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In keeping with Executive Orders 14202 and 14188, and HHS’ commitment to reevaluate its regulations and guidance pertaining to Federal laws on conscience and religious exercise, the proposed conscience rule would amend the 2024 rule to make technical corrections and clarify how OCR addresses those federal authorities. 

Statement of Need:

HHS is the Federal government's lead agency for protecting the health of all Americans and providing essential human services. OCR supports that mission by ensuring HHS programs and funds are expended in keeping with applicable civil rights laws, including laws protecting the conscience rights of the health care workforce. Current OCR regulations provide clarity on OCR’s enforcement process but do not address the scope and meaning of the federal health care conscience statutes. Prior rulemakings have received significant stakeholder engagement requesting clarity on these authorities. This regulatory action is needed to clarify that scope and meaning to ensure the health care workforce can avail themselves of their protection, thereby ensuring their ability to continue providing health care, including in the service of women, children, and families.

Summary of the Legal Basis:

This regulation would be promulgated under federal conscience and religious freedom protections such as the following authorities: The Federal health care conscience statutes (e.g., 42 U.S.C. 300a-7 (the Church Amendments); 42 U.S.C. 238n (Coats-Snowe Amendment); the Weldon Amendment (e.g., Pub. L. 115-245, Div. B, sec. 507(d)). The authorities include the Department’s Housekeeping Authority (5 U.S.C. 301); 40 U.S.C. 121(c); 42 U.S.C. 263a(f)(1)(E); Uniform Administrative Requirements, Cost Principles, and Audit Requirements For HHS Awards (45 CFR parts 75 and 96); Federal Acquisitions Regulations (48 CFR chapter 1; 48 CFR part 370); HHS Nonprocurement Debarment And Suspension (2 CFR part 376).

Alternatives:

OCR will consider as alternative approaches to the proposed rulemaking:

A. Not engaging in rulemaking and maintaining the status quo.

B. Engaging in technical rulemaking only to add related authorities to OCR’s delegation to enforce the federal health care conscience statutes and to clarify portions of the current regulation.

C. Promulgating a rule substantially similar in scope and cost to the 2019 Final Conscience Rule.

Anticipated Costs and Benefits:

The 2024 Final Conscience Rule had significant quantifiable savings of -$128,000,000 annualized value for the 7% discount rate as a result from partly repealing the 2019 conscience rule. This regulatory action would be building on that final rule to confer non-quantifiable benefits such as notice and greater clarity for the medical community about existing statutory obligations and protections. This regulatory action would also confer qualitative benefits, including sustaining membership in the workforce of practitioners who would otherwise not join or remain in the workforce but for protection of their statutory conscience rights. This regulatory action would address Government and other federally funded discrimination against health care systems, insurers, providers, and the like could reduce the private health care workforce, and in turn, this could result in longer wait times, lower quality of care, and more people accessing government funded health insurance with greater costs to the public.

This regulatory action would likely incur some quantifiable costs associated with ensuring compliance with the federal health care conscience statutes. Similar to the 2019 and 2024 Final Conscience Rules, this regulatory action is likely to have familiarization costs similar to the $106.3 million cost (at a 7% discount) in the 2024 Final Rule and $103 million cost (at a 7% discount) in the 2019 Final Rule. The familiarization costs in this rule will be adjusted for inflation and will occur in the first year after publication. This regulatory action may prompt covered entities to incur voluntary remedial efforts, at a similar inflation-adjusted cost to the 2019 Rule, which costs ranged between $8.0 million and $5.4 million annually (at a 7% discount rate). Other costs associated with the 2019 Final Rule, including additional enforcement costs to OCR and the cost of voluntary notices, were not considered new costs under the 2024 Final Rule. OCR does not anticipate additional costs associated with voluntary notices, however, there may be additional modest enforcement costs to OCR at less than $3 million a year.

Risks:

This regulation may reduce risks to public health by reducing instances of conscience-based discrimination. This both prevents the deleterious impact discrimination can have on the individuals experiencing the discrimination, and the negative impact on public health of a reduction in work force membership, including in rural areas, of practitioners who would otherwise not join or remain in the workforce but for awareness of and clear protection of their statutory conscience rights. The magnitude of the risk addressed by the action is similar to OCR’s role in mitigating risks to public health posed by discrimination on other bases, though allegations of conscience-based discrimination currently constitute a smaller portion of the discrimination-based complaints received annually by OCR.