SB-0975, As Passed Senate, December 6, 2012

 

 

 

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

SENATE BILL NO. 975

 

 

 

 

 

 

 

 

 

 

 

 

 

     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 tenants 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,

 

nonprofit health care corporations, insurance companies, or

 

management services organizations. Health care payer does not

 

include an individual.

 

     (c) "Health care 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 (viii)

 

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 person or 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 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, conduct

 

medical or scientific research for, or facilitate payment 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. If a health

 

facility asserts as a matter of conscience an objection to

 

participating in a health care service under this section, the


 

health facility shall apply that objection equally to all patients

 

that it serves, subject to this act.

 

     (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's or a group of

 

patients' status, or a 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.

 

     (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, unless participating in the health

 

care service is an objective of the 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 payer.

 

     (3) A health care payer entity and any person that owns,

 

operates, supervises, or manages a health care payer entity 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 attempt 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 a

 

payer who is an individual and 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 payer

 

provided notice of his or her objection to that health care service

 

under this section before the service was rendered.

 

     (7) A payer who is an individual and 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 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) It 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 (3),

 

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 a health provider has an objection to

 

participating in a health care service as a matter of conscience.

 

An employer 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 include at least all of the following in a policy

 

required under this subsection:

 

     (a) A statement that a health provider will not be penalized

 

for expressing an objection to participating in a health care

 

service as a matter of conscience.

 

     (b) A process by which a health provider can 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 a health provider make his or her

 

request for an accommodation in writing.

 

     (c) A process by which the employer will give a written

 

acknowledgment of the health provider's request for an

 

accommodation under subdivision (b) within 24 hours after receipt

 

of that request. The employer shall include in the written

 

acknowledgment required under this subdivision a description of the


 

timeline for granting or denying the request for an accommodation.

 

     (d) A process by which the employer will give notice of the

 

granting or denying of the request for accommodation under

 

subdivision (b). If the request for accommodation is denied, the

 

employer shall give the notice in writing and shall include the

 

reasons for the denial.

 

     (2) An employer under subsection (1) 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 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. An employer under subsection (1) 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

 

a particular 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.

 

     (3) 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. 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. A request by a health

 

provider for accommodation under this subsection is subject to all

 

of the following:

 

     (a) The health provider shall make the request for

 

accommodation in writing and give the written request directly to

 

his or her supervisor. The health provider shall include in the

 

written request under this subdivision 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.

 

     (b) A health provider may make the request for accommodation

 

under any of the following conditions:

 

     (i) Upon being offered employment, entering into a contract, or

 

privileges being granted.

 

     (ii) At the time he or she adopts religious beliefs, moral

 

convictions, or ethical principles under which he or she objects as

 

a matter of conscience to participate in the health care service

 

described in this subsection.

 

     (iii) 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 described in

 

this subsection to which he or she objects as a matter of


 

conscience.

 

     (c) A county medical care facility or nursing home shall

 

retain a health provider's written request submitted under this

 

subsection 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 subsection 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.

 

     (d) A county medical care facility or nursing home shall

 

promptly grant or deny a health provider's request for

 

accommodation under this subsection. A county medical care facility

 

or nursing home shall submit a denial of a request for

 

accommodation under this subsection in writing and state the

 

reasons for the denial. Within 7 days after granting a health

 

provider's request for accommodation under this subsection, a

 

county medical care facility or nursing home 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 a health care service described in this subsection to which he

 

or she objects as a matter of conscience.

 

     (e) A county medical care facility or nursing home 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 described in

 

this subsection unless participation in that 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.

 

     (f) A county medical care facility or nursing home 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

 

county medical care facility or nursing home to have previously

 

requested or is currently requesting accommodation under this

 

section unless participation in a health care service described in

 

this subsection is a regular or substantial portion of the normal

 

course of duties for the employed or contracted position or under

 

staff privileges.

 

     (4) The protections afforded to a health provider under this

 

section do not apply to a health provider who has submitted to his

 

or her supervisor 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

 

professional 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 a patient's or a group of


 

patients' status or 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.

 

     (5) 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.

 

     (6) A health provider's objection to participating in a health

 

care service as described in subsection (1) or (3) 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.

 

     (7) Notwithstanding any law to the contrary, a county medical

 

care facility or nursing home that has granted an accommodation

 

under this section to a full-time health provider may include that

 

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 submitting a request for

 

an 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 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.