On January 9, 2024, the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) announced a Final Rule, entitled Safeguarding the Rights of Conscience as Protected by Federal Statutes (the “2024 Final Rule”). The 2024 Final Rule goes into effect on March 11, 2024, and is available here.

The Final Rule is OCR’s latest regulatory effort to facilitate enforcement of the Federal health care conscience protection statutes known as the “conscience provisions” or “conscience authorities.” These laws safeguard the rights of health care providers by prohibiting recipients of certain federal funds, including federally qualified health centers, from discriminating against health care providers who refuse to participate in certain services based on moral objections or religious beliefs. The conscience provisions frequently arise when health care providers are expected to provide gender affirming care, reproductive health services and/or physician-assisted suicide.

The Final Rule emphasizes the need to balance patients’ access to health care and health care providers’ personal beliefs, seeking to establish a middle ground that respects both the rights of providers and the needs of patients. The Final Rule:

1. Clarifies OCR’s authorities and enforcement tools related to the conscience provisions.
2. Describes the tools available to OCR when handling complaints related to the conscience provisions, including the authority to:

   a.  Initiate compliance reviews;

   b.  Conduct investigations;

   c.  Use existing enforcement regulations to achieve compliance or withholding relevant funding as authorized by the conscience provisions and in consultation with the relevant HHS Departmental component(s); and

   d.  Make enforcement referrals to the Department of Justice in coordination with the relevant HHS Department component(s).

3.  Encourages covered entities to post a notice to explain that individuals or entities may have rights under the conscience provisions.

Subscribers to Feldesman’s Premium Plan will receive additional information on the Final Rule, along with compliance tips, in this quarter’s Premium Plan Insights Newsletter.

If you have questions regarding the OCR’s 2024 Final Rule, please contact Dianne Pledgie at dpledgie@feldesman.com or 202.466.8960.