Health Care Speech Protections Proposed

Summary#

HB-143, the proposed Free Speech for Health Care Providers Act, would create a new law and add a liability rule to the Wyoming Governmental Claims Act. It would restrict state agencies’ responses to certain health care providers’ speech; its stated goal is to protect speech from state interference. The bill failed and is not law.

• State agencies could not take specified adverse actions, or threaten them, because of protected speech, expression or association connected to providing health care services or medical advice. An exception applies if the agency proves, by clear and convincing evidence, that the speech directly and proximately caused physical or mental harm to a patient with whom the provider had a provider-patient relationship within the previous three years.
• After a determination that a board, commission or agency discriminated against a provider for protected speech in the previous three years, no state agency could contract with that body or require a person to get a licence or certification from it, if the speech was not medical advice to a specific patient.
• An agency would have to notify a provider within 14 days after receiving a complaint or action to suspend or revoke the provider’s licence or certification because of speech. Late notice would carry a $500 fine for each week it was not provided.
• A provider could sue a state agency for damages, an order stopping or requiring conduct (injunctive relief), or both. A court could award the provider reasonable costs, including attorney’s fees. The bill would also make a governmental entity liable for damages resulting from a violation.
• “Health care provider” includes people involved in delivering health care, including listed health workers, facility employees, school faculty and students, and others who participate in providing a health care service.

What it means for you#

• Health care providers: If the bill had become law, state agencies and boards would have faced limits on taking or threatening the listed actions because of qualifying speech. The bill does not extend this rule to private employers or private organizations.
• Providers facing speech-related complaints: The 14-day notice rule would apply to complaints or actions to suspend or revoke a licence or certification, not expressly to every kind of complaint or discipline.
• People dealing with a board or agency: The contracting and licensing restriction could affect people beyond the provider who was found to have been discriminated against. The bill does not specify who would be affected.
• Patients and the public: The bill does not create a new patient service or benefit. It does not bar all action against a provider’s speech; it includes the harm exception described above.

Money#

No cost estimate is available in the supplied material.

• Agencies would have to provide certain notices; the bill gives no staffing or implementation cost.
• An agency that misses the notice deadline would owe a $500 fine for each week notice is late.
• A provider could seek damages and injunctive relief, and a court could award reasonable costs, including attorney’s fees. No estimate of these potential payments is provided.

What is unclear#

• The supplied material does not include the current text of the Wyoming Governmental Claims Act or related laws, so how the bill would change existing law cannot be verified.
• The bill does not set out a process or decision-maker for determining that an agency discriminated against a provider.
• The bill does not explain how the contracting and licensing restriction would work, including which people or contracts it would affect.
• “Within the scope of providing health care services or medical advice” and other key terms are not further defined in the bill.
• No fiscal estimate, implementation details or oversight and reporting rules are provided.

Case for#

• A possible argument for the bill is that providers should not face state discipline, threats or other listed adverse actions for speech that is constitutionally protected.
• The notice rule could give providers prompt information about certain speech-related licence or certification complaints or actions.
• Allowing a provider to seek court relief could provide a way to challenge alleged violations.

Case against#

• The bill’s exception requires the state agency to prove a direct and proximate link between the speech and patient harm by clear and convincing evidence. One concern is that this could make some agency responses difficult even where harm is alleged.
• The contracting and licensing restriction could reach beyond the provider whose treatment was found unlawful; the bill does not clarify its scope.
• The bill does not establish how discrimination would be determined or explain how its rules would interact with existing agency processes.