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Comments On HHS Proposed Rule Permitting Health-Care Workers To Not Perform Certain Services

September 25, 2008

Office of Public Health and Science
Department of Health and Human Services
Attention: Brenda Destro
Hubert H. Humphrey Building
200 Independence Avenue, SW
Room 728E
Washington, DC 20201

Re: Proposed Regulations Ensuring that Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law

To whom it may concern:

The Health Research Group at Public Citizen fights to protect consumers against unsafe and ineffective drugs and medical devices, advocates for higher safety standards in the workplace, and is an advocate for high standards in health-care delivery.  We would therefore like to comment on the proposed changes to 45 CFR Part 88 [Federal Register 73 (166), August 26, 2008] which seek to restrict the use of federal funds for providers, clinics, hospitals and other health care facilities that do not comply with “conscience protections.” These protections shield employees from assisting with medical services to which they have moral objections.

The fundamental problem with the regulation is that, by depriving patients of their right to be apprised of all the available medical options and thus to exercise their autonomy, it would allow unsuspecting patients to receive less-than-optimal medical care. This is in contravention of the most basic precepts in medicine.

The regulation fails to even define the problem it seeks to address 

One might expect an administration with a professed antipathy to regulation that is nearing the end of its term to focus on clearly definable problems.  Yet, the regulation fails to provide evidence that there is a problem justifying a regulation, particularly given the existence of three sometimes decades-old statutes expressly addressing the issues raised in the regulation.

Indeed, to the extent that it is defined, the problem is characterized essentially as one of perception (“There appears to be an attitude…”). No data are provided on the scope and nature of this attitude. Elsewhere, the Proposed Rule states that the Department “is concerned” that health-care workers may be unaware of their rights under the statutes, but, again, no surveys or even anecdotes are provided to support this view. The Department also claims that the absence of the new requirements may be hampering the recruitment of a diversity of people into the health professions, but, again, there are no data to support this claim.  

The regulation privileges health care workers’ religious rights over patients’ health care needs and the needs of employers who seek to meet those needs

As currently drafted, the regulation does nothing to protect the needs of patients for access to a full array of information and services.  Indeed, the undeniable fact that workers’ religious principles may at times conflict with optimal medical care for patients is not acknowledged in the least. Principles of informed consent require providers to tell patients about all treatment options, including those to which the doctor may not subscribe, so long as they are supported by respectable medical opinion. How will patients know that the person they are relying on is restricting their advice by excluding certain options? In some circumstances, the lack of a referral (or even a requirement that the patient be made aware of the full array of therapeutic options) can jeopardize the patient’s safety, particularly in emergency settings or where no other provider is available. 

Let us consider this proposal by analogy.  Imagine a physician who is a Jehovah’s Witness and who is caring for a non-Jehovah’s Witness patient who is hemorrhaging.  If the patient could die without a blood transfusion, would it be acceptable for the physician to offer only saline or wound compression without as much as mentioning the option of a blood transfusion to the patient? We think few patients (or doctors) would find such medical care acceptable.

The fundamental problem with the Proposed Rule, therefore, is that the regulation fails to balance health-care workers’ rights against patient autonomy and the demands of optimal patient care.

The regulation broadens the definition of those who may refuse to provide care based on moral or religious grounds

While claiming to merely be clarifying the applicability of prior conscience clauses enshrined in statutory language, the proposed regulation goes beyond the statutes to expand those protected to cover those who participate “in any activity with a reasonable connection to the objectionable procedure, including referrals, training, or other arrangements for offending procedures” [Section 88.2]. The Proposed Rule even states than an employee whose task it is to clean the instruments used in a particular procedure would be covered. The Department is certainly correct in characterizing this definition as “broad.” Moreover, the proposal includes all members of the workforce, including volunteers and trainees. Indeed the Proposed Rule leaves us wondering if there are any employees of a health-care facility with a connection so tenuous to the offending activity that they would not fall under the Rule.

At the same time, the Rule does not make clear that the providers’ religious objection has to be to the activity or procedure, not to the patient. In a recent decision (North Coast Women’s Care Medical Group vs. Benítez), the California Supreme Court ruled that doctors are barred from refusing medical care to gays and lesbians based on the doctors’ religious beliefs about homosexuals.  

The regulation expands the types of activities and procedures covered

We are concerned that, whereas previous statutes focused largely on abortion and sterilization, the regulation under discussion could encompass a broader set of services. Indeed, the term “health service program” is defined as including “an activity related in any way to providing medicine, health care or any other service related to health and wellness,” including programs where the Department of Health and Human Services provides care directly, pays for the provision of services, reimburses an entity for such care, or provides health insurance for such coverage.  We are aware that earlier proposals included definitions of abortion so broad that the provision of many well-accepted forms of contraception could have been considered a protected activity. If this Proposed Rule is ever adopted (and we firmly hope it is not), we recommend that it be tailored narrowly so that certain kinds of contraception, other activities and procedures (e.g., therapeutic cloning, use of embryos from assisted reproduction) would not be covered.

Monitoring compliance with the regulations imposes a significant cost on US taxpayers

At a time of severe fiscal constraints and multiple competing health needs, it seems unreasonable to adopt a regulation with a price tag of more than $44 million affecting 584,294 health care entities, particularly to address an undefined problem already governed by three statutes. There are opportunity costs to the proposal, and those must be weighed against the expected benefits.

While we respect the right of health workers to act in accordance with their moral and religious beliefs, we also feel that this right should not be allowed to trump patients’ basic health care needs or violate their autonomy. Even if health workers are not required to provide the offending service, they should not be relieved of the responsibility of providing patients a balanced description of the array of therapeutic possibilities and even referral to facilities willing to provide particular services. At present, however, the concern with the protection of workers’ conscience seems to outweigh any concern with the patient’s right to information, and to their right to be referred to appropriate care. We therefore urge you to withdraw the regulation.

Yours sincerely,

Annette Ramirez de Arellano, DrPH
Health Researcher

Peter Lurie, M.D., M.P.H.
Deputy Director
Health Research Group at Public Citizen

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