Final “nondiscrimination” rule threatens doctors whose conscience forbids harming patients

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HHS regulations addressing “Nondiscrimination in Health Programs and Activities” went into effect in July. These regulations implement Section 1557 of the “Affordable Care Act.”

Provisions in the rule mandate that most physicians accepting federal funds will be required to post and publish a “notice of nondiscrimination” beginning on October 17, 2016 along with “taglines written in at least the top 15 languages spoken by limited English proficient populations statewide.”

HHS provides templates for the required notification and taglines here:

http://www.hhs.gov/civil-rights/for-individuals/section-1557/translated-resources/index.html

Other guidance about complying with these new rules can be found here:

http://www.hhhealthlawblog.com/2016/07/providers-must-post-new-nondiscrimination-notices.html and here:

http://www.hhs.gov/civil-rights/for-individuals/section-1557

Receiving payment from Medicare Part B does not alone make a physician a “covered entity” under these regulations, but accepting other federal funds, for instance Medicaid and “meaningful use” payments, does. HHS states that “the regulation would likely cover almost all licensed physicians because they accept Federal financial assistance from sources other than Medicare Part B.”

A dangerous aspect of the new regulation is that it greatly expands the definition of discrimination and therefore exposure of covered physicians to discrimination lawsuits by any patient and/or enforcement action by the federal government.

Note that accepting the first dollar of federal funding through Medicaid or any type of federal financial assistance (Medicare Part B is not considered federal financial assistance) is “volunteering” to help implement a radical social and political agenda of unlimited scope. The rule declines to provide illustrative scenarios because enforcement will depend on “an analysis that is nuanced and fact-dependent.” The cost of federal funding is incalculable: first there is the enormous “investment” in attempts to comply. Then there is the risk of loss of one’s entire career and assets because of one dissatisfied patient who demanded a service a physician could not provide because it would violate his conscience. This could involve a religious prohibition, or simply the Hippocratic prohibition against killing or harming a patient.

If a physician declines to participate in certain procedures, then that physician could be ambushed by a patient who is heavily funded by a wealthy advocacy group. Once there is a multi-million dollar judgment against a physician, few will dare exercise their right of conscience again.

The Obama Administration has indicated that it will not allow exceptions under the Religious Freedom Restoration Act (RFRA), which is what Hobby Lobby prevailed under. Instead, this new regulation asserts that there is a compelling interest to eliminate discrimination, and thus RFRA does not help.

A legal challenge to this regulation was filed by five states, but that Complaint does not focus on the problem of unleashing private new lawsuits against physicians for this. Thus, while AAPS will continue to monitor the implementation of these new rules and seek opportunities to challenge aspects that endanger physicians and their patients, the best protection for physicians is to withdraw from any activities that accept HHS funding except possibly Medicare Part B. It is also advisable for those who do accept Part B to become a “nonparticipating provider” at the earliest opportunity to facilitate complete withdrawal if it becomes necessary.

Please consider a tax-deductible contribution to our 501(c)3 legal wing, the American Health Legal Foundation. AHLF continues the fight to protect independent physicians and their patients, and with your help, it will investigate legal strategies to stop these new dangerous regulations.

Tax-deductible donations to AHLF can be made online at: http://AmericanHealthLegalFoundation.org or by mail to: AHLF, 1601 N. Tucson Blvd. Suite 9, Tucson, AZ, 85716.

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