S2633

An Act concerning reproductive health services and supplementing Title 2A of the New Jersey Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. a. As used in this act:

“Reproductive health care services” includes all medical, surgical, 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.

“Person” includes an individual, partnership, association, limited liability company, or corporation.

b. When a judgment has been entered against a person in any state where liability, in whole or in part, is based on the alleged provision, receipt, assistance in receipt or provision, material support for, or any theory of vicarious, joint, several or conspiracy liability derived therefrom, for reproductive health care services that are permitted under the laws of this State, the person may recover damages from any party that brought the action leading to that judgment or has sought to enforce that judgment.

Recoverable damages shall include:

(1) Damages created by the action that led to that judgment including, but not limited to, money damages in the amount of the judgment in that other state and costs, expenses and reasonable attorney's fees spent in defending the action that resulted in the entry of a judgment in another state; and

(2) costs, expenses, and reasonable attorney's fees incurred in bringing an action under this section as may be allowed by the court.

c. The provisions of this section shall not apply to a judgment entered in another state that is based on:

(1) an action founded in tort, contract or statute, and for which a similar claim would exist under the laws of this State, brought by the patient who received the reproductive health care services upon which the original lawsuit was based or the patient's authorized legal representative, for damages suffered by the patient or damages derived from an individual's loss of consortium of the patient;

(2) an action founded in contract, and for which a similar claim would exist under the laws of this State, brought or sought to be enforced by a party with a contractual relationship with the person that is the subject of the judgment entered in another state; or

(3) an action where no part of the acts that formed the basis for liability occurred in this State.

2. a. Except as otherwise provided by law, in any civil action or proceeding preliminary thereto or in any legislative or administrative proceeding, a covered entity, as set forth in the medical privacy and security rules pursuant to Parts 160 and 164 of Title 45 of the Code of Federal Regulations, established pursuant to the "Health Insurance Portability and Accountability Act of 1996," Pub.L.104-191, shall not 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, as defined in section 1 of this act, that are permitted under the laws of this State; or

(2) any information obtained by personal examination of a patient relating to reproductive health care services, as defined in section 1 of this act, that are permitted under the laws of this State, unless the patient or that patient's conservator, guardian, or other authorized legal representative explicitly consents in writing to the disclosure. 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 such 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 any communication or information:

(1) pursuant to the laws of this State or the Rules of Court;

(2) by a covered entity against whom a claim has been made, or there is a reasonable belief will be made, in an action or proceeding, to the covered entity's attorney or professional liability insurer or insurer's agent for use in the defense of the action or proceeding;

(3) to the Department 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 elderly individual, abuse of an individual who is incapacitated, or abuse of an individual with a physical or mental disability is known or in good faith suspected.

c. Nothing in this section shall be construed to impede the lawful

sharing of medical records as permitted by State or federal law or the

Rules of Court, except in the case of a subpoena commanding the production, copying, or inspection of medical records relating to reproductive health care services, as defined in section 1 of this act.

3. a. Notwithstanding the provisions of any other law, a court shall not issue a subpoena requested by any court of the United States or of any other state or government if the subpoena relates to reproductive health care services, as defined in section 1 of this act, that are permitted under the laws of this State, unless the subpoena relates to:

(1) an out-of-State action founded in tort, contract, or statute, for which a similar claim would exist under the laws of this State, brought by a patient or the patient's authorized legal representative, for damages suffered by the patient or damages derived from an individual's loss of consortium of the patient; or

(2) an out-of-State action founded in contract, and for which a similar claim would exist under the laws of this State, brought or sought to be enforced by a party with a contractual relationship with the person that is the subject of the subpoena requested by another state.

b. A court shall not 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 or receipt of or assistance with reproductive health care services, as defined in section 1 of this act, that are legal in this State, unless the acts forming the basis of the prosecution or investigation also would constitute an offense in this State.

