On first glance, the Department of Health and Human Services’ new guidance on personal religious beliefs might not appear to affect the long-term care industry. Years from now, however, it could play an integral role in the way SNFs operate and staff facilities.
When the government rolled out its two-pronged approach last week — establishing the Conscience and Religious Freedom Division and proposing a rule that would allow conscience exemptions for individual health care employees — it focused primarily on abortion, with the occasional reference to physician-assisted suicide and sterilization.
Abortion falls outside the purview of most LTC providers, and aid in dying laws are only on the books of a handful of states. Still, some advocacy groups and lawyers are afraid that the granting of religious exemptions for those hot-button procedures by the HHS Office for Civil Rights (OCR) could open the door for discrimination against members of the lesbian, gay, bisexual and transgender (LGBTQ+) communities, as well as other minority groups.
“I think it allows people to kind of connect those dots, where this new division of OCR may provide some cover to health care providers who say: ‘Hey, I don’t want to perform this aspect of my job based on a moral or religious viewpoint,’” Jason Lundy, shareholder in the Chicago office of national law firm Polsinelli, told SNN. “And who knows where that can begin and end?”
Whose rights prevail?
In announcing the new division, HHS officials pointed to the prominent place that religious freedoms hold in American law, and framed the initiative as a way to protect employees who object to abortion, assisted suicide and other procedures.
“No one should be forced to choose between helping sick people and living by one’s deepest moral or religious convictions, and the new division will help guarantee that victims of unlawful discrimination find justice,” OCR Director Roger Severino said in a statement. “For too long, governments big and small have treated conscience claims with hostility instead of protection, but change is coming and it begins here and now.”
When reporting on the new office and proposed rule, Politico called it part of a plan to “protect health workers who don’t want… to treat transgender patients seeking to transition or provide other services for which they have religious or moral objections.”
The proposed rule doesn’t explicitly include the word “transgender” — while mentioning abortion 155 times — but the overall tenor of the guidelines was enough to disturb patient advocates.
SAGE, a New York City-based non-profit that supports the rights of LGBTQ+ seniors, called the Trump administration’s plan “alarming,” noting that 85% of non-profit long-term care (LTC) operators are affiliated with a religious organization.
“Today’s announcement by the Trump administration — allowing health care providers to deny LGBTQ+ and especially transgender patients and others critical care in the name of religion — is a horrifying next step in its coordinated effort to allow discrimination on religious grounds,” SAGE CEO Michael Adams said in a statement. “Our federal government is creating a dystopian world in which it places the rights of those who discriminate over the care of people.”
Historically, religious-freedom cases have focused on the government’s inability to force individuals to take actions that go against their personal beliefs, according to Lundy, who specializes in long-term care compliance.
For instance, Quakers cannot be compelled to swear oaths, such as in a courtroom setting, but are allowed to provide an “affirmation” when providing testimony instead. Other religious groups do not allow their adherents to participate in war, forcing the government to provide conscientious objector status or alternative service options during wartime, Lundy noted.
But whereas assisting with an abortion or sterilization procedure may constitute a direct action, the lines become blurrier in the long-term care space.
“I struggle to see where it would be legitimate to say: I can provide incontinence care to resident number one, but I can’t provide incontinence care to resident number two because of a religious objection,” Lundy said, adding that administering medications and assisting with activities of daily living don’t necessarily rise to the level of religiously prohibited actions.
Test cases ahead?
While the HHS decision may not necessarily have an impact on the long-term care space in the immediate term, the law surrounding religious objections to providing health services could have a far-reaching impact over time. As younger generations that are more open and accepting of LGBTQ+ people age into assisted living and skilled nursing facilities, the precedents set now could prove important — for instance, as gay and lesbian couples seek to enter facilities and live together in the same quarters.
“To the extent that this new OCR division would allow a long-term care staff member to object to providing services in a context like that, those may be the first test cases that we see in long-term care,” Lundy said.
LeadingAge, a national organization that represents non-profit LTC facilities, declined to comment for this story, with a spokesperson indicating that the group plans to wait to hear more from its members. The American Health Care Association, which represents private LTC providers, has not had sufficient time to analyze the new guidelines, a spokesperson told SNN.
But outside of the legal ramifications, Lundy pointed out that the regulations could bring logistical headaches to operators. What if, he asked hypothetically, an employee said he wouldn’t work with gay residents anymore and ended up having the full backing of the federal government — essentially making it legal for him to only perform a part of his job duties?
“You can’t fire that person and replace that person with a nurse who’s willing to serve everybody?” Lundy said. “That would be a tremendous operational strain on any long-term care provider.”
