Friday, February 18, 2011
. . . have just been released. Read them here. (Please read them before commenting on them.)
UPDATE: An encouraging opening paragraph in light of our earlier discussion: "Neither the [Bush] 2008 final rule, nor this Final Rule, alters the statutory protections for individuals and health care entities under the federal health care provider conscience protection statutes, including the Church Amendments, Section 245 of the Public Health Service Act, and the Weldon Amendment. These federal statutory health care provider conscience protections remain in effect."
UPDATE #2: Forgive me for live-blogging my own reading of the regulations, but uh-oh, I think I see where we're headed: "The Department supports clear and strong conscience protections for health care providers who are opposed to performing abortions," but rescinds the portions of the 2008 final rule that were "unclear and potentially overbroad in scope."
UPDATE #3: Basically, the new regulations remove the certification requirements and leave enforcement of violations of existing federal statutory conscience protections up to the HHS Office for Civil Rights. Also, out of concern that the definitions contained in the Bush regs might lead to overbroad interpretations of the statutory protections, the new regs have deleted all definitions, offering the puzzling explanation that HHS "believes that individual investigations will provide the best means of answering questions about the application of the statutes in particular circumstances."
HHS acknowledges receiving many comments raising concerns about Catholic hospitals being forced to close absent conscience protection, and HHS responds that "Roman Catholic hospitals will still have the same statutory protections afforded to them as have been for decades." Elsewhere in the document, though, HHS acknowledges Connecticut's concern that the Bush rule "would prevent them from enforcing their state laws concerning access to contraception," and HHS responds that, "while there are no federal laws compelling hospitals to provide contraceptive services, the Medicaid Program does require that States provide contraceptive services to Medicaid beneficiaries," and HHS is "concerned that the breadth of the 2008 Final Rule may undermine the ability of patients to access these services, especially in areas where there are few health care providers for the patient to choose from." As such, HHS "partially rescinds the 2008 Final Rule based on concerns expressed that it had the potential to negatively impact patient access to contraception and certain other medical services without a basis in federal conscience protection statutes."
My quick take is that the Obama regs provide a means of enforcement with the Office for Civil Rights, though it remains to be seen how interested the OCR will be in bringing actions against offending entities. The regs also remove any other substantive provision that interprets (or could potentially be read as expanding upon) the statutory protections. To the extent that there is uncertainty about the actual requirements of the relevant statutes, these regs disavow any attempt to lend greater clarity beyond the issue of abortion.