SB653: Bill Text

2. The bill eliminates the requirement, effective February 1, 2016, that except in a medical emergency a physician must determine or rely on another determination of the probable postfertilization age of an unborn child before performing an abortion. The bill also eliminates the prohibition on performing or inducing an abortion if the probable postfertilization age of the unborn child is 20 or more weeks.

3. This bill eliminates the prohibition on giving a woman an abortion-inducing drug unless the physician who provided the drug for the woman performs a physical exam on the woman and is physically present in the room when the drug is given to the woman.

4. The bill eliminates the current law prohibition on requiring a hospital to admit a patient for performing a sterilization or removing a human embryo or fetus.

5. The bill eliminates the liability exemption for hospitals or employees of hospitals who refuse to perform a sterilization or removal of a human embryo or fetus for religious or moral reasons.

6. The bill eliminates the prohibition against discriminating against a certain person because that person refuses to recommend, aid, or perform a sterilization or the removal of a human embryo or fetus for religious or moral reasons.

7. The bill eliminates the prohibition on coverage of abortions by qualified health plans offered through an exchange in this state.

8. The bill eliminates the prohibition on performing abortions by a physician that does not have admitting privileges in a hospital within 30 miles of the location where the abortion is to be performed. Under a federal appellate court ruling, the requirement to have admitting privileges currently may not be enforced.

9. Under current law, any person, other than the mother, who intentionally destroys the life of an unborn child may be fined not more than $10,000, imprisoned for not more than six years, or both. Any person, other than the mother, who intentionally destroys the life of an unborn quick child or causes the mother's death by an act done with intent to destroy the life of an unborn child may be fined not more than $50,000, imprisoned for not more than 15 years, or both. None of these penalties apply to a therapeutic abortion that is performed by a physician; that is necessary, or advised by two other physicians as necessary, to save the life of the mother; and that is performed, except on an emergency basis, in a licensed maternity hospital. These provisions were cited, along with other provisions not affected by this bill that prohibit performing an abortion generally, in Roe v. Wade, 410 U.S. 113 (1973), as substantially similar to a Texas statute that was held to violate the due process clause of the 14th Amendment to the U.S. Constitution. The bill repeals these provisions. The bill, however, does not affect any other criminal prohibition or limitation on abortion in current law, such as the prohibition on performing an abortion after the fetus or unborn child has reached viability, or any other homicide prohibition. The bill also does not affect a separate provision in current law that prohibits prosecution of and imposing or enforcing a fine or imprisonment against a woman who obtains an abortion or otherwise violates any abortion law with respect to her unborn child or fetus.

Employment Retribution and Discrimination Prohibition

The bill prohibits employment retribution and unfair discrimination against a health care provider based on the provider's involvement in a sterilization procedure, biomedical or behavioral research, or assertion or exercise of a conscientious belief to provide, or not provide, any standard reproductive health care services as described in the bill. The bill also requires a hospital or health care facility to provide notice to an applicant of these prohibitions.

Unless a health care provider provides express consent, the bill prohibits a hospital or health care facility from disclosing information about a health care provider's procedures, services, or research to the provider's prospective or potential employers, if the disclosure divulges activities that the hospital or health care provider could not use itself for disciplinary or other prohibited purposes under the prohibition of employment retribution and unfair discrimination.

Implementation Health Care Task Force

This bill requires the Department of Health Services (DHS) to establish an Implementation Health Care Task Force with certain law enforcement and medical professionals that is required to examine and report annually upon the challenges and successes in achieving the implementation of state policies and rights described in the bill.

Prohibited Acts; Criminal and Civil Penalties

The bill prohibits several acts (prohibited acts) against a person seeking, obtaining or helping another person to obtain, or providing health care services (health care patient or provider). The bill prohibits any person (actor) from injuring, intimidating, interfering with, or threatening a health care patient or provider. An actor who does so or who intentionally engages in a pattern of aggressive or harassing conduct against a health care patient or provider, or who intentionally interferes with the property of a medical facility to impede or otherwise interfere with its efficiency, is guilty of a Class I felony.

