HHS 'Conscience' Rule Stirs Up Controversy

December 31, 2008 (PLANSPONSOR.com) - The U.S. Department of Health and Human Services (HHS) has published a final rule that affects health care providers, and has stirred up some controversy.

In a  press release announcing the final rule, HHS said the final regulation was designed to protect health care providers from discrimination.   Specifically, HHS said that “the right of federally funded health care providers to decline to participate in services to which they object, such as abortion”, was affirmed by the final regulation, now published in the Federal Register.

“Doctors and other health care providers should not be forced to choose between good professional standing and violating their conscience,” HHS Secretary Mike Leavitt said. “This rule protects the right of medical providers to care for their patients in accord with their conscience.”

Specifically, the final rule:

  • Clarifies that non-discrimination protections apply to institutional health care providers as well as to individual employees working for recipients of certain funds from HHS;
  • Requires recipients of certain HHS funds to certify their compliance with laws protecting provider conscience rights; and
  • Designates the HHS Office for Civil Rights as the entity to receive complaints of discrimination addressed by the existing statutes and the regulation.

HHS officials are charged with working with any state or local government or entity that may be in violation of existing statutes and the regulation to encourage voluntary steps to bring that government or entity into compliance with the law. If, despite the Department’s efforts, compliance is not achieved, HHS officials will consider all legal options, including termination of funding and the return of funds paid out in violation of the nondiscrimination provisions.

Effective Date

The regulation takes effect 30 days after its publication in the Federal Register (December 19 – which means it would normally take effect January 20).   However, HHS components have been given discretion to phase in the written certification requirement by October 1, 2009, the beginning of the 2010 federal fiscal year.

In announcing the regulation, HHS said officials gave careful consideration to all comments received during the public comment period.   Changes reflected from the proposed rule include the reduction of covered entities required to sign certifications of compliance with the regulation, in order to exempt the recipients of HHS funding programs which are unlikely to involve the use Department funds for health services or research activities and, thus, unlikely to be implicated by the statutes and the regulation.

In the preamble to the  final regulation , the Department also encourages providers to engage their patients early on in "full, open, and honest conversations" to disclose what services they do and do not provide.   "While it would strengthen provider conscience rights, the regulation would in no way restrict health care providers from performing any legal service or procedure. If a procedure is legal, a patient will still have the ability to access that service from a medical professional or institution that offers it," according to HHS.

"Many health care providers routinely face pressure to change their medical practice - often in direct opposition to their personal convictions," said HHS Assistant Secretary of Health, Admiral Joxel Garcia, M.D. "During my practice as an OB-GYN, I witnessed this first-hand. Health care providers shouldn't have to check their consciences at the hospital door.   Fortunately, Congress enacted several laws to that end, but too many are unaware these protections exist."

The HHS noted in the  release that Congress has enacted laws to safeguard the freedom of health care providers to practice according to their conscience. It said the new regulation is intended to increase awareness of and compliance with these laws, such as the Church Amendments, the Public Health Service Act and the Weldon Amendment.

Abortion proponents were quick to lambaste the measure.   Speaker of the House Nancy Pelosi (D-California), said, "Make no mistake: this is a direct assault on women's health care and may jeopardize patients' rights to receive quality, comprehensive health care services. Congress will work with President-elect Obama to reverse this rule."  

Senators Hillary Clinton (D-New York) and Patty Murray (D-Washington) have gone so far as to introduce legislation - the Protecting Patients and Health Care Act (S. 20) - to prevent the rule from going into effect.  

"It is outrageous that the Bush administration has chosen in its final days to undermine health care and jeopardize patients' rights," Clinton said. "This regulation threatens access to critical health care services and information, while upending the carefully crafted religious protections for patients and providers already in law. It even allows a provider to refuse care to a patient in an emergency or life-threatening situation."

Said Senator Murray, "This is the kind of desperate, ideologically-driven politics that helped convince Americans it's time for change. And under the next administration and Congress, we will reverse this policy and ensure that the health of patients always comes first. I will work with President-elect Obama to explore every possible option to ensure women continue to have access to the health care they need."