HOUSE BILL No. 4309

March 5, 2015, Introduced by Reps. Gamrat, Courser, Hooker, Glenn, McBroom, Goike and Somerville 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 or the 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 health

 

care 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) If subdivisions (a) and (b) do not apply, 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 the patient or the patient's

 

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.

 

     Enacting section 1. This act takes effect 90 days after the

 

date it is enacted into law.