Under the bill, an actor who intentionally damages property, including data or records kept by a health care provider, or who intentionally files frivolous lawsuits against a health care provider or communicates deprecatory information about a health care provider for the purpose of damaging or interfering with the operations of a health care provider is guilty of a Class A misdemeanor.

An actor who engages in a pattern of targeted and dangerous activity, including an act or threat of murder, kidnapping, arson, robbery, extortion, or other dangerous felonies, toward a health care provider is guilty of a Class E felony, as is an actor who commits any of the other prohibited acts toward a health care patient or provider if the actor knows or should know that his or her action will cause a specific person's death or injury, or will cause a reasonable person to suffer serious emotional distress or to reasonably fear death or substantial bodily injury to himself or herself or to his or her family member or member of his or her household, and the acts did have one of those effects.

Under the bill, a patient or health care provider who is affected by a prohibited act may file a civil action against the actor. The bill allows a patient or health care provider to seek, in addition to injunctive relief and punitive damages, compensatory damages that reflect his or her actual damages or statutory damages of $20,000 per violation.

Under the bill, a patient or physician may also file a civil action for a violation related to the patient's right to accurate medical information and his or her right to access to high quality medical care. The bill allows the person to seek, in addition to injunctive relief and punitive damages, compensatory damages that reflect his or her actual damages or statutory damages of $5,000 per violation.

The statutory damages option of $20,000 per violation is also available to a physician or health care provider who files a civil action after experiencing employment discrimination for his or her provision of medical care, after being prevented from providing medically accurate information to a patient, or after being required to provide medically inaccurate information to patient. The same option is available to a patient or a health care provider who is negatively affected by a determination regarding the conscientious beliefs of a reproductive health care provider.

The bill also authorizes the attorney general to commence a civil action if he or she has reasonable cause to believe that a hospital or any person is interfering with another's right to health care, committing a criminal act against a patient or health care provider, or otherwise violating a patient's or health care provider's rights.

Under the bill, a court may award injunctive relief and compensatory damages and an additional assessment of up to $20,000 for the first violation and $40,000 for each subsequent violation. If the court awards relief for a prohibited act, the court may assess an additional amount up to $100,000 for a first violation and $1,000,000 for each subsequent violation.

Insurance Requirements

This bill creates requirements for health care liability insurance policies regarding classification and rates for such insurance, procedures for appealing classification or rates, and health care liability policy mandates. These provisions include the following:

1. The bill requires that an insurer must classify certain procedures and medication regimens related to reproductive health and abortion in the same risk classes as other procedures with similar actuarial risks. The bill also requires medically indicated abortions to be classified in the same risk classes as elective abortions.

2. Under current law, the commissioner of insurance has the authority to promulgate rules for the procedure under which a health care provider may challenge the classification and rates contained in its liability policy. Under this bill, a health care provider is first required to exhaust all remedies contained in its insurance contract for challenging classification and rates. This bill also codifies the procedure promulgated by the commissioner, which permits a health care provider to, after exhausting its remedies under the insurance contract, petition the commissioner for review of the classification and rates. If the health care provider is not satisfied with the result of the petition, the health care provider may then appeal the decision to an administrative law judge.

3. Under current law, an insurer may not provide rates that are unfairly discriminatory. Unfair discrimination occurs when one rate in relation to another does not reflect the differences in expected losses and expenses. Under this bill, rates are also unfairly discriminatory if they consider political, social, ethical, or religious concerns associated with providing insurance for abortion procedures. Rates are also unfairly discriminatory if an insurer charges a higher rate for services when there is incomplete actuarial data for assessing the risk. The bill specifies that sound actuarial principles do not include political, social, ethical, and religious considerations, charging higher rates for services of which there is only incomplete data, and using incomplete data to limit liability associated with insuring unknown risks.

