SB1503

SECTION 1. Section 453-8, Hawaii Revised Statutes, is amended to read as follows:

"§453-8 Revocation, limitation, suspension, or denial of licenses. (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,~~] Except as otherwise provided for in subsections (f) and (g), procuring, or aiding or abetting in procuring, a criminal abortion;

(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

(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;

(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;

(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 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.

(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. Any final order of discipline taken pursuant to this subsection shall be a matter of public record.

(d) Where the board has reasonable cause to believe that a licensee is or may be unable to practice medicine with reasonable skill and safety to protect patients, the board may order the licensee to submit to a mental or physical examination or any combination thereof, by a licensed practitioner approved by the board, at the licensee's expense. The examination may include biological fluid testing and other testing known to detect the presence of alcohol or other drugs. In addition:

(1) Any licensee shall be deemed to have consented to submit to a mental or physical examination when so directed by the board and to have waived all objection to the use or referral of information by the board to determine whether the licensee is able to practice medicine with reasonable skill and safety to protect patients;

(2) The board may seek to enforce an order directing a licensee to submit to a mental or physical examination in the circuit court in the county in which the licensee resides;

(3) Failure of a licensee to submit to an examination ordered under this subsection shall constitute grounds for summary suspension of the licensee's license; and

(4) The board may take any action authorized under this chapter based on information obtained under this subsection.

(e) Any person licensed by the board, including a physician, surgeon, or physician assistant, who provides information to the board indicating that a board licensee may be guilty of unprofessional conduct or may be impaired because of drug or alcohol abuse or mental illness shall not be liable for any damages in any civil action based on the communication. The immunity afforded by this section shall be in addition to any immunity afforded by section 663-1.7, if applicable, and shall not be construed to affect the availability of any absolute privilege under sections 663-1.7 and 671D-10.

(f) The board shall not revoke, suspend, penalize, refuse to issue or renew, or take any other adverse action against the license issued pursuant to this section based:

(1) Solely on the licensee providing, authorizing, recommending, aiding in, assisting in, referring for, or otherwise participating in an abortion or any other health care service provided for the purpose of an abortion if the abortion was otherwise performed in accordance with section 453-16, or gender affirming treatment provided in accordance with the laws of this State, regardless of the patient's resident state; or

(2) On the licensee's license being revoked or suspended, or the licensee being otherwise disciplined by another state, if that revocation, suspension, or other form of discipline was based solely on the licensee providing any reproductive health care services or gender affirming treatment, regardless of the patient's resident state, in accordance with the laws of this State and within the accepted standard of care;

provided that the board may discipline a licensee for care provided that would otherwise constitute an actionable offense under this section.

(g) Any applicant seeking licensure to practice medicine and surgery under this chapter who has been subject to disciplinary action by a duly authorized professional disciplinary agency of another jurisdiction solely on the On the licensee's license being revoked or suspended, or the licensee being otherwise disciplined by another state, if that revocation, suspension, or other form of discipline was based solely on the licensee providing any reproductive health care services or gender affirming treatment, regardless of the patient's resident state, in accordance with the laws of this State and within the accepted standard of care shall not be denied licensure to practice medicine and surgery under this chapter unless the board determines that the basis for disciplinary action in that jurisdiction constitutes professional misconduct in this State; provided that nothing in this subsection shall be construed as prohibiting the board from evaluating the conduct of the applicant and determining whether to deny the application for licensure to practice medicine and surgery under this chapter.

(h) As used in this section:

"Gender affirming treatment" means a service or product that a health care provider prescribes to a two-spirit, transgender, nonbinary, or other gender-diverse individual to support and affirm the individual's gender identity. "Gender affirming treatment" includes treatment for gender dysphoria.

"Reproductive health care services" includes all services, care, or products of a medical, surgical, psychiatric, therapeutic, mental health, behavioral health, diagnostic, preventative, rehabilitative, supportive, counseling, referral, prescribing, or dispensing nature relating to the human reproductive systems and all services, care, and products relating to pregnancy, assisted reproduction, contraception, miscarriage management, self-termination of a pregnancy, or other termination of a pregnancy."

