[co-authors: Maya Lytje, Matthew Tikhonovsky and Rachel Wang]

On January 11, 2024, the Office of Civil Rights (OCR) issued its highly anticipated Final Rule regarding conscience protections. The Final Rule clarifies the religious beliefs and moral convictions protections practitioners and entities may assert in their health care practices. The Final Rule, entitled Safeguarding the Rights of Conscience as Protected by Federal Statutes, becomes effective March 11, 2024.

Brief History of Conscience Protection Rules

The Final Rule has been long-awaited by policy, legal, and health care practitioners alike as it has changed with every presidential administration since its initial release. Conscience protections regulations were first introduced under the Bush administration in 2008 to implement the Weldon, Coats-Snowe, and Church Amendments, (collectively, the “federal health care conscience protection statutes”) protecting health care practitioners from providing services they deem religiously or morally objectionable. In 2011, the Obama administration revised the rule to expand access to health care while protecting religious rights, allowing OCR to handle conscience matters on a case-by-case basis. Finally, in 2019, the Trump administration reverted back to and expanded upon the Bush Administration’s rule, making it more protective of practitioners’ moral and religious objections; however, this rule was struck down by courts in New York, Washington, and California. The Biden administration’s Final Rule is an attempt to balance the competing interests of moral and religious protections and patient access to certain services, including abortion, gender-affirming care, and physician-assisted suicide.

Summary of 2024 Final Rule

The Final Rule addresses the following areas that have been subject to multi-year rulemaking by OCR:

1. Enforcement Mechanisms by OCR

The Final Rule makes clear that OCR has the authority to handle and investigate complaints of alleged violations of the federal health care conscience protection statutes. Under this authority, OCR is tasked with not only receiving complaints and conducting investigations and compliance reviews, but also resolving complaints, coordinating appropriate remedial action and, if necessary, making enforcement referrals to the Department of Justice (DOJ). Additionally, the Final Rule sets forth several specific technical details of OCR’s processes for investigating complaints and enforcing the conscience protection statutes:

• By Default, Informal Means of Resolution: The Final Rule specifies that OCR will resolve any failures to comply with the statutes “by informal means whenever possible.”
• If Needed, Further Complaint Resolution Steps: If informal means of resolving the complaint are not fruitful, the Final Rule provides that OCR will, in coordination with the relevant department, “(i) utilize existing enforcement regulations, such as those that apply to grants, contracts, or other programs or services, or (ii) withhold relevant funding to the extent authorized.”
• Negative Inference Drawn from Failure to Respond to Data Request: The Final Rule clarifies that if an entity fails to provide OCR with information or data within a reasonable time, without good cause, OCR will consider that fact negatively in its evaluation.
• DOJ Referral as Last Resort: The Final Rule makes clear that OCR may, when informal means fail, make a referral to the DOJ to resolve the complaint.

2. Best Practices for Providing Notice to Public

OCR emphasizes the importance of informing the public of the federal health care conscience protection statutes. Given this, OCR encourages entities to post a notice of relevant statutes as a best practice and clarifies its intent to consider whether notice exists in the event of an investigation or compliance review. The Final Rule provides the following guidelines:

• Content: OCR has provided a model notice for entities to utilize. This model notice includes language indicating that the entity complies with applicable federal health care conscience protection statutes along with a reminder of individuals’ rights under these federal statutes, which “prohibit coercion or other discrimination on the basis of conscience, whether based on religious beliefs or moral convictions, in certain circumstances.” Entities are encouraged to tailor the notice for their particular circumstances and to include information about alternatives to receiving services not offered based on their conscience objections. Entities may also post notice of statutory protections against other forms of discrimination. The full model notice can be viewed at Appendix A of the Final Rule.
• Placement: OCR encourages the posting to be placed where patients are likely to see it, such as entity websites, a conspicuous physical location, personnel manuals, handbooks, trainings, and student handbooks or training materials for student workforce.
• Format: The text of the notice should be large enough to be read easily and presented in a manner that prevents the notice from being altered, removed, or covered.

3. Striking a Balance Among Competing Statutes

The agency remarked that it would continue to enforce other statutes that may potentially compete with religious and moral objections. Among other statutes, the Final Rule mentions the Emergency Medical Treatment & Labor Act (EMTALA), which requires the provision of emergency treatment to stabilize a patient before discharge, which may include a service such as an emergency abortion. OCR also noted its authority to enforce Title X, which provides low-cost reproductive health care to low-income patients. OCR will consider interests protected by these statutes as a factor when investigating conscience protection complaints.

Conclusion

The Final Rule clarifies that OCR intends to continue regarding religious and moral protections as one of the many interests OCR is tasked with enforcing in the health care setting. The Final Rule also provides insight into the mechanisms and considerations of OCR during investigations stemming from conscience protection complaints. As OCR grapples with finding a middle ground on these controversial issues, the Final Rule attempts to clarify the agency’s process for tackling the divergent issues of patient access for services such as abortion and gender-affirming care with federal conscience protections.

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