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

Late last week the Trump Administration made good on its promise to protect the religious, moral, and conscientious objections that health care providers, health plans, and other entities have to participating in or covering certain health care activities. The Department of Health and Human Services (DHHS) laid out these protections in a two-hundred plus page proposed rule (the Proposed Rule) that digs its claws into just about every health care setting in the country.  Media outlets are claiming that the Proposed Rule could be used to allow health care providers and plans to discriminate against members of the LGBT community, and could have a deleterious impact on health care for women and minorities. Are these concerns well-founded? In this series of blog posts, I will examine the Proposed Rule to determine what, if anything, will change following its implementation. The comment period for the Proposed Rule is currently open.

DHHS exerts its control by implementing the Proposed Rule against entities that receive federal grants, loans, reimbursement through federal health care programs such as Medicare and Medicaid, and health insurance plans under ObamaCare. Although the exact reach of this Proposed Rule is subject to some debate and ambiguity, the bottom line is that it could have a broad impact on the nation’s health care systems and health care providers. What exactly does this Proposed Rule do? In part, it prevents “discrimination” against health care providers, health insurance plans, and other entities that raise objections to participating in certain health care activities or, in the context of a health plan, covering certain services where the service or activity is inconsistent with the religious, moral, or conscientious beliefs of the provider, entity, or heath plan. If you are wondering how an insurance company can have a moral objection to health care service, see Burwell v. Hobby Lobby Stores (if you are still confused after reading the Hobby Lobby decision, then join the club). Schools that receive federal funds are also targeted, and prohibited from requiring students to participate in an abortion or sterilization procedure against the student's religious or moral objection.

Much of the Proposed Rule addresses the subjects of abortion and sterilization. Current statutory law protects health care providers, students and certain entities from being discriminated against if they refuse to participate in abortion or sterilization procedures. These laws were enacted through the Church, Coats-Snowe, and Weldon Amendments. In the past, protections under these Amendments were narrowly-construed and the tone of the Proposed Rule’s preamble suggests that prior administrations failed to take complaints made under those Amendments seriously. Indeed, when discussing DHHS’ past reluctance to enforce these protections, the Proposed Rule states, “[Previous] guidance issued by OCR with respect to the interpretation of the Weldon Amendment no longer reflects the current position of HHS, OCR, or the HHS Office of the General Counsel.” (P. 45) (emphasis added) In other words, OCR (the Office of Civil Rights) will begin enforcing prohibitions on entities (including nursing and medical programs) that force health care providers and students to perform abortions or sterilizations, or that force providers or students to refer patients to another provider for these procedures if doing so would belie the student’s or provider’s religious or moral beliefs.

The Proposed Rule is not shy about expanding the enforcement activities under the Amendments and gives the OCR “full enforcement authority over a significantly larger universe of federal statutes compared to [past rules].” (P. 50) Of course, the Proposed Rule is not able to change the law, but it does reflect a significant change in the position of DHHS in regards to the enforcement of the law. If schools, hospitals, and other entities that receive federal funding are requiring or pressuring their workforce or students into participating in abortion and sterilization procedures then those entities should re-evaluate this practice before the Proposed Rule goes into effect. Current law does not provide a private right of action by members of a workforce or health care providers against an entity for violating the Amendments, but DHHS has broad power to withhold federal funds from the entity should a student, provider, or workforce member file a complaint. Disqualification from receiving federal funds would be devastating to any organization that depends on them.

In summary of this Part I, the Proposed Rule will expand enforcement efforts against States, health care institutions, schools, and other entities if such entities force providers or students to participate in abortion or sterilization procedures, or refer patients to such procedures, or discriminate against a student or health care provider for refusing to participate in or refusing to refer a patient for an abortion or sterilization. It also shields certain health care plans from state mandates for covering abortion and sterilization procedures. In the next parts, I will discuss the Proposed Rule’s impact on assisted suicide, euthanasia, Advance Directives, suicide and parents’ rights, LGBT concerns, the ObamaCare Individual Mandate, and other issues. Please check back for the next part or sign up for the Firm’s Newsletter.      

By: Michael Coco, RN, Esq.