Senate Bill No. 41
(By Senator Barnes)
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[Introduced January 11, 2006; referred to the Committee
on Health and Human Resources; and then to the Committee on the
Judiciary.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §16-5U-1, §16-5U-2,
§16-5U-3, §16-5U-4, §16-5U-5, §16-5U-6 and §16-5U-7, all
relating to establishing the Health Care Rights of Conscience
Act.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §16-5U-1, §16-5U-2,
§16-5U-3, §16-5U-4, §16-5U-5, §16-5U-6 and §16-5U-7, all to read as
follows:
ARTICLE 5U. HEALTH CARE RIGHTS OF CONSCIENCE ACT.
§16-5U-1. Title.
This article may be known and cited as the "Health Care Rights
of Conscience Act."
§16-5U-2. Legislative findings and purposes.
(a) It is the public policy of West Virginia to respect and
protect the fundamental right of conscience of all individuals who
provide health care services.
(b) 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, and refusal to license or
refusal to certify.
(c) It is the purpose of this article to protect as a basic
civil right the right of all health care providers, institutions
and payers to decline to counsel, advise, pay for, provide,
perform, assist or participate in providing or performing health
care services that violate their consciences. Such health care
services may include, but are not limited to, abortion, artificial
birth control, artificial insemination, assisted reproduction human
cloning, euthanasia, human embryonic stem cell research, fetal
experimentation, physician-assisted suicide and sterilization.
(d) Accordingly, it is the purpose of this article to prohibit
all forms of discrimination, disqualification, coercion, disability
or liability upon such health care providers, institutions and
payers that decline to perform any health care service that
violates their conscience.
§16-5U-3. Definitions.
(a) "Health care service" means any phase of patient medical
care, treatment or procedure, including, but not limited to, the
following: Patient referral, counseling, therapy, testing,
diagnosis or prognosis, research, instruction, prescribing,
dispensing or administering any device, drug, or medication,
surgery, or any other care or treatment rendered by health care
providers of health care institutions.
(b) "Health care provider" means any individual who may be
asked to participate in any way in a health care service,
including, but not limited to: A physician, physician's assistant,
nurse, nurses' aide, medical assistant, hospital employee, clinic
employee, nursing home employee, pharmacist, pharmacy employee,
researcher, medical or nursing school faculty, student or employee,
counselor, social worker, or any professional, paraprofessional, or
any other person who furnishes, or assists in the furnishing of
health care services.
(c) "Health care institution" means any public or private
organization, corporation, partnership, sole proprietorship,
association, agency, network, joint venture or other entity that is
involved in providing health care services, including, but not
limited to: Hospitals, clinics, medical centers, ambulatory
surgical centers, private physician's offices, pharmacies, nursing
homes, university medical schools and nursing schools, medical
training facilities, or other institutions or locations wherein health care services are provided to any person.
(d) Health care payer means any entity or employer that
contracts for, pays for, or arranges for the payment of, in whole
or in part, any health care or product, including, but not limited
to, health maintenance organizations, health plans, insurance
companies or management services organizations.
(e) "Employer" means any individual or entity that pays for or
provides health benefits or health insurance coverage as a benefit
to its employees, whether through a third party, a health
maintenance organization, a program of self insurance, or some
other means.
(f) "Participate" in a health care service means to counsel,
advise, provide, perform, assist in, refer for, admit for purposes
of providing, or participate in providing, any health care service
or any form of such service.
(g) "Pay" or "payment" means pay, contract for, or otherwise
arrange for the payment of, in whole or in part.
(h) "Conscience" means the religious, moral or ethical
principles held by a health care provider, the health care
institution or health care payer. For purposes of this article, a
health care institution or health care payer's conscience shall be
determined by reference to its existing or proposed religious,
moral or ethical guidelines, mission statement, constitution,
bylaws, articles of incorporation, regulations or other relevant documents.
§16-5U-4. Rights of conscience of health care providers.
(a)
Rights of conscience. -- A health care provider has the
right not to participate, and no health care provider shall be
required to participate, in a health care service that violates his
or her conscience.
(b)
Immunity from liability. -- No health care provider shall
be civilly, criminally, or administratively liable for declining to
participate in a health care service that violates his or her
conscience.