4. The bill provides that all health care liability insurance policies must include coverage for certain regimens, methods, and procedures, including contraceptive implant procedures, intrauterine contraception procedures, endometrial biopsies, medically indicated and elective abortions, miscarriages, and other procedures using intrauterine instrumentation for which the health care provider is trained. The policies are also required to include coverage for counseling and follow-up services associated with these regimens, methods, and procedures.

Comprehensive Women's Health Research Council

The bill creates the Comprehensive Women's Health Research Council that is required to identify and assess the needs for research on voluntary termination of pregnancy, prioritize research projects most likely to improve health outcomes for women in Wisconsin, and propose ways and means to fund those projects.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB653,1 Section 1. 15.194 (2) of the statutes is created to read:

SB653,7,5 15.194 (2) Office of advancement in medical knowledge and care. There is created an office of advancement in medical knowledge and care in the department of health services. The director of the office shall be appointed by, and report directly to, the secretary of health services.

SB653,2 Section 2. 15.197 (12m) of the statutes is created to read:

SB653,7,10 15.197 (12m) Comprehensive women's health research council. There is created in the department of health services a comprehensive women's health research council that consists of the following members appointed by the secretary of the department of health services:

SB653,8,2 (a) The chairperson of a statewide professional medical organization, as defined in s. 258.01 (11), that specializes in obstetrics and gynecology.

SB653,8,6 (b) The chair of the department that specializes in obstetrics and gynecology at a medical school located in this state that is accredited by the Liaison Committee on Medical Education or the American Osteopathic Association Commission on Osteopathic College Accreditation, or the chair's designee.

SB653,8,10 (c) The chair of the department that specializes in family medicine at a medical school located in this state that is accredited by the Liaison Committee on Medical Education or the American Osteopathic Association Commission on Osteopathic College Accreditation, or the chair's designee.

SB653,8,14 (d) The chair of the department that specializes in biostatistics at a medical school located in this state that is accredited by the Liaison Committee on Medical Education or the American Osteopathic Association Commission on Osteopathic College Accreditation, or the chair's designee.

SB653,8,18 (e) The chair of the department that specializes in population health at a medical school in this state that is accredited by the Liaison Committee on Medical Education or the American Osteopathic Association Commission on Osteopathic College Accreditation, or the chair's designee.

SB653,3 Section 3. 20.9275 (1) (a) of the statutes is amended to read:

SB653,8,21 20.9275 (1) (a) "Abortion" has the meaning given in s. 253.10 (2) (a) for "induced abortion" under s. 69.01 (13m).

SB653,4 Section 4. 46.245 of the statutes is repealed.

SB653,5 Section 5. 48.375 (4) (a) 1. of the statutes is amended to read:

SB653,9,7 48.375 (4) (a) 1. The person or the person's agent has, either directly or through a referring physician or his or her agent, received and made part of the minor's medical record, under the requirements of s. 253.10, the voluntary and informed written consent of the minor and the voluntary and informed written consent of one of her parents; or of the minor's guardian or legal custodian, if one has been appointed; or of an adult family member of the minor; or of one of the minor's foster parents, if the minor has been placed in a foster home and the minor's parent has signed a waiver granting the department, a county department, or the foster parent the authority to consent to medical services or treatment on behalf of the minor.

SB653,6 Section 6. 69.186 (1) (hf) of the statutes, as created by 2015 Wisconsin Act 56, is repealed.

SB653,7 Section 7. 69.186 (1) (k) of the statutes, as created by 2015 Wisconsin Act 56, is repealed.

SB653,8 Section 8. 69.186 (1) (L) of the statutes, as created by 2015 Wisconsin Act 56, is repealed.

SB653,9 Section 9. 253.09 of the statutes is repealed.

SB653,10 Section 10. 253.095 of the statutes is repealed.

SB653,11 Section 11. 253.10 of the statutes, as affected by 2015 Wisconsin Act 56, is repealed.

