SB0323

SENATE BILL 323

55th legislature - STATE OF NEW MEXICO - first session, 2021

INTRODUCED BY

Gregg Schmedes and Rebecca Dow

AN ACT

RELATING TO HEALTH CARE; ENACTING THE HEALTH CARE WORKERS PROTECTION ACT; PROVIDING PENALTIES.

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 Workers Protection Act".

SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Health Care Workers Protection Act:

A. "conscience" means the ethical, philosophical, moral or religious beliefs or principles held by a medical practitioner, health care institution or health care payer. "Conscience" with respect to institutional entities or corporate bodies, as opposed to individual persons, is determined by reference to that entity or body's governing documents, including published religious, moral, ethical or philosophical guidelines or directives, mission statements, constitutions, articles of incorporation, bylaws, policies and regulations;

B. "disclosure" means a formal or informal communication or transmission, but does not include a communication or transmission concerning policy decisions that lawfully exercise discretionary authority unless the medical practitioner providing the disclosure or transmission reasonably believes that the disclosure or transmission evinces:

(1) a violation of a law, rule or regulation;

(2) a violation of a standard of care or other ethical guideline for the provision of a health care service; or

(3) gross mismanagement, a gross waste of funds, an abuse of authority or a substantial and specific danger to public health or safety;

C. "discrimination" means an adverse action taken against, or a threat of adverse action communicated to, a medical practitioner, health care institution or health care payer as a result of the medical practitioner's, health care institution's or health care payer's decision to decline to participate in a health care service on the basis of conscience. "Discrimination" includes:

(1) termination of employment;

(2) transfer from current position;

(3) demotion from current position;

(4) adverse administrative action;

(5) reassignment to a different shift or job title;

(6) increased administrative duties;

(7) refusal of staff privileges;

(8) refusal of board certification;

(9) loss of career specialty;

(10) reduction of wages, benefits or privileges;

(11) refusal to award a grant, contract or other program;

(12) refusal to provide residency training opportunities;

(13) denial, deprivation or disqualification of licensure;

(14) withholding or disqualifying from financial aid and other assistance;

(15) impediments to creating any health care institution or payer or expanding or improving the health care institution or payer;

(16) impediments to acquiring, associating with or merging with any other health care institution or payer;

(17) the threat thereof with regard to any of the preceding; or

(18) any other penalty, disciplinary or retaliatory action, whether executed or threatened;

D. "health care institution" means a public or private hospital, clinic, medical center, physician organization, professional association, ambulatory surgical center, private physician's office, pharmacy, nursing home, medical school, nursing school, medical training facility or other entity or location in which health care services are performed on behalf of any person; "health care institution" includes organizations, corporations, partnerships, associations, agencies, networks, sole proprietorships, joint ventures or other entities that provide health care services;

E. "health care payer" means an employer, health plan, health maintenance organization, insurance company, management services organization or other entity that pays for, or arranges for the payment of, health care service provided to a patient, whether that payment is made in whole or in part;

F. "health care service" means medical care provided to a patient at any time over the entire course of treatment, including:

(1) initial examination;

(2) testing;

(3) diagnosis;

(4) referral;

(5) dispensing or administering a drug, medication or device;

(6) psychological therapy or counseling; (7) research;

(8) prognosis;

(9) therapy;

(10) record making procedures;

(11) notes related to treatment; and

(12) any care or necessary services performed or provided by any medical practitioner, including allied health professionals, paraprofessionals or employees of health care institutions;

G. "medical practitioner" means a person or individual who may be or is asked to participate in any way in a health care service, including doctors, nurse practitioners, physician's assistants, nurses, nurses' aides, allied health professionals, medical assistants, hospital employees, clinic employees, nursing home employees, pharmacists, pharmacy technicians and employees, medical school faculty and students, nursing school faculty and students, psychology and counseling faculty and students, medical researchers, laboratory technicians, counselors, social workers or other persons who facilitate or participate in the provision of health care services to a person;

H. "participate" in a health care service means to provide, perform, assist with, facilitate, refer for, counsel for, advise with regard to, admit for the purposes of providing or take part in any way in providing health care service or any form of such service; and

I. "pay" or "payment" means to pay for, contract for, arrange for the payment of, reimburse or remunerate, whether in whole or in part.

