HB 1875: Gender-Affirming Health Care Services; Reproductive Health Care Services; Protections; Abusive Litigation; Medical Malpractice Insurance; Health Carriers; Protected Health Information; Covered Entities
- Session Year: 2025-2026
- House: House
- Latest Version Date: 2026-04-10
Current Status:
Passed
(2026-05-29: Act 059, on 05/29/2026 (Gov. Msg. No. 1159).)
Introduced
In Committee
First Chamber
In Committee
Second Chamber
Final Decking
Enacted
What does this bill do?
The bill extends Hawaii's privacy and legal protections to include gender-affirming health care as well as reproductive care, shielding patients and providers from out‑of‑state civil or criminal claims and from "abusive litigation" (lawsuits or enforcement actions meant to punish or harass). It also restricts when protected health records can be shared, blocks out‑of‑state subpoenas and state cooperation in such investigations, and stops medical malpractice insurers and health plans from refusing, canceling, or penalizing providers solely for offering lawful reproductive or gender‑affirming services.
The summary is provided by generative AI which can make mistakes. For original language, please view the details in the table below.
Expands the protections established under Act 2, SLH 2023, to include gender-affirming health care services, including clarifying permitted disclosures of protected health information to address changes in federal regulations. Establishes protections against abusive litigation. Prohibits medical malpractice insurers and health carriers from taking certain adverse actions against health care providers solely on the basis that the health care provider provides lawful reproductive health care services or gender-affirming health care services. (SD2)
Expands the protections established under Act 2, SLH 2023, to include gender-affirming health care services, including clarifying permitted disclosures of protected health information to address changes in federal regulations. Establishes protections against abusive litigation. Prohibits medical malpractice insurers and health carriers from taking certain adverse actions against health care providers solely on the basis that the health care provider provides lawful reproductive health care services or gender-affirming health care services. (SD1)
Expands the protections established under Act 2, SLH 2023, to include gender-affirming health care services, including clarifying permitted disclosures of protected health information to address changes in federal regulations. Establishes protections against abusive litigation. Prohibits medical malpractice insurers and health carriers from taking certain adverse actions against health care providers solely on the basis that the health care provider provides lawful reproductive health care services or gender-affirming health care services. Effective 7/1/3000. (HD2)
Expands the protections established under Act 2, SLH 2023, to include gender-affirming health care services, including clarifying permitted disclosures of protected health information to address changes in federal regulations. Establishes protections against abusive litigation. Prohibits medical malpractice insurers and health carriers from taking certain adverse actions against health care providers solely on the basis that the health care provider provides lawful reproductive health care services or gender-affirming care services. Effective 7/1/3000. (HD1)
Expands the protections established under Act 2, SLH 2023, to include gender-affirming health care services, including clarifying permitted disclosures of protected health information to address changes in federal regulations. Establishes protections against abusive litigation. Prohibits medical malpractice insurers and health carriers from taking certain adverse actions against health care providers solely on the basis that the health care provider provides lawful reproductive health care services or gender-affirming care services.
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HOUSE OF REPRESENTATIVES |
H.B. NO. |
1875 |
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THIRTY-THIRD LEGISLATURE, 2026 |
H.D. 2 |
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STATE OF HAWAII |
S.D. 2 |
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A BILL FOR AN ACT
RELATING TO HEALTH CARE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that the people of Hawai‘i have a long tradition of protecting an individual's right to privacy and bodily autonomy independently of, and more broadly than, the United States Constitution. In 2023, the legislature took one of its constitutionally required affirmative steps to implement the right to privacy by passing Act 2, Session Laws of Hawaii 2023 (Act 2), which protected an individual's right to privacy and bodily autonomy within the boundaries of the State, including minors, and declared that the laws of other states authorizing civil actions and criminal prosecutions for receiving, seeking, providing, or aiding and abetting the provision of reproductive health care services are contrary to the State's public policy and prohibit recognition and enforcement of other states' laws that impose civil or criminal liability relating to reproductive health care services.
The legislature further finds that since the passage of Act 2, some states have pursued laws and policies purporting to impose civil or criminal liability, professional disciplinary actions, or otherwise allow for the initiation of abusive litigation in connection with the provision or receipt of, or assistance with, gender-affirming health care services outside of these states' borders.
It is the policy of this State that the rights of equality, liberty, and privacy guaranteed under article I, sections 3, 5, and 6, of the Hawaii State Constitution are fundamental rights and that those rights include an individual's right to make health care decisions about one's own body, including the right to seek and receive health care services that affirm their expressed gender. Due to the shifting legal landscape regarding the right to privacy and an individual's bodily autonomy, the legislature finds it is imperative to reiterate and bolster the State's policy to affirm protection of these rights and freedoms within the state boundaries.
The legislature notes that the term "abusive litigation" is not intended to include standard health care actions or activities of a health payor regarding insurance coverage status, fraud, waste, or the lawful activities of a health payor to enforce its rights under a contract with a person or entity. The legislature further notes that this Act does not expand required health care coverage of any treatments or services or create any new mandates for health insurance coverage in Hawaii.
Accordingly, the purpose of this Act is to:
(1) Expand protections of reproductive health care services established by Act 2, Session Laws of Hawaii 2023, to include gender-affirming health care services and clarify permitted disclosures of protected health information to address changes in federal regulations;
(2) Establish protections against abusive litigation; and
(3) Prohibit medical malpractice insurers and health carriers from taking certain adverse actions against health care providers solely on the basis that the health care provider provides lawful reproductive or gender-affirming health care services.
SECTION 2. Chapter 323J, Hawaii Revised Statutes, is amended by adding three new sections to be appropriately designated and to read as follows:
"§323J- Abusive litigation; prohibited; remedies. (a) If a person or entity, whether or not acting under the color of law, engages in or attempts to engage in abusive litigation, or attempts to enforce any order or judgment issued in connection with any abusive litigation, any aggrieved person may bring a civil action against that person or entity in the circuit court of the circuit in which the aggrieved person resides or in which the aggrieved person accessed, received, provided, facilitated, or attempted to access, receive provide, or facilitate reproductive health care services or gender-affirming health care services. The civil actions may be for:
(1) Injunctive relief;
(2) Actual damages, including the amount of any judgment issued in connection with the abusive litigation;
(3) Expenses, costs, and reasonable attorneys' fees incurred in connection with the abusive litigation;
(4) Expenses, costs, and reasonable attorneys' fees incurred to bring an action under this section; and
(5) Punitive damages.
(b) Any civil action filed pursuant to this section shall be filed within six years after the date the abusive litigation is commenced, or if the person or entity is attempting to enforce an order or a judgment, within six years after the date enforcement is attempted.
(c) Notwithstanding any provision of this section, the requirements set forth herein shall not apply to prohibit standard health care actions or activities of a health payor regarding insurance coverage status, fraud, waste, or lawful activities of a health payor to enforce its rights under a contract with a person or entity.
(d) For the purposes of this section:
"Abusive litigation" means any litigation or other legal action, including civil, criminal, or administrative action, brought against another person or entity for accessing, receiving, providing, facilitating, or attempting to access, receive, provide, or facilitate reproductive health care services or gender-affirming health care services that are lawful under the laws of this State.
"Aggrieved person" means:
(1) A person or entity against whom abusive litigation is filed or prosecuted or against whom an order or judgment issued in connection with such abusive litigation is attempted to be enforced; or
(2) The employer or principal of a person against whom abusive litigation is filed or prosecuted or against whom an order or a judgment issued in connection with such abusive litigation is attempted to be enforced if the action that forms the basis of the abusive litigation was performed within the scope of the person's employment or agency relationship.
§323J- Medical malpractice insurance; prohibited actions. (a) Any insurer that issues medical malpractice insurance in this State shall not take a prohibited action against an applicant for, or the named insured under, a medical malpractice policy in this State solely because the applicant or insured has provided, or assisted in the provision of, reproductive health care services or gender-affirming health care services or made a referral for reproductive health care services or gender-affirming health care services; provided that the care provided by the applicant or insured was consistent with generally accepted standards of practice under the laws of this State and did not otherwise violate the laws of this State.
(b) For the purposes of this section, "prohibited action" means:
(1) Refusing to issue a medical malpractice policy;
(2) Canceling or terminating a medical malpractice policy;
(3) Refusing to renew a medical malpractice policy; or
(4) Imposing any sanctions, fines, penalties, or rate increases that are not supported by actuarial analysis conducted in accordance with the applicable Actuarial Standards of Practice promulgated by the Actuarial Standards Board.
§323J- Health carriers; prohibitions. No group health plan or health insurance insurer offering or renewing a health plan in this State shall terminate or refuse to renew a health care contract with a participating health care provider on the sole basis that the participating provider provides, or assists in the provision of, reproductive health care services or gender-affirming health care services."
SECTION 3. Chapter 323J, Hawaii Revised Statutes, is amended to read as follows:
"[[]CHAPTER
323J[]]
REPRODUCTIVE HEALTH CARE SERVICES AND GENDER-AFFIRMING HEALTH CARE SERVICES
[[]§323J-1[]] Definitions. As used in this chapter, unless the context
otherwise requires:
"Gender-affirming health care services" means a service or product that supports and affirms an individual's actual gender identity as defined in section 432:1‑607.3, including but not limited to all supplies, care, and services of a medical, behavioral health, mental health, surgical, psychiatric, therapeutic, diagnostic, preventative, rehabilitative, or supportive nature, including medication. "Gender-affirming health care services" includes treatment for gender dysphoria and gender incongruence and services provided to two spirit, mahu, transgender, nonbinary, intersex, and other gender diverse individuals.
"Person" includes an individual, partnership, joint venture, corporation, association, business, trust, or any organized group of persons or legal entity, or any combination thereof.
"Reproductive health care services" includes all medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or the termination of a pregnancy.
[[]§323J-2[] Disclosures prohibited.] Protected
health information; use or disclosure, when prohibited; covered entities;
written consent. (a) [Except as provided in rules 504, 504.1,
and 505.5 of the Hawaii rules of evidence and subsection (b) or as authorized
under the Health Insurance Portability and Accountability Act of 1996, P.L.
104-191, and federal regulations promulgated thereunder, in any civil action or
any proceeding preliminary thereto or in any probate, legislative, or
administrative proceeding, no covered entity, as defined in title 45 Code of
Federal Regulations section 160.103, or as the same as may be from time to time
amended or modified, shall disclose:
(1) Any
communication made to the covered entity, or any information obtained by the
covered entity from a patient or the conservator, guardian, or other authorized
legal representative of a patient relating to reproductive health care services
that are permitted under the laws of the State; or
(2) Any information
obtained by personal examination of a patient relating to reproductive health
care services that are permitted under the laws of the State,
unless the patient or that patient's conservator,
guardian, or other authorized legal representative explicitly consents to the
disclosure in writing in the form of a release of protected health information
compliant with the federal Health Insurance Portability and Accountability Act
of 1996, P.L. 104-191, as amended. A
covered entity shall inform the patient or the patient's conservator, guardian,
or other authorized legal representative of the patient's right to withhold the
written consent.
(b) Written consent of the patient or the
patient's conservator, guardian, or other authorized legal representative shall
not be required for the disclosure of the communication or information:
(1) If the records
relate to a patient who is a plaintiff in a complaint pending before a court of
competent jurisdiction alleging health care negligence and a request for
records has been served on a named defendant in that litigation;
(2) If the records
are requested by a licensing authority, as defined in section 436B-2, and the
request is made in connection with an investigation of a complaint to the
licensing authority and the records are related to the complaint, unless the
complaint is made solely on the basis that the licensee, acting within the
licensee's scope of practice, provided reproductive health care services that
are lawful in this State;
(3) To the director
of health for records of a patient of a covered entity in connection with an
investigation of a complaint, if the records are related to the complaint; or
(4) If child abuse,
abuse of an individual who is sixty years of age or older, abuse of an
individual who is physically disabled or incompetent, or abuse of an individual
with an intellectual disability is known or in good faith suspected.]
No covered entity shall use or disclose protected health information for purposes or activities relating to conducting a civil, criminal, or administrative investigation into any person for the mere act of seeking, obtaining, providing, or facilitating reproductive health care services or gender-affirming health care services, or for purposes or activities relating to imposing civil, criminal, or administrative liability on any person for the mere act of seeking, obtaining, providing, or facilitating reproductive health care services or gender-affirming health care services, where the reproductive health care services or gender-affirming health care services are:
(1) Lawful under the laws of this State; or
(2) Protected, required, or authorized by federal law, including the United States Constitution, under the circumstances in which such services are provided, regardless of the state in which they are provided.
For purposes of this subsection, reproductive health care services or gender-affirming health care services are presumed lawful unless the covered entity has actual knowledge that the reproductive health care services or gender-affirming health care services were not lawful under the circumstances in which they were provided, or factual information supplied by the person requesting the use or disclosure of protected health information demonstrates a substantial factual basis that the reproductive health care services or gender-affirming health care services were not lawful under the specific circumstances in which they were provided.
(b) When a covered entity receives a request for protected health information relating to reproductive health care services or gender-affirming health care services and the request is for:
(1) Health oversight activities, as described in title 45 Code of Federal Regulations section 164.512(d), as that section may be amended or modified from time to time;
(2) Judicial and administrative proceedings, as described in title 45 Code of Federal Regulations section 164.512(e), as that section may be amended or modified from time to time;
(3) Law enforcement purposes, as described in title 45 Code of Federal Regulations section 164.512(f), as that section may be amended or modified from time to time; or
(4) Coroners and medical examiners, as described in title 45 Code of Federal Regulations section 164.512(g)(1), as that section may be amended or modified from time to time,
the covered entity may disclose the requested protected health information; provided that the covered entity obtains from the person requesting the protected health information a written, signed attestation that the disclosure is not otherwise prohibited by subsection (a). Any person who knowingly provides a false attestation under this section shall be guilty of a misdemeanor.
(c)
Nothing in this section shall be construed to impede the lawful sharing
of [medical records] protected health information as [permitted
by state or] required by federal law or the [rules of the court,
except in the case of a subpoena or warrant issued by a court, government
agency, or legislative body of another state commanding the production,
copying, or inspection of medical records relating to reproductive health care
services.] laws of this State, or as authorized by the patient or the
patient's conservator, guardian, or other authorized legal representative in a
valid, written authorization for the disclosure that complies with the federal
Health Insurance Portability and Accountability Act of 1996, P.L. 104-191, as
amended, and federal regulations promulgated thereunder; provided that a
covered entity shall inform the patient or the patient's conservator, guardian,
or other authorized legal representative of the patient's right to withhold the
written consent.
(d) As used in this section:
"Covered entity" has the same meaning as in title 45 Code of Federal Regulations section 160.103, as that section may be amended or modified from time to time.
"Protected health information" has the same meaning as in title 45 Code of Federal Regulations section 160.103, as that section may be amended or modified from time to time.
[[]§323J-3[]] Subpoenas; when allowed. Notwithstanding sections 624-27 and 624D-3 or
any other law to the contrary, no court or clerk of a court shall order the
issuance of a subpoena requested by an officer, appointed according to the laws
or usages of another state or government, or by any court of the United States
or of another state or government, in connection with an out-of-state or
interstate investigation or proceeding relating to reproductive health care
services [legally performed in the] or gender-affirming health care
services that are lawful under the laws of this State.
[[]§323J-4[]] Agencies prohibited from providing
information or expending resources.
(a) No agency, as defined in
section 92F-3, or employee, appointee, officer, official, or any other person
acting on behalf of an agency shall provide any nonpublic information or
expend or use time, money, facilities, property, equipment, personnel, or other
resources in furtherance of any out-of-state or interstate investigation or
proceeding seeking to impose civil or criminal liability upon a person or
entity for:
(1) [The provision,
seeking,] Seeking, receiving, paying for, [receipt of,] or
inquiring about reproductive health care services [that are legal in the]
or gender-affirming health care services that are lawful under the laws of
this State; [or]
(2) Providing or responding to an inquiry about reproductive health care services or gender-affirming health care services that are lawful under the laws of this State;
[(2)] (3) Assisting [any person or entity
providing, seeking, receiving, paying for, or responding to an inquiry about
reproductive health care services that are legal in the State.] or
aiding or abetting in any of the conduct described in paragraph (1) or (2); or
(4) Attempting or intending to engage in or providing material support for (or any other theory of vicarious, attempt, joint, several, or conspiracy liability derived therefrom) conduct described in paragraphs (1) to (3).
(b) This section shall not apply to any investigation or proceeding where the conduct subject to potential liability under the investigation or proceeding would be subject to liability under the laws of this State if committed in this State.
[[]§323J-5[]] Prohibition on state action. The State shall not
penalize, prosecute, or otherwise take adverse action against an individual
based on the individual's actual, potential, perceived, or alleged pregnancy or
gender-affirming health care outcomes.
The State shall not penalize, prosecute, or otherwise take adverse
action against a person for aiding or assisting [a]:
(1) A pregnant
individual accessing reproductive health care services [in accordance with]
that are lawful under the laws of [the] this State and
with the pregnant individual's voluntary consent[.]; or
(2) An individual accessing gender-affirming health care services that are lawful under the laws of this State and with the individual's voluntary consent.
[[]§323J-6[]] Denial of demands for surrender. Notwithstanding any provision of chapter 832
to the contrary, the governor shall deny any demand made by the executive
authority of any state for the surrender of any person charged with a crime
under the laws of that state when the alleged crime involves [the provision
or receipt of,]:
(1) Seeking,
receiving, paying for, or [assistance with,] inquiring about
reproductive health care services[,] or gender-affirming health care
services;
(2) Providing or responding to an inquiry about reproductive health care services or gender-affirming health care services;
(3) Assisting or aiding or abetting in any of the conduct described in paragraph (1) or (2); or
(4) Attempting or intending to engage in or providing material support for (or any other theory of vicarious, attempt, joint, several, or conspiracy liability derived therefrom) conduct described in paragraphs (1) to (3),
unless the acts forming the basis of the prosecution would also constitute a criminal offense in this State. This section shall not apply to demands made under Article IV, section 2, of the United States Constitution.
[[]§323J-7[]] Laws contrary to the public policy of this
State. (a) A law of another state authorizing a civil
action or criminal prosecution based on any of the following [is] shall
be declared to be contrary to the public policy of this State:
(1) [Receiving,
seeking, or] Seeking, receiving, paying for, or inquiring about
reproductive health care services[;] or gender-affirming health care
services that are lawful under the laws of this State;
(2) Providing or
responding to an inquiry about reproductive health care services[;] or
gender-affirming health care services that are lawful under the laws of this
State;
(3) [Engaging in
conduct that assists or aids or abets the provision or receipt of reproductive
health care services;] Assisting or aiding or abetting in any of the
conduct described in paragraph (1) or (2); or
(4) Attempting or
intending to engage in or providing material support for (or any other theory
of vicarious, attempt, joint, several or conspiracy liability derived
therefrom) conduct described in paragraphs (1) to (3)[,
in accordance with the laws of this State].
(b) No law described in subsection (a) shall be applied to a case or controversy heard in the courts of this State."
SECTION 4. Section 451J-11, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) The department shall deny, revoke, condition, or suspend a license granted pursuant to this chapter on the following grounds:
(1) Conviction by a
court of competent jurisdiction of a crime [which] that the
department has determined, by rules adopted pursuant to chapter 91, to be of a
nature that renders the person convicted unfit to practice marriage and family
therapy[;], except when the conviction was based on the provision or
assistance in receipt or provision of gender-affirming health care services, as
defined in section 323J-1, so long as the provision or assistance in receipt or
provision of the services was in accordance with the laws of this State or
would have been in accordance with the laws of this State if it occurred within
this State;
(2) Failing to report in writing to the director any disciplinary decision related to the provision of mental health services issued against the licensee or the applicant in any jurisdiction within thirty days of the disciplinary decision, or within thirty days of licensure;
(3) Violation of recognized ethical standards for marriage and family therapists or licensed marriage and family therapists as set by the association;
(4) Fraud or misrepresentation in obtaining or renewing a license, including making a false certification of compliance with the continuing education requirement set forth in section 451J-10;
(5) Revocation,
suspension, or other disciplinary action by any state or federal agency against
a licensee or applicant for any reason provided under this section[;],
except when the revocation, suspension, or other disciplinary action was based
on the provision or assistance in receipt or provision of gender-affirming
health care services, as defined in section 323J-1, so long as the provision or
assistance in receipt or provision of the services was in accordance with the
laws of this State or would have been in accordance with the laws of this State
if it occurred within this State; or
(6) Other just and sufficient cause that renders a person unfit to practice marriage and family therapy."
SECTION 5. Section 451J-12, Hawaii Revised Statutes, is amended to read as follows:
"§451J-12 Confidentiality and privileged communications. No person licensed as a marriage and family therapist or an associate marriage and family therapist, nor any of the person's employees or associates, shall be required to disclose any information that the person may have acquired in rendering marriage and family therapy services except in the following circumstances:
(1) As required by law;
(2) To prevent a clear and immediate danger to a person or persons;
(3) In the course of a
civil, criminal, or disciplinary action arising from the therapy where the
therapist is a defendant[;], except when the civil, criminal, or
disciplinary action by another state or federal agency is based on the
provision or assistance in receipt or provision of gender-affirming health care
services, as defined in section 323J-1, so long as the provision or assistance
in receipt or provision of the services was in accordance with the laws of this
State or would have been in accordance with the laws of this State if it
occurred within this State;
(4) In a criminal proceeding where the client is a defendant and the use of the privilege would violate the defendant's right to a compulsory process of the right to present testimony and witnesses in the defendant's own behalf;
(5) In accordance with the terms of a client's previously written waiver of the privilege; or
(6) Where more than
one person in a family jointly receives therapy and each [family member]
person who is legally competent executes a written waiver[; in]. In that instance, a marriage and
family therapist or an associate marriage and family therapist may disclose
information received from any [family member] person in
accordance with the terms of the person's waiver."
SECTION 6. Section 453-8, Hawaii Revised Statutes, is amended by amending subsections (a), (b), and (c) to read as follows:
"(a) In addition to any other actions authorized by law, any license to practice medicine and surgery may be revoked, limited, or suspended by the board at any time in a proceeding before the board, or may be denied, for any cause authorized by law, including but not limited to the following:
(1) Procuring, or aiding or abetting in procuring, an abortion that is unlawful under the laws of this State or that would be unlawful under the laws of this State if performed within this State;
(2) Employing any person to solicit patients for one's self;
(3) Engaging in false, fraudulent, or deceptive advertising, including but not limited to:
(A) Making excessive claims of expertise in one or more medical specialty fields;
(B) Assuring a permanent cure for an incurable disease; or
(C) Making any untruthful and improbable statement in advertising one's medical or surgical practice or business;
(4) Being habituated to the excessive use of drugs or alcohol; or being addicted to, dependent on, or a habitual user of a narcotic, barbiturate, amphetamine, hallucinogen, or other drug having similar effects;
(5) Practicing medicine while the ability to practice is impaired by alcohol, drugs, physical disability, or mental instability;
(6) Procuring a license through fraud, misrepresentation, or deceit, or knowingly permitting an unlicensed person to perform activities requiring a license;
(7) Professional misconduct, hazardous negligence causing bodily injury to another, or manifest incapacity in the practice of medicine or surgery;
(8) Incompetence or
multiple instances of negligence, including but not limited to the consistent
use of medical service, [which] that is inappropriate or
unnecessary;
(9) Conduct or practice contrary to recognized standards of ethics of the medical profession as adopted by the Hawaii Medical Association, the American Medical Association, the Hawaii Association of Osteopathic Physicians and Surgeons, or the American Osteopathic Association;
(10) Violation of the conditions or limitations upon which a limited or temporary license is issued;
(11) Revocation,
suspension, or other disciplinary action by another state or federal agency of
a license, certificate, or medical privilege, except when the revocation,
suspension, or other disciplinary action was based on the provision or
assistance in receipt or provision of [medical,]:
(A) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State;
(12) Conviction,
whether by nolo contendere or otherwise, of a penal offense substantially
related to the qualifications, functions, or duties of a physician or
osteopathic physician, notwithstanding any statutory provision to the contrary,
except when the conviction was based on the provision or assistance in receipt
or provision of [medical,]:
(A) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State;
(13) Violation of chapter 329, the uniform controlled substances act, or any rule adopted thereunder except as provided in section 329-122;
(14) Failure to report to the board, in writing, any disciplinary decision issued against the licensee or the applicant in another jurisdiction within thirty days after the disciplinary decision is issued; or
(15) Submitting to or
filing with the board any notice, statement, or other document required under
this chapter[, which] that is false or untrue or contains any
material misstatement or omission of fact.
(b) If disciplinary action related to the practice of medicine has been taken against the applicant by another state or federal agency, or if the applicant reveals a physical or mental condition that would constitute a violation under this section, then the board may impose one or more of the following requirements as a condition for licensure:
(1) Physical and mental evaluation of the applicant by a licensed physician or osteopathic physician approved by the board;
(2) Probation, including conditions of probation such as requiring observation of the licensee by an appropriate group or society of licensed physicians, osteopathic physicians, or surgeons;
(3) Limitation of the license by restricting the fields of practice in which the licensee may engage;
(4) Further education or training or proof of performance competency; and
(5) Limitation of the medical practice of the licensee in any reasonable manner to assure the safety and welfare of the consuming public;
provided that the board shall not impose as a condition for licensure any of the requirements pursuant to this subsection if the disciplinary action related to the practice of medicine taken against the applicant was based on the provision or assistance in receipt or provision of medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or the termination of a pregnancy, or the provision or assistance in receipt or provision of gender-affirming health care services, as defined in section 323J-1, so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State.
(c) Notwithstanding any other law to the contrary, the board may deny a license to any applicant who has been disciplined by another state or federal agency, except on the basis of discipline for the provision or assistance in receipt or provision of medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or the termination of a pregnancy, or the provision or assistance in receipt or provision of gender‑affirming health care services, as defined in section 323J-1, so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State. Any final order of discipline taken pursuant to this subsection shall be a matter of public record."
SECTION 7. Section 453-8.6, Hawaii Revised Statutes, is amended as follows:
1. By amending subsection (a) to read:
"(a) Upon receipt of evidence of revocation, suspension, or other disciplinary action against a licensee by another state or federal agency, the board may issue an order imposing disciplinary action upon the licensee on the following conditions:
(1) The board shall serve the licensee with a proposed order imposing disciplinary action as required by chapter 91;
(2) The licensee shall have the right to request a hearing pursuant to chapter 91 to show cause why the action described in the proposed order should not be imposed;
(3) Any request for a hearing shall be made in writing and filed with the board within twenty days after mailing of the proposed order to the licensee; and
(4) If the licensee does not submit a written request for a hearing within twenty days after mailing of the proposed order, the board may issue a final order imposing the disciplinary action described in the proposed order;
provided that the board shall not issue an order imposing disciplinary action upon the licensee if the revocation, suspension, or other disciplinary action against a licensee by another state was based on the provision or assistance in receipt or provision of medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or the termination of a pregnancy, or the provision or assistance in receipt or provision of gender-affirming health care services, as defined in section 323J-1, so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State."
2. By amending subsection (c) to read:
"(c) A licensee against whom the board has issued a proposed order under this section shall be prohibited from practicing in this State until the board issues a final order if:
(1) The licensee was the subject of
disciplinary action by another state, except where the disciplinary
action against the licensee by another state was based on the provision or
assistance in receipt or provision of [medical,]:
(A) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State; and
(2) The disciplinary action by another state prohibits the licensee from practicing in that state."
