New Federal Medical Conscience Rule and Its Implications
Client Alert
New Statutes offer health care providers (and payors) protections against recipients of federal funds when refusing to provide services based on religious or moral grounds. The federal health care conscience protection statutes (the “Statutes”) include, among others, the Church Amendments, the Coats-Snowe Amendment, the Weldon Amendment, and certain Medicare and Medicaid provisions.
The Department of Health and Human Services Office for Civil Rights (OCR) issued a Final Rule regarding these Statutes on January 11, 2024 (effective March 11, 2024), clarifying the provisions, which gives the OCR the authority to receive, handle, and investigate complaints under the federal health care conscience protection statutes.
Services that are typically protected under the Statutes include assisted suicide, abortion, and sterilization. Importantly, providers cannot provide services to some patients and not others. Additionally, it is important to note that the protections apply to services/procedures – therefore, a provider cannot refuse to provide a service to a particular person or group of people based off of religious or moral beliefs.
Authority of the OCR in enforcing the Statutes includes:
- Receiving and handling complaints;
- Initiating compliance reviews;
- Conducting investigations;
- Consulting on compliance within the Department;
- Seeking voluntary resolutions of complaints;
- Consulting and coordinating with the relevant Departmental funding component and utilizing existing enforcement regulations, such as those that apply to grants, contracts, or other programs and services;
- In coordination with the relevant component or components of the Department, coordinating other appropriate remedial action as the Department deems necessary and as allowed by law and applicable regulation; and
- In coordination with the relevant component or components of the Department, making enforcement referrals to the Department of Justice.
When investigating potential violations of the Statutes, the OCR may review the practice’s policies, communications, documents, and compliance history. The OCR states that matters will be resolved via “informal means” whenever possible, but if not, the OCR will coordinate and consult with the Department responsible for the relevant funding to undertake appropriate action. The OCR may also refer the matter to the Department of Justice. It is important for entities to respond promptly to the OCR’s investigation and to keep adequate records.
In addition, the OCR encourages all entities subject to the Statutes to post a “model notice” in a prominent and conspicuous location to notify both providers and patients of their compliance. The model notice provided by the OCR can be found here.
Entities should also consider updating their policies and procedures to include the protections under the Statutes. For example, entities may include a statement that providers will not be required to participate in, and will not be discriminated against, for refusing to participate in specific medical procedures and related training and research activities or coerced into performing procedures that are against their religious or moral beliefs. Such procedures should also provide the steps providers can take to invoke their rights under the Statutes.
If you have any questions regarding the Final Rule, please don’t hesitate to contact BMD Health Law Group Member Jeana M. Singleton at jmsingleton@bmdllc.com or 330-253-2001, or BMD Attorney Rachel Stermer at rcstermer@bmdllc.com or 330-253-2019.