HHS Clarifies Conscience Rule in Health Care

A new regulation from the U.S. Department of Health and Human Services (HHS) reiterates protections for health care providers who may refuse to participate in certain types of treatment for religious reasons, but also provides some safeguards for patients seeking such care.

The final rule was released on Jan. 11 and will take effect on March 11.

The rule, titled "Safeguarding the Rights of Conscience as Protected by Federal Statutes," aims to strike a balance between patients’ medical needs and the religious freedom of health care providers who oppose abortion, contraception, medically or physician-assisted suicide, or gender-affirming treatments. HHS cited concerns about discrimination against patients who were denied treatment by doctors, pharmacists and other health care providers, particularly for reproductive care, HIV prevention and gender dysphoria treatment.

The federal Office for Civil Rights will facilitate and coordinate HHS’ enforcement of the federal conscience protection statutes, including:

• Handling complaints.
• Initiating compliance reviews.
• Conducting investigations.
• Seeking voluntary resolutions of complaints.

The new rule partially rescinds a previous conscience rule that was blocked by courts.

We’ve gathered a group of articles on the news from SHRM Online and other news outlets.

Providers Can Deny Some Care

The new rule comes as many Republican-led states have enacted abortion bans in the wake of the U.S. Supreme Court’s decision to overturn Roe v. Wade in 2022. An increasing number of states also have limited or banned gender-affirming care for minors.

There are federal laws in place that allow health care providers to refuse care in certain circumstances based on their religious beliefs. The previous rule issued under the Trump administration would have dramatically expanded how those laws were interpreted and implemented. Critics said they would have emboldened health care professionals to discriminate against women, people of color, LGBTQ+ individuals and people with disabilities.

(The Hill)

Court Action

The Trump administration issued its version of the conscience rule in 2019. Several federal courts, however, granted summary judgment for the plaintiffs and entirely vacated the rule, finding it defective for a number of reasons, including inconsistency with federal civil rights law and the Emergency Medical Treatment and Labor Act.

Under the 2019 rule, which never took effect, HHS would have been allowed to strip funds from health care facilities that took action against workers who cited religious or moral objections to providing care. Supporters of the Trump administration’s approach said that rule merely set forth an enforcement mechanism for existing rights, and that the Biden administration’s rule is an attempt to undermine the Supreme Court’s decision that overturned Roe v. Wade.

(Bloomberg)

Preventive Care Mandate

In 2022, HHS released guidance reiterating that the federal Affordable Care Act requires group health plans to provide contraceptive coverage—including birth control pills, emergency contraception pills, contraceptive injections and intrauterine devices—at no cost to participants. These are considered part of preventive health care that must be covered without co-pays or co-insurance.

(SHRM Online)