LB574 LB574
2023 2023
LEGISLATIVE BILL 574
Approved by the Governor May 22, 2023
Introduced by Kauth, 31; Aguilar, 35; Albrecht, 17; Bostelman, 23; Brewer, 43;
Clements, 2; DeKay, 40; Dorn, 30; Dover, 19; Erdman, 47;
Halloran, 33; Hardin, 48; Holdcroft, 36; Hughes, 24; Ibach, 44;
Jacobson, 42; Linehan, 39; Lippincott, 34; Lowe, 37; McDonnell,
5; Murman, 38; Sanders, 45; von Gillern, 4; Slama, 1; Hansen, B.,
16.
A BILL FOR AN ACT relating to public health and welfare; to amend sections
38-192, 38-193, and 38-196, Reissue Revised Statutes of Nebraska, and sections 38-178, 38-179, 38-2021, and 38-2894, Revised Statutes Cumulative Supplement, 2022; to adopt the Preborn Child Protection Act and the Let Them Grow Act; to provide for discipline under the Uniform Credentialing Act; to harmonize provisions; to provide operative dates; to provide severability; to repeal the original sections; and to declare an
emergency.
Be it enacted by the people of the State of Nebraska,
Section 1. Sections 1 to 6 of this act shall be known and may be cited as
the Preborn Child Protection Act.
Sec. 2. The Preborn Child Protection Act only applies to intrauterine pregnancies.
Sec. 3. For purposes of the Preborn Child Protection Act:
(1)(a) Abortion means the prescription or use of any instrument, device,
medicine, drug, or substance to or upon a woman known to be pregnant with the specific intent of terminating the life of her preborn child.
(b) Abortion shall under no circumstances be interpreted to include:
(i) Removal of an ectopic pregnancy;
(ii) Removal of the remains of a preborn child who has already died;
(iii) An act done with the intention to save the life or preserve the health of the preborn child;
(iv) The accidental or unintentional termination of the life of a preborn child; or
(v) During the practice of in vitro fertilization or another assisted reproductive technology, the termination or loss of the life of a preborn child who is not being carried inside a woman's body;
(2) Gestational age means the age of a preborn child as calculated from the first day of the last menstrual period of the pregnant woman;
(3)(a) Medical emergency means any condition which, in reasonable medical judgment, so complicates the medical condition of the pregnant woman as to necessitate the termination of her pregnancy to avert her death or for which a delay in terminating her pregnancy will create a serious risk of substantial and irreversible physical impairment of a major bodily function.
(b) No condition shall be deemed a medical emergency if based on a claim or diagnosis that the woman will engage in conduct which would result in her death or in substantial and irreversible physical impairment of a major bodily function;
(4) Preborn child means an individual living member of the species homo sapiens, throughout the embryonic and fetal stages of development to full gestation and childbirth;
(5) Pregnant means the condition of having a living preborn child inside one's body; and
(6) Reasonable medical judgment means a medical judgment that could be
made by a reasonably prudent physician, knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.
Sec. 4. (1) Except as provided in subsection (3) of this section, a physician, before performing or inducing an abortion, shall first:
(a) Determine, using standard medical practice, the gestational age of the preborn child; and
(b) Record in the pregnant woman's medical record:
(i) The method used to determine the gestational age of the preborn child;
and
(ii) The date, time, and results of such determination.
(2) Except as provided in subsection (3) of this section, it shall be
unlawful for any physician to perform or induce an abortion:
(a) Before fulfilling the requirements of subsection (1) of this section;
or
(b) If the probable gestational age of the preborn child has been determined to be twelve or more weeks.
(3) It shall not be a violation of subsection (1) or (2) of this section for a physician to perform or induce an abortion in the case of:
(a) Medical emergency;
(b) Pregnancy resulting from sexual assault as defined in section 28-319
or 28-319.01; or
(c) Pregnancy resulting from incest as defined in section 28-703.
Sec. 5. (1) If a physician performs or induces an abortion because of a
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medical emergency pursuant to subdivision (3)(a) of section 4 of this act, the physician shall certify in writing that a medical emergency existed and explain the medical emergency in the written certification. The physician shall keep the written certification in the woman's medical record.
(2) If a physician performs or induces an abortion in the case of sexual assault or incest pursuant to subdivision (3)(b) or (c) of section 4 of this act, the physician shall certify in writing that the abortion was performed because of sexual assault or incest and that the physician complied with all applicable duties imposed by section 28-902. The physician shall keep the written certification in the woman's medical record.
Sec. 6. No woman upon whom an abortion is attempted, induced, or performed shall be liable for a violation of the Preborn Child Protection Act.
