For many years, there have been federal conscience protections for health care entities (including individual and institutional health care providers and facilities) who refuse to perform, accommodate, or assist with abortions or other health care services on religious or moral grounds. In the belief that the enforcement of these conscience protections have been lax in recent years, in January 2018, HHS took three actions to protect these conscience rights.
- CMS issued a guidance letter (SMD: #18-003) to state Medicaid directors that restored state flexibility to decide conscience standards. The guidance letter rescinded an April 2016 guidance letter (SMD # 16-005) that specifically restricted states’ ability to take certain actions against family-planning providers that offer abortion services.
- The HHS Office for Civil Rights (OCR) published a Proposed rule (83 FR 3880) to enforce existing statutory conscience protections for Americans involved in programs receiving HHS federal financial assistance (FAA). The proposed rule, according to HHS, will protect health care providers and facilities from being coerced into participating in activities that violate their consciences, such as abortion, sterilization, or assisted suicide (see HHS proposes protections for ‘conscience rights’ in health care, January 26, 2018).
- HHS announced the creation of a new Conscience and Religious Freedom Division in the Office for Civil Rights (OCR), charged with implementing the proposed regulation as finalized.
These three January 2018 conscience protection measures were foreshadowed by: (1) President Trump’s May 4, 2017, Executive Order (E.O.) entitled "Promoting Free Speech and Religious Liberty" (E.O. 13798, 82 FR 21675, May 9, 2017), which declared that his administration will "vigorously enforce Federal law’s robust protections of religious freedom"; and (1) Attorney General Jeff Session’s October 6, 2017, guidanceand implementing memorandum on religious liberty, which clarified that federal law "protects not just the right to believe or the right to worship; it protects the right to perform or abstain from performing acts in accordance with one’s beliefs."
After providing a historical background on federal conscience rights and protections in health care, this Strategic Perspective will discuss the actions taken and proposed by the Trump Administration regarding conscience protections and their possible effect on HHS and health care entities.
There are approximately 25 federal statutes that protect the conscience rights of health care entities by prohibiting recipients of FFA from discriminating against such entities when they refuse to participate in certain services based on moral objections or religious beliefs. These statutes include the following:
- The Church Amendments (abortion and sterilization). The conscience provisions contained in 42 U.S.C. §300a-7 et seq., collectively known as the "Church Amendments," were enacted in the 1970s to protect the conscience rights of individuals and entities that object to performing or assisting in the performance of abortion or sterilization procedures. This protection also extends to personnel decisions and prohibits discrimination against any physician or other health care personnel in employment because the individual either performed or refused to perform an abortion if doing so would be contrary to the individual’s religious beliefs or moral convictions.
- The Coates-Snowe Amendment (Public Health Service Act §245) (abortion training). Enacted in 1996, section 245 of the Public Health Service Act (PHSA), contained in 42 U.S.C. §238(n), prohibits the federal government and any state or local government receiving FFA from discriminating against any health care entity on the basis that it: (1) refuses to undergo training in the performance of induced abortions, require or provide such training, perform such abortions, or provide referrals for such training or such abortions; (2) refuses to make arrangements for such activities; or (3) attends a post-graduate physician training program, or any other program of training in the health professions, that does not perform induced abortions or require, provide, or refer for training in the performance of induced abortions, or make arrangements for the provision of such training.
- The Weldon Amendment (abortion). The Consolidated Appropriations Act, 2000 (P.L. 111-117,123 Stat 3034, originally passed as part of the HHS appropriation and readopted in each subsequent HHS appropriations act since 2005), provides that "[n]one of the funds made available in this Act may be made available to a Federal agency or program, or to a state or local government, if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions."
- The Affordable Care Act (abortion). The Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) includes health care provider conscience protections within the health insurance Exchange program. Section 1303(b)(4) of the ACA provides that "No qualified health plan offered through an Exchange may discriminate against any individual health care provider or health care facility because of its unwillingness to provide, pay for, provide coverage of, or refer for abortions." Executive Order 13535, issued by President Obama on March 24, 2010, affirmed that under the ACA, longstanding federal health care provider conscience laws remain intact, and new protections prohibit discrimination against health care facilities and health care providers based on their unwillingness to provide, pay for, provide coverage of, or refer for abortions.
