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Expanded Protections for Health Care Persons and Entities With Conscience Objections

on Wednesday, 5 June 2019 in Health Law Advisory: Zachary J. Buxton, Editor

On May 2, the Office for Civil Rights (“OCR”), Office of the Secretary Health and Human Services (“HHS”) released a Final Rule, “Protecting Statutory Conscience Rights in Health Care; Delegations of Authority,” revising 42 CFR Part 88. The Final Rule is effective in July 60 days after the Federal Register publication date.

The Final Rule opens with a long summary of the statutory and regulatory protections for individuals and entities in health care on the basis of religious beliefs or moral convictions. The reason for the development of the Final Rule is stated as the recognition of a “significant need” to amend the 2011 Rule to ensure knowledge of, compliance with, and enforcement of, Federal conscience and anti-discrimination laws. It was noted that, since 2016, there had been a sizable increase in complaints to OCR alleging violations of laws related to the 2011 Rule.

Among these are allegations by members of faith-based medical organizations that they were pressured to act contrary to or have been discriminated against because they had moral or religious objections to performing abortions, sterilization procedures or prescribing birth control measures. Yet other allegations related to end-of life decisions for the terminally ill or elderly.

A number of concerns have been expressed about the new Final Rule. These concerns range from a fear that the rule is overly broad and could severely restrict access to reproductive health care or that the application of the rule could lead to discrimination against members of the LGBTQ community if health care workers would decline to provide treatment based on conscience objections. Of immediate concern, in light of the measles epidemic in some areas, is that the Final Rule could stand in the way of public efforts to promote childhood vaccination programs.

The Final Rule has a broad scope:

–The Final Rule applies to a wide range of “covered entities” including hospitals, state governments, skilled nursing facilities, home health agencies, physicians’ offices, pharmacies, federally recognized tribes and employers who offer health insurance to their employees. It also applies to employees in non-clinical positions such as receptionists as well as clinicians, administration and Boards of Directors;

–25 separate laws addressing different types of conscience rights ranging from advance directives to abortion, along with statutes not previously under HHS oversight, are now combined under the Final Rule. OCR can use this broadened investigation and enforcement authority to identify and address conscience violations;

–Where earlier statutes and regulations focused on protecting the objector’s right to perform a service or care, the Final Rule extends the protection to an individual’s or entity’s right to refer to someone who would provide that care.

For those entities found by OCR to be in violation of the Final Rule who do not voluntarily comply with enforcement mandates, OCR could terminate all or part of the entity’s federal funding, recoup previously paid federal funds, refer the case to the Department of Justice or take other enforcement measures.

The Final Rule is highly controversial and has been legally challenged prior to its effective date in more than 20 states and municipalities. Many more challenges are certain to come as the broad protections of the Rule are applied to day-to-day situations. Commentators have observed that the Rule sends a clear signal of a new enforcement priority for OCR.

Julie A. Knutson

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