SB653,12 Section 12. 253.105 of the statutes is repealed.

SB653,13 Section 13. 253.107 of the statutes, as created by 2015 Wisconsin Act 56, is repealed.

SB653,14 Section 14. Chapter 258 of the statutes is created to read:

SB653,9,24 Chapter 258 Patients' Reproductive health act

SB653,9,25 258.01 Definitions. In this chapter:

SB653,10,7 (1) "Biomedical and behavioral research" includes studies designed primarily to increase the scientific base of information about normal or abnormal physiology and development; studies primarily intended to evaluate the safety, effectiveness, or usefulness of a medical product, procedure, or intervention; and studies on the behavior of individuals and populations to establish a body of demonstrable, replicable facts and theories that contribute to knowledge and amelioration of human problems.

SB653,10,8 (2) "Department" means the department of health services.

SB653,10,15 (3) "Deprecatory matter" means, in the context of patient and health care provider protection, any knowingly false communication or publication that exposes an individual who is seeking, is obtaining, or has obtained health care services, who is aiding or has aided an individual to obtain health care services, or who provides health care services to hatred, contempt, ridicule, degradation, or disgrace in society or exposes that individual or health care provider to injury in the individual's or health care provider's business or occupation.

SB653,10,22 (4) "Employment retribution" means a retaliatory action taken by an employer in response to an exercise of a health care provider's rights specifically created or recognized in law, including termination of employment, employment suspensions or probationary periods, written or oral warnings, failure to promote, diminishment in employment responsibilities, adverse changes in compensation, removal from or adverse changes in titled positions, denial of medical staff or other privileges, or unwanted work schedule changes.

SB653,11,4 (5) "Health care provider" means an employer, employee, independent contractor, or consultant who provides health care under state law, a business or corporation providing health care services authorized by the state, including a physician of medicine or osteopathy, a physician's assistant, a specialist assistant, a nurse, a nurse practitioner, a hospital, a critical access hospital, a skilled nursing facility, a comprehensive outpatient rehabilitative facility, a health center, a home health agency, an ambulatory surgery center, a dialysis center, or a hospice program.

SB653,11,9 (6) "Immediate family member" means, for a certain individual, in the context of patient and health care provider protection, a spouse, parent, brother or sister, child or person to whom the individual stands in loco parentis, or any other person living in the individual's household and related to that individual by blood or marriage.

SB653,11,21 (7) "Medically accurate" means information relevant to informed decision-making based on the weight of current scientific evidence, derived from research using accepted scientific methods, consistent with generally recognized scientific theory, and, if available, published in peer-reviewed journals, and recognized as accurate, objective, and complete by professional medical organizations including the American Medical Association, the American Congress of Obstetricians and Gynecologists, the American Public Health Association, or the American Academy of Pediatrics; by government agencies, including the Center for Disease Control, the Food and Drug Administration, the National Cancer Institute, the American Psychological Association, or the National Institute of Health; or by scientific advisory groups including the Institute of Medicine and the Advisory Committee on Immunization Practices.

SB653,11,23 (8) "Physical obstruction" means, in the context of patient and health care provider protection, willfully or recklessly doing any of the following:

SB653,12,3 (a) Obstructing, hindering, detaining, depriving, impeding the clear passage to, or blocking an individual's access to or egress from, a health care facility or from the common areas of the real property upon which the facility is located.

SB653,12,8 (b) Without the consent of the individual, intruding within 6 feet of an individual entering or exiting a health care facility or from the common areas of the real property upon which the facility is located in a manner that deprives or delays the individual from obtaining, aiding another to obtain, or providing health care services.

SB653,12,9 (9) "Physician" has the meaning given in s. 448.01 (5).

SB653,12,14 (10) "Procedure or treatment form" means any information a patient receives relating to giving consent to a procedure or treatment the patient may elect to proceed with, whether in a brochure, a notice, a posting, an agreement, or other document, provided in writing, electronically, or by video, without regard to whether or not the communication requires a signature.

