Nebraska
Legislative Bill 564 (2013)
Health Care Freedom of Conscience Act
Original
Introduction
The bill was indefinitely postponed in April, 2014.
[Administrator]
LEGISLATURE OF NEBRASKA
ONE HUNDRED THIRD LEGISLATURE
FIRST SESSION
Introduced by Nelson, 6; Bloomfield, 17; Brasch, 16; Carlson, 38;
Johnson, 23; Kintner, 2; Scheer, 19.
Read first time January 23, 2013
Committee: Judiciary
A BILL
FOR AN ACT relating to health care; to amend sections
38-126 and 38-179, Reissue Revised Statutes of Nebraska; to adopt the Health
Care Freedom of Conscience Act; to subject rules and regulations to the act;
to provide for grounds for disciplining health care credentials; to provide
severability; and to repeal the original sections.
Be it enacted by the people of the State of Nebraska,
Section 1.
Sections 1 to 8 of this act shall be known and may be cited as the
Health Care Freedom of Conscience Act.
Sec. 2.
(1) It is the public policy of Nebraska to respect and protect the
fundamental right of conscience of all individuals who provide health care.
(2) Without comprehensive protection, health care rights of conscience
may be violated in various ways, such as harassment, demotion, salary
reduction, transfer, termination, loss of staffing privileges, denial of aid
or benefits, administrative penalty, punishment, or sanction, and refusal to
license or refusal to certify.
(3) It is the purpose of the Health Care Freedom of Conscience Act
to protect as a basic civil right the right of each health care provider or
institution to decline to participate in any health care function that
violates their respective consciences.
(4) Accordingly, it is the purpose of the Health Care Freedom of
Conscience Act to prohibit all forms of discrimination against any health
care provider or institution that declines to participate in any health care
function that violates their respective consciences.
Sec. 3.
For purposes of the Health Care Freedom of Conscience Act:
(1) Conscience means the religious beliefs, moral convictions, or ethical
principles held by any health care provider or health care facility. For
purposes of this subdivision, a health care facility's conscience shall be
determined by reference to its existing religious, moral, or ethical
guidelines, mission statement, constitution, bylaws, articles of
incorporation, regulations, or other relevant documents;
(2) Health care facility means any health care facility or health care
service as defined by the Health Care Facility Licensure Act and any medical
school, medical training facility, laboratory, or diagnostic facility;
(3) Health care function means any phase of patient health care,
treatment, or procedure, including, but not limited to, diagnosis or
prognosis, instruction, patient referral, prescribing, dispensing, or
administering any device, drug, or medication, research, counseling,
surgery, testing, therapy, or any other care or treatment rendered by a
health care provider or a health care facility;
(4) Health care provider means any individual who may be asked to
participate in any way in any health care function, including, but not
limited to, any employee of a health care facility, student at a health care
facility, certified nurse midwife, registered nurse, clinical nurse
specialist, nurse practitioner, nurse, licensed practical nurse-certified,
mental health practitioner, pharmacist, physician, physician assistant,
psychologist, or psychiatrist; and
(5) Participate means to counsel, advise, provide, perform, assist in,
refer for, admit for purposes of providing, or participate in providing any
health care function or any form of such
function.
Sec. 4.
(1) A health care provider has the right not to participate in any health
care function that violates his or her conscience. No health care provider
shall be required to participate in any health care function that violates
his or her conscience.
(2) A health care facility has the right not to participate in any health
care function that violates its conscience. No health care facility
shall be required to participate in any health care function that violates
its conscience.
Sec. 5.
(1) No health care provider shall be civilly, criminally, or
administratively liable for declining to participate in any health care
function that violates his or her conscience.
(2) No health care facility shall be civilly, criminally, or
administratively liable for declining to provide or participate in any
health care function that violates its conscience.
Sec. 6.
