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LABOR & EMPLOYMENT LAW — 01/05/09

HHS finalizes controversial provider conscience rule

In addition to understanding their antidiscrimination obligations under Title VII of the Civil Rights Act of 1964, some health care employers will need to be concerned about a whole different set of rules related to employees’ religious beliefs. The right of federally funded health care providers to decline to participate in services to which they object, such as abortion, is affirmed by the US Department of Health and Human Services’ (HHS) final rule notice published in the Federal Register on December 19, 2008. (See 73 FR 78071) The regulation is effective January 20, 2009, but HHS components have been given discretion to phase in the regulation’s written certification requirement by October 1, 2009, the beginning of the 2010 federal fiscal year.

At the proposed rulemaking stage, the US Equal Employment Opportunity Commission’s (EEOC) Legal Counsel and two of its commissioners expressed concerns for the regulation’s overlap with Title VII and potential conflict with current law, including the Establishment Clause of the US Constitution. Legislation was also introduced in the Senate in November which would, if passed, prevent HHS from finalizing, enforcing or implementing the regulation.

Reason for the regulation. HHS points out in its final rule notice that over the past three decades, Congress enacted several statutes to safeguard the freedom of health care providers to practice according to their conscience. The new regulation will increase awareness of, and compliance with, these laws, according to HHS.

Federal protection of provider conscience rights dates back to the 1970s, when Congress enacted the Church Amendments. The Amendments protect health care providers and other individuals from discrimination by recipients of HHS funds on the basis, among other things, of their refusal, due to religious belief or moral conviction, to perform or participate in any lawful health service or research activity.

In 1996, Congress prohibited federal, state or local governments from discriminating against individual and institutional health care providers (including participants in medical training programs) who refused to, among other things, receive training in abortions; require or provide such training; perform abortions; or provide referrals for, or make arrangements for, such training or abortions.

Provider conscience protections were expanded again as part of HHS’ fiscal year 2005 appropriations act. In that law, and in subsequent years’ appropriations acts, Congress prohibited the provision of HHS funds to any state or local government or federal agency or program that discriminates against institutional or individual health care entities on the basis that the entity does not provide, pay for, provide coverage of, or refer for abortion.

What the new regulation does. HHS advises that, specifically, the final rule (45 CFR Part 88): (1) clarifies that non-discrimination protections apply to institutional health care providers as well as to individual employees working for recipients of certain funds from HHS; (2) requires recipients of certain HHS funds to certify their compliance with laws protecting provider conscience rights; and (3) designates the HHS Office for Civil Rights as the entity to receive complaints of discrimination addressed by the existing statutes and the regulation.

HHS notes that its officials gave careful consideration to all comments received during the public comment period. The final rule summarizes the breadth and scope of the comments received and articulates HHS’ responses to them. Changes to the proposed rule include the reduction of covered entities required to sign certifications of compliance with the regulation, in order to exempt the recipients of HHS funding programs which are unlikely to involve the use Department funds for health services or research activities and, thus, unlikely to be implicated by the statutes and the regulation.

In the preamble to the final regulation, HHS also encourages providers to engage their patients early on in “full, open, and honest conversations” to disclose what services they do and do not provide, the Department says. While it would strengthen provider conscience rights, the regulation would in no way restrict health care providers from performing any legal service or procedure. If a procedure is legal, a patient will still have the ability to access that service from a medical professional or institution that offers it, HHS points out. For example, the regulation does not affect the ability of medical institutions to provide abortion services in accordance with the law, the Department asserts.

EEOC officials’ concerns. There was substantial controversy about the regulation during the proposed rulemaking stage. In separate written comments, Legal Counsel for the EEOC and two of the agency’s commissioners expressed concerns about the proposed regulation’s overlap with Title VII’s protection against religious discrimination in employment and the potential confusion resulting from the imposition of a second religious bias standard for healthcare workers. These comments, however, are not official opinions of the EEOC.

The proposed regulation overlaps with Title VII because one of its “central goals is to prevent employment discrimination on the basis of ‘moral or ethical beliefs as to what is right and wrong,’” wrote EEOC Legal Counsel Reed L. Russell in a letter dated September 24, 2008. “Because of this overlap, the employment discrimination aspect of the proposed Provider Conscience Regulation is unnecessary for protection of employees and applicants, is potentially confusing to the regulated community, and will impose a burden on covered employers, particularly small employers,” Reed advised.

EEOC Commissioners Stuart J. Ishimaru and Christine M. Griffin, writing separately in a letter dated September 25, 2008, expressed a similar observation: “The proposed rule is unnecessary to protect the religious freedom and freedom of conscience of healthcare workers, because Title VII already serves that purpose. Healthcare workers are already protected from religious discrimination and have the right to reasonable accommodation of their religious beliefs under Title VII.”

Reed and the commissioners also pointed out that there exists a body of jurisprudence interpreting Title VII’s prohibition against religious bias – developed over the course of more than forty years – that balances employees’ rights to religious freedom against employers’ business needs, incorporating a defense of undue hardship. “The issuance of the proposed regulations would throw this entire body of law into question, resulting in needless confusion and litigation in an attempt to redefine religious freedom rights for employees in the healthcare sector,” warned Commissioners Ishimaru and Griffin.

Additionally, the commissioners expressed concern about how the proposed HHS regulation squares with current law: “In contrast to the balancing analysis required by Title VII, the proposed regulations purport to create an absolute right to religious accommodation for healthcare providers who oppose particular medical procedures. In addition to creating significant tension with Title VII, these proposed regulations potentially violate the Establishment Clause.”

Reed noted that potential confusion to healthcare employers as a result of having to comply with both the Title VII religious bias standard and a new one created under the proposed HHS regulation would be particularly acute for smaller employers with fewer resources and employees, such as pharmacies and doctors’ offices.

Response to concerns. In its final rule notice, HHS addresses concerns similar to some of those expressed by EEOC officials, in part, by stating:

Title VII was enacted nine years before the first of the health care conscience protection laws was passed; it includes specific language with respect to reasonable accommodation and undue hardship with respect to religion. . . . Notwithstanding the existence of Title VII, Congress passed a series of laws to explicitly protect provider conscience without using Title VII’s formulation. Moreover, where Title VII is restricted to the employment context, the provider conscience provisions are not so limited. As a result, we believe it is a reasonable interpretation of the statutes that Congress sought to ensure provider conscience protections that are distinct from, and extend beyond, those under Title VII. The Department’s enforcement of the provider conscience laws will be informed, for example, by comparison to Title VII religious discrimination jurisprudence. (73 FR 78084)

Legislative action. Senators Hillary Clinton (D-NY) and Patty Murray (D-Wash) introduced legislation (S. 20) on November 20 that would prohibit the HHS from finalizing, enforcing or implementing HHS’ “right of conscience” rule. The bill was referred to the Committee on Health, Education, Labor, and Pensions.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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