SECTION 2. Section 457-12, Hawaii Revised Statutes, is amended to read as follows:

"§457-12 Discipline; grounds; proceedings; hearings. (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,~~] Except as otherwise provided in subsection (e), revocation, suspension, limitation, or other disciplinary action by another state of a nursing license;

(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;

(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 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[.]; provided that any applicant seeking an advanced practice registered nurse license under section 457-8.5 who has been subject to disciplinary action by a duly authorized professional disciplinary agency of another state based solely on the licensee providing any reproductive health care services or gender affirming treatment, regardless of the patient's resident state, in accordance with the laws of this State and within the accepted standard of care shall not be denied an advanced practice registered nurse license under section 457‑8.5 unless the board determines that the basis for disciplinary action in that jurisdiction constitutes professional misconduct in this State; provided further that nothing in this subsection shall be construed as prohibiting the board from evaluating the conduct of an applicant and determining whether to deny the application for an advanced practice registered nurse license under section 457-8.5. Any final order entered pursuant to this subsection shall be a matter of public record.

(c) Any fine imposed by the board after a hearing in accordance with chapter 91 shall be no less than $100 and no more than $1,000 for each violation.

(d) The remedies or penalties provided by this chapter are cumulative to each other and to the remedies or penalties available under all other laws of this State.

(e) The board shall not revoke, suspend, penalize, refuse to issue or renew, or take any other adverse action against a license issued pursuant to section 457-8.5 based:

(1) Solely on the licensee providing, authorizing, recommending, aiding in, assisting in, referring for, or otherwise participating in an abortion or any other health care service provided for the purpose of an abortion if the abortion was otherwise performed in accordance with section 457-8.7, or gender affirming treatment provided in in accordance with the laws of this State, regardless of the patient's state of residence; or

provided that the board may discipline a licensee for care provided that would otherwise constitute an actionable offense under this section.

(f) As used in this section:

PART II

SECTION 3. Chapter 671, Hawaii Revised Statutes, is amended by adding a new section to part I to be appropriately designated and to read as follows:

"§671- Professional liability insurance; reproductive health care; gender affirming treatment. (a) No insurer providing professional liability insurance for health care providers shall take any adverse action against a health care provider, including denying or revoking coverage or imposing sanctions, fines, penalties, or rate increases; based on the health care provider providing, authorizing, recommending, aiding in, assisting in, referring for, or otherwise participating in an abortion, or any other health care services provided for the purpose of an abortion, or a gender affirming treatment, in violation of the laws of another state prohibiting the provision of abortion and related services or gender affirming treatment either in that state or for a resident of that state, regardless of whether the violations have resulted in the revocation of, or any other adverse action taken against, the health care provider's license in that state.

(b) As used in this section:

"Reproductive health care or services" includes all services, care, or products of a medical, surgical, psychiatric, therapeutic, mental health, behavioral health, diagnostic, preventative, rehabilitative, supportive, counseling, referral, prescribing, or dispensing nature relating to the human reproductive systems and all services, care, and products relating to pregnancy, assisted reproduction, contraception, miscarriage management, self-termination of a pregnancy, or other termination of a pregnancy."

PART III

SECTION 4. Section 624D-3, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) When a party submits a foreign subpoena to a clerk of court in this State, the clerk, in accordance with that court's procedure, shall promptly issue a subpoena for service upon the person to which the foreign subpoena is directed[.]; provided that, notwithstanding any other law to contrary, no clerk of any court in this State shall issue a subpoena under this section in connection with a foreign subpoena for any proceedings relating to any abortion services or other abortion-related procedures that are performed in the State in accordance with sections 453‑16 or 457-8.7 or any gender affirming treatment provided in accordance with the laws of this State.

As used in this subsection, "gender affirming treatment" means a service or product that a health care provider prescribes to a two-spirit, transgender, nonbinary, or other gender-diverse individual to support and affirm the individual's gender identity. "Gender affirming treatment" includes treatment for gender dysphoria."

PART IV

SECTION 5. Chapter 28, Hawaii Revised Statutes, is amended by adding a new section to part I to be appropriately designated and to read as follows:

"§28- Reproductive health and gender affirming treatment investigations; participation; reports. (a) The attorney general shall routinely submit to the governor and legislature a report detailing each request for cooperation, assistance, or information that is received by the department of law enforcement pursuant to section 353C- or a county police department pursuant to section 52D- .

(b) Each report submitted pursuant to this section shall include information that identifies each requestor and the frequency and nature of each request."

SECTION 6. Chapter 52D, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§52D- Participation in investigations; abortions; reproductive health care or services; gender affirming treatment. (a) Neither the chief of police nor any employee of any county police department shall cooperate with, assist in, or provide information relating to any investigations concerning abortion-related conduct, gender affirming treatments, or other reproductive health care or services that are lawful in the State, including any subpoenas or search warrants issued by another state.

