HHS Issues Final Regulation To Protect Health Care Providers From Discrimination

The right of federally funded health care providers to decline to participate in services to which they object, such as abortion, is affirmed by a final regulation that has been issued by the U.S. Department of Health and Human Services (HHS) and is on display today at the Federal Register.

Regulation To Protect Health Care Providers

Over the past three decades, Congress enacted several statutes to safeguard the freedom of health care providers to practice according to their conscience. The new regulation will increase awareness of, and compliance with, these laws. "Doctors and other health care providers should not be forced to choose between good professional standing and violating their conscience," HHS Secretary Mike Leavitt said. "This rule protects the right of medical providers to care for their patients in accord with their conscience."

Specifically, the final rule:

Clarifies that non-discrimination protections apply to institutional health care providers as well as to individual employees working for recipients of certain funds from HHS;

Requires recipients of certain HHS funds to certify their compliance with laws protecting provider conscience rights; and

Designates the HHS Office for Civil Rights as the entity to receive complaints of discrimination addressed by the existing statutes and the regulation.

HHS officials are charged with working with any state or local government or entity that may be in violation of existing statutes and the regulation to encourage voluntary steps to bring that government or entity into compliance with the law. If, despite the Department's efforts, compliance is not achieved, HHS officials will consider all legal options, including termination of funding and the return of funds paid out in violation of the nondiscrimination provisions. The rule has gone on display at the Federal Register and is available here. The regulation takes effect 30 days after its publication tomorrow, Dec. 19, in the Federal Register. However, HHS components have been given discretion to phase in the written certification requirement by October 1, 2009, the beginning of the 2010 federal fiscal year.

HHS officials gave careful consideration to all comments received during the public comment period. The final rule summarizes the breadth and scope of the comments received and articulates the Department's responses to them. Changes to the proposed rule include the reduction of covered entities required to sign certifications of compliance with the regulation, in order to exempt the recipients of HHS funding programs which are unlikely to involve the use Department funds for health services or research activities and, thus, unlikely to be implicated by the statutes and the regulation. In the preamble to the final regulation, the Department also encourages providers to engage their patients early on in "full, open, and honest conversations" to disclose what services they do and do not provide. While it would strengthen provider conscience rights, the regulation would in no way restrict health care providers from performing any legal service or procedure. If a procedure is legal, a patient will still have the ability to access that service from a medical professional or institution that offers it. For example, the regulation does not affect the ability of medical institutions to provide abortion services in accordance with the law.

The comments consistently bore out the necessity of the regulation to implement the statutes enacted by Congress. Many commenters exhibited a lack of understanding of these laws. Others articulated a general knowledge that conscience protections exist for providers, but the scope of these protections was not always widely understood. Still other comments came from health care workers relating personal experiences of what they perceived to be discrimination on the basis of their personal or religious beliefs. "Many health care providers routinely face pressure to change their medical practice - often in direct opposition to their personal convictions," said HHS Assistant Secretary of Health, Admiral Joxel Garcia, M.D. "During my practice as an OB-GYN, I witnessed this first-hand. Health care providers shouldn't have to check their consciences at the hospital door. Fortunately, Congress enacted several laws to that end, but too many are unaware these protections exist."

Federal protection of provider conscience rights dates back to the 1970s, when Congress enacted the Church Amendments. The Amendments protect health care providers and other individuals from discrimination by recipients of HHS funds on the basis, among other things, of their refusal, due to religious belief or moral conviction, to perform or participate in any lawful health service or research activity.

In 1996, Congress prohibited federal, state or local governments from discriminating against individual and institutional health care providers (including participants in medical training programs) who refused to, among other things, receive training in abortions; require or provide such training; perform abortions; or provide referrals for, or make arrangements for, such training or abortions.

Provider conscience protections were expanded again as part of the Department's fiscal year 2005 appropriations act. In that law, and in subsequent years' appropriations acts, Congress prohibited the provision of HHS funds to any state or local government or federal agency or program that discriminates against institutional or individual health care entities on the basis that the entity does not provide, pay for, provide coverage of, or refer for abortion.

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