79R7929 YDB-D
By: Laubenberg H.B. No. 2061
A BILL TO BE ENTITLED
AN ACT
relating to the right of health care facilities, health insurers,
and health care providers to object to providing or participating
in the provision of certain procedures.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle H, Title 2, Health and Safety Code, is
amended by adding Chapter 172 to read as follows:
CHAPTER 172. RIGHT TO OBJECT TO PROVIDING OR PARTICIPATING IN
CERTAIN PROCEDURES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 172.001. DEFINITIONS. In this chapter:
(1) "Health care service" means providing or
participating in the provision of a medical diagnosis, counseling,
treatment, procedure, diagnostic test, device or medication, or
drug or other substance intended to affect the physical or mental
condition of an individual. The term includes research or
experimentation for the purpose of improving or refining the
provision of a health care service.
(2) "Health care facility" means:
(A) a clinical laboratory;
(B) a research laboratory;
(C) a county medical care facility;
(D) a surgical outpatient facility, including an
ambulatory surgical center licensed under Chapter 243;
(E) an institution licensed under Chapter 242;
(F) a hospital licensed under Chapter 241;
(G) a hospice or hospice residence, including a
special care facility licensed under Chapter 248, an end stage
renal facility licensed under Chapter 251, and a home and community
support services agency licensed under Chapter 142;
(H) a rehabilitative or other long-term care
facility, including a continuing care facility certified under
Chapter 246, an assisted living facility licensed under Chapter
247, and an intermediate care facility licensed under Chapter 252;
(I) the office of a private physician who is
licensed to practice medicine in this state;
(J) a medical clinic;
(K) a public or private institution that provides
health care services to an individual;
(L) a teaching institution that provides health
care services to an individual;
(M) a pharmacy licensed under Chapter 560,
Occupations Code, that provides health care services to an
individual;
(N) a corporation, partnership, sole
proprietorship, limited liability company, or other legal entity
that provides health care services to an individual, including a
facility that is required to be licensed or is regulated under Title
4; or
(O) a facility or agency listed in Paragraphs
(A)-(N) that is located at an institution of higher education or
other educational institution.
(3) "Health insurer" means an entity regulated under
the Insurance Code that through a health benefit plan provides or
arranges for benefits for a health care service, including an
insurance company and a health maintenance organization.
(4) "Health care provider":
(A) includes:
(i) a person who is licensed, certified, or
otherwise authorized by the laws of this state to provide a health
care service to another person in the ordinary course of business or
practice of a profession;
(ii) a student providing a health care
service at a health care facility or medical facility; and
(iii) another person who is employed by or
under contract with a health care facility or medical facility and
who directly provides or participates in the provision of a health
care service; and
(B) does not include:
(i) a sanitarian registered under Chapter
1953, Occupations Code; or
(ii) a veterinarian licensed under Chapter
801, Occupations Code.
(5) "Participate" means, at a minimum, to counsel,
refer, perform, administer, prescribe, dispense, treat, withdraw,
diagnose, test, evaluate, train, research, prepare, provide
medical advice, or directly provide material or physical assistance
related to the provision of a health care service.
(6) "Public health emergency" means a condition or
situation that presents an immediate threat to the public health,
safety, or welfare and requires immediate action to preserve the
public health, safety, or welfare.
[Sections 172.002-172.050 reserved for expansion]
SUBCHAPTER B. RIGHT OF HEALTH CARE FACILITY
Sec. 172.051. RIGHT TO OBJECT. Subject to Chapter 166, a
health care facility may in accordance with this chapter withdraw
from providing a health care service or may refuse to provide or
participate in the provision of a health care service on ethical,
moral, or religious grounds as provided by the facility's
organizational documents, charter, bylaws, or an adopted mission
statement.
Sec. 172.052. RIGHT TO OBJECT PROHIBITED IN CERTAIN
CIRCUMSTANCES. A health care facility may not assert an objection
under Section 172.051:
(1) during a public health emergency;
(2) during an emergency in which in the reasonable
medical judgment of an attending physician or medical director of
the health care facility, a patient's condition:
(A) requires immediate action to prevent the
patient's death; or
(B) is such that a delay would create a serious
risk of substantial and irreversible impairment of a major bodily
function to that patient; or
(3) based on a patient's:
(A) race, color, religion, sex, or national
origin, within the meaning of Section 703 of the federal Civil
Rights Act of 1964 (42 U.S.C. 2000e-2);
(B) age, within the meaning of Section 15 of the
federal Age Discrimination in Employment Act of 1967 (29 U.S.C.