(b) Each county police department shall coordinate with the department of the attorney general to establish a process to carefully scrutinize all requests for cooperation, assistance, or information related to reproductive health care or services or gender affirming treatments from any party in another state having more restrictive abortion or gender affirming treatment prohibitions than those contained in sections 453-16 and 457‑8.7 or any other applicable statute; provided that, in establishing this process, each county police department shall assume that some requests for cooperation, assistance, or information related to reproductive health care or services or gender affirming treatments may not be clearly identified as a request for cooperation, assistance, or information related to reproductive health care or services or gender affirming treatments.

(c) Each county police department shall require that any request for cooperation, assistance, or information related to reproductive health care or services or gender affirming treatments made by another state shall include a detailed description of the matter under investigation and the purpose of the request for cooperation, assistance, or information.

(d) If the chief of police or any employee of any county police department is unsure as to whether or not a request for cooperation, assistance, or information relates to abortion‑related conduct, gender affirming treatments, or other reproductive health care or services, the chief of police or employee shall consult with the attorney general.

(e) As used in this section:

SECTION 7. Chapter 353C, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§353C- Participation in investigations; abortions; gender affirming treatments; reproductive health care or services. (a) Neither the director nor any employee of the department shall cooperate with, assist in, or provide information relating to any investigations concerning abortion-related conduct, gender affirming treatments, or other reproductive health care or services that are lawful in the State, including any subpoenas or search warrants issued by another state.

(b) The department shall coordinate with the department of the attorney general to establish a process to carefully scrutinize all requests for cooperation, assistance, or information related to reproductive health care or services or gender affirming treatments from any party in another state having more restrictive abortion or gender affirming treatment prohibitions than those contained in sections 453-16 and 457‑8.7 or any other applicable statute; provided that, in establishing this process, the department shall assume that some requests for cooperation, assistance, or information related to reproductive health care or services or gender affirming treatments may not be clearly identified as a request for cooperation, assistance, or information related to reproductive health care or services or gender affirming treatments.

(c) The department shall require that any request for cooperation, assistance, or information related to reproductive health care or services or gender affirming treatments made by another state shall include a detailed description of the matter under investigation and the purpose of the request for cooperation, assistance, or information.

(d) If the director or any employee of the department is unsure as to whether or not a request for cooperation, assistance, or information relates to abortion‑related conduct, gender affirming treatments, or other reproductive health care or services, the director or employee shall consult with the attorney general.

(e) As used in this section:

PART V

SECTION 8. Chapter 323B, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"Part . Reproductive health care and services and gender affirming treatments

A. Protected Reproductive Health Care or Gender Affirming Treatment Information

§323B-A Definitions. As used in this subpart:

"Affirmative written consent" means the voluntary, specific agreement of the patient or, if the patient is unable to provide consent, the patient's legal guardian or health care proxy.

"Confidential" means that data or information is not made available or disclosed to unauthorized individuals or processes.

"Director" means the director of health.

"Patient" means a natural individual, regardless of whether the individual is still living, who received or sought to receive services from a provider of reproductive health care or gender affirming treatments and to whom records of diagnosis, prognosis, counseling, or treatment pertain.

"Reproductive health care" means health care offered, sought, arranged, or furnished for the purpose of becoming pregnant, maintaining pregnancy, preventing pregnancy, terminating pregnancy, managing pregnancy loss, or improving maternal health and birth outcomes. "Reproductive health care" includes all services, care, or products of a medical, surgical, psychiatric, therapeutic, mental health, behavioral health, diagnostic, preventative, rehabilitative, supportive, counseling, referral, prescribing, or dispensing nature relating to the human reproductive systems and all services, care, and products relating to pregnancy, assisted reproduction, contraception, miscarriage management, self-termination of a pregnancy, or other termination of a pregnancy.

"Reproductive health care or gender affirming treatment information" means any records containing an individual's identity, diagnosis, prognosis, receipt of counseling, or history of treatment relating to reproductive health care or gender affirming treatments, or both.

§323B-B Affirmative written consent; requirements. No consent to disclose information pursuant to this subpart may be effectuated by an affirmative written consent of a patient unless:

(1) The affirmative written consent is collected on a standalone form;

(2) The patient is informed about how records may be used and to whom the records may be disclosed; and

(3) The patient may refuse consent for specific disclosures.

