The new conscience regulation: gutting protections, laying landmines

HHS:  "Sections 88.2 through 88.5 of the 2008 Final Rule have been removed. Section 88.2 contains definitions of terms used in the federal health care provider conscience statutes."

"The preamble to the August 26, 2008 Notice of Proposed Rulemaking (73 FR 50274) and the preamble to the December 19, 2008 Final Rule (73 FR 78072) addressing these sections are neither the position of the Department, nor guidance that should be relied upon for purposes of interpreting the federal health care provider conscience protection statutes."

HHS:  "The 2008 Final Rule did not provide that the term "abortion," as contained in the federal healthcare provider conscience protection statutes, includes contraception. However, the comments reflect that the 2008 Final Rule caused significant confusion as to whether abortion also includes contraception. The provision of contraceptive services has never been defined as abortion in federal statute. There is no indication that the federal health care provider conscience statutes intended that the term "abortion" included contraception. "

HHS:  "Many comments expressed concern that the 2008 Final Rule would prevent a patient from being able to give informed consent, because the health care provider might not advise the patient of all health care options. Partial rescission of the 2008 Final Rule should clarify any mistaken belief that it altered the scope of information that must be provided to a patient by their provider in order to fulfill informed consent requirements."

HHS:  "The Department received several comments suggesting that the 2008 Final Rule could limit access to reproductive health services and information, including contraception, and could impact a wide range of medical services, including care for sexual assault victims, provision of HIV/AIDS treatment, and emergency services. Additionally, a number of commenters expressed concern that the 2008 Final Rule could disproportionately affect access to health care by certain sub-populations, including low income patients, minorities, the uninsured, patients in rural areas, Medicaid beneficiaries, or other medically-underserved populations."

"The Department agrees with comments that the 2008 Final Rule may negatively affect the ability of patients to access care if interpreted broadly. Accordingly, the Department partially rescinds the 2008 Final Rule based on concerns expressed that it had the potential to negatively impact patient access to contraception and certain other medical services without a basis in federal conscience protection statutes."

HHS:  "The Department received more than 300,000 comments addressing its notice of proposed rulemaking proposing to rescind in its entirety the 2008 Final Rule. More than 97,000 individuals and entities submitted comments generally supportive of the proposal to rescind the 2008 Final Rule. Nearly 187,000 comments expressed opposition to the Department's proposal to rescind the 2008 Final Rule."

HHS:  "While the longstanding federal health care provider conscience protection statutes have provided protections for health care providers, there was no clear mechanism for a health care provider who believed his or her rights were violated to seek enforcement of those rights. To address these comments, this final rule retains the provision in the 2008 Final Rule that designates the Office for Civil Rights (OCR) of the Department of Health and Human Services to receive complaints of discrimination and coercion based on the federal health care provider conscience protection statutes."

HHS:  "The Department received many comments expressing concern about the lack of knowledge about the federal health care provider conscience protection statutes in the health care industry.  Many commenters opposed to rescission related anecdotes of hospitals and other health care entities failing to respect the conscience rights of health care providers. The Department believes it is important to provide outreach to the health care community about the federal health care provider conscience protection statutes."

HHS:  "The Department agrees with concerns that the 2008 Final Rule may have caused confusion as to whether the federal statutory conscience protections allow providers to refuse to treat entire groups of people based on religious or moral beliefs."

HHS:  A substantial number of comments in opposition to rescinding the 2008 Final Rule maintainedthat Roman Catholic hospitals would have to close, that rescission of the rule would limit access to pro-life counseling, and that providers would either leave the health care industry or choose not to enter it, because they believed that they would be forced to perform abortions. Under this partial rescission of the 2008 Final Rule, Roman Catholic hospitals will still have the same statutory protections afforded to them as have been for decades.

HHS:  "The Department received several comments addressing the costs to providers of the 2008 Final Rule. Commenters stated that the new certification requirement imposed substantial additional responsibilities on health care entities, and that the burden analysis did not sufficiently account for the cost of collecting information for, submitting, and maintaining the written certifications required by the 2008 Final Rule. The Department agrees with these commenters, and believes that the certification requirements in the 2008 Final Rule are unnecessary to ensure compliance with the federal health care provider conscience protection statutes, and that the certification requirements created unnecessary additional financial and administrative burdens on health care entities. The Department believes that amending existing grant documents to require grantees to acknowledge that they will comply with the provider conscience laws will accomplish the same result with far less administrative burden."