SB653: Bill Text

SB653,24,9 (i) "Reproductive health care provider" means a natural person who is an employee, independent contractor, or consultant of a hospital, or is otherwise affiliated with a hospital, and who provides services as a physician of medicine or osteopathy, a physician's assistant, a specialist assistant, a nurse, or a nurse practitioner, and is directly involved in providing medical treatment to a patient during a procedure in which the patient receives medical treatment in the hospital for a standard reproductive health care service.

SB653,24,14 (j) "Stabilizing treatment" means, with respect to an emergent or urgent medical condition covered in sub. (2) (d) of this section, medically appropriate medical measures to ensure that no material deterioration of the condition is likely, within reasonable medical probability, to result from or occur during the transfer of the individual from a hospital if such a transfer were to occur.

SB653,24,22 (k) "Standard reproductive health care services" means family planning; contraception and birth-spacing services; full-spectrum contraceptive education; counseling for and access to emergency contraception; screening, assessment, and treatment of reproductive tract infections and sexually transmitted infections including HIV/AIDS; screening, assessment, and treatment for gynecologic and breast cancers; routine well-woman and preventive exams; pregnancy testing; infertility services; miscarriage and abortion services; sterilization; obstetric care and services; and menopause and perimenopause services.

SB653,25,3 (L) "Transfer" means the movement, including the discharge, of an individual outside a hospital at the direction of any person employed by, or affiliated or associated with, directly or indirectly, the hospital, but does not include such a movement of an individual who has been declared dead, or leaves the facility without the permission of any person employed by, or affiliated or associated with, directly or indirectly, the hospital.

SB653,25,7 (m) "Undue hardship" means, as determined by the examination of the facts, an actual, as opposed to a speculative, hardship that necessarily and significantly either interferes with a hospital's delivery of safe health care or degrades its provision of medically necessary care to patients.

SB653,25,11 (2) Reproductive health care services. (a) A hospital that has a department or service offering maternity care services shall permit all standard reproductive health care services and all maternity care services, provided that such services are within the capacity and capabilities of the hospital.

SB653,25,16 (b) In the case of a hospital that has a department or service that offers maternity care services, if any individual comes to the hospital and a request is made on the individual's behalf for examination, treatment, or care for any standard reproductive health care service, the hospital shall provide an appropriate medical screening examination within the capabilities of the hospital.

SB653,25,19 (c) Whenever a health care provider, within the training and scope of his or her professional license, is available to provide or perform care appropriate for a patient's reproductive health care condition, the hospital must do all of the following:

SB653,25,21 1. Permit that reproductive health care provider to provide standard reproductive health care services.

SB653,25,24 2. Reasonably accommodate that provider in providing any standard reproductive health care service, provided that the provider has given notice to the hospital of his or her readiness to provide such care under sub. (3).

SB653,26,3 3. Provide sufficient support, including ancillary services routinely available for patients with comparable medical needs or circumstances, to ensure the provision of medically necessary care of the patient.

SB653,26,10 (d) Whenever a health care provider, within the training and scope of his or her professional license, is not available to provide or perform care appropriate for a patient's reproductive health care condition, and the hospital reasonably determines that the individual who came to the hospital seeking examination, treatment, or care for any standard reproductive health care service has an emergent or urgent medical condition, the hospital shall, within the staff and facilities available at the hospital, do all of the following:

SB653,26,12 1. Provide for further medical examination and treatment as may be required to stabilize the medical condition.

SB653,26,14 2. Provide necessary stabilizing treatment for the patient's presented reproductive health care condition.

SB653,26,16 3. Counsel the patient on all medically appropriate treatments specific to the patient's reproductive health care condition and circumstances.

SB653,26,18 4. Offer and provide referral to health care providers who provide those treatments.

SB653,26,20 (e) A hospital that has fulfilled the requirements of par. (d) may transfer the individual to another medical facility when the patient is medically stable.

