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Rights of Health Care Conscience – New Requirements and Model Notice

on Wednesday, 31 January 2024 in Health Law Alert: Erin E. Busch, Editor

On January 11, 2024, the Department of Health and Human Services (“HHS”) issued a final rule entitled, “Safeguarding the Rights of Conscience as Protected by Federal Statutes” (the “Final Rule”), which is effective March 11, 2024. Each presidential administration has changed the final rule regarding objections practitioners may assert for religious or moral reasons since the Bush administration first released the final rule in 2008.  In 2019, the Trump administration issued a sweeping final rule that established enforcement provisions, adopted extensive definitions, and imposed record keeping and notice requirements (the “2019 Rule”).  Significant portions of the 2019 Rule were found unlawful by three federal courts. The Biden administration’s Final Rule focuses on procedural aspects, building off of the final rule that had been in place since 2011 and implementing the portions of the 2019 Rule that were not held unlawful.

Final Rule Issued

The purpose of the Final Rule is to provide for the enforcement of federal health care conscience protection statutes, which prohibit coercion or other discrimination on the basis of conscience, whether based on religious beliefs or moral convictions, in certain circumstances.[1] The federal health care conscience protection statutes are relied on by practitioners and health care entities who, for example, object for religious or moral reasons to providing or referring for abortions, assisted suicide, or gender-affirming care, among other procedures. The Final Rule authorizes OCR to investigate complaints, initiate compliance reviews, “coordinate other appropriate remedial action as the Department deems necessary and as allowed by law and applicable regulation,” and make enforcement referrals to the Department of Justice.  OCR’s process for handling complaints will include:

  • Any entity or individual may file a complaint with OCR, even if the complaint filer is not the entity or individual whose rights under the Federal health care conscience protection statutes have been allegedly violated;
  • OCR will promptly conduct investigations;
  • If an investigated entity fails to respond to an OCR request for information within a reasonable timeframe and without good cause, OCR will consider that fact negatively as it evaluates all the evidence in a given case; and
  • If not informally resolved, OCR might utilize existing enforcement regulations, such as those that apply to grants, contracts, or other programs and services; withhold funding; or refer the matter to the Department of Justice.

Model Notice Text

HHS encourages covered entities to post a notice to explain that individuals or entities may have rights under the Federal health care conscience protection statutes and provides model notice text at Appendix A to Part 88, While posting of a notice is not required, HHS makes clear that OCR will consider posting a notice as a factor in any investigation or compliance review under the Final Rule. Entities may post the notice text along with the content of other nondiscrimination notices.

[1] The federal health care conscience statutes include the Church Amendments, 42 U.S.C. 300a–7; the Coats-Snowe Amendment, section 245 of the Public Health Service Act, 42 U.S.C. 238n; the Weldon Amendment, Consolidated Appropriations Act, 2009, Pub. L. No. 111-117, 123 Stat 3034; certain Medicare and Medicaid provisions; and other federal laws.

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