SECTION 8. Section 453D-12, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) In addition to any other acts or conditions provided by law, the director may refuse to renew, reinstate, or restore, and may deny, revoke, suspend, or condition in any manner, any license for any one or more of the following acts or conditions on the part of a licensee or license applicant:
(1) Failing to meet or maintain the conditions and requirements necessary to qualify for the granting of a license;
(2) Engaging in false, fraudulent, or deceptive advertising, or making untruthful or improbable statements;
(3) Being addicted to, dependent on, or a habitual user of a narcotic, barbiturate, amphetamine, hallucinogen, opium, cocaine, or other drugs or derivatives of a similar nature;
(4) Practicing the licensed profession while impaired by alcohol, drugs, physical disability, or mental instability;
(5) Procuring a license through fraud, misrepresentation, or deceit;
(6) Aiding and abetting an unlicensed person to directly or indirectly perform activities requiring a license;
(7) Professional misconduct, incompetence, gross negligence, or manifest incapacity, in the practice of the licensed profession;
(8) Engaging in conduct or practice contrary to recognized standards of ethics for the licensed profession;
(9) Violating any condition or limitation upon which a conditional or temporary license was issued;
(10) Engaging in business under a past or present license issued pursuant to the licensing laws, in a manner causing injury to one or more members of the public;
(11) Failing to comply
with, observe, or adhere to any law in a manner [such] that the director
deems the applicant or holder to be an unfit or improper person to hold a
license;
(12) Having had a
license revoked or suspended, or having been the subject of other disciplinary
action, by another state or a federal agency for any reason provided by the
licensing laws or this section[;], except when the revocation,
suspension, or other disciplinary action was based on the provision or
assistance in receipt or provision of gender-affirming health care services, as
defined in section 323J-1, so long as the provision or assistance in receipt or
provision of the services was in accordance with the laws of this State or
would have been in accordance with the laws of this State if it occurred within
this State;
(13) Having been
convicted of a crime, whether by nolo contendere or otherwise, directly related
to the qualifications, functions, or duties of the licensed profession[;],
except when the conviction was based on the provision or assistance in receipt
or provision of gender-affirming health care services, as defined in section
323J-1, so long as the provision or assistance in receipt or provision of the
services was in accordance with the laws of this State or would have been in
accordance with the laws of this State if it occurred within this State;
(14) Failing to report in writing to the director any disciplinary decision issued against the licensee or applicant in another jurisdiction within thirty days of the disciplinary decision;
(15) Employing, utilizing, or attempting to employ or utilize, at any time, any person not licensed under the licensing laws where licensure is required; or
(16) Violating this chapter, chapter 436B, or any rule or order of the director."
SECTION 9. Section 453D-13, Hawaii Revised Statutes, is amended to read as follows:
"§453D-13 Confidentiality and privileged communications. No person licensed as a mental health counselor or an associate mental health counselor, nor any of the person's employees or associates, shall be required to disclose any information that the person may have acquired in rendering mental health counseling services, except in the following circumstances:
(1) As required by law;
(2) To prevent a clear and imminent danger to a person or persons;
(3) In accordance with the terms of a previously written waiver of the privilege where the waiver is executed by the client or by the client's legally recognized representative;
(4) Where more than one person jointly receives counseling and each person who is legally competent executes a written waiver. In that instance, information may be disclosed from any person in accordance with that person's waiver; or
(5) In the course of a
disciplinary action or pursuant to a duly authorized subpoena issued by the
department[.], except when the disciplinary action by another state
or federal agency is based on the provision or assistance in receipt or
provision of gender-affirming health care services, as defined in section
323J-1, so long as the provision or assistance in receipt or provision of the
services was in accordance with the laws of this State or would have been in
accordance with the laws of this State if it occurred within this State."
SECTION 10. Section 457-12, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows:
"(a) In addition to any other actions authorized by law, the board shall have the power to deny, revoke, limit, or suspend any license to practice nursing as a registered nurse or as a licensed practical nurse applied for or issued by the board in accordance with this chapter, and to fine or to otherwise discipline a licensee for any cause authorized by law, including but not limited to the following:
(1) Fraud or deceit in procuring or attempting to procure a license to practice nursing as a registered nurse or as a licensed practical nurse;
(2) Gross immorality;
(3) Unfitness or incompetence by reason of negligence, habits, or other causes;
(4) Habitual intemperance, addiction to, or dependency on alcohol or other habit-forming substances;
(5) Mental incompetence;
(6) Unprofessional conduct as defined by the board in accordance with its own rules;
(7) Wilful or repeated violation of any of the provisions of this chapter or any rule adopted by the board;
(8) Revocation,
suspension, limitation, or other disciplinary action by another state of a
nursing license, except when the revocation, suspension, limitation, or other
disciplinary action by another state was based on the provision or assistance
in receipt or provision of [medical,]:
(A) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State;
(9) Conviction,
whether by nolo contendere or otherwise, of a penal offense substantially
related to the qualifications, functions, or duties of a nurse, notwithstanding
any statutory provision to the contrary, except when the conviction was based
on the provision or assistance in receipt or provision of [medical,]:
(A) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State;
(10) Failure to report to the board any disciplinary action taken against the licensee in another jurisdiction within thirty days after the disciplinary action becomes final;
(11) Submitting to or
filing with the board any notice, statement, or other document required under
this chapter[, which] that is false or untrue or contains any
material misstatement of fact, including a false attestation of compliance with
continuing competency requirements; or
(12) Violation of the conditions or limitations upon which any license is issued.
(b)
Notwithstanding any other law to the contrary, the board may deny a
license to any applicant who has been disciplined by another state, except on
the basis of discipline by another state for the provision or assistance in
receipt or provision of [medical,]:
(1) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(2) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State. Any final order entered pursuant to this subsection shall be a matter of public record."
SECTION 11. Section 457-12.5, Hawaii Revised Statutes, is amended as follows:
1. By amending subsection (a) to read:
"(a) Upon receipt of evidence of revocation, suspension, or other disciplinary action against a licensee in another state, the board may issue an order imposing disciplinary action upon the licensee on the following conditions:
(1) The board shall serve the licensee with a proposed order imposing disciplinary action as required by chapter 91;
(2) The licensee shall have the right to request a hearing pursuant to chapter 91 to show cause why the action described in the proposed order should not be imposed;
(3) Any request for a hearing shall be made in writing and filed with the board within twenty days after mailing of the proposed order to the licensee; and
(4) If the licensee does not submit a written request for a hearing within twenty days after mailing of the proposed order, the board shall issue a final order imposing the disciplinary action described in the proposed order;
provided that the board shall not issue an order imposing disciplinary action upon the licensee if the revocation, suspension, or other disciplinary action against a licensee by another state was based on the provision or assistance in receipt or provision of medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or the termination of a pregnancy, or the provision or assistance in receipt or provision of gender-affirming health care services, as defined in section 323J-1, so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State."
2. By amending subsection (c) to read:
"(c) A licensee against whom the board has issued a proposed order under this section shall be prohibited from practicing in this State until the board issues a final order if:
(1) The licensee was
the subject of disciplinary action by another state, except where the
disciplinary action against the licensee by another state was based on the
provision or assistance in receipt or provision of [medical,]:
(A) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State; and
(2) The disciplinary action in the other state prohibits the licensee from practicing in that state."
SECTION 12. Section 461-21.5, Hawaii Revised Statutes, is amended as follows:
1. By amending subsection (a) to read:
"(a) Upon receipt of evidence of revocation, suspension, or other disciplinary action against a licensee by another state or federal agency, the board may issue an order imposing disciplinary action upon the licensee on the following conditions:
(1) The board shall serve the licensee with a proposed order imposing disciplinary action as required by chapter 91;
(2) The licensee shall have the right to request a hearing pursuant to chapter 91 to show cause why the action described in the proposed order should not be imposed;
(3) Any request for a hearing shall be made in writing and filed with the board within twenty days after mailing of the proposed order to the licensee; and
(4) If the licensee does not submit a written request for a hearing within twenty days after mailing of the proposed order, the board shall issue a final order imposing the disciplinary action described in the proposed order;
provided that the board shall not issue an order imposing disciplinary action upon the licensee if the revocation, suspension, or other disciplinary action against a licensee by another state was based on the provision or assistance in receipt or provision of medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or the termination of a pregnancy, or the provision or assistance in receipt or provision of gender-affirming health care services, as defined in section 323J-1, so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State."
2. By amending subsection (c) to read:
"(c) A licensee against whom the board has issued a proposed order under this section shall be prohibited from practicing in this State until the board issues a final order if:
(1) The licensee was the subject of
disciplinary action by another state, except where the disciplinary action
against the licensee by another state was based on the provision or assistance
in receipt or provision of [medical,]:
(A) Medical, surgical, pharmaceutical, counseling,
or referral services relating to the human reproductive system, including but
not limited to services relating to pregnancy, contraception, or the
termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State; and
(2) The disciplinary action by another state prohibits the licensee from practicing in that state."
SECTION 13. Section 465-13, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) In addition to any other actions authorized
by law, the board shall refuse to grant a license to any applicant and may
revoke or suspend any license, or may place a license or [may] put a
license holder on conditional probation, for any cause authorized by law,
including but not limited to the following:
(1) Professional misconduct, gross carelessness, manifest incapacity, or incompetency in the practice of psychology;
(2) Violation of this chapter by the applicant within one year of the application, or violation of this chapter by a license holder any time the license is valid;
(3) Any unethical practice of psychology as defined by the board in accordance with its own rules;
(4) Fraud or deception in applying for or procuring a license to practice psychology as defined in section 465-1;
(5) Conviction of a
crime substantially related to the qualifications, functions, or duties of
psychologists[;], except when the conviction was based on the
provision or assistance in receipt or provision of gender-affirming health care
services, as defined in section 323J-1, so long as the provision or assistance
in receipt or provision of the services was in accordance with the laws of this
State or would have been in accordance with the laws of this State if it
occurred within this State;
(6) Wilful unauthorized communication of information received in professional confidence;
(7) The suspension, revocation, or imposition of probationary conditions by another state of a license or certificate to practice psychology issued by that state if the act for which the disciplinary action was taken constitutes a violation of this chapter;
(8) The commission of any dishonest, corrupt, or fraudulent act or any act of sexual abuse, or sexual relations with a client, or sexual misconduct that is substantially related to the qualifications, functions, or duties of a psychologist;
(9) Harassment, intimidation, or abuse, sexual or otherwise, of a client or patient;
(10) Exercising undue influence in the manner as to exploit the client, patient, student, or supervisee for financial or other personal advantage to the practitioner or a third party;
(11) Conviction of fraud in filing medicaid claims or conviction of fraud in filing claims to any third party payor, for which a copy of the record of conviction, certified by the clerk of the court entering the conviction, shall be conclusive evidence;
(12) Aiding or abetting any unlicensed person to engage in the practice of psychology;
(13) Repeated acts of excessive treatment or use of diagnostic procedures as determined by the standard of the local community of licensees;
(14) Inability to practice psychology with reasonable skill and safety to patients or clients by reason of illness, inebriation, or excessive use of any substance, or as a result of any mental or physical condition;
(15) Conviction of any crime or offense that reflects the inability of the practitioner to practice psychology with due regard for the health and safety of clients or patients;
(16) Use of untruthful or deceptive or improbable statements concerning the licensee's qualifications or the effects or results of proposed treatment;
(17) Functioning outside of the licensee's professional competence established by education, training, and experience;
(18) Refusal to comply with any written order of the board;
(19) Making any fraudulent or untrue statement to the board, including a false certification of compliance with the continuing education requirement of section 465-11; or
(20) Violation of a board rule."
SECTION 14. Section 636C-9, Hawaii Revised Statutes, is amended to read as follows:
"[[]§636C-9[]]
Enforcement of foreign penal civil actions
relating to protected reproductive health care services[.] or
protected gender-affirming health care services. (a) No
judgment or other order arising from a foreign penal civil action or other
penal law banning, restricting, burdening, punishing, penalizing, or otherwise
interfering with the provision of protected reproductive health care services or
protected gender-affirming health care services shall be enforced in this
State.
(b) As used in this section:
"Foreign penal civil action" means an action authorized by the law of a state, or of any municipality or other governmental entity within a state, other than this State, the essential character and effect of which is to punish an offense against the public justice of that state, municipality, or other governmental entity.
"Gender-affirming health care services" has the same meaning as defined in section 323J-1.
"Protected gender-affirming health care services" means gender-affirming health care services that are protected under the Hawaii State Constitution or are otherwise lawful under the laws of this State or that would be constitutionally protected or otherwise lawful if performed within this State.
"Protected reproductive health care services" means medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or termination of a pregnancy, that are protected under the Hawaii State Constitution or are otherwise lawful under the laws of this State or that would be constitutionally protected or otherwise lawful if performed within this State."
SECTION 15. Section 836-2, Hawaii Revised Statutes, is amended to read as follows:
"§836-2 Summoning witness in this
State to testify in another state. (a) If a judge of a court of record in any state
[which] that by its laws has made provision for commanding
persons within that state to attend and testify in this State certifies under
the seal of that court that there is a criminal prosecution pending in that
court, or that a grand jury investigation has commenced or is about to
commence, that a person in this State is a material witness in the prosecution
or grand jury investigation, and that the person's presence will be required
for a specified number of days, upon presentation of the certificate to any
judge of a court of record in this State in the judicial district in which the
person is, the judge shall fix a time and place for a hearing, and shall make
an order directing the witness to appear at a time and place certain for the
hearing.
(b)
If at a hearing the judge determines that the witness is material
and necessary, that it will not cause undue hardship to the witness to be compelled
to attend and testify in the prosecution or a grand jury investigation in the
other state, and that the laws of the state in which the prosecution is
pending, or grand jury investigation has commenced or is about to commence, and
of any other state through which the witness may be required to pass by
ordinary course of travel, will give to the witness protection from arrest and
the service of civil and criminal process, the judge shall issue a summons,
with a copy of the certificate attached, directing the witness to attend and
testify in the court where the prosecution is pending, or where a grand jury
investigation has commenced or is about to commence at a time and place
specified in the summons[, except]; provided that no judge shall
issue a summons in a case where prosecution is pending, or where a grand jury
investigation has commenced or is about to commence for a criminal violation of
a law of another state involving [the provision,]:
(1) Seeking,
receiving, paying for, [receipt of, or assistance with] or
inquiring about reproductive health care services [as defined in section
323J-1] or gender-affirming health care services;
(2) Providing or responding to an inquiry about reproductive health care services or gender-affirming health care services;
(3) Assisting or aiding or abetting in any of the conduct described in paragraph (1) or (2); or
(4) Attempting or intending to engage in or providing material support for (or any other theory of vicarious, attempt, joint, several, or conspiracy liability derived therefrom) conduct described in paragraphs (1) to (3),
unless the acts forming the basis of the prosecution or investigation would also constitute an offense in this State. In any hearing, the certificate shall be prima facie evidence of all the facts stated therein.
(c) If the certificate recommends that the witness be taken into immediate custody and delivered to an officer of the requesting state to assure the witness' attendance in the requesting state, the judge may, in lieu of notification of the hearing, direct that the witness be forthwith brought before the judge for the hearing; and the judge at the hearing being satisfied of the desirability of the custody and delivery, for which determination the certificate shall be prima facie proof of the desirability may, in lieu of issuing subpoena or summons, order that the witness be forthwith taken into custody and delivered to an officer of the requesting state.
(d) If the witness, who is summoned pursuant to this section, after being paid or tendered by some properly authorized person a sum equivalent to the cost of round-trip air fare to the place where the prosecution is pending and $30 for each day, that the witness is required to travel and attend as a witness, fails without good cause to attend and testify as directed in the summons, the witness shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this State.
(e) As used in this section:
"Gender-affirming health care services" has the same meaning as defined in section 323J-1.
"Reproductive health care services" has the same meaning as defined in section 323J-1."
SECTION 16. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.
SECTION 17. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 18. This Act shall take effect on July 1, 2026.
Report Title:
Gender-Affirming Health Care Services; Reproductive Health Care Services; Protections; Abusive Litigation; Medical Malpractice Insurance; Health Carriers; Protected Health Information; Covered Entities
Description:
Expands the protections established under Act 2, SLH 2023, to include gender-affirming health care services, including clarifying permitted disclosures of protected health information to address changes in federal regulations. Establishes protections against abusive litigation. Prohibits medical malpractice insurers and health carriers from taking certain adverse actions against health care providers solely on the basis that the health care provider provides lawful reproductive health care services or gender-affirming health care services. (SD2)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
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HOUSE OF REPRESENTATIVES |
H.B. NO. |
1875 |
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THIRTY-THIRD LEGISLATURE, 2026 |
H.D. 2 |
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STATE OF HAWAII |
S.D. 1 |
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A BILL FOR AN ACT
RELATING TO HEALTH CARE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that the people of Hawai‘i have a long tradition of protecting an individual's right to privacy and bodily autonomy independently of, and more broadly than, the United States Constitution. In 2023, the legislature took one of its constitutionally required affirmative steps to implement the right to privacy by passing Act 2, Session Laws of Hawaii 2023 (Act 2), which protected an individual's right to privacy and bodily autonomy within the boundaries of the State, including minors, and declared that the laws of other states authorizing civil actions and criminal prosecutions for receiving, seeking, providing, or aiding and abetting the provision of reproductive health care services are contrary to the State's public policy and prohibit recognition and enforcement of other states' laws that impose civil or criminal liability relating to reproductive health care services.
The legislature further finds that since the passage of Act 2, some states have pursued laws and policies purporting to impose civil or criminal liability, professional disciplinary actions, or otherwise allow for the initiation of abusive litigation in connection with the provision or receipt of, or assistance with, gender-affirming health care services outside of these states' borders.
It is the policy of this State that the rights of equality, liberty, and privacy guaranteed under article I, sections 3, 5, and 6, of the Hawaii State Constitution are fundamental rights and that those rights include an individual's right to make health care decisions about one's own body, including the right to seek and receive health care services that affirm their expressed gender. Due to the shifting legal landscape regarding the right to privacy and an individual's bodily autonomy, the legislature finds it is imperative to reiterate and bolster the State's policy to affirm protection of these rights and freedoms within the state boundaries.
The legislature notes that the term "abusive litigation" is not intended to include potential insurance disputes over coverage status, medical necessity, fraud, waste and abuse, or the recovery of overpayments. The legislature further notes that this Act does not expand required health care coverage of any treatments or services or create any new mandates for health insurance coverage in Hawaii.
Accordingly, the purpose of this Act is to:
(1) Expand protections of reproductive health care services established by Act 2, Session Laws of Hawaii 2023, to include gender-affirming health care services and clarify permitted disclosures of protected health information to address changes in federal regulations;
(2) Establish protections against abusive litigation; and
(3) Prohibit medical malpractice insurers and health carriers from taking certain adverse actions against health care providers solely on the basis that the health care provider provides lawful reproductive or gender-affirming health care services.
SECTION 2. Chapter 323J, Hawaii Revised Statutes, is amended by adding three new sections to be appropriately designated and to read as follows:
"§323J- Abusive litigation; prohibited; remedies. (a) If a person or entity, whether or not acting under the color of law, engages in or attempts to engage in abusive litigation, or attempts to enforce any order or judgment issued in connection with any such abusive litigation, any aggrieved person may bring a civil action in the circuit court of the circuit in which the aggrieved person resides against that person or entity for:
(1) Injunctive relief;
(2) Actual damages, including the amount of any judgment issued in connection with the abusive litigation;
(3) Expenses, costs, and reasonable attorney's fees incurred in connection with the abusive litigation;
(4) Expenses, costs, and reasonable attorney's fees incurred to bring an action under this section; and
(5) Punitive damages.
(b) Any civil action filed pursuant to this section shall be filed within six years after the date the abusive litigation is commenced, or if the person or entity is attempting to enforce an order or a judgment, within six years after the date enforcement is attempted.
(c) As used in this section:
"Abusive litigation" means any litigation or other legal action, including civil, criminal, or administrative action, brought against another person or entity for accessing, receiving, providing, facilitating, or attempting to access, receive, provide, or facilitate reproductive health care services or gender-affirming health care services that are lawful under the laws of this State.
"Aggrieved person" means:
(1) A person or entity against whom abusive litigation is filed or prosecuted or against whom an order or judgment issued in connection with such abusive litigation is attempted to be enforced; or
(2) The employer or principal of a person against whom abusive litigation is filed or prosecuted or against whom an order or a judgment issued in connection with such abusive litigation is attempted to be enforced if the action that forms the basis of the abusive litigation was performed within the scope of the person's employment or agency relationship.
§323J- Medical malpractice insurance; prohibited actions. (a) Any insurer that issues medical malpractice insurance in this State shall not take a prohibited action against an applicant for, or the named insured under, a medical malpractice policy in this State solely because the applicant or insured has provided, or assisted in the provision of, reproductive health care services or gender-affirming health care services or made a referral for reproductive health care services or gender-affirming health care services; provided that the care provided by the applicant or insured was consistent with generally accepted standards of practice under the laws of this State and did not otherwise violate the laws of this State.
(b) As used in this section, "prohibited action" means:
(1) Refusing to issue a medical malpractice policy;
(2) Canceling or terminating a medical malpractice policy;
(3) Refusing to renew a medical malpractice policy; or
(4) Imposing any sanctions, fines, penalties, or rate increases that are not supported by actuarial analysis conducted in accordance with the applicable Actuarial Standards of Practice promulgated by the Actuarial Standards Board.
§323J- Health carriers; prohibitions. No group health plan or health insurance insurer offering or renewing a health plan in this State shall terminate or refuse to renew a health care contract with a participating health care provider on the sole basis that the participating provider provides, or assists in the provision of, reproductive health care services or gender-affirming health care services."
SECTION 3. Chapter 323J, Hawaii Revised Statutes, is amended to read as follows:
"[[]CHAPTER
323J[]]
REPRODUCTIVE HEALTH CARE SERVICES AND GENDER-AFFIRMING HEALTH CARE SERVICES
[[]§323J-1[]] Definitions. As used in this chapter, unless the context
otherwise requires:
"Gender-affirming health care services" means a service or product with the standard of care, to support and affirm an individual's actual gender identity as defined in section 432:1‑607.3, including but not limited to all supplies, care, and services of a medical, behavioral health, mental health, surgical, psychiatric, therapeutic, diagnostic, preventative, rehabilitative, or supportive nature, including medication. "Gender-affirming health care services" includes treatment for gender dysphoria and gender incongruence and services provided to two spirit, mahu, transgender, nonbinary, intersex, and other gender diverse individuals.
"Person" includes an individual, partnership, joint venture, corporation, association, business, trust, or any organized group of persons or legal entity, or any combination thereof.
"Reproductive health care services" includes all medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or the termination of a pregnancy.
[[]§323J-2[] Disclosures prohibited.] Protected
health information; use or disclosure, when prohibited; covered entities;
written consent. (a) [Except as provided in rules 504, 504.1,
and 505.5 of the Hawaii rules of evidence and subsection (b) or as authorized
under the Health Insurance Portability and Accountability Act of 1996, P.L.
104-191, and federal regulations promulgated thereunder, in any civil action or
any proceeding preliminary thereto or in any probate, legislative, or
administrative proceeding, no covered entity, as defined in title 45 Code of
Federal Regulations section 160.103, or as the same as may be from time to time
amended or modified, shall disclose:
(1) Any
communication made to the covered entity, or any information obtained by the
covered entity from a patient or the conservator, guardian, or other authorized
legal representative of a patient relating to reproductive health care services
that are permitted under the laws of the State; or
(2) Any information
obtained by personal examination of a patient relating to reproductive health
care services that are permitted under the laws of the State,
unless the patient or that patient's conservator,
guardian, or other authorized legal representative explicitly consents to the
disclosure in writing in the form of a release of protected health information
compliant with the federal Health Insurance Portability and Accountability Act
of 1996, P.L. 104-191, as amended. A
covered entity shall inform the patient or the patient's conservator, guardian,
or other authorized legal representative of the patient's right to withhold the
written consent.
(b) Written consent of the patient or the
patient's conservator, guardian, or other authorized legal representative shall
not be required for the disclosure of the communication or information:
(1) If the records
relate to a patient who is a plaintiff in a complaint pending before a court of
competent jurisdiction alleging health care negligence and a request for
records has been served on a named defendant in that litigation;
(2) If the records
are requested by a licensing authority, as defined in section 436B-2, and the
request is made in connection with an investigation of a complaint to the
licensing authority and the records are related to the complaint, unless the
complaint is made solely on the basis that the licensee, acting within the
licensee's scope of practice, provided reproductive health care services that
are lawful in this State;
(3) To the director
of health for records of a patient of a covered entity in connection with an
investigation of a complaint, if the records are related to the complaint; or
(4) If child abuse,
abuse of an individual who is sixty years of age or older, abuse of an
individual who is physically disabled or incompetent, or abuse of an individual
with an intellectual disability is known or in good faith suspected.]
No covered entity shall use or disclose protected health information for purposes or activities relating to conducting a civil, criminal, or administrative investigation into any person for the mere act of seeking, obtaining, providing, or facilitating reproductive health care services or gender-affirming health care services, or for purposes or activities relating to imposing civil, criminal, or administrative liability on any person for the mere act of seeking, obtaining, providing, or facilitating reproductive health care services or gender-affirming health care services, where the reproductive health care services or gender-affirming health care services are:
(1) Lawful under the laws of this State; or
(2) Protected, required, or authorized by federal law, including the United States Constitution, under the circumstances in which such services are provided, regardless of the state in which they are provided.
For purposes of this subsection, reproductive health care services or gender-affirming health care services are presumed lawful unless the covered entity has actual knowledge that the reproductive health care services or gender-affirming health care services were not lawful under the circumstances in which they were provided, or factual information supplied by the person requesting the use or disclosure of protected health information demonstrates a substantial factual basis that the reproductive health care services or gender-affirming health care services were not lawful under the specific circumstances in which they were provided.
(b) When a covered entity receives a request for protected health information relating to reproductive health care services or gender-affirming health care services and the request is for:
(1) Health oversight activities, as described in title 45 Code of Federal Regulations section 164.512(d), as that section may be amended or modified from time to time;
(2) Judicial and administrative proceedings, as described in title 45 Code of Federal Regulations section 164.512(e), as that section may be amended or modified from time to time;
(3) Law enforcement purposes, as described in title 45 Code of Federal Regulations section 164.512(f), as that section may be amended or modified from time to time; or
(4) Coroners and medical examiners, as described in title 45 Code of Federal Regulations section 164.512(g)(1), as that section may be amended or modified from time to time,
the covered entity may disclose the requested protected health information; provided that the covered entity obtains from the person requesting the protected health information a written, signed attestation that the disclosure is not otherwise prohibited by subsection (a). Any person who knowingly provides a false attestation under this section shall be guilty of a misdemeanor.
(c)
Nothing in this section shall be construed to impede the lawful sharing
of [medical records] protected health information as [permitted
by state or] required by federal law or the [rules of the court,
except in the case of a subpoena or warrant issued by a court, government
agency, or legislative body of another state commanding the production,
copying, or inspection of medical records relating to reproductive health care
services.] laws of this State, or as authorized by the patient or the
patient's conservator, guardian, or other authorized legal representative in a
valid, written authorization for the disclosure that complies with the federal
Health Insurance Portability and Accountability Act of 1996, P.L. 104-191, as
amended, and federal regulations promulgated thereunder; provided that a
covered entity shall inform the patient or the patient's conservator, guardian,
or other authorized legal representative of the patient's right to withhold the
written consent.
(d) As used in this section:
"Covered entity" has the same meaning as in title 45 Code of Federal Regulations section 160.103, as that section may be amended or modified from time to time.
"Protected health information" has the same meaning as in title 45 Code of Federal Regulations section 160.103, as that section may be amended or modified from time to time.
[[]§323J-3[]] Subpoenas; when allowed. Notwithstanding sections 624-27 and 624D-3 or
any other law to the contrary, no court or clerk of a court shall order the
issuance of a subpoena requested by an officer, appointed according to the laws
or usages of another state or government, or by any court of the United States
or of another state or government, in connection with an out-of-state or
interstate investigation or proceeding relating to reproductive health care
services [legally performed in the] or gender-affirming health care
services that are lawful under the laws of this State.
[[]§323J-4[]] Agencies prohibited from providing
information or expending resources.
(a) No agency, as defined in
section 92F-3, or employee, appointee, officer, official, or any other person
acting on behalf of an agency shall provide any nonpublic information or
expend or use time, money, facilities, property, equipment, personnel, or other
resources in furtherance of any out-of-state or interstate investigation or
proceeding seeking to impose civil or criminal liability upon a person or
entity for:
(1) [The provision,
seeking,] Seeking, receiving, paying for, [receipt of,] or
inquiring about reproductive health care services [that are legal in the]
or gender-affirming health care services that are lawful under the laws of
this State; [or]
(2) Providing or responding to an inquiry about reproductive health care services or gender-affirming health care services that are lawful under the laws of this State;
[(2)] (3) Assisting [any person or entity
providing, seeking, receiving, paying for, or responding to an inquiry about
reproductive health care services that are legal in the State.] or
aiding or abetting in any of the conduct described in paragraph (1) or (2); or
(4) Attempting or intending to engage in or providing material support for (or any other theory of vicarious, attempt, joint, several, or conspiracy liability derived therefrom) conduct described in paragraphs (1) to (3).
(b) This section shall not apply to any investigation or proceeding where the conduct subject to potential liability under the investigation or proceeding would be subject to liability under the laws of this State if committed in this State.
[[]§323J-5[]] Prohibition on state action. The State shall not
penalize, prosecute, or otherwise take adverse action against an individual
based on the individual's actual, potential, perceived, or alleged pregnancy or
gender-affirming health care outcomes.
