HHS Asks: Are Faith-Based Groups Facing Barriers?

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By Sara Merken

The Trump administration wants to know what barriers religious organizations are facing when they want to participate in federal health-care programs.

The Department of Health and Human Services’ request for information could lead to greater religious liberty, or discriminatory hiring and health-care practices, depending on the varied responses of interest groups contacted by Bloomberg Law. Comments (using HHS-9928-RFI) on the agency’s notice are due Nov. 24.

In its Oct. 25 notice, the HHS asked for input from faith-based and other organizations in how to remove regulatory barriers to participate in HHS programs and receive public funding. The name of the agency notice is Removing Barriers for Religious and Faith-Based Organizations To Participate in HHS Programs and Receive Public Funding.

In noting the importance of faith-based organizations in health care, the HHS said nearly 60 percent of emergency shelter beds for the homeless in 11 cities were provided by faith-based organizations in 2016. In addition, one in six hospital patients were cared for in a Catholic hospital in 2015, the agency said.

The request for information (RFI) combines the administration’s deregulatory agenda and its push for religious freedom, and will likely draw a variety of comments and spur litigation. Subsequent rule changes have the potential to permit faith-based organizations to hire employees based on religious views and refuse service to certain individuals, groups criticizing the proposal told Bloomberg Law. Supporters of the proposal told Bloomberg Law there is a historical relationship between religious institutions and health services.

Other Federal Actions

The proposed action seeking comments comes after a string of federal actions promoting religious freedom.

President Trump signed an Executive Order promoting free speech and religious liberty May 4, which stated that faith-based organizations are protected in exercising religion and participating in civic life “without undue interference by the federal government.”

And Attorney General Jeff Sessions subsequently issued guidance to federal agencies on protecting religious liberty Oct. 6.

‘Entirely Appropriate and Long Overdue’

“Religious institutions play a huge role in providing health care services,” many of which are also heavily involved in social services, Robert E. Moffit, a former senior HHS official during the Reagan administration and current senior fellow at conservative think tank the Heritage Foundation, told Bloomberg Law.

There are over 600 Catholic hospitals in the U.S., and one in six patients is cared for in a Catholic hospital each day, according to the Catholic Health Association of the United States. There are also many Baptist and Lutheran hospitals across the country.

There was a tension between religious organizations and the Obama administration over contraception issues that doesn’t exist in the Trump administration, Moffit said. Supporters view the RFI as a “perfectly reasonable” invitation for private-sector institutions to assist in helping the poor and the vulnerable, which is part of the “American tradition,” he said.

It isn’t unusual for the executive branch to direct federal agencies to provide equal protections for faith-based and other community organizations, Michael Hogue, associate dean for the Center for Faith and Health at Samford University’s College of Health Sciences in Birmingham, Ala., told Bloomberg Law. For instance, Presidents George W. Bush and Barack Obama signed faith-based executive orders.

Opening the conversation about the role of faith-based organizations in the health system is “entirely appropriate and long overdue,” Hogue said.

Hints in Policy Change Areas

The agency will likely receive comments from a variety of organizations, including charitable hospitals, community assistance programs, schools with sexual education curriculum, addiction recovery programs, and other faith-based nonprofits, experts contacted by Bloomberg Law said.

The priorities published by advocacy and faith-based groups in the comment period will provide insight into what aspects of the law may eventually change, Elliot Mincberg, senior fellow at progressive advocacy organization People for the American Way (PFAW), told Bloomberg Law Oct. 30.

A campaign by the Family Research Council (FRC), for example, addresses key areas the group wants changed. The Washington, D.C.-based Christian public policy ministry defends “religious liberty, the unborn and families,” according to its website.

The group is advocating for restoration of conscience regulations, which were implemented by the Bush administration and rolled back by the Obama administration. Conscience rules prohibit organizations granted federal funds from discriminating against health-care providers who don’t participate in specific health services, such as abortion, based on religious or moral reasoning.

The campaign also calls for termination of the Affordable Care Act’s nondiscrimination provision, Section 1557. The section makes it unlawful for health-care providers that receive federal funding to refuse treatment to individuals based on sex, race, color, age, national origin, or disability.

The FRC also wants specific enforcement of the Weldon Amendment, a law enacted in 2005 that allows health-care providers to refuse treatment to a woman seeking an abortion because of moral or religious beliefs.

Tool for Discrimination?

Some groups oppose the intention of the RFI, arguing that the request is part of the administration’s broader campaign to “use religion as a tool for discrimination,” Sarah Lipton-Lubet, who leads advocacy efforts to advance productive health and rights at the National Partnership for Women and Families, told Bloomberg Law.

A recent action includes the rollback of contraception coverage requirements for employers, she said. The National Partnership promotes fairness in the workplace and quality health care.

The request is “premised on a false notion that the agency needs to remove barriers” that prevent faith-based organizations from receiving funding, said Dena Sher, assistant legislative director at D.C.-based nonprofit Americans United for Separation of Church and State.

The RFI document explains that faith-based organizations are historically crucial partners with the HHS in delivering services. The RFI also says the agency gave grants to these organizations amounting to at least $817 million in FY 2007 alone, Sher told Bloomberg Law.

Women’s and civil rights groups are “certainly going to make sure that our voices are heard on this issue,” both during and after the comment period, Lipton-Lubet said, though she denied to elaborate on the specific types of advocacy.

There will very likely be litigation from a variety of groups after the HHS implements new rules, PFAW’s Mincberg said.

Religious Hiring, Service Refusal Implications

There are three categories of potential legal issues that flow from the RFI, Sessions’ Oct. 6 memo, and Trump’s May 4 executive order, according to Jennifer Pizer, senior counsel and law and policy director for Lambda Legal. The national legal organization advocates for civil rights for the lesbian, gay, bisexual and transgender community (LGBT) and those living with HIV.

The first is the attempt to allow refusals of certain types of services altogether, such as Catholic health providers that commonly refuse to provide reproductive health care, she told Bloomberg Law Oct. 30.

Also, there could be a legal issue if religious hospitals that routinely allow certain services choose to deny the services to specific people, Pizer said.

Organizations may also refuse service to LGBT youth and families, women who are pregnant and unmarried, survivors of sexual assault, interfaith couples, and others, Lipton-Lubet said.

Additionally, hiring employees based on religious beliefs is an issue that has been debated and may change after the HHS reviews the submissions. The RFI specifically mentions an interest in broadening religious organization permission to hire employees based on religious beliefs, Pizer said.

Religious organizations generally aren’t permitted to favor people in the hiring process based on faith if they receive federal funding. But when public money isn’t involved, the current federal employment nondiscrimination law does permit such organizations to hire and fire based on religion, she said. A change of rules that allows faith-based employers to limit employment opportunity based on religion while serving the public with public funding would have a significant impact on the LGBT community and many others.

Change to state policy enforcement is another possible implication of the HHS request, Eric Rassbach, deputy general counsel at Becket Fund for Religious Liberty, told Bloomberg Law. Under a recent Supreme Court decision, Trinity Lutheran Church of Columbia, Inc. v. Comer, states cannot exclude religious organizations from grant programs just because they are religious.

If the federal government grants funds for specific state programs, states may no longer be able to enforce exclusionary policies, particularly if the federal agency changes federal religious rules, Rassbach said. Becket is a nonprofit legal organization “with a mission to protect the free expression of all faiths,” according to its website.

To contact the reporter on this story: Sara Merken in Washington at smerken@bna.com

To contact the editor responsible for this story: Brian Broderick at bbroderick@bna.com

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