In January 2018, HHS unexpectedly announced a newly proposed regulation entitled “Protecting Statutory Conscience Rights in Healthcare,” which proposes new prohibitions and notice requirements for institutional healthcare providers. At the same time, the HHS Office for Civil Rights (OCR) created a new enforcement division (the Division of Conscience and Religious Freedom) to enforce these protections and to resolve complaints of coercion or discrimination against individual healthcare providers based on their moral or religious beliefs.
These new developments put a spotlight on federal conscience protections for healthcare providers and signal an increase in federal enforcement activity in this area. Institutional healthcare providers should therefore consider taking steps to address any additional risk presented by these new developments. Indeed, since HHS announced the creation of this new enforcement division, the agency reports that it has received nearly 40 new complaints from individual healthcare providers alleging conscience discrimination. Institutional healthcare providers should also be sure to monitor HHS OCR’s response to the tens of thousands of comments made on the proposed regulation.
Background on the proposed regulation and federal healthcare provider conscience protections
According to HHS, the newly proposed regulation will allow HHS OCR to “more effectively and comprehensively enforce federal healthcare conscience and associated anti-discrimination laws.” The new regulation thus proposes additional concrete prohibitions on institutional healthcare providers relating to their healthcare workforces (defined broadly to include “employees, volunteers, trainees, contractors . . . as well as healthcare providers holding privileges with the entity”). For example, HHS has proposed that healthcare providers that receive funding from HHS “shall not require any individual to perform or assist in the performance of any part of a health service program or research activity if such performance or assistance would be contrary to the individual’s religious beliefs or moral convictions.” (Proposed 45 CFR §88.3 (vi)). Other proposed prohibitions more specifically bar discrimination against individuals in a healthcare workforce who object to participating in services or procedures related to abortion or assisted suicide.
The regulation also proposes additional notice requirements for covered institutional healthcare providers, requiring those providers, for example, to notify individuals of their right to decline to participate in services that they may consider objectionable. The notice must also inform individuals that they may file a complaint with HHS OCR if they believe they have been coerced or otherwise discriminated against in violation of their beliefs.
A new tension with federal nondiscrimination laws under the ACA
These new developments also create a tension with an institutional provider’s obligation to not discriminate in its delivery of healthcare.
For example, under Section 1557 of the Affordable Care Act, a healthcare provider that accepts federal financial assistance may not discriminate on the basis of sex in its delivery of healthcare. This prohibition on sex-discrimination in healthcare is already the subject of hotly-contested litigation and has been interpreted by federal courts to include sex-stereotyping and gender identity. See also Katherine Prescott v. Rady Children’s Hospital-San Diego, No. 16-CV-02408-BTM-JMA, 2017 WL 4310756 at *4 (S.D. Cal. Sept. 27, 2017) (“Because Title VII, and by extension Title IX, recognize that discrimination on the basis of transgender identity is discrimination on the basis of sex, the Court interprets the ACA to afford the same protections.”); but see Franciscan Alliance, Inc. et al. v. Burwell, (Civil Action No. 7:16-CV-00108-O) (N.D. Tex. Dec. 31, 2016) (issuing nationwide injunction against HHS’s enforcement of gender-identity and termination of pregnancy interpretations of Section 1557).
As such, if an individual healthcare provider or employee seeks to abstain from assisting in any of the services highlighted by HHS OCR, an institutional provider must ensure that any accommodation to that individual provider does not result in discrimination against patients or their companions.
Institutional healthcare providers should consult with counsel and consider taking steps to minimize risk
Given the issues at stake, and the lack of available guidance, institutional healthcare providers should consult with counsel on how to take steps to minimize any additional risk created by these new developments. For example, institutional providers should, on the one hand, consider how to facilitate compliance with federal conscience protections for individual providers and employees where necessary, while also ensuring that no patient or companion experiences discrimination in the delivery of their healthcare.