Com­ments due on HHS’ new re­li­gious-free­dom rule

Modern Healthcare - - The Week Ahead - —Steven Ross John­son

Tues­day marks the dead­line to sub­mit com­ments on an HHS pro­posed rule that es­sen­tially pro­tects health­care work­ers who refuse to per­form clin­i­cal care on re­li­gious or moral grounds.

The pro­posal, is­sued in Jan­uary, would re­quire health­care providers who par­tic­i­pate in Medi­care and Med­i­caid to cre­ate a set of stan­dards and pro­ce­dures to pro­tect the re­li­gious and moral rights of their em­ploy­ees. HHS said it in­tended to en­force and pro­vide clar­ity to 25 ex­ist­ing statu­tory pro­tec­tions.

“Pro­tec­tion of re­li­gious be­liefs and moral con­vic­tions not only serves in­di­vid­ual rights, it serves so­ci­ety as a whole,” the agency wrote in the pro­posal. “Pro­tec­tions for con­science help en­sure a so­ci­ety free from dis­crim­i­na­tion and more re­spect­ful of per­sonal free­dom.”

Im­ple­men­ta­tion of the rule is ex­pected to cost $312 mil­lion in the first year and $125 mil­lion an­nu­ally over the next four years. Specif­i­cally, the rule is try­ing to ad­dress what HHS claimed has been a se­ries of in­ci­dents where health­care work­ers have been co­erced or dis­crim­i­nated against when they were asked to per­form ser­vices re­lated to abor­tion, ster­il­iza­tion and as­sisted sui­cide. When the rule was posted in Jan­uary, the Of­fice for Civil Rights said it had re­ceived over 34 com­plaints since Novem­ber 2016. Prior to that time, a to­tal of 10 com­plaints had been filed since 2008, ac­cord­ing to the agency.

But the reg­u­la­tion, the agency wrote, also seeks to ad­dress cases where work­ers raise “re­li­gious or moral ob­jec­tions to par­tic­i­pat­ing in cer­tain ser­vices within the scope of one’s em­ploy­ment,” a pro­vi­sion that could be con­strued to have broader im­pli­ca­tions. The rule rep­re­sents a shift in vi­sion for OCR from one that has tra­di­tion­ally fo­cused pri­mar­ily on pro­tect­ing pa­tients against dis­crim­i­na­tion in the de­liv­ery of care based on race, gen­der and sex­ual ori­en­ta­tion, to one that pri­or­i­tizes pro­tect­ing health­care pro­fes­sion­als who may have re­li­gious and moral ob­jec­tions in car­ry­ing out cer­tain med­i­cal du­ties.

Since the rule was re­leased the agency has re­ceived more than 52,000 com­ments, yet none have been made public or posted on­line as of last Thurs­day.

Sis­ter Carol Kee­han, CEO of the Catholic Health As­so­ci­a­tion, said the as­so­ci­a­tion ap­pre­ci­ates fed­eral laws that “ex­plic­itly de­fended our right to pro­vide health­care in ac­cor­dance with our con­vic­tions.”

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