Text of KY HB 524 (2021)

UNOFFICIAL COPY 21 RS BR 1067 Page 1 of 8 XXXX Jacketed AN ACT relating to rights of conscience for child-placing agencies and child-caring 1 facilities. 2 Be it enacted by the General Assembly of the Commonwealth of Kentucky: 3 SECTION 1. A NEW SECTION OF KRS CHAPTER 199 IS CREATED TO 4 READ AS FOLLOWS: 5 The General Assembly of the Commonwealth of Kentucky hereby finds and declares: 6 (1) Kentucky provides child welfare services, including child placement services, 7 through licensed state, charitable, religious, and private child-placing agencies 8 and child-caring facilities; 9 (2) Faith-based and religiously affiliated child-placing agencies and child-caring 10 facilities in particular have a lengthy and distinguished history of providing child 11 welfare services in this state that predates governmental involvement; 12 (3) Faith-based and religiously affiliated child-placing agencies and child-caring 13 facilities further have a long and distinguished history of continuing to provide 14 child welfare services in this state as licensed child-placing agencies and child- 15 caring facilities and should continue to be licensed and utilized by the state to 16 provide child welfare services, including child placing services; 17 (4) The faith of the people of the United States and of this Commonwealth has 18 always played a vital role in serving the most vulnerable, and people of any faith, 19 or no faith at all, should be free to serve children and families who are in need in 20 ways consistent with the communities that first inspired their service; 21 (5) Faith-based and religiously affiliated child-placing agencies and child-caring 22 facilities in this state display particular excellence when providing child welfare 23 services, including child placing services; 24 (6) Faith-based and religiously affiliated child-placing agencies and child-caring 25 facilities, like other child-placing agencies and child-caring facilities, can only 26 provide certain child welfare services, including child placing services, if licensed 27 UNOFFICIAL COPY 21 RS BR 1067 Page 2 of 8 XXXX Jacketed by the state; 1 (7) Individuals and child welfare service providers, including child-placing agencies, 2 have the inherent, fundamental, and inalienable right to the free exercise of 3 religion protected by the First Amendment to the United States Constitution and 4 Section 1 of the Constitution of Kentucky; 5 (8) KRS 446.350 protects the free exercise of religious rights of Kentucky citizens by 6 prohibiting the government from burdening the freedom of religion of a person 7 unless the burden is in furtherance of a compelling governmental interest and is 8 done in the least restrictive means; 9 (9) The right to the free exercise of religion for child welfare service providers, 10 including child-placing agencies, includes the freedom to refrain from conduct 11 that conflicts with their sincerely held religious beliefs; 12 (10) Children and families benefit greatly from the adoption and foster care services 13 provided by faith-based and religiously affiliated child welfare service providers, 14 including child-placing agencies in this state; 15 (11) Ensuring that faith-based and religiously affiliated child-placing agencies and 16 child-caring facilities can continue to provide child welfare services, including 17 child placing services, will benefit the children and families who receive those 18 services; 19 (12) Kentucky provides child placing services through individually licensed child- 20 placing agencies with varying religious beliefs; 21 (13) Because state and private entities provide child-placing services through many 22 agencies and facilities, each with varying religious beliefs or no religious beliefs, 23 any religiously compelled inability of a faith-based or religiously affiliated child- 24 placing agency to provide child placement will not prevent any individual from 25 alternative equal access to child placing services; 26 (14) There is no compelling reason to require a child-placing agency to violate its 27 UNOFFICIAL COPY 21 RS BR 1067 Page 3 of 8 XXXX Jacketed sincerely held religious beliefs in providing any service, because alternative 1 access to child placing services is equally and readily available; 2 (15) It is the intent of the General Assembly to implement remedial measures that are 3 congruent and proportional to protecting the constitutional rights of child 4 welfare providers, including child-placing agencies, guaranteed under the First, 5 Fifth, and Fourteenth Amendments to the United States Constitution; and 6 (16) It is the further intent of the General Assembly that nothing in this chapter shall 7 limit or deny any eligible individual the right to pursue participation in foster 8 care or the adoption of a child. 