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Religion and Health Insurance Exchanges
May 21, 2012
By: Sarah E. Swank
Hospitals and Health Systems Practice Group Newsletter
The debate about religion and the Patient Protection and Affordable Care Act of 2010 (PPACA) (PL 111-148) is far from hidden. Issues regarding reproductive issues regularly hit the news. In addition, in the news is the potential unconstitutionality of health insurance exchanges required under the PPACA. Public opinion and the upcoming election, as well as the U.S. Supreme Court will decide the fate of these provisions. What might come as a surprise is the additional provider conscience protections added in PPACA related to these hotly contested health insurance exchanges. These provisions are already in effect for healthcare providers without need for any future rulemaking. Below is a summary of the current provider conscience protections and enforcement as well as the new PPACA provision.
Federal Healthcare Conscience Protection
The provider conscience protections have been well established since the 1970s with a series of laws called the Federal Health Care Conscience Protection Statutes. These statutes include:
- Church Amendments (42 USC Section 300a-7);
- Public Health Service Act (42 USC Section 238n); and
- Weldon Amendment (Consolidated Appropriations Act, 2009, PL 111-117).
Under the Federal Health Care Conscience Protection Statutes, recipients of certain federal funds are prohibited from discriminating again healthcare providers based on the objection to, participation in, or refusal to participate in specific medical procedures and related training and research activities. Such medical procedures include abortions and sterilizations. Healthcare providers may not be coerced into performing procedures that a healthcare worker finds religiously or morally objectionable. Under these statutes, healthcare providers include physicians but may also include facilities such as hospitals.
The agency tasked with enforcing provider conscience protections is the Office for Civil Rights (OCR) of the U.S. Department of Health and Human Services (HHS), the office also tasked with enforcement of the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act, and other civil rights laws. OCR is responsible for receiving and investigating complaints of discrimination based on the Federal Health Care Conscience Protection Statutes. Those filing a complaint based on the Federal Health Care Provider Conscience Protection laws are asked to complete a Civil Rights Discrimination Complaint Form Package. OCR instructs on its website that a provider check the "other" box related to the type of discrimination and write "Conscience Protection."
On February 18, 2011, HHS and OCR announced the Conscience Protection Rule. The Conscience Protection Rule, effective March 25, 2011, rescinded in part and revised a December 19, 2008, rule entitled "Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law" in the hopes to clarify confusion under this old regulation. These changes came after eight states filed suit in Connecticut v. United States in the U.S. District Court for the District of Connecticut. The states argued that HHS exceeded its statutory authority in violation of the Administrative Procedure Act by failing to provide adequate public comments and that the regulations were vague and overbroad.
The current rule sets out the rule’s purpose, which is to enforce the Federal Health Care Conscience Protection Statutes and designates OCR to receive those complaints for HHS (45 CFR Section 88.1, 88.2). All other provisions of the prior rule were rescinded. Although the Conscience Protection Rule from HHS rescinded provisions of the prior rule, it does not modify the provider conscience provisions of Federal Health Care Conscience Protection Statutes and PPACA, because regulations are not needed to make such laws effective.
Health Insurance Exchanges
PPACA included healthcare conscience protections within the health insurance exchange system provisions providing additional protections to the already well-established Federal Health Care Conscience Protection Statutes. More specifically, Section 1303(b)(4) of PPACA provided that, "No qualified health plan offered through an Exchange may discriminate against any individual health care provider or health care facility because of its unwillingness to provide, pay for, provider coverage of, or refer for abortions." This section is currently in effect regardless of recent HHS rulemaking. This provision is the first provider conscience statutory provision passed recently, although pending legislation does exist backed by religious leaders concerned over sterilization and contraceptive coverage in PPACA.
It All Could Change
As with many provisions of PPACA, these provider conscience protections for hospitals and physicians related to health insurance exchanges may not exist next year. These changes may come from a repeal of the individual insurance mandates and health insurance exchanges or from a decision from the U.S. Supreme Court. For those who represent religious hospitals and physicians, Section 1303(b)(4) reminds us of the protections already in place for our clients. For the rest of us, it is a good reminder of the enforcement authority of OCR and our obligation to advise our clients on these issues raised in a well-established area of civil rights.