ENSURING COMPLIANCE WITH HEALTHCARE FREEDOM OF CONSCIENCE ACT. Model Legislation & Policy Guide For the 2012 Legislative Year

Transcription

1 ENSURING COMPLIANCE WITH HEALTHCARE FREEDOM OF CONSCIENCE ACT Model Legislation & Policy Guide For the 2012 Legislative Year

2 INTRODUCTION Protecting the basic civil right of a healthcare professional to provide health care for her patients without violating her conscience is common-sense. However, even where state and federal laws protect conscience rights, coercion and discrimination against healthcare professionals with conscientious objections are all-too commonplace. For example: A nurse at Mt. Sinai hospital in New York, Cathy DeCarlo was forced to participate in a late-term abortion despite her conscientious objection. A federal court dismissed her claim, saying Nurse DeCarlo cannot bring suit by herself for a violation of federal law. Instead, the court ruled that the Department of Health and Human Services (HHS) can (if they choose to) pursue her case under regulations enacted by the George W. Bush Administration (but, later partially rescinded by the Obama Administration). Nine nurses at Nassau University Medical Center in Long Island, New York were suspended for refusing to participate in an abortion. Only after the nurses union intervened did the hospital drop its disciplinary charges and apologize to the nurses. Vanderbilt University required applicants to its nursing program to take an abortion pledge. After a complaint was filed with HHS for a violation of federal law, Vanderbilt changed its abortion pledge policy. Sadly, this represents only a small sampling of the coercion and discriminatory practices against healthcare professionals who wish to provide medical care without violating their ethical or moral standards and/or their religious beliefs. Coercion and discrimination have continued in the face of state and federal laws that purport to protect conscience rights. Certification of compliance ensures that healthcare institutions receiving taxpayer funding are knowledgeable of state and federal laws protecting conscience rights, have policies in place to abide by those laws, and incentive to protect not coerce or discriminate against healthcare professionals conscience rights. Protecting the conscience rights of healthcare professionals is important to Americans. According to poll results in May 2011, for 77 percent of American adults it is either very or Ensuring Compliance with Healthcare 2 Americans United for Life

3 somewhat important to them that healthcare professionals in the U.S. are not forced to participate in procedures or practices to which they have moral objections. 1 Moreover, there is an important public health interest in ensuring the protection of conscience rights; institutions forcing healthcare professionals to choose between their consciences and their careers will only exacerbate the current healthcare provider shortage. In a survey conducted in 2008, 91 percent of faith-based physicians agreed with the statement, I would rather stop practicing medicine altogether than be forced to violate my conscience. 2 To ensure meaningful protection for healthcare freedom of conscience, and prevention of coercion and discriminatory practices, AUL has drafted the Healthcare Freedom of Conscience Certification of Compliance Act. For more information and drafting assistance, please contact AUL s Legislative Coordinator at (202) or Legislation@AUL.org. DENISE M. BURKE, ESQ. Vice President of Legal Affairs Americans United for Life 1 See Freedom2Care.org, May 2011: National poll shows majority support health care conscience rights in law, (last visited Aug. 12, 2011). Only 16 percent said it is not important. 2 See Freedome2Care.org, Two National Polls Reveal Broad Support for Conscience Rights in Health Care, (last visited Aug. 12, 2011). Ensuring Compliance with Healthcare 3 Americans United for Life

4 ENSURING COMPLIANCE WITH HEALTHCARE FREEDOM OF CONSCIENCE ACT HOUSE/SENATE BILL No. By Representatives/Senators Section 1. Title. This Act may be known and cited as the Ensuring Compliance with Healthcare Freedom of Conscience Act. Section 2. Legislative Findings and Purposes. (a) It is the public policy of [Insert name of State] to respect and protect the fundamental right of conscience of all individuals who provide healthcare services. (b) Without comprehensive protection, healthcare 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 Act to ensure compliance with the protection of the basic civil right of all healthcare providers to decline to counsel, advise, pay for, provide, perform, assist, or participate in providing or performing healthcare services that violate their consciences as protected by state and federal laws. [Such healthcare 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, physicianassisted suicide, and sterilization.] (d) Accordingly, it is the purpose of this Act to ensure that state and federal funds are not used to promote discrimination and are not dispersed to institutions that contrary to state and federal laws - discriminate, disqualify, coerce, disable, or make liable healthcare providers, that decline to perform [any healthcare service] that violates their consciences. Ensuring Compliance with Healthcare 4 Americans United for Life

