[Author: Lindsay Greenblatt]
HHS recently announced a proposed rule (Proposed Rule) that modifies, rescinds, and retains previous conscience provisions that allow health care workers to deny care based on their religious or moral beliefs. HHS is requesting comments on the Proposed Rule, including those that will help assess alternatives and the necessity of additional regulations.
Previous Conscience Provisions and Rules
There are currently several federal provisions that protect health care workers from being required to participate in care that is contrary to their moral or religious beliefs. For example, the “Church Amendments,” enacted in the 1970s, prohibit entities receiving grants, contracts, or loans under certain HHS statutes from requiring workers to participate in a sterilization procedure or an abortion if it would be contrary to the worker’s moral or religious beliefs. Several other conscience provisions have been enacted since, including in the Medicare and Medicaid statutes. Additionally, since 2008, HHS has proposed several rules aimed at ensuring that HHS funds “do not support coercive or discriminatory practices, or policies in violation of federal law.”
In 2019, a final rule was issued (2019 Final Rule) that, among other things, added several statutory provisions and enforcement provisions to a prior rule. After the issuance of the 2019 Final Rule, several lawsuits were filed to challenge the rule, which resulted in the courts deciding that the rule was defective for multiple reasons. The Proposed Rule seeks to make changes to address the issues of the 2019 Final Rule that were challenged in court.
Proposed Rule
The Proposed Rule partially rescinds and partially retains (with modifications) the 2019 Final Rule, and generally reinstates the “2011 framework that has been in effect for some time.” The aspects of the 2019 Final Rule that the Proposed Rule retains are: (i) the application to statutes first referenced in the 2019 Final Rule; (ii) several enforcement provisions; and (iii) a voluntary notice provision.
First, HHS proposes to expand the conscience statutes covered by the rule to include the statutes that HHS added to Section 88.3 of the 2019 Final Rule. These include the conscience protections included in several HHS programs including the Affordable Care Act, Medicare and Medicaid, health screenings, and more.
Second, HHS proposes to retain several provisions from the 2019 Final Rule and expand upon the 2011 Final Rule regarding “complaint handling and investigations.” This involves Office of Civil Rights’ (OCR’s) authority to handle complaints, seek voluntary compliance, and ensure compliance through enforcement. It also includes a description of how OCR will conduct investigations, proceed with an investigation, and seek resolution of violations.
Third, HHS proposes to retain and modify the 2019 Final Rule’s voluntary notice provisions to “advise persons and covered entities about their rights and the Department’s [HHS’s] and/or recipients’ obligations under Federal conscience and nondiscrimination laws” and may provide information about how to file a complaint or seek care. Among other additions, it also describes where the notice should appear. HHS proposes to rescind the other portions of the 2019 Final Rule.
The statutory authority of the Proposed Rule rests in 5 U.S.C. 301, which allows the head of an Executive department to create regulations “for the government of his department, the conduct of his employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property.”
Request for Comments on Proposed Rule
HHS seeks comments to determine whether to rescind or modify the 2019 Final Rule, and whether the framework in effect from the 2011 Final Rule should be replaced or modified. The notice of the Proposed Rule outlines several specific topics on which HHS seeks responsive comments.
Comments must be received on or before 60 days after the date of publication in the Federal Register and identified by RIN 0945-AA18.
The Proposed Rule can be found here.
