Hospitals and Health Industry in Limbo After Court Delays Implementation of "Conscience Rule"

  • United States
  • 07/23/2019
  • Duane Morris

Hospitals, health insurers and a variety of other healthcare entities do not have to be ready for a July 22 go-live date for the Trump administration’s “Conscience Rule.” Instead, the federal rule―designed to support health workers who opt out of providing patient care that violates their conscience, moral or religious beliefs―is facing such intense challenge in federal courts that the U.S. Department of Health and Human Services (HHS) agreed to a stipulated request to delay the effective date until November 22, 2019.

As the political drama between supporters and opponents of the Conscience Rule plays out over the next four months, so will the lawsuits brought against HHS and the administration. Such lawsuits have been brought by several civil rights organizations and a long list of states and cities, including: Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Wisconsin, both the city and state of New York, Chicago, San Francisco and Washington, D.C.

Regardless of whether organizations support or oppose the Conscience Rule, it is possible that it will become law on November 22 unless the courts and HHS move with uncharacteristic speed in a highly charged political arena.

Operationally, the healthcare industry is left with the question of whether to start the work of preparing for a future and uncertain go-live date or waiting to see if the rule will be declared unconstitutional before November 22.

Despite HHS’ assertions that compliance with the rule will not take much time or effort, the reality is that implementing a rule that allows a broad array of employees―not just physicians and other direct providers―to decline to provide, assist or refer services is a logistical challenge. Additionally, while the majority of the rule’s 25 provisions focus on abortion, sterilization and euthanasia, the rule also potentially covers objections to gender dysphoria, as well as a smattering of other services such as hearing testing for newborns, infants and youth, certain pediatric vaccinations and occupational health testing. The scope of the rule is primarily women’s health and euthanasia―which is not legal in the U.S.―so the practical impact of the enforcement of the anti-discrimination and conscience laws will be on women’s health. However, the vagueness of the language has the potential to spill over into other healthcare services.

The burden on health entities is potentially high as the rule not only comes with significant enforcement power, including ending federal funding and lawsuits brought by the Department of Justice, but also makes hospitals and other recipients of federal funds potentially responsible for compliance by third parties with whom they contract. According to HHS, the need for strong enforcement of already existing laws was in large part prompted by drastic increases in complaints of religious discrimination filed with the Office for Civil Rights (OCR) and general confusion about existing anti-discrimination and conscience laws among providers, employees, patients and the general public.

Policies and procedures need to be developed and implemented, and entities will need to submit new assurances and certifications of compliance. To help entities figure out which employee is going to opt out and no longer answer the phones or perform emergency surgeries and which one is, the rule allows entities to ask their employees once a year whether they object to the services that they are required to perform as part of their job responsibilities. Although this is intended to offer some relief in theory, in practice it offers little comfort for administrators that still need to staff an entire health system to provide care to thousands of diverse patients.

In another effort to help entities continue to provide uninterrupted patient care, the rule speaks favorably about accommodation and permits entities to communicate alternative methods of care. Only experience will tell which “work-arounds” will be considered compliant and which ones OCR will investigate.

As the dust settles after July 22, health systems, hospitals and other subject entities will need to consider whether to prepare or wait and see. These are emotional issues for many employees, full of subjectivity, in a minefield of untested legal issues.

Some entities will likely hedge that the legal drama and litigation around the Conscience Rule will cause a delay or other limitation of the implementation of the Conscience Rule past November 22. Even for those entities, it would be prudent have a plan in place for rapid execution before the OCR comes knocking on the door with its new arsenal of enforcement weapons.

For Further Information
If you would like more information on how the Conscience Rule may impact your organization, including how to evaluate preparedness, which steps should be considered and plans put in place, please contact Delphine O’Rourke, any other member of the Health Law Practice Group or the attorney in the firm with whom you are regularly in contact.