SB653,12,20 (11) "Professional medical organization" means an entity widely regarded as the leading organization or association within its field that serves a single profession, or a specialty within a single profession, that possesses a primary standing in that profession that requires of its members a significant amount of education, training, or experience, or a license or certificate from a state or authorized private authority to practice the profession or specialty.

SB653,12,25 (12) "Referral" means providing names and contact information of health care providers, securing or assisting a patient in scheduling appointments with health care providers, and communicating with referred health care providers about medical care that may be in the patient's best interest in the judgment of the health care provider.

SB653,13,5 (13) "Scientific advisory group" means, in the context of providing medically accurate information to patients, a group that is recognized as an authoritative scientific source by the medical profession and is comprised of knowledgeable, prominent, and credible members in their field of expertise and that offers scientific opinions on health matters.

SB653,13,10 (14) "Suffer serious emotional distress" means to feel terrified, intimidated, threatened, harassed, or tormented on account of an actor's intentional conduct or behavior if such conduct or behavior would cause a reasonable person under the same circumstances to feel terrified, intimidated, threatened, harassed, or tormented.

SB653,13,11 (15) "Targeted and dangerous activity" means any of the following:

SB653,13,14 (a) Any act or threat involving murder, kidnapping, arson, robbery, other substantial bodily harm, bribery, or extortion, which is chargeable under the law and punishable by imprisonment for more than one year.

SB653,13,16 (b) Any act dangerous to human life that is a violation of the laws of the United States or of this state.

SB653,13,21 258.05 Patient rights to medically accurate information. (1) In this section, "patient" means any individual who presents himself or herself at or before a health care provider for the purpose of obtaining medical investigation, examination, diagnosis, stabilization, consultation, treatment, procedure, or referral.

SB653,13,25 (2) A patient has the right to receive medically accurate information from a physician providing medical care, including but not limited to, investigation, examination, diagnosis, stabilization, consultation, treatment, procedure, and referral.

SB653,14,3 (3) A physician has the right and obligation to provide medically accurate information to patients to whom the physician provides medical care, and to make referrals for patients to other licensed physicians and health care providers.

SB653,14,6 (4) No person, including the state or any political subdivision of the state, may interfere with or otherwise diminish the rights and obligations specified in sub. (2) or (3).

SB653,14,10 (5) Employment retribution by any person against a physician based on the physician's exercise of the rights and obligations specified in subs. (2) and (3), or the physician's provision of medical care to a patient based on such rights and obligations, is prohibited.

SB653,14,12 (6) The state, including any political subdivision or instrumentality of the state, may not do any of the following:

SB653,14,16 (a) Require the inclusion of any content in a procedure or treatment form that is not medically accurate, or promote or support, in any manner, an entity that promulgates, for distribution to a patient or other person seeking medical advice from an entity, information that is not medically accurate.

SB653,14,25 (b) Prohibit a physician from adding medically accurate information or from deleting information in a procedure or treatment form that, in the physician's medical judgment, is either not medically accurate or that does not align with a patient's specific request for medical care concerning diagnosis, reservations relevant to the diagnosis, the nature and purpose of the proposed procedure or treatment, risks and consequences of the proposed procedure or treatment, reasonable alternatives to the procedure or treatment appropriate for the patient's situation, patient counseling, or prognosis if a patient elects not to proceed with a proposed procedure or treatment.

SB653,15,1 (7) (a) A patient in this state has the right to all of the following:

SB653,15,3 1. Access, generally, to continually improving, medically accurate, high quality, safe patient care.

SB653,15,9 2. Access, particularly, to continually improving, medically accurate, high quality, safe patient care from obstetricians, gynecologists, pediatricians, emergency room physicians, and family medicine physicians who attended medical residency programs that provided training in evidence-based, clinically sound and current, comprehensive reproductive health care with reliance on up-to-date, medically accurate didactic materials.