According to a final federal regulation issued by HHS, federally funded health care providers may refuse providing services to which they object. The rule takes effect January 19, 2009. Specifically, the final rule:

  • Clarifies that nondiscrimination protections apply to institutional health care providers as well as to individual employees working for recipients of certain funds from HHS;
  • Requires recipients of certain HHS funds to certify their compliance with laws protecting provider conscience rights (this requirement may be phased in by October 1, 2009); and
  • Designates the HHS Office for Civil Rights as the entity to receive complaints of discrimination addressed by the existing statutes and the regulation.

In the preamble to the final regulation, HHS encourages providers to engage their patients early on in “full, open, and honest conversations” to disclose what services they do and do not provide. Critics argue that the regulation will lead to significant censorship in vast areas of medical care and research, particularly those involving reproductive health. Proponents suggest that health care workers and providers should not be compelled or coerced into performing services with which they take moral issue. However, federal protection of so-called “provider conscience rights” has a history dating back to the 1970s, when Congress enacted the Church Amendments that protected health care providers from discrimination by recipients of HHS funds on the basis, among other things, of their refusal, due to religious belief or moral conviction, to perform or participate in any lawful health service or research activity. To view the final rule, please click here.