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Health Care Law
Update February 11, 2009
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Health Care
Practice Group Leaders
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Federal
Regulation Requires Employers To Respect Ethical Views Of Their
Employees In Declining To Provide Certain Services
By: Gregory W. Moore
Health care is rapidly becoming one of
the largest and most stable areas of employment in Michigan and
throughout the country. Health care employers are more
frequently subject to new or revised employment regulations than
employers outside of health care.
This fact of life was driven home by a
recent regulatory change implemented by the Department of Health and
Human Services adding a new level of protection to employees of
health care providers. In the final month of the Bush Administration,
the Department of Health and Human Services ("HHS")
published a rule giving health care entities and health care workers
the right to refuse to perform certain health care services,
including research activities, on the basis of religious, moral,
ethical or other similar grounds. HHS stated that their
authority for the regulation can be found in the Church Amendments
Act of 2000 and the Weldon Amendment of 2008. In essence, these two
pieces of federal legislation prohibit recipients of HHS funds from
discriminating against individuals and entitles who refuse to provide
or perform certain medical services, including sterilization,
abortion, or research activities because of religious or moral
beliefs. The regulation took effect on January 20, 2009.
The new HHS rule, commonly referenced as the "conscience
objector rule," has broad application to: (1) state and local
governments that receive federal funds from HHS through
appropriations or federal financial assistance; (2) private entities
that receive federal funds through HHS; (3) any entity, State or
local government that receives a grant, contract, loan or loan
guarantee under the Public Health Service Act, the Community Mental
Health Centers Act or the Developmental Disabilities Assistance and
Bill of Rights Act; and (4) any entity, State or local government
that carries out any part of a health service program which is funded
in whole or part under any program administered by HHS.
Michigan covered entities are prohibited from discriminating against
any health care entity or individual health care worker on the basis
of :
· Undergoing or refusing to undergo training in the performance
of abortions, or failure to make arrangements for training in the
performance of abortions;
· Performing or refusing to perform abortions;
· Refusing to refer out an individual for an abortion;
· Attending or having attended a post-graduate physician
training program which did not require attendees to perform induced
abortions;
· Refusing to pay for or provide coverage for abortions;
· Performing, assisting in the performance of, refusing to
perform, or refusing to assist in the performance of lawful
sterilization procedures or abortions on the grounds that such action
would be contrary to religious beliefs or moral convictions;
· Unwillingness to counsel, suggest, recommend, assist or in any
way participate in abortions or sterilizations; or
· Refusing to participate in a program or research activity if
such program or research would be contrary to ones religious beliefs
or moral convictions.
Future receipt of federal financial
assistance, grants, contracts, and subcontracts involving HHS will
require certification by the recipient consistent with the
prohibitions outlined above. Failure to enforce the provisions of
such certification may result in penalties up to and including
debarment from further participation in HHS programs. Any
complaint of discrimination arising under the health care conscience
protection statutes or the regulations will be handled by the Office
for Civil Rights within the Department of Health and Human Services.
As one might imagine, the
implementation of a regulation this socially charged did not go
unnoticed by special interest groups and even states that receive
federal financial assistance. As of this writing, seven states
and two abortion-rights groups have sued attempting to have a federal
court rule that the regulation is unconstitutional
and interferes with State laws that guarantee access to abortion
related health care services.
States which have filed a lawsuit or joined in a lawsuit include:
Connecticut, California, Illinois, Massachusetts, New Jersey, Oregon
and Rhode Island.
Any health care organization or entity that provides services to a
health care organization should take a close look at the nature of
any federal financial assistance, grant, or contract in order to
determine the application of this new regulation and adjust practices
and policies accordingly to achieve compliance with the
regulation. In doing so, of course, it is necessary to pay close
attention to the ongoing litigation regarding the regulation in the
event a federal court finds that the Department of Health and Human
Services somehow overstepped its authority by implementing the
current regulation.
Gregory W. Moore is an attorney with
the Health care Practice Group of Clark Hill PLC. He can be
reached at 248.988.5842 or gmoore@clarkhill.com.
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To find out
more about Clark Hill and our Health care Practice Group, visit clarkhill.com
or call 800.949.3124
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