SB2868

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.

"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

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

(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,~~]:

(B) Gender-affirming health care services, as defined in section 323J-1,

(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,~~]:

(B) Gender-affirming health care services, as defined in section 323J-1,

(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,~~]:

(B) Gender-affirming health care services, as defined in section 323J-1,

(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,~~]:

(B) Gender-affirming health care services, as defined in section 323J-1,

(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,

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;

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:

(B) Gender-affirming health care services, as defined in section 323J-1,

(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:

(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

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:

(B) Gender-affirming health care services, as defined in section 323J-1,

(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

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:	_____________________________

THE SENATE	S.B. NO.	2868
THIRTY-THIRD LEGISLATURE, 2026
STATE OF HAWAII