633a); or
(C) disability, within the meaning of Section 501
of the federal Rehabilitation Act of 1973 (29 U.S.C. 791) and
Sections 102 through 104 of the federal Americans with Disabilities
Act of 1990 (42 U.S.C. 12112 to 12114).
Sec. 172.053. HEALTH CARE FACILITY LIABILITY AND
ELIGIBILITY. A health care facility's objection to providing or
participating in the provision of a health care service under
Section 172.051 may not:
(1) be a basis for civil, criminal, or administrative
liability; or
(2) affect the awarding of a grant, contract, or
program to the health care facility unless providing or
participating in the provision of the health care service objected
to is the exclusive purpose of the grant, contract, or program.
[Sections 172.054-172.100 reserved for expansion]
SUBCHAPTER C. RIGHT OF HEALTH INSURER
Sec. 172.101. RIGHT TO OBJECT. Notwithstanding any other
law, a health insurer may in accordance with this chapter refuse to
offer or provide a benefit for a health care service on ethical,
moral, or religious grounds as provided by the insurer's articles
of incorporation, bylaws, or an adopted mission statement.
Sec. 172.102. RIGHT TO OBJECT PROHIBITED IN CERTAIN
CIRCUMSTANCES. A health insurer may not refuse to offer or provide
a benefit for a health care service under Section 172.101 if the
benefit is:
(1) specifically covered under the contract, policy,
or certificate issued by the insurer; or
(2) required to be provided by the insurer under the
Insurance Code.
Sec. 172.103. HEALTH INSURER LIABILITY AND ELIGIBILITY. A
health insurer's refusal to offer or provide a benefit for a health
care service under Section 172.101 may not:
(1) be a basis for civil, criminal, or administrative
liability; or
(2) affect the awarding of a contract, policy, or
certificate to the health insurer unless offering or providing the
benefit objected to is expressly required under the contract,
policy, or certificate or under the Insurance Code.
[Sections 172.104-172.150 reserved for expansion]
SUBCHAPTER D. RIGHT OF HEALTH CARE PROVIDER
Sec. 172.151. RIGHT TO OBJECT. (a) Notwithstanding any
other law, a health care provider may in accordance with this
chapter and as a matter of conscience object to providing or
participating in the provision of a health care service on ethical,
moral, or religious grounds.
(b) A health care provider may assert an objection under
this section:
(1) at the time the provider is offered employment;
(2) at the time the health care provider adopts an
ethical, moral, or religious belief system that conflicts with
providing or participating in the provision of a health care
service; or
(3) not later than 24 hours after receiving notice
that the provider is scheduled to participate in a health care
service to which the provider objects on ethical, moral, or
religious grounds.
Sec. 172.152. WRITTEN NOTICE TO EMPLOYER REQUIRED. (a) A
health care provider that exercises the right to object provided
under Section 172.151 shall notify the provider's employer in
writing of the objection. The written notice must:
(1) be given directly to the health care provider's
supervisor; and
(2) include a statement explaining the provider's
objection on ethical, moral, or religious grounds and any health
care service to which the provider specifically objects to
providing, or participating in the provision of, under this
chapter.
(b) A written notice under this section is valid while the
health care provider is employed by the employer or until rescinded
in writing by the health care provider.
(c) An employer shall retain in the employer's records the
written notice provided by a health care provider under this
section while the health care provider is employed by the employer.
Sec. 172.153. EMPLOYER RESPONSIBILITIES; STAFF PRIVILEGES.
(a) Following receipt of a written notice from a health care
provider under Section 172.152, an employer may not require the
provider to provide or participate in the provision of the health
care service or services to which the provider specifically objects
in the notice.
