June 24, 2019
On May 2, 2019, the U.S. Department of Health and Human Services (“HHS”) issued a final rule that clarifies protections available to many health care employees who have religious or moral objections to providing certain kinds of care and treatment. The final rule establishes an investigation and enforcement process for ensuring such employee objections are honored and that employees are not subject to discrimination based upon their protected religious or moral beliefs.
The Final Rule
Federal law has included “conscience rights” for health care workers since 1973 when Congress passed the Church Amendments. The Church Amendments prohibit employment discrimination on the basis of an employee’s unwillingness to perform abortions or sterilizations and include general conscience protection for employees involved in programs and activities funded by HHS. Federal statutes and regulations passed after the Church Amendments also create conscience rights relating to abortions, sterilizations, and euthanasia.
In 2008 the HHS Office for Civil Rights (“OCR”) issued a regulation on the enforcement of three Amendments then in place: the Church, Coats-Snowe, and Weldon Amendments. These amendments address abortion, sterilization and other procedures to which certain employees have religious or moral objections. The 2008 rule faced controversy for being overly broad and was almost entirely rescinded in 2011. The OCR continued to receive and investigate complaints about violations of federal conscience laws; interpretation and enforcement of these conscience rights protections has been unclear however.
The new final rule replaces the 2011 rule and brings together approximately twenty-five conscience protection provisions. It is designed to clarify requirements health care entities must meet to respect conscience rights and to establish a process for enforcing those rights. Covered employees are protected if they object to performing or assisting in the performance of abortion, sterilization, and assisted suicide procedures. Employers also cannot require employees to provide or participate in training related to abortions or to inform or counsel an individual regarding assisted suicide or advance directives. The final rule notes that complaints submitted about gender dysphoria-related surgeries will be considered on a case-by-case basis.
The final rule also provides a more open-ended protection for employees involved with certain federally funded activities. Specifically, health care employees may object to performing or assisting in any part of a health service program or research activity funded wholly or partially by a program administered by the Secretary of HHS if doing so would be contrary to their moral or religious convictions. The final rule broadly defines “assisting in the performance of a procedure” as taking any action that has a specific, reasonable, and articulable connection to furthering the procedure, and includes, but is not limited to, counseling, referral, training, or otherwise making arrangements for the procedure. HHS contends “assisting” includes acts such as scheduling an abortion procedure, preparing the room for such a procedure, driving a person to a scheduled abortion, or delivering the drugs for inducing abortion. This portion of the rule does not affect every service performed by an entity receiving federal funding, and only applies to those procedures that are part of a health service program receiving funding from HHS. The final rule specifies that these protections do not apply to the provision of treatments not receiving funding from HHS, even if the entity receives HHS reimbursements for other treatments.
Employees exercising their conscience rights must not be subjected to discrimination or adverse treatment of any kind as a result. The rule empowers OCR to receive and investigate complaints, conduct compliance reviews when the office suspects non-compliance, and remediate violations. If an investigation or compliance review indicates a failure to comply with conscience protections, OCR will inform the parties and attempt to resolve matters informally when possible. Violations of conscience protections could lead to penalties such as temporarily withholding or termination of federal funding or a referral to the Department of Justice for litigation.
Action for Employers
The final rule goes into effect on July 22, 2019. Health care employers participating in Medicare or Medicaid or otherwise receiving federal funds must respect employees’ rights not to participate in procedures such as abortion, sterilization, and euthanasia or to perform or assist in the performance of any health service program administered by HHS that are contrary to the employee’s religious beliefs or moral convictions. While employers cannot inquire about possible conscience rights issues until after an employee is hired, the final rule allows employers to require current employees to disclose objections once every calendar year if there is a reasonable likelihood that the employee may encounter care that may raise moral or religious concerns. Therefore, employers should update any current conscience policies to ensure compliance with the new file rule. As part of any updated policy, employers may wish to require employees to annually disclose objections to specific procedures that they are reasonably likely to assist or perform. Employers can better plan for for alternate staff or methods with advance knowledge of objections and if necessary, they may exclude the employee from a field of practice to which the employee objects. Carefully review of existing and updated policy language is recommended as some groups have publicly commented that implementation of the rule could lead to discrimination against women and LGBT patients.
Under the final rule, recipients of federal funding must provide an assurance and a certification that they will comply with the conscience laws while receiving federal funds as a condition for any application or reapplication or funds. If a recipient fails to do so, they may be subject to the penalties discussed above (e.g., informal resolution, termination of federal funding, suspended awards, referral to Department of Justice). Recipients of federal funds who the OCR determines are not in compliance must report the finding of noncompliance on any new or renewed application for funding for the following three years. Additionally, employers must maintain records documenting their compliance with conscience laws. These records must be maintained for three years from the date the record was created or obtained and include any information that relates to discrimination on the basis of religious or moral beliefs. Cooperation with compliance reviews and investigations performed by OCR, including producing documents and making premises available for inspection, also is required.
Lastly, employers may choose to voluntarily place a notice informing employees of their rights under the conscience laws. Although such a posting is not required, the OCR will consider such a posting as non-dispositive evidence of compliance provided that the notice meets the specified placement and content criteria laid out in the rule. These criteria include placing the notice on the employer’s website or in a conspicuous physical location. A model notice, which OCR recommends employers use, can be found in Appendix A of the rule: https://www.federalregister.gov/documents/2019/05/21/2019-09667/protecting-statutory-conscience-rights-in-health-care-delegations-of-authority.
If you have questions or need assistance regarding compliance with final rule requirements and other employment laws, please contact a member of Hancock Daniel’s Labor & Employment team.
The information contained in this advisory is for general educational purposes only. It is presented with the understanding that neither the author nor Hancock, Daniel & Johnson, P.C, is offering any legal or other professional services. Since the law in many areas is complex and can change rapidly, this information may not apply to a given factual situation and can become outdated. Individuals desiring legal advice should consult legal counsel for up-to-date and fact-specific advice. Under no circumstances will the author or Hancock, Daniel & Johnson, P.C be liable for any direct, indirect, or consequential damages resulting from the use of this material.
 A coalition of 23 state and local governments have filed a joint lawsuit against the Department of Health & Human Services (HHS), claiming that a recent rule regarding providers’ moral objections to certain medical care in fact infringes upon citizens’ rights to access healthcare.