On March 10, 2009, HHS published a proposed rule (74 Fed. Reg. 10207) to rescind its recent final rule entitled "Ensuring that Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law" (73 Fed. Reg. 78072). The final rule, promulgated in the closing days of the Bush administration and colloquially referred to as the "Conscience Rule," bears an effective date of January 20, 2009 and is designed to administer certain statutory provisions, including the Conscience Clauses/Church Amendments (42 U.S.C. § 300a-7), Section 245 of the Public Health Service Act (42 U.S.C. 238n) and the Weldon Amendment (currently adopted as part of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009, Pub. L. 110-329).
As discussed in greater detail in the January 8, 2009, issue of the Health Law Update, the Conscience Rule generally prohibits discrimination by recipients of federal funds against entities and individuals who refuse to provide or be trained to provide, engage in, pay for, provide coverage for or refer for abortions, sterilization procedures, certain types of research activities and other procedures and activities that are contrary to the entity's or individual's religious or moral beliefs. Pursuant to the Conscience Rule as it currently stands, recipients of federal funds also are required to certify their compliance in writing, though the various HHS components distributing funds subject to the rule have been given until October 1, 2009, to phase in implementation of the certification requirement.
Many argue that the Conscience Rule may be unnecessary in light of the existing statutes. In addition, the Conscience Rule could reduce access to healthcare services, and it may conflict with existing state laws regarding mandated access to certain healthcare services, drugs and procedures. In the commentary to the final rule, HHS countered such arguments by stating, "the rule seeks to achieve not only greater awareness of provider conscience rights, but also a more consistent understanding of the scope of these rights (and the corresponding obligations), greater ease of administration, provision of a Departmental point of contact for complaints regarding violations of the statutes and this regulation, a uniform mechanism for investigating complaints of noncompliance and, as a result, greater compliance with the laws protecting these rights." 73 Fed. Reg. 78078 (Dec. 19, 2008).
Proposing to rescind the Conscience Rule in its entirety, HHS specifically requests public comment on the following issues: (1) "the scope and nature of the problems giving rise to the need for federal rulemaking and how the [Conscience Rule] would resolve those problems;" (2) whether the Conscience Rule "reduces access to information and health care services, particularly by low-income women;" (3) whether the Conscience Rule "provides sufficient clarity to minimize the potential for harm resulting from any ambiguity and confusion that may exist because of the rule;" and (4) "whether the objectives of the [Conscience Rule] might also be accomplished through non-regulatory means, such as outreach and education." 74 Fed. Reg. 10210 (Mar. 10, 2009). Industry stakeholders may submit comments to HHS on the proposed rule up to and through April 9, 2009.