§323B-C Confidentiality of reproductive health care or gender affirming treatment information; permitted disclosure. Any reproductive health care or gender affirming treatment information that is in the possession of any covered entity or business associate of any patient shall be deemed to be confidential and shall only be disclosed if:

(1) The record is disclosed in accordance with a prior affirmative written consent of the patient; provided that affirmative written consent shall only be sought and secured for disclosures for treatment, payment, and health care operations as permitted under the Health Insurance Portability and Accountability Act of 1996, P.L. 104-191; provided further that the affirmative written consent shall remain valid until the patient revokes the affirmative written consent in writing; and provided further that nothing in this section shall be construed as authorizing a covered entity or business associate to disclose records to:

(A) An insurer without the patient's affirmative written consent to the disclosure; or

(B) A professional licensing board in connection with an investigation relating to any abortion services or procedures that were lawfully sought or performed in the State, unless that investigation is the result of a complaint made by the patient whose records are at issue, or the patient's legal representative;

(2) The disclosure is made to any:

(A) Medical personnel to the extent necessary to address a bona fide medical emergency;

(B) Qualified personnel for the purpose of conducting scientific research, management audits, financial audits, or program evaluations; provided that the qualified personnel shall not directly or indirectly identify any individual patient in any report generated based on the research, management audit, financial audit, or evaluation, or otherwise disclose patient identities or individual records in any manner; provided further that any information disclosed pursuant to this subparagraph shall be limited to the information reasonably necessary to conduct the research, management audits, financial audits, or program evaluations; or

(3) The disclosure is authorized by an order of a court of competent jurisdiction, as defined in title 18 United States Code section 2711(3), and in compliance with this paragraph; provided that:

(A) Notwithstanding any other law to the contrary, no court in the State shall issue an order for the disclosure of reproductive health care or gender affirming treatment information sought in connection with an out‑of‑state proceeding relating to any reproductive health care or gender affirming treatment that was lawfully sought, received, or performed in this State, unless the out-of-state proceeding:

(i) Is founded in tort or contract or is based on statute;

(ii) Is actionable, in an equivalent or similar manner, under the laws of this State; and

(iii) Was brought by the patient who received reproductive health care or a gender affirming treatment, or the patient's legal representative;

(B) If subparagraph (A) does not apply, or if it is unclear whether an out-of-state proceeding is related to any reproductive health care or gender affirming treatment that was lawfully sought, received, or performed under the laws of the State, then, notwithstanding any other provision of law, no court in the State shall issue an order for the disclosure of reproductive health care or gender affirming treatment information, except in accordance with the provisions of this section; provided further that a court in the State may grant an order for disclosure of reproductive health care or gender affirming treatment information after application showing a compelling need, including the need to avert a substantial risk of death or serious bodily harm to the patient; and provided further that, in determining whether the disclosure is based on a compelling need, the court shall weigh the need for disclosure against the harm to the patient, the physician-patient relationship, and the public interest that may be disserved by any disclosure that deters access to care or that may lead to discrimination;

(C) While granting an order under this paragraph and determining the extent to which any disclosure of all or any part of a record is necessary, the court shall impose stringent safeguards against unauthorized disclosure;

(D) Before granting an order under this paragraph, the court shall provide to the individual whose reproductive health care or gender affirming treatment information is at issue notice and a reasonable opportunity to participate in the proceedings if the individual is not already a party, unless this notice is otherwise prohibited by federal law or the laws of the State; and

(E) Nothing in this section shall be construed as prohibiting compliance with an out-of-state proceeding that resulted in a valid, final judgment enforceable in that state.

§323B-D Use of records in criminal, civil, or administrative contexts. Except as otherwise authorized by a court order under section 323B-C(3) or by the affirmative written consent of the patient, a record referred to in section 323B-C, or testimony relaying the information contained therein, shall not be disclosed or otherwise used in any civil, criminal, administrative, or legislative proceedings against a patient or provider of reproductive health care or gender affirming treatments, including:

(1) Being entered into evidence in any criminal prosecution or civil action;

(2) Forming part of the record for decision or otherwise being considered in any proceeding before a governmental agency;

(3) Being used for any law enforcement purpose or to conduct any law enforcement investigation; or

(4) Being used in any application for a warrant.

§323B-E Enforcement and penalties. (a) A patient may bring in any court of competent jurisdiction a civil action for actual damages, reasonable attorney's fees, injunctive relief, and any other remedies as may be appropriate against any entity that has negligently, knowingly, willfully, or recklessly disclosed the patient's reproductive health care or gender affirming treatment information in violation of this part.

