Health Law Daily Rule allows health workers to refuse to participate in abortion, assisted suicide procedures
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Friday, May 3, 2019

Rule allows health workers to refuse to participate in abortion, assisted suicide procedures

By Cathleen Calhoun, J.D.

Moral and religious objectors can say "no" to participation in certain health services more easily under a final rule, but who’s covered and what needs to be done to comply?

Health service employees are allowed, under a final rule, to refuse to provide services such as abortion, sterilization, and assisted suicide, if they note that the refusal is based on their moral and religious beliefs. The final rule also requires certain persons to follow procedural and administrative requirements that have the stated goal of improving compliance with federal conscience and anti-discrimination laws. Specifically, the rule (1) revises existing regulations to ensure enforcement of federal conscience and anti-discrimination laws applicable to HHS, its programs, and recipients of HHS funds, and (2) delegates overall enforcement and compliance responsibility to the HHS Office for Civil Rights (OCR).

Individuals and entities. Under the rule, where federal funds are in play, the rule covers:

  1. Health care entities and employees who have conscience or religious objections related to performing, paying for, referring, providing coverage of, or providing certain services.
  2. Health care professionals who decline to receive training in abortions or who attend medical schools that do not require abortion training, and applicants for training or study who have conscience or religious beliefs relating to assisting or recommending abortions or sterilizations.
  3. Individuals in a health service or research activity funded by an HHS program, where they decline to perform or assist in part of that program because of sincere religious beliefs or moral convictions.
  4. Patients who object to certain procedures, including screenings and mental health treatment of children or occupational illness testing, and in other specific instances set forth by Congress.

Covered institutions and entities. The rule applies to:

  1. Federal agencies and programs, and state and local governments receiving federal funds, as well as certain federally funded entities.
  2. Other entities, including: HHS, state and local governments, public and private health providers that receive HHS funds, universities and schools that provide health care training, and individuals receiving taxpayer dollars from HHS or through particular programs administered by HHS for health care services, insurance, provider licensing, and research, including through Medicare, Medicaid, Global Health Programs, the Patient Protection and Affordable Care Act (ACA), the Public Health Service Act, and HHS’s annual appropriations acts.

ACA. The final rule specifically addresses the ACA. For example, the rule states that entities must not construe anything in the ACA to require a qualified health plan to provide coverage of abortion or abortion-related services as part of its essential health benefits for any plan year.

Compliance requirements. With certain exceptions, every application for approval, renewal, or extension of any applicable federal financial assistance or federal funds from the Department must also contain an assurance and a certification that the applicant or recipient will comply with applicable federal conscience and anti-discrimination laws and the final rule. Applicants or recipients must submit the assurance and the certification in a form and manner that OCR specifies, or must submit them in a separate writing signed by the applicant’s or recipient's officer or another authorized person.

Notices, recordkeeping, and other topics. When investigating a complaint or conducting a compliance review, OCR will consider an entity’s voluntary posting of a notice of nondiscrimination, and other steps, as evidence of compliance. HHS, each funding recipient, and each sub-recipient must maintain complete and accurate records showing evidence of compliance with federal conscience and anti-discrimination laws and the final rule. Records must be kept for 3 years. Complaints, compliance reviews, and investigations, among other topics, are also outlined in the rule. "Appendix A," at the end of the rule, provides sample text of a notice of rights under federal conscience and antidiscrimination laws.

The rule goes into effect 60 days after it is published in the Federal Register, and publishing is currently pending.

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