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HHS proposed rule lowers the bar for care and discriminates against certain people

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Last Tuesday, March 27, the comment period closed in response to the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) Proposed Rule: Protecting Statutory Conscience Rights in Health Care; Delegations of Authority. This proposed rule dangerously expands the ability of institutions and entities, including hospitals, pharmacies, doctors, nurses, even receptionists, to use their religious or moral beliefs to discriminate and deny patients health care.  

It fails to ensure that all people have equal access to comprehensive and nondiscriminatory services. Nurses and all health care professionals must guard against any erosion of civil rights protections in health care and continue to ensure patients receive quality, medically necessary, and compassionate care.

{mosads}As the most “honest and ethical” profession, a nurse should never refuse to treat a patient based on that person’s individual attributes. Provision 1 of the Code of Ethics for Nurses states that, “The nurse practices with compassion and respect for the inherent dignity, worth, and unique attributes of every person.”


This includes respect for the human dignity of the patient and the demand that nurses must never behave prejudicially — which is to say, with unjust discrimination. The Code of Ethics for Nurses also outlines the nurse’s primary commitment is to the patient, whether an individual, family, group, community, or population.  

Patient care should be primarily and explicitly focused on the needs of the patient, regardless of the beliefs of the caregiver. Provision 2 also establishes the primacy of the patient’s interests in health care settings; this principle positions the nurse-patient relationship within the context of a larger “ethic of care” that includes the patient, the patient’s family or close relationships, the nurse, the health careteam, the institution or agency, and even societal expectations of care.”

The proposed rule broadly defines “assist in the performance” and twists the definition of “discrimination.” General and hazy definitions lead to blanket interpretations of not only what type of services can be denied, but also which types of health care professionals can refuse to participate in facilitating health care services.

For example, under this proposed rule, a receptionist can refuse to schedule a patient’s pregnancy termination or appointment for contraception consultation and a clerk can decline to process accounts and information for certain cases and patients. This violate the plain meaning of the existing law, contradicts the mission of HHS, lowers the bar for care and upsets the crucial balance of delivering evidence-informed, patient-centered care.

Many medical societies and professional associations all agree that the provider’s right to conscientiously refuse to provide certain services must be secondary to his or her first duty, which is to the patient.

Should there be a justifiable situation when a health-care worker believes it is necessary to withdraw from any participation in a patient’s care, then there is an obligation to provide for that patient’s safety, and assure that others make the care available to the patient, but never to deny services outright.

Discrimination in health care settings remains a grave and widespread problem for LGBTQ populations and women — particularly those seeking reproductive services — that leads to increased negative health outcomes from delayed or denied care. The denial of reproductive health care services is well documented and one study suggests that 24 percent of women in the United States have been denied treatment by a health-care provider.

For the LGBTQ populations, the reasons for discrimination are complex and varied, but many stem from societal stigma and discrimination exacerbated by the historical designation of homosexuality as a mental disorder, the onset of the HIV/AIDS epidemic, religious prejudice with respect to homosexuality, and government policy such as “Don’t Ask, Don’t Tell.”  

When care is delayed or denied, LGBTQ populations can experience increased instances of mood and anxiety disorders and depression, and an elevated risk for suicidal ideation and attempts; higher rates of smoking, alcohol use, and substance use; higher instances of stigma, discrimination, and violence; less frequent use of preventive health services; and increased levels of homelessness among LGBTQ youth.

It is imperative that nurses and all health care professionals continue to protect equal access to comprehensive and nondiscriminatory services for all groups and populations. All patients should receive equally compassionate care no matter who they are and no matter which medically necessary services they seek.

HHS must rescind this proposed rule and strike a balance between enforcing statutory conscience rights provisions and enforcing crucial health care civil rights protections including those under Section 1557 of the Affordable Care Act.

Pamela F. Cipriano is the 35th president of the American Nurses Association and has extensive experience as an executive in academic medical centers. Karen S. Cox is the president of the American Academy of Nursing, and is an executive in a large health system serving children and their families.

Tags HHS nurses U.S. Department of Health and Human Services

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