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

In Part I of this blog series I discussed the impact of the Proposed Rule on health care providers, students, and health plans who raise moral, religious, or conscientious objections to participating in abortion or sterilization procedures. Although much of the Proposed Rule focuses on the issues of abortion and sterilization, the Devil, as they say, is in the details. For example, the Proposed Rule also helps facilitate the Trump Administration’s take-down of the Individual Mandate built into Obamacare. The new “JOBS ACT” tax law eliminates the individual mandate, but the Proposed Rule also addresses the mandate. Indeed, the rule asks for comments on a conscientious or religious objection to paying the tax mandate. At this point it is unclear whether the Proposed Rule was written prior to the Individual Mandate repeal or if the Trump Administration is simply beating a dead horse. If published as written, the proposed rule will deal an additional blow to the Obamacare.

 The Proposed Rule addresses the practices of assisted suicide, which includes “mercy killings” and “euthanasia.” (p. 191) Health care entities would be prohibited from “discriminating” against a provider where such provider refuses to participle in the practice of assisted suicide. These protections do not, however, apply to the withholding of medical treatment or the withholding of nutrition or hydration. Abortion is also exempt from this provision, probably because the topic is discussed at length in other parts of the Proposed Rule. Providers may be required to administer medication for pain relief even if such administration could hasten death, so long as the purpose is not “also” for causing or assisting in the causing of death. Thus, a provider would not be permitted to refuse an order to administer morphine for comfort even if such administration would increase the risk of hastening a person’s death.

The assisted suicide prohibitions also apply to Advance Directives discussions required by federal law. Entities and providers are not required to discuss assisted suicide when discussing Advance Directives with patients, and providers are not required to abide by assisted suicide requests in such documents. As a practical matter for physicians, those opposed to assisted suicide should work with another physician who is comfortable with these procedures and can assist patients when needed. Patients who wish to have assisted suicide become part of their Advance Directive should ensure that their primary care provider is comfortable with the instructions in the Advance Directive or they have an attorney who can help their client find a physician comfortable with the instructions in the Advance Directive during the patient’s time of need.

The Proposed Rule moves on the discuss issues of HIV/AIDS funding. Applicants who file pursuant to the Foreign Assistance Act of 1961 for the assistance in preventing, treating, and caring for those with HIV are afforded certain “protections.” Entities that provide this funding may not require applicants to undertake a “multisectoral or comprehensive” approach to fighting HIV. Further, applicants may not be required to “endorse, utilize, make a referral to, become integrated with, or otherwise participate in any program or activity to which the applicant has a religious or moral objection, as a condition of assistance.” This provision could be concerning for LGBT organizations that use funds to assist persons living with HIV and help prevent the spread of the disease because such organizations might run into opposition from applicants if the organization asks the applicants to assist with certain programs designed to fight HIV in the LGBT community.

Other provisions of the Proposed Rule targeting the Foreign Assistance Act grant broad power to the President to “certify” certain countries or organizations that would use foreign aide to promote abortions, sterilizations, or family planning. This gives the President broad power to control and direct the use of foreign assistance funds. The Proposed Rule also ensures that federal laws related to hearing screenings for children will not be preempted by federal law if the parent objects to a hearing screening based on religious or moral convictions (is that even a thing?).

The last topic discussed in this Part II is the Proposed Rule’s impact on Medicaid and health screenings and treatment. The rule clarifies a federal law. State Medicaid plans need not construe federal law to require health screenings or treatments where a patient, or a patient’s parent in the case of minors, objects to such screening or treatment on the basis of religion. This provision does, however, have an exception for the screening and treatment of communicable or infectious diseases. As a practical matter, it could allow a parent to forgo treatment or screening for non-communicable diseases where such treatment or screening is contrary to the parent’s religious beliefs.

In Part III I will finish by discussing vaccines, occupational health, scope, and mental health treatments and more potential for concern among the LGBT community.

By: Michael Coco, RN, Esq.