HOUSE BILL 525

54th legislature - STATE OF NEW MEXICO - first session, 2019

INTRODUCED BY

Gregg Schmedes and Rod Montoya

AN ACT

RELATING TO HEALTH CARE; ENACTING THE HEALTH CARE FREEDOM OF CONSCIENCE ACT; PROVIDING FOR CIVIL DAMAGES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. [NEW MATERIAL] SHORT TITLE.--This act may be cited as the "Health Care Freedom of Conscience Act".

     SECTION 2. [NEW MATERIAL] LEGISLATIVE FINDINGS-- PURPOSE.--

          A. The legislature finds that:

                (1) the public policy of the state is to respect and protect the fundamental right of conscience of persons that provide health care services; and

                (2) without comprehensive protection, health care rights of conscience may be violated in various ways, including without limitation 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 certify.

          B. The purpose of the Health Care Freedom of Conscience Act is to:

                (1) protect as a basic civil right the right of health care providers, health care institutions and health care payers to decline to counsel, advise, provide, perform, assist or participate in providing or performing health care services that may violate the conscience of the health care provider, health care institution or health care payer; and

                (2) prohibit all forms of discrimination, disqualification, coercion, disability or liability upon a health care provider, health care institution and health care payer that declines to provide or perform any health care service that violates the conscience of the health care provider, health care institution or health care payer.

     SECTION 3. [NEW MATERIAL] DEFINITIONS.--As used in the Health Care Freedom of Conscience Act:

          A. "conscience" means the religious, moral or ethical principles held by a health care provider, health care institution or health care payer that may be determined by reference to existing or proposed religious, moral or ethical guidelines, mission statements, constitutions, bylaws, articles of incorporation, regulations or other relevant documents;

          B. "discriminate" means an adverse action taken in retaliation as a result of the conscience of an individual or entity, including:

                (1) termination;

                (2) transfer;

                (3) refusal of staff privileges;

                (4) denial, deprivation or disqualification of licensure or certification;

                (5) adverse administrative or disciplinary action;

                (6) demotion;

                (7) loss of career specialty;

                (8) reassignment to a different shift;

                (9) reduction of wages or benefits;

                (10) refusal to award any grant, contract or other program;

                (11) refusal to provide residency training opportunities;

                (12) refusal to authorize the creation, expansion, improvement, acquisition, affiliation or merger; or

                 (13) other penalty or disciplinary retaliatory action;

          C. "employer" means an individual or entity that pays for or provides health benefits or health insurance coverage as a benefit to the employees of the individual or entity;

          D. "health care institution" means a public or private organization, corporation, partnership, sole proprietorship, association, agency, network, joint venture or other entity involved in providing health care services, including:

                (1) a hospital;

                (2) a clinic;

                (3) a medical center;

                (4) an ambulatory surgical center;

                (5) a private physician's office;

                (6) a pharmacy;

                (7) a nursing home;

                (8) a medical school that is part of an institution of higher education;

                (9) a nursing school;

                (10) a medical training facility;

                (11) a person, association, corporation or other entity attempting to establish a new health care institution or operating an existing health care institution; or

                (12) other institution or location where health care services are provided to a person;

          E. "health care payer" means an entity or employer that contracts, pays or arranges for payment of a health care service or product, including without limitation:

                (1) a health management organization;

                (2) a health plan;

                (3) an insurance company;

                (4) a management services organization;

                (5) a person, association, corporation or other entity that owns, operates, supervises or manages a health care payer; or

                (6) a person, association, corporation or other entity attempting to establish a new health care payer or operating an existing health care payer;

          F. "health care provider" means an individual who may be asked to participate in any way in a health care service, including:

                (1) a physician;

                (2) a physician assistant;

                (3) a nurse;

                (4) a nurse's aide;

                (5) a medical assistant;

                (6) a health care institution employee;

                (7) a pharmacist;

                (8) a researcher;

                (9) a student or faculty of a medical school or nursing school;

                (10) a counselor;

                (11) a social worker; or

                (12) any professional, paraprofessional or other individual who furnishes or assists in the providing or performing of health care services;

          G. "health care service" means a phase of patient medical care, treatment or procedure, including without limitation:

                (1) patient referral;

                (2) counseling;

                (3) therapy;

                (4) testing;

                (5) research;

                (6) instruction;

                (7) prescribing, dispensing or administering of any drug, medication or device;

                (8) surgery; or

                (9) other care or treatment provided by a health care provider or health care institution; and

          H. "office" means the office of superintendent of insurance.

     SECTION 4. [NEW MATERIAL] HEALTH CARE PROVIDERS--FREEDOM OF CONSCIENCE.--

          A. A health care provider:

                (1) has the right to not participate in a health care service that violates the health care provider's conscience; and

                (2) shall not be required to participate in a health care service that violates the health care provider's conscience.

          B. A health care provider shall not be civilly, criminally or administratively liable for declining to participate in a health care service that violates the health care provider's conscience.

          C. Except as provided in Subsections D and E of this section, a person shall not discriminate against a health care provider in any manner based upon the person declining to participate in a health care service that violates the health care provider's conscience.

          D. Action taken by a health care institution or employer of a health care provider is not discrimination under the Health Care Freedom of Conscience Act if the action constitutes a reasonable accommodation to the conscience rights of the health care provider.

          E. The provisions of this section shall not be construed to prohibit an employer or potential employer of a health care provider from designating the participation in a health care service as a fundamental requirement for a position by providing a written certification that the health care service is directly related and essential to a core purpose of the employer.

