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This proposed rule would amend HHS's regulations to implement Executive Order 13831 (Establishment of a White House Faith and Opportunity Initiative). Among other changes, this rule proposes to provide clarity regarding the rights and obligations of faith-based organizations participating in HHS’s programs. This proposed rulemaking aligns with HHS’s goal of implementing its programs and activities consistent with the First Amendment to the Constitution and the requirements of federal law, including the Religious Freedom Restoration Act.

Statement of Need:

The Department proposes to amend its regulations to implement Executive Order 13831, to provide clarity on the rights and obligations of faith-based organizations participating in HHS programs, and to align its programs and activities with the First Amendment to the Constitution and the requirements of federal law, including the Religious Freedom Restoration Act, as those laws have been interpreted by the U.S. Supreme Court.

Summary of the Legal Basis:

The legal basis for the rulemaking includes 5 U.S.C. 301; 42 U.S.C. 216(b); 31 U.S.C. 503(b)(2)(2); 41 U.S.C. Chapter 13; Religious Freedom Restoration Act, 42 U.S.C. 2000bb through 42 U.S.C. 2000bb-4.

Alternatives:

Alternatives considered by the Department include making no changes to the 45 CFR parts 87 and 1050, or making more limited changes.  It has determined that a rulemaking is necessary to, among other things, ensure the consistency of HHS’s regulations with the Executive Order.

Anticipated Costs and Benefits:

The Department anticipates that the rulemaking may eliminate certain minor or de minimis regulatory costs, and would have the benefit of better aligning its regulations with the Constitutions and the requirements of federal law.

Risks:

HHS’s current equal treatment regulations at part 87 and 1050 impose regulatory requirements on faith-based organizations that participate in HHS programs that do not also apply to other participants in HHS’s programs.  This presents risk that faith-based organizations may be discouraged from participating in HHS programs, to the detriment or potential detriment of those programs (and the populations they serve).  The rulemaking would also address the unequal treatment of secular and sectarian organizations that participate in HHS programs.  See Trinity Lutheran Church of Columbia v. Comer , 137 S. Ct. 2012 (2017).