(b) Any entity that knowingly, willfully, or recklessly obtains, discloses, or uses reproductive health care or gender affirming treatment information in violation of this part shall be liable for statutory damages not to exceed $25,000 per violation.

(c) If the director determines that this section has been violated, the director may assess a civil penalty, not to exceed $25,000, for each violation.

§323B-F Rulemaking. (a) The director may adopt rules pursuant to chapter 91 to effectuate the purposes of this part.

(b) Any rules adopted pursuant to this section may contain definitions and provide for, prevent circumvention or evasion of, or facilitate compliance with any safeguards and procedures, including procedures and criteria for the issuance and scope of orders under section 323B-C(3), as the director deems necessary or proper to effectuate the purposes of this part.

§323B-G Patient access to records. Nothing in this part shall be construed as prohibiting a patient from accessing the patient's own records, as required under title 45 Code of Federal Regulations section 164.524.

B. Other Information

§323B-H Definitions. As used in this subpart:

"Collect" means the obtaining of personal reproductive health or gender affirming treatment data by a regulated entity.

"Disclose" means the releasing of, transferring of, selling of, provision of access to, licensing of, or divulging of personal reproductive health or gender affirming treatment data in any manner by a regulated entity to a third party or government entity regardless of the exchange of monetary or other valuable consideration.

"Express consent" means informed, opt-in, voluntary, and specific written consent. "Express consent" does not include any of the following:

(1) Consent secured without first providing to the consenting individual a clear and conspicuous disclosure of all information material to the provision of consent that is presented separately from any privacy policy, terms of service, terms of use, general release, user agreement, or other similar document;

(2) Consent in which the consenting individual bypasses the consent process by closing, pausing, or minimizing the consent process;

(3) An agreement obtained using a user interface designed or manipulated with the substantial effect of subverting or impairing the user's autonomy, decision‑making ability, or ability to make a choice;

(4) Consent sought without categorically distinguishing between potential collection, retention, use, or disclosure to which the individual is consenting; or

(5) Consent sought in a format that does not allow the consumer to categorically and separately opt-in to collection, retention, use, or disclosure of personal reproductive health or gender affirming treatment data.

"Nonprofit organization" means a private, nonprofit, tax‑exempt entity that:

(1) Is recognized as a tax-exempt organization under the Internal Revenue Code; and

(2) Is registered to do business in this State in accordance with chapter 414D.

"Opt-in" means an affirmative action by an individual that clearly indicates assent.

"Personal reproductive health or gender affirming treatment data" means personally identifiable information relating to the past, present, or future reproductive health of, or gender affirming treatment received by, an individual. "Personal reproductive health or gender affirming treatment data" includes information relating to:

(1) Efforts to research or obtain reproductive or gender affirming treatment information, services, or supplies, including location information that clearly indicates an attempt to acquire or receive information, services, or supplies;

(2) Reproductive health or gender affirming treatment‑related conditions, status, diseases, diagnostics, or diagnoses, including pregnancy, menstruation, ovulation, ability to conceive a pregnancy, whether the individual is sexually active, and whether the individual is engaging in unprotected sex;

(3) Reproductive health-related surgeries or procedures, including surgeries and procedures to terminate a pregnancy;

(4) Gender affirming treatment-related surgeries or procedures;

(5) Use or purchase of contraceptives, birth control, or medication for which use, or discontinuance of use, clearly indicates pregnancy status or termination of pregnancy;

(6) Use or purchase of medication for which use, or discontinuance of use, clearly indicates gender affirming treatment status;

(7) Bodily functions, vital signs, measurement, or symptoms related to menstruation or pregnancy, including basal temperature, vaginal discharge, or ovulation or pregnancy-related hormone levels;

(8) Any information about diagnoses or diagnostic testing, treatment, medications, or the use of any product or service relating to the matters described in paragraphs (1) through (7); and

(9) Any information described in paragraphs (1) through (8) that is derived or extrapolated from non-health information, including proxy, derivative, inferred, emergent, or algorithmic data.

