S-5078

   Amend House File 571, as amended, passed, and reprinted by the House, as follows:
   1.  By striking everything after the enacting clause and inserting: 
   <Section 1.  SHORT TITLE.  This Act shall be known and may be cited as the “Medical Ethics Defense Act”.
   Sec. 2.  NEW SECTION.  135S.1  Definitions.
   As used in this chapter, unless the context otherwise requires:
   1.  a.  “Conscience” means the ethical, moral, or religious beliefs or principles held by a medical practitioner or health care institution.
   b.  With respect to persons who are institutions, corporations, or other legal entities, “conscience” is determined by reference to that entity’s governing documents including but not limited to published ethical, moral, or religious guidelines or directives, mission statements, constitutions, articles of incorporation, bylaws, policies, or regulations.
   2.  “Discrimination” means an adverse action, including but not limited to any penalty, disciplinary, or retaliatory action taken against, or a threat of adverse action communicated to, a medical practitioner or health care institution as a result of the refusal of the medical practitioner or health care institution to participate in a health care service on the basis of conscience. “Discrimination” not does include the negotiation or purchase of insurance or a health care service by a nongovernmental entity or individual, the refusal to use or purchase insurance or a health care service by a nongovernmental entity or individual, or a health care institution’s good-faith effort to accommodate a medical practitioner’s or health care institution’s exercise of conscience.
   3.  “Health care institution” means an organization, corporation, partnership, association, agency, network, sole proprietorship, joint venture, or other entity that provides a health care service.
   4.  “Health care service” means medical research and medical care provided to a patient or client at any time during the patient’s or client’s course of treatment, including but not limited to testing; diagnosis; record making; referral; prescribing, dispensing, or administering any drug, medication, or device; therapy or counseling; and preparation or arrangement for a surgical procedure.
   5.  “Medical practitioner” means a person who facilitates or participates, or who is asked to facilitate or participate in a health care service, including but not limited to a health-related professional licensed by a board designated in section 147.13, and any other person licensed, certified, or otherwise authorized or permitted by the laws of this state to administer a health care service in the ordinary course of business or in the practice of a profession. “Medical practitioner” includes any student enrolled in an educational institution who is a prospective medical practitioner.
   6.  “Participate in a health care service” means to provide, perform, assist with, facilitate, refer for, provide counseling for, advise with regard to, admit for the purposes of providing, or take part in a health care service in any way.
   Sec. 3.  NEW SECTION.  135S.2  Exercise of conscience for health care institutions and medical practitioners —— exception.
   1.  a.  A medical practitioner or health care institution has the right not to participate in or pay for a health care service that violates the medical practitioner’s or health care institution’s conscience. A medical practitioner shall inform the medical practitioner’s employer of the nature of the medical’s practitioner’s objection based on the practitioner’s conscience. This paragraph shall not be construed to waive or modify a duty a medical practitioner or health care institution may have to participate in a health care service that does not violate the medical practitioner’s conscience.
   b.  A medical practitioner or health care institution who refuses to participate in a health care service under this section shall not be discriminated against for the medical practitioner’s or health care institution’s exercise of conscience.
   2.  This section shall not be construed to relieve a health care institution of the requirement to provide emergency medical services to individuals as required under 42 U.S.C. §1395dd.
   3.  Notwithstanding any other provision of this chapter to the contrary, a medical practitioner or health care institution that holds itself out to the public as religion-based, states in the entity’s governing documents that the entity has a religious purpose or mission, and that has internal operating policies or procedures that implement the entity’s religious beliefs, shall have the right to make employment, staffing, contracting, and admitting privilege decisions consistent with the entity’s religious beliefs.
   Sec. 4.  NEW SECTION.  135S.3  Exercise of conscience —— immunity.
   1.  A medical practitioner or health care institution shall not be civilly, criminally, or administratively liable for the medical practitioner’s or health care institution’s good-faith exercise of conscience.
   2.  A health care institution shall not be civilly, criminally, or administratively liable for the good-faith exercise of conscience by a medical practitioner employed, contracted, or granted admitting privileges by the health care institution.
   Sec. 5.  NEW SECTION.  135S.4  Whistleblower protections.
   1.  A medical practitioner or health care institution shall not be discriminated against because the medical practitioner or health care institution does any of the following:
   a.  Provides, causes to be provided, or intends to provide or cause to be provided information relating to a suspected violation of this chapter to the medical practitioner’s or health care institution’s employer, the attorney general, any state agency charged with protecting health care rights of conscience, the United States department of health and human services, the United States commission on civil rights, or any other federal agency charged with protecting health care rights of conscience.
   b.  Testifies or intends to testify in a proceeding concerning a violation of this chapter.
   c.  Assists or participates, or intends to assist or participate, in a proceeding under this chapter.
