May 3, 2019

HHS expands 'conscience' protections for health providers

Daily Briefing

    HHS on Thursday released a final rule for enforcing protections for health care professionals who have moral or religious objections to providing certain medical care, including abortion care and assisted suicide, NPR's "Shots" reports.  

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    Final rule details

    The 440-page final rule, proposed in January 2018, aims to provide practical 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.

    It 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, they will be protected if they refuse to provide, participate in, pay for, or offer a referral for services that violate their moral or religious beliefs. 

    Health care workers will be able to file complaints with HHS' Office of Civil Rights (ORC) 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 takes effect 60 days from its final publication.

    Comments

    Roger Severino, the director of OCR, said, "Finally, laws prohibiting government funded discrimination against conscience and religious freedom will be enforced like every other civil rights law. This rule ensures that health care entities and professionals won't be bullied out of the health care field because they decline to participate in actions that violate their conscience, including the taking of human life."

    Tony Perkins, the president of the Family Research Council, said the final rule represents "another crucial moment in which President Trump's promises are becoming a reality." He added, "Every American should be greatly encouraged to know that they have a president who stands up for the freedom to believe and live according to those beliefs without fear of discrimination."

    However, several lawmakers, patient and advocacy groups said the final rule will weaken protections for vulnerable health care patients, including individuals who identify as gay and transgender.

    The rule has already been challenged in court. Dennis Herrera, San Francisco's city attorney, on Thursday filed a lawsuit in the U.S. District Court challenging the final rule. He said, "The intent of this new rule is clear: It's to prioritize religious beliefs over patient care."

    The lawsuit claims the final rule "allows any entity involved in a patient's care—from a hospital board of directors to the receptionist that schedules procedures—to use their personal beliefs to determine a patient's access to care," which the city argues "goes well beyond what was intended by Congress." Herrera said San Francisco cannot comply with the final rule, which means the city could lose $1 billion in federal funds, Politico's "Pulse" reports.

    California Attorney General Xavier Becerra (D) suggested the state might also file a lawsuit. He said, "It's 2019, not 1920. We won't go back to the days when Americans seeking health care faced discrimination simply because they were female or LGBTQ. California stands ready to take any and all legal action to prove the Trump Administration wrong."

    Sen. Patty Murray (D-Wash.), ranking member of the Senate health committee, said the final rule "once again takes our country in entirely the wrong direction and makes it harder for people to get the care they need—this time by putting up ideological barriers for communities who already face major health care disparities."

    Leana Wen, president of Planned Parenthood, said, "In allowing doctors, nurses, and even receptionists to deny care to patients, the Trump-Pence administration is providing legal cover for discrimination. This will widen health care disparities and worsen health outcomes for those who already face too many barriers to care" (Weixel, The Hill, 5/2; Abutaleb, Reuters, 5/2; Politico, Diamond, "Pulse," Politico, 5/3; Kim Cohen, Modern Healthcare, 5/2; Diamond, Politico, 5/2; Kodjak, "Shots," NPR, 5/2; HHS fact sheet, accessed 5/3).

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