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

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.

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:

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.”
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.

The regulatory burden should be minimized. The breadth of the proposed rule is “problematic,” the AHA wrote, citing specific examples of particularly burdensome provisions. Therefore, the proposal to require hospitals to report reviews, investigations, and complaints to HHS should be scrapped, the organization argued.

The full AHA comment is available on the organization’s website, but the government had not released any of the comments publicly as of Tuesday morning.

An HHS OCR contractor tasked with handling media inquiries about the proposed rule told HealthLeaders Media in early February that the comments would be made public before the end of the comment period. Earlier this month, however, the contractor said plans had changed and the comments would likely not be published until after the comment window closed.

Late last year, HHS drew heavy criticism for withholding more than 10,000 public comments on a separate request for information pertaining to abortion and healthcare for transgender patients, as Politico reported. At first, only 80 comments were released publicly, most of them supporting the Trump administration’s position.

During an interview earlier this month with Catholic radio show Doctor, Doctor, HHS OCR outreach adviser Arina Grossu assured stakeholders that their feedback would be handled properly.

“All the comments will be read and taken into account,” Grossu said. “And this is a proposed regulation, which means that once we review the comments that we receive, we will incorporate information into the final rule.”

When asked about concerns that enhancing protections for healthcare workers could lead to more discrimination against LGBT patients, Grossu said anyone is welcome to file complaints with HHS OCR if they believe their rights of conscience, civil rights, or health information privacy rights have been violated.

“These federal laws were put in place to prohibit discrimination and are not themselves discriminatory,” she said. “They actually protect people from being discriminated against.”