The State shall not penalize, prosecute, or otherwise take adverse
action against a person for aiding or assisting [a]:
(1) A pregnant
individual accessing reproductive health care services [in accordance with]
that are lawful under the laws of [the] this State and
with the pregnant individual's voluntary consent[.]; or
(2) An individual accessing gender-affirming health care services that are lawful under the laws of this State and with the individual's voluntary consent.
[[]§323J-6[]] Denial of demands for surrender. Notwithstanding any provision of chapter 832
to the contrary, the governor shall deny any demand made by the executive
authority of any state for the surrender of any person charged with a crime
under the laws of that state when the alleged crime involves [the provision
or receipt of,]:
(1) Seeking,
receiving, paying for, or [assistance with,] inquiring about
reproductive health care services[,] or gender-affirming health care
services;
(2) Providing or responding to an inquiry about reproductive health care services or gender-affirming health care services;
(3) Assisting or aiding or abetting in any of the conduct described in paragraph (1) or (2); or
(4) Attempting or intending to engage in or providing material support for (or any other theory of vicarious, attempt, joint, several, or conspiracy liability derived therefrom) conduct described in paragraphs (1) to (3),
unless the acts forming the basis of the prosecution would also constitute a criminal offense in this State. This section shall not apply to demands made under Article IV, section 2, of the United States Constitution.
[[]§323J-7[]] Laws contrary to the public policy of this
State. (a) A law of another state authorizing a civil
action or criminal prosecution based on any of the following [is] shall
be declared to be contrary to the public policy of this State:
(1) [Receiving,
seeking, or] Seeking, receiving, paying for, or inquiring about
reproductive health care services[;] or gender-affirming health care services
that are lawful under the laws of this State;
(2) Providing or
responding to an inquiry about reproductive health care services[;] or
gender-affirming health care services that are lawful under the laws of this
State;
(3) [Engaging in
conduct that assists or aids or abets the provision or receipt of reproductive
health care services;] Assisting or aiding or abetting in any of the
conduct described in paragraph (1) or (2); or
(4) Attempting or
intending to engage in or providing material support for (or any other theory
of vicarious, attempt, joint, several or conspiracy liability derived
therefrom) conduct described in paragraphs (1) to (3)[,
in accordance with the laws of this State].
(b) No law described in subsection (a) shall be applied to a case or controversy heard in the courts of this State."
SECTION 4. Section 451J-11, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) The department shall deny, revoke, condition, or suspend a license granted pursuant to this chapter on the following grounds:
(1) Conviction by a
court of competent jurisdiction of a crime [which] that the
department has determined, by rules adopted pursuant to chapter 91, to be of a
nature that renders the person convicted unfit to practice marriage and family
therapy[;], except when the conviction was based on the provision or
assistance in receipt or provision of gender-affirming health care services, as
defined in section 323J-1, so long as the provision or assistance in receipt or
provision of the services was in accordance with the laws of this State or
would have been in accordance with the laws of this State if it occurred within
this State;
(2) Failing to report in writing to the director any disciplinary decision related to the provision of mental health services issued against the licensee or the applicant in any jurisdiction within thirty days of the disciplinary decision, or within thirty days of licensure;
(3) Violation of recognized ethical standards for marriage and family therapists or licensed marriage and family therapists as set by the association;
(4) Fraud or misrepresentation in obtaining or renewing a license, including making a false certification of compliance with the continuing education requirement set forth in section 451J-10;
(5) Revocation,
suspension, or other disciplinary action by any state or federal agency against
a licensee or applicant for any reason provided under this section[;],
except when the revocation, suspension, or other disciplinary action was based
on the provision or assistance in receipt or provision of gender-affirming
health care services, as defined in section 323J-1, so long as the provision or
assistance in receipt or provision of the services was in accordance with the
laws of this State or would have been in accordance with the laws of this State
if it occurred within this State; or
(6) Other just and sufficient cause that renders a person unfit to practice marriage and family therapy."
SECTION 5. Section 451J-12, Hawaii Revised Statutes, is amended to read as follows:
"§451J-12 Confidentiality and privileged communications. No person licensed as a marriage and family therapist or an associate marriage and family therapist, nor any of the person's employees or associates, shall be required to disclose any information that the person may have acquired in rendering marriage and family therapy services except in the following circumstances:
(1) As required by law;
(2) To prevent a clear and immediate danger to a person or persons;
(3) In the course of a
civil, criminal, or disciplinary action arising from the therapy where the
therapist is a defendant[;], except when the civil, criminal, or
disciplinary action by another state or federal agency is based on the
provision or assistance in receipt or provision of gender-affirming health care
services, as defined in section 323J-1, so long as the provision or assistance
in receipt or provision of the services was in accordance with the laws of this
State or would have been in accordance with the laws of this State if it
occurred within this State;
(4) In a criminal proceeding where the client is a defendant and the use of the privilege would violate the defendant's right to a compulsory process of the right to present testimony and witnesses in the defendant's own behalf;
(5) In accordance with the terms of a client's previously written waiver of the privilege; or
(6) Where more than
one person in a family jointly receives therapy and each [family member]
person who is legally competent executes a written waiver[; in]. In that instance, a marriage and
family therapist or an associate marriage and family therapist may disclose
information received from any [family member] person in
accordance with the terms of the person's waiver."
SECTION 6. Section 453-8, Hawaii Revised Statutes, is amended by amending subsections (a), (b), and (c) to read as follows:
"(a) In addition to any other actions authorized by law, any license to practice medicine and surgery may be revoked, limited, or suspended by the board at any time in a proceeding before the board, or may be denied, for any cause authorized by law, including but not limited to the following:
(1) Procuring, or aiding or abetting in procuring, an abortion that is unlawful under the laws of this State or that would be unlawful under the laws of this State if performed within this State;
(2) Employing any person to solicit patients for one's self;
(3) Engaging in false, fraudulent, or deceptive advertising, including but not limited to:
(A) Making excessive claims of expertise in one or more medical specialty fields;
(B) Assuring a permanent cure for an incurable disease; or
(C) Making any untruthful and improbable statement in advertising one's medical or surgical practice or business;
(4) Being habituated to the excessive use of drugs or alcohol; or being addicted to, dependent on, or a habitual user of a narcotic, barbiturate, amphetamine, hallucinogen, or other drug having similar effects;
(5) Practicing medicine while the ability to practice is impaired by alcohol, drugs, physical disability, or mental instability;
(6) Procuring a license through fraud, misrepresentation, or deceit, or knowingly permitting an unlicensed person to perform activities requiring a license;
(7) Professional misconduct, hazardous negligence causing bodily injury to another, or manifest incapacity in the practice of medicine or surgery;
(8) Incompetence or
multiple instances of negligence, including but not limited to the consistent
use of medical service, [which] that is inappropriate or
unnecessary;
(9) Conduct or practice contrary to recognized standards of ethics of the medical profession as adopted by the Hawaii Medical Association, the American Medical Association, the Hawaii Association of Osteopathic Physicians and Surgeons, or the American Osteopathic Association;
(10) Violation of the conditions or limitations upon which a limited or temporary license is issued;
(11) Revocation,
suspension, or other disciplinary action by another state or federal agency of
a license, certificate, or medical privilege, except when the revocation,
suspension, or other disciplinary action was based on the provision or
assistance in receipt or provision of [medical,]:
(A) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State;
(12) Conviction,
whether by nolo contendere or otherwise, of a penal offense substantially
related to the qualifications, functions, or duties of a physician or
osteopathic physician, notwithstanding any statutory provision to the contrary,
except when the conviction was based on the provision or assistance in receipt
or provision of [medical,]:
(A) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State;
(13) Violation of chapter 329, the uniform controlled substances act, or any rule adopted thereunder except as provided in section 329-122;
(14) Failure to report to the board, in writing, any disciplinary decision issued against the licensee or the applicant in another jurisdiction within thirty days after the disciplinary decision is issued; or
(15) Submitting to or
filing with the board any notice, statement, or other document required under
this chapter[, which] that is false or untrue or contains any
material misstatement or omission of fact.
(b) If disciplinary action related to the practice of medicine has been taken against the applicant by another state or federal agency, or if the applicant reveals a physical or mental condition that would constitute a violation under this section, then the board may impose one or more of the following requirements as a condition for licensure:
(1) Physical and mental evaluation of the applicant by a licensed physician or osteopathic physician approved by the board;
(2) Probation, including conditions of probation such as requiring observation of the licensee by an appropriate group or society of licensed physicians, osteopathic physicians, or surgeons;
(3) Limitation of the license by restricting the fields of practice in which the licensee may engage;
(4) Further education or training or proof of performance competency; and
(5) Limitation of the medical practice of the licensee in any reasonable manner to assure the safety and welfare of the consuming public;
provided that the board shall not impose as a condition for licensure any of the requirements pursuant to this subsection if the disciplinary action related to the practice of medicine taken against the applicant was based on the provision or assistance in receipt or provision of medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or the termination of a pregnancy, or the provision or assistance in receipt or provision of gender-affirming health care services, as defined in section 323J-1, so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State.
(c) Notwithstanding any other law to the contrary, the board may deny a license to any applicant who has been disciplined by another state or federal agency, except on the basis of discipline for the provision or assistance in receipt or provision of medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or the termination of a pregnancy, or the provision or assistance in receipt or provision of gender‑affirming health care services, as defined in section 323J-1, so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State. Any final order of discipline taken pursuant to this subsection shall be a matter of public record."
SECTION 7. Section 453-8.6, Hawaii Revised Statutes, is amended as follows:
1. By amending subsection (a) to read:
"(a) Upon receipt of evidence of revocation, suspension, or other disciplinary action against a licensee by another state or federal agency, the board may issue an order imposing disciplinary action upon the licensee on the following conditions:
(1) The board shall serve the licensee with a proposed order imposing disciplinary action as required by chapter 91;
(2) The licensee shall have the right to request a hearing pursuant to chapter 91 to show cause why the action described in the proposed order should not be imposed;
(3) Any request for a hearing shall be made in writing and filed with the board within twenty days after mailing of the proposed order to the licensee; and
(4) If the licensee does not submit a written request for a hearing within twenty days after mailing of the proposed order, the board may issue a final order imposing the disciplinary action described in the proposed order;
provided that the board shall not issue an order imposing disciplinary action upon the licensee if the revocation, suspension, or other disciplinary action against a licensee by another state was based on the provision or assistance in receipt or provision of medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or the termination of a pregnancy, or the provision or assistance in receipt or provision of gender-affirming health care services, as defined in section 323J-1, so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State."
2. By amending subsection (c) to read:
"(c) A licensee against whom the board has issued a proposed order under this section shall be prohibited from practicing in this State until the board issues a final order if:
(1) The licensee was the subject of
disciplinary action by another state, except where the disciplinary
action against the licensee by another state was based on the provision or
assistance in receipt or provision of [medical,]:
(A) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State; and
(2) The disciplinary action by another state prohibits the licensee from practicing in that state."
SECTION 8. Section 453D-12, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) In addition to any other acts or conditions provided by law, the director may refuse to renew, reinstate, or restore, and may deny, revoke, suspend, or condition in any manner, any license for any one or more of the following acts or conditions on the part of a licensee or license applicant:
(1) Failing to meet or maintain the conditions and requirements necessary to qualify for the granting of a license;
(2) Engaging in false, fraudulent, or deceptive advertising, or making untruthful or improbable statements;
(3) Being addicted to, dependent on, or a habitual user of a narcotic, barbiturate, amphetamine, hallucinogen, opium, cocaine, or other drugs or derivatives of a similar nature;
(4) Practicing the licensed profession while impaired by alcohol, drugs, physical disability, or mental instability;
(5) Procuring a license through fraud, misrepresentation, or deceit;
(6) Aiding and abetting an unlicensed person to directly or indirectly perform activities requiring a license;
(7) Professional misconduct, incompetence, gross negligence, or manifest incapacity, in the practice of the licensed profession;
(8) Engaging in conduct or practice contrary to recognized standards of ethics for the licensed profession;
(9) Violating any condition or limitation upon which a conditional or temporary license was issued;
(10) Engaging in business under a past or present license issued pursuant to the licensing laws, in a manner causing injury to one or more members of the public;
(11) Failing to comply
with, observe, or adhere to any law in a manner [such] that the director
deems the applicant or holder to be an unfit or improper person to hold a
license;
(12) Having had a
license revoked or suspended, or having been the subject of other disciplinary
action, by another state or a federal agency for any reason provided by the
licensing laws or this section[;], except when the revocation,
suspension, or other disciplinary action was based on the provision or
assistance in receipt or provision of gender-affirming health care services, as
defined in section 323J-1, so long as the provision or assistance in receipt or
provision of the services was in accordance with the laws of this State or
would have been in accordance with the laws of this State if it occurred within
this State;
(13) Having been
convicted of a crime, whether by nolo contendere or otherwise, directly related
to the qualifications, functions, or duties of the licensed profession[;],
except when the conviction was based on the provision or assistance in receipt
or provision of gender-affirming health care services, as defined in section
323J-1, so long as the provision or assistance in receipt or provision of the
services was in accordance with the laws of this State or would have been in
accordance with the laws of this State if it occurred within this State;
(14) Failing to report in writing to the director any disciplinary decision issued against the licensee or applicant in another jurisdiction within thirty days of the disciplinary decision;
(15) Employing, utilizing, or attempting to employ or utilize, at any time, any person not licensed under the licensing laws where licensure is required; or
(16) Violating this chapter, chapter 436B, or any rule or order of the director."
SECTION 9. Section 453D-13, Hawaii Revised Statutes, is amended to read as follows:
"§453D-13 Confidentiality and privileged communications. No person licensed as a mental health counselor or an associate mental health counselor, nor any of the person's employees or associates, shall be required to disclose any information that the person may have acquired in rendering mental health counseling services, except in the following circumstances:
(1) As required by law;
(2) To prevent a clear and imminent danger to a person or persons;
(3) In accordance with the terms of a previously written waiver of the privilege where the waiver is executed by the client or by the client's legally recognized representative;
(4) Where more than one person jointly receives counseling and each person who is legally competent executes a written waiver. In that instance, information may be disclosed from any person in accordance with that person's waiver; or
(5) In the course of a
disciplinary action or pursuant to a duly authorized subpoena issued by the
department[.], except when the disciplinary action by another state
or federal agency is based on the provision or assistance in receipt or
provision of gender-affirming health care services, as defined in section
323J-1, so long as the provision or assistance in receipt or provision of the
services was in accordance with the laws of this State or would have been in
accordance with the laws of this State if it occurred within this State."
SECTION 10. Section 457-12, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows:
"(a) In addition to any other actions authorized by law, the board shall have the power to deny, revoke, limit, or suspend any license to practice nursing as a registered nurse or as a licensed practical nurse applied for or issued by the board in accordance with this chapter, and to fine or to otherwise discipline a licensee for any cause authorized by law, including but not limited to the following:
(1) Fraud or deceit in procuring or attempting to procure a license to practice nursing as a registered nurse or as a licensed practical nurse;
(2) Gross immorality;
(3) Unfitness or incompetence by reason of negligence, habits, or other causes;
(4) Habitual intemperance, addiction to, or dependency on alcohol or other habit-forming substances;
(5) Mental incompetence;
(6) Unprofessional conduct as defined by the board in accordance with its own rules;
(7) Wilful or repeated violation of any of the provisions of this chapter or any rule adopted by the board;
(8) Revocation,
suspension, limitation, or other disciplinary action by another state of a
nursing license, except when the revocation, suspension, limitation, or other
disciplinary action by another state was based on the provision or assistance
in receipt or provision of [medical,]:
(A) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State;
(9) Conviction,
whether by nolo contendere or otherwise, of a penal offense substantially
related to the qualifications, functions, or duties of a nurse, notwithstanding
any statutory provision to the contrary, except when the conviction was based
on the provision or assistance in receipt or provision of [medical,]:
(A) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State;
(10) Failure to report to the board any disciplinary action taken against the licensee in another jurisdiction within thirty days after the disciplinary action becomes final;
(11) Submitting to or
filing with the board any notice, statement, or other document required under
this chapter[, which] that is false or untrue or contains any
material misstatement of fact, including a false attestation of compliance with
continuing competency requirements; or
(12) Violation of the conditions or limitations upon which any license is issued.
(b)
Notwithstanding any other law to the contrary, the board may deny a
license to any applicant who has been disciplined by another state, except on
the basis of discipline by another state for the provision or assistance in
receipt or provision of [medical,]:
(1) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(2) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State. Any final order entered pursuant to this subsection shall be a matter of public record."
SECTION 11. Section 457-12.5, Hawaii Revised Statutes, is amended as follows:
1. By amending subsection (a) to read:
"(a) Upon receipt of evidence of revocation, suspension, or other disciplinary action against a licensee in another state, the board may issue an order imposing disciplinary action upon the licensee on the following conditions:
(1) The board shall serve the licensee with a proposed order imposing disciplinary action as required by chapter 91;
(2) The licensee shall have the right to request a hearing pursuant to chapter 91 to show cause why the action described in the proposed order should not be imposed;
(3) Any request for a hearing shall be made in writing and filed with the board within twenty days after mailing of the proposed order to the licensee; and
(4) If the licensee does not submit a written request for a hearing within twenty days after mailing of the proposed order, the board shall issue a final order imposing the disciplinary action described in the proposed order;
provided that the board shall not issue an order imposing disciplinary action upon the licensee if the revocation, suspension, or other disciplinary action against a licensee by another state was based on the provision or assistance in receipt or provision of medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or the termination of a pregnancy, or the provision or assistance in receipt or provision of gender-affirming health care services, as defined in section 323J-1, so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State."
2. By amending subsection (c) to read:
"(c) A licensee against whom the board has issued a proposed order under this section shall be prohibited from practicing in this State until the board issues a final order if:
(1) The licensee was
the subject of disciplinary action by another state, except where the
disciplinary action against the licensee by another state was based on the
provision or assistance in receipt or provision of [medical,]:
(A) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State; and
(2) The disciplinary action in the other state prohibits the licensee from practicing in that state."
SECTION 12. Section 461-21.5, Hawaii Revised Statutes, is amended as follows:
1. By amending subsection (a) to read:
"(a) Upon receipt of evidence of revocation, suspension, or other disciplinary action against a licensee by another state or federal agency, the board may issue an order imposing disciplinary action upon the licensee on the following conditions:
(1) The board shall serve the licensee with a proposed order imposing disciplinary action as required by chapter 91;
(2) The licensee shall have the right to request a hearing pursuant to chapter 91 to show cause why the action described in the proposed order should not be imposed;
(3) Any request for a hearing shall be made in writing and filed with the board within twenty days after mailing of the proposed order to the licensee; and
(4) If the licensee does not submit a written request for a hearing within twenty days after mailing of the proposed order, the board shall issue a final order imposing the disciplinary action described in the proposed order;
provided that the board shall not issue an order imposing disciplinary action upon the licensee if the revocation, suspension, or other disciplinary action against a licensee by another state was based on the provision or assistance in receipt or provision of medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or the termination of a pregnancy, or the provision or assistance in receipt or provision of gender-affirming health care services, as defined in section 323J-1, so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State."
2. By amending subsection (c) to read:
"(c) A licensee against whom the board has issued a proposed order under this section shall be prohibited from practicing in this State until the board issues a final order if:
(1) The licensee was the subject of
disciplinary action by another state, except where the disciplinary action
against the licensee by another state was based on the provision or assistance
in receipt or provision of [medical,]:
(A) Medical, surgical, pharmaceutical, counseling,
or referral services relating to the human reproductive system, including but
not limited to services relating to pregnancy, contraception, or the
termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State; and
(2) The disciplinary action by another state prohibits the licensee from practicing in that state."
SECTION 13. Section 465-13, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) In addition to any other actions authorized
by law, the board shall refuse to grant a license to any applicant and may
revoke or suspend any license, or may place a license or [may] put a
license holder on conditional probation, for any cause authorized by law,
including but not limited to the following:
(1) Professional misconduct, gross carelessness, manifest incapacity, or incompetency in the practice of psychology;
(2) Violation of this chapter by the applicant within one year of the application, or violation of this chapter by a license holder any time the license is valid;
(3) Any unethical practice of psychology as defined by the board in accordance with its own rules;
(4) Fraud or deception in applying for or procuring a license to practice psychology as defined in section 465-1;
(5) Conviction of a
crime substantially related to the qualifications, functions, or duties of
psychologists[;], except when the conviction was based on the
provision or assistance in receipt or provision of gender-affirming health care
services, as defined in section 323J-1, so long as the provision or assistance
in receipt or provision of the services was in accordance with the laws of this
State or would have been in accordance with the laws of this State if it
occurred within this State;
(6) Wilful unauthorized communication of information received in professional confidence;
(7) The suspension, revocation, or imposition of probationary conditions by another state of a license or certificate to practice psychology issued by that state if the act for which the disciplinary action was taken constitutes a violation of this chapter;
(8) The commission of any dishonest, corrupt, or fraudulent act or any act of sexual abuse, or sexual relations with a client, or sexual misconduct that is substantially related to the qualifications, functions, or duties of a psychologist;
(9) Harassment, intimidation, or abuse, sexual or otherwise, of a client or patient;
(10) Exercising undue influence in the manner as to exploit the client, patient, student, or supervisee for financial or other personal advantage to the practitioner or a third party;
(11) Conviction of fraud in filing medicaid claims or conviction of fraud in filing claims to any third party payor, for which a copy of the record of conviction, certified by the clerk of the court entering the conviction, shall be conclusive evidence;
(12) Aiding or abetting any unlicensed person to engage in the practice of psychology;
(13) Repeated acts of excessive treatment or use of diagnostic procedures as determined by the standard of the local community of licensees;
(14) Inability to practice psychology with reasonable skill and safety to patients or clients by reason of illness, inebriation, or excessive use of any substance, or as a result of any mental or physical condition;
(15) Conviction of any crime or offense that reflects the inability of the practitioner to practice psychology with due regard for the health and safety of clients or patients;
(16) Use of untruthful or deceptive or improbable statements concerning the licensee's qualifications or the effects or results of proposed treatment;
(17) Functioning outside of the licensee's professional competence established by education, training, and experience;
(18) Refusal to comply with any written order of the board;
(19) Making any fraudulent or untrue statement to the board, including a false certification of compliance with the continuing education requirement of section 465-11; or
(20) Violation of a board rule."
SECTION 14. Section 636C-9, Hawaii Revised Statutes, is amended to read as follows:
"[[]§636C-9[]]
Enforcement of foreign penal civil actions
relating to protected reproductive health care services[.] or
protected gender-affirming health care services. (a) No
judgment or other order arising from a foreign penal civil action or other
penal law banning, restricting, burdening, punishing, penalizing, or otherwise
interfering with the provision of protected reproductive health care services or
protected gender-affirming health care services shall be enforced in this
State.
(b) As used in this section:
"Foreign penal civil action" means an action authorized by the law of a state, or of any municipality or other governmental entity within a state, other than this State, the essential character and effect of which is to punish an offense against the public justice of that state, municipality, or other governmental entity.
"Gender-affirming health care services" has the same meaning as in section 323J-1.
"Protected gender-affirming health care services" means gender-affirming health care services that are protected under the Hawaii State Constitution or are otherwise lawful under the laws of this State or that would be constitutionally protected or otherwise lawful if performed within this State.
"Protected reproductive health care services" means medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or termination of a pregnancy, that are protected under the Hawaii State Constitution or are otherwise lawful under the laws of this State or that would be constitutionally protected or otherwise lawful if performed within this State."
SECTION 15. Section 836-2, Hawaii Revised Statutes, is amended to read as follows:
"§836-2 Summoning witness in this
State to testify in another state. (a) If a judge of a court of record in any state
[which] that by its laws has made provision for commanding
persons within that state to attend and testify in this State certifies under
the seal of that court that there is a criminal prosecution pending in that
court, or that a grand jury investigation has commenced or is about to
commence, that a person in this State is a material witness in the prosecution
or grand jury investigation, and that the person's presence will be required
for a specified number of days, upon presentation of the certificate to any
judge of a court of record in this State in the judicial district in which the
person is, the judge shall fix a time and place for a hearing, and shall make
an order directing the witness to appear at a time and place certain for the
hearing.
(b)
If at a hearing the judge determines that the witness is material
and necessary, that it will not cause undue hardship to the witness to be
compelled to attend and testify in the prosecution or a grand jury
investigation in the other state, and that the laws of the state in which the
prosecution is pending, or grand jury investigation has commenced or is about
to commence, and of any other state through which the witness may be required
to pass by ordinary course of travel, will give to the witness protection from
arrest and the service of civil and criminal process, the judge shall issue a
summons, with a copy of the certificate attached, directing the witness to
attend and testify in the court where the prosecution is pending, or where a
grand jury investigation has commenced or is about to commence at a time and
place specified in the summons[, except]; provided that no judge
shall issue a summons in a case where prosecution is pending, or where a grand
jury investigation has commenced or is about to commence for a criminal
violation of a law of another state involving [the provision,]:
(1) Seeking,
receiving, paying for, [receipt of, or assistance with] or
inquiring about reproductive health care services [as defined in section
323J-1] or gender-affirming health care services;
(2) Providing or responding to an inquiry about reproductive health care services or gender-affirming health care services;
(3) Assisting or aiding or abetting in any of the conduct described in paragraph (1) or (2); or
(4) Attempting or intending to engage in or providing material support for (or any other theory of vicarious, attempt, joint, several, or conspiracy liability derived therefrom) conduct described in paragraphs (1) to (3),
unless the acts forming the basis of the prosecution or investigation would also constitute an offense in this State. In any hearing, the certificate shall be prima facie evidence of all the facts stated therein.
(c) If the certificate recommends that the witness be taken into immediate custody and delivered to an officer of the requesting state to assure the witness' attendance in the requesting state, the judge may, in lieu of notification of the hearing, direct that the witness be forthwith brought before the judge for the hearing; and the judge at the hearing being satisfied of the desirability of the custody and delivery, for which determination the certificate shall be prima facie proof of the desirability may, in lieu of issuing subpoena or summons, order that the witness be forthwith taken into custody and delivered to an officer of the requesting state.
(d) If the witness, who is summoned pursuant to this section, after being paid or tendered by some properly authorized person a sum equivalent to the cost of round-trip air fare to the place where the prosecution is pending and $30 for each day, that the witness is required to travel and attend as a witness, fails without good cause to attend and testify as directed in the summons, the witness shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this State.
(e) As used in this section:
"Gender-affirming health care services" has the same meaning as in section 323J-1.
"Reproductive health care services" has the same meaning as in section 323J-1."
SECTION 16. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.
SECTION 17. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 18. This Act shall take effect upon its approval.
Report Title:
Gender-Affirming Health Care Services; Reproductive Health Care Services; Protections; Abusive Litigation; Medical Malpractice Insurance; Health Carriers; Protected Health Information; Covered Entities
Description:
Expands the protections established under Act 2, SLH 2023, to include gender-affirming health care services, including clarifying permitted disclosures of protected health information to address changes in federal regulations. Establishes protections against abusive litigation. Prohibits medical malpractice insurers and health carriers from taking certain adverse actions against health care providers solely on the basis that the health care provider provides lawful reproductive health care services or gender-affirming health care services. (SD1)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
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HOUSE OF REPRESENTATIVES |
H.B. NO. |
1875 |
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THIRTY-THIRD LEGISLATURE, 2026 |
H.D. 2 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO HEALTH CARE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that the people of Hawai‘i have a long tradition of protecting an individual's right to privacy and bodily autonomy independently of, and more broadly than, the federal constitution. In 2023, the legislature took one of its constitutionally required affirmative steps to implement the right to privacy by passing Act 2, Session Laws of Hawaii 2023, (Act 2) which protected an individual's right to privacy and bodily autonomy within the boundaries of the State, including minors, and declared that the laws of other states authorizing civil actions and criminal prosecutions for receiving, seeking, providing, or aiding and abetting the provision of reproductive health care services are contrary to the State's public policy and to prohibit recognition and enforcement of other states' laws that impose civil or criminal liability relating to reproductive health care services.
The legislature further finds that since the passage of Act 2, some states have pursued laws and policies purporting to impose civil or criminal liability, professional disciplinary actions, or otherwise allow for the initiation of abusive litigation in connection with the provision or receipt of, or assistance with, gender-affirming health care services outside of these states' borders.
It is the policy of this State that the rights of equality, liberty, and privacy guaranteed under article I, sections 3, 5, and 6, of the Hawaii State Constitution are fundamental rights and that those rights include an individual's right to make health care decisions about one's own body, including the right to seek and receive health care services that affirm their expressed gender. Due to the shifting legal landscape regarding the right to privacy and an individual's bodily autonomy, the legislature finds it is imperative to reiterate and bolster the State's policy to affirm protection of these rights and freedoms within the state boundaries.