Sec. 7. Section 38-178, Revised Statutes Cumulative Supplement, 2022, is amended to read:
38-178 Except as otherwise provided in sections 38-1,119 to 38-1,123, a credential to practice a profession may be issued subject to discipline,
denied, refused renewal, or have other disciplinary measures taken against it
in accordance with section 38-183, 38-185, or 38-186 on any of the following grounds:
(1) Misrepresentation of material facts in procuring or attempting to
procure a credential;
(2) Immoral or dishonorable conduct evidencing unfitness to practice the profession in this state;
(3) Abuse of, dependence on, or active addiction to alcohol, any controlled substance, or any mind-altering substance;
(4) Failure to comply with a treatment program or an aftercare program,
including, but not limited to, a program entered into under the Licensee Assistance Program established pursuant to section 38-175;
(5) Conviction of (a) a misdemeanor or felony under Nebraska law or
federal law, or (b) a crime in any jurisdiction which, if committed within this state, would have constituted a misdemeanor or felony under Nebraska law and which has a rational connection with the fitness or capacity of the applicant or credential holder to practice the profession;
(6) Practice of the profession (a) fraudulently, (b) beyond its authorized scope, (c) with gross incompetence or gross negligence, or (d) in a pattern of
incompetent or negligent conduct;
(7) Practice of the profession while the ability to practice is impaired by alcohol, controlled substances, drugs, mind-altering substances, physical disability, mental disability, or emotional disability;
(8) Physical or mental incapacity to practice the profession as evidenced by a legal judgment or a determination by other lawful means;
(9) Illness, deterioration, or disability that impairs the ability to
practice the profession;
(10) Permitting, aiding, or abetting the practice of a profession or the performance of activities requiring a credential by a person not credentialed to do so;
(11) Performing or offering to perform scleral tattooing as defined in
section 38-10,172 by a person not credentialed to do so;
(12) Having had his or her credential denied, refused renewal, limited,
suspended, revoked, or disciplined in any manner similar to section 38-196 by another state or jurisdiction based upon acts by the applicant or credential holder similar to acts described in this section;
(13) Use of untruthful, deceptive, or misleading statements in
advertisements, including failure to comply with section 38-124;
(14) Conviction of fraudulent or misleading advertising or conviction of a violation of the Uniform Deceptive Trade Practices Act;
(15) Distribution of intoxicating liquors, controlled substances, or drugs for any other than lawful purposes;
(16) Violations of the Uniform Credentialing Act or the rules and regulations relating to the particular profession;
(17) Unlawful invasion of the field of practice of any profession regulated by the Uniform Credentialing Act which the credential holder is not credentialed to practice;
(18) Violation of the Uniform Controlled Substances Act or any rules and regulations adopted pursuant to the act;
(19) Failure to file a report required by section 38-1,124, 38-1,125, or
71-552;
(20) Failure to maintain the requirements necessary to obtain a credential;
(21) Violation of an order issued by the department;
(22) Violation of an assurance of compliance entered into under section
38-1,108;
(23) Failure to pay an administrative penalty;
(24) Unprofessional conduct as defined in section 38-179;
(25) Violation of the Automated Medication Systems Act; or
(26) Failure to comply with section 38-1,147; or .
(27) Violation of the Preborn Child Protection Act.
Sec. 8. Section 38-179, Revised Statutes Cumulative Supplement, 2022, is amended to read:
38-179 For purposes of section 38-178, unprofessional conduct means any departure from or failure to conform to the standards of acceptable and prevailing practice of a profession or the ethics of the profession, regardless of whether a person, consumer, or entity is injured, or conduct that is likely
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to deceive or defraud the public or is detrimental to the public interest,
including, but not limited to:
(1) Receipt of fees on the assurance that an incurable disease can be
permanently cured;
(2) Division of fees, or agreeing to split or divide the fees, received for professional services with any person for bringing or referring a consumer other than (a) with a partner or employee of the applicant or credential holder or his or her office or clinic, (b) with a landlord of the applicant or
credential holder pursuant to a written agreement that provides for payment of
rent based on gross receipts, or (c) with a former partner or employee of the applicant or credential holder based on a retirement plan or separation agreement;
(3) Obtaining any fee for professional services by fraud, deceit, or misrepresentation, including, but not limited to, falsification of third-party claim documents;
(4) Cheating on or attempting to subvert the credentialing examination;
(5) Assisting in the care or treatment of a consumer without the consent of such consumer or his or her legal representative;
(6) Use of any letters, words, or terms, either as a prefix, affix, or suffix, on stationery, in advertisements, or otherwise, indicating that such person is entitled to practice a profession for which he or she is not credentialed;
(7) Performing, procuring, or aiding and abetting in the performance or
procurement of a criminal abortion;
(8) Knowingly disclosing confidential information except as otherwise permitted by law;
(9) Commission of any act of sexual abuse, misconduct, or exploitation related to the practice of the profession of the applicant or credential holder;
(10) Failure to keep and maintain adequate records of treatment or
service;
(11) Prescribing, administering, distributing, dispensing, giving, or selling any controlled substance or other drug recognized as addictive or
dangerous for other than a medically accepted therapeutic purpose;
(12) Prescribing any controlled substance to (a) oneself or (b) except in
the case of a medical emergency (i) one's spouse, (ii) one's child, (iii) one's parent, (iv) one's sibling, or (v) any other person living in the same household as the prescriber;
(13) Failure to comply with any federal, state, or municipal law,
ordinance, rule, or regulation that pertains to the applicable profession;
(14) Disruptive behavior, whether verbal or physical, which interferes with consumer care or could reasonably be expected to interfere with such care;
and
(15) Violation of the Preborn Child Protection Act;
(16) Beginning October 1, 2023, performing gender-altering procedures for an individual younger than nineteen years of age in violation of section 17 of this act; and
(17) (15) Such other acts as may be defined in rules and regulations.