5 Section 3. Definitions. For the purposes of this Act only: (a) Conscience means the religious, moral, or ethical principles held by a healthcare provider. (b) Department means the [Insert name of State] Department of [Insert name of appropriate state department or agency, responsible for state healthcare contracts]. (c) Healthcare 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 healthcare providers or healthcare institutions. (d) Healthcare provider means any individual who may be asked to participate in any way in a healthcare service, including, but not limited to, the following: 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, healthcare services. (e) Healthcare institution means any public or private organization, corporation, partnership, sole proprietorship, association, agency, network, joint venture, or other entity that is involved in providing healthcare 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 healthcare services are provided to any person. Section 4. Certification of compliance. Every healthcare institution that contracts with, or receives a grant from, the Department to provide healthcare services in this State shall certify annually and in writing on forms provided by the Department that it has complied with the requirements of [List all applicable federal and state laws, regulations, and/or administrative rules protecting healthcare conscience] 3 and 3 AUL may be contacted for assistance in compiling a comprehensive list of federal and state healthcare protections. Ensuring Compliance with Healthcare 5 Americans United for Life

6 submit a copy of this written certification to the Department, along with a written description of the policies the institution has adopted to ensure that it complies with the federal and state laws, regulations, and administrative rules protecting healthcare providers exercise of their individual consciences. Certifications shall be made by an officer or other individual authorized to bind the healthcare institution. Section 5. Notification of Certification Requirement The [Department] shall notify funding recipients of the certification requirement at the time of the award through the [Request for Proposal, Request for Agreement, Provider Agreement, or other appropriate terms] contract, guidance, or other public announcement of the availability of funding. Recipients shall not construe anything in this section to mean that a healthcare institution is in any way exempt from providing the certification in the event the Department should fail to provide notification. Section 6. Monitoring program. (a) The [Secretary, Commissioner, or other appropriate term] of the Department shall establish and maintain a monitoring program designed to reduce the possibility of noncompliance with federal and state laws, regulations, and administrative rules protecting healthcare providers exercise of their individual consciences and to institute sanctions and other remedial measures where a violation of these laws, regulations, and administrative rules is substantiated. (b) The monitoring program shall establish an education campaign which shall include, but not be limited to, maintaining a website for healthcare institutions and providers explaining the federal and state laws, regulations, and/or administrative rules protecting healthcare conscience and the available processes for addressing a violation. (c) The monitoring program shall be designated to receive complaints of discrimination based on the federal and state laws, regulations, and/or administrative rules protecting healthcare conscience. The monitoring program will coordinate handling of complaints with the staff of the Departmental programs from which the entity with respect to whom a complaint has been filed receives funding. (d) The monitoring program shall be established no later than [six months] from the enactment of this legislation. Ensuring Compliance with Healthcare 6 Americans United for Life

7 Section 7. Sanctions. If a healthcare institution is found not to be in compliance with any federal or state law, regulation, or administrative rule protecting healthcare providers exercise of their individual consciences, the [Secretary, Commissioner, or other appropriate term] may cancel existing or approved contracts and/or grants for healthcare services with or withhold monies already allocated to or approved for the healthcare institution under the existing or approved contracts and/or grant(s) for healthcare services. The monies withheld from the healthcare institution under this subsection may be withheld until the healthcare institution is found to be in compliance with all federal and state laws, regulations, and administrative rules protecting healthcare providers exercise of their individual conscience and which are applicable to the institution. Section 8. Procedure for remedial action. (a) When a healthcare institution is found not to be in compliance with any federal or state law, regulation, or administrative rule protecting healthcare providers exercise of their individual consciences, the [Secretary, Commissioner, or other appropriate term] shall comply with the following procedures when cancelling an existing or approved contract or grant for healthcare services or when withholding any portion of the monies already allocated or approved under existing or approved contracts or grants. (b) The [Secretary, Commissioner, or other appropriate term] shall notify the healthcare institution, in writing and by certified mail, of the federal or state law, regulation, or administrative rule which the healthcare institution has not complied. (c) The [Secretary, Commissioner, or other appropriate term] shall give the healthcare institution thirty (30) days to demonstrate to the [Secretary, Commissioner, or other appropriate term] that the healthcare institution is in compliance with the federal or state law, regulation, or administrative rule cited in the written notice or to develop a corrective action plan to address the noncompliance. Upon request from the healthcare institution, the [Secretary, Commissioner, or other appropriate term] shall provide technical assistance to the healthcare institution in developing a corrective action plan. The healthcare institution shall have thirty (30) days from the date the technical assistance is provided to complete and submit the corrective action plan to the [Secretary, Commissioner, or other appropriate term] for approval. Ensuring Compliance with Healthcare 7 Americans United for Life