The legislature notes that the term "abusive litigation" is not intended to include potential insurance disputes over coverage status, medical necessity, fraud, waste and abuse, or the recovery of overpayments. The legislature further notes that this Act does not expand required health care coverage of any treatments or services or create any new mandates for health insurance coverage in Hawaii.
Accordingly, the purpose of this Act is to:
(1) Expand protections of reproductive health care services established by Act 2, Session Laws of Hawaii, to include gender-affirming health care services and clarify permitted disclosures of protected health information to address changes in federal regulations;
(2) Establish protections against abusive litigation; and
(3) Prohibit medical malpractice insurers and health carriers from taking certain adverse actions against health care providers solely on the basis that the health care provider provides lawful reproductive or gender-affirming health care services.
SECTION 2. Chapter 323J, Hawaii Revised Statutes, is amended by adding three new sections to be appropriately designated and to read as follows:
"§323J- Abusive litigation; prohibited; remedies. (a) If a person or entity, whether or not acting under the color of law, engages in or attempts to engage in abusive litigation, or attempts to enforce any order or judgment issued in connection with any such abusive litigation, any aggrieved person may bring a civil action in the circuit court of the circuit in which the aggrieved person resides against that person or entity for:
(1) Injunctive relief;
(2) Actual damages, including the amount of any judgment issued in connection with the abusive litigation;
(3) Expenses, costs, and reasonable attorney's fees incurred in connection with the abusive litigation;
(4) Expenses, costs, and reasonable attorney's fees incurred to bring an action under this section; and
(5) Punitive damages.
(b) Any civil action filed pursuant to this section shall be filed within six years after the date the abusive litigation is commenced, or if the person or entity is attempting to enforce an order or a judgment, within six years after the date enforcement is attempted.
(c) As used in this section:
"Abusive litigation" means any litigation or other legal action, including civil, criminal, or administrative action, brought against another person or entity for accessing, receiving, providing, facilitating, or attempting to access, receive, provide, or facilitate reproductive health care services or gender-affirming health care services that are lawful under the laws of this State.
"Aggrieved person" means:
(1) A person or entity against whom abusive litigation is filed or prosecuted or against whom an order or judgment issued in connection with such abusive litigation is attempted to be enforced; or
(2) The employer or principal of a person against whom abusive litigation is filed or prosecuted or against whom an order or a judgment issued in connection with such abusive litigation is attempted to be enforced if the action that forms the basis of the abusive litigation was performed within the scope of the person's employment or agency relationship.
§323J- Medical malpractice insurance; prohibited actions. (a) Any insurer that issues medical malpractice insurance in this State shall not take a prohibited action against an applicant for, or the named insured under, a medical malpractice policy in this State solely because the applicant or insured has provided, or assisted in the provision of, reproductive health care services or gender-affirming health care services or made a referral for reproductive health care services or gender-affirming health care services; provided that the care provided by the applicant or insured was consistent with generally accepted standards of practice under the laws of this State and did not otherwise violate the laws of this State.
(b) As used in this section, "prohibited action" means:
(1) Refusing to issue a medical malpractice policy;
(2) Canceling or terminating a medical malpractice policy;
(3) Refusing to renew a medical malpractice policy; or
(4) Imposing any sanctions, fines, penalties, or rate increases that are not supported by actuarial analysis conducted in accordance with the applicable Actuarial Standards of Practice promulgated by the Actuarial Standards Board.
§323J- Health carriers; prohibitions. No group health plan or health insurance insurer offering or renewing a health plan in this State shall terminate or refuse to renew a health care contract with a participating health care provider on the sole basis that the participating provider provides, or assists in the provision of, reproductive health care services or gender-affirming health care services."
SECTION 3. Chapter 323J, Hawaii Revised Statutes, is amended to read as follows:
"[[]CHAPTER
323J[]]
REPRODUCTIVE HEALTH CARE SERVICES AND GENDER-AFFIRMING HEALTH CARE SERVICES
[[]§323J-1[]] Definitions. As used in this chapter, unless the context
otherwise requires:
"Person" includes an individual, partnership, joint venture, corporation, association, business, trust, or any organized group of persons or legal entity, or any combination thereof.
"Reproductive health care services" includes all medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or the termination of a pregnancy.
[[]§323J-2[] Disclosures prohibited.] Protected
health information; use or disclosure, when prohibited; covered entities;
written consent. (a) [Except as provided in rules 504, 504.1,
and 505.5 of the Hawaii rules of evidence and subsection (b) or as authorized
under the Health Insurance Portability and Accountability Act of 1996, P.L.
104-191, and federal regulations promulgated thereunder, in any civil action or
any proceeding preliminary thereto or in any probate, legislative, or
administrative proceeding, no covered entity, as defined in title 45 Code of
Federal Regulations section 160.103, or as the same as may be from time to time
amended or modified, shall disclose:
(1) Any
communication made to the covered entity, or any information obtained by the
covered entity from a patient or the conservator, guardian, or other authorized
legal representative of a patient relating to reproductive health care services
that are permitted under the laws of the State; or
(2) Any information
obtained by personal examination of a patient relating to reproductive health
care services that are permitted under the laws of the State,
unless the patient or that patient's conservator,
guardian, or other authorized legal representative explicitly consents to the
disclosure in writing in the form of a release of protected health information
compliant with the federal Health Insurance Portability and Accountability Act
of 1996, P.L. 104-191, as amended. A
covered entity shall inform the patient or the patient's conservator, guardian,
or other authorized legal representative of the patient's right to withhold the
written consent.
(b) Written consent of the patient or the
patient's conservator, guardian, or other authorized legal representative shall
not be required for the disclosure of the communication or information:
(1) If the records
relate to a patient who is a plaintiff in a complaint pending before a court of
competent jurisdiction alleging health care negligence and a request for
records has been served on a named defendant in that litigation;
(2) If the records
are requested by a licensing authority, as defined in section 436B-2, and the
request is made in connection with an investigation of a complaint to the
licensing authority and the records are related to the complaint, unless the
complaint is made solely on the basis that the licensee, acting within the
licensee's scope of practice, provided reproductive health care services that
are lawful in this State;
(3) To the director
of health for records of a patient of a covered entity in connection with an
investigation of a complaint, if the records are related to the complaint; or
(4) If child abuse,
abuse of an individual who is sixty years of age or older, abuse of an
individual who is physically disabled or incompetent, or abuse of an individual
with an intellectual disability is known or in good faith suspected.]
No covered entity shall use or disclose protected health information for purposes or activities relating to conducting a civil, criminal, or administrative investigation into any person for the mere act of seeking, obtaining, providing, or facilitating reproductive health care services or gender-affirming health care services, or for purposes or activities relating to imposing civil, criminal, or administrative liability on any person for the mere act of seeking, obtaining, providing, or facilitating reproductive health care services or gender-affirming health care services, where the reproductive health care services or gender-affirming health care services are:
(1) Lawful under the laws of this State; or
(2) Protected, required, or authorized by federal law, including the United States Constitution, under the circumstances in which such services are provided, regardless of the state in which they are provided.
For purposes of this subsection, reproductive health care services or gender-affirming health care services are presumed lawful unless the covered entity has actual knowledge that the reproductive health care services or gender-affirming health care services were not lawful under the circumstances in which they were provided, or factual information supplied by the person requesting the use or disclosure of protected health information demonstrates a substantial factual basis that the reproductive health care services or gender-affirming health care services were not lawful under the specific circumstances in which they were provided.
(b) When a covered entity receives a request for protected health information relating to reproductive health care services or gender-affirming health care services and the request is for:
(1) Health oversight activities, as described in title 45 Code of Federal Regulations section 164.512(d), as that section may be amended or modified from time to time;
(2) Judicial and administrative proceedings, as described in title 45 Code of Federal Regulations section 164.512(e), as that section may be amended or modified from time to time;
(3) Law enforcement purposes, as described in title 45 Code of Federal Regulations section 164.512(f), as that section may be amended or modified from time to time; or
(4) Coroners and medical examiners, as described in title 45 Code of Federal Regulations section 164.512(g)(1), as that section may be amended or modified from time to time,
the covered entity may disclose the requested protected health information; provided that the covered entity obtains from the person requesting the protected health information a written, signed attestation that the disclosure is not otherwise prohibited by subsection (a). Any person who knowingly provides a false attestation under this section shall be guilty of a misdemeanor.
(c)
Nothing in this section shall be construed to impede the lawful sharing
of [medical records] protected health information as [permitted
by state or] required by federal law or the [rules of the court,
except in the case of a subpoena or warrant issued by a court, government
agency, or legislative body of another state commanding the production,
copying, or inspection of medical records relating to reproductive health care
services.] laws of this State, or as authorized by the patient or the
patient's conservator, guardian, or other authorized legal representative in a
valid, written authorization for the disclosure that complies with the federal
Health Insurance Portability and Accountability Act of 1996, P.L. 104-191, as
amended, and federal regulations promulgated thereunder; provided that a
covered entity shall inform the patient or the patient's conservator, guardian,
or other authorized legal representative of the patient's right to withhold the
written consent.
(d) As used in this section:
"Covered entity" has the same meaning as in title 45 Code of Federal Regulations section 160.103, as that section may be amended or modified from time to time.
"Protected health information" has the same meaning as in title 45 Code of Federal Regulations section 160.103, as that section may be amended or modified from time to time.
[[]§323J-3[]] Subpoenas; when allowed. Notwithstanding sections 624-27 and 624D-3 or
any other law to the contrary, no court or clerk of a court shall order the
issuance of a subpoena requested by an officer, appointed according to the laws
or usages of another state or government, or by any court of the United States
or of another state or government, in connection with an out-of-state or
interstate investigation or proceeding relating to reproductive health care
services [legally performed in the] or gender-affirming health care
services that are lawful under the laws of this State.
[[]§323J-4[]] Agencies prohibited from providing
information or expending resources.
(a) No agency, as defined in
section 92F-3, or employee, appointee, officer, official, or any other person
acting on behalf of an agency shall provide any nonpublic information or
expend or use time, money, facilities, property, equipment, personnel, or other
resources in furtherance of any out-of-state or interstate investigation or
proceeding seeking to impose civil or criminal liability upon a person or
entity for:
(1) [The provision,
seeking,] Seeking, receiving, paying for, [receipt of,] or
inquiring about reproductive health care services [that are legal in the]
or gender-affirming health care services that are lawful under the laws of
this State; [or]
(2) Providing or responding to an inquiry about reproductive health care services or gender-affirming health care services that are lawful under the laws of this State;
[(2)] (3) Assisting [any person or entity
providing, seeking, receiving, paying for, or responding to an inquiry about
reproductive health care services that are legal in the State.] or
aiding or abetting in any of the conduct described in paragraph (1) or (2); or
(4) Attempting or intending to engage in or providing material support for (or any other theory of vicarious, attempt, joint, several, or conspiracy liability derived therefrom) conduct described in paragraphs (1) to (3).
(b) This section shall not apply to any investigation or proceeding where the conduct subject to potential liability under the investigation or proceeding would be subject to liability under the laws of this State if committed in this State.
[[]§323J-5[]] Prohibition on state action. The State shall not
penalize, prosecute, or otherwise take adverse action against an individual
based on the individual's actual, potential, perceived, or alleged pregnancy or
gender-affirming health care outcomes.
The State shall not penalize, prosecute, or otherwise take adverse
action against a person for aiding or assisting [a]:
(1) A pregnant
individual accessing reproductive health care services [in accordance with]
that are lawful under the laws of [the] this State and
with the pregnant individual's voluntary consent[.]; or
(2) An individual accessing gender-affirming health care services that are lawful under the laws of this State and with the individual's voluntary consent.
[[]§323J-6[]] Denial of demands for surrender. Notwithstanding any provision of chapter 832
to the contrary, the governor shall deny any demand made by the executive
authority of any state for the surrender of any person charged with a crime
under the laws of that state when the alleged crime involves [the provision
or receipt of,]:
(1) Seeking,
receiving, paying for, or [assistance with,] inquiring about
reproductive health care services[,] or gender-affirming health care
services;
(2) Providing or responding to an inquiry about reproductive health care services or gender-affirming health care services;
(3) Assisting or aiding or abetting in any of the conduct described in paragraph (1) or (2); or
(4) Attempting or intending to engage in or providing material support for (or any other theory of vicarious, attempt, joint, several, or conspiracy liability derived therefrom) conduct described in paragraphs (1) to (3),
unless the acts forming the basis of the prosecution would also constitute a criminal offense in this State. This section shall not apply to demands made under Article IV, section 2, of the United States Constitution.
[[]§323J-7[]] Laws contrary to the public policy of this
State. (a) A law of another state authorizing a civil
action or criminal prosecution based on any of the following [is] shall
be declared to be contrary to the public policy of this State:
(1) [Receiving,
seeking, or] Seeking, receiving, paying for, or inquiring about
reproductive health care services[;] or gender-affirming health care
services that are lawful under the laws of this State;
(2) Providing or
responding to an inquiry about reproductive health care services[;] or
gender-affirming health care services that are lawful under the laws of this
State;
(3) [Engaging in
conduct that assists or aids or abets the provision or receipt of reproductive
health care services;] Assisting or aiding or abetting in any of the
conduct described in paragraph (1) or (2); or
(4) Attempting or
intending to engage in or providing material support for (or any other theory
of vicarious, attempt, joint, several or conspiracy liability derived
therefrom) conduct described in paragraphs (1) to (3)[,
in accordance with the laws of this State].
(b) No law described in subsection (a) shall be applied to a case or controversy heard in the courts of this State."
SECTION 4. Section 451J-11, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) The department shall deny, revoke, condition, or suspend a license granted pursuant to this chapter on the following grounds:
(1) Conviction by a
court of competent jurisdiction of a crime [which] that the
department has determined, by rules adopted pursuant to chapter 91, to be of a
nature that renders the person convicted unfit to practice marriage and family
therapy[;], except when the conviction was based on the provision or
assistance in receipt or provision of gender-affirming health care services, as
defined in section 323J-1, so long as the provision or assistance in receipt or
provision of the services was in accordance with the laws of this State or
would have been in accordance with the laws of this State if it occurred within
this State;
(2) Failing to report in writing to the director any disciplinary decision related to the provision of mental health services issued against the licensee or the applicant in any jurisdiction within thirty days of the disciplinary decision, or within thirty days of licensure;
(3) Violation of recognized ethical standards for marriage and family therapists or licensed marriage and family therapists as set by the association;
(4) Fraud or misrepresentation in obtaining or renewing a license, including making a false certification of compliance with the continuing education requirement set forth in section 451J-10;
(5) Revocation,
suspension, or other disciplinary action by any state or federal agency against
a licensee or applicant for any reason provided under this section[;],
except when the revocation, suspension, or other disciplinary action was based
on the provision or assistance in receipt or provision of gender-affirming
health care services, as defined in section 323J-1, so long as the provision or
assistance in receipt or provision of the services was in accordance with the
laws of this State or would have been in accordance with the laws of this State
if it occurred within this State; or
(6) Other just and sufficient cause that renders a person unfit to practice marriage and family therapy."
SECTION 5. Section 451J-12, Hawaii Revised Statutes, is amended to read as follows:
"§451J-12 Confidentiality and privileged communications. No person licensed as a marriage and family therapist or any associate marriage and family therapist, nor any of the person's employees or associates, shall be required to disclose any information that the person may have acquired in rendering marriage and family therapy services except in the following circumstances:
(1) As required by law;
(2) To prevent a clear and immediate danger to a person or persons;
(3) In the course of a
civil, criminal, or disciplinary action arising from the therapy where the
therapist is a defendant[;], except when the civil, criminal, or
disciplinary action by another state or federal agency is based on the
provision or assistance in receipt or provision of gender-affirming health care
services, as defined in section 323J-1, so long as the provision or assistance
in receipt or provision of the services was in accordance with the laws of this
State or would have been in accordance with the laws of this State if it
occurred within this State;
(4) In a criminal proceeding where the client is a defendant and the use of the privilege would violate the defendant's right to a compulsory process of the right to present testimony and witnesses in the defendant's own behalf;
(5) In accordance with the terms of a client's previously written waiver of the privilege; or
(6) Where more than
one person in a family jointly receives therapy and each [family member]
person who is legally competent executes a written waiver[; in]. In that instance, a marriage and
family therapist or an associate marriage and family therapist may disclose
information received from any [family member] person in
accordance with the terms of the person's waiver."
SECTION 6. Section 453-8, Hawaii Revised Statutes, is amended by amending subsections (a), (b), and (c) to read as follows:
"(a) In addition to any other actions authorized by law, any license to practice medicine and surgery may be revoked, limited, or suspended by the board at any time in a proceeding before the board, or may be denied, for any cause authorized by law, including but not limited to the following:
(1) Procuring, or aiding or abetting in procuring, an abortion that is unlawful under the laws of this State or that would be unlawful under the laws of this State if performed within this State;
(2) Employing any person to solicit patients for one's self;
(3) Engaging in false, fraudulent, or deceptive advertising, including but not limited to:
(A) Making excessive claims of expertise in one or more medical specialty fields;
(B) Assuring a permanent cure for an incurable disease; or
(C) Making any untruthful and improbable statement in advertising one's medical or surgical practice or business;
(4) Being habituated to the excessive use of drugs or alcohol; or being addicted to, dependent on, or a habitual user of a narcotic, barbiturate, amphetamine, hallucinogen, or other drug having similar effects;
(5) Practicing medicine while the ability to practice is impaired by alcohol, drugs, physical disability, or mental instability;
(6) Procuring a license through fraud, misrepresentation, or deceit, or knowingly permitting an unlicensed person to perform activities requiring a license;
(7) Professional misconduct, hazardous negligence causing bodily injury to another, or manifest incapacity in the practice of medicine or surgery;
(8) Incompetence or
multiple instances of negligence, including but not limited to the consistent
use of medical service, [which] that is inappropriate or
unnecessary;
(9) Conduct or practice contrary to recognized standards of ethics of the medical profession as adopted by the Hawaii Medical Association, the American Medical Association, the Hawaii Association of Osteopathic Physicians and Surgeons, or the American Osteopathic Association;
(10) Violation of the conditions or limitations upon which a limited or temporary license is issued;
(11) Revocation,
suspension, or other disciplinary action by another state or federal agency of
a license, certificate, or medical privilege, except when the revocation,
suspension, or other disciplinary action was based on the provision or
assistance in receipt or provision of [medical,]:
(A) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State;
(12) Conviction,
whether by nolo contendere or otherwise, of a penal offense substantially
related to the qualifications, functions, or duties of a physician or
osteopathic physician, notwithstanding any statutory provision to the contrary,
except when the conviction was based on the provision or assistance in receipt
or provision of [medical,]:
(A) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State;
(13) Violation of chapter 329, the uniform controlled substances act, or any rule adopted thereunder except as provided in section 329-122;
(14) Failure to report to the board, in writing, any disciplinary decision issued against the licensee or the applicant in another jurisdiction within thirty days after the disciplinary decision is issued; or
(15) Submitting to or
filing with the board any notice, statement, or other document required under
this chapter[, which] that is false or untrue or contains any
material misstatement or omission of fact.
(b) If disciplinary action related to the practice of medicine has been taken against the applicant by another state or federal agency, or if the applicant reveals a physical or mental condition that would constitute a violation under this section, then the board may impose one or more of the following requirements as a condition for licensure:
(1) Physical and mental evaluation of the applicant by a licensed physician or osteopathic physician approved by the board;
(2) Probation, including conditions of probation such as requiring observation of the licensee by an appropriate group or society of licensed physicians, osteopathic physicians, or surgeons;
(3) Limitation of the license by restricting the fields of practice in which the licensee may engage;
(4) Further education or training or proof of performance competency; and
(5) Limitation of the medical practice of the licensee in any reasonable manner to assure the safety and welfare of the consuming public;
provided that the board shall not impose as a condition for licensure any of the requirements pursuant to this subsection if the disciplinary action related to the practice of medicine taken against the applicant was based on the provision or assistance in receipt or provision of medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or the termination of a pregnancy, or the provision or assistance in receipt or provision of gender-affirming health care services, as defined in section 323J-1, so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State.
(c) Notwithstanding any other law to the contrary, the board may deny a license to any applicant who has been disciplined by another state or federal agency, except on the basis of discipline for the provision or assistance in receipt or provision of medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or the termination of a pregnancy, or the provision or assistance in receipt or provision of gender-affirming health care services, as defined in section 323J-1, so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State. Any final order of discipline taken pursuant to this subsection shall be a matter of public record."
SECTION 7. Section 453-8.6, Hawaii Revised Statutes, is amended as follows:
1. By amending subsection (a) to read:
"(a) Upon receipt of evidence of revocation, suspension, or other disciplinary action against a licensee by another state or federal agency, the board may issue an order imposing disciplinary action upon the licensee on the following conditions:
(1) The board shall serve the licensee with a proposed order imposing disciplinary action as required by chapter 91;
(2) The licensee shall have the right to request a hearing pursuant to chapter 91 to show cause why the action described in the proposed order should not be imposed;
(3) Any request for a hearing shall be made in writing and filed with the board within twenty days after mailing of the proposed order to the licensee; and
(4) If the licensee does not submit a written request for a hearing within twenty days after mailing of the proposed order, the board may issue a final order imposing the disciplinary action described in the proposed order;
provided that the board shall not issue an order imposing disciplinary action upon the licensee if the revocation, suspension, or other disciplinary action against a licensee by another state was based on the provision or assistance in receipt or provision of medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or the termination of a pregnancy, or the provision or assistance in receipt or provision of gender-affirming health care services, as defined in section 323J-1, so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State."
2. By amending subsection (c) to read:
"(c) A licensee against whom the board has issued a proposed order under this section shall be prohibited from practicing in this State until the board issues a final order if:
(1) The licensee was the subject of
disciplinary action by another state, except where the disciplinary
action against the licensee by another state was based on the provision or
assistance in receipt or provision of [medical,]:
(A) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State; and
(2) The disciplinary action by another state prohibits the licensee from practicing in that state."
SECTION 8. Section 453D-12, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) In addition to any other acts or conditions provided by law, the director may refuse to renew, reinstate, or restore, and may deny, revoke, suspend, or condition in any manner, any license for any one or more of the following acts or conditions on the part of a licensee or license applicant:
(1) Failing to meet or maintain the conditions and requirements necessary to qualify for the granting of a license;
(2) Engaging in false, fraudulent, or deceptive advertising, or making untruthful or improbable statements;
(3) Being addicted to, dependent on, or a habitual user of a narcotic, barbiturate, amphetamine, hallucinogen, opium, cocaine, or other drugs or derivatives of a similar nature;
(4) Practicing the licensed profession while impaired by alcohol, drugs, physical disability, or mental instability;
(5) Procuring a license through fraud, misrepresentation, or deceit;
(6) Aiding and abetting an unlicensed person to directly or indirectly perform activities requiring a license;
(7) Professional misconduct, incompetence, gross negligence, or manifest incapacity, in the practice of the licensed profession;
(8) Engaging in conduct or practice contrary to recognized standards of ethics for the licensed profession;
(9) Violating any condition or limitation upon which a conditional or temporary license was issued;
(10) Engaging in business under a past or present license issued pursuant to the licensing laws, in a manner causing injury to one or more members of the public;
(11) Failing to comply
with, observe, or adhere to any law in a manner [such] that the director
deems the applicant or holder to be an unfit or improper person to hold a
license;
(12) Having had a
license revoked or suspended, or having been the subject of other disciplinary
action, by another state or a federal agency for any reason provided by the
licensing laws or this section[;], except when the revocation,
suspension, or other disciplinary action was based on the provision or
assistance in receipt or provision of gender-affirming health care services, as
defined in section 323J-1, so long as the provision or assistance in receipt or
provision of the services was in accordance with the laws of this State or
would have been in accordance with the laws of this State if it occurred within
this State;
(13) Having been
convicted of a crime, whether by nolo contendere or otherwise, directly related
to the qualifications, functions, or duties of the licensed profession[;],
except when the conviction was based on the provision or assistance in receipt
or provision of gender-affirming health care services, as defined in section
323J-1, so long as the provision or assistance in receipt or provision of the
services was in accordance with the laws of this State or would have been in
accordance with the laws of this State if it occurred within this State;
(14) Failing to report in writing to the director any disciplinary decision issued against the licensee or applicant in another jurisdiction within thirty days of the disciplinary decision;
(15) Employing, utilizing, or attempting to employ or utilize, at any time, any person not licensed under the licensing laws where licensure is required; or
(16) Violating this chapter, chapter 436B, or any rule or order of the director."
SECTION 9. Section 453D-13, Hawaii Revised Statutes, is amended to read as follows:
"§453D-13 Confidentiality and privileged communications. No person licensed as a mental health counselor or an associate mental health counselor, nor any of the person's employees or associates, shall be required to disclose any information that the person may have acquired in rendering mental health counseling services, except in the following circumstances:
(1) As required by law;
(2) To prevent a clear and imminent danger to a person or persons;
(3) In accordance with the terms of a previously written waiver of the privilege where the waiver is executed by the client or by the client's legally recognized representative;
(4) Where more than one person jointly receives counseling and each person who is legally competent executes a written waiver. In that instance, information may be disclosed from any person in accordance with that person's waiver; or
(5) In the course of a
disciplinary action or pursuant to a duly authorized subpoena issued by the
department[.], except when the disciplinary action by another state
or federal agency is based on the provision or assistance in receipt or
provision of gender-affirming health care services, as defined in section
323J-1, so long as the provision or assistance in receipt or provision of the
services was in accordance with the laws of this State or would have been in
accordance with the laws of this State if it occurred within this State."
SECTION 10. Section 457-12, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows:
"(a) In addition to any other actions authorized by law, the board shall have the power to deny, revoke, limit, or suspend any license to practice nursing as a registered nurse or as a licensed practical nurse applied for or issued by the board in accordance with this chapter, and to fine or to otherwise discipline a licensee for any cause authorized by law, including but not limited to the following:
(1) Fraud or deceit in procuring or attempting to procure a license to practice nursing as a registered nurse or as a licensed practical nurse;
(2) Gross immorality;
(3) Unfitness or incompetence by reason of negligence, habits, or other causes;
(4) Habitual intemperance, addiction to, or dependency on alcohol or other habit-forming substances;
(5) Mental incompetence;
(6) Unprofessional conduct as defined by the board in accordance with its own rules;
(7) Wilful or repeated violation of any of the provisions of this chapter or any rule adopted by the board;
(8) Revocation,
suspension, limitation, or other disciplinary action by another state of a
nursing license, except when the revocation, suspension, limitation, or other
disciplinary action by another state was based on the provision or assistance
in receipt or provision of [medical,]:
(A) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State;
(9) Conviction,
whether by nolo contendere or otherwise, of a penal offense substantially
related to the qualifications, functions, or duties of a nurse, notwithstanding
any statutory provision to the contrary, except when the conviction was based
on the provision or assistance in receipt or provision of [medical,]:
(A) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State;
(10) Failure to report to the board any disciplinary action taken against the licensee in another jurisdiction within thirty days after the disciplinary action becomes final;
(11) Submitting to or
filing with the board any notice, statement, or other document required under
this chapter[, which] that is false or untrue or contains any
material misstatement of fact, including a false attestation of compliance with
continuing competency requirements; or
(12) Violation of the conditions or limitations upon which any license is issued.
(b)
Notwithstanding any other law to the contrary, the board may deny a
license to any applicant who has been disciplined by another state, except on
the basis of discipline by another state for the provision or assistance in
receipt or provision of [medical,]:
(1) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(2) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State. Any final order entered pursuant to this subsection shall be a matter of public record."
SECTION 11. Section 457-12.5, Hawaii Revised Statutes, is amended as follows:
1. By amending subsection (a) to read:
"(a) Upon receipt of evidence of revocation, suspension, or other disciplinary action against a licensee in another state, the board may issue an order imposing disciplinary action upon the licensee on the following conditions:
(1) The board shall serve the licensee with a proposed order imposing disciplinary action as required by chapter 91;
(2) The licensee shall have the right to request a hearing pursuant to chapter 91 to show cause why the action described in the proposed order should not be imposed;
(3) Any request for a hearing shall be made in writing and filed with the board within twenty days after mailing of the proposed order to the licensee; and
(4) If the licensee does not submit a written request for a hearing within twenty days after mailing of the proposed order, the board shall issue a final order imposing the disciplinary action described in the proposed order;
provided that the board shall not issue an order imposing disciplinary action upon the licensee if the revocation, suspension, or other disciplinary action against a licensee by another state was based on the provision or assistance in receipt or provision of medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or the termination of a pregnancy, or the provision or assistance in receipt or provision of gender-affirming health care services, as defined in section 323J-1, so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State."
