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The Department proposed to partially rescind the May 21, 2019, final rule entitled, Protecting Statutory Conscience Rights in Health Care; Delegations of Authority (2019 Final Rule), while leaving in effect the framework created by the February 23, 2011, final rule, entitled, Regulation for the Enforcement of Federal Health Care Provider Conscience Protection Laws. The Department also proposed to retain, with some modifications, certain provisions of the 2019 Final Rule regarding federal conscience protections but eliminate others.

Statement of Need:

The Biden-Harris Administration takes seriously its obligations to comply with Federal conscience laws and the balance that Congress struck through these statutes. This rule demonstrates the Department’s commitment to educating patients, providers, and other covered entities about their rights and obligations under the conscience statutes and to ensure compliance with those authorities. 

Summary of the Legal Basis:

The Secretary of the Department of Health & Human Services is statutorily authorized to promulgate regulations to prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. 5 U.S.C. 301. The current Conscience Final Rule (issued in 2019) is in pending litigation.

Alternatives:

The Department has considered the alternative of maintaining the current regulation in its current form; however, the Department believes it is appropriate to undertake rulemaking in light of the issues raised in litigation challenges to the current rule.

Anticipated Costs and Benefits:

The Department estimates that the final rule would generate cost savings of $725.5 million using a 3-percent discount rate and $586.4 million using a 7-percent discount rate over the next five years.

Risks:

To be determined