   2.  It shall be unlawful to discriminate against a medical practitioner or health care institution because the medical practitioner or health care institution discloses information that the medical practitioner or health care institution reasonably believes evidences any of the following:
   a.  A violation of any law or rule.
   b.  A violation of any standard of care or ethical guidelines for the provision of any health care service.
   c.  Gross mismanagement, a gross waste of funds, an abuse of authority, practices or methods of treatment that may put a patient or client health at risk, or a substantial and specific danger to public health or safety.
   3.  This section shall not be construed to exempt a person from the requirements of the federal Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, including amendments thereto and regulations promulgated thereunder, or any other applicable confidentiality and patient or client privacy requirements.
   Sec. 6.  NEW SECTION.  135S.5  Free speech protections —— notification of complaints —— penalty.
   1.  The department of health and human services, a licensing board designated under chapter 147, or any other state licensing or certifying entity of a medical practitioner shall not reprimand, sanction, or revoke or threaten to revoke a license or certification of a medical practitioner or health care institution who is licensed or certified by the department, licensing board, or other licensing or certifying entity, for engaging in speech, expressive activity, or association protected under the first amendment to the Constitution of the United States, unless the department, licensing board, or other licensing or certifying entity demonstrates by clear and convincing evidence that the medical practitioner’s or health care institution’s speech, expressive activity, or association was the direct cause of physical harm to a person with whom the medical practitioner or health care institution had a medical practitioner-patient or medical practitioner-client relationship within the three years immediately preceding the incident of physical harm.
   2.  a.  Within twenty-one days of receipt of a complaint that alleges a violation of speech, expressive activity, or association protected under subsection 1 that may result in revocation of a medical practitioner’s or health care institution’s license, certification, or registration, the department, licensing board, or other licensing or certifying entity shall provide the medical practitioner or health care institution with a copy of the complaint.
   b.  If the department, licensing board, or other licensing or certifying entity fails to provide a copy of the complaint to the medical practitioner or health care institution within twenty-one days of receipt, the department, licensing board, or other certifying entity shall pay the medical practitioner or health care institution an administrative penalty of five hundred dollars for each day of noncompliance.
   3.  The state shall not contract with, recognize, approve, or require a medical practitioner or health care institution to obtain a certification or credential issued or approved by the department of health and human services, a licensing board designated under chapter 147, or any other licensing or certifying entity of a medical practitioner or health care institution that revokes or refuses to issue a certification or credential to the medical practitioner or health care institution if the medical practitioner or health care institution is in compliance with this chapter and did not provide medical advice or treatment to a patient or client.
   Sec. 7.  NEW SECTION.  135S.6  Unlawful interference —— relief.
   1.  It is unlawful for a person to interfere or attempt to interfere with the exercise of conscience not to participate in a health care service, or in the whistleblower or free speech rights and protections under this chapter, whether by duress, coercion, or any other means.
   2.  A health care institution or medical practitioner that alleges injury by unlawful interference by a person under this chapter may bring a civil action in a court of competent jurisdiction. If a court of competent jurisdiction finds a person liable under this section, the court may order any of the following:
   a.  Injunctive relief, when appropriate, including but not limited to reinstatement of a medical practitioner to the medical practitioner’s previous position, or reinstatement or reactivation of licensure or certification of a medical practitioner, or reactivation or reinstatement of licensure of a health care institution.
   b.  Monetary damages for injuries suffered.
   c.  Reasonable costs and attorney fees.
   3.  The rights, remedies, and prohibitions contained in this chapter shall be in addition to and cumulative of any other right, remedy, or prohibition accorded by common law or state or federal law. This chapter shall not be construed to deny, abrogate, or impair any such common law or statutory right, remedy, or prohibition.
   4.  Any additional burden or expense to another medical practitioner or health care institution arising from the exercise of conscience pursuant to this chapter shall not be a defense to a violation of this chapter.
   5.  A person shall not bring a civil action against a person who declines to use or purchase a health care service from a medical practitioner or health care institution because of the medical practitioner’s or health care institution’s exercise of conscience under this chapter.
   Sec. 8.  NEW SECTION.  135S.7  Severability.
   If any provision of this chapter or its application to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.>
   2.  Title page, lines 1 and 2, by striking <practitioners, health care institutions, and health care payors> and inserting <practitioners and health care institutions,>

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JEFF TAYLOR