SB653,26,24 (3) Conscientious beliefs. Because the provision of medically necessary care for one or more specific standard reproductive health care services may implicate religious, moral, or ethical conscientious beliefs, a reproductive health care provider may do any of the following:

SB653,27,6 (a) Give written notice to a hospital that has a department or service offering maternity care services, describing in detail the provider's conscientious belief, the core values associated with that belief, how he or she came to hold that belief, and how it affects the provider's readiness to provide specific standard reproductive health care services. If a provider submits a written notice under this paragraph, all of the following apply:

SB653,27,8 1. A provider's assertion in a written notice of his or her conscientious belief under this paragraph is prima facie evidence of its validity.

SB653,27,15 2. A hospital challenging the validity of a conscientious belief has the burden of showing by clear and convincing evidence that the provider's notice does not describe a conscientious belief. If a hospital determines as a matter of fact that a notice does not describe a conscientious belief, the hospital shall issue findings of fact and explain in writing how the hospital has met the clear and convincing evidentiary standard in making its determination that the provider's notice did not describe a conscientious belief.

SB653,27,20 (b) Give written notice to a hospital that has a department or service offering maternity care services that the provider, within his or her training and within the scope of his or her professional license, accepts and is ready to provide specific standard reproductive health care services identified in the notice. If a provider submits a written notice under this paragraph, all of the following apply:

SB653,28,3 1. The hospital shall honor the provider's conscientious belief, unless it is determined that the notice submitted by the provider did not describe a conscientious belief, and shall reasonably accommodate the provider's decisions, including, if specified, a decision to provide certain specific standard reproductive health care services, or for example, a decision to provide abortion services until the limit on the period of gestation under state law or until viability when no gestation limit is set by state law, provided that the hospital may deny an accommodation if it would create an undue hardship.

SB653,28,10 2. To support, sustain, and accommodate provider decisions to provide specified reproductive health care services, both as a least restrictive means to ensure compliance with this section and as a means to achieve the state interests described in this section, the hospital shall annually prepare, adopt, implement, and make publicly available a written plan designed to estimate and meet the reasonably anticipated demand for all the standard reproductive health care services, and to provide the support and ancillary services as described in sub. (2).

SB653,28,15 (c) Give written notice to a hospital that has a department or service offering maternity care services that the provider, invoking applicable refusal rights in federal or state law, declines and objects to providing specific standard reproductive health care services identified in the notice. If a provider submits a written notice under this paragraph, all of the following apply:

SB653,28,23 1. The hospital shall honor the provider's conscientious belief, unless it determined that the notice submitted by the provider did not identify applicable refusal rights in federal or state law or did not describe a conscientious belief, and shall reasonably accommodate the provider's decisions, provided that the hospital may deny an accommodation if it would create an undue hardship or precludes, under sub. (2), the provision of an appropriate medical screening examination or the provision of medically necessary care to an individual who has come to the hospital as specified in sub. (2).

SB653,29,8 2. To support, sustain, and accommodate provider decisions to not provide specified reproductive health care services, both as a least restrictive means to ensure compliance with this section and as a means to achieve the state interests described in this section, the hospital is authorized, whenever the hospital determines that it will lack sufficient personnel to meet the reasonably anticipated demand for the services permitted under sub. (2), to obtain services necessary for both the delivery of safe health care and the provision of medically necessary care by requiring applicants for vacant reproductive health care provider positions to provide specific standard reproductive health care services as may be necessary to meet the reasonably anticipated demand for all services permitted under sub. (2).

SB653,29,11 (4) Interference. No person may interfere with or otherwise penalize or punish a reproductive health care provider for asserting or exercising his or her conscientious belief under this section.

SB653,29,13 (5) Violations. Any person violating this section shall be subject to the civil remedies under s. 258.55.