- The Affordable Care Act (assisted suicide). Section 1553 of the ACA (42 U.S.C. §18113) incudes conscience protections regarding assisted suicide. "The Federal Government, and any State or local government or health care provider that receives Federal financial assistance under this Act…or any health plan created under this Act…, may not subject an individual or institutional health care entity to discrimination on the basis that the entity does not provide any health care item or service furnished for the purpose of causing, or for the purpose of assisting in causing, the death of any individual, such as by assisted suicide, euthanasia, or mercy killing."
Obama Administration Actions
Actions taken by the Obama Administration include:
2011 Final rule. On February 23, 2011, HHS issued a Final rule (76 FR 9968) providing that the enforcement of the federal statutory health care provider conscience protections will be handled by the HHS OCR. The 2011 Final rule specifically provides that the OCR must enforce the health care provider conscience protection statutes, including the Church Amendments, the Coates-Snowe Amendment, and the Weldon Amendment. The 2011 rule, however, limits the OCR duties to simply receiving and coordinating the handling of complaints under the respective statutes (45 C.F.R. secs 88.1 and 88.2).
2016 guidance to state Medicaid directors. On April 19, 2016, CMS’ Center for Medicaid and CHIP Services (CMCS) and Center for Program Integrity (CPI) jointly issued a guidance letter to state Medicaid directors (SMD # 16-005) clarifying the "free choice of provider" requirement contained in Soc. Sec. Act §1902(a)(23)) in conjunction with state authority to take action against Medicaid providers (States warned not to exclude qualified providers, especially family planning, April 20, 2016).
The regulations implementing the "free choice of provider" requirement (42 C.F.R. sec. 431.51 (b)(1)) require a state plan to allow a beneficiary to obtain Medicaid services from any institution, agency, pharmacy, person, or organization that is (1) qualified to furnish services; and (2) willing to furnish them to that particular beneficiary.
According to the 2016 CMS guidance letter, the "free choice of provider" provision is specific with respect to the free choice of family planning providers. As such, the letter instructed the states not to deny qualification to family planning providers, or take other action against qualified family planning providers, that would affect beneficiary access to those providers (whether individual, groups, outpatient clinics or hospitals) solely because they separately provide family planning services or the full range of legally permissible gynecological and obstetric care, including abortion services.
The letter concluded that "Providing the full range of women’s health services neither disqualifies a provider from participating in the Medicaid program, nor is the provision of such services inconsistent with the best interests of the beneficiary, and shall not be grounds for a state’s action against a provider in the Medicaid program."
Trump Administration Actions
The Trump Administration has taken the following actions:
2018 guidance to state Medicaid directors. On January 19, 2018, CMCS and CPI issued a guidance letter (SMD: #18-003) to state Medicaid directors rescinding the April 19, 2016 guidance letter (SMD #16-005) and clarifying the "free choice of provider" provision in Soc. Sec. Act §1902(a)(23). In the January 2018 guidance letter, the agencies expressed their concern that the 2016 letter limited state flexibility with regard to establishing reasonable Medicaid provider qualification standards. The 2016 letter had said that states that attempted to protect the integrity of their program standards by disqualifying abortion providers from their Medicaid programs would come under CMS scrutiny and would be required to present to CMS evidence of criminal action or unfitness to perform health care services by a disqualified abortion provider. The 2018 letter expressed CMS’ concern that the 2016 letter may have gone beyond merely interpreting what the statute and current regulations require. The 2018 letter returned CMS policy to what it was prior to the issuance of the 2016 letter. States continue to be required to comply with all applicable statutory and regulatory requirements, including the requirement that provider qualification standards be reasonable.
2018 Proposed rule. On January 26, 2018, the HHS OCR published aProposed rule designed to more effectively and comprehensively enforce the federal health care conscience and associated anti-discrimination laws. The 2018 Proposed rule goes beyond the 2011 Final rule, which merely designated the OCR to receive and coordinate the handling of complaints. It would, instead, grant the OCR overall responsibility for ensuring that HHS and its component agencies, programs, and activities, and those who participate in HHS programs or activities, comply with these federal laws.
To underscore this increase responsibility, the proposed regulations at 45 C.F.R. sec. 88.1 read: "Consistent with their objective to comprehensively protect the conscience and associated anti-discrimination rights of persons, entities, and health care entities, the statutory provisions and the regulatory provisions contained in this part are to be interpreted and implemented broadly to effectuate their protective purposes."