SECTION 3. [NEW MATERIAL] RIGHTS OF CONSCIENCE OF MEDICAL PRACTITIONERS, HEALTH CARE INSTITUTIONS AND HEALTH CARE PAYERS.--

A. A medical practitioner, health care institution or health care payer has the right not to participate in or pay for any health care service that violates the medical practitioner's, health care institution's or health care payer's conscience.

B. A medical practitioner, health care institution or health care payer shall not be civilly, criminally or administratively liable for exercising the medical practitioner's, health care institution's or health care payer's right of conscience with respect to a health care service; provided that a health care institution shall not be civilly, criminally or administratively liable for claims related to or arising out of the exercise of conscience rights protected by the Health Care Workers Protection Act by a medical practitioner employed, contracted or granted admitting privileges by the health care institution.

C. A medical practitioner, health care institution or health care payer shall not be discriminated against in any manner as a result of the medical practitioner's, health care institution's or health care payer's decision to decline to participate in or pay for a health care service on the basis of conscience.

D. Notwithstanding any other provision of the Health Care Workers Protection Act to the contrary, a religious medical practitioner, health care institution or health care payer that holds itself out to the public as religious, states in its governing documents that it has a religious purpose or mission and has internal operating policies or procedures that implement its religious beliefs shall have the right to make employment, staffing, contracting and admitting privilege decisions consistent with its religious beliefs.

E. Nothing in the Health Care Workers Protection Act shall be construed to override the requirement to provide emergency medical treatment to all patients set forth in Subsection dd of 42 U.S.C. 1395 or other federal law governing emergency medical treatments.

SECTION 4. [NEW MATERIAL] WHISTLEBLOWER PROTECTION.--

A. A medical practitioner shall not be discriminated against because the medical practitioner:

(1) provided, caused to be provided or is about to provide or cause to be provided to the practitioner's employer, the attorney general, a state agency charged with protecting health care rights of conscience, the United States department of health and human services, the federal office of civil rights or other federal agency charged with protecting health care rights of conscience, information relating to a violation of, or any act or omission the medical practitioner reasonably believes to be a violation of, a provision of the Health Care Workers Protection Act;

(2) testified or is about to testify in a proceeding concerning a violation of the Health Care Workers Protection Act; or

(3) assisted or participated, or is about to assist or participate, in a proceeding concerning a violation of the Health Care Workers Protection Act.

B. Unless the disclosure is specifically prohibited by law, a medical practitioner shall not be discriminated against because the medical practitioner disclosed information the medical practitioner reasonably believes evinces:

(1) a violation of a law, rule or regulation;

(2) a violation of ethical guidelines for the provision of a health care service; or

(3) gross mismanagement, a gross waste of funds, an abuse of authority or a substantial and specific danger to public health or safety.

SECTION 5. [NEW MATERIAL] CIVIL REMEDIES.--

A. A civil action for damages or injunctive relief, or both, may be brought by a medical practitioner, health care institution or health care payer for a violation of a provision of the Health Care Workers Protection Act. An additional burden or expense on another medical practitioner, health care institution or health care payer arising from the exercise of the right of conscience shall not be a defense to a violation of that act. However, a civil action shall not be brought against an individual who declines to use or purchase health care services from a specific medical practitioner, health care institution or health care payer for exercising the rights provided for in Subsection A of Section 3 of the Health Care Workers Protection Act.

B. A party aggrieved by a violation of the Health Care Workers Protection Act may commence a civil action and shall be entitled, upon the finding of a violation, to recover threefold the actual damages sustained, but in no case shall recovery be less than one thousand dollars ($1,000), along with the costs of the action and reasonable attorney fees. Such damages shall be cumulative and in no way limited by other remedies that may be available pursuant to other federal, state or municipal laws. A court considering such civil action may also award injunctive relief, which may include reinstatement of a medical practitioner to the practitioner's previous position, reinstatement of board certification and relicensure of a health care institution or health care payer.

SECTION 6. SEVERABILITY.--If any part or application of the Health Care Workers Protection Act is held invalid, the remainder or its application to other situations or persons shall not be affected.

SECTION 7. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2021.

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