Legal Impact of HHS ‘Conscience Protection’ Enforcement Yet Unclear

Trump administration announces focus on protecting health care providers who refuse to render certain services

The federal government is signaling it will take more action to ensure “conscience-based” rights for health care providers. But what that means in terms of compliance risks for the hospitals that employ them remains to be seen.

Last month, the Department of Health and Human Services announced that it will pursue complaints from physicians and other health care providers who claim they are being discriminated against for their religious or moral beliefs. HHS’ Office of Civil Rights on Jan. 19 filed a proposed rule to enforce 25 existing statutory protections that prevent health care personnel from “being coerced into participating in activities that violate their consciences, such as abortion, sterilization, or assisted suicide.”

OCR Director Roger Severino said that in recent years, the government has failed to enforce conscience protections in health care not out of a lack of authority but rather a lack of willingness.

“Conscience protection is a civil right guaranteed by laws that too often haven’t been enforced,” Severino said in an HHS press release. “[The] proposed rule will provide our new Conscience and Religious Freedom Division with enforcement tools that will make sure our conscience laws are not empty words on paper, but guarantees of justice to victims of unlawful discrimination.”

During the Obama administration, HHS received 10 complaints of moral or religious freedom violations related to health care. It has received more than four times that number between President Trump’s election and the beginning of this month. The OCR’s newly established Conscience and Religious Freedom Division is dedicated to handling the complaints. 

The statutory protections the proposed rule cites include:

• The Church Amendments (42 U.S.C. 300a-7), which give patients and providers conscience protections regarding abortion, sterilization and other HHS-funded health services.

• The Coats-Snowe Amendment (42 U.S.C. 238n), which includes conscience protections for health care entities regarding abortion-related services, training, referrals or accreditation standards.

• The Patient Protection and Affordable Care Act, which has protections regarding aid-in-dying and “other matters of conscience,” according to the proposed rule.

The OCR would be able to conduct investigations and compliance reviews to ensure health care organizations that receive federal funding aren’t violating the conscience protections. The proposed rule says that non-compliant organizations could be cut off from “relevant funding in whole or in part,” face funding clawbacks or have their case referred to the Department of Justice.

The proposed rule also adds a requirement for organizations to post notices to the public, patients and employees of their federal conscience rights and how to file a complaint with the OCR.

The OCR estimated the rule, with its notice requirements, could cost the health care industry more than $300 million in the first year and an average of $125 million annually thereafter.

Historically, conscientious objections to providing certain health care services “has not been a huge legal issue,” said Melvin Sabey, a shareholder at Hall Render’s Denver office who works with employment matters in health care.

Sabey noted that there has only been a handful of faith or moral-based complaints under the previous administration’s OCR and recent uptick might be because “individuals view the current administration as more friendly to these issues.”

Of the 216-page rule’s provisions, the notice requirements will have the most tangible impact on hospitals and other entities, Sabey said. With the posting of notices of individuals’ rights and recourse regarding conscience protections, one would assume that will only increase the number of complaints the OCR receives, he added.

But when the OCR finds merit to a claim and takes action, it won’t necessarily take a hardline approach against the employer, instead sticking to its traditional methods of using negotiation to help bring them into compliance, Sabey said. “I expect that the OCR’s usual pattern of trying to work with an employer will persist.” 

Intersection with Aid-in-Dying Laws

While the proposed rule noted that several states including Colorado have recently legalized some form of aid-in-dying, it notes that the Assisted Suicide Funding Restriction Act of 1997 clarified that Medicare and Medicaid providers aren’t required to counsel patients about any rights to what it considers “assisted suicide.”

Under the proposed rule, HHS would “uphold the maximum protection for the rights of conscience and the broadest prohibition on discrimination provided by Federal, State, or local law, as consistent with the Constitution.” But it wouldn’t assume that federal statutes preempt state laws when the state laws provide at least as much conscience-based protection, which appears to be the case with Colorado’s aid-in-dying law.

Colorado’s voter-approved “Access to Medical Aid In Dying” proposition, passed in 2016, enables physicians to prescribe terminally ill patients life-ending drugs under certain conditions. The Colorado Department of Public Health and Environment reported that 69 patients received prescriptions for life-ending drugs under the law in 2017.

The state statute creates no duty for a physician to prescribe aid-in-dying drugs or otherwise participate in those services. It carries its own conscience-based protections in the sense that it forbids health care employers from disciplining or taking adverse action against personnel for refusing aid-in-dying related requests. Hospitals can ban their physicians from writing those prescriptions if the patient is to take them within the facility, however. 

— Doug Chartier

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