US: Protecting Statutory Conscience Rights in Health Care; Delegations of Authority

AGENCY:

Office for Civil Rights (OCR), Office of the Secretary, HHS.

ACTION:

Proposed rule.

SUMMARY:

In the regulation of health care, the United States has a long history of providing conscience-based protections for individuals and entities with objections to certain activities based on religious belief and moral convictions. Multiple such statutory protections apply to the Department of Health and Human Services (HHS, or the Department) and the programs or activities it funds or administers. The Department proposes to revise regulations previously promulgated to ensure that persons or entities are not subjected to certain practices or policies that violate conscience, coerce, or discriminate, in violation of such Federal laws. Through this rulemaking, the Department proposes to grant overall responsibility to its Office for Civil Rights (OCR) for ensuring that the Department, its components, HHS programs and activities, and those who participate in HHS programs or activities comply with Federal laws protecting the rights of conscience and prohibiting associated discriminatory policies and practices in such programs and activities. In addition to conducting outreach and providing technical assistance, OCR will have the authority to initiate compliance reviews, conduct investigations, supervise and coordinate compliance by the Department and its components, and use enforcement tools otherwise available in civil rights law to address violations and resolve complaints. In order to ensure that recipients of Federal financial assistance and other Department funds comply with their legal obligations, the Department will require certain recipients to maintain records; cooperate with OCR's investigations, reviews, or other enforcement actions; submit written assurances and certifications of compliance to the Department; and provide notice to individuals and entities about their conscience and associated anti-discrimination rights, as applicable.

DATES:

Submit comments on or before March 27, 2018.

ADDRESSES:

You may send comments, identified by RIN 0945-ZA03 or Docket HHS-OCR-2018-0002, by any of the following methods:

  • Federal eRulemaking Portal. You may submit electronic comments at http://www.regulations.gov by searching for the Docket ID number HHS-OCR-2018-0002. Follow the instructions for sending comments.

  • Regular, Express, or Overnight Mail: U.S. Department of Health and Human Services, Office for Civil Rights, Attention: Conscience NPRM, RIN 0945-ZA03, Hubert H. Humphrey Building, Room 509F, 200 Independence Avenue SW, Washington, DC 20201.

  • Hand Delivery/Courier: Department of Health and Human Services, Office for Civil Rights, Attention: Conscience NPRM, RIN 0945-ZA03, Hubert H. Humphrey Building, Room 509F, 200 Independence Avenue SW, Washington, DC 20201.

Instructions: All submissions received must include “Department of Health and Human Services, Office for Civil Rights RIN 0945-ZA03” for this rulemaking. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided. Further instructions are available under PUBLIC PARTICIPATION.

Docket: For complete access to the docket to read background documents or comments received, go to http://www.regulations.gov and search for Docket ID number HHS-OCR-2018-0002.

FOR FURTHER INFORMATION CONTACT:

Sarah Bayko Albrecht at (800) 368-1019 or (800) 537-7697 (TDD).

SUPPLEMENTARY INFORMATION:

I. Introduction

The freedoms of conscience and of religious exercise are foundational rights protected by the First Amendment to the U.S. Constitution and by Federal statutes. These laws ensure, for example, that Americans are not compelled to speak, to salute the flag, to join a national church, or to vote for a particular candidate.[1] They also ensure that, as a general matter, the Federal government may not discriminate against its citizens for the views they hold.[2] Congress has passed laws protecting conscience and religious freedom with particular force in the health care context, and it is these statutes that are the subject of this proposed rule. Specifically, this proposed rule concerns Federal laws that provide:

  • Conscience protections related to abortion, sterilization, and certain other health services to participants in programs—and their personnel—funded by the Department (the Church Amendments, 42 U.S.C. 300a-7);

  • Conscience protections for health care entities related to abortion provision or training, referral for such abortion or training, or accreditation standards related to abortion (the Coats-Snowe Amendment, 42 U.S.C. 238n);

  • Protections from discrimination for health care entities and individuals who object to furthering or participating in abortion under programs funded by the Department's yearly appropriations acts (e.g., Consolidated Appropriations Act, 2017, Pub. L. 115-31, Div. H, Tit. V, sec. 507(d) (the Weldon Amendment) and at Div. H, Tit. II, sec. 209);

  • Conscience protections under the Patient Protection and Affordable Care Act (ACA) related to assisted suicide (42 U.S.C. 18113), the ACA individual mandate (26 U.S.C. 5000A(d)(2)), and other matters of conscience (42 U.S.C. 18023(c)(2)(A)(i)-(iii), (b)(1)(A) and (b)(4));

  • Conscience protections for objections to counseling and referral for certain services in Medicaid or Medicare Advantage (42 U.S.C. 1395w-22(j)(3)(B) and 1396u-2(b)(3)(B));

  • Conscience protections related to the performance of advanced directives (42 U.S.C. 1395cc(f), 1396a(w)(3), and 14406);

  • Conscience protections related to Global Health Programs to the extent administered by the Secretary (22 U.S.C. 7631(d); Consolidated Appropriations Act, 2017, Pub. L. 115-31, Div. J, Tit. VII, sec. 7018 (Helms Amendment));

  • Exemptions from compulsory health care or services generally (42 U.S.C. 1396f & 5106i(a)(1)), and under specific programs for hearing screening (42 U.S.C. 280g-1(d)), occupational illness testing (29 U.S.C. 669(a)(5)); vaccination (42 U.S.C. 1396s(c)(2)(B)(ii)), and mental health treatment (42 U.S.C. 290bb-36(f)); and

  • Protections for religious nonmedical health care (e.g., 42 U.S.C. 1320a-1, 1320c-11, 1395i-5 and 1397j-1(b)).

