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HHS Establishes a New Conscience and Religious Freedom Division and Vows Vigorous and Effective Enforcement

Posted By Linda Howard, Friday, April 5, 2019
Updated: Tuesday, May 7, 2019

The Department of Health and Human Services Office for Civil Rights (OCR)1   has enforcement authority over federal conscience protection statutes and certain federal nondiscrimination laws that prohibit discrimination on the basis of religion in the following U.S. Department of Health and Human Services (HHS) programs and entities:

  • Maternal and Child Health Services Block Grant
  • Projects for Assistance in Transition from Homelessness
  • Preventative Health and Health Services Block Grant
  • Community Mental Health Services Block Grant
  • Substance Abuse Prevention and Treatment Block Grant
  • Programs funded under the Family Violence Prevention and Services Act
  • Federally-funded public telecommunication entities

Diverse group of employees in a meetingThis past January, HHS formed a new Conscience and Religious Freedom Division in the Office for Civil Rights. If your organization or facility receives certain federal funding and you do not have controls in place to ensure that your organization or facility protects your providers’ conscience and religious freedom, or your patients’ or enrollees’ religious freedom, my advice is to “suit up”. In other words, check your policies, start your monitoring, and develop your training to avoid being the subject of the new and enthusiastic enforcement efforts.

The Conscience and Religious Freedom Division’s mission is to restore federal enforcement of U.S. laws that protect the rights of conscience and religious freedom. In its announcement, the HHS explicitly stated that the creation of the new division will allow HHS to have greater focus on conscience and religious freedom issues necessary to more "vigorously and effectively enforce existing laws protecting the rights of conscience and religious freedom." So, expect more enforcement of Conscience and Religious Freedom regulations.

OCR Director Roger Severino stated in the announcement, "[l]aws protecting religious freedom and conscience rights are just empty words on paper if they aren’t enforced. No one should be forced to choose between helping sick people and living by one’s deepest moral or religious convictions, and the new division will help guarantee that victims of unlawful discrimination find justice. For too long, governments big and small have treated conscience claims with hostility instead of protection, but change is coming and it begins here and now."

If you have refused (or want to refuse) to perform, accommodate, or assist with certain health care services on religious or moral grounds and (1) you are working in an organization or facility that receives certain federal funding, or (2) you are an entity that has been discriminated against by a federal government and any state or local government receiving federal financial assistance, there is now an entire new division that will be dedicated to hearing your complaints and enforcing your rights, when those rights have been violated under the conscience protections provisions of federal laws listed below.

If you are (1) an individual who feels you have been discriminated against in the delivery of services by an organization or facility that receives certain federal funding, or (2) an individual or entity that has been discriminated against on the basis of religion, you too have a division that will, according to the OCR, "vigorously and effectively enforce" the protection of your religious freedom under any of the laws listed below.

Conscience Protections

Federal statutes protect health care providers’ conscience rights and prohibit recipients of certain federal funds from discriminating against health care providers who refuse to participate in services based on moral objections or religious beliefs. Below are the statutes that provide Conscience Protections.

  1. The Church Amendments (42 U.S.C. § 300a-7 et seq.)
    The Church Amendments protect the conscience rights of individuals and entities that object to performing or assisting in the performance of abortion or sterilization procedures if doing so would be contrary to the provider’s religious beliefs or moral convictions.
  2. Coats-Snowe (42 U.S.C. § 238(n))
    Coats-Snowe prohibits the federal government and any state or local government receiving federal financial assistance from discriminating against any health care entity on the basis that the entity: 1) refuses to undergo training in the performance of induced abortions, to require or provide such training, to perform such abortions, or to provide referrals for such training or such abortions; 2) refuses to make arrangements for such activities or 3) attends (or attended) a post-graduate physician training program, or any other program of training in the health professions, that does not (or did not) perform induced abortions or require, provide or refer for training in the performance of induced abortions, or make arrangements for the provision of such training.
  3. The Weldon Amendment (Pub. L. No. 111-117, 123 Stat 3034)
    The Weldon Amendment provides that "[n]one of the funds made available in this Act may be made available to a Federal agency or program, or to a state or local government, if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions."
  4. The Affordable Care Act (Pub. L. No. 111-148 as amended by Pub. L. No. 111-152)
    The Affordable Care Act includes new health care provider conscience protections related to the Health Insurance Exchange program. Section 1303(b)(4) of the Affordable Care Act provides that "No qualified health plan offered through an Exchange may discriminate against any individual health care provider or health care facility because of its unwillingness to provide, pay for, provide coverage of, or refer for abortions."

    Section 1553 of the Affordable Care Act states that the Federal Government and any state or local government or health care provider that receives federal financial assistance under this Act (or an amendment made by this Act) or any health plan created under this Act (or an amendment made by this Act) may not discriminate against an individual or institutional health care entity because the entity does not provide any health care item or service that causes, or assists in causing, the death of any individual, such as by assisted suicide, euthanasia, or mercy killing.

