Text of SD SB 109 (2020)

20.662.10 95th Legislative Session 456 2020 South Dakota Legislature Senate Bill 109 Introduced by: Senator Stalzer Catchlines are not law. (§ 2-16-13.1) Underscores indicate new language. Overstrikes indicate deleted language. An Act to provide protections for health care decisions governed by conscience. 1 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA: 2 Section 1. That a NEW SECTION be added: 3 36-2B-1. Definitions. 4 As used in this chapter: 5 (1) "Conscience" means: 6 (a) The ethical, moral, philosophical, or religious beliefs or principles held by 7 any health care provider; or 8 (b) The ethical, moral, philosophical, or religious beliefs or principles reflected 9 in the governing or guidance documents of a health care institution or 10 payer, including articles of incorporation, bylaws, directives, mission 11 statements, policies, and regulations; 12 (2) "Disclosure" means a formal or informal communication or transmission, but does 13 not include a communication or transmission concerning policy decisions that 14 lawfully exercise discretionary authority, unless the health care provider engaged 15 in the disclosure reasonably believes that the disclosure evinces: 16 (a) A violation of any law, regulation, or rule; 17 (b) A violation of any standard of care or other ethical guideline for the provision 18 of a health care service; or 19 (c) An abuse of authority, gross mismanagement, a gross waste of funds, or a 20 substantial and specific danger to public health or safety; 21 (3) "Discrimination" means any adverse action taken against or any threat of adverse 22 action communicated to a health care provider, a health care institution, or a health 23 care payer, regarding a decision not to participate in a health care service on the 24 basis of conscience, and includes: 25 (a) Adverse administrative action; 26 20.662.10 2 456 Catchlines are not law. (§ 2-16-13.1) Underscores indicate new language. Overstrikes indicate deleted language. (b) Creation of impediments to acquisitions, affiliations, or mergers; 1 (c) Creation of impediments to expansion or improvements; 2 (d) Demotion from current position; 3 (e) Denial of board certification; 4 (f) Denial of financial aid and other assistance; 5 (g) Denial of grants, contracts, or other opportunities; 6 (h) Denial, revocation, or suspension of licensure; 7 (i) Denial of residency training opportunities; 8 (j) Denial of staff privileges; 9 (k) Increased administrative duties; 10 (l) Loss of career specialty; 11 (m) Reduction in compensation; 12 (n) Reassignment to a different shift or job title; 13 (o) Termination of employment; 14 (p) Transfer from current position; and 15 (q) Any other disciplinary action, penalty, or retaliatory action, whether 16 executed or threatened; 17 (4) "Health care institution" means any public or private ambulatory surgical center, 18 clinic, hospital, medical center, medical school, medical training facility, nursing 19 home, nursing school, pharmacy, physician's office, physician organization, 20 professional association, or any other entity in which or location at which health 21 care services are performed; 22 (5) "Health care payer" means any employer, health maintenance organization, health 23 plan, insurance company, management services organization, or any other entity 24 that pays for, or arranges for the payment of, in whole or in part, any health care 25 service provided to a patient; 26 (6) "Health care provider" means: 27 (a) Allied health professional; 28 (b) Certified nurse practitioner; 29 (c) Counselor; 30 (d) Employee of a health care institution; 31 (e) Laboratory technician; 32 (f) Medical assistant; 33 (g) Medical school faculty and students; 34 (h) Nursing school faculty and students; 35 20.662.10 3 456 Catchlines are not law. (§ 2-16-13.1) Underscores indicate new language. Overstrikes indicate deleted language. (i) Psychology and counseling faculty and students; 1 (j) Physician; 2 (k) Physician assistant; 3 (l) Nurse; 4 (m) Nurse aide; 5 (n) Pharmacist; 6 (o) Pharmacy technician; 7 (p) Medical researcher; 8 (q) Social worker; or 9 (r) Any other person who facilitates or participates in the provision of health 10 care services to any person; 11 (7) "Health care service" means medical care provided to a patient at any time during 12 a course of treatment and includes: 13 (a) Diagnosis; 14 (b) Dispensing or administering any drug, device, or medication; 15 (c) Initial examination; 16 (d) Psychological therapy or counseling; 17 (e) Referral; 18 (f) Research; 19 (g) Testing; 20 (h) Therapy; and 21 (i) Any other care or necessary service performed or provided by a health care 22 provider; and 23 (8) "Participate" means to admit, advise, assist with, counsel, facilitate, perform, 24 provide, refer, or take part in the provision of a health care service. 25 Section 2. That a NEW SECTION be added: 26 36-2B-2. Right of nonparticipation based on conscience--Discrimination 27 prohibited. 28 A health care provider has the right not to participate in any health care service 29 that violates the provider's conscience. A health care provider may not be discriminated 30 against if the provider exercises this right. 31 A health care institution has the right not to participate in any health care service 32 that violates the institution's conscience. A health care institution may not be 33 discriminated against if the institution exercises this right. 34 20.662.10 4 456 Catchlines are not law. (§ 2-16-13.1) Underscores indicate new language. Overstrikes indicate deleted language. A health care payer has the right not to pay for any health care service that violates 1 the payer's conscience. A health care payer may not be discriminated against if the payer 2 exercises this right. 3 No health care provider, health care institution, or health care payer may be civilly 4 or criminally liable, or subject to any administrative action for exercising the right of 5 conscience with respect to a health care service. 6 Section 3. That a NEW SECTION be added: 7 36-2B-3. Religiously-based institutions or payers--Exception. 8 This Act does not apply to any employment-related decisions of a religiously-based 9 health care institution or health care payer that employees only persons of a particular 10 religion. 11 Section 4. That a NEW SECTION be added: 12 36-2B-4. Reporting of alleged violation. 13 A health care provider may not be discriminated against as a result of reporting or 14 providing disclosable information regarding an alleged violation of this Act to any person, 15 public or private, charged with enforcing or having the authority to enforce this Act. 16 Section 5. That a NEW SECTION be added: 17 36-2B-5. Action for damages. 18 A civil action for damages or injunctive relief, or both, may be brought by a health 19 care provider, health care institution, or health care payer, for any violation of this Act. 20 Any additional burden or expense on another health care provider, health care institution, 21 or health care payer, arising from the exercise of the right of conscience, is not a defense 22 to any violation of this Act. 23 Section 6. That a NEW SECTION be added: 24 36-2B-6. Treble damages--Injunctive relief. 25 Any person aggrieved by a violation of this Act may commence a civil action. A 26 court may award treble damages for a violation of this Act , together with costs and 27 reasonable attorney's fees. A damage award under this section is cumulative and may not 28 be limited by any other available remedies. 29 A court may also provide injunctive relief under this Act. 30