"Regulated entity":

(1) Means an entity that conducts business in the State or produces or delivers commercial products or services that are targeted to residents of the State and is:

(A) An individual, a partnership, or a corporation subject to the jurisdiction of the office of consumer protection under section 480-2 and section 5(a)(2) of the Federal Trade Commission Act, title 15 United States Code section 45(a)(2);

(B) A common carrier subject to the Communications Act of 1934, title 47 United States Code section 151 et seq., and all acts amendatory thereof and supplementary thereto; or

(2) Does not include the following entities:

(A) Covered entities, to the extent that the entity is acting as a covered entity under the Health Insurance Portability and Accountability Act of 1996's privacy regulations and only for those activities that are considered HIPAA privacy regulations pursuant to title 42 United States Code section 1320d–9(b)(3);

(B) Business associates, to the extent that the entity is acting as a business associate under the Health Insurance Portability and Accountability Act of 1996's privacy regulations and only for those activities that are considered HIPAA privacy regulations pursuant to title 42 United States Code section 1320d‑9(b)(3); or

(C) Entities that are subject to restrictions on disclosure of records under section 543 of the Public Health Service Act, title 42 United States Code section 290dd–2, to the extent that the entity is acting in a capacity subject to these restrictions on disclosure of records.

"Reproductive health care" includes all services, care, or products of a medical, surgical, psychiatric, therapeutic, mental health, behavioral health, diagnostic, preventative, rehabilitative, supportive, counseling, referral, prescribing, or dispensing nature relating to the human reproductive systems and all services, care, and products relating to pregnancy, assisted reproduction, contraception, miscarriage management, self-termination of a pregnancy, or other termination of a pregnancy.

"Service provider" means an entity that collects, retains, uses, or discloses personal reproductive health or gender affirming treatment data for the sole purpose of, and only to the extent that the entity is, conducting business activities on behalf of, for the benefit of, under instruction of, and under contractual agreement with a regulated entity.

"Third party" means any entity that discloses or collects personal reproductive health or gender affirming treatment data and is not:

(1) The regulated entity that is disclosing or collecting the information;

(2) The individual to whom the information relates; or

(3) A service provider.

"Written consent" includes written consent provided by electronic means.

§323B-I Minimization. (a) No regulated entity shall collect, retain, use, or disclose personal reproductive health or gender affirming treatment data except:

(1) With the express consent of the individual to whom the personal reproductive health or gender affirming treatment data relates for each collection, retention, use, or disclosure; provided that the express consent shall be valid until the individual revokes the express consent in writing; or

(2) As is strictly necessary to provide a product or service that the individual to whom the personal reproductive health or gender affirming treatment data relates has requested from the regulated entity;

provided that a request from an individual to a regulated entity for a product or service, and an express consent from an individual to a regulated entity, shall be treated as having also been provided to the applicable service provider.

(b) Each regulated entity shall limit access to personal reproductive health or gender affirming treatment data by the employees or service providers of the regulated entity to those employees or service providers for which access is reasonably necessary to provide a product or service that the individual to whom the personal reproductive health or gender affirming treatment data relates has requested from the regulated entity; provided that each service provider shall limit disclosure of the personal reproductive health or gender affirming treatment data to:

(1) The regulated entity; and

(2) Any contractor to the service provider that is bound to information processing terms that are no less restrictive than terms to which the service provider is bound.

§323B-J Right of deletion. (a) Each regulated entity shall make available a reasonable mechanism by which an individual, upon a verified request, may request the deletion of any personal information, including any information that the regulated entity collected from a third party or inferred from other information retained by the regulated entity; provided that the mechanism shall:

(1) Be equivalent in availability and ease of use to that of other mechanisms for communicating or interacting with the regulated entity;

(2) Be clear, conspicuous, and easily understandable by a reasonable consumer; and

(3) Include the option of an online means of exercising a right under this section.

(b) Each regulated entity shall comply with a verified request received under this section without undue delay but not later than fifteen days after the date on which the regulated entity receives the verified request.

(d) Nothing in this section shall be construed as requiring a regulated entity to take any action that would convert non-personal information into personal information.

(e) As used in this section, "verified request" means a request that is made by an individual who the director of health, or the director's designee, has verified is a resident of the State.

§323B-K Privacy policy. (a) Each regulated entity shall maintain a privacy policy relating to the practices of the regulated entity regarding the collection, retention, use, and disclosure of personal reproductive health or gender affirming treatment data.

