure; 21 (K) Recordkeeping and recordmaking procedures and notes 22 related to treatment; and 23 (L) Other care or services provided by a medical 24 practitioner or healthcare institution; 25 (6) "Medical practitioner" means an individual who is: 26 (A) A physician; 27 (B) A physician assistant; 28 (C) An advanced practice registered nurse or other nurse 29 practitioner; 30 (D) A pharmacist; 31 (E) A medical researcher or laboratory technician to the 32 extent that he or she is requested to actively and materially participate in 33 medical research or testing that violates his or her conscience; 34 (F) A counselor, social worker, psychologist, or other 35 mental health professional to the extent that he or she is requested to 36 As Engrossed: H3/9/21 SB289 5 03-09-2021 11:54:54 JMB006 actively and materially provide or participate in a type of counseling or 1 referral for a healthcare service that violates his or her conscience; 2 (G) A student of counseling, psychology, social work, or 3 other mental health studies to the extent that he or she is asked to actively 4 and materially participate in a type of counseling or referral for a 5 healthcare service that violates his or her conscience; or 6 (H) A nurse, pharmacy technician, surgical technician, 7 allied health professional, student, faculty member, contractor, or employee 8 who is requested to actively and materially participate in a surgery, 9 procedure, or medication administration or dispensing that violates his or 10 her conscience; and 11 (7) "Participate" means to provide, perform, assist with, 12 facilitate, refer for, counsel for, advise with regard to, admit for the 13 purposes of providing, or take part in any way in providing any healthcare 14 service or any form of healthcare service. 15 16 17-80-504. Right of conscience. 17 (a) A medical practitioner, healthcare institution, or healthcare 18 payer: 19 (1) Has the right not to participate in a healthcare service 20 that violates his, her, or its conscience; 21 (2) Is not required to participate in a healthcare service that 22 violates his, her, or its conscience; 23 (3) Is not civilly, criminally, or administratively liable for 24 declining to participate in a healthcare service that violates his, her, or 25 its conscience; 26 (4) Is not civilly, criminally, or administratively liable for 27 the exercise of conscience rights not to participate in a healthcare service 28 by a medical practitioner employed, contracted, or granted admitting 29 privileges by a healthcare institution; and 30 (5) Shall not be discriminated against in any manner based upon 31 his, her, or its declining to participate in a healthcare service that 32 violates his, her, or its conscience. 33 (b) Exercise of the right of conscience is limited to conscience-based 34 objections to a particular healthcare service. 35 (c) A medical practitioner, healthcare institution, or healthcare 36 As Engrossed: H3/9/21 SB289 6 03-09-2021 11:54:54 JMB006 payer that holds himself, herself, or itself out to the public as religious, 1 states in its governing documents that it has a religious purpose or mission, 2 and has internal operating policies or procedures that implement its 3 religious beliefs has the right to make employment, staffing, contracting, 4 and admitting privilege decisions consistent with his, her, or its religious 5 beliefs. 6 (d) The right of conscience described in subsection (a) of this 7 section does not include the right to deny emergency medical care as required 8 under 42 U.S.C. § 1395dd, as existing on January 1, 2021, or any other 9 federal law governing emergency medical treatment, as existing on January 1, 10 2021. 11 (e)(1) When a medical practitioner declines to participate in a 12 healthcare service for reasons of conscience, the medical practitioner shall 13 alert the employing healthcare institution at the earliest reasonable time 14 and comply with any applicable protocol developed under this section. 15 (2)(A) A healthcare institution may develop a protocol for 16 situations in which a medical practitioner declines to participate in a 17 healthcare service. 18 (B) The protocol shall provide for prompt patient access 19 to medical records to facilitate transfer, if needed. 20 (3) This section does not require a healthcare institution or 21 medical practitioner to perform a healthcare service, counsel, or refer a 22 patient regarding a healthcare service that is contrary to the conscience of 23 the medical practitioner or healthcare institution. 24 (f)(1) This section does not prohibit an employer or contracting 25 healthcare institution from disclosing the specific healthcare services that 26 an applicant would be required to participate in if he or she is hired for 27 the position or contract. 28 (2) Upon being informed of the specific healthcare services 29 required of the position or contract, the applicant shall disclose whether 30 he, she, or it has a conscience objection to any of those required duties. 31 (3) However, a medical practitioner or healthcare institution 32 shall be able to decline to participate in a healthcare service that violates 33 his, her, or its conscience if the employer or contracting healthcare 34 institution, after employment, adds healthcare services to a medical 35 practitioner’s or healthcare institution’s duties that would require the 36 As Engrossed: H3/9/21 SB289 7 03-09-2021 11:54:54 JMB006 medical practitioner or healthcare institution to provide services that 1 violate his, her, or its conscience. 2 (g)(1) A healthcare payer shall file its conscience policies annually 3 with the State Insurance Department by including a comprehensive list by 4 billing code of any and all products, services, and procedures that the 5 healthcare payer shall not pay or make payment for reasons of conscience. 6 (2) The annual filing described in subdivision (g)(1) of this 7 section shall: 8 (A) Be provided annually to each beneficiary of the 9 healthcare payer and on the website of the healthcare payer; and 10 (B) Not be required for any year in which the healthcare 11 payer will not exercise its conscience rights under this subchapter. 12 (h) A healthcare payer shall not use a conscience objection to refuse 13 or reduce payments to a healthcare provider, healthcare institution, or 14 beneficiary for any product, service, or procedure that is not included in 15 the annual filing required under subdivision (g)(1) of this section. 16 (i) A healthcare payer shall not compel by undue influence, fraud, or 17 duress a healthcare provider, healthcare institution, or beneficiary to 18 accept a contract or contract amendment that violates the conscience of the 19 healthcare provider, healthcare institution, or beneficiary. 20 (j) The department may issue rules and take any other action necessary 21 or appropriate to enforce subdivisions (g)-(i) of this section. 22 23 17-80-505. Civil remedies. 24 (a)(1) A civil action for damages or injunctive relief, or both, may 25 be brought by a medical practitioner, healthcare institution, or healthcare 26 payer for a violation of this subchapter. 27 (2) A claim that the violation of this subchapter was necessary 28 to prevent an additional burden or expense on another medical practitioner, 29 healthcare institution, healthcare payer, or individual, including without 30 limitation a patient, is not an affirmative defense. 31 (b)(1)(A) Upon a finding of a violation of this subchapter, the 32 aggrieved party shall be entitled to recover three (3) times the amount of 33 any damages incurred, including without limitation damages related to: 34 (i) The cost of the civil action; and 35 (ii) Reasonable attorney's fees. 36 As Engrossed: H3/9/21 SB289 8 03-09-2021 11:54:54 JMB006 (B) The total amount of damages shall not be less than 1 five thousand dollars ($5,000) for each violation in addition to the costs of 2 the civil action and reasonable attorney's fees. 3 (2) Damages shall be cumulative and are not exclusive of other 4 remedies that may be afforded under state or federal law. 5 (c) A court may award injunctive relief, including without limitation 6 ordering the reinstatement of a medical practitioner to his or her prior 7 employment position or board certification or relicensure of a healthcare 8 institution or healthcare payer. 9 10 17-80-506. Applicability. 11 This subchapter is supplemental to existing protections of the right of 12 conscience within the Arkansas Code and does not affect the existing laws 13 within the state concerning protection of the right of conscience. 14 15 /s/K. Hammer 16 17 18 APPROVED: 3/25/21 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36