Text of ID H 672 (2024)

LEGISLATURE OF THE STATE OF IDAHO Sixty-seventh Legislature Second Regular Session - 2024 IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 672 BY HEALTH AND WELFARE COMMITTEE AN ACT 1 RELATING TO THE MEDICAL ETHICS DEFENSE ACT; AMENDING TITLE 54, IDAHO CODE, 2 BY THE ADDITION OF A NEW CHAPTER 13, TITLE 54, IDAHO CODE, TO PROVIDE 3 A SHORT TITLE, TO PROVIDE LEGISLATIVE FINDINGS AND PURPOSE, TO DEFINE 4 TERMS, TO PROVIDE FOR RIGHTS OF CONSCIENCE OF HEALTH CARE PROFESSION- 5 ALS, HEALTH CARE INSTITUTIONS, AND HEALTH CARE PAYERS, TO PROVIDE FOR 6 WHISTLEBLOWER PROTECTION, TO PROVIDE FOR CIVIL REMEDIES, AND TO PROVIDE 7 SEVERABILITY; REPEALING SECTION 18-611, IDAHO CODE, RELATING TO FREE- 8 DOM OF CONSCIENCE FOR HEALTH CARE PROFESSIONALS; AND DECLARING AN EMER- 9 GENCY. 10 Be It Enacted by the Legislature of the State of Idaho: 11 SECTION 1. That Title 54, Idaho Code, be, and the same is hereby amended 12 by the addition thereto of a NEW CHAPTER, to be known and designated as Chap- 13 ter 13, Title 54, Idaho Code, and to read as follows: 14 CHAPTER 13 15 MEDICAL ETHICS DEFENSE ACT 16 54-1301. SHORT TITLE. This act shall be known and may be cited as the 17 "Medical Ethics Defense Act." 18 54-1302. LEGISLATIVE FINDINGS AND PURPOSE. (1) The legislature finds 19 that the right of conscience is a fundamental and inalienable right. It was 20 central to the founding of the United States, has been deeply rooted in our 21 nation's history and tradition for centuries, and has been central to the 22 practice of medicine, through the Hippocratic oath, for millennia. 23 (2) Despite its preeminent importance, however, threats to the right 24 of conscience of health care professionals, health care institutions, 25 and health care payers have become increasingly common and severe in re- 26 cent years. The swift pace of scientific advancement and the expansion of 27 medical capabilities, along with the mistaken notion that health care pro- 28 fessionals, health care institutions, and health care payers are mere public 29 utilities, promise to only make the current crisis worse unless something is 30 done to restore conscience to its rightful place. 31 (3) With this purpose in mind, the legislature declares that it is the 32 public policy of the state of Idaho to protect the right of conscience for 33 health care professionals, health care institutions, and health care pay- 34 ers. 35 (4) As the right of conscience is fundamental, no health care profes- 36 sional, health care institution, or health care payer should be compelled 37 to participate in or pay for any medical procedure or prescribe or pay for 38 any medication to which such professional, institution, or payer objects on 39 2 the basis of conscience, whether such conscience is informed by religious, 1 moral, or ethical beliefs or principles. 2 (5) It is the purpose of this chapter to protect health care profession- 3 als, health care institutions, and health care payers from discrimination, 4 punishment, or retaliation as a result of any instance of conscientious med- 5 ical objection. 6 54-1303. DEFINITIONS. For the purpose of this chapter: 7 (1) "Conscience" means the ethical, moral, or religious beliefs or 8 principles held by any health care professional, health care institution, 9 or health care payer. Conscience with respect to institutional entities 10 or corporate bodies, as opposed to individual persons, is determined by 11 reference to that entity's or body's governing documents, including but 12 not limited to any published ethical, moral, or religious guidelines or 13 directives, mission statements, constitutions, articles of incorporation, 14 bylaws, policies, or regulations. 15 (2) "Disclosure" means a formal or informal communication or transmis- 16 sion but does not include a communication or transmission concerning policy 17 decisions that lawfully exercise discretionary authority unless the health 18 care professional providing the disclosure or transmission reasonably be- 19 lieves that the disclosure or transmission evinces: 20 (a) Any violation of any law, rule, or regulation; 21 (b) Any violation of any ethical guidelines for the provision of any 22 medical procedure or service; or 23 (c) Gross mismanagement, a gross waste of funds, an abuse of authority, 24 practices, or methods of treatment that may put patient health at risk, 25 or a substantial and specific danger to public health or safety. 26 (3) "Discrimination" means any adverse action taken against, or any 27 threat of adverse action communicated to, any health care professional, 28 health care institution, or health care payer as a result of the profes- 29 sional's, institution's, or payer's decision to decline to participate in 30 a medical procedure or service on the basis of conscience. Discrimination 31 includes but is not limited to: termination of employment; transfer from 32 current position; demotion from current position; adverse administrative 33 action; reassignment to a different shift or job title; increased adminis- 34 trative duties; refusal of staff privileges; refusal of board certifica- 35 tion; loss of career specialty; reduction of wages, benefits, or privileges; 36 refusal to award a grant, contract, or other program; refusal to provide 37 residency training opportunities; denial, deprivation, or disqualification 38 of licensure; withholding or disqualifying from financial aid or other as- 39 sistance; impediments to creating any health care institution or payer or 40 expanding or improving said health care institution or payer; impediments to 41 acquiring, associating with, or merging with any other health care institu- 42 tion or payer; the threat thereof with regard to any of the actions described 43 in this subsection; or any other penalty or disciplinary or retaliatory ac- 44 tion, whether executed or threatened. However, discrimination excludes the 45 negotiation or purchase of insurance by a nongovernmental entity. 