2. By amending subsection (c) to read:
"(c) A licensee against whom the board has issued a proposed order under this section shall be prohibited from practicing in this State until the board issues a final order if:
(1) The licensee was
the subject of disciplinary action by another state, except where the
disciplinary action against the licensee by another state was based on the
provision or assistance in receipt or provision of [medical,]:
(A) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State; and
(2) The disciplinary action in the other state prohibits the licensee from practicing in that state."
SECTION 12. Section 461-21.5, Hawaii Revised Statutes, is amended as follows:
1. By amending subsection (a) to read:
"(a) Upon receipt of evidence of revocation, suspension, or other disciplinary action against a licensee by another state or federal agency, the board may issue an order imposing disciplinary action upon the licensee on the following conditions:
(1) The board shall serve the licensee with a proposed order imposing disciplinary action as required by chapter 91;
(2) The licensee shall have the right to request a hearing pursuant to chapter 91 to show cause why the action described in the proposed order should not be imposed;
(3) Any request for a hearing shall be made in writing and filed with the board within twenty days after mailing of the proposed order to the licensee; and
(4) If the licensee does not submit a written request for a hearing within twenty days after mailing of the proposed order, the board shall issue a final order imposing the disciplinary action described in the proposed order;
provided that the board shall not issue an order imposing disciplinary action upon the licensee if the revocation, suspension, or other disciplinary action against a licensee by another state was based on the provision or assistance in receipt or provision of medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or the termination of a pregnancy, or the provision or assistance in receipt or provision of gender-affirming health care services, as defined in section 323J-1, so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State."
2. By amending subsection (c) to read:
"(c) A licensee against whom the board has issued a proposed order under this section shall be prohibited from practicing in this State until the board issues a final order if:
(1) The licensee was the subject of
disciplinary action by another state, except where the disciplinary action
against the licensee by another state was based on the provision or assistance
in receipt or provision of [medical,]:
(A) Medical, surgical, pharmaceutical, counseling,
or referral services relating to the human reproductive system, including but
not limited to services relating to pregnancy, contraception, or the
termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State; and
(2) The disciplinary action by another state prohibits the licensee from practicing in that state."
SECTION 13. Section 465-13, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) In addition to any other actions authorized
by law, the board shall refuse to grant a license to any applicant and may
revoke or suspend any license, or may place a license or [may] put a
license holder on conditional probation, for any cause authorized by law,
including but not limited to the following:
(1) Professional misconduct, gross carelessness, manifest incapacity, or incompetency in the practice of psychology;
(2) Violation of this chapter by the applicant within one year of the application, or violation of this chapter by a license holder any time the license is valid;
(3) Any unethical practice of psychology as defined by the board in accordance with its own rules;
(4) Fraud or deception in applying for or procuring a license to practice psychology as defined in section 465-1;
(5) Conviction of a
crime substantially related to the qualifications, functions, or duties of
psychologists[;], except when the conviction was based on the
provision or assistance in receipt or provision of gender-affirming health care
services, as defined in section 323J-1, so long as the provision or assistance
in receipt or provision of the services was in accordance with the laws of this
State or would have been in accordance with the laws of this State if it
occurred within this State;
(6) Wilful unauthorized communication of information received in professional confidence;
(7) The suspension, revocation, or imposition of probationary conditions by another state of a license or certificate to practice psychology issued by that state if the act for which the disciplinary action was taken constitutes a violation of this chapter;
(8) The commission of any dishonest, corrupt, or fraudulent act or any act of sexual abuse, or sexual relations with a client, or sexual misconduct that is substantially related to the qualifications, functions, or duties of a psychologist;
(9) Harassment, intimidation, or abuse, sexual or otherwise, of a client or patient;
(10) Exercising undue influence in the manner as to exploit the client, patient, student, or supervisee for financial or other personal advantage to the practitioner or a third party;
(11) Conviction of fraud in filing medicaid claims or conviction of fraud in filing claims to any third party payor, for which a copy of the record of conviction, certified by the clerk of the court entering the conviction, shall be conclusive evidence;
(12) Aiding or abetting any unlicensed person to engage in the practice of psychology;
(13) Repeated acts of excessive treatment or use of diagnostic procedures as determined by the standard of the local community of licensees;
(14) Inability to practice psychology with reasonable skill and safety to patients or clients by reason of illness, inebriation, or excessive use of any substance, or as a result of any mental or physical condition;
(15) Conviction of any crime or offense that reflects the inability of the practitioner to practice psychology with due regard for the health and safety of clients or patients;
(16) Use of untruthful or deceptive or improbable statements concerning the licensee's qualifications or the effects or results of proposed treatment;
(17) Functioning outside of the licensee's professional competence established by education, training, and experience;
(18) Refusal to comply with any written order of the board;
(19) Making any fraudulent or untrue statement to the board, including a false certification of compliance with the continuing education requirement of section 465-11; or
(20) Violation of a board rule."
SECTION 14. Section 636C-9, Hawaii Revised Statutes, is amended to read as follows:
"[[]§636C-9[]]
Enforcement of foreign penal civil actions
relating to protected reproductive health care services[.] or
protected gender-affirming health care services. (a) No
judgment or other order arising from a foreign penal civil action or other
penal law banning, restricting, burdening, punishing, penalizing, or otherwise
interfering with the provision of protected reproductive health care services or
protected gender-affirming health care services shall be enforced in this
State.
(b) As used in this section:
"Foreign penal civil action" means an action authorized by the law of a state, or of any municipality or other governmental entity within a state, other than this State, the essential character and effect of which is to punish an offense against the public justice of that state, municipality, or other governmental entity.
"Gender-affirming health care services" has the same meaning as in section 323J-1.
"Protected gender-affirming health care services" means gender-affirming health care services that are protected under the Hawaii State Constitution or are otherwise lawful under the laws of this State or that would be constitutionally protected or otherwise lawful if performed within this State.
"Protected reproductive health care services" means medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or termination of a pregnancy, that are protected under the Hawaii State Constitution or are otherwise lawful under the laws of this State or that would be constitutionally protected or otherwise lawful if performed within this State."
SECTION 15. Section 836-2, Hawaii Revised Statutes, is amended to read as follows:
"§836-2 Summoning witness in this
State to testify in another state. (a) If a judge of a court of record in any state
[which] that by its laws has made provision for commanding
persons within that state to attend and testify in this State certifies under
the seal of that court that there is a criminal prosecution pending in that
court, or that a grand jury investigation has commenced or is about to
commence, that a person in this State is a material witness in the prosecution
or grand jury investigation, and that the person's presence will be required
for a specified number of days, upon presentation of the certificate to any
judge of a court of record in this State in the judicial district in which the
person is, the judge shall fix a time and place for a hearing, and shall make
an order directing the witness to appear at a time and place certain for the
hearing.
(b)
If at a hearing the judge determines that the witness is material
and necessary, that it will not cause undue hardship to the witness to be
compelled to attend and testify in the prosecution or a grand jury
investigation in the other state, and that the laws of the state in which the
prosecution is pending, or grand jury investigation has commenced or is about
to commence, and of any other state through which the witness may be required
to pass by ordinary course of travel, will give to the witness protection from
arrest and the service of civil and criminal process, the judge shall issue a
summons, with a copy of the certificate attached, directing the witness to
attend and testify in the court where the prosecution is pending, or where a
grand jury investigation has commenced or is about to commence at a time and
place specified in the summons[, except]; provided that no judge
shall issue a summons in a case where prosecution is pending, or where a grand
jury investigation has commenced or is about to commence for a criminal
violation of a law of another state involving [the provision,]:
(1) Seeking,
receiving, paying for, [receipt of, or assistance with] or
inquiring about reproductive health care services [as defined in section
323J-1] or gender-affirming health care services;
(2) Providing or responding to an inquiry about reproductive health care services or gender-affirming health care services;
(3) Assisting or aiding or abetting in any of the conduct described in paragraph (1) or (2); or
(4) Attempting or intending to engage in or providing material support for (or any other theory of vicarious, attempt, joint, several, or conspiracy liability derived therefrom) conduct described in paragraphs (1) to (3),
unless the acts forming the basis of the prosecution or investigation would also constitute an offense in this State. In any hearing, the certificate shall be prima facie evidence of all the facts stated therein.
(c) If the certificate recommends that the witness be taken into immediate custody and delivered to an officer of the requesting state to assure the witness' attendance in the requesting state, the judge may, in lieu of notification of the hearing, direct that the witness be forthwith brought before the judge for the hearing; and the judge at the hearing being satisfied of the desirability of the custody and delivery, for which determination the certificate shall be prima facie proof of the desirability may, in lieu of issuing subpoena or summons, order that the witness be forthwith taken into custody and delivered to an officer of the requesting state.
(d) If the witness, who is summoned pursuant to this section, after being paid or tendered by some properly authorized person a sum equivalent to the cost of round-trip air fare to the place where the prosecution is pending and $30 for each day, that the witness is required to travel and attend as a witness, fails without good cause to attend and testify as directed in the summons, the witness shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this State.
(e) As used in this section:
"Gender-affirming health care services" has the same meaning as in section 323J-1.
"Reproductive health care services" has the same meaning as in section 323J-1."
SECTION 16. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.
SECTION 17. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 18. This Act shall take effect on July 1, 3000.
Report Title:
Gender-Affirming Health Care Services; Reproductive Health Care Services; Protections; Abusive Litigation; Medical Malpractice Insurance; Health Carriers; Protected Health Information; Covered Entities
Description:
Expands the protections established under Act 2, SLH 2023, to include gender-affirming health care services, including clarifying permitted disclosures of protected health information to address changes in federal regulations. Establishes protections against abusive litigation. Prohibits medical malpractice insurers and health carriers from taking certain adverse actions against health care providers solely on the basis that the health care provider provides lawful reproductive health care services or gender-affirming health care services. Effective 7/1/3000. (HD2)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
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HOUSE OF REPRESENTATIVES |
H.B. NO. |
1875 |
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THIRTY-THIRD LEGISLATURE, 2026 |
H.D. 1 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO HEALTH CARE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Chapter 323J, Hawaii Revised Statutes, is amended by adding three new sections to be appropriately designated and to read as follows:
"§323J- Abusive litigation; prohibited; remedies. (a) If a person or entity, whether or not acting under the color of law, engages in or attempts to engage in abusive litigation, or attempts to enforce any order or judgment issued in connection with any such abusive litigation, any aggrieved person may bring a civil action in the circuit court of the circuit in which the aggrieved person resides against that person or entity for:
(1) Injunctive relief;
(2) Actual damages, including the amount of any judgment issued in connection with the abusive litigation;
(3) Expenses, costs, and reasonable attorney's fees incurred in connection with the abusive litigation;
(4) Expenses, costs, and reasonable attorney's fees incurred to bring an action under this section; and
(5) Punitive damages.
(b) Any civil action filed pursuant to this section shall be filed within six years after the date the abusive litigation is commenced, or if the person or entity is attempting to enforce an order or a judgment, within six years after the date enforcement is attempted.
(c) As used in this section:
"Abusive litigation" means any litigation or other legal action, including civil, criminal, or administrative action, brought against another person or entity for accessing, receiving, providing, facilitating, or attempting to access, receive, provide, or facilitate reproductive health care services or gender-affirming health care services that are lawful under the laws of this State.
"Aggrieved person" means:
(1) A person or entity against whom abusive litigation is filed or prosecuted or against whom an order or judgment issued in connection with such abusive litigation is attempted to be enforced; or
(2) The employer or principal of a person against whom abusive litigation is filed or prosecuted or against whom an order or a judgment issued in connection with such abusive litigation is attempted to be enforced if the action that forms the basis of the abusive litigation was performed within the scope of the person's employment or agency relationship.
§323J- Medical malpractice insurance; prohibited actions. (a) Any insurer that issues medical malpractice insurance in the State shall not take a prohibited action against an applicant for, or the named insured under, a medical malpractice policy in this State solely because the applicant or insured has provided, or assisted in the provision of, reproductive health care services or gender-affirming health care services or made a referral for reproductive health care services or gender-affirming health care services; provided that the care provided by the applicant or insured was consistent with generally accepted standards of practice under the laws of this State and did not otherwise violate the laws of this State.
(b) As used in this section, "prohibited action" means:
(1) Refusing to issue a medical malpractice policy;
(2) Canceling or terminating a medical malpractice policy;
(3) Refusing to renew a medical malpractice policy; or
(4) Imposing any sanctions, fines, penalties, or rate increases that are not based on sound actuarial principles.
§323J- Health carriers; prohibitions. No group health plan or health insurance insurer offering or renewing a health plan in this State shall terminate or refuse to renew a health care contract with a participating health care provider on the sole basis that the participating provider provides, or assists in the provision of, reproductive health care services or gender-affirming health care services."
SECTION 2. Chapter 323J, Hawaii Revised Statutes, is amended to read as follows:
"[[]CHAPTER
323J[]]
REPRODUCTIVE HEALTH CARE SERVICES AND GENDER-AFFIRMING HEALTH CARE SERVICES
[[]§323J-1[]] Definitions. As used in this chapter, unless the context
otherwise requires:
"Gender-affirming health care services" includes:
(1) Medically necessary health care that respects the gender identity of the patient, as experienced and defined by the patient, and may include the following interventions to:
(A) Suppress the development of endogenous secondary sex characteristics;
(B) Align the patient's appearance or physical body with the patient's gender identity; or
(C) Alleviate symptoms of clinically significant distress resulting from gender dysphoria, as defined by the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders; or
(2) Mental health care or behavioral health care that respects the gender identity of the patient, as experienced and defined by the patient, and may include developmentally appropriate exploration and integration of identity, reduction of distress, adaptive coping, or strategies to increase family acceptance.
"Person" includes an individual, partnership, joint venture, corporation, association, business, trust, or any organized group of persons or legal entity, or any combination thereof.
"Reproductive health care services" includes all medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or the termination of a pregnancy.
[[]§323J-2[] Disclosures prohibited.] Protected
health information; disclosure or use, when prohibited; covered entities;
written consent. (a) [Except as provided in rules 504, 504.1,
and 505.5 of the Hawaii rules of evidence and subsection (b) or as authorized
under the Health Insurance Portability and Accountability Act of 1996, P.L.
104-191, and federal regulations promulgated thereunder, in any civil action or
any proceeding preliminary thereto or in any probate, legislative, or
administrative proceeding, no covered entity, as defined in title 45 Code of
Federal Regulations section 160.103, or as the same as may be from time to time
amended or modified, shall disclose:
(1) Any
communication made to the covered entity, or any information obtained by the
covered entity from a patient or the conservator, guardian, or other authorized
legal representative of a patient relating to reproductive health care services
that are permitted under the laws of the State; or
(2) Any information
obtained by personal examination of a patient relating to reproductive health
care services that are permitted under the laws of the State,
unless the patient or that patient's conservator,
guardian, or other authorized legal representative explicitly consents to the
disclosure in writing in the form of a release of protected health information
compliant with the federal Health Insurance Portability and Accountability Act
of 1996, P.L. 104-191, as amended. A
covered entity shall inform the patient or the patient's conservator, guardian,
or other authorized legal representative of the patient's right to withhold the
written consent.
(b) Written consent of the patient or the
patient's conservator, guardian, or other authorized legal representative shall
not be required for the disclosure of the communication or information:
(1) If the records
relate to a patient who is a plaintiff in a complaint pending before a court of
competent jurisdiction alleging health care negligence and a request for
records has been served on a named defendant in that litigation;
(2) If the records
are requested by a licensing authority, as defined in section 436B-2, and the
request is made in connection with an investigation of a complaint to the
licensing authority and the records are related to the complaint, unless the
complaint is made solely on the basis that the licensee, acting within the
licensee's scope of practice, provided reproductive health care services that
are lawful in this State;
(3) To the director
of health for records of a patient of a covered entity in connection with an
investigation of a complaint, if the records are related to the complaint; or
(4) If child abuse,
abuse of an individual who is sixty years of age or older, abuse of an
individual who is physically disabled or incompetent, or abuse of an individual
with an intellectual disability is known or in good faith suspected.]
No covered entity shall use or disclose protected health information for purposes or activities relating to conducting a criminal, civil, or administrative investigation into any person for the mere act of seeking, obtaining, providing, or facilitating reproductive health care services or gender-affirming health care services, or for purposes or activities relating to imposing criminal, civil, or administrative liability on any person for the mere act of seeking, obtaining, providing, or facilitating reproductive health care services or gender-affirming health care services, where the reproductive health care services or gender-affirming health care services are:
(1) Lawful under the laws of this State; or
(2) Protected, required, or authorized by federal law, including the United States Constitution, under the circumstances in which such services are provided, regardless of the state in which they are provided.
For purposes of this subsection, reproductive health care services or gender-affirming health care services are presumed lawful unless the covered entity has actual knowledge that the reproductive health care services or gender-affirming health care services were not lawful under the circumstances in which they were provided, or factual information supplied by the person requesting the use or disclosure of protected health information that demonstrates a substantial factual basis that the reproductive health care services or gender-affirming health care services were not lawful under the specific circumstances in which they were provided.
(b) When a covered entity receives a request for protected health information relating to reproductive health care services or gender-affirming health care services and the request is for:
(1) Health oversight activities, as described in title 45 Code of Federal Regulations section 164.512(d), as that section may be amended or modified from time to time;
(2) Judicial and administrative proceedings, as described in title 45 Code of Federal Regulations section 164.512(e), as that section may be amended or modified from time to time;
(3) Law enforcement purposes, as described in title 45 Code of Federal Regulations section 164.512(f), as that section may be amended or modified from time to time; or
(4) Coroners and medical examiners, as described in title 45 Code of Federal Regulations section 164.512(g)(1), as that section may be amended or modified from time to time,
the covered entity may disclose the requested protected health information; provided that the covered entity obtains from the person requesting the protected health information a written, signed attestation that the disclosure is not otherwise prohibited by subsection (a). Any person who knowingly provides a false attestation under this section is guilty of a misdemeanor.
(c)
Nothing in this section shall be construed to impede the lawful sharing
of [medical records] protected health information as [permitted
by state or] required by federal law or the [rules of the court,
except in the case of a subpoena or warrant issued by a court, government
agency, or legislative body of another state commanding the production,
copying, or inspection of medical records relating to reproductive health care
services.] laws of this State, or as authorized by the patient or the
patient's conservator, guardian, or other authorized legal representative in a
valid, written authorization for the disclosure that complies with the federal
Health Insurance Portability and Accountability Act of 1996, P.L. 104-191, as
amended, and federal regulations promulgated thereunder; provided that a
covered entity shall inform the patient or the patient's conservator, guardian,
or other authorized legal representative of the patient's right to withhold the
written consent.
(d) As used in this section:
"Covered entity" has the same meaning as in title 45 Code of Federal Regulations section 160.103, as that section may be amended or modified from time to time.
"Protected health information" has the same meaning as in title 45 Code of Federal Regulations section 160.103, as that section may be amended or modified from time to time.
[[]§323J-3[]] Subpoenas; when allowed. Notwithstanding sections 624-27 and 624D-3 or
any other law to the contrary, no court or clerk of a court shall order the
issuance of a subpoena requested by an officer, appointed according to the laws
or usages of another state or government, or by any court of the United States
or of another state or government, in connection with an out-of-state or
interstate investigation or proceeding relating to reproductive health care
services [legally performed in the] or gender-affirming health care
services that are lawful under the laws of this State.
[[]§323J-4[]] Agencies prohibited from providing
information or expending resources.
(a) No agency, as defined in
section 92F-3, or employee, appointee, officer, official, or any other person
acting on behalf of an agency shall provide any nonpublic information or
expend or use time, money, facilities, property, equipment, personnel, or other
resources in furtherance of any out-of-state or interstate investigation or
proceeding seeking to impose civil or criminal liability upon a person or
entity for:
(1) [The provision,
seeking,] Seeking, receiving, paying for, [receipt of,] or
inquiring about reproductive health care services [that are legal in the]
or gender-affirming health care services that are lawful under the laws of
this State; [or]
(2) Providing or responding to an inquiry about reproductive health care services or gender-affirming health care services that are lawful under the laws of this State;
[(2)] (3) Assisting [any person or entity
providing, seeking, receiving, paying for, or responding to an inquiry about
reproductive health care services that are legal in the State.] or
aiding or abetting in any of the conduct described in paragraph (1) or (2); or
(4) Attempting or intending to engage in or providing material support for (or any other theory of vicarious, attempt, joint, several, or conspiracy liability derived therefrom) conduct described in paragraphs (1) to (3).
(b) This section shall not apply to any investigation or proceeding where the conduct subject to potential liability under the investigation or proceeding would be subject to liability under the laws of this State if committed in this State.
[[]§323J-5[]] Prohibition on state action. The State shall not
penalize, prosecute, or otherwise take adverse action against an individual
based on the individual's actual, potential, perceived, or alleged pregnancy or
gender-affirming health care outcomes.
The State shall not penalize, prosecute, or otherwise take adverse
action against a person for aiding or assisting [a]:
(1) A pregnant
individual accessing reproductive health care services [in accordance with]
that are lawful under the laws of [the] this State and
with the pregnant individual's voluntary consent[.]; or
(2) An individual accessing gender-affirming health care services that are lawful under the laws of this State and with the individual's voluntary consent.
[[]§323J-6[]] Denial of demands for surrender. Notwithstanding any provision of chapter 832
to the contrary, the governor shall deny any demand made by the executive
authority of any state for the surrender of any person charged with a crime
under the laws of that state when the alleged crime involves [the provision
or receipt of,]:
(1) Seeking,
receiving, paying for, or [assistance with,] inquiring about
reproductive health care services[,] or gender-affirming health care
services;
(2) Providing or responding to an inquiry about reproductive health care services or gender-affirming health care services;
(3) Assisting or aiding or abetting in any of the conduct described in paragraph (1) or (2); or
(4) Attempting or intending to engage in or providing material support for (or any other theory of vicarious, attempt, joint, several, or conspiracy liability derived therefrom) conduct described in paragraphs (1) to (3),
unless the acts forming the basis of the prosecution would also constitute a criminal offense in this State. This section shall not apply to demands made under Article IV, section 2, of the United States Constitution.
[[]§323J-7[]] Laws contrary to the public policy of this
State. (a) A law of another state authorizing a civil
action or criminal prosecution based on any of the following [is] shall
be declared to be contrary to the public policy of this State:
(1) Receiving,
seeking, [or] paying for, or inquiring about reproductive health
care services[;] or gender-affirming health care services that are
lawful under the laws of this State;
(2) Providing or
responding to an inquiry about reproductive health care services[;] or
gender-affirming health care services that are lawful under the laws of this
State;
(3) [Engaging in
conduct that assists or aids or abets the provision or receipt of reproductive
health care services;] Assisting or aiding or abetting in any of the
conduct described in paragraph (1) or (2); or
(4) Attempting or
intending to engage in or providing material support for (or any other theory
of vicarious, attempt, joint, several or conspiracy liability derived
therefrom) conduct described in paragraphs (1) to (3)[,
in accordance with the laws of this State].
(b) No law described in subsection (a) shall be applied to a case or controversy heard in the courts of this State."
SECTION 3. Section 451J-11, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) The department shall deny, revoke, condition, or suspend a license granted pursuant to this chapter on the following grounds:
(1) Conviction by a
court of competent jurisdiction of a crime [which] that the
department has determined, by rules adopted pursuant to chapter 91, to be of a
nature that renders the person convicted unfit to practice marriage and family
therapy[;], except when the conviction was based on the provision or
assistance in receipt or provision of gender-affirming health care services, as
defined in section 323J-1, so long as the provision or assistance in receipt or
provision of the services was in accordance with the laws of this State or
would have been in accordance with the laws of this State if it occurred within
this State;
(2) Failing to report in writing to the director any disciplinary decision related to the provision of mental health services issued against the licensee or the applicant in any jurisdiction within thirty days of the disciplinary decision, or within thirty days of licensure;
(3) Violation of recognized ethical standards for marriage and family therapists or licensed marriage and family therapists as set by the association;
(4) Fraud or misrepresentation in obtaining or renewing a license, including making a false certification of compliance with the continuing education requirement set forth in section 451J-10;
(5) Revocation,
suspension, or other disciplinary action by any state or federal agency against
a licensee or applicant for any reason provided under this section[;],
except when the revocation, suspension, or other disciplinary action was based
on the provision or assistance in receipt or provision of gender-affirming
health care services, as defined in section 323J-1, so long as the provision or
assistance in receipt or provision of the services was in accordance with the
laws of this State or would have been in accordance with the laws of this State
if it occurred within this State; or
(6) Other just and sufficient cause that renders a person unfit to practice marriage and family therapy."
SECTION 4. Section 451J-12, Hawaii Revised Statutes, is amended to read as follows:
"§451J-12 Confidentiality and privileged communications. No person licensed as a marriage and family therapist or any associate marriage and family therapist, nor any of the person's employees or associates, shall be required to disclose any information that the person may have acquired in rendering marriage and family therapy services except in the following circumstances:
(1) As required by law;
(2) To prevent a clear and immediate danger to a person or persons;
(3) In the course of a
civil, criminal, or disciplinary action arising from the therapy where the
therapist is a defendant[;], except when the civil, criminal, or
disciplinary action by another federal or state agency is based on the
provision or assistance in receipt or provision of gender-affirming health care
services, as defined in section 323J-1, so long as the provision or assistance
in receipt or provision of the services was in accordance with the laws of this
State or would have been in accordance with the laws of this State if it
occurred within this State;
(4) In a criminal proceeding where the client is a defendant and the use of the privilege would violate the defendant's right to a compulsory process of the right to present testimony and witnesses in the defendant's own behalf;
(5) In accordance with the terms of a client's previously written waiver of the privilege; or
(6) Where more than
one person in a family jointly receives therapy and each [family member]
person who is legally competent executes a written waiver[; in]. In that instance, a marriage and
family therapist or an associate marriage and family therapist may disclose
information received from any [family member] person in
accordance with the terms of the person's waiver."
SECTION 5. Section 453-8, Hawaii Revised Statutes, is amended by amending subsections (a), (b), and (c) to read as follows:
"(a) In addition to any other actions authorized by law, any license to practice medicine and surgery may be revoked, limited, or suspended by the board at any time in a proceeding before the board, or may be denied, for any cause authorized by law, including but not limited to the following:
(1) Procuring, or aiding or abetting in procuring, an abortion that is unlawful under the laws of this State or that would be unlawful under the laws of this State if performed within this State;
(2) Employing any person to solicit patients for one's self;
(3) Engaging in false, fraudulent, or deceptive advertising, including but not limited to:
(A) Making excessive claims of expertise in one or more medical specialty fields;
(B) Assuring a permanent cure for an incurable disease; or
(C) Making any untruthful and improbable statement in advertising one's medical or surgical practice or business;
(4) Being habituated to the excessive use of drugs or alcohol; or being addicted to, dependent on, or a habitual user of a narcotic, barbiturate, amphetamine, hallucinogen, or other drug having similar effects;
(5) Practicing medicine while the ability to practice is impaired by alcohol, drugs, physical disability, or mental instability;
(6) Procuring a license through fraud, misrepresentation, or deceit, or knowingly permitting an unlicensed person to perform activities requiring a license;
(7) Professional misconduct, hazardous negligence causing bodily injury to another, or manifest incapacity in the practice of medicine or surgery;
(8) Incompetence or multiple instances of negligence, including but not limited to the consistent use of medical service, which is inappropriate or unnecessary;
(9) Conduct or practice contrary to recognized standards of ethics of the medical profession as adopted by the Hawaii Medical Association, the American Medical Association, the Hawaii Association of Osteopathic Physicians and Surgeons, or the American Osteopathic Association;
(10) Violation of the conditions or limitations upon which a limited or temporary license is issued;
(11) Revocation,
suspension, or other disciplinary action by another state or federal agency of
a license, certificate, or medical privilege, except when the revocation,
suspension, or other disciplinary action was based on the provision or
assistance in receipt or provision of [medical,]:
(A) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State;
(12) Conviction,
whether by nolo contendere or otherwise, of a penal offense substantially
related to the qualifications, functions, or duties of a physician or
osteopathic physician, notwithstanding any statutory provision to the contrary,
except when the conviction was based on the provision or assistance in receipt
or provision of [medical,]:
(A) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State;
(13) Violation of chapter 329, the uniform controlled substances act, or any rule adopted thereunder except as provided in section 329-122;
(14) Failure to report to the board, in writing, any disciplinary decision issued against the licensee or the applicant in another jurisdiction within thirty days after the disciplinary decision is issued; or
(15) Submitting to or
filing with the board any notice, statement, or other document required under
this chapter[, which] that is false or untrue or contains any
material misstatement or omission of fact.