9 SECTION 2. A NEW SECTION OF KRS CHAPTER 199 IS CREATED TO 10 READ AS FOLLOWS: 11 As used in Sections 1 to 8 of this Act, unless the context otherwise requires: 12 (1) "Adverse action" means any action that directly or indirectly negatively affects 13 the person or entity against whom the action is taken, places the person in a 14 worse position than the person or entity was in before the action was taken, or is 15 likely to deter a reasonable person from acting or refusing to act. Adverse actions 16 include the following: 17 (a) Denying an application for, or refusing to renew, revoking, suspending, or 18 canceling funding; 19 (b) Declining to enter into, or refusing to renew, revoking, suspending, or 20 canceling a contract; 21 (c) Declining to issue, or refusing to renew, revoking, suspending, or canceling 22 a license; 23 (d) Terminating, suspending, demoting, or reassigning a person or entity; 24 (e) Imposing, levying, or assessing a monetary fine, fee, penalty, award, 25 injunction, or damages; 26 (f) Altering in any way the tax treatment of, or causing any tax, penalty, or 27 UNOFFICIAL COPY 21 RS BR 1067 Page 4 of 8 XXXX Jacketed payment to be assessed against, or denying, delaying, revoking, or otherwise 1 making unavailable an exemption from taxation; and 2 (g) Limiting the ability of the person or entity to engage in child welfare 3 services; 4 (2) "Child welfare services" means social services provided to or on behalf of 5 children. Child welfare services include the following: 6 (a) Assisting abused or neglected children; 7 (b) Counseling children or parents; 8 (c) Promoting and recruiting foster parents; 9 (d) Providing foster homes, general residential operations, residential care, 10 adoptive homes, or group homes; 11 (e) Providing placement services; 12 (f) Promoting and recruiting adoption parents; 13 (g) Assisting adoptions and supporting adoptive families; and 14 (h) Serving as an adoptive parent; 15 (3) "Child welfare services provider" means a person or entity, other than a 16 governmental entity, that provides, seeks to provide, applies for or receives a 17 contract, subcontract, grant, sub-grant, or cooperative agreement to provide 18 child-welfare services; and 19 (4) "Governmental entity" means the Commonwealth of Kentucky, a municipality, 20 or other political subdivision of this state or any agency of this state or of a 21 municipality or other political subdivision of this state, including a department, 22 bureau, board, commission, office, agency, council, and public institution of 23 higher education. 24 SECTION 3. A NEW SECTION OF KRS CHAPTER 199 IS CREATED TO 25 READ AS FOLLOWS: 26 (1) A governmental entity or any person that contracts with this state or operates 27 UNOFFICIAL COPY 21 RS BR 1067 Page 5 of 8 XXXX Jacketed under governmental authority to refer or place children for child welfare services 1 may not discriminate or take any action against a child welfare services provider 2 on the basis, wholly or partly, that the provider: 3 (a) Has declined, or is likely to decline, to provide, facilitate, or refer a person 4 for child welfare services that conflict with, or under circumstances that 5 conflict with, the child welfare services provider’s sincerely held religious 6 beliefs or moral convictions contained in a written policy, statement of faith, 7 or other document adhered to by the child-welfare services provider; 8 (b) Provides or intends to provide a child or children under the control, care, 9 guardianship, or direction of the child welfare services provider, with a 10 religious education, including placing the child or children in a private or 11 parochial school, or otherwise providing a religious education; 12 (c) Has declined, or will decline to provide, facilitate, or refer a person for 13 abortions, contraceptives, or drugs, devices, or services that are potentially 14 abortion-inducing; or 15 (d) Refuses to enter into a contract that is inconsistent with or would in any 16 way interfere with or force a child welfare services provider to surrender 17 any right created by this section. 18 (2) If a child welfare services provider declines to provide, facilitate, or refer any 19 person for child-welfare services due to a conflict with the provider’s sincerely 20 held religious beliefs or moral convictions contained in a written policy, 21 statement of faith, or other document adhered to by the child welfare services 22 provider, the decision of the child welfare services provider shall not limit the 23 ability of another child welfare services provider to provide, facilitate, or refer the 24 person for the child welfare services. 