Michigan

Senate Bill 136 (2013)

Religious liberty and conscience protection act

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January 31, 2013,

Introduced by Senators MOOLENAAR, MARLEAU, MEEKHOF, RICHARDVILLE, JANSEN, HILDENBRAND, GREEN, EMMONS, PAVLOV, BOOHER, JONES, PROOS, BRANDENBURG, ROBERTSON, NOFS, WALKER, CASPERSON, PAPPAGEORGE, COLBECK, HUNE and KOWALL and referred to the Committee on Health Policy.

A bill to protect religious liberty and rights of conscience in the areas of health care and medical and scientific research as it pertains to employment, education and training, and participating in health care services and to the purchasing of or providing for the purchase of health insurance; to provide immunity from liability; and to prescribe penalties and provide remedies.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 1. This act shall be known and may be cited as the "religious liberty and conscience protection act".

Sec. 3. As used in this act:

(a) "Conscience" means sincerely held convictions arising from a belief in God or the tenets of an established religion, or from the ethical or moral principles of a generally recognized philosophy or belief system that an individual asserting those convictions can reference as a basis for those convictions. For purposes of this act, the conscience of an entity shall be determined by reference to existing or proposed religious, moral, or ethical guidelines, mission statement, constitution, bylaws, articles of incorporation, or regulations adhered to by the entity.

(b) "Health care payer" or "payer" means an entity or employer that purchases, contracts for, pays for, arranges payment for, or facilitates the payment of any health care service, including, but not limited to, health maintenance organizations, health plans, health plan sponsors, nonprofit health care corporations, insurance companies, or management services organizations. Health care payer does not include an individual.

(c) "Health care purchaser" or "purchaser" means an individual, entity, or employer seeking to purchase or who has purchased a health insurance contract, policy, or product.

(d) "Health care service" or "service" means any of the following:

(i) A phase of patient medical care, treatment, or procedure, including, but not limited to, patient referral, therapy, testing, diagnosis or prognosis, research instruction, prescribing, surgery, dispensing or administering a device, drug, or medication, or other medical care rendered to a human patient by a health provider or health facility.

(ii) Medical or scientific research directed toward developing a therapeutic means of treating human illness, disease, or health condition.

(e) "Health facility" means any of the following:

(i) A clinical laboratory, as defined in section 20104 of the public health code, 1978 PA 368, MCL 333.20104.

(ii) A county medical care facility, as defined in section 20104 of the public health code, 1978 PA 368, MCL 333.20104.

(iii) A freestanding surgical outpatient facility, as defined in section 20104 of the public health code, 1978 PA 368, MCL 333.20104.

(iv) A hospital, as defined in section 20106 of the public health code, 1978 PA 368, MCL 333.20106.

(v) A hospice, as defined in section 20106 of the public health code, 1978 PA 368, MCL 333.20106.

(vi) A hospice residence, as defined in section 21401 of the public health code, 1978 PA 368, MCL 333.21401.

(vii) A nursing home, as defined in section 20109 of the public health code, 1978 PA 368, MCL 333.20109.

(viii) A facility or agency listed in subparagraphs (i) to (vii) located in a university, college, or other educational institution.

(ix) The private practice office of a health professional licensed or otherwise authorized to engage in the practice of a health profession under article 15 of the public health code, 1978 PA 368, MCL 333.16101 to 333.18838.

(x) A medical clinic that provides health care services.

(xi) A public or private institution that provides health care services.

(xii) A teaching institution that provides health care services.

(xiii) A pharmacy that provides health care services. As used in this subparagraph, "pharmacy" means that term as defined in section 17707 of the public health code, 1978 PA 368, MCL 333.17707.

(xiv) Any other legal entity that provides health care services.

(f) "Health provider" means any of the following:

(i) Except as otherwise provided in this subparagraph, a licensed, registered, or certified individual who is employed, contracted, or granted privileges to participate in a health care service. This subparagraph does not include an individual who is employed by or under an independent contract with a health care payer to provide case or disease management services.

(ii) A faculty or staff member or a student of a university, college, or educational institution in an educational program where a health care service is provided or where education and training regarding the provision of a health care service is conducted.

