The Office of Management and Budget (OMB) delayed the rollout of a proposed U.S. Department of Health and Human Services (HHS) religious imposition rule that seeks broad authority to implement so-called conscience protections that give an out to health-care providers who don’t want to treat LGBTQ patients or provide reproductive health care, including contraception, miscarriage management, and abortion care.
OMB’s comment, released last week, indicated that HHS has to summarize and respond to public comments, as well as report on comments that were incorporated into the new rule, as Modern Healthcare first reported. The proposed rule announced in January, called “Protecting Statutory Conscience Rights in Health Care; Delegations of Authority,” seeks to protect health care providers who object to giving care which may violate their religious beliefs. Health and LGBTQ rights advocates were quick to condemn the new rule when it was first announced.
Though the final wording of the rule is still being developed, HHS had immediately sought to begin collecting information from health providers on compliance with the proposed rule, such as policies to protect religious objectors and communication of such policies, a request OMB, which works to implement the president’s objectives, has now denied.
Rachel Easter, legal counsel for the National Women’s Law Center (NWLC), told Rewire.News that according to administrative law, HHS is required to read and take into account public comments for proposed rules. OMB’s latest action means that, in order to be in compliance with the Paperwork Reduction Act of 1995—which in part ensures that the general public and interested entities have a say in proposed department rules and regulations—HHS must now release and respond to industry comments before finalizing and fully implementing the rule. Trump’s HHS has flouted federal law regarding disclosure of public comments before, withholding more than 10,000 comments in response to a previous proposal to roll back access to reproductive and transgender care.
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“What’s happening here is that HHS was so eager to push through this discriminatory rule, that they are not following the legal process administrative action,” Easter said in an interview. “So it’s clear that here they were not adequately considering the voices of those who are opposed to this rule and they just wanted to push ahead and not even take the time to read the more than 72,000 comments in response.”
Many hospitals and health providers object to the new rule because they say it would unfairly punish them for simply providing quality care to all patients. It would also add additional reporting requirements and could possibly create conflicts with local and state nondiscrimination laws.
“It seems clear that hospitals and other health care providers are opposed to this rule and we know that a broad swath of those impacted are opposed to the rule” Easter continued, noting that the American Medical Association and nursing groups, such as the American Nurses Association are opposed to the proposed rule.
Advocates say that reproductive health care and care for LGBTQ people are under direct threat from the religious exemptions which would be carved out and protected, should the HHS rule be finalized and implemented.
In a public comment to HHS dated March 27, the National Family Planning and Reproductive Health Association (NFPRHA) explained that the proposed rule exceeds the agency’s authority under applicable federal law. “As interpreted by the [Notice of Proposed Rulemaking], the [applicable] amendments would be radically expanded to create far-reaching protections for individuals and entities that would refuse to provide patients not only with health care services, but also the most basic information about their medical options and that seek to obstruct the ability of certain patients to access any care at all,” it said. “This is impermissible and, as discussed below, would cause unprecedented harm to patients and undermine the integrity of key HHS programs.”
In an interview with Rewire.News, NFPRHA Advocacy and Communications Director Audrey Sandusky reiterated the potential harm to patients that would stem from the proposed HHS rule. “First and foremost the proposed rule opens the door for new ways for health providers to deny health care to patients in need,” she said. “Health care providers’ beliefs should never determine access to essential care that patients need to stay healthy. It’s a real flawed approach to public health policy and puts health and well-being of patients in jeopardy.”
Under Secretary Alex Azar, whose anti-choice efforts drew praise from GOP lawmakers at a recent House hearing, as well as Roger Severino, a virulently anti-LGBTQ official who runs the HHS Office of Civil Rights, Trump’s HHS has consistently attacked access to reproductive and LGBTQ health care. The agency has repeatedly sought to roll back access to needed care under the anti-choice banner of supposed religious freedom.
Human Rights Campaign Government Affairs Director David Stacy in a statement praised the administrative process that produced the OMB delay. “Every American deserves access to quality health care, and that should not be determined by the personal opinions of individual medical providers or administrative staff. OMB’s delayed approval recognizes that the Department sacrificed the administrative processes designed to promote good government in order to satisfy the ideological zealousness of a handful of Trump appointees.”
UPDATE: This story has been updated to correctly identify the National Family Planning and Reproductive Health Association.