HF 246 (LSB 1619HH (16) 88)

HOUSE FILE 246

BY  SHIPLEY

A BILL FOR

An Act establishing the immunization informed consent Act, and providing penalties.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  NEW SECTION.  135Q.1  Short title.
   This chapter shall be known and may be cited as the “Immunization Informed Consent Protection Act”.
    Sec. 2.  NEW SECTION.  135Q.2  Definitions.
   As used in this chapter, unless the content otherwise requires:

   1.  “Department” means the department of public health.
   2.  “Health care facility” means the same as defined in section 135C.1.
   3.  “Health care provider” means a person licensed or certified by and subject to the authority of a board as defined in section 147.2 who provides professional health care services to a patient during that patient’s medical care, treatment, or confinement.
   4.  “Hospital” means the same as defined in section 135B.1.
   5.  “Informed consent” means the right of a patient to be fully informed about the risks and benefits of a medical intervention and to make a voluntary decision regarding the intervention without being coerced, threatened, or punished for the decision.
   6.  “Insurer” means an entity providing a plan of health insurance, health care benefits, or health care services, or an entity subject to the jurisdiction of the commissioner of insurance performing utilization review, including an insurance company offering sickness and accident plans, a health maintenance organization, a nonprofit health service corporation, a plan established pursuant to chapter 509A for public employees, or any other entity providing a plan of health insurance, health care benefits, or health care services. 
   7.  “Patient” means a person who has received or is receiving professional health care services from a health care facility, health care provider, or hospital.
    Sec. 3.  NEW SECTION.  135Q.3  Immunizations —— prohibited discrimination —— civil remedies.
   1.  A hospital or health care facility shall not do any of the following:
   a.  Discriminate against or terminate the employment or contract of a health care provider, staff member, employee, contractor, subcontractor, or applicant for one of these positions based on the person’s refusal to receive an immunization.
   b.  Discriminate against or terminate the employment or contract of a health care provider, staff member, employee, contractor or subcontractor based on the person’s willingness to participate in the immunization of patients.
   c.  Discriminate against or prohibit or terminate participation by a volunteer based upon the person’s refusal to receive an immunization or the person’s willingness to participate in the immunization of patients.
   2.  A hospital, health care facility, or educational institution providing clinical experience to satisfy the professional degree requirements of a student, intern, or resident shall not discriminate against the student, intern, or resident, or prohibit admission, enrollment, or employment as a student, intern, or resident based on the immunization status of the student, intern, or resident.
   3.  A person aggrieved under this section may petition the district court in the county where the hospital, health care facility, or educational institution is located for any of the following, as applicable:
   a.  Injunctive relief against any further violation.
   b.  Affirmative relief, including reinstatement of employment with back pay and interest, or any other equitable relief the court deems appropriate.
   c.  Other appropriate relief necessary to ensure compliance with this section.
    Sec. 4.  NEW SECTION.  135Q.4  Immunization —— health care provider licensing authorities.
   1.  The licensing authority for a health care provider shall not deny an applicant for a license or suspend, revoke, or refuse to renew a license, and shall not take disciplinary action against a licensee based on the applicant’s or licensee’s immunization history or refusal to submit to or administer an immunization.
   2.  The licensing authority for a health care provider may deny an applicant a license or suspend, revoke, or refuse to renew a license, and may take disciplinary action against a licensee based on the applicant or licensee having three or more verified failures to comply in one calendar year with the applicable health care provider requirements pursuant to 42 U.S.C. §300aa-25 and 42 U.S.C. §300aa-26.
    Sec. 5.  NEW SECTION.  135Q.5  Immunizations —— prohibited actions —— insurers and insurer ratings —— cease and desist orders and penalties.
   1.  An insurer providing a group policy, contract, or plan for health insurance shall not use the immunization status of a person as a basis to reject; deny; limit; cancel; refuse to renew; increase the premiums for; limit the amount, extent, or kind of coverage available to; or otherwise adversely affect eligibility or coverage for the group health policy, contract, or plan for health insurance.
   2.  An insurer providing a group policy, contract, or plan for health insurance shall not use the immunization status of a patient as a qualification or requirement for contracting with the patient’s provider or as a basis for terminating a contract with the patient’s provider.
   3.  The immunization status of a person covered by a group policy, contract, or plan for health insurance shall not be used as a factor in the rating of a group policy, contract, or plan for health insurance in this state.
   4.  An insurer issuing a group policy, contract, or plan for health insurance shall not deny a health care facility, health care provider, or hospital’s participation or decrease reimbursement based on low patient immunization rates or as the result of a health care facility’s, health care provider’s, or hospital’s decision not to immunize a patient.
   5.  An insurer issuing a group policy, contract, or plan for health insurance who violates this section is subject to the summary cease and desist order, cease and desist order, and penalty provisions pursuant to chapter 507B.
