Doctor: “Sorry, I don’t treat hermaphroditic, agnostic, Garglaknot creatures from the Planet Nibiru.” (Part III)

This final Part III of the Proposed Rule discussion will address some of the final changes that the Proposed Rule could bring.

The Proposed Rule addresses vaccines and occupational health. Although this is a hot topic in some circles, the Proposed Rule will do little to change the status quo. With respect to occupational health and safety, the Proposed Rule clarifies that federal regulations will not “authorize or require” any “medical screening, treatment, or immunization” where such person objects on “religious grounds” except where such is “necessary” to protect the health and safety of others. This provision could leave some room for workers to object to certain screenings, treatments, or immunizations, but only if such are required by federal law as opposed to individual employer requirements. Thus, if your employer requires you to have a medical screening exam, then this provision will not be protective. For example, if your hospital employer requires you to receive a yearly influenza vaccine, you would still be required to conform to your employer’s policy. State laws and other protections for religious or philosophical beliefs might be available, but the Proposed Rule will offer little additional basis for an employee to object to exams or vaccinations.

One provision in the Proposed Rule may be of concern to LGBT patients and providers. This provision applies to states, schools, certain mental health and suicide prevention agencies, and other entities that receive federal grant money. While many of the provision state that the government does not “require” an entity or State to do something – such as require a medical screening exam against a worker’s religious beliefs – the provision set forth on page 200 issues an absolute prohibition on certain activities. The provision states that entities “shall not require” any “suicide assessment, early intervention, or treatment services for youth whose parents or legal guardians object” based on “religious beliefs or moral objections.” This provision could prevent an entity from providing counseling for LGBT youth if the parent or guardian objects. The parent need not base his or her objection on religious ground; only “moral” grounds are required. The Proposed Rule does not, however, require that an agency receive specific permission from a parent or guardian for treatment. Because some states allow adolescents to consent to certain health care treatments, practitioners in some states might be able to continue to treat their patients over the potential objection of an unapproving parents where parental notification is not required under state law.  

The reach of the Proposed Rule is broad. The prior parts of this discussion mention health care facilities such as hospitals, but the rule reaches much farther into the realms of health and science. In defining “health care entity” the rule includes “an individual physician or other health care professional, health care personnel, a participant in a program of training in the health professions, an applicant for training or study in the health professions, a post-graduate physician training program, a hospital, a laboratory, an entity engaging in biomedical or behavioral research, a provider-sponsored organization, a health maintenance organization, a health insurance plan (including group or individual plans), a plan sponsor, issuer, or third-party administrator, or any other kind of health care organization, facility, or plan.” That’s quite a mouth-full and indicates that this rule could apply to everything from hospitals, to research laboratories, to insurance providers. The key distinction is that such application is predicated on the receipt of federal funds.

The comment period for this rule ends on March 27, 2018. Individuals and entities may submit their questions, comments, and concerns to DHHS until that time. The comments will help the public better understand the purpose and reach of this Proposed Rule. In its current state, the Proposed Rule does not allow providers to refuse to see certain patients based on the religious or moral objections of the providers, other than those circumstances where mandatory participation is already prohibited by federal law (such as abortion). It may, however, adversely impact LGBT youth’s access to counseling and treatment.  

By: Michael Coco, RN, Esq.