On January 11, 2024, the U.S. Department of Health and Human Services (“HHS”) Office for Civil Rights (“OCR”) issued a Final Rule entitled “Safeguarding the Rights of Conscience as Protected by Federal Statutes” (the “2024 Final Rule”). The 2024 Final Rule, which will take effect on March 11, 2024, seeks to clarify the mechanisms by which OCR may enforce federal statutes related to the conscience rights of certain federally funded health care entities and providers (the “Federal Conscience Statutes”).
Background
The Federal Conscience Statutes prohibit discrimination of individuals who refuse to participate in health care services they find religiously or morally objectionable, such as the provision of abortion or the performance of certain advance directives. Regulations implementing the Federal Conscience Statutes date back to 2008 and were narrowed substantially by a 2011 revision (the “2011 Conscience Rule”).
In 2019, HHS published a sweeping update to the Conscience Rule ((the “2019 Conscience Rule”) covered in a prior Hall Render article here), which would have imposed additional requirements on covered employers to maintain records, cooperate with OCR’s investigations and compliance reviews and submit written assurances and certifications of compliance to HHS related to protected employees’ exercise of conscience. The 2019 Conscience Rule also prohibited retaliation against those asserting a right of conscience. Shortly before the 2019 Conscience Rule was set to take effect, several states and municipalities collectively filed suits against HHS in the U.S. District Court of the Southern District of New York and the U.S. District Court of the Central District of California, alleging that the 2019 Conscience Rule would undermine the states’ ability to run their health care programs effectively. In November 2019, a federal judge sitting in the Southern District of New York vacated the 2019 Conscience Rule in its entirety nationwide, meaning that covered health care entities and providers were no longer required to comply with the 2019 Conscience Rule.
Changes Introduced by the 2024 Final Rule
The 2024 Final Rule clarifies that OCR has the authority to receive and handle complaints regarding the Federal Conscience Statutes, and describes the mechanisms by which OCR may investigate and enforce conscience protections, including the initiation of compliance reviews and the use of existing enforcement regulations to achieve compliance or withhold relevant funding as authorized by the Federal Conscience Statutes in consultation with appropriate governmental authorities. Unlike the 2019 Conscience Rule, the 2024 Final Rule states that matters of noncompliance will be resolved using informal means whenever possible. The 2024 Final Rule does not, however, provide substantive guidance on how OCR will interpret or apply the Federal Conscience Statutes.
In addition, the 2024 Final Rule encourages covered entities to post notices informing providers and patients of their rights under the Federal Conscience Statutes and informing patients of alternative ways to obtain treatment. The posting of such a notice will be considered by OCR as a factor in any investigation initiated under the 2024 Final Rule.
Practical Takeaways
- Health care entities should consider reviewing the Federal Conscience Statutes closely to ensure that they understand the protections afforded individuals under those laws and have an appropriate plan in place to ensure compliance. While the 2024 Final Rule does not speak to how Federal Conscience Statutes will be interpreted or applied by OCR, the commentary to the 2024 Final Rule does state that HHS is “committed to applying the relevant [Federal Conscience Statutes] on a case-by-case basis, which respects the balance Congress sought to achieve through these statutes.”
- Health care entities subject to the 2024 Final Rule may wish to craft and post a notice of compliance or utilize the sample notice provided in Appendix A of the 2024 Final Rule, explaining the rights of providers and patients, as is recommended in the 2024 Final Rule.
- Entities should respond promptly to any investigation-related requests from OCR, as OCR may draw a negative inference based on failure to respond to such requests within a reasonable timeframe.
- In commentary to the 2024 Final Rule, HHS restates language from the 2011 Conscience Rule which provides that “laws are meant to be read in harmony,” entities are charged with simultaneous compliance with their Title X, Section 330, EMTALA and Medicaid obligations, and with Federal Conscience Statute compliance.
- The 2024 Final Rule does not change an employee’s existing rights and remedies under Title VII of the Civil Rights Act and applicable state anti-discrimination laws (e.g., those protecting against religious discrimination and harassment) and increased attention on these rights may result in increased employee charges thereunder. Particularly in light of the recent Supreme Court ruling in Groff v. DeJoy (covered in a prior Hall Render article here), which addressed the “undue hardship” standard that an employer must establish to deny a religious accommodation under Title VII of the Civil Rights Act, employers should carefully review any request for religious accommodation.
If you have questions about the 2024 Final Rule or if you would like to be updated on these developments, please contact:
- Mary Kate Liffrig at (720) 282-2033 or mliffrig@hallrender.com;
- Cait Bell-Butterfield at (919) 228-2408 or cbell-butterfield@hallrender.com; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
