This week, the U.S. Department of Health and Human Services Office for Civil Rights (OCR) issued a final rule, “Safeguarding the Rights of Conscience as Protected by Federal Statutes” (“2024 Final Rule”), which partially rescinds the Trump administration’s unlawful, unethical, and discriminatory 2019 health care refusal regulations (“2019 Final Rule”). Federal health care refusal laws, such as the Weldon Amendment and the Church Amendments, govern when and how covered health care entities, providers, and professionals can refuse to deliver or provide information to patients on medically necessary health care that they find objectionable on the basis of their religious or personal beliefs. These refusals often harm access to essential services, such as abortion (including emergency abortions); treatment for people living with HIV, substance use disorder, and other disabilities; and gender-affirming care.
The Trump Administration’s 2019 rule sought to dramatically expand how OCR interpreted and enforced federal health care refusal laws and was ripe for abuse, allowing health care providers to disregard evidence-based standards of care in violation of federal law and principles of medical ethics and informed consent. It had the potential to embolden discriminatory refusals of care for women, LGBTQI+ people, people with disabilities, and people who live in rural communities. If implemented, the rule would have drastically undermined the quality of the U.S. health care system, jeopardized the health and lives of underserved populations, and worsened health inequities. Fortunately, three federal courts (the United States District Court, E.D. Washington, United States District Court, N.D. California, and United States District Court, E.D. Washington) held that the rule was unlawful, so it never took effect. As a result, OCR continued to operate under the framework established in the prior 2011 Final Rule—until now.
The 2024 Final Rule:
- Clarifies and restores important guardrails on discriminatory refusals of care. The 2024 Final Rule ends some of the 2019 Final Rule’s overbroad definitions that would have dangerously expanded how the agency interpreted health care refusal statutes. For example, it:
- ends the 2019 Final Rule’s broad definition of “assisting in the performance of” health care delivery, which would have allowed covered health care entities, providers, or other professionals to refrain from providing services or informing patients about critical treatment options that they found objectionable;
- removes language that would have explicitly permitted providers to refrain from referring patients to other health care entities or providers who deliver the refused care; and
- removes language that, if implemented, would have prevented prospective health care employers from asking job applicants about which services they might refuse to provide. For example, the prior rule would have prohibited an abortion clinic from withholding or terminating employment from a health care provider who objects to providing abortions, even if that was an essential job function.
- Clarifies that covered health care entities and professionals must comply with the Emergency Medical Treatment and Active Labor Act (EMTALA). The 2024 Final Rule clarifies that, notwithstanding federal health care refusal laws, covered entities and professionals must comply with EMTALA, which protects people with emergency medical conditions who need stabilizing treatment. For example, under EMTALA, a hospital emergency department must provide an abortion if it is the necessary stabilizing treatment to resolve an emergency medical condition, such as ectopic pregnancy, severe preeclampsia, or miscarriage complications.
- Maintains the prior final rule’s expansion of OCR’s enforcement authority. The 2019 Final Rule vastly expanded the number of federal health care refusal laws that OCR enforces from three to twenty-five. Previously, covered health care entities and professionals had to enforce their rights under those twenty-two statutes via the courts. This expansion may embolden covered entities and professionals to file an unprecedented number of complaints regarding their rights to refuse care, clogging up OCR’s already too-limited enforcement resources. OCR’s decision to enforce these additional federal health care refusal laws only bolsters the urgent need for Congress to increase appropriations to meet the agency’s funding needs for enforcement activities, particularly for Section 1557 of the ACA, Section 504 of the Rehabilitation Act, and other protections against discriminatory barriers to care.
- Requires OCR to conduct a fact-based inquiry of each complaint alleging a violation of refusal laws. The 2024 Final Rule takes away the prior rule’s overreaching, prescriptive requirements for finding a violation of refusal laws. Instead, OCR will apply the relevant refusal statutes to the facts of each case. This case-by-case approach recognizes that the twenty-five health care refusal laws that OCR will enforce vary significantly in terms of the programs, entities, and types of providers they govern. It also recognizes that the nature of the religious or personal belief underpinning refusals of care and the resulting burden and harm to a patient may vary significantly in each instance.
- Encourages, but does not require, covered health care entities to notify patients and providers of health care refusal rights. As in the prior rule, the 2024 Final Rule offers a model notice that covered health care entities or professionals can voluntarily display to advise providers, patients, or other potentially affected parties of their rights under refusal laws. Whereas the 2019 Final Rule emphasized all possible ways that a covered health care professional or entity could permissively refuse to provide services, the 2024 Final Rule’s suggested text instead informs the reader, whether provider or patient, of the applicable statutes and of the method of making a complaint to OCR. In NHeLP’s comments on the 2023 Proposed Rule, we recommended OCR require that covered entities and professionals notify patients what services they refuse to deliver or facilitate as permitted under federal health care refusal laws. We will continue to advocate that OCR take further steps to increase awareness of refusals or of complaints made pursuant to health care refusal statutes.
Stay tuned for more in-depth analysis coming soon.