SB653,30,8 (6) State policies. (a) Discrimination in access to reproductive health care. Access to health care services and to accurate health care information is a basic and foundational human right. Yet, in the realm of sexual and reproductive health care, in a health care system that is especially challenging to most anyone with a limited education or who lives in poverty or is victimized by family violence, gender-based health care discrimination profoundly limits access to standard reproductive health care services and safe motherhood, and thwarts the state's policy of promoting improved health care outcomes for all women and in honoring and protecting privacy rights inherent in their reproductive health care decisions. With an awareness that some hospitals with a maternity department or services have the capability of permitting standard reproductive health care services but routinely restrict or deny women access to them, the state declares that failure to permit access to standard reproductive health care services for women and their willing reproductive health care providers is a form of invidious discrimination, and that the state has compelling governmental interests in public health and safety and the well-being of all its residents in ending this form of gender discrimination and in assuring that no one is deprived of privacy rights inherent in reproductive health care decision making. Accordingly, it is the policy of this state that hospitals that offer maternity care services, permit patients with willing reproductive health care providers to have access to all standard reproductive health care services and maternity care services.

SB653,30,19 (b) Honoring conscientious beliefs. A commitment to providing standard reproductive health care services to patients and a strong objection to providing such services each qualify as sincerely held conscientious beliefs when predicated on a person's central core beliefs and values. The state's governmental interest in public health and safety and the well-being of all its residents requires that the provision of medically necessary care be the paramount and constant concern of all health care providers. Accordingly, it is the policy of this state, that hospitals that offer maternity care services, consistent with maintaining systems sufficient to ensure that women and their health care providers can access all standard reproductive health care services, shall honor and reasonably accommodate conscientious beliefs of direct providers of all standard reproductive health care services.

SB653,30,20 258.50 Patient and health care provider protection. (1) In this section:

SB653,30,22 (a) "Health care provider" includes an individual who aids an individual to seek or obtain health care services.

SB653,30,23 (b) "Patient" has the meaning given in s. 258.05 (1).

SB653,30,24 (2) No person may do any of the following:

SB653,31,11 (a) Engage in conduct directed at a health care provider or a patient that injures, intimidates, harasses, interferes with, or threatens or attempts to injure, intimidate, harass, interfere with, or threaten the health care provider or patient, by use of force, threat of force, or physical obstruction if the person knows that the conduct will cause the health care provider or patient to suffer serious emotional distress or place him or her in reasonable fear of death or of great bodily harm to himself or herself or a member of his or her family or household, or will cause a reasonable person under the same circumstances to suffer serious emotional distress, or will place a reasonable person under the same circumstances in fear of death or bodily harm to himself or herself or a member of his or her family or household.

SB653,31,18 (b) Intentionally use, obstruct, manipulate, arrange, or rearrange, or attempt to use, obstruct, manipulate, arrange, or rearrange the property of a medical facility to impede or otherwise interfere with its efficiency, or attempt to engage in any of these actions, or file a lawsuit or administrative complaint against a health care provider that, when considering the action in its entirety, cannot be supported by any rational argument based in fact or law, or publish, distribute, or communicate in any form of deprecatory matter relating to a health care provider.

SB653,31,20 (c) For the purpose of damaging or interfering with the operations of a health care provider, and in connection with such purpose, doing any of the following:

SB653,31,24 1. Intentionally damaging or causing the loss of any real or tangible personal property, including records, or data, used by a health care provider or owned or leased by a person having connection to, relationship with, or transactions with a health care provider.

SB653,32,6 2. Intentionally placing a person in reasonable fear of death or substantial bodily injury or placing a person in reasonable fear of the death of, or of great bodily harm to, a member of the immediate family of that person, or a spouse or intimate partner of that person, by engaging in a pattern of conduct consisting of 2 of more threats or acts of vandalism, property damage, criminal trespass, harassment, or intimidation.

SB653,32,9 3. Conspiring or attempting to engage in intentionally damaging property as described in subd. 1. or conspiring or attempting to intentionally place a person in reasonable fear of death or serious bodily injury as described in subd. 2.

SB653,32,20 (d) Engaging in a pattern of targeted and dangerous activity towards a health care provider. For purposes of this paragraph, a pattern of targeted and dangerous activity exists when a person or group of individuals associated in fact commits 2 or more separate acts of targeted and dangerous activity towards a health care provider in which one act occurred after the effective date of this paragraph .... [LRB inserts date], and in which the last targeted and dangerous act occurred within 2 years of the commission of a separate act of targeted and dangerous activity by a different person or group of individuals associated in fact that employed or was employed by or was associated directly or indirectly with the person or group of individuals committing a separate act of targeted and dangerous activity toward the same health care provider.