(b) If disciplinary action related to the practice of medicine has been taken against the applicant by another state or federal agency, or if the applicant reveals a physical or mental condition that would constitute a violation under this section, then the board may impose one or more of the following requirements as a condition for licensure:
(1) Physical and mental evaluation of the applicant by a licensed physician or osteopathic physician approved by the board;
(2) Probation, including conditions of probation as requiring observation of the licensee by an appropriate group or society of licensed physicians, osteopathic physicians, or surgeons;
(3) Limitation of the license by restricting the fields of practice in which the licensee may engage;
(4) Further education or training or proof of performance competency; and
(5) Limitation of the medical practice of the licensee in any reasonable manner to assure the safety and welfare of the consuming public;
provided that the board shall not impose as a condition for licensure any of the requirements pursuant to this subsection if the disciplinary action related to the practice of medicine taken against the applicant was based on the provision or assistance in receipt or provision of medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or the termination of a pregnancy, or the provision or assistance in receipt or provision of gender-affirming health care services, as defined in section 323J-1, so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State.
(c) Notwithstanding any other law to the contrary, the board may deny a license to any applicant who has been disciplined by another state or federal agency, except on the basis of discipline for the provision or assistance in receipt or provision of medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or the termination of a pregnancy, or the provision or assistance in receipt or provision of gender-affirming health care services, as defined in section 323J-1, so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State. Any final order of discipline taken pursuant to this subsection shall be a matter of public record."
SECTION 6. Section 453-8.6, Hawaii Revised Statutes, is amended as follows:
1. By amending subsection (a) to read:
"(a) Upon receipt of evidence of revocation, suspension, or other disciplinary action against a licensee by another state or federal agency, the board may issue an order imposing disciplinary action upon the licensee on the following conditions:
(1) The board shall serve the licensee with a proposed order imposing disciplinary action as required by chapter 91;
(2) The licensee shall have the right to request a hearing pursuant to chapter 91 to show cause why the action described in the proposed order should not be imposed;
(3) Any request for a hearing shall be made in writing and filed with the board within twenty days after mailing of the proposed order to the licensee; and
(4) If the licensee does not submit a written request for a hearing within twenty days after mailing of the proposed order, the board may issue a final order imposing the disciplinary action described in the proposed order;
provided that the board shall not issue an order imposing disciplinary action upon the licensee if the revocation, suspension, or other disciplinary action against a licensee by another state was based on the provision or assistance in receipt or provision of medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or the termination of a pregnancy, or the provision or assistance in receipt or provision of gender-affirming health care services, as defined in section 323J-1, so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State."
2. By amending subsection (c) to read:
"(c) A licensee against whom the board has issued a proposed order under this section shall be prohibited from practicing in this State until the board issues a final order if:
(1) The licensee was the subject of
disciplinary action by another state, except where the disciplinary
action against the licensee by another state was based on the provision or
assistance in receipt or provision of [medical,]:
(A) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State; and
(2) The disciplinary action by another state prohibits the licensee from practicing in that state."
SECTION 7. Section 453D-12, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) In addition to any other acts or conditions provided by law, the director may refuse to renew, reinstate, or restore, and may deny, revoke, suspend, or condition in any manner, any license for any one or more of the following acts or conditions on the part of a licensee or license applicant:
(1) Failing to meet or maintain the conditions and requirements necessary to qualify for the granting of a license;
(2) Engaging in false, fraudulent, or deceptive advertising, or making untruthful or improbable statements;
(3) Being addicted to, dependent on, or a habitual user of a narcotic, barbiturate, amphetamine, hallucinogen, opium, cocaine, or other drugs or derivatives of a similar nature;
(4) Practicing the licensed profession while impaired by alcohol, drugs, physical disability, or mental instability;
(5) Procuring a license through fraud, misrepresentation, or deceit;
(6) Aiding and abetting an unlicensed person to directly or indirectly perform activities requiring a license;
(7) Professional misconduct, incompetence, gross negligence, or manifest incapacity, in the practice of the licensed profession;
(8) Engaging in conduct or practice contrary to recognized standards of ethics for the licensed profession;
(9) Violating any condition or limitation upon which a conditional or temporary license was issued;
(10) Engaging in business under a past or present license issued pursuant to the licensing laws, in a manner causing injury to one or more members of the public;
(11) Failing to comply
with, observe, or adhere to any law in a manner [such] that the director
deems the applicant or holder to be an unfit or improper person to hold a
license;
(12) Having had a
license revoked or suspended, or having been the subject of other disciplinary
action, by another state or a federal agency for any reason provided by the
licensing laws or this section[;], except when the revocation,
suspension, or other disciplinary action was based on the provision or
assistance in receipt or provision of gender-affirming health care services, as
defined in section 323J-1, so long as the provision or assistance in receipt or
provision of the services was in accordance with the laws of this State or
would have been in accordance with the laws of this State if it occurred within
this State;
(13) Having been
convicted of a crime, whether by nolo contendere or otherwise, directly related
to the qualifications, functions, or duties of the licensed profession[;],
except when the revocation, suspension, or other disciplinary action was based
on the provision or assistance in receipt or provision of gender-affirming
health care services, as defined in section 323J-1, so long as the provision or
assistance in receipt or provision of the services was in accordance with the
laws of this State or would have been in accordance with the laws of this State
if it occurred within this State;
(14) Failing to report in writing to the director any disciplinary decision issued against the licensee or applicant in another jurisdiction within thirty days of the disciplinary decision;
(15) Employing, utilizing, or attempting to employ or utilize, at any time, any person not licensed under the licensing laws where licensure is required; or
(16) Violating this chapter, chapter 436B, or any rule or order of the director."
SECTION 8. Section 453D-13, Hawaii Revised Statutes, is amended to read as follows:
"§453D-13 Confidentiality and privileged communications. No person licensed as a mental health counselor or an associate mental health counselor, nor any of the person's employees or associates, shall be required to disclose any information that the person may have acquired in rendering mental health counseling services, except in the following circumstances:
(1) As required by law;
(2) To prevent a clear and imminent danger to a person or persons;
(3) In accordance with the terms of a previously written waiver of the privilege where the waiver is executed by the client or by the client's legally recognized representative;
(4) Where more than one person jointly receives counseling and each person who is legally competent executes a written waiver. In that instance, information may be disclosed from any person in accordance with that person's waiver; or
(5) In the course of a
disciplinary action or pursuant to a duly authorized subpoena issued by the
department[.], except when the disciplinary action by another federal
or state agency is based on the provision or assistance in receipt or provision
of gender-affirming health care services, as defined in section 323J-1, so long
as the provision or assistance in receipt or provision of the services was in
accordance with the laws of this State or would have been in accordance with
the laws of this State if it occurred within this State."
SECTION 9. Section 457-12, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows:
"(a) In addition to any other actions authorized by law, the board shall have the power to deny, revoke, limit, or suspend any license to practice nursing as a registered nurse or as a licensed practical nurse applied for or issued by the board in accordance with this chapter, and to fine or to otherwise discipline a licensee for any cause authorized by law, including but not limited to the following:
(1) Fraud or deceit in procuring or attempting to procure a license to practice nursing as a registered nurse or as a licensed practical nurse;
(2) Gross immorality;
(3) Unfitness or incompetence by reason of negligence, habits, or other causes;
(4) Habitual intemperance, addiction to, or dependency on alcohol or other habit-forming substances;
(5) Mental incompetence;
(6) Unprofessional conduct as defined by the board in accordance with its own rules;
(7) Wilful or repeated violation of any of the provisions of this chapter or any rule adopted by the board;
(8) Revocation,
suspension, limitation, or other disciplinary action by another state of a
nursing license, except when the revocation, suspension, limitation, or other
disciplinary action by another state was based on the provision or assistance
in receipt or provision of [medical,]:
(A) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State;
(9) Conviction,
whether by nolo contendere or otherwise, of a penal offense substantially
related to the qualifications, functions, or duties of a nurse, notwithstanding
any statutory provision to the contrary, except when the conviction was based
on the provision or assistance in receipt or provision of [medical,]:
(A) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State;
(10) Failure to report to the board any disciplinary action taken against the licensee in another jurisdiction within thirty days after the disciplinary action becomes final;
(11) Submitting to or
filing with the board any notice, statement, or other document required under
this chapter[, which] that is false or untrue or contains any
material misstatement of fact, including a false attestation of compliance with
continuing competency requirements; or
(12) Violation of the conditions or limitations upon which any license is issued.
(b)
Notwithstanding any other law to the contrary, the board may deny a
license to any applicant who has been disciplined by another state, except on
the basis of discipline by another state for the provision or assistance in
receipt or provision of [medical,]:
(1) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(2) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State. Any final order entered pursuant to this subsection shall be a matter of public record."
SECTION 10. Section 457-12.5, Hawaii Revised Statutes, is amended as follows:
1. By amending subsection (a) to read:
"(a) Upon receipt of evidence of revocation, suspension, or other disciplinary action against a licensee in another state, the board may issue an order imposing disciplinary action upon the licensee on the following conditions:
(1) The board shall serve the licensee with a proposed order imposing disciplinary action as required by chapter 91;
(2) The licensee shall have the right to request a hearing pursuant to chapter 91 to show cause why the action described in the proposed order should not be imposed;
(3) Any request for a hearing shall be made in writing and filed with the board within twenty days after mailing of the proposed order to the licensee; and
(4) If the licensee does not submit a written request for a hearing within twenty days after mailing of the proposed order, the board shall issue a final order imposing the disciplinary action described in the proposed order;
provided that the board shall not issue an order imposing disciplinary action upon the licensee if the revocation, suspension, or other disciplinary action against a licensee by another state was based on the provision or assistance in receipt or provision of medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or the termination of a pregnancy, or the provision or assistance in receipt or provision of gender-affirming health care services, as defined in section 323J-1, so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State."
2. By amending subsection (c) to read:
"(c) A licensee against whom the board has issued a proposed order under this section shall be prohibited from practicing in this State until the board issues a final order if:
(1) The licensee was
the subject of disciplinary action by another state, except where the
disciplinary action against the licensee by another state was based on the
provision or assistance in receipt or provision of [medical,]:
(A) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State; and
(2) The disciplinary action in the other state prohibits the licensee from practicing in that state."
SECTION 11. Section 461-21.5, Hawaii Revised Statutes, is amended as follows:
1. By amending subsection (a) to read:
"(a) Upon receipt of evidence of revocation, suspension, or other disciplinary action against a licensee by another state or federal agency, the board may issue an order imposing disciplinary action upon the licensee on the following conditions:
(1) The board shall serve the licensee with a proposed order imposing disciplinary action as required by chapter 91;
(2) The licensee shall have the right to request a hearing pursuant to chapter 91 to show cause why the action described in the proposed order should not be imposed;
(3) Any request for a hearing shall be made in writing and filed with the board within twenty days after mailing of the proposed order to the licensee; and
(4) If the licensee does not submit a written request for a hearing within twenty days after mailing of the proposed order, the board shall issue a final order imposing the disciplinary action described in the proposed order;
provided that the board shall not issue an order imposing disciplinary action upon the licensee if the revocation, suspension, or other disciplinary action against a licensee by another state was based on the provision or assistance in receipt or provision of medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or the termination of a pregnancy, or the provision or assistance in receipt or provision of gender-affirming health care services, as defined in section 323J-1, so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State."
2. By amending subsection (c) to read:
"(c) A licensee against whom the board has issued a proposed order under this section shall be prohibited from practicing in this State until the board issues a final order if:
(1) The licensee was the subject of
disciplinary action by another state, except where the disciplinary action
against the licensee by another state was based on the provision or assistance
in receipt or provision of [medical,]:
(A) Medical, surgical, pharmaceutical, counseling,
or referral services relating to the human reproductive system, including but
not limited to services relating to pregnancy, contraception, or the
termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State; and
(2) The disciplinary action by another state prohibits the licensee from practicing in that state."
SECTION 12. Section 465-13, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) In addition to any other actions authorized
by law, the board shall refuse to grant a license to any applicant and may
revoke or suspend any license, or may place a license or [may] put a
license holder on conditional probation, for any cause authorized by law,
including but not limited to the following:
(1) Professional misconduct, gross carelessness, manifest incapacity, or incompetency in the practice of psychology;
(2) Violation of this chapter by the applicant within one year of the application, or violation of this chapter by a license holder any time the license is valid;
(3) Any unethical practice of psychology as defined by the board in accordance with its own rules;
(4) Fraud or deception in applying for or procuring a license to practice psychology as defined in section 465-1;
(5) Conviction of a
crime substantially related to the qualifications, functions, or duties of
psychologists[;], except when the conviction was based on the
provision or assistance in receipt or provision of gender-affirming health care
services, as defined in section 323J-1, so long as the provision or assistance
in receipt or provision of the services was in accordance with the laws of this
State or would have been in accordance with the laws of this State if it
occurred within this State;
(6) Wilful unauthorized communication of information received in professional confidence;
(7) The suspension, revocation, or imposition of probationary conditions by another state of a license or certificate to practice psychology issued by that state if the act for which the disciplinary action was taken constitutes a violation of this chapter;
(8) The commission of any dishonest, corrupt, or fraudulent act or any act of sexual abuse, or sexual relations with a client, or sexual misconduct that is substantially related to the qualifications, functions, or duties of a psychologist;
(9) Harassment, intimidation, or abuse, sexual or otherwise, of a client or patient;
(10) Exercising undue influence in the manner as to exploit the client, patient, student, or supervisee for financial or other personal advantage to the practitioner or a third party;
(11) Conviction of fraud in filing medicaid claims or conviction of fraud in filing claims to any third party payor, for which a copy of the record of conviction, certified by the clerk of the court entering the conviction, shall be conclusive evidence;
(12) Aiding or abetting any unlicensed person to engage in the practice of psychology;
(13) Repeated acts of excessive treatment or use of diagnostic procedures as determined by the standard of the local community of licensees;
(14) Inability to practice psychology with reasonable skill and safety to patients or clients by reason of illness, inebriation, or excessive use of any substance, or as a result of any mental or physical condition;
(15) Conviction of any crime or offense that reflects the inability of the practitioner to practice psychology with due regard for the health and safety of clients or patients;
(16) Use of untruthful or deceptive or improbable statements concerning the licensee's qualifications or the effects or results of proposed treatment;
(17) Functioning outside of the licensee's professional competence established by education, training, and experience;
(18) Refusal to comply with any written order of the board;
(19) Making any fraudulent or untrue statement to the board, including a false certification of compliance with the continuing education requirement of section 465-11; or
(20) Violation of a board rule."
SECTION 13. Section 636C-9, Hawaii Revised Statutes, is amended to read as follows:
"[[]§636C-9[]]
Enforcement of foreign penal civil actions
relating to protected reproductive health care services[.] or
protected gender-affirming health care services. (a) No
judgment or other order arising from a foreign penal civil action or other
penal law banning, restricting, burdening, punishing, penalizing, or otherwise
interfering with the provision of protected reproductive health care services or
protected gender-affirming health care services shall be enforced in this
State.
(b) As used in this section:
"Foreign penal civil action" means an action authorized by the law of a state, or of any municipality or other governmental entity within a state, other than this State, the essential character and effect of which is to punish an offense against the public justice of that state, municipality, or other governmental entity.
"Gender-affirming health care services" has the same meaning as in section 323J-1.
"Protected gender-affirming health care services" means gender-affirming health care services that are protected under the Hawaii State Constitution or are otherwise lawful under the laws of this State or that would be constitutionally protected or otherwise lawful if performed within this State.
"Protected reproductive health care services" means medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or termination of a pregnancy, that are protected under the Hawaii State Constitution or otherwise lawful under the laws of this State or that would be constitutionally protected or otherwise lawful if performed within this State."
SECTION 14. Section 836-2, Hawaii Revised Statutes, is amended to read as follows:
"§836-2 Summoning witness in this
State to testify in another state. (a) If a judge of a court of record in any state
[which] that by its laws has made provision for commanding
persons within that state to attend and testify in this State certifies under
the seal of that court that there is a criminal prosecution pending in that
court, or that a grand jury investigation has commenced or is about to
commence, that a person in this State is a material witness in the prosecution
or grand jury investigation, and that the person's presence will be required
for a specified number of days, upon presentation of the certificate to any
judge of a court of record in this State in the judicial district in which the
person is, the judge shall fix a time and place for a hearing, and shall make
an order directing the witness to appear at a time and place certain for the
hearing.
(b)
If at a hearing the judge determines that the witness is material
and necessary, that it will not cause undue hardship to the witness to be
compelled to attend and testify in the prosecution or a grand jury
investigation in the other state, and that the laws of the state in which the
prosecution is pending, or grand jury investigation has commenced or is about
to commence, and of any other state through which the witness may be required
to pass by ordinary course of travel, will give to the witness protection from
arrest and the service of civil and criminal process, the judge shall issue a
summons, with a copy of the certificate attached, directing the witness to
attend and testify in the court where the prosecution is pending, or where a
grand jury investigation has commenced or is about to commence at a time and
place specified in the summons[, except]; provided that no judge
shall issue a summons in a case where prosecution is pending, or where a grand
jury investigation has commenced or is about to commence for a criminal
violation of a law of another state involving [the provision,]:
(1) Seeking,
receiving, paying for, [receipt of, or assistance with] or
inquiring about reproductive health care services [as defined in section
323J-1] or gender-affirming health care services;
(2) Providing or responding to an inquiry about reproductive health care services or gender-affirming health care services;
(3) Assisting or aiding or abetting in any of the conduct described in paragraph (1) or (2); or
(4) Attempting or intending to engage in or providing material support for (or any other theory of vicarious, attempt, joint, several, or conspiracy liability derived therefrom) conduct described in paragraphs (1) to (3),
unless the acts forming the basis of the prosecution or investigation would also constitute an offense in this State. In any hearing, the certificate shall be prima facie evidence of all the facts stated therein.
(c) If the certificate recommends that the witness be taken into immediate custody and delivered to an officer of the requesting state to assure the witness' attendance in the requesting state, the judge may, in lieu of notification of the hearing, direct that the witness be forthwith brought before the judge for the hearing; and the judge at the hearing being satisfied of the desirability of the custody and delivery, for which determination the certificate shall be prima facie proof of the desirability may, in lieu of issuing subpoena or summons, order that the witness be forthwith taken into custody and delivered to an officer of the requesting state.
(d) If the witness, who is summoned pursuant to this section, after being paid or tendered by some properly authorized person a sum equivalent to the cost of round-trip air fare to the place where the prosecution is pending and $30 for each day, that the witness is required to travel and attend as a witness, fails without good cause to attend and testify as directed in the summons, the witness shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this State.
(e) As used in this section:
"Gender-affirming health care services" has the same meaning as in section 323J-1.
"Reproductive health care services" has the same meaning as in section 323J-1."
SECTION 15. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.
SECTION 16. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 17. This Act shall take effect on July 1, 3000.
Report Title:
Gender-Affirming Health Care Services; Reproductive Health Care Services; Protections; Abusive Litigation; Medical Malpractice Insurance; Health Carriers; Protected Health Information; Covered Entities
Description:
Expands the protections established under Act 2, SLH 2023, to include gender-affirming health care services, including clarifying permitted disclosures of protected health information to address changes in federal regulations. Establishes protections against abusive litigation. Prohibits medical malpractice insurers and health carriers from taking certain adverse actions against health care providers solely on the basis that the health care provider provides lawful reproductive health care services or gender-affirming care services. Effective 7/1/3000. (HD1)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
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HOUSE OF REPRESENTATIVES |
H.B. NO. |
1875 |
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THIRTY-THIRD LEGISLATURE, 2026 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
relating to health care.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Chapter 323J, Hawaii Revised Statutes, is amended by adding three new sections to be appropriately designated and to read as follows:
"§323J- Abusive litigation; prohibited; remedies. (a) If a person or entity, whether or not acting under the color of law, engages in or attempts to engage in abusive litigation, or attempts to enforce any order or judgment issued in connection with any such abusive litigation, any aggrieved person may bring a civil action in the circuit court of the circuit in which the aggrieved person resides against that person or entity for:
(1) Injunctive relief;
(2) Actual damages, including the amount of any judgment issued in connection with the abusive litigation;
(3) Expenses, costs, and reasonable attorney's fees incurred in connection with the abusive litigation;
(4) Expenses, costs, and reasonable attorney's fees incurred to bring an action under this section; and
(5) Punitive damages.
(b) Any civil action filed pursuant to this section shall be filed within six years after the date the abusive litigation is commenced, or if the person or entity is attempting to enforce an order or a judgment, within six years after the date enforcement is attempted.
(c) As used in this section:
"Abusive litigation" means any litigation or other legal action, including civil, criminal, or administrative action, brought against another person or entity for accessing, receiving, providing, facilitating, or attempting to access, receive, provide, or facilitate reproductive health care services or gender-affirming health care services that are lawful under the laws of this State.
"Aggrieved person" means:
(1) A person or entity against whom abusive litigation is filed or prosecuted or against whom an order or judgment issued in connection with such abusive litigation is attempted to be enforced; or
(2) The employer or principal of a person against whom abusive litigation is filed or prosecuted or against whom an order or a judgment issued in connection with such abusive litigation is attempted to be enforced if the action that forms the basis of the abusive litigation was performed within the scope of the person's employment or agency relationship.
§323J- Medical malpractice insurance; prohibited actions. (a) Any insurer that issues medical malpractice insurance in the State shall not take a prohibited action against an applicant for, or the named insured under, a medical malpractice policy in this State solely because the applicant or insured has provided, or assisted in the provision of, reproductive health care services or gender-affirming health care services or made a referral for reproductive health care services or gender-affirming health care services; provided that the care provided by the applicant or insured was consistent with generally accepted standards of practice under the laws of this State and did not otherwise violate the laws of this State.
(b) As used in this section, "prohibited action" means:
(1) Refusing to issue a medical malpractice policy;
(2) Canceling or terminating a medical malpractice policy;
(3) Refusing to renew a medical malpractice policy; or
(4) Imposing any sanctions, fines, penalties, rate increases, or another type of unfavorable change.
§323J- Health carriers; prohibitions. No group health plan or health insurance insurer offering or renewing a health plan in this State shall terminate or refuse to renew a health care contract with a participating health care provider on the sole basis that the participating provider provides, or assists in the provision of, reproductive health care services or gender-affirming health care services."
SECTION 2. Chapter 323J, Hawaii Revised Statutes, is amended to read as follows:
"[[]CHAPTER
323J[]]
REPRODUCTIVE HEALTH CARE SERVICES AND GENDER-AFFIRMING HEALTH CARE SERVICES
[[]§323J-1[]] Definitions. As used in this chapter, unless the context
otherwise requires:
"Gender-affirming health care services" includes:
(1) Medically necessary health care that respects the gender identity of the patient, as experienced and defined by the patient, and may include the following interventions to:
(A) Suppress the development of endogenous secondary sex characteristics;
(B) Align the patient's appearance or physical body with the patient's gender identity; or
(C) Alleviate symptoms of clinically significant distress resulting from gender dysphoria, as defined by the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders; or
(2) Mental health care or behavioral health care that respects the gender identity of the patient, as experienced and defined by the patient, and may include developmentally appropriate exploration and integration of identity, reduction of distress, adaptive coping, or strategies to increase family acceptance.
"Person" includes an individual, partnership, joint venture, corporation, association, business, trust, or any organized group of persons or legal entity, or any combination thereof.
"Reproductive health care services" includes all medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or the termination of a pregnancy.
[[]§323J-2[] Disclosures prohibited.] Protected
health information; disclosure or use, when prohibited; covered entities;
written consent. (a) [Except as provided in rules 504, 504.1,
and 505.5 of the Hawaii rules of evidence and subsection (b) or as authorized
under the Health Insurance Portability and Accountability Act of 1996, P.L.
104-191, and federal regulations promulgated thereunder, in any civil action or
any proceeding preliminary thereto or in any probate, legislative, or
administrative proceeding, no covered entity, as defined in title 45 Code of
Federal Regulations section 160.103, or as the same as may be from time to time
amended or modified, shall disclose:
(1) Any
communication made to the covered entity, or any information obtained by the
covered entity from a patient or the conservator, guardian, or other authorized
legal representative of a patient relating to reproductive health care services
that are permitted under the laws of the State; or
(2) Any information
obtained by personal examination of a patient relating to reproductive health
care services that are permitted under the laws of the State,
unless the patient or that patient's conservator,
guardian, or other authorized legal representative explicitly consents to the
disclosure in writing in the form of a release of protected health information
compliant with the federal Health Insurance Portability and Accountability Act
of 1996, P.L. 104-191, as amended. A
covered entity shall inform the patient or the patient's conservator, guardian,
or other authorized legal representative of the patient's right to withhold the
written consent.
(b) Written consent of the patient or the
patient's conservator, guardian, or other authorized legal representative shall
not be required for the disclosure of the communication or information:
(1) If the records
relate to a patient who is a plaintiff in a complaint pending before a court of
competent jurisdiction alleging health care negligence and a request for
records has been served on a named defendant in that litigation;
(2) If the records
are requested by a licensing authority, as defined in section 436B-2, and the
request is made in connection with an investigation of a complaint to the
licensing authority and the records are related to the complaint, unless the
complaint is made solely on the basis that the licensee, acting within the
licensee's scope of practice, provided reproductive health care services that
are lawful in this State;
(3) To the director
of health for records of a patient of a covered entity in connection with an
investigation of a complaint, if the records are related to the complaint; or
(4) If child abuse,
abuse of an individual who is sixty years of age or older, abuse of an
individual who is physically disabled or incompetent, or abuse of an individual
with an intellectual disability is known or in good faith suspected.]
No covered entity shall use or disclose protected health information for purposes or activities relating to conducting a criminal, civil, or administrative investigation into any person for the mere act of seeking, obtaining, providing, or facilitating reproductive health care services or gender-affirming health care services, or for purposes or activities relating to imposing criminal, civil, or administrative liability on any person for the mere act of seeking, obtaining, providing, or facilitating reproductive health care services or gender-affirming health care services, where the reproductive health care services or gender-affirming health care services are:
(1) Lawful under the laws of this State; or
(2) Protected, required, or authorized by federal law, including the United States Constitution, under the circumstances in which such services are provided, regardless of the state in which they are provided.
For purposes of this subsection, reproductive health care services or gender-affirming health care services are presumed lawful unless the covered entity has actual knowledge that the reproductive health care services or gender-affirming health care services were not lawful under the circumstances in which they were provided, or factual information supplied by the person requesting the use or disclosure of protected health information that demonstrates a substantial factual basis that the reproductive health care services or gender-affirming health care services were not lawful under the specific circumstances in which they were provided.
(b) When a covered entity receives a request for protected health information relating to reproductive health care services or gender-affirming health care services and the request is for:
(1) Health oversight activities, as described in title 45 Code of Federal Regulations section 164.512(d), as that section may be amended or modified from time to time;
(2) Judicial and administrative proceedings, as described in title 45 Code of Federal Regulations section 164.512(e), as that section may be amended or modified from time to time;
(3) Law enforcement purposes, as described in title 45 Code of Federal Regulations section 164.512(f), as that section may be amended or modified from time to time; or
(4) Coroners and medical examiners, as described in title 45 Code of Federal Regulations section 164.512(g)(1), as that section may be amended or modified from time to time,
the covered entity may disclose the requested protected health information; provided that the covered entity obtains from the person requesting the protected health information a written, signed attestation that the disclosure is not otherwise prohibited by subsection (a). Any person who knowingly provides a false attestation under this section is guilty of a misdemeanor.
(c)
Nothing in this section shall be construed to impede the lawful sharing
of [medical records] protected health information as [permitted
by state or] required by federal law or the [rules of the court,
except in the case of a subpoena or warrant issued by a court, government
agency, or legislative body of another state commanding the production,
copying, or inspection of medical records relating to reproductive health care
services.] laws of this State, or as authorized by the patient or the
patient's conservator, guardian, or other authorized legal representative in a
valid, written authorization for the disclosure that complies with the federal
Health Insurance Portability and Accountability Act of 1996, P.L. 104-191, as
amended, and federal regulations promulgated thereunder; provided that a
covered entity shall inform the patient or the patient's conservator, guardian,
or other authorized legal representative of the patient's right to withhold the
written consent.
(d) As used in this section:
"Covered entity" has the same meaning as in title 45 Code of Federal Regulations section 160.103, as that section may be amended or modified from time to time.
"Protected health information" has the same meaning as in title 45 Code of Federal Regulations section 160.103, as that section may be amended or modified from time to time.
[[]§323J-3[]] Subpoenas; when allowed. Notwithstanding sections 624-27 and 624D-3 or
any other law to the contrary, no court or clerk of a court shall order the
issuance of a subpoena requested by an officer, appointed according to the laws
or usages of another state or government, or by any court of the United States
or of another state or government, in connection with an out-of-state or
interstate investigation or proceeding relating to reproductive health care
services [legally performed in the] or gender-affirming health care
services that are lawful under the laws of this State.
