May 22, 2019

19 states just sued to block HHS' 'conscience' protections for health care providers

Daily Briefing

    A group of nearly two dozen states and localities on Tuesday filed a lawsuit that seeks to block a final rule intended to enforce protections for health care professionals who have moral or religious objections to providing certain medical care, including abortion care and physician-assisted death.

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    Final rule details

    The 440-page final rule, which HHS first proposed in January 2018, aims to provide protections for individuals and entities with moral and religious objections to providing certain health services.

    The final rule is designed to help HHS' Office for Civil Rights (OCR) enforce 25 existing statutory protections intended to ensure entities and individuals are not forced to participate in medical procedures that violate their consciences.

    The final rule will allow doctors, nurses, and other health care workers, including schedulers, to decline to be involved in medical procedures that violate their moral or religious beliefs. Specifically, the final rule will protect such workers if they refuse to provide, participate in, pay for, or offer a referral for services that violate their moral or religious beliefs.

    Under the final rule, health care workers will be able to file complaints with OCR if they believe they have experienced discrimination because they declined to participate in specific medical procedures. ORC will investigate the alleged discrimination and determine the appropriate enforcement action.

    The final rule will apply to individuals and entities that receive funds through programs administered or funded either fully or partially through HHS. Under the final rule, providers who do not comply with the regulations will lose federal funds.

    OCR said it will enforce the statutory protections in the same manner it enforces other civil rights requirements, such as those prohibiting discrimination on the basis of national origin or the basis of race. For instance, OCR will have the authority to investigate potential rule violations, make referrals about rule violations to the Department of Justice, and remediate the effects of rule violations, possibly by withholding federal funds.

    The final rule is scheduled to take effect July 22.

    Lawsuit details

    But a coalition of 23 cities, municipalities, and states on Tuesday filed an 80-page lawsuit alleging that the final rule illegally prioritizes health care providers' personal beliefs over patients' needs.

    The lawsuit argues the final rule violates civil statutes and federal laws, including Medicare and Medicaid laws and a statute that requires hospitals to provide patients with emergency care. As such, the lawsuit claims the final rule would interfere with the ability of health care providers operated by cities, municipalities, and states to provide effective health care services to their residents without putting them at risk of losing billions of dollars in federal funds. In addition, the lawsuit claims that the final rule would negatively affect teaching hospitals and other health care facilities operated by states and localities because it would undermine their effectiveness and require them to hire additional providers to perform procedures when other providers refuse.

    The lawsuit also alleges that the final rule could hinder a patient's access to physician-assisted death, sterilizations, and other medical procedures.

    New York Attorney General (AG) Letitia James (D) is leading the suit, which she filed in the U.S. District Court for the Southern District of New York. The other states that joined the suit are:

    • Colorado;
    • Connecticut;
    • Delaware;
    • Hawaii;
    • Illinois;
    • Maryland;
    • Massachusetts;
    • Michigan;
    • Minnesota;
    • Nevada;
    • New Jersey;
    • New Mexico;
    • Oregon;
    • Pennsylvania;
    • Rhode Island;
    • Vermont;
    • Virginia; and
    • Wisconsin.

    The cities and counties participating in the lawsuit are:

    • Chicago;
    • Cook County, Illinois;
    • New York City; and
    • Washington, D.C.

    The lawsuit asks the court to block the rule from taking effect.

    According to the Washington Post, California AG Xavier Becerra (D) has filed a similar lawsuit that alleges the final rule would "imped[e] access to basic care" and "encourag[e] discrimination against vulnerable patients."

    Comments

    James in a statement said the final rule would give "health care providers free license to openly discriminate and refuse care to patients."

    But OCR Director Roger Severino said, "The rule gives life and enforcement tools to conscience protection laws that have been on the books for decades." He added, "HHS finalized the conscience rule after more than a year of careful consideration and after analyzing over 242,000 public comments. We will defend the rule vigorously" (Stempel, Reuters, 5/21; Goldstein, Washington Post, 5/21).

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