On May 22, 2019, the federal Department of Health and Human Services (HHS) published a final rule that is intended to protect “individuals and health care entities from discrimination on the basis of their exercise of conscience in HHS-funded programs.” The announcement from HHS states that it fulfills “President Trump’s promise to promote and protect the fundamental and unalienable rights for conscience and religious liberty.”
The rule broadly defines “health care entity” as including individual health care providers and personnel, applicants and participants in training programs in the health professions, hospitals, medical laboratories, research facilities, pharmacies “or any other health care provider or health care facility.”
The rule has various prohibitions depending upon the type of funding received (including funding via grants, contract, or loans under various statutes). From an employment perspective, it generally prohibits discriminating against individuals who:
Perform or assist in sterilization or abortion procedures, or who object to performing or assisting in such procedures, if such performance or assistance would be contrary to the person’s religious beliefs or moral convictions;
Perform or assist in lawful health service or research activity, or who object to performing or assisting in such activity, if such performance or assistance would be contrary to the person’s religious beliefs or moral convictions;
Do not perform or assist in the performance of activities that lead to death such as by assisted suicide, euthanasia, or mercy killing.
The rule also provides that applicable facilities are not required to provide sterilization or abortion services if the performance of such services would violate the recipient’s religious beliefs or moral convictions. Similarly, health care entities are not required to provide services that lead to death such as by assisted suicide, euthanasia, or mercy killing.
In addition, the rule provides that individuals and entities are not authorized to provide medical examinations, immunization, or treatment for those who object to those activities on religious grounds, except where services are necessary to protect the health or safety of others. In this regard, another part of the rule provides that parents are not required to provide medical services or treatment that is against the religious beliefs of the parent or guardian, although states are permitted to find child abuse or neglect where parents or guardians rely upon spiritual healing, rather than medical treatment.
Rights of Individual Employees
Employees who are covered by the rule are given very broad protections. In essence, the health care entity cannot take an action against someone protected by the rules that would adversely affect that individual. Among other things, the rule makes it discriminatory to “withhold, reduce, exclude from, terminate, restrict or make unavailable or deny any benefit or privilege or impose any penalty” against such individuals.
Furthermore, an individual may object not only to the actual performance of treatment, research, activity, etc. but to situations where there is a “reasonable likelihood” that the person or entity may be asked to perform, participate or assist in such activities.
Any effort by the health care entity to accommodate the objector must be accepted “voluntarily.”
The rule provides that, in determining compliance, the HHS Office of Civil Rights will consider whether the entity posted a notice with the applicable substantive provisions of the rule. Furthermore, where the notice is posted will be given consideration (including websites; conspicuous places where the public and employees can see them; and personnel and student manuals) and how they are posted (e.g., with type large enough and easy enough to read). A model text is provided with the rule.
Records relating to compliance with the rule, include requests for accommodations, must be maintained for three years.
Future of the Rule
The rule is set to go into effect on July 22, 2019. As of this writing, however, at least two lawsuits have been filed seeking to block the rule. One lawsuit, filed in Illinois, was joined by over 20 other states, cities, and counties. California filed its own lawsuit. The lawsuits contend that the health and safety of vulnerable populations would be adversely affected based on personal objections.
Health care providers need to pay attention to whether preliminary injunctive relief is entered in either case, which would apply to their entity. If not, they need to be prepared to comply with the rule effective July 22.
Unless the rule is enjoined, covered entities should prepare for compliance. This would include:
Obtaining the model notice and determining where to post it.
Making arrangements to include the notice in applicable handbooks.
Reviewing existing policies relating to religious and moral objections to treatment and services to ensure they comply with the rule.
Ensuring that responsible personnel are familiar with the record-keeping requirements.
Training key personnel on the requirements of the rule so that they are ready to address objections and requests for accommodation.