AN ACT relating to the recruitment and retention of health care professionals and declaring an emergency.

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AN ACT relating to the recruitment and retention of health care professionals and 1
declaring an emergency. 2
WHEREAS, Kentucky has a statewide hospit al workforce vacancy rate of 8.9 3
percent; and 4
WHEREAS, forcing health care professionals to violate their conscience could 5
force them out of their profession and prevent or discourage students from entering the 6
medical field; and 7
WHEREAS, it is common for doctors, medical students, and other health care 8
professionals to face workplace discrimination for declining to participate in activities or 9
provide medical procedures to which they have moral or religious objections; and 10
WHEREAS, forcing doctors, nurses, and other health care professionals to violate 11
their conscience could exacerbate and lead to additional increases in shortages, depriving 12
Kentucky patients of critical care; and 13
WHEREAS, neighboring states have provided comprehensive protections for right s 14
of conscience in the practice of medicine since as early as 1977; and 15
WHEREAS, Kentucky law does not currently provide a legal remedy for health 16
care professionals who are forced to violate their conscience; 17
NOW, THEREFORE, 18
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 19
SECTION 1. A NEW SECTION OF KRS CHAPTER 344 IS CREATED TO 20
READ AS FOLLOWS: 21
Nothing in Sections 1 to 6 of this Act shall be construed to override the requirement to: 22
(1) Provide emergency medical treatment to all patients as set forth in 42 U.S.C. sec. 23
1395dd or any other federal law governing emergency medical treatment; or 24
(2) Conduct examinations and collect evidence set forth in federal law governing 25
sexual assault crimes. 26
SECTION 2. A NEW SECTION OF KRS CHAPTER 344 IS CREATED TO 27
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READ AS FOLLOWS: 1
As used in Sections 1 to 6 of this Act: 2
(1) "Conscience" means the sincerely held religious, moral, or ethical principles 3
held by a health care professional or a health care institution. For purposes of 4
Sections 1 to 6 of this Act, a health care institution's conscience shall be 5
determined by referenc e to its existing or proposed governing documents, 6
including religious, moral, or ethical guidelines, mission statement, constitution, 7
bylaws, articles of incorporation, policies, regulations, or other relevant 8
documents; 9
(2) "Disclosure" means a formal or informal communication or transmission, but 10
does not include a communication or transmission concerning policy decisions 11
that lawfully exercise discretionary authority, unless the health care professional 12
providing the communication or transmission reason ably believes that the 13
communication or transmission evinces: 14
(a) A violation of any law, rule, or regulation; 15
(b) A violation of any standard of care or other ethical guidelines for the 16
provision of any health care service; or 17
(c) Gross mismanagement or w aste of funds, abuse of authority, practices or 18
methods of treatment that may put patient or client health at risk, or a 19
substantial and specific danger to public health or safety; 20
(3) "Discrimination": 21
(a) Means any adverse action taken against, or any th reat of adverse action 22
communicated to, a health care professional or health care institution as a 23
result of exercising his, her, or its rights under Sections 1 to 6 of this Act; 24
(b) Includes but is not limited to any penalty, disciplinary, or retaliatory action, 25
whether executed or threatened; and 26
(c) Does not include: 27
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1. The negotiation or purchase of, or the refusal to use or purchase, 1
health care services by an individual or nongovernmental entity; or 2
2. Good-faith efforts to accommodate a health care professional or 3
health care institution who exercises the rights protected under 4
Sections 1 to 6 of this Act; 5
(4) "Health care institution": 6
(a) Means any public or private hospital, clinic, medical center, professional 7
association, ambulatory surgical cen ter, private physician's office, 8
pharmacy, nursing home, medical school, nursing school, medical training 9
facility, or any other entity or location in which health care services are 10
performed; and 11
(b) Includes but is not limited to organizations, corporat ions, partnerships, 12
associations, agencies, networks, sole proprietorships, joint ventures, or any 13
other entity that provides health care services; 14
(5) "Health care professional": 15
(a) Means any person or individual who is authorized to participate in a he alth 16
care service; and 17
(b) Includes but is not limited to doctors, nurse practitioners, physician's 18
assistants, nurses, nurse's aides, allied health professionals, medical 19
assistants, hospital employees, clinic employees, nursing home employees, 20
pharmacists, pharmacy technicians and employees, medical school faculty 21
and students, nursing faculty and students, psychology and counseling 22
faculty and students, medical researchers, laboratory technicians, 23
counselors, and social workers; 24
(6) "Health care service" means medical research or health care provided to any 25
patient or client at any time over the entire course of treatment or medical 26
research, including but not limited to: 27
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(a) Testing; 1
(b) Diagnosis; 2
(c) Referral; 3
(d) Dispensing or administering any drug, medication, or device; 4
(e) Psychological therapy or counseling; 5
(f) Recordkeeping procedures; 6
(g) Creating medical records and notes related to treatments; 7
(h) Prognosis; or 8
(i) Therapy; 9
(7) "Hiring or licensing author ity" means any official, board, commission, or 10
department of the Commonwealth of Kentucky, its agencies, or political 11
subdivisions, responsible by law for the hiring of persons for public employment 12
or the licensing of persons for occupations; 13
(8) "Participate in a health care service" means to provide, perform, assist with, 14
facilitate, refer for, counsel for, consult with regard to, admit for the purposes of 15
providing, or take part in any way in providing, any health care service; and 16
