On May 21, 2019, the Department of Health and Human Services (HHS) issued the final regulations referred to as the Federal conscience and anti-discrimination laws. Although there were already federal rules in place protecting health care providers from discrimination for refusing to participate in certain health care activities based on religious or moral beliefs and convictions, HHS determined that the existing regulations were inadequate and needed clarification. According to HHS, the rule was needed for two reasons - (1) insufficient enforcement tools and (2) lack of awareness concerning existing protections. There were more than 240,000 comments, each of which had to be addressed before the rule became final.
As early as the 1970s, there have been laws protecting health care providers and entities from discrimination and retaliation if they refused to participate in certain activities based on religious or moral beliefs, but between 2008 and 2011, new regulations and guidance from regulatory agencies created confusion as to the scope and application of those regulations. According to HHS, there has been a significant increase in the number of complaints filed with the Office of Civil Rights (OCR) related to this topic, and a survey of faith-based medical institutions indicated growing concerns over discrimination and retaliation. This final rule is intended to address the confusion and concerns that exist with the implementation of approximately 25 provisions that protect health care entities and individuals from discrimination. The health care activities covered are generally related to abortion, sterilization, assisted suicide or euthanasia and performance of advanced directives.
Who is protected?
The rules protect health care entities and employees who have conscience or religious objections to performing, paying for, referring for, providing coverage of, or providing services such as abortion, sterilization or assisted suicide, or providing or receiving training in abortion. It also protects health care professionals who decline to receive training on abortions or who attend medical schools that do not require training on abortions. Patients are also protected from discrimination on the basis of refusing certain procedures and protections for parents who, on the basis of conscience, object to their children being forced to receive certain treatments or health interventions.
No private right of action
The rule seeks to add clarity on the enforceability of the Federal conscience and anti-discrimination laws. The summary states that there is no private right of action. Therefore, the rule seeks to ensure adequate governmental enforcement mechanisms. OCR is charged with ensuring compliance with the conscience rules. Under the rule, OCR is responsible for providing "clear and appropriate" interpretation, outreach to protected parties, compliance reviews, investigation and "vigorous" enforcement of the laws. If OCR becomes aware of a violation (through a complaint or otherwise), it is tasked with working with the violator to come into compliance. If the violator fails to comply, OCR may consider "all legal options available" including termination of relevant funding, funding claw backs, voluntary resolution agreements, and/or referral to the Department of Justice.
Assurances of compliance
Recipients of federal funds from HHS will be required to submit assurances and certifications that it is in compliance with the Federal conscience and anti-discrimination laws. These entities will also be required to maintain records establishing compliance with the laws, and incentivizes (but does not require) entities to post notices about federal health care conscience rights to inform patients or employees. If an entity chooses to provide notice, OCR will consider the posting as "non-dispositive" evidence of compliance with the Federal conscience and anti-discrimination laws when investigating a complaint or conducting a compliance review. HHS has prescribed model language for the notice as follows:
[Name of recipient, the Department, or Department component] complies with applicable Federal conscience and antidiscrimination laws prohibiting exclusion, adverse treatment, coercion, or other discrimination against individuals or entities on the basis of their religious beliefs or moral convictions. You may have the right under Federal law to decline to perform, assist in the performance of, refer for, undergo, or pay for certain health care-related treatments, research, or services (such as abortion or assisted suicide, among others) that violate your conscience, religious beliefs, or moral convictions. If you believe that [Name of recipient, the Department, or Department component] has failed to accommodate your conscientious, religious, or moral objection, or has discriminated against you on those grounds, you can file a conscience and religious freedom complaint with the U.S. Department of Health and Human Services, Office for Civil Rights, electronically through the Office for Civil Rights Complaint Portal, available at https://ocrportal.hhs.gov/ocr/portal/lobby.jsf or by mail or phone at: U.S. Department of Health and Human Services, 200 Independence Avenue SW, Room 509F, HHH Building Washington, DC 20201, 1-800-368- 1019, 800-537-7697 (TDD). Complaint forms and more information about Federal conscience and anti-discrimination laws are available at http://www.hhs.gov/conscience.
If a health care provider is found out of compliance, it must report the noncompliance in any application for federal assistance for three years.
Alabama has its own statute to protect individuals who refuse to participate in health care activities that violate the person's religious beliefs -- Ala. Code § 22-21B-1. In addition to prohibiting discrimination, the statute provides civil and criminal immunity for the health care provider who refuses to perform a health care service with which he/she objects. In order for the protections of the statute to be triggered, the health care provider must provide advance notice of their religious belief, not less than 24 hours prior to being asked to provide the service of which he/she objects.
To read the final federal rule, visit https://www.govinfo.gov/content/pkg/FR-2019-05-21/pdf/2019-09667.pdf.
Angie Smith is a partner at Burr & Forman LLP practicing in the firm's Health Care Industry Group.