SB653,32,23 (3) Any person who aids or abets the commission of conduct proscribed in this section or who commands, induces, or procures conduct proscribed by this section is engaged in conduct in violation of this section.

SB653,33,2 (4) Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of an eyewitness, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

SB653,33,4 (5) (a) Whoever violates this section is subject to penalties provided under s. 258.53 and to the civil remedies under s. 258.55.

SB653,33,6 (b) Without limitation, the following affirmative defenses are available to a person who is alleged to have violated this section:

SB653,33,9 1. That the identified specific conduct is protected by the person's right to engage in expressive conduct protected from legal prohibition by the constitutions of the state and the United States.

SB653,33,15 2. When the identified specific conduct concerns the filing of a lawsuit or administrative complaint, that the lawsuit or administrative complaint alleged acts against the party filing the lawsuit or against the party's child that are recognized under state law as constituting domestic violence under s. 813.12 (1) (am), sexual assault including sexual assault under s. 940.225, 948.06, or 948.09, or physical abuse of a child including physical abuse of a child under s. 948.03.

SB653,33,19 3. When the identified specific conduct concerns the publication, distribution, or communication of deprecatory matter, that all individuals specified in the deprecatory matter consented in writing to the publication, distribution, and communication of the deprecatory matter.

SB653,33,21 (6) The state hereby establishes, affirms, fosters, and promotes the following 3 fundamental policies and interests necessary for the public interest:

SB653,34,3 (a) The protection of health care providers in this state from becoming targets, without remedies, of intentional and frightening conduct directed toward them is critical to the state's significant and substantial governmental interest in health and safety. The public health and welfare of health care patients is preserved and promoted when unlawful and egregious acts directed towards health care providers are subject to state provided protections that minimize injuries sustained from such conduct.

SB653,34,9 (b) The state legislature, relying on evidence that health care providers have historically and repeatedly been targeted for violence on account of the care they provide, finds that it serves a compelling governmental interest of this state to establish policies and laws that protect health care providers, their families, and their property from violence designed to damage or interfere with their operations, and from targeted and dangerous activities.

SB653,34,17 (c) The availability and assurance that patients have continuing access to medically accurate and comprehensive health care, including reproductive health care, and to health care providers who are neither impeded in providing those services nor exposed to risk of employment retribution and unfair discrimination in employment is central to the well being of all residents in this state, to the preservation of health care integrity and patient privacy, to the respect for the sanctity of the doctor-patient relationship, and to the freedom from governmental intrusion that is central to the doctor-patient relationship.

SB653,34,19 258.53 Penalties. (1) Except as provided in sub. (3), a person who violates s. 258.50 (2) (a) or (c) is guilty of a Class I felony.

SB653,34,21 (2) Except as provided in sub. (3), a person who violates s. 258.50 (2) (b) is guilty of a Class A misdemeanor.

SB653,34,23 (3) (a) If all of the following apply, a person who violates s. 258.50 (2) is guilty of the violation indicated in par. (b):

SB653,35,2 1. The person knows that his or her action will cause a specific person's death or injury, or will cause a reasonable person under the same circumstances to suffer serious emotional distress or to reasonably fear death or great bodily harm to himself or herself or to his or her family member or member of his or her household.

SB653,35,6 2. The person's action caused a specific person's death or injury, or caused a person to suffer serious emotional distress or to reasonably fear death or great bodily harm to himself or herself or to his or her family member or member of his or her household.

SB653,35,7 (b) 1. For a violation of s. 258.50 (2) (a) or (c), a Class G felony

SB653,35,8 2. For a violation of s. 258.50 (2) (b), a Class H felony.

SB653,35,9 3. For a violation of s. 258.50 (2) (d), a Class E felony.