(g) "Participate in a health care service" means to instruct, advise, provide, perform, assist in, refer to a particular provider or institution for, admit for purposes of providing, or conduct medical or scientific research for a health care service.

Sec. 5. (1) A health facility may assert as a matter of conscience an objection to participating in a health care service and may decline to participate in a health care service that violates its conscience pursuant to this section.

(2) A health facility shall not assert a matter of conscience objection under subsection (1) under either of the following circumstances:

(a) The objection is based on the patient's or a group of patients' status, or a patient's insurance coverage, ability to pay, or method of payment.

(b) The objection is based on a disagreement with a health provider employed by, under contract to, or granted privileges by the health facility regarding the medical appropriateness of a health care service for a specific patient, the patient has consented to the provision of the health care service, and the health facility routinely allows that health care service to be performed for other patients with similar medical conditions.

(3) A health facility shall provide notice of its assertion of an objection to participating in a health care service described in subsection (1) through written public notice or personally in writing at the time an individual seeks to obtain that health care service from the health facility.

(4) A health facility's assertion of an objection as described in subsection (1) to participating in a health care service shall not be a basis for any of the following:

(a) Civil liability to another person.

(b) Criminal action.

(c) Administrative or licensure action.

(d) Eligibility discrimination against the health facility in a grant, contract, or program.

Sec. 7. (1) A health care payer may decline to offer a contract, policy, or product that pays for, arranges payment for, or facilitates the payment of a health care service that violates the conscience of the payer.

(2) A health care purchaser may decline to purchase or financially contribute toward the purchase of a contract, policy, or product that includes coverage for a health care service that violates the conscience of the purchaser.

(3) A health care payer and any person that owns, operates, supervises, or manages a health care payer is not civilly, criminally, or administratively liable because the health care payer declines to pay for, arrange payment for, or facilitate payment of a health care service or declines to purchase or offer a contract, policy, or product that facilitates payment for a healthcare service, if the health care service violates the conscience of the payer.

(4) A person, public or private institution, or public official shall not discriminate against a health care payer or any person, association, corporation, or other entity operating an existing health care payer or attempting to establish a new health care payer, in any manner, including, but not limited to, denial, deprivation, or disqualification with respect to licensure, aid, assistance, benefit, privilege, or authorization because the health care payer is planning, proposing, or operating a health care payer that declines to pay for or arrange payment of a health care service that violates the conscience of the payer.

(5) A public official, agency, or other entity shall not deny any form of aid, assistance, grants, or benefits to, or in any other manner coerce, disqualify, or discriminate against, a health care payer because the existing or proposed health care payer declines to pay for or arrange for the payment of a health care service that violates the conscience of the payer.

(6) Subject to subsection (7), this section does not relieve an individual who received a health care service or who is responsible for the payment, in whole or in part, of a health care service that has been received by a patient, from paying for that health care service unless that individual provided notice of his or her objection to that health care service under this section before the service was rendered. This subsection and subsection (7) do not apply to the parent or guardian of an unemancipated minor who is responsible for payment of the minor's health care service, unless the health care service was provided with the consent of the parent or guardian.

(7) An individual who received a health care service or who is responsible for the payment, in whole or in part, of a health care service that has been received by a patient is responsible for the individual's share of the payment for a health care service that is provided under any of the following circumstances:

(a) The health care service was provided under the stated wishes of the competent patient.

(b) The health care service is stipulated under an existing power of attorney for health care or a durable power of attorney and designation of patient advocate under part 5 of article V of the estates and protected individuals code, 1998 PA 386, MCL 700.5501 to 700.5520.

(c) In the absence of the stated wishes of the patient, the health care service is in the best interests of the patient as determined by or is consistent with the orders of the attending physician or his or her designee.

Sec. 9. (1) Except as otherwise provided in subsection (2), not later than 6 months after the effective date of this act, an employer that employs, contracts with, or grants privileges to a health provider shall adopt and implement a policy to address situations in which the health provider has an objection to participating in a health care service as a matter of conscience.

