Provider Conscience Regulation/RIN0991-AB48

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September 19 , 2008

The Honorable Michael O. Leavitt

Secretary

U.S. Department of Health and Human Services

Room 615 F

Hubert H. Humphrey Building

200 Independence Avenue, SW

Washington, DC  20201

RE: Provider Conscience Regulation/RIN0991-AB48

Dear Secretary Leavitt:

On behalf of the nearly 70,000 clinically practicing physician assistants (PAs) represented by the American Academy of Physician Assistants (AAPA), I am compelled to comment on the Office of the Secretary’s proposed rule to broadly expand the ability of  health care entities, health care professionals, and other ancillary staff to refuse to perform health care services (and to refuse to provide information or a referral to where the patient may receive the health care service) because of religious, moral, ethical, or other convictions (45 CFR, Part 88; Federal Register/ Vol. 73, No. 166, Tuesday, August 26, 2008.) The AAPA strongly objects to the proposed rule and urges that it be withdrawn immediately.

 

AAPA’s public policy is firmly grounded in the premise that patients come first and that expanded access to clinically appropriate, quality medical care is paramount. AAPA’s Guidelines for Ethical Conduct for the Physician Assistant Profession establish firm parameters for professional behavior when the physician assistant’s moral views are in conflict with the treatment or care sought by the patient.

 

Physician assistants are professionally and ethically committed to providing nondiscriminatory care to all patients. While PAs are not expected to ignore their own personal values, scientific or ethical standards, or the law, they should not allow their personal beliefs to restrict patient access to care. A PA has an ethical duty to offer each patient the full range of information on relevant options for their health care. If personal, moral, religious, or ethical beliefs prevent a PA from offering the full range of treatments available or care the patient desires, the PA has an ethical duty to refer a patient to another qualified provider. That referral should not restrict a patient’s access to care. PAs are obligated to care for patients in emergency situations and to responsibly transfer patients if they cannot care for them.

The AAPA policy offers balance. It makes it clear that physician assistants have the right to step away from providing a health care service that violates his or her moral or religious beliefs, but the PA has the responsibility to refer the patient to another qualified provider. The PA’s right to withdraw from services, cannot be used as a pretext for denying the patient’s right to clinically appropriate medical care.

 

The proposed rule offers no such balance. In addition to allowing every health care facility and health professions educational program that receives federal funds the ability to refuse to provide care based on religious, moral, or ethical reasons, the rule broadly expands the category of individuals who may also object to a treatment through its new definition of “who assist in the performance.” In the preamble to the proposed rule, the Department states that it “proposes to interpret this term broadly, as encompassing individuals who are members of the workforce of the Department-funded entity performing the objectionable procedure…including participation in any activity with a reasonable connection to the objectionable procedure, including referrals, training, and other arrangements for offending procedures. For example, an operating room nurse would assist in the performance of surgical procedures, and an employee whose task it is to clean the instruments used in a particular procedure would be considered to assist in the performance of the particular procedure.” At another point, the Department states that the definition of workforce will include employees, volunteers, and trainees. The proposed rule appears to allow virtually anyone affiliated with the health care entity to refuse to participate in a procedure based on religious, moral, ethical, or other reason. The proposed rule would also offer hiring and employment protections for those who object to medical care.

 

This rule seems to cover virtually any health care services that an employee, volunteer, or trainee might find objectionable. The rule’s preamble states that the “Department is concerned that the development of an environment in the health care field that is intolerant of individual’s conscience, certain religious beliefs, ethnic and cultural traditions, and moral convictions may discourage individuals from diverse backgrounds from entering health care professions.” What are the limits? Could an employee object to an autopsy, for example, or gastric bypass surgery, based on a moral, religious, cultural, or ethnic belief? What health care services would be assured?

 

The proposed rule raises many questions –

 

• Why should the health care industry be subject to additional requirements regarding the religious and moral rights of its employees and volunteers, when the religious rights of all US employees are protected under Title VII of the Civil Rights Act? Why are the current regulations regarding the right to refuse to perform abortions and sterilizations under the Church laws and Weldon amendments no longer adequate to protect a health care professional’s right not to perform a certain service?
• How can the draft rule be reconciled with longstanding requirements under Title X to ensure that women have access to the full range of reproductive health care and that pregnant women receive non-directive counseling upon request?
• How can the health care industry be expected to operate in an environment where it must hire and maintain employees who can object to providing services based on a religious, moral, ethical, or other reason? Would any other industry be subject to such administrative requirements?
• Where is the concern for the patient? How are the rights of patients to receive needed medical care ensured? Would the proposed rule create a health care environment that has license to be intolerant of patients?

 

PAs in virtually every medical setting are negatively affected by the proposed rules, as are PA educators and PA students. But, the most important individuals who are affected by the rule are patients and their families. Patients’ health care and dignity are on the line. In the relationship between health care provider and patient, the patient is the party in need of additional protection, not health care facilities and their employees. Yet, the proposed rule promises to make patients more vulnerable by allowing a health care entity, professional, employee, or even volunteer to override the patient’s autonomy and deny the patient’s right to receive needed medical care.

 

The American Academy of Physician Assistants strongly objects to the proposed rule. The proposed rule violates AAPA policy regarding patients’ rights to receive clinically appropriate, legal medical care. Additionally, the proposed rule places the religious, moral, and other objections of health care providers above the rights and needs of patients.

 

The AAPA strongly urges you to reconsider the consequences of the proposed rule and withdraw the rule. Should you have any questions on the AAPA, the PA profession, or these comments, please do not hesitate to contact Sandy Harding, AAPA’s Director of Federal Affairs at 703-836-2272, extension 3205, or sandra@aapa.org.

 

Sincerely,

William F. Leinweber

Executive Vice President, Chief Executive Officer