SB653,35,16 258.55 Remedies for health care violations. (1) Actions by the attorney general. (a) If the attorney general has reasonable cause to believe that any person is violating s. 258.05, 258.10, 258.25 (4), or 258.50, or that a hospital is violating s. 258.25 (2), the attorney general has standing to bring and may commence a civil action against any party in the name of the state in any court with appropriate jurisdiction to vindicate the public interest and protect the rights of citizens of the state.

SB653,35,24 (b) For each violation specified in par. (a), the court may award any appropriate relief, including temporary, preliminary, or permanent injunctive relief and compensatory damages. The court, to vindicate the public interest, may assess against a party other than the state or instrumentality of the state an additional amount not to exceed $20,000 for the first violation and $40,000 for each subsequent violation, except that for a violation of s. 258.50 the court may assess an additional amount not to exceed $100,000 for a first violation and $1,000,000 for each subsequent violation.

SB653,36,3 (2) Private right of action. (a) A patient or physician claiming a violation of the right and obligations specified in s. 258.05 and any associated claims under common law may commence a civil action for relief under par. (b).

SB653,36,8 (b) In any action under par. (a), the court may award appropriate relief, including temporary, preliminary, or permanent injunctive relief, and compensatory and punitive damages. With respect to compensatory damages, the plaintiff may elect, at any time prior to the rendering of final judgment, to recover an award of statutory damages in the amount of $5,000 per violation in lieu of actual damages.

SB653,36,13 (c) A physician or health care provider claiming a violation of s. 258.05 (5) or (6), a health care provider claiming a violation of s. 258.10, a patient claiming a violation of s. 258.25, or a reproductive health care provider challenging a determination that an assertion submitted under s. 258.25 (3) (a) did not describe a conscientious belief may commence a civil action for relief under par. (d).

SB653,36,19 (d) In any action under par. (c), the court may award appropriate relief, including temporary, preliminary, or permanent injunctive relief; back pay or reinstatement or other privileges; and compensatory and punitive damages. With respect to compensatory damages, the plaintiff may elect, at any time before the rendering of final judgment, to recover an award of statutory damages in the amount of $20,000 per violation, in lieu of actual damages.

SB653,36,22 (e) A person claiming a violation of the rights specified in s. 258.50 and any associated claims under common law may commence a civil action for relief under par. (f).

SB653,37,2 (f) In any action under par. (e), the court may award appropriate relief, including temporary, preliminary, or permanent injunctive relief and compensatory and punitive damages. With respect to compensatory damages, the plaintiff may elect, at any time before the rendering of final judgment, to recover an award of statutory damages in the amount of $20,000 per violation, in lieu of actual damages.

SB653,37,4 258.70 Construction. Nothing in this chapter shall be construed to do any of the following:

SB653,37,7 (1) To prohibit any expressive conduct, including peaceful picketing or other peaceful demonstration, protected from legal prohibition by the First Amendment to the Constitution of the United States of America.

SB653,37,11 (2) To create any new remedies for interference with activities protected by the free speech or free exercise clauses of the First Amendment to the Constitution of the United States of America, regardless of the point of view expressed, or to limit any existing legal remedies for such interference.

SB653,37,14 (3) To provide exclusive criminal penalties or civil remedies with regard to the conduct prohibited by this chapter or to preempt state or local laws that may provide such penalties or remedies.

SB653,37,16 (4) To have any effect on the rights and obligations or to preempt any state or local laws regarding emergency contraception for sexual assault victims.

SB653,15 Section 15. 441.06 (6) of the statutes is repealed.

SB653,16 Section 16. 441.07 (1g) (f) of the statutes is repealed.

SB653,17 Section 17. 448.02 (3) (a) of the statutes is amended to read:

