Kansas

House Bill 2711 (2002)

Health Care Providers' Rights of Conscience Act

Introduction

The following version of the original bill includes amendments made by the House Committee of the Whole. The bill appears to have died in the state senate. [Administrator]

Be it enacted by the Legislature of the State of Kansas:

Section 1. This act shall be known and may be cited as the health care providers' rights of conscience act.

Sec. 2. The legislature finds and declares that people and organizations hold different beliefs about whether certain health care services are morally acceptable. It is the public policy of the state of Kansas to respect and protect, as a civil right, the right of conscience of all persons to refuse to participate in the provision of, or pay for, a health care service subject to this act whether acting individually, corporately or in association with others; and to prohibit all forms of discrimination, disqualification, coercion, disability or imposition of liability upon such persons or entities by reason of their refusal to participate in the provision of, or pay for, a health care service subject to this act.

The provisions of this act shall be construed liberally to carry out purposes thereof.

Sec. 3. As used in this act:

(a) ''Discriminate''means any conduct or practice relating to the refusal of a health care provider to participate in the provision of a health care service subject to the act if such conduct or practice, if it was based on race, religion, color, sex, disability, national origin or ancestry, would be unlawful under K.S.A. 44-1009, and amendments thereto; any denial, deprivation, disqualification or adverse action with respect to licensure, aid, assistance, grants, benefit or privilege, including staff privileges; any denial, deprivation, disqualification or adverse action with respect to any authorization, including authorization to create, expand, improve, acquire, affiliate or merge with any health care institution or payer; or in any other manner engage in coercion against any person, health care provider, health care institution or health care payer because of their refusal to participate in the provision of, or pay for, a health care service subject to this act.

(b) ‘‘Euthanasia’’ means an act that is directly intended to cause the death of a person with an illness or disability. ‘‘Euthanasia’’ does not include the administration of pain medication or other acts or omissions which may have an unintended side-effect of hastening death.

(c) ''Health care service'' means any phase of patient medical care, treatment or procedure, including but not limited to, therapy, counseling, diagnosis or prognosis, research, instruction, prescribing, dispensing or providing any device, drug or medication, surgery or any other care or treatment rendered by health care providers or health care institutions.

(d) ''Health care service subject to this act'' means any health care service relating to abortion, artificial insemination, assisted reproduction, artificial birth control prescribed for contraceptive purposes, human cloning, embryonic stem cell and fetal experimentation, infanticide, assisting suicide, euthanasia and sterilization for contraceptive purposes.

(e) ''Health care provider'' means any individual who may participate in the provision of a health care service, including a physician, physician's assistant, advanced registered nurse practitioner, nurses' aide, medical assistant, hospital employee, clinic employee, adult care home employee, pharmacist, pharmacy employee, medical or nursing school faculty, student or employee, researcher, counselor or social worker.

(f) ''Health care institution'' means any public or private organization, corporation, partnership, limited liability company, sole proprietorship, association, agency, network, joint venture or other entity, including its employees, agents, owners, directors, operators or managers, that participates in the provision of a health care service, including hospitals, clinics, medical centers, ambulatory surgical centers, private physician's offices, pharmacies, adult care homes, university medical schools and nursing schools, medical training facilities or other institutions or locations where health care services are provided to any person and any person attempting to establish a health care institution.

(g) ''Health care payer'' means any employer, public or private organization, corporation, partnership, limited liability company, sole proprietorship, association, agency, network, joint venture or other entity, including its employees, agents, owners, directors, operators or managers, that pays for any health care service or product including, health maintenance organizations, health plans, insurance companies, management service organizations and employers that pay for or provide health benefits or health insurance coverage as a benefit to their employees and any person attempting to establish a health care payer.

(h) ''Licensing body'' means the state of Kansas and any agency, board, commission or instrumentality of the state and any political subdivision of the state that authorizes individuals or entities to provide health care services in this state and issues a license, certificate, permit or other authorization to such individual or entity.

(i) ''Participate in the provision of a health care service'' means to counsel, advise, provide, perform, assist in, refer for, admit for purposes of providing or participate in providing any health care service or any form of such service.

(j) ''Pay'' or ''payment'' means pay, contract for or otherwise arrangefor the payment of, in whole or in part.

(k) ''Person''means any individual, corporation, partnership, limited liability company, sole proprietorship, association, legal representative, trustee, trustee in bankruptcy or receiver, joint venture, organization or other entity.

(l) ''Public agency'' means the state of Kansas, its state agencies, boards, and instrumentalities, and every governmental subdivision when acting solely in the agency's capacity as an employer of a health care provider or when making determinations affecting the amount or authority to receive payment for health care costs.

Sec. 4. (a) A health care provider has the right not to participate in the provision of a health care service subject to this act.

(b) No health care provider shall be liable civilly or criminally for declining to participate in the provision of a health care service subject to this act.

(c) It shall be unlawful for any person, health care provider, health care institution, licensing body or public agency to discriminate against a health care provider.

(d) Nothing in this act shall relieve a health care provider from any duty, which may exist under the law concerning current standards of normal professional practices and procedures, to inform a patient of the patient's condition, prognosis and risks of a health care service subject to this act. Such health care provider shall be under no duty to participate in the provision of a health care service subject to this act.

(e) Nothing in this act shall be construed to relieve a health care provider from participating in the provision of what, in such provider’s best medical and ethical judgment, is a medically nec- essary and appropriate health care service in the case of an emergency when the patient’s life is in jeopardy.