[[]§323J-4[]] Agencies prohibited from providing
information or expending resources.
(a) No agency, as defined in
section 92F-3, or employee, appointee, officer, official, or any other person
acting on behalf of an agency shall provide any nonpublic information or
expend or use time, money, facilities, property, equipment, personnel, or other
resources in furtherance of any out-of-state or interstate investigation or
proceeding seeking to impose civil or criminal liability upon a person or
entity for:
(1) [The provision,
seeking,] Seeking, receiving, paying for, [receipt of,] or
inquiring about reproductive health care services [that are legal in the]
or gender-affirming health care services that are lawful under the laws of
this State; [or]
(2) Providing or responding to an inquiry about reproductive health care services or gender-affirming health care services that are lawful under the laws of this State;
[(2)] (3) Assisting [any person or entity
providing, seeking, receiving, paying for, or responding to an inquiry about
reproductive health care services that are legal in the State.] or
aiding or abetting in any of the conduct described in paragraph (1) or (2); or
(4) Attempting or intending to engage in or providing material support for (or any other theory of vicarious, attempt, joint, several, or conspiracy liability derived therefrom) conduct described in paragraphs (1) to (3).
(b) This section shall not apply to any investigation or proceeding where the conduct subject to potential liability under the investigation or proceeding would be subject to liability under the laws of this State if committed in this State.
[[]§323J-5[]] Prohibition on state action. The State shall not
penalize, prosecute, or otherwise take adverse action against an individual
based on the individual's actual, potential, perceived, or alleged pregnancy or
gender-affirming health care outcomes.
The State shall not penalize, prosecute, or otherwise take adverse
action against a person for aiding or assisting [a]:
(1) A pregnant
individual accessing reproductive health care services [in accordance with]
that are lawful under the laws of [the] this State and
with the pregnant individual's voluntary consent[.]; or
(2) An individual accessing gender-affirming health care services that are lawful under the laws of this State and with the individual's voluntary consent.
[[]§323J-6[]] Denial of demands for surrender. Notwithstanding any provision of chapter 832
to the contrary, the governor shall deny any demand made by the executive
authority of any state for the surrender of any person charged with a crime
under the laws of that state when the alleged crime involves [the provision
or receipt of,]:
(1) Seeking,
receiving, paying for, or [assistance with,] inquiring about
reproductive health care services[,] or gender-affirming health care
services;
(2) Providing or responding to an inquiry about reproductive health care services or gender-affirming health care services;
(3) Assisting or aiding or abetting in any of the conduct described in paragraph (1) or (2); or
(4) Attempting or intending to engage in or providing material support for (or any other theory of vicarious, attempt, joint, several, or conspiracy liability derived therefrom) conduct described in paragraphs (1) to (3),
unless the acts forming the basis of the prosecution would also constitute a criminal offense in this State. This section shall not apply to demands made under Article IV, section 2, of the United States Constitution.
[[]§323J-7[]] Laws contrary to the public policy of this
State. (a) A law of another state authorizing a civil
action or criminal prosecution based on any of the following [is] shall
be declared to be contrary to the public policy of this State:
(1) Receiving,
seeking, [or] paying for, or inquiring about reproductive health
care services[;] or gender-affirming health care services that are
lawful under the laws of this State;
(2) Providing or
responding to an inquiry about reproductive health care services[;] or
gender-affirming health care services that are lawful under the laws of this
State;
(3) [Engaging in
conduct that assists or aids or abets the provision or receipt of reproductive
health care services;] Assisting or aiding or abetting in any of the
conduct described in paragraph (1) or (2); or
(4) Attempting or
intending to engage in or providing material support for (or any other theory
of vicarious, attempt, joint, several or conspiracy liability derived
therefrom) conduct described in paragraphs (1) to (3)[,
in accordance with the laws of this State].
(b) No law described in subsection (a) shall be applied to a case or controversy heard in the courts of this State."
SECTION 3. Section 451J-11, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) The department shall deny, revoke, condition, or suspend a license granted pursuant to this chapter on the following grounds:
(1) Conviction by a
court of competent jurisdiction of a crime [which] that the
department has determined, by rules adopted pursuant to chapter 91, to be of a
nature that renders the person convicted unfit to practice marriage and family
therapy[;], except when the conviction was based on the provision or
assistance in receipt or provision of gender-affirming health care services, as
defined in section 323J-1, so long as the provision or assistance in receipt or
provision of the services was in accordance with the laws of this State or
would have been in accordance with the laws of this State if it occurred within
this State;
(2) Failing to report in writing to the director any disciplinary decision related to the provision of mental health services issued against the licensee or the applicant in any jurisdiction within thirty days of the disciplinary decision, or within thirty days of licensure;
(3) Violation of recognized ethical standards for marriage and family therapists or licensed marriage and family therapists as set by the association;
(4) Fraud or misrepresentation in obtaining or renewing a license, including making a false certification of compliance with the continuing education requirement set forth in section 451J-10;
(5) Revocation,
suspension, or other disciplinary action by any state or federal agency against
a licensee or applicant for any reason provided under this section[;],
except when the revocation, suspension, or other disciplinary action was based
on the provision or assistance in receipt or provision of gender-affirming
health care services, as defined in section 323J-1, so long as the provision or
assistance in receipt or provision of the services was in accordance with the
laws of this State or would have been in accordance with the laws of this State
if it occurred within this State; or
(6) Other just and sufficient cause that renders a person unfit to practice marriage and family therapy."
SECTION 4. Section 451J-12, Hawaii Revised Statutes, is amended to read as follows:
"§451J-12 Confidentiality and privileged communications. No person licensed as a marriage and family therapist or any associate marriage and family therapist, nor any of the person's employees or associates, shall be required to disclose any information that the person may have acquired in rendering marriage and family therapy services except in the following circumstances:
(1) As required by law;
(2) To prevent a clear and immediate danger to a person or persons;
(3) In the course of a
civil, criminal, or disciplinary action arising from the therapy where the
therapist is a defendant[;], except when the civil, criminal, or
disciplinary action by another state or federal agency is based on the
provision or assistance in receipt or provision of gender-affirming health care
services, as defined in section 323J-1, so long as the provision or assistance
in receipt or provision of the services was in accordance with the laws of this
State or would have been in accordance with the laws of this State if it
occurred within this State;
(4) In a criminal proceeding where the client is a defendant and the use of the privilege would violate the defendant's right to a compulsory process of the right to present testimony and witnesses in the defendant's own behalf;
(5) In accordance with the terms of a client's previously written waiver of the privilege; or
(6) Where more than
one person in a family jointly receives therapy and each [family member]
person who is legally competent executes a written waiver[; in].
In that instance, a marriage and
family therapist or an associate marriage and family therapist may disclose
information received from any [family member] person in
accordance with the terms of the person's waiver."
SECTION 5. Section 453-8, Hawaii Revised Statutes, is amended by amending subsections (a), (b), and (c) to read as follows:
"(a) In addition to any other actions authorized by law, any license to practice medicine and surgery may be revoked, limited, or suspended by the board at any time in a proceeding before the board, or may be denied, for any cause authorized by law, including but not limited to the following:
(1) Procuring, or aiding or abetting in procuring, an abortion that is unlawful under the laws of this State or that would be unlawful under the laws of this State if performed within this State;
(2) Employing any person to solicit patients for one's self;
(3) Engaging in false, fraudulent, or deceptive advertising, including but not limited to:
(A) Making excessive claims of expertise in one or more medical specialty fields;
(B) Assuring a permanent cure for an incurable disease; or
(C) Making any untruthful and improbable statement in advertising one's medical or surgical practice or business;
(4) Being habituated to the excessive use of drugs or alcohol; or being addicted to, dependent on, or a habitual user of a narcotic, barbiturate, amphetamine, hallucinogen, or other drug having similar effects;
(5) Practicing medicine while the ability to practice is impaired by alcohol, drugs, physical disability, or mental instability;
(6) Procuring a license through fraud, misrepresentation, or deceit, or knowingly permitting an unlicensed person to perform activities requiring a license;
(7) Professional misconduct, hazardous negligence causing bodily injury to another, or manifest incapacity in the practice of medicine or surgery;
(8) Incompetence or multiple instances of negligence, including but not limited to the consistent use of medical service, which is inappropriate or unnecessary;
(9) Conduct or practice contrary to recognized standards of ethics of the medical profession as adopted by the Hawaii Medical Association, the American Medical Association, the Hawaii Association of Osteopathic Physicians and Surgeons, or the American Osteopathic Association;
(10) Violation of the conditions or limitations upon which a limited or temporary license is issued;
(11) Revocation,
suspension, or other disciplinary action by another state or federal agency of
a license, certificate, or medical privilege, except when the revocation,
suspension, or other disciplinary action was based on the provision or
assistance in receipt or provision of [medical,]:
(A) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State;
(12) Conviction,
whether by nolo contendere or otherwise, of a penal offense substantially
related to the qualifications, functions, or duties of a physician or
osteopathic physician, notwithstanding any statutory provision to the contrary,
except when the conviction was based on the provision or assistance in receipt
or provision of [medical,]:
(A) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State;
(13) Violation of chapter 329, the uniform controlled substances act, or any rule adopted thereunder except as provided in section 329-122;
(14) Failure to report to the board, in writing, any disciplinary decision issued against the licensee or the applicant in another jurisdiction within thirty days after the disciplinary decision is issued; or
(15) Submitting to or
filing with the board any notice, statement, or other document required under
this chapter[, which] that is false or untrue or contains any
material misstatement or omission of fact.
(b) If disciplinary action related to the practice of medicine has been taken against the applicant by another state or federal agency, or if the applicant reveals a physical or mental condition that would constitute a violation under this section, then the board may impose one or more of the following requirements as a condition for licensure:
(1) Physical and mental evaluation of the applicant by a licensed physician or osteopathic physician approved by the board;
(2) Probation, including conditions of probation as requiring observation of the licensee by an appropriate group or society of licensed physicians, osteopathic physicians, or surgeons;
(3) Limitation of the license by restricting the fields of practice in which the licensee may engage;
(4) Further education or training or proof of performance competency; and
(5) Limitation of the medical practice of the licensee in any reasonable manner to assure the safety and welfare of the consuming public;
provided that the board shall not impose as a condition for licensure any of the requirements pursuant to this subsection if the disciplinary action related to the practice of medicine taken against the applicant was based on the provision or assistance in receipt or provision of medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or the termination of a pregnancy, or the provision or assistance in receipt or provision of gender-affirming health care services, as defined in section 323J-1, so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State.
(c) Notwithstanding any other law to the contrary, the board may deny a license to any applicant who has been disciplined by another state or federal agency, except on the basis of discipline for the provision or assistance in receipt or provision of medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or the termination of a pregnancy, or the provision or assistance in receipt or provision of gender-affirming health care services, as defined in section 323J-1, so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State. Any final order of discipline taken pursuant to this subsection shall be a matter of public record."
SECTION 6. Section 453-8.6, Hawaii Revised Statutes, is amended as follows:
1. By amending subsection (a) to read:
"(a) Upon receipt of evidence of revocation, suspension, or other disciplinary action against a licensee by another state or federal agency, the board may issue an order imposing disciplinary action upon the licensee on the following conditions:
(1) The board shall serve the licensee with a proposed order imposing disciplinary action as required by chapter 91;
(2) The licensee shall have the right to request a hearing pursuant to chapter 91 to show cause why the action described in the proposed order should not be imposed;
(3) Any request for a hearing shall be made in writing and filed with the board within twenty days after mailing of the proposed order to the licensee; and
(4) If the licensee does not submit a written request for a hearing within twenty days after mailing of the proposed order, the board may issue a final order imposing the disciplinary action described in the proposed order;
provided that the board shall not issue an order imposing disciplinary action upon the licensee if the revocation, suspension, or other disciplinary action against a licensee by another state was based on the provision or assistance in receipt or provision of medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or the termination of a pregnancy, or the provision or assistance in receipt or provision of gender-affirming health care services, as defined in section 323J-1, so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State."
2. By amending subsection (c) to read:
"(c) A licensee against whom the board has issued a proposed order under this section shall be prohibited from practicing in this State until the board issues a final order if:
(1) The licensee was the subject of
disciplinary action by another state, except where the disciplinary
action against the licensee by another state was based on the provision or
assistance in receipt or provision of [medical,]:
(A) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State; and
(2) The disciplinary action by another state prohibits the licensee from practicing in that state."
SECTION 7. Section 453D-12, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) In addition to any other acts or conditions provided by law, the director may refuse to renew, reinstate, or restore, and may deny, revoke, suspend, or condition in any manner, any license for any one or more of the following acts or conditions on the part of a licensee or license applicant:
(1) Failing to meet or maintain the conditions and requirements necessary to qualify for the granting of a license;
(2) Engaging in false, fraudulent, or deceptive advertising, or making untruthful or improbable statements;
(3) Being addicted to, dependent on, or a habitual user of a narcotic, barbiturate, amphetamine, hallucinogen, opium, cocaine, or other drugs or derivatives of a similar nature;
(4) Practicing the licensed profession while impaired by alcohol, drugs, physical disability, or mental instability;
(5) Procuring a license through fraud, misrepresentation, or deceit;
(6) Aiding and abetting an unlicensed person to directly or indirectly perform activities requiring a license;
(7) Professional misconduct, incompetence, gross negligence, or manifest incapacity, in the practice of the licensed profession;
(8) Engaging in conduct or practice contrary to recognized standards of ethics for the licensed profession;
(9) Violating any condition or limitation upon which a conditional or temporary license was issued;
(10) Engaging in business under a past or present license issued pursuant to the licensing laws, in a manner causing injury to one or more members of the public;
(11) Failing to comply
with, observe, or adhere to any law in a manner [such] that the director
deems the applicant or holder to be an unfit or improper person to hold a
license;
(12) Having had a
license revoked or suspended, or having been the subject of other disciplinary
action, by another state or a federal agency for any reason provided by the
licensing laws or this section[;], except when the revocation,
suspension, or other disciplinary action was based on the provision or
assistance in receipt or provision of gender-affirming health care services, as
defined in section 323J-1, so long as the provision or assistance in receipt or
provision of the services was in accordance with the laws of this State or
would have been in accordance with the laws of this State if it occurred within
this State;
(13) Having been
convicted of a crime, whether by nolo contendere or otherwise, directly related
to the qualifications, functions, or duties of the licensed profession[;],
except when the revocation, suspension, or other disciplinary action was based
on the provision or assistance in receipt or provision of gender-affirming
health care services, as defined in section 323J-1, so long as the provision or
assistance in receipt or provision of the services was in accordance with the
laws of this State or would have been in accordance with the laws of this State
if it occurred within this State;
(14) Failing to report in writing to the director any disciplinary decision issued against the licensee or applicant in another jurisdiction within thirty days of the disciplinary decision;
(15) Employing, utilizing, or attempting to employ or utilize, at any time, any person not licensed under the licensing laws where licensure is required; or
(16) Violating this chapter, chapter 436B, or any rule or order of the director."
SECTION 8. Section 453D-13, Hawaii Revised Statutes, is amended to read as follows:
"§453D-13 Confidentiality and privileged communications. No person licensed as a mental health counselor or an associate mental health counselor, nor any of the person's employees or associates, shall be required to disclose any information that the person may have acquired in rendering mental health counseling services, except in the following circumstances:
(1) As required by law;
(2) To prevent a clear and imminent danger to a person or persons;
(3) In accordance with the terms of a previously written waiver of the privilege where the waiver is executed by the client or by the client's legally recognized representative;
(4) Where more than one person jointly receives counseling and each person who is legally competent executes a written waiver. In that instance, information may be disclosed from any person in accordance with that person's waiver; or
(5) In the course of a
disciplinary action or pursuant to a duly authorized subpoena issued by the
department[.], except when the disciplinary action by another federal
or state agency is based on the provision or assistance in receipt or provision
of gender-affirming health care services, as defined in section 323J-1, so long
as the provision or assistance in receipt or provision of the services was in
accordance with the laws of this State or would have been in accordance with
the laws of this State if it occurred within this State."
SECTION 9. Section 457-12, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows:
"(a) In addition to any other actions authorized by law, the board shall have the power to deny, revoke, limit, or suspend any license to practice nursing as a registered nurse or as a licensed practical nurse applied for or issued by the board in accordance with this chapter, and to fine or to otherwise discipline a licensee for any cause authorized by law, including but not limited to the following:
(1) Fraud or deceit in procuring or attempting to procure a license to practice nursing as a registered nurse or as a licensed practical nurse;
(2) Gross immorality;
(3) Unfitness or incompetence by reason of negligence, habits, or other causes;
(4) Habitual intemperance, addiction to, or dependency on alcohol or other habit-forming substances;
(5) Mental incompetence;
(6) Unprofessional conduct as defined by the board in accordance with its own rules;
(7) Wilful or repeated violation of any of the provisions of this chapter or any rule adopted by the board;
(8) Revocation,
suspension, limitation, or other disciplinary action by another state of a
nursing license, except when the revocation, suspension, limitation, or other
disciplinary action by another state was based on the provision or assistance
in receipt or provision of [medical,]:
(A) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State;
(9) Conviction,
whether by nolo contendere or otherwise, of a penal offense substantially
related to the qualifications, functions, or duties of a nurse, notwithstanding
any statutory provision to the contrary, except when the conviction was based
on the provision or assistance in receipt or provision of [medical,]:
(A) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State;
(10) Failure to report to the board any disciplinary action taken against the licensee in another jurisdiction within thirty days after the disciplinary action becomes final;
(11) Submitting to or
filing with the board any notice, statement, or other document required under
this chapter[, which] that is false or untrue or contains any
material misstatement of fact, including a false attestation of compliance with
continuing competency requirements; or
(12) Violation of the conditions or limitations upon which any license is issued.
(b)
Notwithstanding any other law to the contrary, the board may deny a
license to any applicant who has been disciplined by another state, except on
the basis of discipline by another state for the provision or assistance in
receipt or provision of [medical,]:
(1) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(2) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State. Any final order entered pursuant to this subsection shall be a matter of public record."
SECTION 10. Section 457-12.5, Hawaii Revised Statutes, is amended as follows:
1. By amending subsection (a) to read:
"(a) Upon receipt of evidence of revocation, suspension, or other disciplinary action against a licensee in another state, the board may issue an order imposing disciplinary action upon the licensee on the following conditions:
(1) The board shall serve the licensee with a proposed order imposing disciplinary action as required by chapter 91;
(2) The licensee shall have the right to request a hearing pursuant to chapter 91 to show cause why the action described in the proposed order should not be imposed;
(3) Any request for a hearing shall be made in writing and filed with the board within twenty days after mailing of the proposed order to the licensee; and
(4) If the licensee does not submit a written request for a hearing within twenty days after mailing of the proposed order, the board shall issue a final order imposing the disciplinary action described in the proposed order;
provided that the board shall not issue an order imposing disciplinary action upon the licensee if the revocation, suspension, or other disciplinary action against a licensee by another state was based on the provision or assistance in receipt or provision of medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or the termination of a pregnancy, or the provision or assistance in receipt or provision of gender-affirming health care services, as defined in section 323J-1, so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State."
2. By amending subsection (c) to read:
"(c) A licensee against whom the board has issued a proposed order under this section shall be prohibited from practicing in this State until the board issues a final order if:
(1) The licensee was
the subject of disciplinary action by another state, except where the
disciplinary action against the licensee by another state was based on the
provision or assistance in receipt or provision of [medical,]:
(A) Medical,
surgical, pharmaceutical, counseling, or referral services relating to the
human reproductive system, including but not limited to services relating to
pregnancy, contraception, or the termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State; and
(2) The disciplinary action in the other state prohibits the licensee from practicing in that state."
SECTION 11. Section 461-21.5, Hawaii Revised Statutes, is amended as follows:
1. By amending subsection (a) to read:
"(a) Upon receipt of evidence of revocation, suspension, or other disciplinary action against a licensee by another state or federal agency, the board may issue an order imposing disciplinary action upon the licensee on the following conditions:
(1) The board shall serve the licensee with a proposed order imposing disciplinary action as required by chapter 91;
(2) The licensee shall have the right to request a hearing pursuant to chapter 91 to show cause why the action described in the proposed order should not be imposed;
(3) Any request for a hearing shall be made in writing and filed with the board within twenty days after mailing of the proposed order to the licensee; and
(4) If the licensee does not submit a written request for a hearing within twenty days after mailing of the proposed order, the board shall issue a final order imposing the disciplinary action described in the proposed order;
provided that the board shall not issue an order imposing disciplinary action upon the licensee if the revocation, suspension, or other disciplinary action against a licensee by another state was based on the provision or assistance in receipt or provision of medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or the termination of a pregnancy, or the provision or assistance in receipt or provision of gender-affirming health care services, as defined in section 323J-1, so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State."
2. By amending subsection (c) to read:
"(c) A licensee against whom the board has issued a proposed order under this section shall be prohibited from practicing in this State until the board issues a final order if:
(1) The licensee was the subject of
disciplinary action by another state, except where the disciplinary action
against the licensee by another state was based on the provision or assistance
in receipt or provision of [medical,]:
(A) Medical, surgical, pharmaceutical, counseling,
or referral services relating to the human reproductive system, including but
not limited to services relating to pregnancy, contraception, or the
termination of a pregnancy[,]; or
(B) Gender-affirming health care services, as defined in section 323J-1,
so long as the provision or assistance in receipt or provision of the services was in accordance with the laws of this State or would have been in accordance with the laws of this State if it occurred within this State; and
(2) The disciplinary action by another state prohibits the licensee from practicing in that state."
SECTION 12. Section 465-13, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) In addition to any other actions authorized
by law, the board shall refuse to grant a license to any applicant and may
revoke or suspend any license, or may place a license or [may] put a
license holder on conditional probation, for any cause authorized by law,
including but not limited to the following:
(1) Professional misconduct, gross carelessness, manifest incapacity, or incompetency in the practice of psychology;
(2) Violation of this chapter by the applicant within one year of the application, or violation of this chapter by a license holder any time the license is valid;
(3) Any unethical practice of psychology as defined by the board in accordance with its own rules;
(4) Fraud or deception in applying for or procuring a license to practice psychology as defined in section 465-1;
(5) Conviction of a
crime substantially related to the qualifications, functions, or duties of
psychologists[;], except when the conviction was based on the
provision or assistance in receipt or provision of gender-affirming health care
services, as defined in section 323J-1, so long as the provision or assistance
in receipt or provision of the services was in accordance with the laws of this
State or would have been in accordance with the laws of this State if it
occurred within this State;
(6) Wilful unauthorized communication of information received in professional confidence;
(7) The suspension, revocation, or imposition of probationary conditions by another state of a license or certificate to practice psychology issued by that state if the act for which the disciplinary action was taken constitutes a violation of this chapter;
(8) The commission of any dishonest, corrupt, or fraudulent act or any act of sexual abuse, or sexual relations with a client, or sexual misconduct that is substantially related to the qualifications, functions, or duties of a psychologist;
(9) Harassment, intimidation, or abuse, sexual or otherwise, of a client or patient;
(10) Exercising undue influence in the manner as to exploit the client, patient, student, or supervisee for financial or other personal advantage to the practitioner or a third party;
(11) Conviction of fraud in filing medicaid claims or conviction of fraud in filing claims to any third party payor, for which a copy of the record of conviction, certified by the clerk of the court entering the conviction, shall be conclusive evidence;
(12) Aiding or abetting any unlicensed person to engage in the practice of psychology;
(13) Repeated acts of excessive treatment or use of diagnostic procedures as determined by the standard of the local community of licensees;
(14) Inability to practice psychology with reasonable skill and safety to patients or clients by reason of illness, inebriation, or excessive use of any substance, or as a result of any mental or physical condition;
(15) Conviction of any crime or offense that reflects the inability of the practitioner to practice psychology with due regard for the health and safety of clients or patients;
(16) Use of untruthful or deceptive or improbable statements concerning the licensee's qualifications or the effects or results of proposed treatment;
(17) Functioning outside of the licensee's professional competence established by education, training, and experience;
(18) Refusal to comply with any written order of the board;
(19) Making any fraudulent or untrue statement to the board, including a false certification of compliance with the continuing education requirement of section 465-11; or
(20) Violation of a board rule."
SECTION 13. Section 636C-9, Hawaii Revised Statutes, is amended to read as follows:
"[[]§636C-9[]]
Enforcement of foreign penal civil actions
relating to protected reproductive health care services[.] or
protected gender-affirming health care services. (a) No
judgment or other order arising from a foreign penal civil action or other
penal law banning, restricting, burdening, punishing, penalizing, or otherwise
interfering with the provision of protected reproductive health care services or
protected gender-affirming health care services shall be enforced in this
State.
(b) As used in this section:
"Foreign penal civil action" means an action authorized by the law of a state, or of any municipality or other governmental entity within a state, other than this State, the essential character and effect of which is to punish an offense against the public justice of that state, municipality, or other governmental entity.
"Gender-affirming health care services" has the same meaning as in section 323J-1.
"Protected gender-affirming health care services" means gender-affirming health care services that are protected under the Hawaii State Constitution or are otherwise lawful under the laws of this State or that would be constitutionally protected or otherwise lawful if performed within this State.
"Protected reproductive health care services" means medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or termination of a pregnancy, that are protected under the Hawaii State Constitution or otherwise lawful under the laws of this State or that would be constitutionally protected or otherwise lawful if performed within this State."
SECTION 14. Section 836-2, Hawaii Revised Statutes, is amended to read as follows:
"§836-2 Summoning witness in this
State to testify in another state. (a) If a judge of a court of record in any state
[which] that by its laws has made provision for commanding
persons within that state to attend and testify in this State certifies under
the seal of that court that there is a criminal prosecution pending in that
court, or that a grand jury investigation has commenced or is about to
commence, that a person in this State is a material witness in the prosecution
or grand jury investigation, and that the person's presence will be required
for a specified number of days, upon presentation of the certificate to any
judge of a court of record in this State in the judicial district in which the
person is, the judge shall fix a time and place for a hearing, and shall make
an order directing the witness to appear at a time and place certain for the
hearing.
(b)
If at a hearing the judge determines that the witness is material
and necessary, that it will not cause undue hardship to the witness to be
compelled to attend and testify in the prosecution or a grand jury
investigation in the other state, and that the laws of the state in which the
prosecution is pending, or grand jury investigation has commenced or is about
to commence, and of any other state through which the witness may be required
to pass by ordinary course of travel, will give to the witness protection from
arrest and the service of civil and criminal process, the judge shall issue a
summons, with a copy of the certificate attached, directing the witness to
attend and testify in the court where the prosecution is pending, or where a
grand jury investigation has commenced or is about to commence at a time and
place specified in the summons[, except]; provided that no judge
shall issue a summons in a case where prosecution is pending, or where a grand
jury investigation has commenced or is about to commence for a criminal
violation of a law of another state involving [the provision,]:
(1) Seeking,
receiving, paying for, [receipt of, or assistance with] or
inquiring about reproductive health care services [as defined in section
323J-1] or gender-affirming health care services;
(2) Providing or responding to an inquiry about reproductive health care services or gender-affirming health care services;
(3) Assisting or aiding or abetting in any of the conduct described in paragraph (1) or (2); or
(4) Attempting or intending to engage in or providing material support for (or any other theory of vicarious, attempt, joint, several, or conspiracy liability derived therefrom) conduct described in paragraphs (1) to (3),
unless the acts forming the basis of the prosecution or investigation would also constitute an offense in this State. In any hearing, the certificate shall be prima facie evidence of all the facts stated therein.
(c) If the certificate recommends that the witness be taken into immediate custody and delivered to an officer of the requesting state to assure the witness' attendance in the requesting state, the judge may, in lieu of notification of the hearing, direct that the witness be forthwith brought before the judge for the hearing; and the judge at the hearing being satisfied of the desirability of the custody and delivery, for which determination the certificate shall be prima facie proof of the desirability may, in lieu of issuing subpoena or summons, order that the witness be forthwith taken into custody and delivered to an officer of the requesting state.
(d) If the witness, who is summoned pursuant to this section, after being paid or tendered by some properly authorized person a sum equivalent to the cost of round-trip air fare to the place where the prosecution is pending and $30 for each day, that the witness is required to travel and attend as a witness, fails without good cause to attend and testify as directed in the summons, the witness shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this State.
(e) As used in this section:
"Gender-affirming health care services" has the same meaning as in section 323J-1.
"Reproductive health care services" has the same meaning as in section 323J-1."
SECTION 15. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.
