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Paul Zimmerman

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Would HHS’s Healthcare Conscience Rules Enable Physicians to Stay Silent About Legal End-of-Life Options?

Physicians who object to direct involvement with a medical procedure such as assisted suicide have differing views on the extent of their ethical duty to provide patients with information about how to obtain it elsewhere. Currently pending healthcare conscience regulations from HHS may give a healthcare provider a remedy against state laws that compel disclosure, regardless of where the provider draws the line.

In 2009, Vermont enacted a patient’s bill of rights, giving a patient with a terminal illnesses the right to be informed by a clinician of all available options related to terminal care, and to be able to request, and receive, supportive care for those options available. In 2013, Vermont enacted an end-of-life act permitting a physician to prescribe a patient with a terminal condition medication to be self-administered to “hasten” death. The act does not require physicians to participate in assisted suicide, but it does state that a patient has the right to be informed of all available options related to terminal care, “regardless of the purpose of the inquiry or the nature of the information.” In 2017, a federal court considering a challenge to the law by physician groups on religious and ethical grounds stated that the law could require physicians to counsel patients on the availability of assisted suicide.[1]    

The Vermont case was settled via a consent agreement, but one that might not satisfy all physicians. According to the court, the plaintiffs did not insist they had the right to remain silent when faced with a patient request for information about assisted suicide. So the consent decree permitted physicians to satisfy the state disclosure requirements by referring patients to a state website with information on assisted suicide. Other physicians, however, may not agree with the line drawn in the Vermont case and object to providing any assistance that leads to the death of a patient.

HHS’s proposed conscience rules, which enforce dozens of federal statutes, may provide a remedy for dissenting physicians, regardless of the amount of advice they believe is proper. Among the federal statutes encompassed by HHS’s proposed rules is ACA §1553. Section 1553 prohibits a state that receives federal funding under the Affordable Care Act (ACA) from discriminating against a physician or other individual/institutional healthcare entity because it refuses to provide health care items or services for causing or assisting in causing the death of an individual, such as by assisted suicide, euthanasia or mercy killing. The ACA provides many types of funding to states, such as to expand Medicaid, so Section 1553 could obligate most states.

Section 1553 does not define “discrimination.” But HHS’s proposed regulation defines it to include enforcement of any law or regulation that has an adverse effect on a protected individual or entity. This could include a state’s enforcement of mandatory disclosure rules. Section 1553 also does not say what is included in providing a “health care item or service” that causes or assists in causing death. Some might argue that it includes providing any professional advice or information that assists a person in ending his/her life, including directing a patient to sources of information on a website. HHS’ proposed regulation doesn’t define the “items or services” either, yet HHS’s interpretive approach to the conscience rules is broad. For example, it defines physician “referral” to include provision of any information, including, but not limited to, “name, address, phone number, email, website, instructions, or description” regarding a health care service.

HHS’s proposed rules enforce other federal conscience statutes that might apply to end-of-life services as well. These include the Church Amendment, which provides that an individual cannot be required to perform or assist in any part of a program funded by HHS that is contrary to his/her beliefs. This rule might apply to disclosure requirements for end -of-life or other procedures adopted by a state Medicaid program or health insurance exchange.  

A healthcare provider, health plan or other entity considering how to proceed in the face a state law that violates conscience might be able to file a complaint with OCR before a state agency takes enforcement action against it. Under the proposed rules, OCR will be authorized to investigate a complaint if there is a threatened, potential or actual failure to comply with the conscience laws.

The comment period on the proposed healthcare conscience rules ends on March 27, 2018.   For more information on the rules, contact David Johnson at

This blog post is not offered as, and should not be relied on as, legal advice. You should consult an attorney for advice in specific situations.

[1] Vermont Alliance for Ethical Healthcare v. Hoser, 274 F.Supp.3d 227, 234 (D. Ver. 2017).