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HHS Sees More Than 1,100 Comments Per Day on Conscience Rights Proposal

By Steven Porter  
   March 27, 2018

Tuesday is the deadline to comment on the proposed rule, which aims to enhance existing protections for healthcare workers who object to certain medical procedures.

The Department of Health and Human Services (HHS) has received an average of 1,181 comments per day on its proposed rule to bolster protections for the conscientious objections of healthcare workers.

The department had received 69,688 submissions in the 59 days since the comment period opened, as of Monday, according to the online rulemaking portal. The deadline to add a comment to the pile is Tuesday night.

Although the proposal points to more than two dozen existing statutes as the bases for enhanced enforcement by the newly created Conscience and Religious Freedom Division within the HHS Office for Civil Rights (OCR), the matter has proven controversial, with critics warning the policy could impede healthcare access for women and LGBT patients.

Proponents contend, however, that the proposal is sorely needed after eight years of the Obama administration failing to prioritize the rights of healthcare workers to decline participation in certain medical procedures, such as abortion, sterilization, and assisted suicide.

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

In a comment submitted on Monday, the American Hospital Association (AHA) acknowledged the tension between a healthcare worker’s rights of conscience and the healthcare access needs of various patient populations.

The AHA said it both supports policies to accommodate employees’ convictions and opposes discrimination against patients on the basis of race, religion, national origin, sexual orientation, or gender identity.

“The intersection of these equally important obligations can present unique challenges,” AHA Executive Vice President Thomas P. Nickels wrote. “Neither obligation can or should be addressed in a vacuum.”

Accordingly, the way OCR approaches its planned enforcement must take both obligations into account, Nickels added, outlining three main recommendations:

  1. The way HHS OCR enforces these protections should be modeled after the policies, practices, and court precedent governing other civil rights protections. That means OCR should avoid novel policies and practices “that add unnecessary complexity and burden or prefer conscience protections over other civil rights.”
  2. The regulations should be written with explicit protections for due process. The proposed regulations say nothing about procedural protections for organizations who could be penalized as a result of an OCR investigation, so the final version should be updated to include notice and hearing rights, among other protections.

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

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