The U.S. Department of Health and Human Services (“HHS”) Office for Civil Rights (“OCR”) has issued its final “conscience rule.”
In a statement, the HHS said that the 440 page final rule “protects individuals and health care entities from discrimination on the basis of their exercise of conscience in HHS-funded programs.” The HHS added that the final rule implements “full and robust enforcement of approximately 25 provisions passed by Congress protecting longstanding conscience rights in healthcare.”
Background
In January 2018, following the launch of the HHS’s Conscience and Religious Freedom Division, the HHS announced a proposed conscience rule. The OCR received over 242,000 public comments on the proposed rule, which it considered before finalizing the rule.
The HHS said that the final rule, which replaces a 2011 rule, protects health care providers, individuals, and other health care entities from having to provide, participate in, pay for, provide coverage of, or refer for services such as abortion, sterilization, or assisted suicide. The HHS added that the final rule also includes conscience protections with respect to advance directives.
The HHS pointed out that the final rule clarifies what covered entities need to do to comply with applicable conscience provisions and requires applicants for HHS federal financial assistance to provide assurances and certifications of compliance. The final rule also specifies compliance obligations for covered entities, including cooperation with OCR, maintenance of records, reporting, and non-retaliation requirements.
The Specifics
The final rule revises the existing HHS conscience regulations in scope and procedure.
With respect to scope, the final rule implements enforcement mechanisms for federal health care conscience and associated anti-discrimination provisions. As compared with the rule issued in 2011, the new final rule provides greater specificity concerning what conscience laws require and, the HHS said, is intended to ensure that the government or government-funded entities are not unlawfully discriminating against individuals, health care providers, or health care entities.
With respect to procedure, the final rule authorizes the HHS to:
- Investigate complaints;
- Initiate compliance reviews;
- Conduct investigations;
- Supervise compliance within HHS;
- Make enforcement referrals to the Department of Justice in coordination with the HHS Office of the General Counsel; and
- Remediate the effects of discrimination in coordination with other funding components in the HHS, which may include withholding federal funds, as appropriate.
In addition, the final rule requires certain recipients of federal funds from HHS:
- To submit assurances and certifications to HHS that they are in compliance with federal health care conscience laws;
- To fully comply with the requirements of federal conscience laws;
- To keep records to establish compliance;
- To cooperate with the OCR’s enforcement activities; and
- Not to intimidate or retaliate against those who file complaints with OCR, alleging violations of federal conscience laws, or cooperate with OCR investigations of such complaints.
In addition, the final rule incentivizes, but does not require, recipients of HHS funds to post notices of federal health care conscience rights or otherwise inform patients or employees of such rights, where applicable.
The HHS said that, where certain federal funds are involved, the final rule protects:
- Health care entities and employees who have conscience or religious objections related to performing, paying for, referring for, providing coverage of, or providing certain services, such as abortion, sterilization, or assisted suicide, or providing or receiving training in abortion;
- Health care professionals who decline to receive training in abortions or who attend medical schools that do not require abortion training, and applicants for training or study who have conscience or religious beliefs relating to assisting or recommending abortions or sterilizations;
- Individuals in a health service or research activity funded by an HHS program where they decline to perform or assist in part of that program because of sincere religious beliefs or moral convictions; and
- Patients who object to certain procedures, including screenings and mental health treatment of children or occupational illness testing, and in other specific instances set forth by Congress.
The final rule applies to the federal agencies and programs, and state and local governments receiving federal funds, as well as certain federally funded entities. Each federal conscience protection provision implemented in the final rule specifies the types of entities to which the law applies, which can include:
- HHS;
- State and local governments;
- Public and private health providers that receive HHS funds;
- Universities and schools that provide health care training; and
- Individuals and entities receiving taxpayer dollars from HHS or through particular programs administered by HHS for health care services, insurance, provider licensing, and research, such as through Medicare, Medicaid, Global Health Programs, the Affordable Care Act, the Public Health Service Act, and HHS’s annual appropriations acts.
Finally, the conscience protections covered by the final rule include:
- The Church Amendments;
- The Coats-Snowe Amendment;
- The Weldon Amendment;
- Affordable Care Act conscience protections regarding abortion coverage, assisted suicide, and provisions prohibiting the discriminatory denial of a religious exemption from the individual mandate;
- Section 1553 of the Affordable Care Act concerning the right to not participate in assisted suicide;
- Certain conscience protections under Medicare Advantage and Medicaid;
- Conscience protections concerning advance directives with respect to certain HHS-funded programs;
- Conscience protections for Global Health Programs administered by HHS or funded by HHS appropriations;
- Conscience exemptions for patients from certain specified health care services; and
- Conscience protections for religious nonmedical health care institutions and patients who seek religious nonmedical care.