46 (4) "Medical procedure or service" means medical care provided to any 47 patient at any time over the entire course of treatment or medical research. 48 This includes but is not limited to: testing; diagnosis; referral; dispens- 49 3 ing or administering any drug, medication, or device; psychological ther- 1 apy or counseling; research; prognosis; therapy; record-making procedures; 2 notes related to treatment; set up or performance of a surgery or procedure; 3 or any other care or services performed or provided by any health care pro- 4 fessional. 5 (5) "Health care institution" means any organization, corporation, 6 partnership, association, agency, network, sole proprietorship, joint ven- 7 ture, or other entity that provides medical procedures or services. The term 8 includes but is not limited to any public or private hospital, clinic, medi- 9 cal center, physician organization, professional association, ambulatory 10 surgical center, private physician's office, pharmacy, nursing home, medi- 11 cal school, nursing school, medical training facility, or any other entity 12 or location in which medical procedures or services are performed. 13 (6) "Health care payer" means any employer, health plan, health main- 14 tenance organization, insurance company, management services organization, 15 or any other entity that pays for, or arranges for the payment of, any medical 16 procedure or service provided to any patient, whether that payment is made in 17 whole or in part. 18 (7) "Health care professional" or "professional" means any person li- 19 censed under title 54, Idaho Code, certified, or registered by the state of 20 Idaho to deliver health care. 21 (8) "Licensing authority" means any agency, bureau, commission, de- 22 partment, division, or professional or occupational licensing board charged 23 with granting, suspending, or revoking the license, certificate, registra- 24 tion, permit, or other authorization of any person to practice a profession 25 or occupation, including but not limited to the professional and occupa- 26 tional licensing boards within the department of self-governing agencies. 27 (9) "Participate in a medical procedure or service" means to provide, 28 perform, assist with, facilitate, refer for, counsel for, advise with regard 29 to, admit for the purposes of providing, or take part in any way in providing 30 any medical procedure or service, or any form of such service. 31 (10) "Pay" or "payment" means to pay for, contract for, arrange for the 32 whole or partial payment of, reimburse, or remunerate costs. 33 54-1304. RIGHTS OF CONSCIENCE OF HEALTH CARE PROFESSIONALS, HEALTH 34 CARE INSTITUTIONS, AND HEALTH CARE PAYERS. (1) A health care professional, 35 health care institution, or health care payer has the right not to par- 36 ticipate in or pay for any medical procedure or service that violates the 37 professional's, institution's, or payer's conscience. 38 (2) The exercise of the right of conscience is limited to conscience- 39 based objections to a particular medical procedure or service. This section 40 may not be construed to waive or modify any duty a health care professional, 41 health care institution, or health care payer may have to provide other med- 42 ical procedures or services that do not violate the professional's, institu- 43 tion's, or payer's conscience. 44 (3) No health care professional, health care institution, or health 45 care payer shall be civilly, criminally, or administratively liable for ex- 46 ercising the professional's, institution's, or payer's right of conscience 47 not to participate in or pay for a medical procedure or service. No health 48 care institution shall be civilly, criminally, or administratively liable 49 4 for the exercise of conscience rights not to participate in a medical pro- 1 cedure or service by a health care professional employed, contracted, or 2 granted admitting privileges by the health care institution. 3 (4) No health care professional, health care institution, or health 4 care payer shall be discriminated against in any manner as a result of the 5 professional's, institution's, or payer's decision to decline to partici- 6 pate in or pay for a medical procedure or service on the basis of conscience. 7 (5) Notwithstanding any other provision of this chapter to the con- 8 trary, a religious health care professional, health care institution, or 9 health care payer that holds itself out to the public as religious, states 10 in its governing documents that it has a religious purpose or mission, and 11 has internal operating policies or procedures that implement its religious 12 beliefs shall have the right to make employment, staffing, contracting, and 13 admitting privilege decisions consistent with its religious beliefs. 14 (6) In cases where a living will or physician's orders for scope of 15 treatment is operative, as defined by the medical consent and natural death 16 act, and a physician has a conscience objection to the treatment desired 17 by the patient, the physician shall comply with the provisions of section 18 39-4513(2), Idaho Code, before withdrawing care and treatment to the pa- 19 tient. 