SB653: Bill Text

LRB-4410/1

SWB/TJD/PJH/AJM:amn

2015 - 2016 LEGISLATURE

2015 Senate BILL 653

January 27, 2016 - Introduced by Senators Erpenbach, Risser, Shilling, C. Larson, Ringhand and Harris Dodd, cosponsored by Representatives C. Taylor, Zamarripa, Kahl, Barnes, Sargent, Sinicki, Johnson, Berceau, Kolste, Ohnstad, Subeck, Zepnick, Hesselbein, Billings, Mason, Riemer, Brostoff, Considine, Goyke, Hintz, Hebl, Pope and Spreitzer. Referred to Committee on Health and Human Services.

SB653,2,2 An Act to repeal 46.245, 69.186 (1) (hf), 69.186 (1) (k), 69.186 (1) (L), 253.09, 253.095, 253.10, 253.105, 253.107, 441.06 (6), 441.07 (1g) (f), 448.03 (5) (a), 457.26 (2) (gm), 632.8985 and 940.04; to renumber and amend 940.32 (1) (a) 10.; to amend 20.9275 (1) (a), 48.375 (4) (a) 1., 448.02 (3) (a), 625.11 (4), 625.22 (1), 628.34 (3) (b), 939.75 (2) (b) 1., 968.26 (1b) (a) 2. a., 990.001 (17) (b) and 990.01 (19j) (b); to repeal and recreate 448.02 (3) (a); and to create 15.194 (2), 15.197 (12m), chapter 258, subchapter VIII (title) of chapter 655 [precedes 655.90], 655.90, 655.92, 655.94, 655.96 and 940.32 (1) (a) 11. of the statutes; relating to: medically accurate information, conscientious beliefs of reproductive health care providers, health care provider liability insurance, eliminating certain abortion requirements, prohibiting employment retribution and discrimination, actions against a person seeking or providing health care, and providing a criminal penalty.

Analysis by the Legislative Reference Bureau

This bill creates a right to medically accurate information, creates bodies for researching reproductive health issues, prohibits certain employment retribution and discrimination for health care providers, provides methods for health care providers to assert conscientious beliefs regarding reproductive health care services, makes various changes to abortion laws, specifies prohibited conduct regarding obtaining and providing health care and civil remedies and criminal penalties for committing that conduct, and regulating rates and other aspects of health care liability insurance.

Patient Rights to Medically Accurate Information

This bill creates a right and obligation for a physician to provide medically accurate information to patients to whom the physician provides medical care. The bill also creates a right for a patient to receive medically accurate information from a physician. The bill prohibits interference or other diminishment of the rights and obligations relating to medically accurate information, and further prohibits employment retribution based upon a physician's exercise of the rights and obligations relating to the provision of medically accurate information.

Under the bill, the state, including any political subdivision or instrumentality of the state, may not do either of the following: 1) require any information that is not medically accurate to be included on a procedure or treatment form; or 2) prohibit a physician from including medically accurate information that or from deleting information that in the physician's medical judgment is either not medically accurate or not somehow relevant to the patient's specific request for care or treatment.

The bill creates an Office of Advancement in Medical Knowledge and Care that is required to investigate developments affecting patient rights and to submit an annual report of its findings.

Conscientious Beliefs

The bill requires a hospital that has a department or service offering maternity care services to permit all standard reproductive health care services and all maternity care services if the hospital has the capacity and capability. The hospital must also provide an appropriate medical screening examination to any individual that comes to the hospital and for which a request for examination, treatment, or care for any standard reproductive health care service is made.

Under the bill, if a health care provider is available and it is within his or her training and license to provide or perform care appropriate for a patient's reproductive health care condition, the hospital must allow that provider to provide standard reproductive health care services, and reasonably accommodate and provide sufficient support for that provider in providing the care. If a health care provider is not available to provide or perform care appropriate for a patient's reproductive health care condition, and the hospital determines the patient has an emergent or urgent medical condition, the hospital must provide examination and treatment to the extent required to stabilize the patient's condition, counsel the patient on all medically appropriate treatments specific to the patient's reproductive health care condition and circumstances, and offer and provide the patient with a referral for treatment. After fulfilling these requirements, the hospital may transfer the patient to another medical facility when the patient is stable.

The bill allows a reproductive health care provider to provide to a hospital that has a department or service offering maternity care services one of the following: 1) a notice describing in detail the provider's conscientious belief and providing other information regarding that belief; 2) a notice that the provider, within his or her training and professional license, accepts and is ready to provide specific standard reproductive health care services identified in the provider's notice; or 3) a notice that the provider invokes applicable federal or state refusal rights and declines and objects to providing specific standard reproductive health care services identified in the provider's notice. If any of the notices are submitted to a hospital, the bill requires, with certain exceptions, the hospital to honor the provider's stated conscientious beliefs. A hospital may challenge a notice in certain circumstances. If a provider accepts and is ready to provide specified reproductive health services, the hospital must annually prepare, adopt, implement, and make publicly available a written plan designed to estimate and meet the anticipated demand for services. If a provider submits a notice declining and objecting to providing specific standard reproductive health care services and the hospital determines it will lack sufficient personnel to meet the demand for reproductive health care services, the hospital may require applicants for vacant reproductive health care provider positions to provide specific standard reproductive health care services.

The bill prohibits any person from interfering with, penalizing, or punishing a reproductive health care provider for asserting or exercising his or her conscientious beliefs, and provides civil remedies for violations relating to the assertion or exercise of these beliefs.

Abortion

The bill makes various changes to the laws relating to abortion, including:

1. The bill eliminates requirements for voluntary and informed consent before the performance of an abortion. Current law requires that a woman upon whom an abortion is to be performed or induced must give voluntary and informed written consent to an abortion. Except in a medical emergency, a woman's consent to an abortion is considered information only if before the abortion is performed or induced at a time specified in current law, the physician or an assistant has, in person, orally provided the woman with certain information and given to the woman certain written materials.

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.