On January 11, the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) published a Final Rule that seeks to provide clarity regarding OCR’s enforcement authority and processes relating to federal laws that protect against discrimination and retaliation based on religion or conscience (the Final Rule). This Final Rule, entitled “Safeguarding the Rights of Conscience as Protected by Federal Statutes,” will take effect March 11.

What Are the Federal Conscience Laws?

Federal law prohibits recipients of certain federal funds from requiring individuals and entities to participate in actions they find religiously or morally objectionable (collectively, the Federal Conscience Laws). In practice, these laws protect medical workers from discrimination or retaliation if they refuse to perform services, such as abortion and assisted suicide, that conflict with their religious or moral beliefs.

The Federal Conscience Laws are a patchwork of legal authorities developed over many years and include, among others, the Church Amendments (42 U.S.C. 300a-7); the Coats-Snowe Amendment (42 U.S.C. 238n); the Weldon Amendment (See, e.g., Pub. L 115-245, Div B., sec. 507(d); certain Medicare and Medicaid provisions; and certain Affordable Care Act provisions.

How Are the Federal Conscience Laws Enforced?

Enforcement of the Federal Conscience Rules has evolved over time, and a short summary of historical rulemaking is helpful to understand the context for the Final Rule:

• In 2008, HHS issued a rule promoting public awareness of the Federal Conscience Laws and designating enforcement authority over the Federal Conscience Laws in effect at the time to OCR (the 2008 Rule).
• Citing concerns that the 2008 Rule was overbroad and lacked clarity, HHS largely repealed the 2008 Rule through a 2011 rulemaking but retained the provision designating OCR to receive and coordinate handling complaints (the 2011 Rule).
• In 2019, HHS issued a sweeping final rule (the 2019 Rule) that reinstated provisions of the 2008 Rule and added enforcement provisions, specific definitions, and recordkeeping requirements. Several federal district courts subsequently held that the 2019 Rule was unlawful because it impermissibly broadened the Federal Conscience Laws beyond the scope formulated by Congress and vacated the 2019 Rule prior to its effective date.
• The Final Rule partially rescinds the 2019 Rule and restores the 2011 Rule’s process for enforcing the Federal Conscience Laws by discarding the portions of the 2019 Rule that were found unlawful by courts and clarifying that OCR will enforce complaints on a case-by-case basis.

What Does the Final Rule Do?

The Final Rule clarifies the enforcement mechanisms for the Federal Conscience Laws. More specifically, the Final Rule affirms that OCR maintains the authority to facilitate and coordinate enforcement, including the authority to act in the following capacities:

• Receive and handle complaints.
• Initiate compliance reviews.
• Conduct investigations.
• Consult on compliance within HHS.
• Seek voluntary resolutions of complaints.
• Coordinate as necessary with relevant components of HHS to make enforcement referrals to the Department of Justice (DOJ).
• Use existing enforcement regulations (e.g., those that apply to grants, contracts, or other programs and services) or coordinate other remedial action.

HHS believes the Final Rule strengthens the existing protections against discrimination on the basis of conscience by simplifying the 2019 Rule’s enforcement framework, including by clarifying the following:

• Any individual or entity – not just the person whose conscience rights were violated – may file a complaint with OCR.
• OCR will promptly investigate complaints regarding violations of the Federal Conscience Laws, including through site visits, interviews, data requests, etc.
• If an entity under investigation fails to respond to an OCR request for information within a reasonable timeframe, OCR may draw a negative inference as it evaluates the case.
• OCR may proactively conduct compliance reviews of entities subject to the Federal Conscience Laws upon appropriate authorization and suspicion.
• OCR utilizes a number of enforcement tools, including resolving matters in coordination with appropriate HHS components, referring matters to the DOJ, and resolving matters informally.

What Does the Final Rule NOT Do?

HHS received many comments regarding the substantive application of the Federal Conscience Laws. Some commenters noted that respecting healthcare providers’ objections to performing certain services honors liberty and human dignity. Other commenters expressed concerns regarding access to healthcare, highlighting the disproportionate impact the Federal Conscience Laws have on certain groups such as the LGBTQI+ community, people of color, individuals with disabilities, and people who live in rural communities.

Although HHS repeatedly acknowledged that protecting the rights of conscience and protecting patients’ access to care are each top priorities of critical importance, HHS declined to substantively revise existing Federal Conscience Laws. HHS reasoned that the Federal Conscience Laws already represent Congress’ careful balance between maintaining access to healthcare on the one hand and honoring religious and moral convictions on the other. Since this balance is already reflected in the legal framework of the Federal Conscience Laws, the Final Rule focuses solely on the procedural aspects of clarifying enforcement mechanisms.

How Does the Final Rule Differ from the 2019 Rule that Was Struck Down by Courts?

The Final Rule rescinds the portions of the 2019 Rule “that are redundant, unlawful, confusing or undermine the balance Congress struck between safeguarding conscience rights and protecting access to health care, or because significant questions have been raised as to their legal authorization.” The Final Rule scales back the 2019 Rule in the following ways:

• The Final Rule expresses HHS’s commitment to applying the text of the Federal Conscience Laws on a case-by-case basis, including emphasizing that “matters will be handled by informal means wherever possible.” By comparison, the 2019 Rule included more express enforcement parameters (e.g., specifically citing potential for withdrawal of federal funds or lawsuit, requiring OCR to investigate both actual and “threatened” violations and not providing for informal enforcement means).
• The Final Rule removes some of the onerous recordkeeping and reporting requirements from the 2019 Final Rule, explaining that such substantive provisions are not necessary to clarify OCR’s enforcement process and are beyond the scope of the rulemaking.
• The Final Rule removes a lengthy section of definitions from the 2019 Rule, noting that courts had raised questions as to their clarity and legality.
• The Final Rule encourages posting a voluntary compliance notice as a best practice, whereas the 2019 Rule stated that posting a voluntary notice would constitute “non-dispositive evidence of compliance.”

Practical Tip for Providers: Consider Posting a Notice of Compliance

As a best practice, OCR recommends that providers post a notice acknowledging their intent to comply with the Federal Conscience Laws and includes a model notice as an Appendix. Such notice should list the various authorities that comprise the Federal Conscience Laws, explain that a person may base their claim of conscience on either religious beliefs or moral convictions, and describe the steps a person may follow to file a complaint with OCR. The Final Rule encourages providers to post this notice on their website, in their employment training materials, and in a prominent and conspicuous physical location where notice to the public might customarily be posted. Although posting such notice is not technically required by the Final Rule, OCR will consider posting a notice as a positive factor in any investigation or compliance review under the Final Rule.