On February 18, 2011, the Department of Health and Human Services (the “Department”) issued final regulations (the “Final Rule”) on the enforcement of the federal statutory health care provider conscience protections, rescinding most of a 2008 federal regulation designed to protect health care providers who refuse to provide certain health care services based on moral or religious grounds, titled “Ensuring that Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law” (the “2008 Rule”). However, the Final Rule does not alter or change the federal health care provider conscience statutory protections found in the Church Amendments, Section 245 of the Public Health Services Act and the Weldon Amendment (“Provider Conscience Statutory Protections”).
In the commentary to the Final Rule, the Department notes its decision to rescind most of the 2008 Rule was based on the fact that public comments suggested the 2008 Rule created more confusion related to the Provider Conscience Statutory Protections than clarity. As such, the Final Rule leaves the Provider Conscience Statutory Protections (including the right to refuse to perform abortions or sterilizations) and the process for health care workers to file complaints with the Office for Civil Rights intact, but it rescinds all other elements of the 2008 Rule.
Although the Department’s commentary on the Final Rule is careful to note the Department’s support for clear and strong conscience protections for health care providers opposed to performing abortions, and affirmatively states that the Final Rule does not alter or change the Provider Conscience Statutory Protections, the decision to rescind most of the 2008 Rule has caused concern amongst certain Catholic and religious organizations.
The concern generated by Catholic and religious organizations suggests that the 2008 Rule previously may have been incorrectly interpreted to provide stronger protections than provided for in the Provider Conscience Statutory Protections. For example, in the commentary to the Final Rule, the Department clarifies that (i) the 2008 Rule was never intended to allow health care providers to refuse treatment to entire groups of people based on religious or moral beliefs and (ii) the 2008 rule did not intend to include contraception within the scope of the definition of abortion.
The release of the Final Rule coincides with an investigation being conducted by the Centers for Medicare and Medicaid Services into a complaint filed by the American Civil Liberties Union alleging that religiously affiliated hospitals are violating federal law by refusing to provide certain types of care on religious grounds.
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