In addition to providing definitions of key terms and phrases, such as discrimination, federal financial assistance, health care entity, health program or activity, recipient, referral, sub-recipient, and workforce (proposed 45 C.F.R. sec. 88.2), the Proposed rule describes the specific requirements and prohibitions of 25 separate federal conscience statutes (proposed 45 C.F.R. sec. 88.3). Of particular significance to enforcement are the proposed new definitions of the terms "discrimination" and "health care entity":
- "Discrimination" (under proposed 45 C.F.R. sec. 88.2) will include "to withhold, reduce, exclude, terminate, restrict, or otherwise make unavailable or deny any benefit or privilege." This will mean that a state law requiring a health insurer to provide abortion coverage in its health plans would be discriminatory because it would prevent a church or any secular employer who is unwilling to pay for abortion coverage the chance to buy a health insurance policy for its employees at all. This is important because churches that have filed court actions based on freedom of religion and equal protection claims against states requiring their health plans to include abortion coverage have not been successful (see California churches fall short in proving religious discrimination over abortion rules, September 7, 2017).
- The definition of "health care entity" (under proposed 45 C.F.R. sec. 88.2) includes a "health insurance plan," under which HHS includes the sponsors, issuers, and third-party administrators of health care plans or insurance. The Weldon Amendment specifically includes in its definition of the term "health care entity" "a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of . . . plan" and protects such health care entities from being subject to discrimination on the basis that they do not provide, pay for, cover, or refer for abortions. Thus, to ensure that Congress’ explicit protection for health insurance plans and health care organizations is fully enforced, HHS considers it appropriate to include plan sponsors not primarily engaged in the business of health care within the definition of "health care entity" for purposes of the proposed regulation. This would include churches and secular commercial enterprises.
In addition to conducting outreach and providing technical assistance, the Proposed rule would give the OCR authority to receive and handle complaints, initiate compliance reviews, conduct investigations, supervise and coordinate compliance by HHS and its component(s), and use enforcement tools comparable to those available under other civil rights laws to more effectively address violations and resolve complaints, including referral for prosecution to the Department of Justice, and other remedial actions to overcome the effects of violations of federal health care conscience laws and associated anti-discrimination laws (proposed 45 C.F.R. sec. 88.7).
To ensure that recipients of HHS funds comply with their legal obligations, as it does with other civil rights laws within its purview, the Proposed rule will require certain funding recipients to maintain records (proposed 45 C.F.R. sec. 88.6(b)); cooperate with the OCR’s investigations, reviews, or enforcement actions (proposed 45 C.F.R. sec. 88.6(c)); submit written assurances and certifications of compliance to HHS (proposed 45 C.F.R. sec. 88.4); and provide notice to individuals and entities about conscience and associated anti-discrimination rights (proposed 45.C.F.R. sec. 88.5).
New OCR division announced. The Proposed rule followed the announcement of a new Conscience and Religious Freedom Division in OCR, charged with implementing the proposed regulations as finalized. In announcing the new division, the OCR Director Roger Severino said:
"Laws protecting religious freedom and conscience rights are just empty words on paper if they aren’t enforced. No one should be forced to choose between helping sick people and living by one’s deepest moral or religious convictions, and the new division will help guarantee that victims of unlawful discrimination find justice. For too long, governments big and small have treated conscience claims with hostility instead of protection, but change is coming and it begins here and now."
"The rule likely will lead to increased scrutiny from OCR and the newly formed Conscience and Religious Freedom Division. The Washington Posthas quoted OCR Director Roger Severino about the more than three-fold increase in the number of worker complaints related to moral and religious beliefs since President Trump’s election. Severino stated that a career senior executive will be appointed to investigate such issues. Under the rule, OCR would have the authority to initiate compliance reviews, conduct investigations, coordinate compliance, and use enforcement tools comparable to those available under other civil rights laws."
"Once finalized, the rule will have an immediate impact on how health care providers assign employees, discipline for failures or refusals to perform certain services, and accommodate religious and moral beliefs. The requirements may give rise to issues that will need to be addressed in collective bargaining agreements. While we expect there to be legal challenges to the rule, employers should be prepared to both address employee concerns about providing services to which they have conscience objections, and to create alternative plans for treatment when such concerns are raised."
Louise Melling, Deputy Legal Director at the American civil Liberties Union, had the following reaction to the Proposed rule:
"Religious liberty doesn’t include a right to be exempt from laws protecting our health or barring discrimination. It doesn’t mean a right to refuse to transport a patient in need because she had an abortion. It doesn’t mean refusing care to a patient because she is transgender. Medical standards, not religious belief, should guide medical care. Denying patients health care is not liberty. Choosing your patients based on their gender or gender expression is not freedom. Should the administration choose to move forward to implement a discriminatory policy, we will see them in court."