20 (7) If a health care professional invokes a conscience objection in a 21 life-threatening situation where no other health care professional capable 22 of treating the emergency is available, such health care professional shall 23 provide treatment and care until an alternate health care professional capa- 24 ble of treating the emergency is found. 25 (8) Nothing in this section shall affect the rights of conscience pro- 26 vided for in section 18-612, Idaho Code, to the extent that those rights are 27 broader in scope than those provided for in this section. 28 (9) Nothing in this section shall be construed to override the require- 29 ment to provide emergency medical treatment to all patients as set forth in 30 42 U.S.C. 1395dd. 31 54-1305. WHISTLEBLOWER PROTECTION. (1) No health care professional 32 shall be discriminated against in any manner because the health care profes- 33 sional: 34 (a) Provided, caused to be provided, or is about to provide or cause 35 to be provided to the professional's employer, the attorney general of 36 Idaho, any state agency charged with protecting health care rights of 37 conscience, the United States department of health and human services 38 office of civil rights, or any other federal agency charged with pro- 39 tecting health care rights of conscience information relating to any 40 violation of, or any act or omission the health care professional rea- 41 sonably believes to be a violation of, any provision of this chapter; 42 (b) Testified or is about to testify in a proceeding concerning such vi- 43 olation; or 44 (c) Assisted or participated, or is about to assist or participate, in 45 such a proceeding. 46 (2) Unless the disclosure is specifically prohibited by law, no health 47 care professional shall be discriminated against in any manner because the 48 5 health care professional disclosed any information that the health care pro- 1 fessional reasonably believes evinces: 2 (a) Any violation of any law, rule, or regulation; 3 (b) Any violation of any ethical guidelines for the provision of any 4 medical procedure or service; or 5 (c) Gross mismanagement, a gross waste of funds, an abuse of authority, 6 practices, or methods of treatment that may put patient health at risk, 7 or a substantial and specific danger to public health or safety. 8 (3) A licensing authority, a certifying board, or the department of 9 health and welfare may not reprimand, sanction, or revoke or threaten to 10 revoke a license, certificate, or registration of a health care professional 11 for engaging in speech or expressive activity protected under the first 12 amendment to the United States constitution, unless the board demonstrates 13 beyond a reasonable doubt that the professional's speech was the direct 14 cause of physical harm to a person with whom the health care professional had 15 a professional-patient relationship within the three (3) years immediately 16 preceding the incident of physical harm. 17 (a) The licensing authority or certifying board must provide a health 18 care professional with any complaint it has received that may result 19 in the revocation of the health care professional's license, certifi- 20 cation, or registration within fourteen (14) days after receipt of the 21 complaint. 22 (b) The licensing authority or certifying board must pay the health 23 care professional an administrative penalty of five hundred dollars 24 ($500) for each week the complaint is not provided to the health care 25 professional after the specified fourteen (14) days. 26 54-1306. CIVIL REMEDIES. (1) A cause of action for damages or injunc- 27 tive relief, or both, may be brought by any health care professional, health 28 care institution, or health care payer for any violation of any provision of 29 this chapter. Any additional burden or expense on another health care pro- 30 fessional, health care institution, or health care payer arising from the 31 exercise of the right of conscience shall not be a defense to any violation 32 of this chapter. However, no cause of action may be brought against an indi- 33 vidual who declines to use or purchase a medical procedure or services from a 34 specific health care professional, health care institution, or health care 35 payer for exercising the rights granted in section 54-1304(1), Idaho Code. 36 (2) Any party aggrieved by any violation of this chapter may commence a 37 civil action and shall be entitled, upon the finding of a violation, to: 38 (a) Injunctive relief, when appropriate, including but not limited to 39 reinstatement of a health care professional's previous position, rein- 40 statement of board certification, and relicensure of a health care in- 41 stitution or health care payer; 42 (b) Actual damages for injuries suffered; and 43 (c) Reasonable costs and attorney fees. 44 (3) Such damages shall be cumulative and in no way limited by any other 45 remedies that may be available under any other federal, state, or municipal 46 law. 47 6 54-1307. SEVERABILITY. The provisions of this chapter are hereby de- 1 clared to be severable and if any provision of this chapter or the applica- 2 tion of such provision to any person or circumstance is declared invalid for 3 any reason, such declaration shall not affect the validity of the remaining 4 portions of this chapter. 5 SECTION 2. That Section 18-611, Idaho Code, be, and the same is hereby 6 repealed. 7 SECTION 3. An emergency existing therefor, which emergency is hereby 8 declared to exist, this act shall be in full force and effect on and after its 9 passage and approval. 10