HHS Issues Regulations Protecting Against Religious Discrimination in Health Care

On May 2, 2019, the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) issued new guidelines expanding the provider conscience rule for health care workers and entities participating in federally funded programs. The "conscience rule" allows individuals and entities to refuse to perform, accommodate, or assist with certain health care services, such as birth control, abortions, or sterilization procedures, on religious or moral grounds.

The new protections, effective 60 days following pending publication in the federal register, apply to physicians, pharmacists, nurses, teachers, students and faith-based charities, among others. The Department delegated enforcement and compliance responsibility to the OCR and updated the Office's mission statement to highlight its focus on protecting religious freedom.

The final rule implements approximately 25 federal conscience protection laws. In a statement issued by HHS on Thursday, it explained "this final rule clarifies OCR's authority to initiate compliance reviews, conduct investigations, supervise and coordinate compliance by the Department and its components, and use enforcement tools otherwise available in existing regulations to address violations and resolve complaints." The rule also requires certain recipients of federal funds:

  • To submit assurances and certifications to HHS that they are in compliance with federal health care conscience laws.

  • To fully comply with the requirements of federal conscience laws.

  • To keep records to establish compliance.

  • To cooperate with OCR's enforcement activities.

  • Not to intimidate or retaliate against those who file complaints with OCR, alleging violations of federal conscience laws, or cooperate with OCR investigations of such complaints.

  • The rule incentivizes, but does not require, recipients of HHS funds to post notices of federal health care conscience rights, or otherwise inform patients or employees, of such rights, where applicable.

See Final Rule Fact Sheet, found here.

It is important to note that the rule applies to all health care workers, even those that are not directly performing procedures, as long as they have an "articulable connection" to a procedure.

For more information about the new federal conscience protections and how they apply to your business, please contact Julie Shank, Brock Malcolm or any member of the Bowles Rice Health Care Group.