(b) If a regulated entity maintains:

(1) A website, the regulated entity shall prominently publish on the website the privacy policy required by subsection (a);

(2) A physical location where business is conducted or services are performed, or both, the regulated entity shall prominently publish and display in that location the privacy policy required by subsection (a); and

(3) A mobile application, the regulated entity shall prominently publish in the mobile application the privacy policy required by subsection (a);

provided that the publication shall be clear, conspicuous, and easily understandable by a reasonable consumer; provided further that a visual disclosure, by its size, contrast, location, the length of time it appears, and other characteristics, shall stand out from any accompanying text or other visual elements so that the disclosure is easily noticed, read, and understood; and provided further that, in any communication using an interactive electronic medium, including social media or the internet, the disclosure shall be unavoidable.

(1) A description of the practices of the regulated entity regarding the collection, retention, use, and disclosure of personal reproductive health or gender affirming treatment data;

(2) A clear and concise statement of the categories of personal reproductive health or gender affirming treatment data collected, retained, used, or disclosed by the regulated entity;

(3) A clear and concise statement of the regulated entity's purpose for the collection, retention, use, and disclosure of the personal reproductive health or gender affirming treatment data;

(4) A list of the specific third parties to which the regulated entity may disclose the personal reproductive health or gender affirming treatment data and a clear and concise statement of the purposes for which the regulated entity may disclose the personal reproductive health or gender affirming treatment data, including how the information may be used by each third party;

(5) A list of the specific third parties from which the regulated entity has collected personal reproductive health or gender affirming treatment data and a clear and concise statement of the purposes for which the regulated entity has collected the personal reproductive health or gender affirming treatment data; and

(6) A clear and concise statement describing the extent to which an individual may exercise control over the individual's personal reproductive health or gender affirming treatment data, including through:

(A) The right to revoke consent to the collection, retention, use, and disclosure of personal reproductive health or gender affirming treatment data by the regulated entity, and the steps necessary for an individual to implement these controls;

(B) The right to deletion of personal reproductive health or gender affirming treatment data that is retained by the regulated entity, including any information that the regulated entity collected from a third party or inferred from other information retained by the regulated entity, and the steps necessary for an individual to implement these controls; and

§323B-L Enforcement. (a) Any violation of this subpart or any rule adopted under this subpart, shall be treated as a violation of section 480-2.

(b) The office of consumer protection shall enforce this subpart and any rules adopted in accordance with this subpart in the same manner; by the same means; and with the same jurisdiction, powers, and duties as provided for in chapter 487, and any regulated entity that violates this subpart or any rule adopted in accordance with this subpart shall be subject to the penalties, and entitled to the privileges and immunities, provided in title 26.

(d) Any individual alleging a violation of this subpart or any rule adopted in accordance with this subpart may bring a civil action in any court of competent jurisdiction.

(e) In any civil action brought under subsection (d) in which the plaintiff prevails, the court may award to the plaintiff:

(1) An amount not less than $100 and not greater than $10,000 per violation per day, or actual damages, whichever is greater;

(2) Punitive damages;

(3) Reasonable attorney's fees and litigation costs; and

(4) Any other relief, including equitable or declaratory relief, that the court deems appropriate.

(f) Any violation of this subpart or any rule adopted in accordance with this subpart involving personal reproductive health or gender affirming treatment data shall constitute an injury in fact to the individual to whom the personal reproductive health or gender affirming treatment data relates.

(g) Notwithstanding any other law to the contrary, no pre‑dispute arbitration agreement or pre-dispute joint-action waiver shall be valid or enforceable with respect to a dispute arising under this subpart; provided that any determination as to whether or how this subsection applies to any dispute shall be made by a court, rather than an arbitrator, regardless of whether the agreement purports to delegate this determination to an arbitrator.

(h) As used in this section:

"Pre-dispute arbitration agreement" means any agreement to arbitrate a dispute that has not arisen at the time of the making of the agreement.

"Pre-dispute joint-action waiver" means an agreement that:

(1) Prohibits a party from participating in a joint, class, or collective action in a judicial, arbitral, administrative, or other forum; and

(2) Concerns a dispute that has not yet arisen at the time of the making of the agreement.

§323B-M Relationship to other laws and rules. Nothing in this subpart, or any rule adopted in accordance with this subpart, shall be construed as displacing or supplanting any state law that provides greater privacy protections for personal reproductive health or gender affirming treatment data than the privacy protections provided by any provision of this subpart or any rules adopted in accordance with this subpart.

