Issue Overview
Licensed medical providers must follow a professional code of conduct, which state licensing agencies enforce through established disciplinary procedures.
Many licensed medical providers volunteer at free medical clinics that offer free or low- cost medical care. [Your state may call them “free clinics,” “charitable clinics,” or another term.] These clinics follow standard health care regulations, including requirements for protecting clients’ private health information, restricting who can diagnose and treat people, ensuring proper credentials for mental health providers, regulating who can operate medical equipment, and following basic sanitation and safety rules.
Unregulated Pregnancy Clinics (UPCs) often present themselves as free medical clinics, even though they are not. Their primary goal is to prevent clients, through persuasion, misinformation, or delay, from having an abortion.67 While these organizations have the right to oppose abortion, most use misleading tactics, including ads, signs, and websites presenting their facilities as conventional medical clinics, even, at times, as abortion providers.68 Inside, they often resemble medical offices, with waiting rooms and exam rooms outfitted with medical equipment and staff in lab coats and scrubs. Clients must often fill out intake forms that ask for extensive private health information.69
Between 7270 and 7771 percent of UPCs use ultrasound machines for non-medical purposes. These are not diagnostic tests from which medical conclusions can be drawn. UPCs advertise “limited” ultrasounds,72 which they perform to show clients pictures of the uterus they hope will emotionally influence those considering abortion to continue the pregnancy. UPCs are using this medical equipment unethically;73 even one of the three major UPC umbrella groups, Care Net, acknowledges this when it truthfully addresses the question “Can we just do ultrasounds without becoming a medical clinic?” with the answer, “Absolutely not. The use of ultrasound energy in any form is considered the practice of medicine.”74
UPC intake forms are often invasive. Even though they are not medical providers, many UPCs ask for prescription drug lists, past and current illnesses, and medical conditions unrelated to their services. Some ask inappropriate questions like the name or age of the person who impregnated the client, whether the client is living with someone they aren’t married to, when they first had sex, or whether they have multiple partners or same-sex partners. Collecting such information is unnecessary and likely unethical, given that most UPCs only provide over-the-counter pregnancy tests, STD/STI tests without treatment, lay counseling, and material resources like diapers and wipes. Further, even though they don’t bill insurance, UPCs often ask for clients’ government identification documents, insurance information, income, employer, or eligibility for public assistance.75
Because the vast majority of UPCs are not medical offices, they are not required to protect clients’ personal identifying data and private health information. Unlike standard medical clinics, UPCs are not governed by HIPAA or state privacy laws.76 National UPC organizations admit this.77 Yet many UPCs falsely claim to be “HIPAA compliant,” giving clients a false sense of security.
Many UPCs do not meet basic medical standards. Most states don’t require UPCs to follow any health or safety regulations, not even basic sanitation rules.
Many UPCs have been documented giving clients false or misleading information. For example, clients may be given false information as part of their ultrasound, or gestational age may be willfully miscalculated to delay or deter clients from seeking an abortion.78
The state has a responsibility to protect people from misleading or unethical practices.
The Society for Adolescent Health and Medicine and the North American Society for Pediatric and Adolescent Gynecology jointly stated support for this policy position: “[We] urge all governmental, regulatory (e.g., medical and nursing boards), and accrediting bodies with responsibility for enforcing medical and ethical practice standards to ensure that health care professionals providing services at CPCs and services delivered at CPCs adhere to established standards of care.”79 Similarly, the American Medical Association “urges the development of effective oversight for entities offering pregnancy-related health services and counseling.”80
SECTION 1. SHORT TITLE
This Act shall be called the “Professional Responsibility in Health Care Act.”
SECTION 2. FINDINGS
The legislature finds that:
1. All licensed health care providers in [State] are subject to a code of conduct, which is a set of principles and guidelines that set the ethical and professional standards for those providers.
2. Many licensed health care providers volunteer to staff free medical clinics, which provide medical care mostly to residents who cannot afford health care services because they lack health insurance or are underinsured. At such clinics, licensed health care providers must comply with standard health care regulations, such as those concerning the privacy and security of clients’ sensitive information; requirements about who can order and interpret diagnostic tests; credentialing regulations for those who operate specific types of medical equipment; and basic rules of sanitation and safety. Licensed providers volunteering at free medical clinics is laudable and should be encouraged.
3. Some licensed health care providers volunteer to staff unregulated centers where medical care is secondary to another primary mission. While organizations and individuals have the right to free expression, licensed medical professionals must comply with ethical and professional standards whenever they present themselves as if they were acting in their capacities as licensed providers.
4. It is essential for the State to make explicit the ethical and professional standards that apply to licensed providers volunteering at unregulated free clinics.
SECTION 3. PROFESSIONAL RESPONSIBILITY
After section XXX, the following new section XXX shall be inserted:
[THESE ARE ADDED TO THE EXISTING CODE ABOUT UNPROFESSIONAL CONDUCT]
In addition to any other provision of law, the following conduct by a licensee constitutes unprofessional conduct. When that conduct is by an applicant or person who later becomes an applicant, it may constitute grounds for denial of a license or other disciplinary action. Any of the following items or any combination of items, whether the conduct at issue was committed within or outside the State, shall constitute unprofessional conduct:
(1) Willfully representing, or working alongside, unlicensed health care providers in a manner that misrepresents them to clients as if they were licensed.
(2) Willfully representing to clients, or knowing it is being represented, that the facility where the licensee is working is a medical facility that both diagnoses and treats clients’ medical conditions when, in fact, it does not.
(3) Willfully representing to clients, or knowing it is being represented, that an examination or test, such as an ultrasound examination or STD/STI test, is being conducted or interpreted as if it were a diagnostic examination or test like one at a hospital when, in fact, it is not.
(4) Willfully representing to clients, or knowing it is being represented, that a facility needs a list of the client’s medications, or a thorough medical history, or other sensitive private health information when a reasonable licensee would know that a such information is not needed for the services offered at that facility.
(5) Willfully representing, or knowing it is being represented, that clients’ sensitive private health information is protected by the Health Insurance Portability and Accountability Act (HIPAA) or protected by binding rules that provide privacy and security guarantees, when, in fact, HIPAA or other privacy and security guarantees are not provided.
(6) Willfully representing, or knowing it is being represented, that a facility operates under the sanitation and safety standards of a licensed medical facility when, in fact, it does not.
(7) Willfully providing inaccurate health or medical information to a client, or knowing it is being provided, including misrepresentation of a client’s medical condition.
(8) Willfully representing, or knowing it is being represented, that the designated Medical Director or medical supervisor of a facility does not, in fact, directly supervise the medical care and compliance with regulations and health care standards at that facility.
[NOTE: THE EXISTING CODE IN WHICH THIS IS PLACED ALREADY HAS ENFORCEMENT
MECHANISMS BUILT IN.]