          F. The provisions of this section apply exclusively to individual health care services and shall not be construed to authorize a health care provider to refuse to provide health care services to a patient based on the identity or status of the patient.

     SECTION 5. [NEW MATERIAL] HEALTH CARE INSTITUTIONS--FREEDOM OF CONSCIENCE.--

          A. Except as provided in Subsection D of this section, a health care institution:

                (1) has the right to not participate in a health care service that violates the conscience of the health care institution; and

                (2) shall not be required to participate in a health care service that violates the conscience of the health care institution.

          B. A person, public institution, private institution or public official shall not discriminate against a health care institution in any manner based upon declining to provide or participate in a health care service that violates the conscience of the health care institution.

          C. A public official, agency, institution or entity shall not deny any form of aid, assistance, grant or benefit in any manner to coerce, disqualify or discriminate against a health care institution in any manner based upon the health care institution declining to provide or participate in a health care service that violates the conscience of the health care institution.

          D. The provisions of Subsection A of this section apply only if a health care institution:

                (1) promptly informs the patient or an individual authorized to make health care decisions for the patient that the health care institution will not provide the health care services for reasons of conscience;

                (2) if a request for transfer is made by the patient or on behalf of the patient, makes all reasonable efforts to assist in a prompt transfer of the patient and provides continuing care to the patient until a transfer can be effected or until a determination has been made that a transfer cannot be effected; and

                (3) if a transfer cannot be effected, the health care institution shall not be compelled to provide or participate in a health care service that violates the conscience of the health care institution.

          E. The provisions of this section apply exclusively to individual health care services and do not authorize a health care provider to refuse to provide health care services to a patient based on the identity or status of the patient.

     SECTION 6. [NEW MATERIAL] HEALTH CARE PAYERS--FREEDOM OF CONSCIENCE.--

          A. Except as provided in Subsections C and D of this section, a health care payer:

                (1) has the right to decline to pay for a health care service that violates the conscience of the health care payer; and

                (2) shall not be required to pay or arrange for payment of a health care service that violates the conscience of the health care payer.

          B. A person, public institution, private institution or public official shall not discriminate against a health care payer in any manner based upon declining to pay or arrange for payment of a health care service that violates the conscience of the health care payer.

          C. A health care payer shall file its conscience policies annually with the office as follows:

                (1) the annual filing shall include:

                     (a) a comprehensive list by billing code of any and all products, services and procedures that the health care payer shall not make payment for reasons of conscience; and

                     (b) other relevant information that may be required by rule of the office;

                (2) a copy of the filing shall be provided annually to each beneficiary of the health care payer and made available to the general public by posting the information on the website of the health care payer; and

                (3) an annual filing shall not be required for any year in which the health care payer will not exercise its conscience rights under the Health Care Freedom of Conscience Act.

          D. A health care payer shall not use a conscience objection to:

                (1) refuse to contract with a health care provider, health care institution or beneficiary; or

                (2) refuse or reduce payments:

                     (a) to a beneficiary, health care provider or health care institution for any product, service or procedure that is not included in the annual filing required in Subsection C of this section; or

                     (b) for health care services to a patient based upon the identity or status of the patient.

          E. A health care payer shall not compel by undue influence, fraud or duress a beneficiary, health care provider or health care institution to accept a contract or contract amendment that violates the conscience of the beneficiary, health care provider or health care institution. 

          F. The office may issue rules and take other actions as necessary or appropriate to enforce this section.

     SECTION 7. [NEW MATERIAL] APPROPRIATE SERVICES--LIFE-SUSTAINING TREATMENT.--The provisions of the Health Care Freedom of Conscience Act shall not be construed to authorize, condone or approve withholding appropriate provision of health care services or life-sustaining treatment to patients.

     SECTION 8. [NEW MATERIAL] CIVIL REMEDIES.--

          A. A civil action for damages or injunctive relief, or both, may be brought for a violation of the Health Care Freedom of Conscience Act.

          B. A claim that the violation of the Health Care Freedom of Conscience Act was necessary to prevent additional burden or expense on any other health care provider, health care institution, health care payer, individual or patient shall not be an affirmative defense to a violation of the Health Care Freedom of Conscience Act.

          C. Unless protected by the state's or tribal sovereign immunity, an individual, association, corporation, entity or health care institution injured by a public individual, private individual, association, agency, entity or corporation as a result of any conduct prohibited by the Health Care Freedom of Conscience Act may commence a civil action.

          D. Upon a finding of a violation of the Health Care Freedom of Conscience Act, an aggrieved party shall be entitled to recover treble damages, including damages related to:

                (1) pain and suffering sustained by the individual, association, corporation, entity or health care institution;

                (2) the cost of the civil action; and

                (3) reasonable attorney fees.

          E. In addition to the costs of the civil action and reasonable attorney fees, the total amount of damages shall not be less than five thousand dollars ($5,000) for each violation of the Health Care Freedom of Conscience Act.

          F. Damages shall be cumulative and are not exclusive of other remedies that may be afforded under state or federal law.

          G. A court may award injunctive relief, including ordering the reinstatement of a health care provider to the health care provider's prior position.

     SECTION 9. [NEW MATERIAL] APPLICABILITY.--The Health Care Freedom of Conscience Act is supplemental to existing conscience protections and does not affect the existing conscience protection laws within the state.

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