On January 19, 2018, the Department of
Health and Human Services (HHS) announced two major actions to protect life and
the conscience rights of Americans:
HHS’
Centers for Medicare & Medicaid Services (CMS) is issuing new guidance to
state Medicaid directors restoring state flexibility to decide program standards.
The letter rescinds 2016 guidance that
specifically restricted states’ ability to take certain actions against
family-planning providers that offer abortion services.
HHS’
Office for Civil Rights (OCR) is announcing a new proposed rule to enforce 25
existing statutory conscience protections for Americans involved in HHS-funded
programs, which protect people from being coerced into participating in activities
that violate their consciences, such as abortion, sterilization, or assisted
suicide.
“Today’s actions represent promises
kept by President Trump and a rollback of policies that had prevented many
Americans from practicing their profession and following their conscience at
the same time,” said Acting HHS Secretary Eric D. Hargan. “Americans of faith should feel at home in
our health system, not discriminated against, and states should have the right
to take reasonable steps in overseeing their Medicaid programs and being good
stewards of public funds.”
“America’s doctors and nurses are
dedicated to saving lives and should not be bullied out of the practice of
medicine simply because they object to performing abortions against their
conscience,” said OCR Director Roger Severino. “Conscience protection is a civil right
guaranteed by laws that too often haven’t been enforced. Today’s proposed rule will provide our new
Conscience and Religious Freedom Division with enforcement tools that will make
sure our conscience laws are not empty words on paper, but guarantees of
justice to victims of unlawful discrimination.”
The proposed rule provides practical
protections for Americans’ conscience rights and is modelled on existing
regulations for other civil rights laws.
The laws undergirding the proposed regulation include the Coats-Snowe,
Weldon, and Church Amendments, as well as parts of Medicare, Medicaid, the
Affordable Care Act, and others (25 statutes in total). The proposed rule applies to entities that
receive funds through programs funded or administered in whole or in part
through HHS. The proposed rule requires,
for instance, that entities applying for federal grants certify that they are
complying with the above-mentioned conscience-protection statutes.
Since President Trump took office, OCR
has stepped up enforcement of these conscience statutes, many of which saw
little to no enforcement activity under the Obama Administration.
The proposed rule follows the
announcement of a new Conscience and Religious Freedom Division in OCR, charged
with implementing the proposed regulation as finalized and enforcing statutes
that protect individuals and organizations from being compelled to participate
in procedures such as abortion, sterilization, and assisted suicide when it
would violate their religious beliefs or moral convictions.
The CMS issued a
State Medicaid Director Letter restoring state flexibility to establish
reasonable standards for their Medicaid programs. The letter rescinded an April 2016 guidance
(State Medicaid Directors Letter #16-005), which limited states’ long-standing
authority to regulate providers operating within their states. The 2016 letter had said that states that
attempted to protect the integrity of their program standards by disqualifying
abortion providers from their Medicaid programs would come under CMS scrutiny,
and would be required to present to CMS evidence of criminal action or
unfitness to perform healthcare services.
As stated in the letter to state Medicaid directors, CMS is concerned
that the 2016 letter may have gone beyond merely interpreting what the statute
and current regulations require. This
decision returns CMS policy to what it was prior to the issuance of the 2016
letter. States will still be required to
comply with all applicable statutory and regulatory requirements, including the
requirement that provider qualification standards be reasonable.
Rev.
Dr. Kenneth L. Beale, Jr.
Chaplain
(Colonel-Ret), U.S. Army
Pastor, Ft. Snelling Memorial Chapel
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