    Sec. 6.  NEW SECTION.  135Q.6  Prohibited activities.
   1.  A health care facility, health care provider, or hospital shall not accept an incentive from an insurer or pharmaceutical company in exchange for the immunization of patients.
   2.  A health care facility, health care provider, or hospital shall not require a patient or the parent or guardian of a patient to sign a liability waiver as a condition of receiving medical care if the patient or the patient’s parent or guardian chooses to delay or decline an immunization.
   3.  The department of human services shall not initiate a child abuse investigation against the parent or guardian of a child on the sole basis that the parent or guardian has chosen to delay or decline an immunization for the child.
   4.  A health care facility, health care provider, hospital, or a staff member or employee of a health care facility, health care provider, or hospital shall not discriminate against a patient or the parent or guardian of a patient or terminate treatment of a patient based solely on a patient or a parent or guardian of a patient choosing to delay or decline an immunization. The exercise of a patient’s right to informed consent by delaying or declining immunization shall not be grounds for the dismissal of a patient from a health care provider practice, health care facility, or hospital or for a patient’s loss of medical privileges or benefits.
   5.  A health care facility, health care provider, or hospital shall not harass, coerce, admonish, or threaten a patient or the parent or guardian of a patient for exercising the patient’s right to delay or decline an immunization. 
    Sec. 7.  NEW SECTION.  135Q.7  Rights of patients.
   1.  The department shall publish on the department’s publicly accessible internet site a summary of the rights of a patient and the patient’s parent or guardian as specified in this chapter.
   2.  If requested, a health care facility, health care provider, or hospital shall inform a patient and a patient’s parent or guardian of the address and telephone number of each state agency responsible for responding to a patient’s complaints of noncompliance with this chapter.
   3.  A health care facility, health care provider, or hospital shall adopt policies and procedures to ensure that a patient and a patient’s parent or guardian are provided the opportunity to receive information regarding the patient’s rights under this chapter.
   4.  A health care facility, health care provider, or hospital that fails to make the patient’s summary of rights available to a patient or the patient’s parent or guardian as specified in this section shall be subject to the following:
   a.  (1)  For a first unintentional violation, completion of a corrective action plan.
   (2)  For a second or subsequent unintentional violation, a fine of not more than one hundred dollars. 
   (3)  For a first or subsequent intentional violation, a fine of not more than five hundred dollars, with each intentional violation constituting a separate violation subject to a separate fine.
   b.  In determining the amount of fine to be assessed under paragraph “a”, the following factors shall be considered:
   (1)  The scope and severity of the violation, including the number of patients or parents or guardians of patients found not to have received notice of a patient’s rights, and whether the failure to provide the information was willful.
   (2)  Actions taken by the health care facility, health care provider, or hospital to correct the violation or to remedy a complaint.
   (3)  Any previous violations under this chapter by a health care facility, health care provider, or hospital.
    Sec. 8.  NEW SECTION.  135Q.8  Penalties.
   1.  A health care facility, health care provider, hospital, or insurer, as applicable, that violates a provision of this chapter, is subject to the following as determined by the appropriate licensing authority:
   a.  For a first violation, a fine in the amount of one thousand dollars.
   b.  For a second or subsequent violation, licensee discipline as applicable to the health care facility, health care provider, hospital, or insurer. 
   2.  In addition to the penalties specified in subsection 1, a health care facility, health care provider, hospital, or insurer, as applicable, that violates this chapter may be subject to the following, as determined by the department or the commissioner of insurance, as applicable:
   a.  A fine of not more than five thousand dollars for an unintentional violation.
   b.  A fine of not more than twenty-five thousand dollars for an intentional violation, with each intentional violation constituting a separate violation subject to a separate fine.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill creates the “Immunization Informed Consent Protection Act”. The bill provides definitions used in the bill.
   The bill prohibits a hospital or health care facility from discriminating against or terminating the employment or contract of a health care provider, staff member, employee, contractor, subcontractor, or applicant for one of these positions based on the person’s refusal to receive an immunization; and from discriminating against or terminating the employment or contract of a health care provider, staff member, employee, contractor, or subcontractor based on the person’s willingness to participate in the immunization of patients. The bill also prohibits a hospital or health care facility from discriminating against or prohibiting or terminating participation by a volunteer based upon the person’s refusal to receive an immunization or the person’s willingness to participate in the immunization of patients. Additionally, a hospital, health care facility, or educational institution providing clinical experience to satisfy the professional degree requirements of a student, intern, or resident is prohibited from discriminating against the student, intern, or resident, or prohibit admission, enrollment, or employment as a student, intern, or resident based on the immunization status of the student, intern, or resident. The bill provides that a person aggrieved under this portion of the bill may petition the district court for injunctive relief against any further violation; affirmative relief, including reinstatement of employment with back pay and interest; any other equitable relief the court deems appropriate; or other appropriate relief necessary to ensure compliance with this portion of the bill.
