Office of Civil Rights final rule steps up enforcement of conscience and religious rights

The U.S. Department of Health and Human Services Office for Civil Rights  today issued a final conscience rule that protects individuals and healthcare entities from discrimination on the basis of their exercise of conscience in HHS-funded programs.

"There is a problem out there," said Roger Severino, director of the OCR. "People who feel their conscious and religious rights have been violated. We've signaled a new openness and will uphold the law."

The OCR has received complaints, Severino said.

This applies to both patients and providers, he said, including Catholic hospitals in which physicians have said they've felt dissuaded from becoming OB\GYNs because of questions of abortion and life.

The medical conscious of practitioners should be protected, Severino said.

"Conscious and religious freedom ... has been given second class treatment for too long," Severino said.

THE IMPACT

The rule implements full enforcement of approximately 25 provisions passed by Congress protecting long-standing conscience rights in healthcare. 

Federal laws protect providers, individuals and other healthcare entities from having to provide, participate in, pay for, provide coverage of or refer for services such as abortion, sterilization or assisted suicide. It also includes conscience protections with respect to advance directives.

This final rule replaces a 2011 rule that has proved inadequate, the OCR said. It ensures that HHS implements the full set of tools appropriate for enforcing the conscience protections passed by Congress. 

The final rule clarifies what covered entities need to do to comply with applicable conscience provisions and requires applicants for HHS federal financial assistance to provide assurances and certifications of compliance.

Those that receive grants from HHS have to sign civil rights compliance agreements.

The rule also specifies compliance obligations for covered entities, including cooperation with OCR, maintenance of records, reporting and non-retaliation requirements.

It does not exempt religious exemptions under state law.

The rule goes into effect 60 days after publication.

TREND

The final rule fulfills President Trump's promise to promote and protect the fundamental and unalienable rights of conscience and religious liberty, a promise he made when he signed an executive order in May 2017 protecting religious liberty, the OCR said.  In October 2017, the Department of Justice issued guidance encouraging other departments, including HHS, to implement and enforce all relevant religious freedom laws. 

As a result, in January 2018, following the launch of its new Conscience and Religious Freedom Division, HHS announced the proposed conscience rule. 

OCR received over 242,000 public comments which it considered in finalizing the rule.

Today's rule follows a federal court decision last week for a preliminary injunction against a Trump administration gag rule banning family planning providers such as Planned Parenthood, which receive Title X federal funds, from talking about abortion services with patients or from making referrals for such services. The regulations were set to go into effect this week.

ON THE RECORD

"Finally, laws prohibiting government funded discrimination against conscience and religious freedom will be enforced like every other civil rights law," Severino said. "This rule ensures that healthcare entities and professionals won't be bullied out of the healthcare field because they decline to participate in actions that violate their conscience, including the taking of human life. Protecting conscience and religious freedom not only fosters greater diversity in healthcare, it's the law."

Twitter: @SusanJMorse
Email the writer: susan.morse@himssmedia.com