(c)
Discrimination. -- It shall be unlawful for any person,
health care provider, health care institution, public or private
institution, public official, or any board which certifies
competency in medical specialties to discriminate against any
health provider in any manner based on his or her declining to
participate in a health care service that violates his or her
conscience. For purposes of this article, discrimination includes,
but is not limited to: 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, disciplinary or
retaliatory action.
§16-5U-5. Rights of conscience of health care institutions.
(a)
Rights of conscience. -- A health care institution has the
right not to participate, and no health care institution shall be
required to participate, in health care service that violates its
conscience.
(b)
Immunity from liability. -- A health care institution that
declines to provide or participate in a health care service that
violates its conscience shall not be civilly, criminally, or
administratively liable if the institution provides a consent form
to be signed by a patient before admission to the institution
stating that it reserves the right to decline to provide or
participate in health care services that violate its conscience.
(c)
Discrimination. -- It shall be unlawful for any person,
public, or private institution, or public official to discriminate
against any health care institution, or any person, association,
corporation or other entity attempting to establish a new health
care institution or operating an existing health care institution,
in any manner, including, but not limited to, any denial,
deprivation or disqualification with respect to licensure; any aid
assistance, benefit or privilege, including staff privileges; or
any authorization, including authorization to create, expand,
improve, acquire, or affiliate or merge with any health care
institution, because such health care institution, or person,
association, or corporation planning, proposing, or operating a health care institution, declines to participate in a health care
service which violates the health care institution's conscience.
(d)
Denial of aid or benefit. -- It shall be unlawful for any
public official, agency, institution, or entity to deny any form of
aid, assistance, grants, or benefits, or in any other manner to
coerce, disqualify, or discriminate against any person,
association, corporation, or other entity attempting to establish
a new health care institution or operating an existing health care
institution because the existing or proposed health care
institution declines to participate in a health care service
contrary to the health care institution's conscience.
§16-5U-6. Rights of conscience of health care payers.
(a)
Rights of conscience. -- A health care payer has the right
to decline to pay, and no health care payer shall be required to
pay for or arrange for the payment of any health care service or
product that violates its conscience.
(b)
Immunity from liability. -- No health care payer and no
person, association, corporation, or other entity that owns,
operates, supervises, or manages a health care payer shall be
civilly or criminally liable by reason of the health care payer's
declining to pay for or arrange for the payment of any health care
service that violates its conscience.
(c)
Discrimination. -- It shall be unlawful for any person,
public or private institution, or public official to discriminate against any health care payer, or any person, association,
corporation, or other entity: (i) Attempting to establish a new
health care payer; or (ii) operating an existing health care payer,
in any manner, including, but not limited to, any denial,
deprivation, or disqualification with respect to licensure, aid,
assistance, benefit, privilege, or authorization, including, but
not limited to, any authorization to create, expand, improve,
acquire, or affiliate or merge with, any health care payer, because
a health care payer declines to pay for or arrange for the payment
of any health care service that violates its conscience.
(d)
Denial of aid or benefits. -- It shall be unlawful for any
public official, agency, institution, or entity to deny any form of
aid, assistance, grants or benefits, or in any other manner to
coerce, disqualify, or discriminate against any health care payer,
or any person, association, corporation or other entity attempting
to establish a new health care payer or operating an existing
health care payer because the existing or proposed health care
payer declines to pay for, or arrange for the payment of, any
health care service that is contrary to its conscience.
§16-5U-7. Civil Remedies.
(a) A civil action for damages or injunctive relief, or both,
may be brought for the violation of any provision of this article.
It shall not be a defense to any claim arising out of the violation
of this article that such violation was necessary to prevent additional burden or expense on any other health care provider,
health care institution, individual or patient.
(b)
Damage remedies. -- Any individual association,
corporation, entity or health care institution injured by any
public or private individual association, agency, entity or
corporation by reason of any conduct prohibited by this article may
commence a civil action. Upon finding a violation of this article,
the aggrieved party shall be entitled to recover threefold actual
damages, including pain and suffering, sustained by such
individual, association, corporation, entity or health care
institution, the costs of the action, and reasonable attorney's
fees; but in case shall recovery be less than five thousand dollars
for each violation in addition to costs of the action and
reasonable attorney's fees. These damage remedies shall be
cumulative, and not exclusive of other remedies afforded under any
other state or federal law.
(c)
Injunctive remedies. -- The court in 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.
NOTE: The purpose of this bill is to establish
the "Health
Care Rights of Conscience Act" in this state.
This article is new; therefore, strike-throughs and
underscoring have been omitted.