   With respect to health care provider licensees, the bill prohibits the licensing authority for a health care provider from denying an applicant for a license or from suspending, revoking, or refusing to renew a license, and from taking disciplinary action against a licensee based on the applicant’s or licensee’s immunization history or refusal to submit to or administer an immunization. However, the licensing authority may deny an applicant a license or suspend, revoke, or refuse to renew a license, or take disciplinary action against a licensee based on the applicant or licensee having three or more verified failures to comply in one calendar year with the applicable federal health care provider requirements relative to the recording and reporting of immunization information and the provision of immunization information to patients under federal law.
   Relative to insurers and insurance, the bill prohibits an insurer providing a group policy, contract, or plan for health insurance from using the immunization status of a person as a basis to reject; deny; limit; cancel; refuse to renew; increase the premiums for; limit the amount, extent, or kind of coverage available to; or otherwise adversely affect eligibility or coverage for the group health policy, contract, or plan for health insurance. An insurer providing a group policy, contract, or plan for health insurance is also prohibited from using the immunization status of a patient as a qualification or requirement for contracting with the patient’s provider or as a basis for terminating a contract with the patient’s provider. The bill prohibits the immunization status of a person covered by a group policy, contract, or plan for health insurance from being used as a factor in the rating of a group policy, contract, or plan for health insurance in this state, and prohibits an insurer issuing a group policy contract or plan for health insurance from denying a health care facility, health care provider, or hospital’s participation or decreasing reimbursement based on low patient immunization rates or the facility’s, provider’s, or hospital’s decision not to immunize a patient. An insurer who violates this portion of the bill is subject to the summary cease and desist order, cease and desist order, and penalty provisions pursuant to Code chapter 507B (insurance trade practices).
   The bill includes other prohibited activities relative to immunizations. The bill prohibits a health care facility, health care provider, or hospital from accepting an incentive from an insurer or pharmaceutical company in exchange for the immunization of patients; and from requiring a patient or the parent or guardian of a patient to sign a liability waiver as a condition of receiving medical care if the patient or the patient’s parent or guardian chooses to delay or decline an immunization. The bill prohibits the department of human services from initiating a child abuse investigation against the parent or guardian of a child on the sole basis that the parent or guardian has chosen to delay or decline an immunization for the child. Additionally, a health care facility, health care provider, hospital, or a staff member or employee of a health care facility, health care provider, or hospital is prohibited from discriminating against a patient or the parent or guardian of a patient or from terminating treatment of a patient based solely on a patient or a parent or guardian of a patient choosing to delay or decline an immunization. The exercise of a patient’s right to informed consent by delaying or declining an immunization shall not be grounds for the dismissal of a patient from a health care provider practice, health care facility, or hospital or for a patient’s loss of medical privileges or benefits. The bill prohibits a health care facility, health care provider, or hospital from harassing, coercing, admonishing, or threatening a patient or the parent or guardian of a patient for exercising the patient’s right to delay or decline an immunization. 
   The bill requires the department of public health to publish on the department’s publicly accessible internet site a summary of the rights of a patient and the patient’s parent or guardian as specified in the bill. If requested, a health care facility, health care provider, or hospital shall inform a patient and a patient’s parent or guardian of the address and telephone number of each state agency responsible for responding to a patient’s complaints of noncompliance with the provisions of the bill. The bill requires a health care facility, health care provider, and a hospital to adopt policies and procedures to ensure that a patient and a patient’s parent or guardian are provided the opportunity to receive information regarding the patient’s rights under the bill. If a health care facility, health care provider, or hospital fails to make the patient’s summary of rights available to a patient or the patient’s parent or guardian as specified in the bill, the entity is subject to penalties including a corrective action plan for a first unintentional violation; a fine of not more than $100 for a second or subsequent unintentional violation; and a fine of not more than $500 per violation for a first or subsequent intentional violation. The bill provides factors to be considered in determining the amount of fine to be assessed. 
   The bill includes penalties for a health care facility, health care provider, hospital, or insurer, as applicable, that violates a provision of the Code chapter, as determined by the appropriate licensing authority, including licensing discipline and fines ranging from $1,000 to $25,000 per violation.