(b) If a health care provider asserts an objection under
this subchapter less than 24 hours before a scheduled health care
service, an employer shall make a reasonable effort to excuse the
provider from providing or participating in the provision of the
health care service or find a replacement for the provider. If a
replacement is unavailable and the health care provider cannot be
excused, the employer may require the health care provider to
provide or participate in the provision of that scheduled health
care service.
(c) A health care facility or other person may not refuse
staff privileges to a health care provider who asserts an objection
to providing or participating in the provision of a health care
service under this subchapter, unless participation in that health
care service is listed as part of the normal duties in the posting
for the staff privileges.
Sec. 172.154. EDUCATIONAL INSTITUTION RESPONSIBILITIES. A
medical school or other institution that conducts education or
training programs for health care providers may not refuse
admission to an individual or penalize an individual who has filed
with the school or institution a written objection in the manner
described by Section 172.152 to providing or participating in the
provision of a health care service.
Sec. 172.155. RIGHT TO OBJECT PROHIBITED IN CERTAIN
CIRCUMSTANCES. A health care provider may not assert an objection
under this subchapter:
(1) during a public health emergency;
(2) under circumstances in which a patient's
condition, in the reasonable medical judgment of an attending
physician or medical director of the health care facility that
employs the health care provider, requires immediate action to
prevent the patient's death or is such that a delay would create a
serious risk of substantial and irreversible impairment of a major
bodily function to that patient and another qualified health care
provider is not available to provide that health care service; or
(3) based on a patient's:
(A) race, color, religion, sex, or national
origin, within the meaning of Section 703 of the federal Civil
Rights Act of 1964 (42 U.S.C. 2000e-2);
(B) age, within the meaning of Section 15 of the
federal Age Discrimination in Employment Act of 1967 (29 U.S.C.
633a); or
(C) disability, within the meaning of Section 501
of the federal Rehabilitation Act of 1973 (29 U.S.C. 791) and
Sections 102 through 104 of the federal Americans with Disabilities
Act of 1990 (42 U.S.C. 12112 to 12114).
Sec. 172.156. DUTY UNDER OTHER LAW. This chapter does not
relieve a health care provider from a duty that exists under other
law related to standards of acceptable health care practice and
procedure to inform a patient of:
(1) the patient's condition and prognosis; and
(2) the risks to the patient of receiving health care
services for the condition.
Sec. 172.157. HEALTH CARE PROVIDER LIABILITY AND
ELIGIBILITY. A health care provider's objection to providing or
participating in the provision of a health care service in
accordance with this subchapter may not be the basis for:
(1) civil liability;
(2) a criminal action;
(3) an administrative action or an action affecting
the provider's license;
(4) termination of employment or refusal of staff
privileges at a health care facility, except as provided by Section
172.158; or
(5) disciplinary action, penalties, or
discrimination, including denial of promotions and raises in wages.
Sec. 172.158. REQUIREMENTS FOR TERMINATION OF CERTAIN
HEALTH CARE PROVIDERS. (a) In this section, "regular or
substantial portion" means 50 percent or more of the health care
provider's daily or weekly hours of duty.
(b) Subject to a collective bargaining agreement that
covers a health care provider, an employer may terminate the
employment of a health care provider who asserts an objection under
this subchapter to providing or participating in the provision of a
health care service that at the time the objection is asserted
constitutes a regular or substantial portion of the health care
provider's current and defined position. An employer shall give
not less than 60 days' notice before terminating the employment
under this section.
Sec. 172.159. CIVIL LIABILITY. (a) A civil action for
damages or reinstatement of employment, or both, may be brought by a
health care provider against a person, including a governmental
agency, health care facility, or other employer, that penalizes or
discriminates against the provider in promotion, transfer, a term
or condition of employment, licensing, or granting of staff
privileges or appointments for the provider's assertion of an
objection under this subchapter.
(b) Damages awarded in a civil action brought under this
section are limited to the amount of actual damages and attorney's
fees.
(c) 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 care provider in
promotion, transfer, a term or condition of employment, licensing,
or granting of staff privileges or appointments.
Sec. 172.160. RIGHTS IN ADDITION. The rights provided
under this subchapter are in addition to the rights provided under
Chapter 103, Occupations Code.
SECTION 2. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2005.