An employer that is subject to this subsection and that, on the effective date of this act, already has an adopted and implemented policy in effect that complies with this section is not required to adopt and implement a new policy. An employer shall comply with all of the following with regard to its policy described in this subsection:

(a) The employer shall include a statement that the health provider will not be penalized for expressing an objection to participating in a health care service as a matter of conscience or for requesting accommodation to avoid participating in a health care service as a matter of conscience.

(b) The employer shall establish a process by which the health provider may request an accommodation to address the health provider's objection to participating in a health care service as a matter of conscience. The employer may require that the health provider make his or her request for an accommodation in writing.

(c) The employer shall establish a process by which requests for accommodation under this section are granted or denied and notice of that decision is given to the requesting health provider.

(2) Subsection (1) does not apply and this subsection applies to an employer that is a county medical care facility as defined in section 20104 of the public health code, 1978 PA 368, MCL 333.20104, and to an employer that is a nursing home as defined in section 20109 of the public health code, 1978 PA 368, MCL 333.20109. Beginning 6 months after the effective date of this act, a health provider who is employed by, under contract with, or granted privileges by a county medical care facility or nursing home may request accommodation to avoid participating in a health care service to which the health provider objects as a matter of conscience but only for a health care service that is an act to remove a life-sustaining device including a ventilator or apparatus for nonoral hydration or nutrition or is patient care subsequent to the removal of a life-sustaining device. The health provider shall make the request for accommodation under this subsection in writing and give the written request directly to his or her supervisor assigned by the employer. The health provider shall include in the written request under this subsection an explanation of his or her objection and the health care service described in this subsection to which he or she specifically objects as a matter of conscience.

(3) A health provider may make a request for accommodation under this section under any of the following conditions:

(a) Upon being offered employment, entering into a contract, or privileges being granted.

(b) At the time he or she adopts sincerely held convictions under which he or she objects as a matter of conscience to participate in the health care service for which he or she is requesting an accommodation under this section.

(c) Within 24 hours after he or she is asked to participate or after he or she has received notice or become aware that he or she is scheduled to participate in a health care service to which he or she objects as a matter of conscience.

(4) An employer shall not ask a prospective health provider regarding his or her objection as a matter of conscience or potential objection as a matter of conscience to participate in a health care service unless participation in that health care service meets the following requirements, as applicable:

(a) The health care service is a regular or substantial portion of the normal course of duties for the employed or contracted position or under staff privileges the prospective health provider is seeking.

(b) For an employer described in subsection (2), the health care service is a health care service to which a health provider may object to participate in as a matter of conscience under subsection (2).

(5) An employer shall not refuse to employ, enter into a contract with, or grant privileges to a health provider because the health provider is known by the employer to have previously requested or is currently requesting accommodation under this section unless participation in that health care service meets the following requirements, as applicable:

(a) The health care service is a regular or substantial portion of the normal course of duties for the employed or contracted position or under staff privileges.

(b) For an employer described in subsection (2), the health care service is a health care service to which a health provider may object to participate in as a matter of conscience under subsection (2).

(6) An employer shall not penalize a health provider for expressing an objection to participating in a health care service as a matter of conscience or for requesting accommodation to avoid participating in a health care service as a matter of conscience.

(7) Upon receipt of a request for accommodation to avoid participating in a health care service under this section, an employer shall do all of the following:

(a) Give a written acknowledgment of the health provider's request within 24 hours after receipt of that request. The employer shall include in the written acknowledgment a description of the timeline for granting or denying the request.

(b) Promptly grant or deny the request and give notice of that decision to the health provider. If the request for accommodation is denied, the employer shall give the notice in writing and shall include the reasons for the denial.

(c) Within 7 days after granting a health provider's request, the employer shall develop a plan for accommodation with the health provider to ensure that the health provider will not be scheduled or requested to participate in the health care service to which he or she objects as a matter of conscience.

(8) An employer shall retain a health provider's request for accommodation submitted under this section for the duration of the health provider's employment or period of contract or privileges. A health provider's request for accommodation that is granted under this section is valid for the duration of the health provider's employment or period of contract or privileges or until rescinded by the health provider in writing.