25 (3) A child welfare services provider’s interpretation or application of its sincerely 26 held religious beliefs or moral convictions contained in a written policy, 27 UNOFFICIAL COPY 21 RS BR 1067 Page 6 of 8 XXXX Jacketed statement of faith, or other document adhered to by a child welfare services 1 provider shall be controlling on any reviewing body in a judicial or administrative 2 proceeding. 3 SECTION 4. A NEW SECTION OF KRS CHAPTER 199 IS CREATED TO 4 READ AS FOLLOWS: 5 (1) A child welfare services provider may assert an actual or threatened violation of 6 Section 3 of this Act as a claim or defense in a judicial or administrative 7 proceeding. 8 (2) A child welfare services provider who successfully asserts a claim or defense 9 under this section shall be entitled to recover: 10 (a) Declaratory relief; 11 (b) Injunctive relief; and 12 (c) Any other relief authorized by law. 13 (3) This section shall apply prospectively and retrospectively. 14 (4) An action under this section may be brought in Franklin Circuit Court or in the 15 Circuit Court of the county in which the child welfare service provider resides. 16 SECTION 5. A NEW SECTION OF KRS CHAPTER 199 IS CREATED TO 17 READ AS FOLLOWS: 18 (1) Sovereign and governmental immunity to suit are waived for any judicial or 19 administration proceeding brought under Section 4 of this Act. 20 (2) Notwithstanding the provisions of subsection (1) of this section, nothing in this 21 section shall be interpreted to waive or abolish sovereign immunity to suit under 22 the Eleventh Amendment to the United States Constitution. 23 SECTION 6. A NEW SECTION OF KRS CHAPTER 199 IS CREATED TO 24 READ AS FOLLOWS: 25 (1) Before initiating an action under Section 4 of this Act, the attorney representing 26 a child welfare services provider shall advise the child welfare services provider of 27 UNOFFICIAL COPY 21 RS BR 1067 Page 7 of 8 XXXX Jacketed all reasonably available alternative dispute resolution options that may be 1 available to the parties to resolve the claim. 2 (2) At the earliest opportunity after the attorney for any respondent has notice of a 3 potential claim or action, the attorney for the respondent shall advise the 4 respondent of all reasonably available alternative dispute resolution options that 5 may be available to the parties to resolve the claim. 6 (3) The child welfare services provider and the respondent shall make a good-faith 7 effort to resolve part or all of the claim through alternative dispute resolution 8 before the child welfare services provider initiates an action. 9 (4) The attorneys for the child welfare services provider and the respondent shall 10 state in pleadings filed with the court that they have complied with subsections (1) 11 to (3) of this section. 12 (5) The court may sanction any party that fails to comply with subsections (1) to (3) 13 and may award reasonable costs, including part or all of the attorney’s fees to the 14 prevailing party or parties. 15 SECTION 7. A NEW SECTION OF KRS CHAPTER 199 IS CREATED TO 16 READ AS FOLLOWS: 17 The provisions of Sections 1 to 8 of this Act, inclusive, shall be construed in favor of a 18 broad protection of free exercise of religious beliefs and moral convictions, to the 19 maximum extent afforded by the federal and state constitutions. The protection of free 20 exercise of religious beliefs and moral convictions afforded by Sections 1 to 8 of this 21 Act, inclusive, is in addition to the protections provided under federal law, state law, 22 and the federal and state constitutions. Nothing in Sections 1 to 8 of this Act may be 23 construed to: 24 (1) Preempt or repeal any state law or local ordinance that is equally or more 25 protective of free exercise of religious beliefs or moral convictions; or 26 (2) Narrow the meaning or application of any state law or local ordinance protecting 27 UNOFFICIAL COPY 21 RS BR 1067 Page 8 of 8 XXXX Jacketed free exercise of religious beliefs or moral convictions. 1 SECTION 8. A NEW SECTION OF KRS CHAPTER 199 IS CREATED TO 2 READ AS FOLLOWS: 3 (1) The provisions Section 1 to 8 of this Act apply to, and in cases of conflict, 4 supersede any other provision of law that impinges upon the free exercise of 5 religious beliefs and moral convictions protected under Sections 1 to 8 of this Act. 6 (2) To assert a claim under the provisions of Section 1 to 8 of this Act, a person or 7 entity shall bring an action no later than two (2) years after the date the person or 8 entity knew or should have known that discrimination occurred or an adverse 9 action was taken against the person or entity. 10 (3) No provision of Sections 1 to 8 of this Act shall be construed to allow a child 11 welfare services provider to decline to provide, facilitate, or refer a person for 12 child welfare services on the basis of a person’s race, ethnicity, or national 13 origin. 14