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Safeguarding the Rights of Conscience as Protected by Federal Statutes rule (2023)

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The Safeguarding the Rights of Conscience as Protected by Federal Statutes rule is a significant rule issued by the Office of Civil Rights and Office of the Secretary effective January 5, 2023 that proposes to partially rescind the rule "Protecting Statutory Conscience Rights in Health Care; Delegations of Authority"[1]

HIGHLIGHTS
  • Name: Safeguarding the Rights of Conscience as Protected by Federal Statutes
  • Agency: Office of Civil Rights, Office of the Secretary
  • Action: proposed rule
  • Type of significant rule: Economically significant rule

    • Timeline

    The following timeline details key rulemaking activity:

    • March 6, 2023: The comment period ended.[1]
    • January 5, 2023: The Office of Civil Rights, Office of the Secretary published the proposed rule and opened the comment period.[1]

    Background

    The Church Amendments were passed at various times in the 1970s and protect individuals and institutions receiving federal health funds from being forced to participate in abortions or sterilizations that violate their religious beliefs or moral convictions.

    Furthermore, Section 1553 of the Patient Protection and Affordable Care Act (ACA) was passed in 2010 and prohibits discrimination against individuals or healthcare entities that refuse to provide services that result in the death of a person, such as assisted suicide, euthanasia, or mercy killing, if they receive federal funding under the ACA.[1]

    Summary of the rule

    The following is a summary of the rule from the rule's entry in the Federal Register:[1]


    “

    The Department proposes 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.” (“2011 Final Rule”). The Department also proposes to retain, with some modifications, certain provisions of the 2019 Final Rule regarding federal conscience protections but eliminate others because they are redundant or confusing, because they undermine the balance Congress struck between safeguarding conscience rights and protecting access to health care access, or because significant questions have been raised as to their legal authorization. Further, the Department seeks to determine what additional regulations, if any, are necessary to implement certain conscience protection laws. The Department is seeking public comment on the proposal to retain certain provisions of the 2019 Final Rule, including on any alternative approaches for ensuring compliance with the conscience protection laws.[2]

    		”

    Summary of provisions

    The following is a summary of the provisions from the rule's entry in the Federal Register:[1]

    “

    The Department proposes to retain three aspects of the 2019 Final Rule: (1) the application to statutes first referenced in the 2019 Final Rule; (2) several enforcement provisions; and (3) a voluntary notice provision. The provisions proposed to be retained have been modified to address concerns raised by many of the commenters—and echoed in federal district court decisions—about the Department's underlying rulemaking authority.[13]

    The new proposed rule relies on the Department's housekeeping authority under 5 U.S.C. 301, which permits the Department to issue regulations concerning its own internal procedures and operations, and therefore allows for the modifications in this proposed rule.

    First, the Department proposes to expand the category of “federal health care provider conscience protection statutes” covered by the rule to include the statutes that HHS added to § 88.3 in the 2019 Final Rule. Those statutes, which are described above, include conscience protections embedded in a wide range of Department programs, including Medicare and Medicaid, the administration of the Affordable Care Act, global health programs, health screenings, and more. Retaining these provisions as part of the rule, and maintaining OCR as the centralized HHS office tasked with receiving and investigating complaints under these provisions, will aid the public by increasing awareness of the rights protected by the various statutes and where to file complaints alleging violations of those rights.

    Second, the Department proposes to retain a number of provisions from the 2019 Final Rule related to complaint handling and investigations. In the proposed § 88.2, the Department expands upon the 2011 Final Rule's description of complaint handling and investigation. Paragraph (a) describes OCR's authority to receive and handle complaints, seek voluntary compliance, and work with relevant Department components to ensure compliance through existing enforcement mechanisms. Paragraph (b) describes how OCR will conduct investigations. Paragraph (c) describes how OCR will proceed if an investigation reveals a violation of a federal health care provider conscience protection statute, and paragraph (d) provides that OCR will seek voluntary resolution of violations and will inform relevant parties if it has found no violation.

    Finally, the Department proposes to retain the 2019 Final Rule's voluntary notice provisions, with some modifications to address concerns identified above. Notice of conscience protections and nondiscrimination laws under those provisions is an important means of promoting compliance. Such notices inform the public, patients, and workforce, which may include students or applicants for employment or training, of protections under the Federal conscience and nondiscrimination laws and this rule.[2]

    		”

    Significant impact

    See also: Significant regulatory action

    Executive Order 12866, issued by President Bill Clinton (D) in 1993, directed the Office of Management and Budget (OMB) to determine which agency rules qualify as significant rules and thus are subject to OMB review.

    Significant rules have had or might have a large impact on the economy, environment, public health, or state or local governments. These actions may also conflict with other rules or presidential priorities. Executive Order 12866 further defined an economically significant rule as a significant rule with an associated economic impact of $100 million or more. Executive Order 14094, issued by President Joe Biden (D) on April 6, 2023, made changes to Executive Order 12866, including referring to economically significant rules as section 3(f)(1) significant rules and raising the monetary threshold for economic significance to $200 million or more.[1]


    The text of the Safeguarding the Rights of Conscience as Protected by Federal Statutes rule states that OMB deemed this rule economically significant under E.O. 12866:

    “

    We believe that this proposed rule is an economically significant regulatory action as defined by Executive Order 12866.[2]

    		”

    Text of the rule

    The full text of the rule is available below:[1]

    See also

    External links

    Footnotes

    1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 Federal Register, "Safeguarding the Rights of Conscience as Protected by Federal Statutes," January 5, 2023
    2. ↑ 2.0 2.1 2.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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