SB653,38,13 448.02 (3) (a) The board shall investigate allegations of unprofessional conduct and negligence in treatment by persons holding a license, certificate or limited permit granted by the board. An allegation that a physician has violated s. 253.10 (3), 448.30 or 450.13 (2) or has failed to mail or present a medical certification required under s. 69.18 (2) within 21 days after the pronouncement of death of the person who is the subject of the required certificate or that a physician has failed at least 6 times within a 6-month period to mail or present a medical certificate required under s. 69.18 (2) within 6 days after the pronouncement of death of the person who is the subject of the required certificate is an allegation of unprofessional conduct. Information contained in reports filed with the board under s. 49.45 (2) (a) 12r., 50.36 (3) (b), 609.17 or 632.715, or under 42 CFR 1001.2005, shall be investigated by the board. Information contained in a report filed with the board under s. 655.045 (1), as created by 1985 Wisconsin Act 29, which is not a finding of negligence or in a report filed with the board under s. 50.36 (3) (c) may, within the discretion of the board, be used as the basis of an investigation of a person named in the report. The board may require a person holding a license, certificate or limited permit to undergo and may consider the results of one or more physical, mental or professional competency examinations if the board believes that the results of any such examinations may be useful to the board in conducting its investigation.

SB653,18 Section 18 . 448.02 (3) (a) of the statutes, as affected by 2013 Wisconsin Act 240 and 2015 Wisconsin Act .... (this act), is repealed and recreated to read:

SB653,39,9 448.02 (3) (a) The board shall investigate allegations of unprofessional conduct and negligence in treatment by persons holding a license or certificate granted by the board. An allegation that a physician has violated s. 448.30 or 450.13 (2) or has failed to mail or present a medical certification required under s. 69.18 (2) within 21 days after the pronouncement of death of the person who is the subject of the required certificate or that a physician has failed at least 6 times within a 6-month period to mail or present a medical certificate required under s. 69.18 (2) within 6 days after the pronouncement of death of the person who is the subject of the required certificate is an allegation of unprofessional conduct. Information contained in reports filed with the board under s. 49.45 (2) (a) 12r., 50.36 (3) (b), 609.17 or 632.715, or under 42 CFR 1001.2005, shall be investigated by the board. Information contained in a report filed with the board under s. 655.045 (1), as created by 1985 Wisconsin Act 29, which is not a finding of negligence or in a report filed with the board under s. 50.36 (3) (c) may, within the discretion of the board, be used as the basis of an investigation of a person named in the report. The board may require a person holding a license or certificate to undergo and may consider the results of one or more physical, mental or professional competency examinations if the board believes that the results of any such examinations may be useful to the board in conducting its investigation.

SB653,19 Section 19. 448.03 (5) (a) of the statutes is repealed.

SB653,20 Section 20. 457.26 (2) (gm) of the statutes is repealed.

SB653,21 Section 21. 625.11 (4) of the statutes is amended to read:

SB653,39,22 625.11 (4) Unfair discrimination. One rate is unfairly discriminatory in relation to another in the same class if it clearly fails to reflect equitably the differences in expected losses and expenses. Rates are unfairly discriminatory when an insurer assigns a higher rate for services based only on incomplete actuarial data or uses such incomplete data to limit liability associated with insuring an unknown risk. Rates are not unfairly discriminatory because different premiums result for policyholders with like loss exposures but different expense factors, or like expense factors but different loss exposures, so long as the rates reflect the differences with reasonable accuracy. Rates are not unfairly discriminatory if they are averaged broadly among persons insured under a group, franchise or blanket policy.

SB653,22 Section 22. 625.22 (1) of the statutes is amended to read:

SB653,40,2 625.22 (1) Order in event of violation. If the commissioner finds after a hearing that a rate is not in compliance with s. 625.11 or 655.92, the commissioner shall order that its use be discontinued for any policy issued or renewed after a date specified in the order.

SB653,23 Section 23. 628.34 (3) (b) of the statutes is amended to read:

SB653,40,13 628.34 (3) (b) No insurer may refuse to insure or refuse to continue to insure, or limit the amount, extent or kind of coverage available to an individual, or charge an individual a different rate for the same coverage because of a mental or physical disability except when the refusal, limitation or rate differential is based on either sound actuarial principles supported by reliable data or actual or reasonably anticipated experience, subject to ss. 632.746 to 632.7495. Sound actuarial principles may not include political or social considerations, ethical or religious considerations, or the charging of higher rates for services when only incomplete actuarial data are available, using such data to limit liability associated with insuring an unknown risk.

SB653,24 Section 24. 632.8985 of the statutes is repealed.