HHS Revises Bush Administration Rule On Health Worker Conscience Protections

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Revising a regulation issued at the end of the Bush administration, the Department of Health and Human Services Feb. 18 announced a final rule for enforcement of conscience protections for health care workers who oppose abortion.

The Regulation for the Enforcement of Federal Health Care Provider Conscience Protection Laws is set for publication in the Feb. 23 Federal Register. HHS in the new rule said it is rescinding in part and revising the Dec. 19, 2008, final rule, titled Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law. When that 2008 rule was issued by the Bush administration, some lawmakers urged President Obama, who was not yet sworn into office, to reverse the rule, saying that it would limit patients' access to legal health care services. That rule went into effect Jan. 20, 2009.

In the new rule, HHS said that it “supports clear and strong conscience protections for health care providers who are opposed to performing abortions.”

In a Feb. 18 statement, HHS said the final conscience protection rule “being issued today by HHS reaffirms the Department's commitment to longstanding federal conscience statutes by maintaining and building upon provisions of the Bush administration rule that established an enforcement process for federal conscience laws, while rescinding the definitions and terms of the previous rule that caused confusion and could be taken as overly broad.”

2009 Proposed Rule, Comments.

HHS proposed rescinding the existing rule in its entirety on March 10, 2009 (74 Fed. Reg. 10207). The department said it received more than 300,000 comments addressing its notice of proposed rulemaking to rescind in its entirety the 2008 rule. “The overwhelming majority of comments, both in support of and against rescission of the 2008 Final Rule, were form letters organized by various groups,” HHS said.

More than 97,000 individuals and entities submitted comments generally supportive of the proposal to rescind the 2008 rule, HHS said, adding that nearly 187,000 comments expressed opposition.

Among the comments HHS received were concerns that total rescission of the 2008 rule would leave “no regulatory enforcement scheme to protect the rights afforded to health care providers, including medical students, under the federal health care provider conscience protection statutes.”

Responding to the new HHS rule, John F. Brehany, executive director of the Catholic Medical Association, told BNA in an e-mail Feb. 18 that while his group “is disappointed that HHS gutted entire sections of the Conscience Protection Rule in effect since January 2009, CMA is grateful that HHS did not rescind the Rule as Obama administration officials had promised, and we welcome HHS's recognition that refusing to participate in abortion is an important civil right.”

Brehany added, “Still, HHS's promises to review complaints submitted to the [HHS Office for] Civil Rights and to provide education on respect for conscience rights ring hollow in light of their decision to cut out the very definitions and tools to achieve these ends contained in the original Rule.”

Laws in Effect for Decades.

In the introduction to the new final rule, HHS said: “While federal health care provider conscience statutes have been in effect for decades, the Department has received comments suggesting that the 2008 final rule attempting to clarify the federal health care provider conscience statutes has instead led to greater confusion. The comments received suggested that there is a need to increase outreach efforts to make sure providers and grantees are aware of these statutory protections. It is also clear that the Department needs to have a defined process for health care providers to seek enforcement of these protections.”

HHS said it “seeks to strengthen existing health care provider conscience statutes by retaining that part of the 2008 Final Rule that established an enforcement process.” At the same time, HHS said its new rule “rescinds those parts of the 2008 Final Rule that were unclear and potentially overbroad in scope. This partial rescission of the 2008 Final Rule does not alter or affect the federal statutory health care provider conscience protections.”

In addition, HHS said that it is beginning an initiative designed to increase health care providers' awareness of the protections provided by the health care provider conscience statutes, and the resources available to providers who believe their rights have been violated. HHS's Office for Civil Rights will lead this initiative “and will collaborate with the funding components of the Department to determine how best to inform health care providers and grantees about health care conscience protections, and the new process for enforcing those protections,” HHS said.

A prepublication copy of the rule is at http://op.bna.com/hl.nsf/r?Open=bbrk-8e7nsa.

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