Sec. 5. (a) A health care institution has the right to not participate in the provision of a health care service subject to this act.

(b) No health care institution shall be liable civilly or criminally for declining to participate in the provision of a health care service subject to this act.

(c) It shall be unlawful for any person, licensing body or public agency to discriminate against any health care institution.

(d) Nothing in this act shall relieve a health care institution from any obligation it may have under the emergency medical treatment and active labor act as contained in 42 U.S.C. 1395dd as in effect on July 1, 2002.

(e) Nothing in this act shall be construed to relieve a health care institution from participating in the provision of what, in such institution’s best medical and ethical judgment, is a medically nec- essary and appropriate health care service in the case of an emer- gency when the patient’s life is in jeopardy.

Sec. 6. (a) A health care payer has the right to decline to pay for any health care service subject to this act.

(b) No health care payer shall be liable civilly or criminally by reason of the health care payer's declining to pay for any health care service subject to this act.

(d) Nothing in this act shall be construed to relieve a health care payer from paying, to the extent of such payer’s contractual obligation, for what, in such payer’s best medical and ethical judg- ment, is a medically necessary and appropriate health care service in the case of an emergency when the patient’s life is in jeopardy.

Sec. 7. (a) Any health care provider aggrieved by an alleged unlawful employment practice, as defined by K.S.A. 44-1009, and amendments thereto, based on the refusal to participate in the provision of a health care service subject to this act may file a complaint and receive relief in the manner provided for under the Kansas act against discrimination, K.S.A. 44-1001 et seq., and amendments thereto, but such relief shall not be available unless the health care provider gives the employer written notice of the provider’s objection to partic- ipating in the provision of such health care service prior to such provider’s employment, within 30 days after enactment of this act or at least 48 hours prior to any refusal to participate in the provision of a health care service subject to this act, whichever is latest.

(b) In any proceeding before a licensing body in which it is alleged that a health care provider has engaged in conduct defined as grounds for disciplinary action or any adverse action, including unprofessional conduct, dishonorable conduct or professional incompetence arising from the refusal to participate in the provision of a health care service subject to this act, a health care provider shall have the right to assert the protection of this act as an affirmative defense. The licensing body shall not impose any disciplinary sanction or any adverse action and shall not refuse to grant an original, renewal or reinstated license, certificate or permit based upon the refusal to participate in the provision of a health care service subject to this act.

(c) Except as provided by subsections (a) and (b), a health care provider, health care institution or health care payer injured by any person, public agency or licensing body based on the refusal to participate in the provision of a health care service subject to this act, may commence a civil action for damages or injunctive relief or both in the district court.

(d) Upon finding a violation of this act brought pursuant to paragraph (a), (b) or (c), the aggrieved party shall be entitled to recover, in addition to any damages or other relief, such party's costs of the action and reasonable attorney fees. Any remedies available under this act shall be cumulative and not exclusive of other remedies afforded under any other state or federal law.

(e) It shall not be a defense to any claim arising out of the violation of this act that such violation was necessary to prevent additional burden or expense on any other health care provider, health care institution, health care payer individual or patient.

(f) Any claim brought against a public agency or licensing body shall be subject to the Kansas tort claims act.

(g) Each employer of a health care provider shall comply with its notice obligations under paragraph (a) of this section by posting, and keeping posted, in conspicuous places on the premises of the employer where notices to employees and applicants for employment are customarily posted, a notice, to be prepared or approved by the Kansas human rights commission by rule or regulation, setting forth excerpts from, or summaries of, the pertinent provisions of this act. Any health care provider shall be relieved of the provider's notice obligations to the employer if the employer of the health care provider fails to comply with the provisions of this paragraph.

Sec. 8. Nothing in this act shall be construed as excusing any health care provider, health care institution or health care payer from liability for refusing to participate in the provision of, or pay for, a health care service subject to this act if:

(a) The health care provider, health care institution or health care payer has entered into a contract specifically to participate in the provision of, or pay for, a health care service subject to this act; or

(b) the health care provider, health care institution or health care payer has accepted federal or state funds for the sole purpose of, and specifically conditioned upon, permitting or participating in the provision of, or paying for, a health care service subject to this act.

Sec. 9. Nothing in this act shall be construed to relieve any health care provider from civil or criminal liability or administrative action for the unlawful or negligent practice of a health care profession.

Sec. 10. Nothing in this act shall be construed to excuse any health care provider from complying with:

(a) Any ‘‘do not resuscitate’’ directive or order which is valid under K.S.A. 2001 Supp. 65-4941 through 65-4948, and amend- ments thereto; or

(b) any declaration directing the withholding or withdrawal of life-sustaining procedures which is valid under K.S.A. 65-28,101 through 65-28,109, and amendments thereto.

Sec. 11. This act shall supersede all other acts or parts of acts to the extent that any other acts or parts of acts are inconsistent with the terms or operation of this act, except that protections of this act only shall supplement and not replace the protections contained in K.S.A. 65-443, 65-444, 65-446, and 65-447, and amendments thereto.

Sec. 12. Nothing in this act shall be construed as prohibiting or permitting any health care service subject to this act.

Sec. 13. The provisions of this act are declared to be severable and if any provision, word, phrase or clause of the act or the application thereof to any person shall be held invalid, such invalidity shall not affect the validity of the remaining portions of this act.

Sec. 14. This act shall take effect and be in force from and after its publication in the statute book.