8 (d) The [Secretary, Commissioner, or other appropriate term] shall take no further action if the healthcare institution demonstrates compliance with the federal or state law, regulation, or administrative rule cited in the written notice. (e) The [Secretary, Commissioner, or other appropriate term] shall review and approve or disapprove the corrective action plan within thirty (30) days after the [Secretary, Commissioner, or other appropriate term] receives the corrective action plan. (f) If the [Secretary, Commissioner, or other appropriate term] approves the corrective action plan submitted by the healthcare institution, the institution has ninety (90) days after the date of approval to implement the corrective action plan. (g) If the healthcare institution fails to demonstrate compliance or fails to implement the corrective action plan as approved, the [Secretary, Commissioner, or other appropriate term] may cancel existing or approved contracts and/or grants for healthcare services with or withhold monies already allocated to or approved for the healthcare institution under the existing or approved contracts and/or grant(s) for healthcare services. Section 9. Civil remedies. A healthcare institution s certification of compliance shall not preclude any party that seeks to enforce its rights under any federal and state laws, regulations, and administrative rules protecting healthcare providers exercise of their individual consciences from bringing a civil action for injunctive relief and/or damages against the entity that allegedly commits the violation. Section 10. Severability. Any provision of this Act held to be invalid or unenforceable by its terms, or as applied to any person or circumstance, shall be construed so as give it the maximum effect permitted by law, unless such holding shall be one of utter invalidity or unenforceability, in which event such provision shall be deemed severable here from and shall not affect the remainder hereof or the application of such provision to other persons not similarly situated or to other, dissimilar circumstances. Ensuring Compliance with Healthcare 8 Americans United for Life

9 Section 11. Effective Date. This Act takes effect on [Insert date]. Ensuring Compliance with Healthcare 9 Americans United for Life

10 STATE OF THE STATES: WHERE ARE WE NOW? RIGHTS OF CONSCIENCE OVERVIEW Two states protect the civil rights of all healthcare providers, whether individuals, or institutions who conscientiously object to participating in any healthcare procedure or service: LA and MS. (MS law also protects public or private healthcare payers.) Forty-five states protect the civil rights of only certain healthcare professionals and/or institutions from participating in specific procedures (usually abortion only): AK, AZ, AR, CA, CO, CT, DE, FL, GA, HI, ID, IL, IN, IA, KS, KY, ME, MD, MA, MI, MN, MO, MT, NE, NV, NJ, NM, NY, NC, ND, OH, OK, OR, PA, RI, SC, SD, TN, TX, UT, VA, WA, WI, WV, and WY. Three states provide no protection for the civil rights of healthcare providers, institutions, or payers: AL, NH, and VT. Ensuring Compliance with Healthcare 10 Americans United for Life

11 More detailed information about the need and justification for rights of conscience protections for healthcare providers can be found in AUL s annual publication Defending Life 2011: A State by State Legal Guide to Abortion, Bioethics, and the End of Life. Defending Life 2011 is available online at AUL.org. For further information regarding this or other AUL policy guides, please contact: AMERICANS UNITED FOR LIFE th Street NW, Suite 410 Washington DC Fax Legislation@AUL.org Americans United for Life This policy guide may be copied and distributed freely as long as the content remains unchanged and Americans United for Life is referenced as the creator and owner of this content. Ensuring Compliance with Healthcare 11 Americans United for Life