(9) The protections afforded to a health provider under this section do not apply to a health provider who has submitted to his or her employer a request for an accommodation to avoid participating in a health care service under any of the following circumstances:

(a) A patient's condition, in the reasonable medical judgment of an attending physician, medical director, or registered nurse, requires immediate action to avoid permanent physical harm to the patient and no other qualified health provider is available to provide that health care service.

(b) There is a public health emergency.

(c) The health provider first submits a request contemporaneously to a patient's requiring or requesting the objectionable health care service and no other health provider is available to provide the health care service.

(d) The request is based on a patient's or a group of patients' status or insurance coverage, ability to pay, or method of payment.

(e) The request is made in the presence of a patient seeking a health care service to which the health provider objects.

(10) This section does not relieve a health provider from a duty that exists under current standards of acceptable health care practice and procedure to inform a patient of the patient's condition, prognosis, or risk of receiving or forgoing relevant health care services for the condition, including the availability of a health care service to which the health provider objects as a matter of conscience.

(11) A health provider's objection to participating in a health care service as a matter of conscience as authorized under this section shall not be the basis for any of the following:

(a) Civil liability to another person.

(b) Criminal action.

(c) Administrative or licensure action.

(d) Eligibility discrimination against the health provider in a grant, contract, or program, unless participating in the health care service is an objective of the grant, contract, or program.

(12) Notwithstanding any law to the contrary, a county medical care facility or nursing home that has granted a request for an accommodation under this section to a full-time health provider may include that health provider as a full-time equivalent for the purposes of staffing levels and staffing ratios.

Sec. 10. (1) Not later than 6 months after the effective date of this act, a university, college, or educational institution where education and training regarding the provision of a health care service is conducted shall adopt and implement a policy applicable to its students or faculty or staff members that complies with section 9. A university, college, or educational institution described in this section that, on the effective date of this act, already has an adopted and implemented policy in effect that complies with this section and section 9 is not required to adopt and implement a new policy.

(2) A university, college, or educational institution described in subsection (1) shall not refuse admission to an individual or penalize a student or a member of its faculty or staff for expressing an objection to participating in a health care service as a matter of conscience or for requesting accommodation to avoid participating in a health care service as a matter of conscience.

Sec. 11. A civil action for damages or reinstatement of employment, or both, may be brought against a person, including, but not limited to, a governmental agency, health facility, or other employer, for penalizing or discriminating against a health provider, including, but not limited to, penalizing or discriminating in hiring, promotion, transfer, a term or condition of employment, licensing, or granting of staff privileges or appointments, solely because that health provider has submitted a request for accommodation under section 9 or 10. Civil damages may be awarded equal to the amount of proven damages and attorney fees.

A civil action filed under this section may include a petition for injunctive relief against a person alleged to have penalized or discriminated against a health provider as described in this section.

Sec. 12. This act does not excuse or limit the liability of a health care payer, health facility, or health provider for a refusal to participate in a health care service under any of the following circumstances:

(a) The payer, facility, or provider has entered into a contract specifically to participate in the health care service.

(b) The health care provider was employed, contracted with, or granted privileges by an employer after the effective date of this act and participation in the health care service objected to is a regular or substantial portion of the normal course of duties for the employed or contracted position or under staff privileges.

(c) The payer, facility, or provider has accepted federal or state money for the sole purpose of, and specifically conditioned upon, participation in the health care service.

Sec. 13. A person who violates this act is responsible for a state civil infraction and may be ordered to pay a fine of not more than $1,000.00 for each day the violation continues or a fine of not more than $1,000.00 for each occurrence.

Sec. 14. This act does not repeal, supersede, or alter the conscience provisions of sections 20181 to 20184 of the public health code, 1978 PA 368, MCL 333.20181 to 333.20184, nor does this act add additional requirements or conditions to the conscience provisions of those sections.

Sec. 15. This act does not diminish or affect the rights of a patient residing in a county medical care facility or a nursing home, as those rights are enumerated in sections 20201 to 20203 and section 21765 of the public health code, 1978 PA 368, MCL 333.20201 to 333.20203 and 333.21765, and in 42 CFR 483.10.