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Analysis

Final Rule Bolsters Providers' Right to Refuse Services They Deem Objectionable

By Steven Porter  
   May 02, 2019

While some have praised the policy as a necessary step to protect healthcare workers from discrimination, others worry it will lead to more discrimination for certain patient groups.

A final rule issued Thursday by Health and Human Services (HHS) aims to protect healthcare providers' right to refrain from participating in abortion and other services that may violate the person's or entity's conscience or religious views.

The controversial policy was proposed more than a year ago after the HHS Office for Civil Rights (OCR) launched its Conscience and Religious Freedom Division to ramp up enforcement of existing legal protections. While some religious groups have praised the policy, other groups have worried the change will lead to more discrimination against women and LGBT patients.

The rule enforces more than two dozen provisions already on the books, guarding the rights of individuals and organizations to decline to participate in, pay for, cover, or even refer for abortion, sterilization, assisted suicide, and other procedures. The rule overrides a 2011 version that the Trump administration regards as inadequate to enforce these conscience protections.

"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," said HHS OCR Director Roger Severino in a statement. "Protecting conscience and religious freedom not only fosters greater diversity in healthcare, it's the law."

Related: HHS Policy Pendulum Swinging Back Toward Providers' Rights of Conscience

Related: What 7 Healthcare Execs Said About the HHS Freedom of Conscience Proposal

Related: HHS Launches Conscience and Religious Freedom Division

The National Health Law Program, however, said the rule will harm the health of groups that are already underprivileged.

"There are already problematic federal exemptions on the books. Trump is dangerously expanding them to allow providers and institutions to deny women, LGBTQ individuals, and others medically necessary care that is based in science and rigorous research," NHLP Reproductive and Sexual Health Director Susan Berke Fogel said in a statement. "People with the least resources will be most harmed by these rules if such a broad range of providers and other entities are allowed to deny access to comprehensive quality care based on their personal religious beliefs."

The new rule modified several key definitions, including those for "discrimination," "refer" or "referral," "healthcare entity," and "assist in the performance of."

Some who commented on the proposed rule raised concerns that the phrase "assist in the performance of" could give healthcare workers too much leeway to impede a patient's healthcare decisions. Emergency medical technicians, for example, might decline to provide ambulance transportation in certain circumstances, the commenters said. In response, HHS said an EMT being asked to transport someone to a hospital or clinic for a scheduled abortion could constitute a request to "assist in the performance of" an abortion.

The Office of Management and Budget (OMB) dashboard, which tracks executive agency rulemaking, still listed the HHS OCR final rule as pending OMB review Thursday afternoon, even after Severino hosted a press call about the announcement. A spokesperson for HHS OCR told HealthLeaders that OMB has completed its regulatory review. [Update: The rule was no longer listed on the OMB dashboard Friday morning.]

When asked during the press call when the final rule would be published in the Federal Register, Severino said "very, very soon." It will take effect 60 days thereafter. The document itself notes that it "may vary slightly from the published document if minor editorial changes are made during" the Office of the Federal Register's review process.

The HHS OCR spokesperson said the announcement was made to coincide with President Donald Trump's participation in a National Day of Prayer event Thursday in the White House Rose Garden "because of his steadfast commitment to the religious freedom of people of all faiths." This was the third time Trump has used the annual multifaith event to make announcements responsive to concerns of religious conservatives, as The Washington Post's Ariana Eunjung Cha and Sara Pulliam Bailey reported.

In preparing the final rule, HHS OCR officials have hosted at least six meetings in the past month with various stakeholders, including supporters and opponents of abortion rights, according to records maintained by the OMB Office of Information and Regulatory Affairs (OIRA). Those stakeholders have included Planned Parenthood, the Alliance Defending Freedom, Americans United for Life, the New York City mayor's office, the National Catholic Bioethics Center, and the Institute for Policy Integrity at the New York University School of Law.

The final rule includes responses to more than 242,000 public comments on the proposal. Those comments included stories of healthcare workers being coerced and discriminated against for potentially protected objections, according to HHS OCR.

"With this final rule, the Department seeks to educate protected entities and covered entities as to their legal rights and obligations; to encourage individuals and organizations with religious beliefs or moral convictions to enter, or remain in, the health care industry; and to prevent others from being dissuaded from filing complaints due to prior OCR complaint resolutions or sub‐regulatory guidance that no longer reflect the views of the Department," the final rule, as presented by HHS OCR, states.

The office released a three-page fact sheet to summarize the 440-page final rule.

Editor's note: This story was updated Thursday to include a comment from an HHS OCR spokesperson and from the National Health Law Program. The story was updated Friday to include additional detail from the final rule.

Steven Porter is an associate content manager and Strategy editor for HealthLeaders, a Simplify Compliance brand.

Photo credit: The homepage of the official website for the United States Department of Health and Human Services. (Editorial credit: chrisdorney / Shutterstock.com)


KEY TAKEAWAYS

The Trump administration says it's stepping up enforcement of existing laws that went underutilized during the Obama administration.

Critics content the change will lead to more discrimination against low-income women and LGBT people.

The announcement was made to coincide with the White House's observance of the National Day of Prayer.


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