On Friday, January 19, 2018, the Department of Health and Human Services (HHS) issued a proposed rule that will complicate the issues healthcare providers face in providing treatment to LGBTQ patients. Specifically, HHS’s proposed rule provides for enforcement of 25 existing statutory provisions that authorize federally-funded providers to abstain from providing treatment that "violates their conscience," or "religious beliefs or moral convictions," such as abortion, sterilization, or assisted suicide. In addition, HHS announced the creation of a Conscience and Religious Freedom Division in its Office of Civil Rights (OCR) that will be responsible for enacting the proposed rule. The body of the rule itself indicates that OCR, in enforcing the rule, 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." The rule also requires providers to maintain relevant records, certify compliance with the rule, and provide notice to "individuals and entities about their conscience and associated anti-discrimination rights."
Not surprisingly, HHS’s new rule has been met with skepticism by the LGBTQ community. In December, SAGE, the nation’s oldest LBGTQ advocacy group, co-authored a report detailing problems created for LGBTQ individuals by government efforts to exempt religious organizations and individuals from non-discrimination laws. According to the report, these problems are particularly pressing for older LGBTQ individuals, as a significant majority of continuing care retirement communities are affiliated with religious organizations. Other groups have also opposed the new rule, including the ACLU, which has recently characterized the new rule as "part of a clear agenda to use religion to justify harming patients."
Implementation of the rule is expected to cost more than $300 million dollar in the first year, and $125 million annually over the next four years. Since its release, there have been more than 52,000 comments to the proposed rule, but none have been made publicly available. The deadline for submission of comments to the proposed rule was March 27, 2018.
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