(9) "Regulated health care entity" means any health care professional or health care 17
institution that is certified, authorized, or licensed by the Commonwealth of 18
Kentucky, or that receives any form of state funding or state insurance 19
reimbursement. 20
SECTION 3. A NEW SECTION OF KRS CHAPTER 344 IS CREATED TO 21
READ AS FOLLOWS: 22
(1) A health care professional or health care institution shall have the right to refuse 23
to participate in any health care service which violates his, her, or its conscience. 24
(2) A health care professional or health care institution shall not be liable civilly, 25
criminally, or administratively for exercising his, her, or its right of conscience 26
with respect to a health care service. 27
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(3) A health care professional or health ca re institution shall not be subject to 1
discrimination in any manner by the Commonwealth, any of its political 2
subdivisions, or any regulated health care entity as a result of his, her, or its 3
decision to decline to participate in a health care service on t he basis of 4
conscience. 5
(4) The exercise of the right of conscience is limited to conscience -based objections 6
to a particular health care service. This section shall not be construed to waive or 7
modify any duty a health care professional or health care ins titution may have to 8
provide other health care services that do not violate the professional’s or 9
institution’s conscience. 10
SECTION 4. A NEW SECTION OF KRS CHAPTER 344 IS CREATED TO 11
READ AS FOLLOWS: 12
(1) A health care professional shall not be discriminated against because he or she: 13
(a) Provided, caused to be provided, or is about to provide to his or her 14
employer, the Attorney General, any agency of the Commonwealth charged 15
with protecting health care rights of conscienc e, the United States 16
Department of Health and Human Services, Office for Civil Rights, or any 17
other federal agency charged with protecting health care rights of 18
conscience with information relating to any act or omission the health care 19
professional reason ably believes to be a violation of any provision of 20
Sections 1 to 6 of this Act; 21
(b) Testified or is about to testify in a proceeding concerning a violation; or 22
(c) Assisted, participated in, or is about to assist or participate in any 23
proceeding related to a violation. 24
(2) Unless the disclosure is prohibited by law, a health care professional shall not be 25
discriminated against because he or she disclosed information that he or she 26
reasonably believes evinces: 27
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(a) A violation of a relevant law, rule, or regulation; 1
(b) A violation of a standard of care or other ethical guideline for the provision 2
of health care services; or 3
(c) Gross mismanagement or waste of funds, abuse of authority, practices or 4
methods of treatment that may put patient or client health a t risk, or a 5
substantial and specific danger to public health or safety. 6
SECTION 5. A NEW SECTION OF KRS CHAPTER 344 IS CREATED TO 7
READ AS FOLLOWS: 8
(1) The Commonwealth and any of its agencies or political subdivisions, including 9
any hiring or licensing authority, shall not reprimand, sanction, deny, revoke, or 10
threaten to revoke a license, certification, or registration of, or otherwise 11
discriminate against, a health care professional for engaging in speech or 12
expressive activity that is protected by the First Amendment to the United States 13
Constitution, unless the Commonwealth, agency, or political subdivision 14
demonstrates that such action is the least restrictive means that is essential to 15
further a compelling government interest. 16
(2) (a) The relevant hiring or licensing authority shall provide a health care 17
professional notice of, and opportunity to respond to, any complaints it has 18
received if, after review of the complaint, the relevant hiring or licensing 19
authority concludes there is sufficient reason to conduct an investigation. 20
(b) The notice under paragraph (a) of this subsection shall be given to the 21
health care professional only, and shall be sent no later than twenty -five 22
(25) days after receipt of the complaint, or within the peri od as otherwise 23
required by statute or administrative regulation, whichever occurs first. 24
(c) The hiring or licensing authority shall pay the health care professional an 25
administrative penalty of fifty dollars ($50) for every two (2) weeks the 26
complaint is not provided to the health care professional if the notice is 27
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provided more than twenty -five (25) days following the receipt of the 1
complaint. 2
SECTION 6. A NEW SECTION OF KRS CHAPTER 344 IS CREATED TO 3
READ AS FOLLOWS: 4
(1) Any person injured by a violation of Sections 1 to 6 of this Act shall have a civil 5
cause of action in Circuit Court to: 6
(a) Enjoin further violations; 7
(b) Recover actual damages sustained; 8
(c) Recover the costs of the action, including reasonable attorney's fees; and 9
(d) Provide any other appropriate relief, which may include reinstatement of a 10
health care professional to his or her previous position, reinstatement of 11
board certification, or relicensure of a health care institution. 12
(2) An additional burden or expense on another health care professional, health care 13
institution, or health care payer arising from the exercise of the right of 14
conscience shall not be a defense to any violation of Sections 1 to 6 of this Act. 15
Section 7. If any provision of this Act or the application thereof to any person 16
or circumstance is held invalid, the invalidity shall not affect other provisions or 17
applications of the Act that can be given effect without the invalid provision or 18
application, and to this end the provisions of this Act are severable. 19
Section 8. This Act may be cited as the Health Care Heroes Recruitment and 20
Retention Act. 21
Section 9. Whereas Kentucky has a health care professional work force 22
shortage and has a paramount interest in recruiting and retaining these professionals 23
through measures that protect their rights of conscience, an emergency is declared to 24
exist, and this Act takes effect upon its passage and approval by the Governor or upon its 25
otherwise becoming a law. 26