§323B-N Exception for the publication of newsworthy information. Nothing in this subpart, or any rule adopted in accordance with this subpart, shall apply to personal reproductive health or gender affirming treatment data that is collected, retained, used, or disclosed by a regulated entity for the publication of newsworthy information of legitimate public concern, if the regulated entity has reasonable safeguards and processes in place to prevent the collection, retention, use, or disclosure of personal reproductive health or gender affirming treatment data for commercial purposes other than the publication of newsworthy information of legitimate public concern."

SECTION 9. Section 323B-3, Hawaii Revised Statutes, is amended to read as follows:

"[[]§323B-3[]] Privacy of individually identifiable health information. (a) Notwithstanding any law to the contrary, except part , any use or disclosure of individually identifiable health information by any covered entity or business associate that is permitted by 45 Code of Federal Regulations part 164, subpart E, shall be deemed to comply with all state laws relating to the use, disclosure, or confidentiality of [~~such~~] the information.

(b) Notwithstanding any law to the contrary, except part , an authorization for release of individually identifiable health information that complies with 45 Code of Federal Regulations section 164.508 shall be deemed to comply with all state laws relating to individual authorization.

(c) Notwithstanding any law to the contrary, except part , any notice of breach of unsecured protected health information that complies with 45 Code of Federal Regulations part 164, subpart D, shall be deemed to comply with all state laws relating to notice of breach of protected health information."

SECTION 10. Chapter 323B, Hawaii Revision of Statutes, is amended by designating sections 323B-1 to 323B-5 as follows:

"PART I. GENERAL PROVISIONS"

PART VI

SECTION 11. Chapter 453, Hawaii Revised Statutes, is amended by adding a new section to part I to be appropriately designated and to read as follows:

"§453- Pregnancy outcomes; gender affirming treatments received; penalties prohibited. (a) Except as otherwise provided for by law, no individual shall be subject to criminal prosecution, civil liability, or any other adverse action or penalty based solely on:

(1) The individual's actual, potential, perceived, or alleged pregnancy outcomes or gender affirming treatments received; or

(2) The individual providing, authorizing, recommending, aiding in, assisting in, referring for, or otherwise participating in an abortion, gender affirming treatment, or any other health care service provided for the purpose of an abortion if the abortion or gender affirming treatment was otherwise performed in accordance with section 453-16 or any other applicable statute, regardless of the patient's resident state.

(b) As used in this section, "gender affirming treatment" means a service or product that a health care provider prescribes to a two-spirit, transgender, nonbinary, or other gender-diverse individual to support and affirm the individual's gender identity. "Gender affirming treatment" includes treatment for gender dysphoria."

SECTION 12. Section 457-8.7, Hawaii Revised Statutes, is amended to read as follows:

"[[]§457-8.7[]] Advanced practice registered nurses; abortions by medication or aspiration; penalties; refusal to perform. (a) Notwithstanding section 453-16 or any other law to the contrary, an advanced practice registered nurse may provide medication or aspiration abortion care in the first trimester of pregnancy, so long as the advanced practice registered nurse:

(1) Has prescriptive authority;

(2) Practices within the advanced practice registered nurse's practice specialty;

(3) Has a valid, unencumbered license obtained in accordance with this chapter; and

(4) The aspiration abortion is performed in a hospital licensed by the department of health or operated by the federal government or an agency thereof, or in a clinic or advance practice registered nurse's office.

(b) Abortion shall mean an intentional termination of the pregnancy of a nonviable fetus. The termination of a pregnancy of a viable fetus is not included in this section.

(c) The State shall not deny or interfere with a female's right to choose or obtain an abortion of a nonviable fetus or an abortion that is necessary to protect the life or health of the female.

(d) Any person who knowingly violates subsection (a) shall be fined no more than $1,000 or imprisoned no more than five years, or both.

(e) Nothing in this section shall require any hospital or any person to participate in an abortion, nor shall any hospital or any person be liable for a refusal.

(f) Except as otherwise provided for by law, no individual shall be subject to criminal prosecution, civil liability, or any other adverse action or penalty for aiding or assisting a consenting individual in obtaining an abortion or a gender affirming treatment under this section.

PART VII

SECTION 13. 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 14. In codifying the new sections added by section 7 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 15. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 16. This Act shall take effect upon its approval; provided that the amendments made to section 457-12, Hawaii Revised Statutes, by section 2 of this Act shall not be repealed when that section is reenacted on June 30, 2023, pursuant to section 6 of Act 66, Session Laws of Hawaii 2017.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	1503
THIRTY-SECOND LEGISLATURE, 2023
STATE OF HAWAII