The Department of Health and Human Services (HHS) released a final rule today governing federal protections for health care workers exercising their right to nondiscrimination on the basis of conscience objections.

The rule, entitled, Safeguarding the Rights of Conscience as Protected by Federal Statutes, is scheduled to be published in the Federal Register on Thursday, January 11 and will take effect on March 11, 2024. The rule effectively repeals the majority of a Trump-era rule that was blocked by federal court orders before it even went into effect.

The new rule reinstates provisions of an Obama-era rule that placed the Office for Civil Rights (OCR), the HHS office that handles nondiscrimination enforcement, in charge of coordinating complaints for violations of the conscience protections of various federal laws. The rule also implements a voluntary notice provision that establishes an industry best practice to alert employees to their rights under the laws.

Conscience Rule has changed with administrations.

This rule has its origins in the waning days of the George W. Bush administration. Prior to the initial issuance of the rule, certain federal health care statutes stretching back to the 1970s contained protections from discrimination against individuals and entities who refused to participate in certain medical procedures on religious grounds.

Bush-era rule seeks to protect conscience objections

In August 2008 the HHS issued a rule designed to ensure that public was aware of the conscience protections already present in federal statutory law and to enforce those provisions through the OCR’s nondiscrimination enforcement capabilities.

Obama-era rule repeals most of 2008 Rule

A year later, in the first months of the Obama administration, HHS suggested that it would repeal the rule, arguing that nondiscrimination authorities present in federal statutes did not need HHS enforcement regulation to be executable. It took HHS nearly two full years to implement the rule, but in 2011 HHS issued the “Regulation for the Enforcement of Federal Health Care Provider Conscience Protection Laws” (76 Fed. Reg. 9968).

The 2011 rule claimed that the 2008 provisions were overbroad and unclear, and repealed most of the rule, keeping in place provisions that ceded OCR authority to coordinate complaints of violations of both the older conscience provisions, as well as conscience protections then-newly added by the Affordable Care Act.

Trump-era rule attempts to reinstate and extend 2008 Rule

During the Trump administration, HHS promulgated another rule “Protecting Statutory Conscience Rights in Health Care; Delegations of Authority” (84 Fed. Reg. 23,170). Finding that the 2011 repeal of the Bush-era rule had created confusion reinstated several of the provisions of the 2008 rule and expanded upon it by adding additional statutory provisions to its coverage establishing enforcement provisions, adopting specific definitions and imposing record keeping and notice requirements.

This was immediately challenged in federal courts in Washington, New York, and California. The challengers were successful in getting the rule vacated before it took effect.

Biden Administration returns to 2011 Rule

This new final rule reverts back to the 2011 rule, which HHS claims has always been in effect because the Trump-era Rule that would have repealed it was vacated before it could take effect. The new rule does, however, include some provisions of the 2019 rule governing OCR’s authority and actions.

Under the new rule OCR handles complaints on statutory violations, coordinates enforcement actions with DOJ or other relevant departments, conducts compliance reviews, and provide best practice guidance on notice provisions.

Abortion Rights and Gender-Affirming Care at issue

At the root of a lot of the back and forth for these rules across the last 15 years has been the balance that OCR has been charged with making sure that patients aren’t denied access to necessary medical procedures while at the same time protecting the rights of providers with sincerely held conscience objections.

Many of the comments to the current rule revolved around uncertainty in access to abortion as well as access to gender-affirming care. On the other side, religious groups and legal organizations were concerned that the rule didn’t do enough to protect their members who wanted to refuse to provide these procedures on conscience grounds.

In answering those comments, HHS pointed to the texts of the various conscience laws, including the Church Amendments, the Coates-Snowe Amendments and the Weldon Amendments, as well as the conscience provisions of the ACA. HHS noted that it was the job of OCR to balance compliance with those statutory provisions along with statutory provisions like Section 1557 of the ACA and the stabilization provisions of EMTALA that require health care workers to provide needed health care services.

The final rule attempts that balance by leaning more toward allowing the federal statutes to stand as the governing conscience law with OCR handling noncompliance complaints and directing them to the appropriate enforcement agencies, instead of creating a direct enforcement lane into OCR.

However, given the history of this rule over the last four presidential administrations it would not be a surprise to see a Republican HHS in the future reverting back to the 2019 rule, but without the procedural problems that resulted in that rule being vacated.

Reed Smith will continue to follow developments regarding nondiscrimination and conscience protections. If you have any questions, please do not hesitate to contact the health care lawyers at Reed Smith.