HHS Announces Final Conscience Rule Protecting Health Care Entities and Individuals

News Release from HHS, May 2, 2019

The U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) announced today the issuance of the final conscience rule that protects individuals and health care entities from discrimination on the basis of their exercise of conscience in HHS-funded programs. Just as OCR enforces other civil rights, the rule implements full and robust enforcement of approximately 25 provisions passed by Congress protecting longstanding conscience rights in healthcare.  

The final rule fulfills President Trump’s promise to promote and protect the fundamental and unalienable rights of conscience and religious liberty, a promise he made when he signed an executive order in May 2017 protecting religious liberty.  In October 2017, the Department of Justice issued guidance encouraging other Departments, including HHS, to implement and enforce all relevant religious freedom laws.  

As a result, in January 2018, following the launch of its new Conscience and Religious Freedom Division, HHS announced the proposed conscience rule.  OCR received over 242,000 public comments, and analyzed and carefully considered all comments submitted from the public on the proposed conscience regulation before finalizing it.

This final rule replaces a 2011 rule that has proven inadequate, and ensures that HHS implements the full set of tools appropriate for enforcing the conscience protections passed by Congress.  These federal laws protect providers, individuals, and other health care entities from having to provide, participate in, pay for, provide coverage of, or refer for, services such as abortion, sterilization, or assisted suicide.  It also includes conscience protections with respect to advance directives.

The final rule clarifies what covered entities need to do to comply with applicable conscience provisions and requires applicants for HHS federal financial assistance to provide assurances and certifications of compliance. The rule also specifies compliance obligations for covered entities, including cooperation with OCR, maintenance of records, reporting, and non-retaliation requirements.

“Finally, laws prohibiting government funded discrimination against conscience and religious freedom will be enforced like every other civil rights law.” said OCR Director Roger Severino. “This rule ensures that healthcare 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. Protecting conscience and religious freedom not only fosters greater diversity in healthcare, it’s the law,” Severino concluded.

Click here - PDF to read the Final Conscience Rule.

Click here - PDF to read the Final Conscience Rule Factsheet.

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HAWAII ATTORNEY GENERAL JOINS COALITION SUING TRUMP ADMINISTRATION TO STOP ALLOWING DISCRIMINATION IN HEALTH CARE

News Release from Office of the Attorney General, May 21, 2019

HONOLULU – Attorney General Clare E. Connors joined a coalition of 23 cities, states, and municipalities, led by New York Attorney General Letitia James, in a lawsuit filed today against a Final Rule issued by the Trump Administration’s Department of Health and Human Services, which seeks to expand the ability of businesses and individuals to refuse to provide necessary health care on the basis of businesses’ or employees’ “religious beliefs or moral convictions.” The federal lawsuit, filed in the Southern District of New York, seeks to enjoin the Final Rule and prevent it from going into effect. The suit follows upon a comment letter filed by the New York Attorney General and a coalition of states in March 2018, when the rule was first proposed, urging that the rule be withdrawn.

“This rule is a license to discriminate,” said Attorney General Connors. “It allows health care providers to refuse service based on personal beliefs about who is worthy of receiving the provider’s services. As such, it is a misinterpretation of religious freedom that could have devastating consequences.”

The lawsuit alleges that the Final Rule, which will take effect in July 2019, would undermine the delivery of health care by giving a wide range of health care institutions and individuals a right to refuse care, based on the provider’s own personal views. The Rule drastically expands the number of providers eligible to make such refusals, ranging from ambulance drivers to emergency room doctors to receptionists to customer service representatives at insurance companies. The Rule makes this right absolute and categorical, and no matter what reasonable steps a health provider or employer makes to accommodate the views of an objecting individual, if that individual rejects a proposed accommodation, a provider or employer is left with no recourse.

Under the Rule, a hospital could not inquire, prior to hiring a nurse, if (s)he objected to administering a measles vaccination—even if this was a core duty of the job in the middle of an outbreak of the disease. Or an emergency room doctor could refuse to assist a woman who arrived with a ruptured ectopic pregnancy, even if the woman’s life was in jeopardy.

The Rule would also allow businesses, including employers, to object to providing insurance coverage for procedures they consider objectionable, and allow individual health care personnel to object to informing patients about their medical options or referring them to providers of those options. The devastating consequences of the Rule would fall particularly hard on marginalized patients, including LGBTQ patients, who already confront discrimination in obtaining health care.

The lawsuit further alleges that the risk of noncompliance is the termination of billions of dollars in federal health care funding. If HHS determines, in its sole discretion, that states or cities have failed to comply with the Final Rule – through their own actions or the actions of thousands of sub-contractors relied upon to deliver health services – the federal government could terminate funding to those states and cities, to the price tag of hundreds of billions of dollars. States and cities rely upon those funds for countless programs to promote the public health of their residents, including Medicaid, the Children’s Health Insurance Program, HIV/AIDS and STD prevention and education, and substance abuse and mental health treatment.

The lawsuit argues that this drastic expansion of refusal rights, and the draconian threat of termination of federal funds, violates the federal Administrative Procedures Act and the Spending Clause and separation of powers principles in the U.S. Constitution.

A copy of the complaint can be found here.

Joining New York Attorney General Letitia James and Hawaii Attorney General Clare E. Connors in filing the lawsuit are the City of New York, Colorado, Connecticut, Delaware, the District of Columbia, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Wisconsin, the City of Chicago, and Cook County, Illinois. 

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