Disability Advocates Worry ‘Conscience Rule’ Could Spell Trouble
A new Trump administration rule granting health care providers greater latitude to decline care they disagree with could have serious ramifications for people with disabilities, advocates say.
Earlier this month, the U.S. Department of Health and Human Services finalized an updated “conscience rule” that protects medical staff and health care entities from having to provide, refer to, or pay for services such as abortion, sterilization or assisted suicide.
But advocates say the implications are much broader because the rule says that an individual can’t be required to “perform or assist” in any part of a “health service program” if contrary to the person’s religious beliefs or moral convictions. For instance, they say, a doctor could deny hormones to a transgender person or a sign language interpreter might refuse to communicate information about birth control.
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People with disabilities could also feel the effects in their own homes if they receive federally-funded services.
Samantha Crane, legal director and director of public policy for the Autistic Self Advocacy Network, said group homes and agencies that provide personal care attendants are often faith-based. She said their employees are considered health care workers.
“This rule could mean if someone is living in a group home, the group home can refuse to allow overnight visitation by their same sex partner,” Crane said. “It could mean the person charged with helping a person bathe, dress and groom themselves, could refuse to help them dress in clothing that reflects their gender if they’re transgender.”
According to HHS, the religious liberty protection extends to “individuals and entities” receiving federal dollars through Medicare, Medicaid and the Affordable Care Act, among other programs. In releasing the rule, Roger Severino, director of HHS’s Office for Civil Rights, said it would ensure that providers “won’t be bullied out of the health care field because they decline to participate in actions that violate their conscience, including the taking of human life.”
The rule applies not only to physicians and nurses but ambulance drivers and staff who make schedules or prepare rooms for procedures, HHS documents say.
“This is really a huge impediment for people with disabilities to get the access to care they need,” said David Machledt, senior policy analyst at the National Health Law Program. “If it applies to an ambulance driver, why wouldn’t it apply to someone providing a non-emergency transport to a medical appointment? You might have someone who is refusing to help you take a contraceptive pill.”
HHS officials declined to answer questions about application of the rule to personal care attendants and staff in residential settings such as group homes. A spokeswoman referred questions to a fact sheet and the 440-page final rule.
The new rule has already been met with legal opposition. Last week, California filed a lawsuit while another suit was filed by New York on behalf of itself and 18 other states.
The city of San Francisco was the first to sue, saying the rule would lead to discrimination.
“If an individual were to believe that transgender people should not transition, it would empower them to refuse to provide any health-related service to a transgender patient, such as medical bill processing or scheduling an X-ray for a broken leg,” the San Francisco suit says.
Crane said people with disabilities who live in states with self-directed Medicaid services will have the option of interviewing and selecting their own personal care attendants who are willing to provide the care they need, while individuals relying on an agency may have less control over who assists them and could run into issues. Nonetheless, she said that even with the expansion of conscience protections, that doesn’t supersede the civil rights of people with disabilities.
“I personally think this religious refusal rule is going to make it tremendously hard for people in group homes, many of which are faith-based, to enforce their rights that we fought for,” she said.