Dawn Laguens, Executive Vice President of Planned Parenthood Federation of America stated:
"This proposed rule flies in the face of equality and common sense. It’s one more egregious example of the Trump-Pence administration putting people’s lives at risk to further an extreme ideological agenda, and we condemn it."
"This broad rule could mean that a woman is denied the ability to access an abortion, even though she should legally be able to do so. A patient could be denied birth control simply because their pharmacist or doctor doesn’t believe they should be able to take it. This rule could mean that a family is unable to get quality medical care for their child because the parents happen to be lesbians, or that a transgender person is unable to get basic medical care because of their gender identity. Patients’ health care will suffer if this becomes law."
According to the Washington Post, Montse Alvarado, executive director of the Becket Fund for Religious Liberty, a nonprofit law firm, blames Obama-era officials for "forcing Americans to choose between their beliefs and their livelihood."
Gretchen Borchelt, National Women’s Law Center Vice President for Reproductive Rights and Health stated:
"The Trump Administration is once again attempting to enshrine boldfaced discrimination – this time to prevent patients from receiving health care. This proposed rule would recklessly, callously, and illegally broaden existing laws to allow doctors, nurses, insurance plans, hospitals – and nearly any other employee in health care settings that receive any federal funds – to use their religious or moral beliefs to determine the essential care a patient receives. This latest move to roll back the rights of women, LGBTQ people, and others puts their health and lives on the line. We will be prepared to take whatever action is necessary to ensure patients come first – not one set of religious or moral beliefs."
House Majority Leader Kevin McCarthy (R-Cal.), who spoke at the HHS announcement of the new OCR Division on Conscience and Religious Liberty, stated:
"We face today a time of rising religious persecution. It’s not violent. It’s not done in the name of God. But it is a new orthodoxy, and it is intolerant of dissent. Nuns have been forced to put aside their lives of service to the elderly and the sick and have to go to court, humbly requesting that they not be required to pay for practices that end the lives of children. In my own state of California, pregnancy centers devoted to saving lives are forced, against their deepest beliefs, to advertise for an abortion industry bankrolled by the state."
"Now, in the past, this department’s silent refusal to defend our rights sent a very clear message: Now is not the time for freedom, it is time for you to conform. What a difference a year makes. This same agency is now opening a Conscience and Religious Freedom Division within its Office of Civil Rights devoted to nothing more than treating people fairly and with justice."
While the protection of conscience rights in health care has been a contentious issue in recent years as can be seen by the commentary of various interested parties, the January 2018 actions by the Trump Administration may have intensified these feelings.
According to its proponents, the Proposed rule, modelled on existing regulations for other civil rights laws, simply provides practical protections for Americans’ conscience rights in the health care arena. The laws undergirding the proposed regulation have been in existence for many years, and include the Coats-Snowe, Weldon, and Church Amendments, as well as parts of Medicare, Medicaid, the ACA, and others (25 statutes in total). Proponents contend that the HHS actions merely give life to these federal laws through the creation of an enforcement division at OCR and proposing regulations that will formally require the OCR to take certain actions rather than just acting as a repository to receive and coordinate the handling of complaints.
The proposed health care conscience rules will not only provide protections for individual and institutional health care providers and facilities, they will give employers and other health plan sponsors that want to purchase group health insurance without abortion coverage the right to file complaints with the OCR challenging the state insurance rules that require abortion coverage in their policies. Under the proposed regulations, the OCR may be able to require states to face the choice of either allowing the sale of health insurance without abortion coverage or lose their FFA for health care programs like Medicaid.
The proposed regulations do not overturn state laws requiring abortion coverage in state health plans. As such, if the regulations are finalized, health insurers may be faced with the choice of either violating state insurance laws that require abortion coverage or the federal conscience protection regulations. If faced with a charge of violating federal conscience laws, a health insurer may be able to argue to the OCR that it is only responsible for its voluntary actions and should not be deemed to have committed a voluntary violation of federal conscience protections when the state forced it to provide abortion coverage in its health plan.
Attorneys: Nathaniel M. Glasser (Epstein, Becker & Green, P.C.).
Companies: Becket Fund for Religious Liberty; National Women’s Law Center; Planned Parenthood Federation of America; American Civil Liberties Union
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