(These laws will be collectively referred to as “Federal health care conscience and associated anti-discrimination laws” for purposes of this Notice of Proposed Rulemaking.).

With this proposed regulation, the Department seeks to more effectively and comprehensively enforce Federal health care conscience and associated anti-discrimination laws. Specifically, the Department proposes to grant its Office for Civil Rights (OCR) overall responsibility for ensuring that the Department, its components, HHS programs and activities, and those who participate in HHS programs or activities comply with these Federal laws. In addition to conducting outreach and providing technical assistance, OCR will have the authority to initiate compliance reviews, conduct investigations, supervise and coordinate compliance by the Department and its component(s), and use enforcement tools comparable to those available under other civil rights laws to more effectively address violations and resolve complaints. In order to ensure that recipients of Department funds comply with their legal obligations, as it does with other civil rights laws within its purview, the Department will require certain funding recipients to maintain records; cooperate with OCR's investigations, reviews, or enforcement actions; submit written assurances and certifications of compliance to the Department; and provide notice to individuals and entities about conscience and associated anti-discrimination rights (as applicable).

II. America's Tradition of Conscience Protection, Religious Freedom, and the Right to be Free From Unlawful Discrimination

Congress has a long history of protecting conscience, religious beliefs, and moral convictions in law in a variety of contexts. See, e.g., 1864 Draft Act, 13 Stat. 9 (exempting religious objectors opposed to bearing arms from military service); 50 U.S.C. 3806(j) (exempting conscientious objectors from combat training or military service); 18 U.S.C. 3597(b) (exempting law enforcement employees from participating in executions “if such participation is contrary to the moral or religious convictions of the employee”); 20 U.S.C. 1681(a)(3) (exempting educational institutions from sex discrimination bans under Title IX of the Education Amendments of 1972 where such ban “would not be consistent with the religious tenets” of the institution); 42 U.S.C. 300a-8 (prohibiting the coercion of persons to undergo abortion or sterilization procedures by threatening loss of benefits and attaching a criminal punishment of a fine of not more than $1000, imprisonment for not more than one year, or both, to violations of that prohibition); see also the Religious Freedom Restoration Act, 42 U.S.C. 2000bb et seq. (preventing the Federal government from imposing substantial burdens on religious exercise absent a compelling government interest pursued in the manner least restrictive of that exercise).

The need and justification for these types of laws was aptly explained by the Supreme Court in 1965:

[B]oth morals and sound policy require that the State should not violate the conscience of the individual. All our history gives confirmation to the view that liberty of conscience has a moral and social value which makes it worthy of preservation at the hands of the state. So deep in its significance and vital, indeed, is it to the integrity of man's moral and spiritual nature that nothing short of the self-preservation of the state should warrant its violation; and it may well be questioned whether the state which preserves its life by a settled policy of violation of the conscience of the individual will not in fact ultimately lose it by the process.

United States v. Seeger, 380 U.S. 163, 170 (1965), quoting Harlan Fiske Stone, The Conscientious Objector, 21 Col. Univ. Q. 253, 269 (1919).

For decades,[3] Congress has also respected the conscience of taxpayers who object to paying for abortion by legislating prohibitions on the Federal funding of abortion. Specifically, the Hyde Amendment, which Congress has routinely attached to appropriations acts, generally prohibits Federal funding of abortion.[4See, e.g., Consolidated Appropriations Act, 2017, Public Law 115-31, Div. H, sec. 506, 507, 131 Stat. 562 (May 5, 2017). See also id. at Div. E, sec. 613, 131 Stat. 372 (using Hyde language to prohibit funding of abortions through Federal employee health benefits or coverage); id. at Div. E, sec. 810, 131 Stat. 393 (applying Hyde language to the District of Columbia); and 20 U.S.C. 1688(including language in Title IX to prohibit recipients of Federal education funding from requiring any person, or public or private entity, to pay for any benefit or service, including the use of facilities, related to an abortion).[5]

In a May 4, 2017, Executive Order entitled “Promoting Free Speech and Religious Liberty,” the President declared that the Executive Branch will “vigorously enforce Federal law's robust protections for religious freedom.” E.O. 13798, 82 FR 21675 (May 8, 2017). Pursuant to that Executive Order, the Attorney General of the United States issued guidance on religious liberty clarifying that Federal law “protects not just the right to believe or the right to worship; it protects the right to perform or abstain from performing certain physical acts in accordance with one's beliefs.” Memorandum from the Attorney General, Federal Law Protections for Religious Liberty at 2 (Oct. 6, 2017) (emphasis added). Pursuant to the President's Executive Order and Executive Branch policy, and in keeping with the Attorney General's religious liberty guidance, HHS proposes this rule to enhance the awareness and enforcement of Federal health care conscience and associated anti-discrimination laws, to further conscience and religious freedom, and to protect the rights of individuals and entities to abstain from certain activities related to health care services without discrimination or retaliation.

III. The Federal Health Care Conscience and Associated Anti-Discrimination Laws Applicable to Government, Providers, Patients, Insurers, and Other Entities That Benefit From or Administer Federally Funded Health Care Programs or Activities

As noted above, Congress has recognized that modern health care practices may give rise to conflicts with the religious beliefs and moral convictions of providers and patients alike. The existence of moral and ethical qualms on the part of health care clinicians about participating in, assisting, referring for, or otherwise being morally complicit in certain procedures is well documented by ethicists.[6]Religious institutions and entities, too, have expressed qualms about the provision of, participation in, or provision of insurance coverage for, certain procedures or services. To address these problems, Congress has repeatedly legislated conscience protections for the institutions and individuals providing health care to the American public, as outlined below.

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