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HHS to rescind provider conscience rule

The Department of Health and Human Services (HHS) published a proposal in the Federal Register seeking comments in order to determine whether to rescind its provider conscience rule in part or in its entirety.

The provider conscience rule, which was scheduled to take effect January 20, 2009, prohibits discrimination against health care providers receiving government funds who refuse to participate in “objectionable procedures” based on their moral or religious beliefs. The rule has been drafted broadly to cover any “activity related in any way to providing medicine, healthcare or any other service related to health or welfare,” which includes performing abortions or prescribing and dispensing birth control. The rule has been on hold since January 20 pursuant to an Obama Administration legal and policy review. The final rule, entitled Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law, was published in the Federal Register on December 19, 2008. It can be found at:

During the comment period for the rule, HHS received comments from a wide variety of individuals and organizations, including private citizens, individual and institutional health care providers, religious organizations, patient advocacy groups, professional organizations, universities and research institutions, consumer organizations, and state and federal agencies and representatives. HHS describes these comments as addressing “a range of issues surrounding the proposed rule, including the need for the rule, what kinds of workers would be protected by the proposed rule, the rule’s relationship to Title VII…and other statutes and protections, what services are covered by the rule, whether health care workers might use the regulation to discriminate against patients, what significant implementation issues could be associated with the rule, legal arguments, the cost impacts and the public health consequences of the rule.”

Comments sought. According to the March 10, 2009, Federal Register notice, HHS is seeking comments in order to determine whether to rescind the final rule in part or in its entirety. HHS believes it is important to have an opportunity to review the regulation to ensure it is consistent with current Administration policy and to reevaluate the need for regulations implementing the Church Amendments, Section 245 of the Public Health Service Act and the Weldon Amendment, according to the agency’s notice of proposed rule to rescind.

In particular, HHS seeks the following: (1) information, including specific examples where feasible, addressing the scope and nature of the problems giving rise to the need for federal rulemaking and how the current rule would resolve those problems; (2) information, including specific examples where feasible, supporting or refuting allegations that the December 19, 2008 final rule reduces access to information and health care services, particularly by low-income women; (3) comments on whether the December 19 final rule provides sufficient clarity to minimize the potential for harm resulting from any ambiguity and confusion that may exist because of the rule; and (4) comments on whether the objectives of the December 19 final rule might also be accomplished through non-regulatory means, such as outreach and education.

A copy of HHS’s proposed rule rescinding the final provider conscience regulation is available at:

Submissions. Written or electronic comments must be submitted by April 9. Comments will not be accepted by facsimile. Comments should refer to “Rescission Proposal.” Electronic comments may be submitted at or via email to Written comments may be sent by express or regular mail (one original and two copies) to the following address only: Office of Public Health and Science, Department of Health and Human Services, Attention: Rescission Proposal Comments, Hubert H. Humphrey Building, 200 Independence Avenue, SW, Room 716G, Washington, DC 20201. Comments may be submitted by hand or currier to the same address, but because Room 716G is not readily accessible to persons without federal government identification, commenters are encouraged to leave their comments in the mail drop slots located in the main lobby of the building. A stamp-in clock is available for persons wishing to retain proof of filing by stamping in and retaining an extra copy of the documents being filed.

Individuals seeking further information should contact Mahak Nayyar, (240) 276-9866, Office of Public Health and Science, Department of Health and Human Services, Room 716G, Hubert E. Humphrey Building, 200 Independence Avenue, SW, Washington, DC 20201.

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

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