Sunday, February 11, 2018

A New HHS Rule Brews Chaos. Watch Out for It

There's a new rule coming from Health and Human Services (HHS). It's called "Protecting Statutory Conscience Rights in Health Care", and you can read it hereThe statute collects a bunch of existing laws and amendments that are already on the books -- sometimes there for decades -- and punches them up.  The laws are designed to protect individuals from having to perform or be treated for conditions that are against their beliefs. 

Some protections already covered by various laws
  • Federally funded organizations (including medical schools) can't force doctors, other providers, or any personnel to be trained in, perform, or assist in sterilizations, abortions, or assisted suicide if the procedures run counter to their beliefs.
  • Insurers who offer Medicare Advantage or Medicaid can't be compelled to cover any services objected to on religious or moral grounds, including those considered essential benefits by the Affordable Care Act.
  • Medicare or Medicaid programs or providers are not required to counsel individuals concerning assistance for assisted suicide, euthanasia, or mercy killing, including in cases of advanced directives.
  • States don't have to compel hearing loss screening for newborns or vaccinations over parental religious objection, and religious parents can't be compelled to have their kids treated for certain conditions, including suicide intervention. Some states prosecute parents for child abuse if they refuse life-saving medical treatments for their kids. However, the Feds won't force states to penalize such parents. 
  • Medicare, Medicaid, and CHIP must accommodate services that use spiritual methods in place of standard evidence-based medical treatment.

So what does this new law do? 

Well, although these so-called protection laws are already in play, the current administration thinks that Obama's crew was pretty lax in enforcing them.  So this new statute wouldn't add new laws, but it would apply definitions and language to broaden their reach and tighten up their enforcement. Here are some of the specifics:

1. The rule expands the definition of the "health care entities" that must enforce these laws.  The term will now mean any person or organization that touches healthcare assistance from the Feds, both cash and "non-cash" (whatever that is). Such entities would include not only the original recipients of Federal assistance, but any groups or people that they fund, and -- continuing on --  anyone that receives funds from the second recipient -- even if that money has nothing to do with the original intent.  Think of this part of the new rule as healthcare's Kevin Bacon. Health care entities can be applied to any person or group if three degrees of separation or less ties them to federal healthcare assistance.  By the time you follow the money, nearly 750,000 "entities" will potentially be subject to this rule -- basically every state and local government, public institution, and any organization or person working even tangentially in health care.

2. Under HHS, these laws are governed under the Office for Civil Rights (OCR), with the premise that they are just like civil rights laws that protect against discrimination by race, gender, or sexual identity. The expanded group of health care entities will now be required to jump through a number of new regulatory hoops to enforce them. All of them must post public notices informing both patients and personnel about their protections. Most must scrupulously record all complaints and how they are handled, and submit documentation on these actions every year to the OCR.

3. For a government opposed to regulations, the new requirements would add significant administrative burdens to healthcare organizations and providers already buried in bureaucracy.  About 476,500 to 746,000 healthcare entities will have to post notices regarding these protections. Approximately 364,000 to 571,000 of them will also be responsible for compliance and enforcement of these so-called anti-discrimination laws. 

4. The OCR itself can initiate an investigation if it becomes aware of violations, not only through individual complaints, but also through news, referrals, and "whistle blowers". And if the OCR decides that an entity isn't complying, it can pull its Federal funding. 

5. And implementing this new rule is expensive. HHS estimates, on average, that it will cost taxpayers $312.3 million in year one and $125.5 million annually in years two through five to implement and maintain the process. In addition, each health care entity, on average, will spend an estimated $998 in the first year (or about $570 million for all of them) and about $897 annually in years two through five ($512 million in total each year). And these estimates are conservative. It should be noted that the OCR is expected to investigate only 30 healthcare entities a year!  You do the math on what that will cost per case. 

6. Finally, let's look at the public notice itself, which we will be seeing in virtually every corner of the public space, and which defines what we can complain about. Be sure to check the statement in bold and italic. 
Notice Concerning Federal Health Care Conscience and Associated Anti-Discrimination Protections 
[Name of healthcare entity] complies with Federal health care conscience and associated anti-discrimination laws and does not exclude, treat adversely, coerce, or otherwise discriminate against persons or entities on the basis of their religious beliefs or moral convictions. You have the right to decline to participate in, refer for, undergo, or pay for certain health care-related treatments, research, or services (such as abortion or assisted suicide, among others) which violate your conscience, religious beliefs, or moral convictions under Federal law. If you believe that [Name of healthcare entity] has failed to accommodate your conscientious, religious, or moral objection, or has unlawfully discriminated against you on those grounds, you can file a conscience and religious freedom complaint with the U.S. Department of Health and Human Services, Office for Civil Rights, electronically through the Office for Civil Rights Complaint Portal, available at or by mail or phone at: U.S. Department of Health and Human Services, 200 Independence Avenue SW, Room 509F, HHH Building, Washington, DC 20201, 1-800-368-1019, 800- 537-7697 (TDD). Complaint forms and more information about Federal health care conscience and associated anti-discrimination laws are available at
  Now this is key: You don't have to be religious to make a complaint against any facility or healthcare professional remotely tied in to Federal assistance. You only need to have a "moral" objection. And there's no clear limit to these offensive treatments and services; assisting in an abortion or suicide are only examples "among others". The head of an emergency room in a rural area without any other facilities could choose not to respect a DNR. A nurse might not want to assist in the birth of child with a lesbian mother.  A person who lives in a state that requires their insurers to cover abortion could insist she wants an "abortion-free" plan. Maybe someone just doesn't want to pay for a physical exam that they found repugnant.  Or, ad absurdum, a vegan volunteer could make a complaint if they are forced to carry trays with animal products to patients. The list could go well beyond abortion and assisted suicide. 

So comment on this rule before it passes! 
This rule is now open for comments. You can find it here. Pasting a message doesn't count. It has to be in your own words.  If you think this will affect you, take the time and comment.  It helps. 

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