Nothing in the Health Care Freedom of Conscience Act shall be construed
to authorize or immunize any health care provider's or health care
facility's refusal:
(1) To comply with the requirements of the Pain-Capable Unborn
Child Protection Act, sections 28-325 to 28-346, section 38-2021, or
sections 71-6901 to 71-6911; or
(2) To provide a health care function if the denial of such health care
function will, in reasonable medical judgment, result in or hasten the death
of a patient and if the provision for such health care function is directed
by the patient or a person authorized to make health care decisions for the
patient:
(a) On the basis of a view that treats extending the life
of an elderly, disabled, or terminally ill individual as of lower value than
extending the life of an individual who is younger, nondisabled, or not
terminally ill; or
(b) On the basis of disagreement with how the patient or
person authorized to make health care decisions for the patient values the
balance between extending the length of the patient's life and the risk of
disability.
Sec. 7.
(1) It shall be a violation of the Health Care Freedom of Conscience Act
for any person, health care provider, health care entity, public or private
entity, public official, or board which certifies competency in medical
specialties to discriminate against any health care provider in any manner
based on his or her declining to participate in any health care function
that violates his or her conscience. For purposes of this subsection,
discrimination includes termination, transfer, refusal of staff privileges,
refusal of board certification, adverse administrative action, demotion,
loss of career specialty, reassignment to a different shift, reduction of
wages or benefits, refusal to award any grant, contract, or other program,
refusal to provide residency training opportunities, or any other penalty or
disciplinary action.
(2) Notwithstanding subsection (1) of this section, subject to a
collective-bargaining agreement that covers a health care provider, an
employer may take action that is otherwise defined as discriminatory under
the Health Care Freedom of Conscience Act against an employee who is a
health care provider who declines to participate in any health care function
that violates his or her conscience if at the time of such declination the
health care function in question constitutes a regular or substantial
portion of the employee's current and defined position and the employer has
not refused to reasonably accommodate the employee. For purposes of this
subsection, regular or substantial portion means fifty percent or more of
the employee's daily or weekly hours of duty.
(3) It shall be a violation of the Health Care Freedom of Conscience Act
for any person, any private entity, or any public official, agency,
facility, or entity to discriminate in any manner against any health care
facility or any person, association, corporation, or other entity planning
or proposing a new health care facility or operating an existing health care
facility. For purposes of this subsection, discrimination includes, but is
not limited to, any denial, deprivation, or disqualification with respect to
licensure, any form of aid, assistance, grant, benefit, or privilege,
including staff privileges, or any authorization, including authorization to
create, expand, improve, acquire, or affiliate or merge with any health care
facility, or in any other manner to coerce, disqualify, or discriminate
against any health care facility or person, association, corporation, or
other entity planning, proposing, or operating a health care facility,
because the existing or proposed health care facility declines to
participate in any health care function that violates the health care
facility's conscience.
Sec. 8.
(1) A civil action for damages or injunctive relief, or both, may be
brought for any violation of the Health Care Freedom of Conscience Act.
Subject to section 7 of this act, it shall not be a defense to any claim
arising out of a violation of the act that such violation was necessary to
prevent additional burden or expense on any other health care provider,
health care facility, individual, or patient.
(2) Any health care provider or health care facility aggrieved by
any public or private individual, association, agency, entity, or
corporation by reason of any conduct prohibited by the Health Care Freedom
of Conscience Act may commence a civil action. If the result of the action
is a finding of a violation of the act, the aggrieved party shall be
entitled to recover actual damages, including pain and suffering, sustained
by such individual, association, corporation, entity, or health care
facility. Damages shall be cumulative and not exclusive of other remedies
afforded under any other state or federal law.
(3) The court in any such civil action may award injunctive relief,
including, but not limited to, ordering reinstatement of a health care
provider to his or her prior job position.
Sec. 9.