Nothing in this section shall be construed to exclude determination of
additional conduct that is unprofessional by adjudication in individual contested cases.
Sec. 9. Section 38-192, Reissue Revised Statutes of Nebraska, is amended to read:
38-192 (1) If the director determines upon completion of a hearing under section 38-183 or 38-186 that a violation has occurred, the director may, at his or her discretion, consult with the appropriate board concerning sanctions to be imposed or terms and conditions of the sanctions. When the director consults with a board, the credential holder and the Attorney General shall be
provided with a copy of the director's request, the recommendation of the board, and an opportunity to respond in such manner as the director determines.
(2) Except as provided in subsection (3) of this section, the The director shall have the authority through entry of an order to exercise in his or her discretion any or all of the sanctions authorized under subsection (1) of section 38-196.
(3) If the director determines upon completion of a hearing under section
38-183 or 38-186 that a licensee has performed or induced an unlawful abortion in violation of section 4 of this act, the director shall enter an order imposing a sanction authorized under subsection (2) of section 38-196.
Sec. 10. Section 38-193, Reissue Revised Statutes of Nebraska, is amended to read:
38-193 (1) If the petition is brought with respect to subdivision (3) of section 38-2021, the director shall make findings as to whether the licensee's conduct was necessary to save the life of a mother whose life was endangered by
a physical disorder, physical illness, or physical injury, including a life-
endangering physical condition caused by or arising from the pregnancy itself.
The director shall have the authority through entry of an order to exercise in
his or her discretion any or all of the sanctions authorized under section
38-196, irrespective of the petition.
(2) If the petition is brought with respect to subdivision (5) of section
38-2021, the director shall make findings as to whether the licensee performed or induced an unlawful abortion in violation of section 4 of this act. If the director finds such a violation, the director shall enter an order revoking the licensee's credential to practice pursuant to the Uniform Credentialing Act in
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the State of Nebraska in accordance with subsection (2) of section 38-196 and section 38-1,100.
Sec. 11. Section 38-196, Reissue Revised Statutes of Nebraska, is amended to read:
38-196 (1) Except as provided in subsection (2) of this section, upon Upon the completion of any hearing held regarding discipline of a credential,
the director may dismiss the action or impose any of the following sanctions:
(a) (1) Censure;
(b) (2) Probation;
(c) (3) Limitation;
(d) (4) Civil penalty;
(e) (5) Suspension; or
(f) (6) Revocation.
(2) Upon completion of any hearing regarding discipline of a credential for performing or inducing an unlawful abortion in violation of section 4 of this act, if the director determines that such violation occurred, the director shall impose a sanction of revocation in accordance with section 38-1,100.
Sec. 12. Section 38-2021, Revised Statutes Cumulative Supplement, 2022, is amended to read:
38-2021 Unprofessional conduct means any departure from or failure to
conform to the standards of acceptable and prevailing practice of medicine and surgery or the ethics of the profession, regardless of whether a person,
patient, or entity is injured, or conduct that is likely to deceive or defraud the public or is detrimental to the public interest, including, but not limited to:
(1) Performance by a physician of an abortion as defined in subdivision
(1) of section 28-326 under circumstances when he or she will not be available for a period of at least forty-eight hours for postoperative care unless such postoperative care is delegated to and accepted by another physician;
(2) Performing an abortion upon a minor without having satisfied the requirements of sections 71-6901 to 71-6911;
(3) The intentional and knowing performance of a partial-birth abortion as
defined in subdivision (8) of section 28-326, unless such procedure is
necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself; and
(4) Performance by a physician of an abortion in violation of the Pain-
Capable Unborn Child Protection Act; and .
(5) Violation of the Preborn Child Protection Act.
Sec. 13. Section 38-2894, Revised Statutes Cumulative Supplement, 2022, is amended to read:
38-2894 (1) A registration to practice as a pharmacy technician may be
denied, refused renewal, removed, or suspended or have other disciplinary measures taken against it by the department, with the recommendation of the board, for failure to meet the requirements of or for violation of any of the provisions of subdivisions (1) through (18) and (20) through (27) (26) of section 38-178 and sections 38-2890 to 38-2897 or the rules and regulations adopted under such sections.
(2) If the department proposes to deny, refuse renewal of, or remove or
suspend a registration, it shall send the appl