On January 19, 2018, the U.S. Department of Health and Human Services (“HHS”) proposed a rule pertaining to enforcement of existing statutory federal conscience protections. “Protecting Statutory Conscience Rights in Health Care; Delegations of Authority,” Notice of Proposed Rulemaking, Office for Civil Rights (“OCR”), HHS, unpub’d doc. 2018-10226 (the “Proposed Rulemaking”). The Proposed Rulemaking would delineate the scope of OCR’s enforcement authority to investigate violations of existing “Federal health care conscience and associated anti-discrimination laws,” including the Church, Coats-Snowe, and Weldon Amendments; Section 1553 of the Affordable Care Act; and other laws prohibiting discrimination on the basis of religion or protecting conscience rights. Proposed Rulemaking, at 5. The Proposed Rulemaking is modeled on a similar 2008 proposal originally developed under the Bush Administration. 73 Fed. Reg. 50274 (Aug. 26, 2008).
According to OCR, the purpose of the Proposed Rulemaking is to “protect the rights of persons, entities, and health care entities to refuse to perform . . . health care services or research activities to which they may object for religious, moral, ethical, or other reasons.” 45 C.F.R. § 88.1 (proposed). Therefore, the Proposed Rulemaking applies to procedures such as sterilization, abortion, and assisted suicide at and by hospitals, physicians, and other entities receiving specified streams of federal funding. Justifications cited for the rulemaking include the need for greater clarity concerning the operation of federal conscience laws; the lack of a private right of action in many cases to enforce these laws; and a recent uptick in the number of complaints arising under federal health care conscience laws. Proposed Rulemaking, at 27, 42.
The Proposed Rulemaking would expand the current limited regulatory scheme at 45 C.F.R. § 88.2 addressing conscience protections to mirror other civil rights regulatory regimes. OCR would be granted authority to, among other things, initiate compliance reviews, conduct investigations, and use enforcement tools available in other areas of civil rights law to address violations and resolve complaints. Proposed Rulemaking, at 2. In aid of OCR’s functions, entities covered by the rulemaking would be required to maintain records, cooperate with OCR’s enforcement actions, submit written assurances and certifications of compliance to HHS, and post public notices regarding anti-discrimination protections. Proposed Rulemaking, at 103.
If finalized, the Proposed Rulemaking will impact entities covered by the scope of the regulation, including many hospitals, in two significant ways. First, it would confirm that these entities are protected from certain coercive government actions that would compel the performance of a set of specific procedures such as abortions and sterilizations in their facilities against their religious or moral objections. Second, and conversely, the entities themselves will be required to refrain from any of their own coercive or discriminatory acts against personnel – both against personnel who wish, as well as personnel who do not wish, to participate in such procedures on religious or moral grounds. 45 C.F.R. § 88.3(a)(2)(iv)-(v) (proposed). For example, in their capacity as employers, hospitals carrying out health service programs administered by HHS would be prohibited from discriminating against personnel who do not wish to perform activities under the health service program (a broader scope of conscience protection than that recognized for entities) for religious or moral reasons. The scope of conscience rights afforded to individuals under existing law and as clarified by the Proposed Rulemaking is broader than that afforded to entities, and it is unclear at this time how the interplay between entities and their workforces will be resolved under the proposed regime as well as with reference to existing anti-discrimination laws and regulations.
Although the promulgation does not discuss the anticipated impact of conscience protections on provision of care to specific patient populations (e.g., women or transgender individuals), it appears that the rationale behind the rule would result in its general applicability across patient populations. This is because the rule as drafted focuses on the availability of conscience objections to providers and entities rather than the impact that raising such objections might have on provision of care to patients.
The Proposed Rulemaking would impose two immediate technical requirements similar to those currently imposed by other civil rights regulatory regimes: first, entities would be required to post public notices about conscience rights; second, entities would be required to submit assurances and certifications of compliance with regard to federal health care conscience laws. The latter would be incorporated into existing certification forms, while with regard to the former, the Proposed Rule sets forth required text for the notice and directions as to where it must be posted.
If the Proposed Rulemaking becomes final, organizations will need to examine whether their existing policies with respect to hiring and credentialing decisions are impermissibly discriminatory. Entities that provide procedures such as abortions may not withhold employment solely on the basis that an individual such as a physician is unwilling to participate in these activities on the basis of religious beliefs or moral convictions. On the other hand, entities that do not provide such procedures must likewise not withhold employment solely because the individual has an opposing set of religious beliefs or moral convictions. For example, a Catholic hospital (assuming the threshold funding prerequisites are met) generally may not deny staff privileges to a physician with a stated conviction that sterilizations are morally permissible solely on that ground, while a family planning clinic (again assuming the funding prerequisites are met) generally may not deny employment to a physician solely for the reason that the physician has a stated religious belief against performing abortions or sterilizations. The discrimination protections flow in both directions. Therefore, in anticipation of the potential finalization of the Proposed Rulemaking, entities may consider reviewing whether their credentialing, employment, or other related process/policies might be considered discriminatory against individuals on the basis of religious or moral objection, either on the basis of their willingness or unwillingness to perform certain procedures.
Further, in the Proposed Rulemaking, OCR has articulated a set of recommended best practices for entities. Entities may consider adopting such practices if the rule is finalized, and even preparing to adopt such practices prior to the time of finalization. These practices are:
- The designation of at least one employee responsible for compliance;
- The adoption of internal grievance procedures to provide for prompt and equitable resolution of complaints; and
- The preparation of internal compliance reports.
Proposed Rulemaking, at 79-80.
Notably, as currently drafted, the Proposed Rulemaking does not establish any notice, hearing, and appeal provisions or other opportunities for due process in the event that sanctions are levied for violations of the rule, although it does solicit comment on whether such procedures or opportunities for due process should or must be included in the final rulemaking. Proposed Rulemaking, at 80.
Separately, by means of the Proposed Rulemaking, OCR also rescinded its prior position regarding whether a California policy requiring that health insurance plans include coverage for abortion was compatible with the Weldon Amendment. In 2016, OCR concluded that California’s policy requiring abortion coverage could stand against a Weldon Amendment challenge in which none of the complainants were insurance issuers because the Weldon Amendment’s protection did not extend to institutions or individuals who purchase or are insured by health plans, but only to issuers. The Proposed Rulemaking states that this interpretation “no longer reflects the current position of HHS, OCR, or the HHS Office of the General Counsel,” although it declined to offer a current opinion regarding the compatibility of California’s policy with the Weldon Amendment. It did affirmatively clarify that going forward, the Weldon Amendment’s protections can now be invoked by a broader category of individuals than only issuers. Proposed Rulemaking, at 44-46. This signifies a significant shift in OCR’s interpretation of the Weldon Amendment as well as the potential for an upcoming legal challenge to the California policy that was previously upheld.
These materials were written by Carol Brass: an associate at Manatt Health; and Craig Rutenberg: a partner at Manatt, Phelps & Phillips, LLP and the current Chair of the Health Law Committee.