Section 38-126, Reissue Revised Statutes of Nebraska, is amended to read:
38-126 To protect the health, safety, and welfare of the
public and to insure to the greatest extent possible the efficient,
adequate, and safe practice of health services, health-related services, and
environmental services:
(1)(a) The appropriate board may adopt rules and
regulations to:
(i) Specify minimum standards required for a
credential, including education, experience, and eligibility for taking the
credentialing examination;
(ii) Designate credentialing examinations, specify
the passing score on credentialing examinations, and specify standards, if
any, for accepting examination results from other jurisdictions;
(iii) Set continuing competency requirements in
conformance with section 38-145;
(iv) Set standards for waiver of continuing
competency requirements in conformance with section 38-146;
(v) Set standards for courses of study; and
(vi) Specify acts in addition to those set out in
section 38-179 that constitute unprofessional conduct; and
(b) The department shall promulgate and enforce such
rules and regulations;
(2) For professions or businesses that do not have a
board created by statute:
(a) The department may adopt, promulgate, and enforce
such rules and regulations; and
(b) The department shall carry out any statutory
powers and duties of the board;
(3) The department, with the recommendation of the
appropriate board, if any, may adopt, promulgate, and enforce rules and
regulations for the respective profession, other than those specified in
subdivision (1) of this section, to carry out the Uniform Credentialing Act;
and
(4) The department may adopt, promulgate, and enforce
rules and regulations with general applicability to carry out the Uniform
Credentialing Act. All rules and regulations shall be subject to the
Health Care Freedom of Conscience Act.
Sec. 10. Section 38-179, Reissue Revised Statutes of Nebraska, is
amended to read:
38-179 For purposes of section 38-178,
unprofessional conduct means any departure from or failure to conform to the
standards of acceptable and prevailing practice of a profession or the
ethics of the profession, regardless of whether a person, consumer, or
entity is injured, or conduct that is likely to deceive or defraud the
public or is detrimental to the public interest, including, but not limited
to:
(1) Receipt of fees on the assurance that an
incurable disease can be permanently cured;
(2) Division of fees, or agreeing to split or divide
the fees, received for professional services with any person for bringing or
referring a consumer other than (a) with a partner or employee of the
applicant or credential holder or his or her office or clinic, (b) with a
landlord of the applicant or credential holder pursuant to a written
agreement that provides for payment of rent based on gross receipts, (c)
with a former partner or employee of the applicant or credential holder
based on a retirement plan or separation agreement, or (d) by a person
credentialed pursuant to the Water Well Standards and Contractors' Practice
Act;
(3) Obtaining any fee for professional services
by fraud, deceit, or misrepresentation, including, but not limited to,
falsification of third-party claim documents;
(4) Cheating on or attempting to subvert the
credentialing examination;
(5) Assisting in the care or treatment of a
consumer without the consent of such consumer or his or her legal
representative;
(6) Use of any letters, words, or terms, either as
a prefix, affix, or suffix, on stationery, in advertisements, or otherwise,
indicating that such person is entitled to practice a profession for which
he or she is not credentialed;
(7) Performing, procuring, or aiding and abetting in the
performance or procurement of a criminal abortion;
(8) Knowingly disclosing confidential information
except as otherwise permitted by law;
(9) Commission of any act of sexual abuse, misconduct, or exploitation
related to the practice of the profession of the applicant or credential
holder;
(10) Failure to keep and maintain adequate records of treatment or
service;
(11) Prescribing, administering, distributing, dispensing, giving,
or selling any controlled substance or other drug recognized as addictive or
dangerous for other than a medically accepted therapeutic purpose;
(12) Prescribing any controlled substance to (a) oneself or (b)
except in the case of a medical emergency (i) one's spouse, (ii) one's
child, (iii) one's parent, (iv) one's sibling, or (v) any other person
living in the same household as the prescriber;
(13) Failure to comply with any federal, state, or municipal law,
ordinance, rule, or regulation that pertains to the applicable profession;
(14) Disruptive behavior, whether verbal or physical, which interferes
with consumer care or could reasonably be expected to interfere with such
care; and
(15) Violating the Health Care Freedom of Conscience Act; and
(15) (16) Such other acts as may be
defined in rules and regulations.
Nothing in this section shall be construed to exclude determination
of additional conduct that is unprofessional by adjudication in individual
contested cases.
Sec. 11.
If any section in this act or any part of any section is declared invalid
or unconstitutional, the declaration shall not affect the validity or
constitutionality of the remaining portions.
Sec. 12.
Original sections 38-126 and 38-179, Reissue Revised Statutes of
Nebraska, are repealed.