OCR Releases Long-Awaited Final Rule Regarding Conscience Protections for Religious and Ethical Objections in Health Care | JD supra

[co-authors: Maya Lytje, Matthew Tikhonovsky and Rachel Wang]

On January 11, 2024, the Office of Civil Rights (OCR) issued a highly anticipated final rule regarding conscience protections. The final rule allows practitioners and organizations to emphasize the protections of religious beliefs and moral beliefs in their health care practices. The last rule, by name Protecting conscience rights protected by federal lawsWith effect from March 11, 2024.

A Brief History of Conscientious Objector Laws

The final rule has been long awaited by policy, legal and health care practitioners as it has changed with each presidential administration since its initial release. Conscience protection provisions were first introduced during the Bush administration to implement the Weldon, Coates-Snow, and Church Amendments (collectively, the “Federal Health Care Conscience Protection Acts”), protecting health care practitioners from providing services they consider religious or moral. objectionable. In 2011, the Obama administration amended the rule to expand access to health care while protecting religious rights, allowing OCR to handle matters of conscience on a case-by-case basis. Finally, in 2019, the Trump Administration returned to and expanded the Bush Administration’s rule, which became more protective of practitioners’ moral and religious objections; However, the rule has been struck down by courts in New York, Washington and California. The Biden administration’s final rule is an attempt to balance the competing interests of moral and religious protections and patient access to certain services, including abortion, gender-affirmation care and physician-assisted suicide.

Summary of the 2024 Final Rule

The final rule addresses the following areas subject to multi-year rulemaking by OCR:

1. Enforcement Mechanisms by OCR

The Final Rule clarifies that OCR has the authority to handle and investigate complaints of alleged violations of federal health care conscience protection laws. Under this authority, OCR is responsible not only for receiving complaints and conducting investigations and compliance reviews, but also for resolving complaints, coordinating appropriate remedial actions, and, if necessary, making enforcement referrals to the Department of Justice (DOJ). In addition, the final rule sets forth several specific technical details of OCR’s processes for investigating complaints and enforcing conscientious objection laws:

• By default, informal means of resolution: The final rule states that OCR will address any failures to comply with the regulations “through informal means whenever possible.”
• Further complaint redressal steps, if necessary: The final rule provides that if informal means of resolving a complaint are unsuccessful, OCR, in coordination with the appropriate department, “(i) utilizes existing implementing regulations, such as those applicable to grants, contracts, or other programs; Services, or (ii) withhold related funds as authorized.
• A negative inference drawn from failure to respond to a data request: The final rule clarifies that if an entity fails to provide information or data within a reasonable time, without good cause, OCR will consider that fact negatively in its evaluation.
• DOJ referral as a last resort: The final rule clarifies that OCR, when informally unsuccessful, may refer a complaint to DOJ for resolution.

2. Best practices for serving notice to the public

OCR emphasizes the importance of informing the public about federal health care conscience protection laws. Accordingly, OCR encourages entities to post notice of relevant laws as a best practice and to clarify its intent to consider whether notice exists in the event of an investigation or compliance review. The final rule provides the following guidance:

• subject: OCR provides a model notice for entities to use. This model notice includes a reminder of individuals’ rights under these federal laws as well as language indicating that the entity complies with applicable federal health care conscience protection laws, which prohibit “coercion or other discrimination based on religious beliefs or conscience. Ethical beliefs, under certain circumstances.” Entities are encouraged to tailor the notice to their specific circumstances and to include information about alternatives to receiving services not provided based on their conscientious objection. Entities may also post a notice of statutory safeguards. Other forms Discrimination. The complete model notice can be found in Appendix A of the final rule.
• placement: OCR encourages posting where patients are likely to see it, such as entity websites, a conspicuous physical location, personnel manuals, handbooks, training and student handbooks or training materials for the student workforce.
• format: The text of the notice should be large enough to be easily read and displayed in a manner that prevents alteration, removal or covering of the notice.

3. Striking a balance in competition laws

The agency notes that it will continue to enforce other laws that conflict with religious and moral objections. Among other laws, the final rule addresses the Emergency Medical Treatment & Labor Act (EMTALA), which requires the provision of emergency treatment to stabilize a patient before discharge, which may include a service such as an emergency abortion. OCR also recognized its authority to enforce Title X, which provides low-cost reproductive health care for low-income patients. OCR considers the interests protected by these laws as a factor when investigating conscientious objection complaints.

The end

The final rule clarifies that OCR considers maintaining religious and moral protections as one of the many interests that OCR must implement in the health care setting. The final rule provides insight into OCR’s mechanisms and considerations during investigations arising from conscientious objection complaints. As OCR struggles to find a middle ground on these contentious issues, the final rule seeks to clarify the agency’s process for addressing the diverse issues of patient access to services such as abortion and gender-confirmation care with federal conscience protections.

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