4. A public entity of this State or employee, appointee, officer or official or any other person acting on behalf of a public entity shall not provide any information or expend or use time, money, facilities, property, equipment, personnel or other resources in furtherance of any interstate investigation or proceeding seeking to impose civil or criminal liability upon a person or entity for:

(1) the provision, seeking or receipt of or inquiring about reproductive health care services, as defined in section 1 of this act, that are legal in this State; or

(2) assisting any person or entity providing, seeking, receiving or responding to an inquiry about reproductive health care services, as defined in section 1 of this act, that are legal in this State.

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.

5. This act shall take effect immediately.

STATEMENT

This bill authorizes countersuits following a judgment based on liability for the provision of reproductive health care services that are permitted under New Jersey law. The bill also clarifies access to reproductive health care services in New Jersey by persons from other states. The bill provides that “reproductive health services” includes all medical, surgical, counseling, or referral services relating to the human reproductive system, including services relating to pregnancy, contraception, or termination of a pregnancy.

COUNTERSUITS

Under the bill, when a judgment has been entered against a person in any state where liability, in whole or in part, is based on the alleged provision, receipt, assistance in receipt or provision, material support for, or any theory of vicarious, joint, several or conspiracy liability derived therefrom, for reproductive health care services that are permitted under the laws of this State, the person may recover damages from any party that brought the action leading to that judgment or has sought to enforce that judgment.

Recoverable damages would include money damages in the amount of the judgment in that other state and costs, expenses, and reasonable attorney's fees spent in defending the action. In addition, costs, expenses, and reasonable attorney's fees incurred in bringing an action under the bill may also be recovered as allowed by the court.

The bill would not apply to a judgment entered in another state that is based on:

(1) an action founded in tort, contract, or statute, and for which a similar claim would exist under the laws of this State, brought by the patient who received the reproductive health care services upon which the original lawsuit was based or the patient's authorized legal representative, for damages suffered by the patient or damages derived from an individual's loss of consortium of the patient;

(3) an action where no part of the acts that formed the basis for liability occurred in this State.

CONFIDENTIAL HEALTH COMMUNICATIONS

The bill also provides that a communication to a health care provider, information obtained by the health care provider by a patient or the patient’s legal representative, or information obtained from an examination of a patient relating to reproductive health care services is not to be disclosed unless the patient or that patient's authorized legal representative explicitly consents to the disclosure in writing. A provider would be required to inform the patient or the patient's representative of the patient's right to withhold written consent.

Written consent would not be required for the disclosure if it is: pursuant to State law or the Rules of Court; by a health care provider to the provider’s attorney or liability insurer for use in defense of such action or proceeding; to the Department of Health in connection with an investigation of child abuse, or abuse of a person who is elderly, incapacitated, or has a physical or mental disability. The bill also specifies that it is not to be construed to impede the lawful sharing of medical records as permitted by State or federal law or the

Rules of Court, except in the case of a subpoena commanding the production, copying or inspection of medical records relating to reproductive health care services.

CERTAIN SUBPOENAS BARRED

The bill bars a court from issuing a subpoena requested by any court of the United States or of any other state or government if the subpoena relates to reproductive health care services that are permitted under the laws of this State, unless the subpoena relates to an out-of-State action founded in tort, contract, or statute, for which a similar claim would exist under the laws of this State, brought by a patient or the patient's authorized legal representative, for damages suffered by the patient or damages derived from an individual's loss of consortium of the patient; or an out-of-State action founded in contract, and for which a similar claim would exist under the laws of this State, brought or sought to be enforced by a party with a contractual relationship with the person that is the subject of the subpoena.

The bill also bars a court from issuing 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 or receipt of or assistance with reproductive health care services unless the acts forming the basis of the prosecution or investigation also would constitute an offense in this State.

NON-COOPERATION BY PUBLIC ENTITY

Under the bill, a public entity of this State or employee, appointee, officer or official or any other person acting on behalf of a public entity may not provide any information or expend or use time, money, facilities, property, equipment, personnel or other resources in furtherance of any interstate investigation or proceeding seeking to impose civil or criminal liability upon a person or entity for the provision, seeking or receipt of or inquiring about reproductive health care services that are legal in this State, assisting any person or entity providing, seeking, receiving or responding to an inquiry about reproductive health care services. This provision of the bill would 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.