Regulation To Protect Health Care Providers From Discrimination

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A new proposed regulation would increase awareness of, and compliance with, three separate laws protecting federally funded health care providers’ right of conscience. This proposed rule was placed on public display at the Federal Register today by the U.S. Department of Health and Human Services (HHS).

“This proposed regulation is about the legal right of a health care professional to practice according to their conscience,” HHS Secretary Mike Leavitt said. “Doctors and other health care providers should not be forced to choose between good professional standing and violating their conscience. Freedom of expression and action should not be surrendered upon the issuance of a health care degree.”

Over the past three decades, Congress has enacted several statutes to safeguard these freedoms, also known as provider conscience rights, and the proposed regulation would increase awareness of and compliance with these laws. Specifically, the proposed rule would:

* Clarify that non-discrimination protections apply to institutional health care providers as well as to individual employees working for recipients of certain funds from HHS;

* Require recipients of certain HHS funds to certify their compliance with laws protecting provider conscience rights;

* Designate the HHS Office for Civil Rights as the entity to receive complaints of discrimination addressed by the existing statutes and the proposed regulation; and

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* Charge HHS officials to work with any state or local government or entity that may be in violation of existing statutes and the proposed regulation to encourage voluntary steps to bring that government or entity into compliance with the law. If, despite the Department’s efforts, compliance is not achieved, HHS officials will consider all legal options, including termination of funding and the return of funds paid out in violation of the nondiscrimination provisions.

“Many health care providers routinely face pressure to change their medical practice – often in direct opposition to their personal convictions,” said HHS Assistant Secretary of Health, Admiral Joxel Garcia, M.D. “During my practice as an OB-GYN, I witnessed this first-hand. But health care providers shouldn’t have to check their conscience at the hospital door. This proposed rule will help ensure that doesn’t happen.”

While it would strengthen provider conscience rights, the proposed regulation would in no way restrict health care providers from performing any legal service or procedure. If a procedure is legal, a patient will still have the ability to access that service from a medical professional or institution that does not assert a conflict of conscience. For example, the proposed regulation does not affect the ability of private clinics to provide abortion services in accordance with the law.

Congress has enacted three separate statutes to protect provider conscience rights. First, in the 1970s, the Church Amendments were enacted at various times in response to debates over whether receipt of federal funds required recipients to provide abortions or sterilizations. The Amendments also protected health care providers and other individuals from discrimination by recipients of HHS funds on the basis of their refusal, due to religious belief or moral conviction, to perform or participate in any lawful health service or research activity.

Second, in 1996, section 245 of the Public Health Service Act was enacted to prohibit the federal government and state or local governments that receive federal financial assistance from discriminating against individual and institutional health care providers, including participants in medical training programs, who refused to, among other things, receive training in abortions; require or provide such training; perform abortions; or provide referrals for, or make arrangements for, such training or abortions.

Third, the Weldon Amendment to the Department’s fiscal year 2005 appropriations act, and to subsequent years’ appropriations acts, prohibited the provision of HHS funds to any state or local government or federal agency or program that discriminates against institutional or individual health care entities on the basis that the entity does not provide, pay for, provide coverage of, or refer for abortion.

Despite this, many in the health care industry, and members of the general public, are unaware of these provider conscience rights. For example, an ethics opinion put forth several months ago by the American College of Obstetricians and Gynecologists appeared to disregard these laws. Subsequent action by the American Board of Obstetrics and Gynecology, which appeared to adopt the opinion, had the potential to force physicians to either violate their conscience by referring patients for abortions (or taking other objectionable actions) or risk losing their board certification. This case and others illustrate the need for the proposed rule to increase awareness of, and compliance with, the three statutes protecting provider conscience rights.

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