Friday, March 27, 2009

New Rule at the Deaprtment of Health and Human Services - may bring healthcare to it's knee's

A new rule at the DHHS could effectively bring our health care services to a halt. The new rule took effect in January and was put into place in the waning months of the Bush White House.

The rule could set a precedence for religious beliefs in publicly funded institutions which suspiciously seems to go against the spirit of the 1st and 14th amendment of the US constitution.

The rule is tagged : DEPARTMENT OF HEALTH AND HUMAN SERVICES 45 CFR Part 88 RIN 0991–AB48 Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law AGENCY: Office of the Secretary, HHS

The worrisome part is that medical workers whose religious beliefs would go against performing abortions, sterilizations and anything related to these procedures would be excused from performing them. But importantly these employees could not be relocated in the hospital to another department as this would be seen as discriminatory. Effectively, if there are no staff to perform the procedures or any part of it, even cleaning up the room afterwards, technically, then the hospital would not be able to offer the services. This could seriously limit access for women seeking these procedures.

Even more challenging would be a potential scenario where emergency room personnel who are currently required by law to advise victims of rape of emergency contraception may effectively refuse to do so under the terms of this rule.

Julie D. Cantor, M.D., J.D. In an article for the New England Journal of Medicine reported that "Lawsuits have already been filed in federal court, and Connecticut Attorney General Richard Blumenthal, who led one of the cases, has vowed to continue the fight until the regulation is "finally and safely stopped." The fear is that remmnants of the rule may be left behind causing havoc in the health care system.

However, with the change in government, the DHHS is working on rescinding the law.

Please view the rule here and also register your comments DHHS rule


  1. JiM

    Didn't we cover a similar issue on this post. The post involved a pharmaceutical employee who refused to fill a prescription because it violated his religious beliefs. I think it was in Chicago.


  2. I checked back in did not find the case I was referring too, may I read it on In Vivo. I did find an article from the Washington Post on this issue; according to the article some States are considering laws similar to the proposed Federal Rule.

  3. James,

    I think you are referring to a story that was on Pharmalot, I think they were in San Fransisco?

    Scary business.....

  4. Note: At the bottom of the left column are 2 search boxes that you can use. One for PharmLittle and one for PharmaLot. Put in your term and it will show all posts that are related.

  5. Bushy was outta his tree and we were left to his mercy.

    Dangerous…is a prez who acts like a dictator and who writes rules and regulations that are never confirmed by Congress or tested in the courts.

    Why is this supported in a democracy? How long will it take to undo Bush’s shenanigans? How do we protect ourselves from despots?

    See: The Bush Strategy For Pushing Preemption // Pharmalot and Can Obama Turn Back The Clock On Bush’s Midnight Rules? - ProPublica

  6. I found the case I was referring too; it is an Illinois case(Menges v Blagojevich).

    The case involves an Administrative rule requiring pharmacists to fill all prescriptions even if the purpose of the prescription medication is contrary to the religious beliefs of the prescribing pharmacist.
    I have attached a link to the Illinois Supreme Court Decision on this case and have not fully digested its contents. However just from a brief rereading of the case it appears the issue ruled upon by the Illinois Supreme Court was whether the Plaintiffs had standing to bring their action, the Supreme Court ruled they did and remanded it back to the lower Courts.

    As to the Federal Rule; although I admmit I have not followed the attched link to the Regulatory Changes provided by Justice I admit I am opposed to a pharmacist failing to fill a prescription based upon religious or moral beliefs.
    The selling of prescription medicines is regulated by State licensing Authorities and as long as the prescription is legally available the filling of the prescription, at least in my opinion, falls within, the Core Duties of the pharmacist's job description.
    A reading of the Menges case does describe remedies available to the prescribing pharmacist whereby the said pharmacist can invoke his religious beliefs if another pharmacist is available or there is another pharmacy in close proximity to the pharmacy denying the prescription.
    I am also opposed to these remedial provisions; again the individual is employed in a State licensed activity and should be bound to fulfill all of the obligations associated with that license, including filling prescriptions they themselves do not condone.
    Some individuals may look at the opposition to prescribing certain medications as analogous to that of a physician refusing to perform an abortion based upon their own religious or moral beliefs. I don't buy that argument for the simple reason that a doctor who opposes abortion is not going to work in an abortion clinic.
    There could be certain situations where a physicians beliefs interfere with his or her advice to certain patients, for example a gynocologist informs a patient she is pregnant and the patient asks about having an abortion; the doctor would be well within his or her rights to refuse the abortion but performing an abortion is not a Core Duty of his or her position and the physician may not even be ethically bound to refer her to a physician who does perform abortions( I am not sure on the ethics part).
    In closing, I will admit I am somewhat biased against religious or reasonable accommodation because as former Manager of Labor Relations I had to deal with many cases where these issues came into play and a good number of the requests bordered on the absurd and were attempts to circumvent the existing seniority provisions, where as anyone familiar with labor law knows bona fide seniority systems trump reasonable and religious accommodation requests, but unfortunately the response to the requests for accommodation must still be investigated and a heavy burden is placed on management, even where a seniority system exists, to demonstrate why the accommodation places an undo hardship on management.


    PS: I did actually have legitimate requests for accommodation and where feasible they were granted.

  7. Just seeing this now. Interesting issue. In any event, it was not posted by me.

  8. As far as I know, the new administration is working to reverse it. Ridiculous rule anyway.

    But watch those apostrophes! Looks like you used a shotgun in here.

  9. re: apostrophes, the use of the possessive is perhaps a spillover from the Biederman posts....

  10. Below is a link to the posted comments for the original HHS proposed regulation.


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