DCMedical News: January 22, 2018
DCMedical News
Washington, D.C.
Monday, January 22, 2018
THE BIG STORY TODAY IN HEALTH CARE
The federal shutdown continues.
The House-passed Continuing Resolution (CR, here) would have reauthorized the Children’s Health Insurance Program (CHIP) for six years, although providing outlays of $7 billion over that period, compared to the $60 plus billion budget authority (pg. 4 of CBO report on the CR, found here).
The CR also suspended three Obamacare taxes, including a one-year suspension of the health insurance tax, two-year suspension of the medical device excise tax, and two-year suspension of the Cadillac tax on high-cost employer-sponsored health care plans, all at an estimated (CBO report, also pg. 4) cost of $20 billion.
The House bill left out altogether any resolution to the 340B drug subsidy currently received by non-profit hospitals, Disproportionate Share Hospital (DSH) funds, teaching health centers, the Maternal, Infant and Early Childhood Home Visiting Program, the $2,021 per year physical, speech and occupational therapy cap under Medicare, rural extenders (“Medicare Dependent” and “Low Volume Hospital” Medicare programs), and of course an actual budget leading to actual appropriations bills for the remaining seven months of FY 2018.
DOCTORS, NURSES, OTHER HEALTH PROFESSIONALS
DCMN reported January 19 on the new Conscience and Religious Freedom Division created in the Office of Civil Rights of HHS, as follows:
“A different kind of regulation (and a new meaning for “Civil Rights”) announced today: creation of the Conscience and Religious Freedom Division (found here) of the Office of Civil Rights in HHS to guard the interests of health care personnel who object to certain procedures or the treatment of some people in violation of their conscience and beliefs. Jurisdiction of the CRFD will include the provider conscience protections of PPACA, section 1303, which provides that “No individual health care provider or health care facility may be discriminated against because of willingness or unwillingness, if doing so is contrary to the religious or moral beliefs of the provider or facility, to provide, pay for, provide coverage of, or refer for abortions.”
Now HHS has released (here) a 216-page proposed rule, to be published in the January 26 Federal Register. HHS proposes to revise regulations previously promulgated to ensure that persons or entities are not subjected to certain practices or policies that violate conscience, coerce, or discriminate, in violation of federal law.
“Through this rulemaking, the Department proposes to grant overall responsibility to its Office for Civil Rights (OCR) for ensuring that the Department, its components, HHS programs and activities, and those who participate in HHS programs or activities comply with Federal laws protecting the rights of conscience and prohibiting associated discriminatory policies and practices in such programs and activities. In addition to conducting outreach and providing technical assistance, OCR will have the authority to initiate compliance reviews, conduct investigations, supervise and coordinate compliance by the Department and its components, and use enforcement tools otherwise available in civil rights law to address violations and resolve complaints. In order to ensure that recipients of Federal financial assistance and other Department funds comply with their legal obligations, the Department will require certain recipients to maintain records; cooperate with OCR’s investigations, reviews, or other enforcement actions; submit written assurances and certifications of compliance to the Department; and provide notice to individuals and entities about their conscience and associated anti-discrimination rights, as applicable.”
The proposed rule follows on a May 4, 2017 Executive Order and on a 25-page DoJ memo (found here) concerning the protection of religious liberties.
Among the protected groups (pg. 20 of the proposed rule): individuals objecting to advance directives or assisted suicide; parents objecting to suicide assessment of their children; parents objecting to vaccination, hearing loss screening; and parents accused of child abuse for failing to provide medical treatment. Also to be protected: religious nonmedical health care institutions (RNHCI) which object to standard medical services, such as screenings, medication or any services not included in the RNHCI constellation of room and board, unmedicated wound dressing and walkers, nutrition, comfort, position, activities of daily living (pg. 21).
Among the items of evidence listed in support of the proposed rule, these reports:
“According to news reports, in 2010, Nassau University Medical Center disciplined eight nurses when they raised objections to assisting in the performance of abortions. 35 Nurses in Illinois and New York filed lawsuits against private hospitals alleging they had been coerced to participate in abortions. Mendoza v. Martell, No. 2016-6-160 (Winnebago County Cir. Ill. June 8, 2016); Cenzon-DeCarlo v. Mount Sinai Hospital, 626 F.3d 695 (2d Cir. 2010). A nurse-midwife in Florida alleged she had been denied the ability to apply for a position at a hospital due to her objections to prescribing certain medications. Hellwege v. Tampa Family Health Centers, 103 F. Supp. 3d 1303 (M.D. Fla. 2015). Twelve nurses in New Jersey sued a public hospital over a policy allegedly requiring them to assist in abortions and for disciplining one nurse who raised a conscientious objection to the same. Danquah v.University of Medicine and Dentistry of New Jersey, No. 2:11-cv-6377 (D.N.J. Oct. 31,2011). Many religious health care personnel and faith-based medical entities have further alleged that health care personnel are being targeted for their religious beliefs.” (pg. 36)
The proposed rule aims to implement and expand a similar rule developed in the Bush administration, then reversed in the Obama Administration, and to remedy the absence of a private right of action in conscience cases, as noted here (pg. 42):
“Courts have Found No Alternative Private Right of Action to Remedy Violations. In lawsuits filed by health care providers for alleged violations of certain Federal health care conscience and associated anti-discrimination laws, courts have held that such laws do not contain an implied private right of action to seek relief from such violations by non-governmental covered entities. Adequate governmental enforcement mechanisms are therefore critical to the enforcement of these laws.”
Enforcement of conscience and religious freedom laws will apparently have equal standing and emphasis alongside enforcement of federal civil rights laws and privacy laws. Following publication there will be a 60-day comment period.
EVENTS & MEETINGS
Your January & February Calendar:
January 23: 7:00 p.m. Senator Sanders with “Medicare for All Town Hall Meeting” on digital media outlets
January 25: 8:30 a.m. MACPAC, 1800 M. Street, Suite 650, Washington, D.C., and continuing to Friday, January 26
January 25: 2:00 p.m., Commonwealth Fund media call on Association and Short-Term Health Plans, RSVP at http://events.r20.constantcontact.com/register/event?oeidk=a07ef1kuch778193d5c&llr=drajzjdab
January 29: 8:30 a.m. COGME, at https://hrsa.connectsolutions.com/cogme-council/, also January 30
February 1: 9:00 a.m. Health Affairs, kick-off for cost control series, sponsored by National Pharmaceutical Council
OTHER PUBLICATIONS
AHA letter to CMS on proposed new directions for CMMI, here.
AHA on the regulatory burdens facing hospitals, the subject of a webinar discussion between AHA President Rick Pollack and CMS Administrator Seema Verma on January 17 (see DCMN 1-19), here.
Center for Economic and Policy Research on Union Membership 2018, found here.
DCMN: DC Medical News publishes every day that either the House or the Senate of the U.S. Congress is in session. Publication dates for the remainder of January: 23, 24, 25, 26, 29, 30, 31
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