On Friday, November 1, HHS announced a “notice of exercise of enforcement discretion” along with an unpublished notice of proposed rulemaking to say that they would not enforce nondiscrimination rules or regulations except those specifically passed in law or ruled on by the Supreme Court. In effect, they won’t enforce the Obama era nondiscrimination rules that apply to religion, sexual orientation, or gender identity. The issuance covers HHS programs.
They do this in two steps: they announced “non-enforcement” and will eventually issue a new rule with 30 days of public comment.
The unpublished rule would provide guidance for compliance when non-statutory public policy requirements conflict with statutory requirements, including the Religious Freedom Restoration Act of 1993 (RFRA). RFRA is the law the Administration utilized to allow discrimination by a South Carolina nonprofit agency to discriminate in the placement of children and youth and recruitment of foster and adoptive parents. In the most public instance, an applicant was denied mentorship because of their Jewish faith.
During the Obama Administration, nondiscrimination rules were issued to protect additional categories of discrimination, including religion, sexual orientation, and gender identity. This applied to Title IV-E foster care and adoption assistance. Two bills currently in Congress, the Every Child Deserves a Family Act (HR 3114 and S. 1791), would address such discrimination.
Ironically RFRA, the law used by the Administration to allow such discrimination, was intended to protect religious practices. It was passed on a bipartisan basis, and in enacting the law congressional supporters frequently highlighted a case involving Native American religious practices involving the use of peyote.
Although the yet to be published rule would apply to HHS programs the document highlights foster care funding stating, “Some non-Federal entities have expressed concerns that requiring compliance with certain non-statutory requirements [nondiscrimination rules implemented during the Obama Administration] violates the Religious Freedom Restoration Act (RFRA), 42 USC. § 2000bb, et seq., or the US Constitution, exceeds the Department’s statutory authority, or reduces the effectiveness of programs, for example, by reducing foster care placements in the Title IV-E program of HHS’s Administration for Children and Families.
HHS argues that the nondiscrimination regulation violated the Regulatory Flexibility Act (RFA) because the Obama Administration did not describe the rule’s impact on small entities (i.e. propriety firms meeting the definition of the Small Business Administration, nonprofit organizations or a small government jurisdiction).
Ironically, the document highlights foster care and adoption assistance since the purpose of Title IV-E is not about small entities but “For the purpose of enabling each State to provide, in appropriate cases, foster care and transitional independent living programs for children…and adoption assistance for children with special needs…”
The issuance comes just days before (November 6, 2019) a U.S. Southern District Court in New York threw out the Administration’s “conscience rule” on health care highlighting several violations in how the rule was crafted. The conscience rule allowed health care providers and employees to refuse to provide health care services based on a religious or moral objection.
District Court Judge Paul Engelmayer (State of New York, et al. v HHS) sided with 26 plaintiff states, local governments, providers, and advocacy groups in finding the Administration had violated regulation procedures in implementing the rule. The Judge found the Administration violated the Administrative Procedures Act (ACT). He wrote:
“The APA violations that the Court has found, however, are numerous, fundamental, and far-reaching. The Court’s finding that HHS lacked substantive rulemaking authority as to three of the five principal Conscience Provisions…The Court’s finding that the agency acted contrary to two major existing laws (Title VII and EMTALA) vitiates substantive definitions in the Rule affecting the health care employment… HHS failed to give proper notice of the definition it adopted of “discriminate or discrimination” voids that central dimension of the Rule.”
He also found that the Administration mischaracterized facts. He pointed out that the Administration claimed 358 “conscience complaints” over a two-year period 2016-18. Of the total, he found 22 were exact duplicates, and of the remaining 336 “unique complaints,” nearly 80 percent were related to vaccinations, which the rule does not cover, and an additional 49 complaints were unrelated to the rule for other reasons.