SECTION 16. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 17. This Act shall take effect on July 1, 2026.
|
INTRODUCED BY: |
_____________________________ |
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Report Title:
Gender-Affirming Health Care Services; Reproductive Health Care Services; Protections; Abusive Litigation; Medical Malpractice Insurance; Health Carriers; Protected Health Information; Covered Entities
Description:
Expands the protections established under Act 2, SLH 2023, to include gender-affirming health care services, including clarifying permitted disclosures of protected health information to address changes in federal regulations. Establishes protections against abusive litigation. Prohibits medical malpractice insurers and health carriers from taking certain adverse actions against health care providers solely on the basis that the health care provider provides lawful reproductive health care services or gender-affirming care services.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
|
Date
|
Status
|
|---|---|
| May 29, 2026 | Act 059, on 05/29/2026 (Gov. Msg. No. 1159). |
| May 29, 2026 | Act 059, 05/29/2026 (Gov. Msg. No. 1159). |
| Apr 24, 2026 | Received notice of passage on Final Reading in House (Hse. Com. No. 823). |
| Apr 23, 2026 | Transmitted to Governor. |
| Apr 23, 2026 | Passed Final Reading as amended in SD 2 with Representative(s) Kila, Souza voting aye with reservations; Representative(s) Alcos, Garcia, Gedeon, Kong, Matsumoto, Muraoka, Pierick, Shimizu voting no (8) and Representative(s) Evslin excused (1). |
| Apr 23, 2026 | House agrees to Senate amendment(s). |
| Apr 23, 2026 | Received notice of House reconsideration of action in disagreeing to the amendments proposed by the Senate (Hse. Com. No. 815). |
| Apr 22, 2026 | Reconsideration of action taken on 04-16-26. |
| Apr 17, 2026 | Received notice of disagreement (Hse. Com. No. 780). |
| Apr 16, 2026 | House disagrees with Senate amendment (s). |
| Apr 14, 2026 | Returned from Senate (Sen. Com. No. 633) in amended form (SD 2). |
| Apr 14, 2026 | Report Adopted; Passed Third Reading, as amended (SD 2). Ayes, 21; Aye(s) with reservations: none. Noes, 4 (Senator(s) Awa, DeCorte, Fevella, Gabbard). Excused, 0 (none). Transmitted to House. |
| Apr 10, 2026 | 48 Hrs. Notice 04-14-26. |
| Apr 10, 2026 | Reported from JDC (Stand. Com. Rep. No. 3798) with recommendation of passage on Third Reading, as amended (SD 2). |
| Apr 7, 2026 | The committee(s) on JDC recommend(s) that the measure be PASSED, WITH AMENDMENTS. The votes in JDC were as follows: 3 Aye(s): Senator(s) Rhoads, Chang, San Buenaventura; Aye(s) with reservations: none ; 1 No(es): Senator(s) Gabbard; and 1 Excused: Senator(s) Awa. |
| Apr 1, 2026 | The committee(s) on JDC will hold a public decision making on 04-07-26 10:15AM; Conference Room 016 & Videoconference. |
| Mar 30, 2026 | Report adopted; Passed Second Reading, as amended (SD 1) and referred to JDC. |
| Mar 30, 2026 | Reported from HHS/CPN (Stand. Com. Rep. No. 3338) with recommendation of passage on Second Reading, as amended (SD 1) and referral to JDC. |
| Mar 24, 2026 | The committee(s) on CPN recommend(s) that the measure be PASSED, WITH AMENDMENTS. The votes in CPN were as follows: 4 Aye(s): Senator(s) Keohokalole, Fukunaga, Lamosao, McKelvey; Aye(s) with reservations: none ; 1 No(es): Senator(s) Awa; and 0 Excused: none. |
| Mar 20, 2026 | The committee(s) on CPN deferred the measure until 03-24-26 9:30AM; Conference Room 229 & Videoconference. |
| Mar 20, 2026 | The committee(s) on HHS recommend(s) that the measure be PASSED, WITH AMENDMENTS. The votes in HHS were as follows: 4 Aye(s): Senator(s) San Buenaventura, Kanuha, Keohokalole; Aye(s) with reservations: Senator(s) Fevella ; 0 No(es): none; and 1 Excused: Senator(s) McKelvey. |
| Mar 16, 2026 | The committee(s) on HHS/CPN has scheduled a public hearing on 03-20-26 9:30AM; Conference Room 229 & Videoconference. |
| Mar 12, 2026 | Referred to HHS/CPN, JDC. |
| Mar 12, 2026 | Passed First Reading. |
| Mar 12, 2026 | Received from House (Hse. Com. No. 306). |
| Mar 10, 2026 | Passed Third Reading as amended in HD 2 with Representative(s) Kila, Matsumoto, Reyes Oda, Souza voting aye with reservations; Representative(s) Alcos, Garcia, Gedeon, Kong, Pierick, Shimizu voting no (6) and none excused (0). Transmitted to Senate. |
| Mar 6, 2026 | Forty-eight (48) hours notice Tuesday, 03-10-26. |
| Mar 6, 2026 | Reported from JHA (Stand. Com. Rep. No. 1141-26) as amended in HD 2, recommending passage on Third Reading. |
| Feb 24, 2026 | The committee on JHA recommend that the measure be PASSED, WITH AMENDMENTS. The votes were as follows: 7 Ayes: Representative(s) Tarnas, Poepoe, Belatti, Kahaloa, Sayama, Takayama; Ayes with reservations: Representative(s) Cochran; 1 Noes: Representative(s) Shimizu; and 2 Excused: Representative(s) Hashem, Garcia. |
| Feb 20, 2026 | Bill scheduled to be heard by JHA on Tuesday, 02-24-26 2:00PM in House conference room 325 VIA VIDEOCONFERENCE. |
| Feb 18, 2026 | Passed Second Reading as amended in HD 1 and referred to the committee(s) on JHA with Representative(s) Kila, Reyes Oda, Souza voting aye with reservations; Representative(s) Alcos, Garcia, Gedeon, Matsumoto, Muraoka, Pierick voting no (6) and none excused (0). |
| Feb 18, 2026 | Reported from HLT/CPC (Stand. Com. Rep. No. 476-26) as amended in HD 1, recommending passage on Second Reading and referral to JHA. |
| Feb 11, 2026 | The committee on CPC recommend that the measure be PASSED, WITH AMENDMENTS. The votes were as follows: 8 Ayes: Representative(s) Matayoshi, Grandinetti, Chun, Ilagan, Ichiyama, Iwamoto, Marten, Tam; Ayes with reservations: none; 1 Noes: Representative(s) Kong; and 2 Excused: Representative(s) Lowen, Pierick. |
| Feb 11, 2026 | The committee on HLT recommend that the measure be PASSED, WITH AMENDMENTS. The votes were as follows: 6 Ayes: Representative(s) Takayama, Keohokapu-Lee Loy, Hartsfield, Marten, Olds, Takenouchi; Ayes with reservations: none; 2 Noes: Representative(s) Alcos, Garcia; and 1 Excused: Representative(s) Amato. |
| Feb 8, 2026 | Bill scheduled to be heard by HLT/CPC on Wednesday, 02-11-26 2:00PM in House conference room VIA VIDEOCONFERENCE. |
| Feb 8, 2026 | Bill scheduled to be heard by HLT/CPC on Wednesday, 02-11-26 2:00PM in House conference room 329 VIA VIDEOCONFERENCE. |
| Feb 8, 2026 | This measure has been deleted from the meeting scheduled on Monday 02-09-26 2:00PM in conference room 329 VIA VIDEOCONFERENCE. |
| Feb 6, 2026 | Bill scheduled to be heard by HLT/CPC on Monday, 02-09-26 2:00PM in House conference room 329 VIA VIDEOCONFERENCE. |
| Jan 30, 2026 | Re-referred to HLT/CPC, JHA, referral sheet 5 |
| Jan 26, 2026 | Referred to HLT, CPC, JHA, referral sheet 2 |
| Jan 26, 2026 | Introduced and Pass First Reading. |
| Jan 23, 2026 | Pending introduction. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Apr 23, 2026 | Final Reading | House Floor |
Passed |
|
| Apr 14, 2026 | Third Reading | Senate Floor |
Passed |
|
| Apr 7, 2026 | The committee(s) on JDC recommend(s) that the measure be PASSED, WITH AMENDMENTS | Senate Standing Committee on Judiciary |
Passed |
|
| Mar 24, 2026 | The committee(s) on CPN recommend(s) that the measure be PASSED, WITH AMENDMENTS | Senate Standing Committee on Commerce and Consumer Protection |
Passed |
|
| Mar 20, 2026 | The committee(s) on HHS recommend(s) that the measure be PASSED, WITH AMENDMENTS | Senate Standing Committee on Health and Human Services |
Passed |
|
| Mar 10, 2026 | Third Reading | House Floor |
Passed |
|
| Feb 24, 2026 | The committee on JHA recommend that the measure be PASSED, WITH AMENDMENTS | House Standing Committee on Judiciary & Hawaiian Affairs |
Passed |
|
| Feb 11, 2026 | The committee on CPC recommend that the measure be PASSED, WITH AMENDMENTS | House Standing Committee on Consumer Protection & Commerce |
Passed |
|
| Feb 11, 2026 | The committee on HLT recommend that the measure be PASSED, WITH AMENDMENTS | House Standing Committee on Health |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| 'Iolani GSA | *** Support | Feb 11, 2026 |
| AAUW of Hawaiʻi | *** Support | Apr 7, 2026 |
| ACOG Hawai'i (Immediate Past Chair) | *** Support | Feb 11, 2026 |
| ACOG Hawaiʻi | *** Support | Apr 7, 2026 |
| Adolescent Medicine physician, Kapi'olani Medical Center | *** Support | Feb 11, 2026 |
| Ala Moana-Kakaʻako Neighborhood Board No. 11 | *** Support | Apr 7, 2026 |
| Ala Moana–Kakaʻako Neighborhood Board No. 11 | *** Support | Apr 7, 2026 |
| Ala-Moana Kaka’ako Neighborhood Board | *** Support | Apr 7, 2026 |
| Ala-Moana Kaka’ako Neighborhood Board (personal testimony) | *** Support | Apr 7, 2026 |
| AlohaCare | *** Support | Feb 24, 2026 |
| AlohaCare | *** Support | Mar 20, 2026 |
| American Academy of Pediatrics, Hawaii Chapter | *** Support | Mar 20, 2026 |
| American Academy of Pediatrics, Hawaiʻi Chapter (HAAP) | *** Support | Feb 24, 2026 |
| American Civil Liberties Union of Hawaiʻi | *** Support | Apr 7, 2026 |
| American College of Obstetricians and Gynecologists, Hawaiʻi Section | ** Support | |
| American College of Obstetricians and Gynecologists, Hawaiʻi Section | *** Support | Apr 7, 2026 |
| Assistant Professor of Law, University of Hawai‘i at Mānoa William S. Richardson School of Law | *** Support | Feb 11, 2026 |
| Board-certified obstetrician-gynecologist | *** Support | Feb 11, 2026 |
| Board-certified obstetrician-gynecologist (practicing in Hawai'i) | *** Support | Feb 11, 2026 |
| Democratic Party of Hawaiʻi | *** Support | Apr 7, 2026 |
| Drug Policy Forum of Hawai'i | *** Support | Mar 20, 2026 |
| Essential Access Health | *** Support | Apr 7, 2026 |
| Essential Access Health (Title X grantee) | *** Support | Feb 24, 2026 |
| Evolve Health, LLC | *** Support | Apr 7, 2026 |
| Family Medicine physician (works with transgender patients) | *** Support | Feb 11, 2026 |
| Frost Family Foundation | ** Support | |
| Green Party of Hawaiʻi | ** Support | |
| Hawai'i Christian Coalition | *** Against | Mar 20, 2026 |
| Hawaii Health & Harm Reduction Center | *** Support | Apr 7, 2026 |
| Hawaii Health & Harm Reduction Center (HHHRC) | *** Support | Mar 20, 2026 |
| Hawaii J20 (noted) | *** Support | Feb 11, 2026 |
| Hawaii Medical Association | *** Support | Apr 7, 2026 |
| Hawaii Public Health Institute | *** Support | Apr 7, 2026 |
| Hawaii State AFL-CIO | *** Support | Apr 7, 2026 |
| Hawaii State Commission on the Status of Women | *** Support | Apr 7, 2026 |
| Hawaii Women Lawyers | *** Support | Apr 7, 2026 |
| Hawaii Women's Coalition | *** Support | Apr 7, 2026 |
| Hawaii Women’s Coalition | *** Support | Apr 7, 2026 |
| Hawaiian Islands Republican Women | *** Against | Feb 11, 2026 |
| Hawaiʻi Women's Lawyers | ** Support | |
| Hawaiʻi Association of Professional Nurses | ** Support | |
| Hawaiʻi Center for Sexual & Relationship Health | *** Support | Feb 11, 2026 |
| Hawaiʻi Civil Rights Commission | ** Support | |
| Hawaiʻi County Democrats | *** Support | Feb 24, 2026 |
| Hawaiʻi Democratic Party - District 4 | *** Support | Feb 24, 2026 |
| Hawaiʻi Family Forum | *** Against | Apr 7, 2026 |
| Hawaiʻi Nurse's Association, OPEIU Local 50 | ** Support | |
| Hawaiʻi Organization for Progress and Equity | ** Support | |
| Hawaiʻi Organization for Progress and Equity (HOPE) | *** Support | Feb 24, 2026 |
| Hawaiʻi State LGBTQ+ Commission | ** Support | |
| Hawaiʻi State Youth Commission | *** Support | Apr 7, 2026 |
| Hawai‘i County Council - District 2 | *** Support | Feb 24, 2026 |
| Hawai‘i Public Health Institute | *** Support | Apr 7, 2026 |
| Hawai‘i State Center for Nursing | *** Support | Apr 7, 2026 |
| Hawai‘i State LGBTQ+ Commission | *** Support | Apr 7, 2026 |
| Healthcare Association of Hawaii | *** Support | Apr 7, 2026 |
| HOKU PAC | *** Support | Apr 7, 2026 |
| HOPE for Hawaiʻi | *** Support | Mar 20, 2026 |
| House staff (not representing employer) | *** Support | Feb 11, 2026 |
| Imua Alliance | ** Support | |
| Independent Living Hawaii (AILH) | *** Support | Mar 20, 2026 |
| indivisible | *** Support | Apr 7, 2026 |
| Indivisible Hawaii Healthcare Team | *** Support | Apr 7, 2026 |
| Kaiser Honolulu | *** Support | Feb 11, 2026 |
| Kuaʻana Project | ** Support | |
| Kulia Na Mamo | ** Support | |
| Kumukahi Health + Wellness | ** Support | |
| KUPAʻA Project | ** Support | |
| Lambda Law Hawaiʻi, William S. Richardson School of Law | *** Support | Feb 24, 2026 |
| Lamda Law Hawaiʻi | ** Support | |
| Leeward Republican Women's Club | *** Against | Mar 20, 2026 |
| Lei Pua ʻAla Queer Histories of Hawaiʻi | *** Support | Feb 24, 2026 |
| Libertarian Party of Hawaii | *** Against | Apr 7, 2026 |
| Licensed Clinical Social Worker | *** Support | Feb 11, 2026 |
| MA, RDH (credential) | *** Support | Feb 11, 2026 |
| MPH (credential) | *** Support | Feb 11, 2026 |
| Na Pua Ilima | *** Support | Mar 20, 2026 |
| Nurse (noted) | *** Support | Feb 11, 2026 |
| ObGyn (physician) | *** Support | Feb 11, 2026 |
| Obstetrician-Gynecologist | *** Support | Feb 11, 2026 |
| Office of Hawaiian Affairs | *** Support | Apr 7, 2026 |
| Pediatrician, Maui (individual) | *** Support | Feb 11, 2026 |
| PFLAG Oʻahu | *** Support | Apr 7, 2026 |
| Pilina Center for Wellbeing | ** Support | |
| Pilina Center for Wellbeing | *** Support | Feb 11, 2026 |
| Planned Parenthood Alliance Advocates - Hawaiʻi | ** Support | |
| Planned Parenthood | *** Support | Apr 7, 2026 |
| Planned Parenthood Alliance Advocates | *** Support | Apr 7, 2026 |
| Planned Parenthood Alliance Advocates - Hawaiʻi | ** Support | |
| Planned Parenthood Alliance Advocates – Hawaiʻi | *** Support | Apr 7, 2026 |
| Planned Parenthood Generation Action | *** Support | Apr 7, 2026 |
| Planned Parenthood Generation Action (student group) | *** Support | Apr 7, 2026 |
| Pride at Work – Hawaiʻi | *** Support | Apr 7, 2026 |
| Pride at Work – Hawai‘i | *** Support | Mar 20, 2026 |
| Prince Kuhio Hawaiian Civic Club | *** Support | Apr 7, 2026 |
| Project HEAL (Board Chair) (personal capacity) | *** Support | Mar 20, 2026 |
| Queer history project (director) noted | *** Support | Feb 11, 2026 |
| Rainbow Family 808 | *** Support | Mar 20, 2026 |
| State Health Planning and Development Agency (SHPDA) | *** Support | Apr 7, 2026 |
| Stonewall Caucus of the Democratic Party of Hawai‘i | *** Support | Apr 7, 2026 |
| Temple Emanu-El | *** Support | Feb 24, 2026 |
| the KUPA'A Project | *** Support | Feb 11, 2026 |
| Transgender Military Hub (TMH) | *** Support | Apr 7, 2026 |
| Uncommon Paths | *** Support | Apr 7, 2026 |
| Unite Here Local 5 | ** Support | |
| UNITE HERE Local 5 | *** Support | Feb 24, 2026 |
| University of Hawaiʻi OB/GYN | *** Support | Apr 7, 2026 |
| University of Hawaiʻi Obstetrics & Gynecology | *** Support | Mar 20, 2026 |
| University of Hawai‘i at Mānoa | *** Support | Apr 7, 2026 |
| University of Hawai‘i at Mānoa William S. Richardson School of Law | *** Support | Feb 24, 2026 |
| Utopia Hawaii | ** Support | |
| Valerie Y. Matsuda (wife) | *** Against | Feb 24, 2026 |
| Visibility Brigade Honolulu | ** Support | |
| `Iolani School (employer noted in testimony) | *** Support | Feb 11, 2026 |
STAND. COM. REP. NO. 1141-26
Honolulu, Hawaii
, 2026
RE: H.B. No. 1875
H.D. 2
Honorable Nadine K. Nakamura
Speaker, House of Representatives
Thirty-Third State Legislature
Regular Session of 2026
State of Hawaii
Madame:
Your Committee on Judiciary & Hawaiian Affairs, to which was referred H.B. No. 1875, H.D. 1, entitled:
"A BILL FOR AN ACT RELATING TO HEALTH CARE,"
begs leave to report as follows:
The purpose of this measure is to:
(1) Expand the protections established under Act 2, Session Laws of Hawaii 2023, to include gender-affirming health care services, including clarifying permitted disclosures of protected health information to address changes in federal regulations;
(2) Establish protections against abusive litigation; and
(3) Prohibit medical malpractice insurers and health carriers from taking certain adverse actions against health care providers solely on the basis that the health care provider provides lawful reproductive health care services or gender-affirming care services.
Your Committee received testimony in support of this measure from the State Health Planning and Development Agency; Hawaiʻi Civil Rights Commission; Hawaiʻi State Youth Commission; Hawaii State Commission on the Status of Women; Hawaiʻi State LGBTQ+ Commission; one member of the Hawaiʻi County Council; Hawaiʻi Public Health Institute; Democratic Party of Hawaiʻi; Stonewall Caucus of the Democratic Party of Hawaiʻi; AAUW of Hawaiʻi; HOKU PAC; Pride at Work - Hawaiʻi; Rainbow Family 808; American Civil Liberties Union of Hawaiʻi; Indivisible Hawaii Healthcare Team; Hawaii Medical Association; Green Party of Hawaiʻi; Hawaiʻi Organization for Progress and Equity; PFLAG Oʻahu; Kumukahi Health + Wellness; Visibility Brigade Honolulu; District 4 of the Hawaii Democratic Party; Indivisible Leeward Oahu; American Academy of Pediatrics, Hawaiʻi Chapter; Hawaiʻi Health & Harm Reduction Center; Hawaiʻi Women's Lawyers; Planned Parenthood Alliance Advocates - Hawaiʻi; Maui Indivisible; Healthcare Association of Hawaii; American College of Obstetricians and Gynecologists, Hawaiʻi Section; Hawaii State AFL-CIO; UNITE HERE Local 5; AlohaCare; Drug Policy Forum of Hawaiʻi; Evolve Health, LLC; Utopia Hawaii; Frost Family Foundation; Essential Access Health; Hawaiʻi County Democratic Party; Lamda Law Hawaiʻi; Indivisible Oahu; and numerous individuals. Your Committee received testimony in opposition to this measure from the Hawaii Family Forum and numerous individuals. Your Committee received comments on this measure from the Department of Commerce and Consumer Affairs; Office of Information Practices; and Hawaii Medical Service Association.
Your Committee finds that efforts by other jurisdictions to investigate, penalize, or compel participation in extraterritorial proceedings related to the lawful provision of reproductive and gender-affirming health care services in the State raise serious concerns regarding due process, judicial comity, and the improper extraterritorial application of law. Your Committee further finds that the misuse of subpoenas, civil actions, and disclosure demands may undermine confidentiality protections, burden state courts, and chill the exercise of lawful rights and professional judgment. Clarifying the circumstances under which the courts, state agencies, and covered entities may decline to cooperate with extraterritorial proceedings against health care providers providing, and patients seeking, lawful health care services, and providing remedies to deter abusive litigation, is necessary to preserve judicial resources, protect patient privacy, and ensure that Hawaii law is applied consistently within this State.
Your Committee notes that the term "abusive litigation" is not intended to include potential insurance disputes over coverage status, medical necessity, fraud, waste and abuse, or the recovery of overpayments. Your Committee further notes that this measure does not expand required health care coverage of any treatments or services or create any new mandates for health insurance coverage in Hawaii.
Your Committee has amended this measure by:
(1) Inserting a preamble;
(2) Clarifying that any sanction, fine, penalty, or rate increase imposed by a malpractice insurer must be based on actuarial analysis conducted in accordance with the applicable Actuarial Standards of Practice promulgated by the Actuarial Standards Board;
(3) Amending the definition of "gender-affirming health care services"; and
(4) Making technical, nonsubstantive amendments for the purposes of clarity, consistency, and style.
As affirmed by the record of votes of the members of your Committee on Judiciary & Hawaiian Affairs that is attached to this report, your Committee is in accord with the intent and purpose of H.B. No. 1875, H.D. 1, as amended herein, and recommends that it pass Third Reading in the form attached hereto as H.B. No. 1875, H.D. 2.
Respectfully submitted on behalf of the members of the Committee on Judiciary & Hawaiian Affairs,
|
|
|
____________________________ DAVID A. TARNAS, Chair |
|
|
|
|
STAND. COM. REP. NO. 476-26
Honolulu, Hawaii
, 2026
RE: H.B. No. 1875
H.D. 1
Honorable Nadine K. Nakamura
Speaker, House of Representatives
Thirty-Third State Legislature
Regular Session of 2026
State of Hawaii
Madame:
Your Committees on Health and Consumer Protection & Commerce, to which was referred H.B. No. 1875 entitled:
"A BILL FOR AN ACT RELATING TO HEALTH CARE,"
beg leave to report as follows:
The purpose of this measure is to:
(1) Expand protections for reproductive health care services established by Act 2, Session Laws of Hawaii 2023, to include gender-affirming health care services and clarify permitted disclosures of protected health information to address changes in federal regulations;
(2) Establish protections against abusive litigation; and
(3) Prohibit medical malpractice insurers and health carriers from taking certain adverse actions against health care providers solely on the basis that the health care provider provides lawful reproductive or gender-affirming health care services.
Your Committees received testimony in support of this measure from the Hawaiʻi State Lesbian, Gay, Bisexual, Transgender, Queer Plus Commission; Hawaii State Commission on the Status of Women; one member of the Hawaiʻi County Council; HOKU PAC; Hawaiʻi State Youth Commission; Pride at Work - Hawaiʻi; Hawaiʻi Public Health Institute; Imua Alliance; Stonewall Caucus of the Democratic Party of Hawaiʻi; PFLAG Oʻahu; Hawaii Medical Association; Democratic Party of Hawaiʻi; American Civil Liberties Union of Hawaiʻi; Drug Policy Forum of Hawaiʻi; Kumukahi Health + Wellness; Pilina Center for Wellbeing; Healthcare Association of Hawaii; KUPAʻA Project; Hawaiʻi County Democratic Party; Hawaiʻi State Democratic Women's Caucus; AAUW of Hawaiʻi; Hawaiʻi Association of Professional Nurses; AlohaCare; Hawaiʻi Nurse's Association, OPEIU Local 50; Rainbow Family 808; American College of Obstetricians and Gynecologists, Hawaiʻi Section; Indivisible Hawaii Statewide Network; Visibility Brigade Honolulu; Kuaʻana Project; Indivisible Leeward Oahu; Kulia Na Mamo; Planned Parenthood Alliance Advocates - Hawaiʻi; Lambda Law Hawaiʻi; Evolve Health, LLC; and numerous individuals. Your Committees received testimony in opposition to this measure from the Hawaii Family Forum and numerous individuals. Your Committees received comments on this measure from the Department of Commerce and Consumer Affairs and Office of Information Practices.
Your Committees find that access to gender‑affirming health care is essential to the health, safety, and well‑being of transgender, nonbinary, and gender‑diverse individuals and is recognized by major medical associations as evidence‑based and medically necessary. Studies have shown that access to timely and appropriate gender-affirming care is directly linked to improved mental health outcomes and reduced rates of depression and suicidality for transgender, nonbinary, and gender-diverse individuals. Your Committees further find that in recent years several states have introduced or passed legislation that seeks to criminalize or impose civil liability on individuals and providers who seek or offer gender-affirming care. These efforts include attempts to obtain protected health information for out-of-state investigations, pursuing civil and criminal actions against out-of-state providers for providing care that is lawful in their state, and attempts to intimidate or deter providers from providing reproductive and gender-affirming health care through abusive use of disciplinary actions. Your Committees believe that these laws and actions are contrary to the public policy of this State and should not be enforceable in any Hawaii court or serve as the basis for granting any legal or equitable relief in any Hawaii court.
Your Committees also find that Act 2, Session Laws of Hawaii 2023, (Act 2) enacted critical protections for individuals seeking or providing reproductive health care services within the State. Your Committees believe that expanding the protections enshrined in Act 2 to providers who provide gender-affirming health care is necessary to affirm Hawaii's commitment to personal liberty and protect Hawaii residents, visitors, and health care providers from extraterritorial attempts to regulate or punish conduct that is expressly legal in this State.
Your Committees have amended this measure by:
(1) Clarifying that malpractice insurers shall not impose any sanctions, fines, penalties, or rate increases that are not based on actuarially sound principles solely because an applicant or named insured provided or assisted in the provision of reproductive or gender-affirming health care services;
(2) Changing the effective date to July 1, 3000, to encourage further discussion; and
(3) Making a technical, nonsubstantive amendment for the purposes of clarity, consistency, and style.
As affirmed by the records of votes of the members of your Committees on Health and Consumer Protection & Commerce that are attached to this report, your Committees are in accord with the intent and purpose of H.B. No. 1875, as amended herein, and recommend that it pass Second Reading in the form attached hereto as H.B. No. 1875, H.D. 1, and be referred to your Committee on Judiciary & Hawaiian Affairs.
Respectfully submitted on behalf of the members of the Committees on Health and Consumer Protection & Commerce,
|
____________________________ SCOT Z. MATAYOSHI, Chair |
|
____________________________ GREGG TAKAYAMA, Chair |
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Date
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Testimony PDF
|
|---|---|
| Apr 7, 2026 | HB1875_SD1_TESTIMONY_JDC_04-07-26_.PDF |
| Mar 20, 2026 | HB1875_HD2_TESTIMONY_CPN-HHS_03-20-26_.PDF |
| Feb 24, 2026 | HB1875_HD1_TESTIMONY_JHA_02-24-26_.PDF |
| Feb 11, 2026 | HB1875_TESTIMONY_HLT-CPC_02-11-26_.PDF |
Discussed in Hearing
36SEC
Senate Standing Committee on Commerce and Consumer Protection
28MIN
Senate Standing Committee on Commerce and Consumer Protection
28MIN
Senate Standing Committee on Health and Human Services
1MIN
Senate Standing Committee on Commerce and Consumer Protection
1MIN
Senate Standing Committee on Health and Human Services
7MIN
House Floor
50MIN
House Standing Committee on Judiciary & Hawaiian Affairs
2MIN
House Standing Committee on Judiciary & Hawaiian Affairs
Bill Author
Bill Co-Author(s):
