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This final rule would provide for the implementation and enforcement of the Federal health care conscience and associated anti-discrimination laws.

Statement of Need:

Revision of the current conscience rule is necessary to provide proper enforcement tools to address unlawful discrimination, coercion and hostility, which has been the subject of a rising number of complaints before OCR and in Federal courts and raised questions from Congressional oversight.  Clarity about existing conscience protections is needed to reduce confusion about the law. Furthermore, the Department lacks strategic coordination across its components and enforcement tools that are available to remedy invidious discrimination under other protected bases.

Summary of the Legal Basis:

The rule would enforce and implement health care conscience and associated anti-discrimination statutes that protect health care providers and patients in these areas as prescribed by Congress: (1) conscience protections related to abortion, sterilization, and certain other health services to participants in programs and their personnel funded by the Department;  (2) conscience protections for health care entities related to abortion provision or training, referral for such abortion or training, or accreditation standards related to abortion; (3) protections from discrimination for health care entities and individuals who object to furthering or participating in abortion under programs funded by the Department’s yearly appropriations acts; (4) conscience protections under the Patient Protection and Affordable Care Act related to assisted suicide, individual mandate, and other matters of conscience; (5) conscience protections for objections to counseling and referral for certain services in Medicaid or Medicare Advantage; (6) conscience protections related to the performance of advanced directives; (7) conscience protections related to Global Health Programs to the extent administered by the Secretary; (8) exemptions from compulsory health care or services generally and under specific programs for hearing screenings, occupational illness testing, vaccination, and mental health treatment; and (9) protections for religious nonmedical health care.

Alternatives:

Maintaining the status quo by enforcing 45 CFR part 88 as it currently exists creates a significant risk of unaddressed violations of conscience laws, and leaves few remedies available due to OCR’s administrative enforcement scheme and court decisions holding that Congress did not incorporate into its conscience statutes for parties to file private rights of action in the courts.

Anticipated Costs and Benefits:

Protection of religious beliefs and moral convictions is a broad qualitative benefit that serves individual rights and society as a whole, and protection of conscience reduces barriers to entry, combats attrition, and increases diversity of providers in the health care field. Costs of $311 million in the first year and $124.6 million per year in years 2 through 5 are estimated to be incurred for familiarization with the law, preparation of notices and assurances of compliance, compliance procedures and voluntary remedial efforts. Costs for OCR enforcement are $1 million in the first year and $1 million per year in years 2 through 5.

Risks:

Enforcement of these conscience laws could risk reduction in access to health care services in low provider populated areas.