By Sheryl Allenson, J.D.
HHS’ new Proposed rule would grant its Office for Civil Rights (OCR) overall responsibility for ensuring that HHS, its components, HHS programs and activities, and those who participate in HHS programs or activities comply with federal health care conscience and associated anti-discrimination laws. The agency noted that the proposed regulation is designed to more effectively and comprehensively enforce those laws (Proposed rule, 83 FR 3880, January 26, 2018).
Existing statutes. OCR already has enforcement authority over federal conscience protection statutes, such as the Church, Coats-Snowe, and Weldon Amendments; Section 1553 of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148); and certain federal nondiscrimination laws that prohibit discrimination on the basis of religion in a variety of HHS programs.
The Trump Administration’s HHS concluded that there is a significant need to amend a rule promulgated by the Obama Administration (76 FR 9968, February 23, 2011) to ensure knowledge, compliance, and enforcement of the federal health care conscience and associated anti-discrimination laws. According to the current proposed rulemaking, the 2011 rule created confusion and narrowed OCR’s enforcement authority.
In its reasoning for the new rulemaking, HHS describes an uptick in the allegations and evidence of discrimination. New state and local laws have also led to suits by conscientious objectors.
Expanded coverage. The Proposed rule will expand that coverage to the following conscience protections:
- objections to counseling and referral for certain services in Medicaid or Medicare Advantage (42 U.S.C. §§1395w-22(j)(3)(B) and 1396u-2(b)(3)(B));
- the performance of advanced directives (42 U.S.C. §§1395cc(f), 1396a(w)(3), and 14406);
- Global Health Programs to the extent administered by the HHS Secretary (22 U.S.C. §7631(d); Consolidated Appropriations Act, 2017, P.L. 115-31, Div. J, Tit. VII, sec. 7018 (Helms Amendment));
- exemptions from compulsory health care or services generally (42 U.S.C. §§1396f & 5106i(a)(1)), and under specific programs for hearing screening (42 U.S.C. §280g-1(d)), occupational illness testing (29 U.S.C. §669(a)(5)); vaccination (42 U.S.C. §1396s(c)(2)(B)(ii)), and mental health treatment (42 U.S.C. §290bb-36(f)); and,
- religious nonmedical health care (e.g., 42 U.S.C. §§1320a–1, 1320c-11, 1395i-5, and 1397j-1(b)).
Each of the federal laws is discussed in more detail in the Proposed rule.
According to the Proposed rule, the OCR will have the authority to initiate compliance reviews, conduct investigations, supervise and coordinate compliance by the HHS and its components, and use enforcement tools which are to be comparable to those available under other civil rights laws to effectively address violations and resolve complaints.
Also under the Proposed rule, certain funding recipients of HHS funds will be required to maintain records, cooperate with OCR’s investigations, reviews, or enforcement actions; submit written assurances and certifications of compliance to HHS, and provide notice to individuals and entities about conscience and associated antidiscrimination rights (as applicable).
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