OCR enforces these laws and regulations that protect conscience and prohibit coercion of providers to perform, accommodate, or assist with services that conflict with such providers’ religious or moral beliefs in HHS funded or controlled programs and activities. Examples of services that a provider may refuse to perform on religious or moral grounds are things like abortion and assisted suicide.

Healthcare providers may file a complaint under the Federal Health Care Provider Conscience Protection Statutes if they believe that they have experienced discrimination because they:

  • Objected to, participated in, or refused to participate in specific medical procedures, including abortion and sterilization, and related training and research activities
  • Were coerced into performing procedures that are against their religious or moral beliefs
  • Refused to provide health care items or services for the purpose of causing, or assisting in causing, the death of an individual, such as by assisted suicide or euthanasia

(Source - https://www.hhs.gov/conscience/conscience-protections/index.html)

Religious Freedom

OCR also enforces the following laws and regulations that protect the free exercise of religion and prohibit discrimination in in HHS funded or controlled programs and activities.

  1. Section 508 of the Social Security Act (42 USC § 708)
    Section 508 of the Social Security Act prohibits discrimination on the basis of age, race, color, national origin, disability, sex, or religion in the Maternal and Child Health Services Block Grant.
  2. Section 533 of the Public Health Service Act (42 USC § 290cc-33)
    Section 533 of the Public Health Service Act prohibits discrimination on the basis of age, race, color, national origin, disability, sex, or religion in Projects for Assistance in Transition from Homelessness.
  3. Section 1908 of the Public Health Service Act (42 USC §300w-7)
    Section 1908 of the Public Health Service Act prohibits discrimination on the basis of age, race, color, national origin, disability, sex, or religion in programs, services, and activities funded by Preventative Health and Health Services Block Grants.
  4. Section 1947 of the Public Health Service Act (42 USC § 300x-57)
    Section 1947 of the Public Health Service Act prohibits discrimination on the basis of age, race, color, national origin, disability, sex, or religion in programs, services, and activities funded by Community Mental Health Services Block Grant and Substance Abuse Prevention and Treatment Block Grants.
  5. The Family Violence Prevention and Services Act (42 USC § 10406)
    The Family Violence Prevention and Services Act prohibits discrimination on the basis of race, color, national origin, disability, sex, or religion in programs, services, and activities funded under this Act.
  6. The Communications Act of 1934 (47 USC § 398)
    The Communications Act of 1934 prohibits employment discrimination on the basis of age, race, color, religion, national origin, or sex by federally-funded public telecommunication entities.

(Source - https://www.hhs.gov/conscience/religious-freedom/index.html)

Insight

The Conscience and Religious Freedom Division in the Office for Civil Rights is a division worth watching. Its enforcement activity will not go without challenge. Religion is a very passionate subject and civil rights is serious business. Challenges will likely come if the exercise of those freedoms is viewed as discriminatory by those who are denied a service by a provider because it is against the providers’ religious or moral beliefs.

Personal conflicts may arise when the religious belief being protected defies the sense of right and wrong of individual regulators charged with enforcing the statutes. Question of “sincere” religious beliefs and convictions may be wrongly assessed from the worldview of the adjudicator and not from the cultural prospective of the one invoking the conscience and religious freedom right.

If regulators lack the multicultural competency necessary to navigate the emotions, beliefs and culture of the complainant, they could render outcomes inconsistent with the stated goal of protecting religious and conscience freedoms. Protecting religious and conscience freedoms may support a fundamental and constitutional right, but it is a hard thing to enforce because there is usually immense passion and unwavering conviction on opposing sides. Just look at the case that highlighted a clash between gay rights and claims of religious freedom when a Colorado baker refused to make a wedding cake for a gay couple2. This issue went all the way to the United States Supreme Court. It takes a lot of passion and conviction, among other things, to get to the Supreme Court.

Regardless of where you fall on issues related to conscience and religious freedom, if you are responsible for overseeing your organization’s compliance with the applicable federal laws, it is time to access your risks and update your policies, because the Conscience and Religious Freedom Division in the Office for Civil Rights has officially been launched.

To file a complaint with the OCR based on a violation of civil rights, conscience or religious freedom, or health information privacy, visit HHS.gov.

 

1  OCR is the law enforcement agency within HHS that enforces federal laws protecting civil rights and conscience in health and human services, and the security and privacy of people’s health information.

2  Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.


Linda Howard, JD, CHC (7-2013)Linda Howard, JD, CHC (7-2013) is the CEO of Alturnative, a healthcare compliance consultancy that helps build people-forward organizations and establish compliance, ethics, and quality standards for the health, fitness, and wellness industries. She is a multi-faceted compliance and ethics consultant with over 30 years of combined experience in law, compliance, and healthcare operations and a passion for wellness, and a believer in social responsibility. Her prior professional titles include Chief Compliance Intellect Officer; Associate Vice President, Business Ethics; Privacy Officer; Associate (Attorney); and Senior In-House Counsel.

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