HHS Issues Final Rule for Conscience Rights in Health Care

Date posted: June 14, 2019

The Department of Health and Human Services (HHS) Office for Civil Rights (OCR) recently issued a final rule that clarifies and expands OCR’s authority to enforce conscience rights protections as prescribed under federal statutes.  The final rule entitled “Protecting Statutory Conscience Rights in Health Care,” seeks to prevent discrimination against individuals and health care entities for exercising conscience-based decisions in HHS funded programs.  The rule replaces existing regulations from the 2011 rule on the subject.  Through the rule, HHS implements and outlines enforcement authority related to approximately 25 provisions from federal laws that Congress passed to protect conscience rights in health care.  The provisions implemented under the final rule include protections for providers, individuals, and other health care entities from having to provide, participate in, pay for, provide coverage for, or refer services including abortion, sterilization, or assisted suicide.

The final rule also implements enforcement tools that Congress granted to HHS, and which HHS then delegated to OCR, to protect conscience rights, including the authority to investigate complaints, initiate compliance reviews, and refer cases to the Department of Justice.  If OCR finds that a covered entity under the regulations is out of compliance, it may work with the covered entity to implement corrective actions.  If the covered entity fails to comply, OCR and the covered entity’s funding source, where they have the legal authority to do so, can withhold or claw back federal funds.

HHS clarifies actions that recipients of HHS funds must take to comply with applicable conscience provisions, including providing assurances and compliance certifications, cooperating with OCR investigations, and complying with provisions related to the maintenance of records, reporting, and non-retaliation.  The final rule encourages HHS fund recipients to post notices of federal health care conscience rights, or otherwise inform patients and employees of such rights.  OCR notes in response to a public comment that the posting or voluntary notification of the rights will serve as “non?dispositive evidence of compliance that OCR will consider if an entity is subject to an OCR investigation or compliance review.”

The final rule is available at:

https://www.hhs.gov/sites/default/files/final-conscience-rule.pdf

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