Regulation 45 CFR Part 88
U.S. Department of Health and Human Services
Ensuring That Department of Health and Human
Services Funds Do Not Support Coercive or
Discriminatory Policies or Practices in Violation of
Federal Law; Final Rule
(From the Federal Register / Vol. 73, No. 245
/ Friday, December 19, 2008 / Rules and Regulations:
Part VI, 78072-78101)
â– Therefore, under the Church Amendments, 42
U.S.C. 300a-7, Public Health Service Act § 245, 42
U.S.C. 238n, the Weldon Amendment, Consolidated
Appropriations Act, 2008, Public Law 110-161, Div.
G, § 508(d), 121 Stat. 1844, 2209, and 5 U.S.C. 301,
and for the reasons set forth in the preamble, the
Department of Health and Human Services is amending
45 CFR Subtitle A, Subchapter A by adding Part 88 to
read as follows:
PART 88-ENSURING THAT DEPARTMENT OF HEALTH AND
HUMAN SERVICES FUNDS DO NOT SUPPORT COERCIVE OR
DISCRIMINATORY POLICIES OR PRACTICES
Sec.
88.1 Purpose.
88.2 Definitions.
88.3 Applicability.
88.4 Requirements and prohibitions.
88.5 Written certification of compliance.
88.6 Complaint handling and investigating.
Authority: 42 U.S.C. 300a-7, 42 U.S.C.
238n, Public Law 110-161, Div. G, § 508(d), 121
Stat. 1884, 2209, 31, 42 U.S.C. 1395w-22(j)(3)(B),
42 U.S.C. 1396u-2(b)(3), and 5 U.S.C. 301.
The purpose of this Part is to provide for the
implementation and enforcement of the Church
Amendments, 42 U.S.C. 300a-7, section 245 of the
Public Health Service Act, 42 U.S.C. 238n, and the
Weldon Amendment, Consolidated Appropriations Act,
2008, Public Law 110-161, Div. G, § 508(d), 121
Stat. 1844, 2209 (collectively referred to as the
federal healthcare conscience protection statutes).
These statutory provisions protect the rights of
healthcare entities/entities, both individuals and
institutions, to refuse to perform health care
services and research activities to which they may
object for religious, moral, ethical, or other
reasons. Consistent with this objective to protect
the conscience rights of health care
entities/entities, the provisions in the Church
Amendments, section 245 of the Public Health Service
Act and the Weldon Amendment, and the implementing
regulations contained in this Part are to be
interpreted and implemented broadly to effectuate
their protective purposes.
For the purposes of this part:
Assist in
the Performancemeans to participate in any
activity with a reasonable connection to a
procedure, health service or health service program,
or research activity, so long as the individual
involved is a part of the workforce of a
Department-funded entity. This includes counseling,
referral, training, and other arrangements for the
procedure, health service, or research activity. [Comment
on definition] [HHS
Explanation]
Entity includes an
individual physician or other health care
professional, health care personnel, a participant
in a program of training in the health professions,
an applicant for training or study in the health
professions, a post graduate physician training
program, a hospital, a provider sponsored
organization, a health maintenance organization, a
health insurance plan, laboratory or any other kind
of health care organization or facility. It may also
include components of State or local governments. [HHS
Explanation]
Health Care
Entity includes an individual physician or
other health care professional, health care
personnel, a participant in a program of training in
the health professions, an applicant fortraining or
study in the health professions, a post graduate
physician training program, a hospital, a provider
sponsored organization, a health maintenance
organization, a health insurance plan, laboratory or
any other kind of health care organization or
facility. It may also include components of State or
local governments. [Comment
on definition] [HHS
Explanation]
Health
Service Program includes any plan or program
that provides health benefits, whether directly,
through insurance, or otherwise, which is funded, in
whole or in part, by the Department. It may also
include components of State or local governments. [Comment
on definition] [HHS
Explanation]
Individual means
a member of the workforce of an entity/health care
entity. [Comment
on definition] [HHS
Explanation]
Instrument is the
means by which federal funds are conveyed to a
recipient, and includes grants, cooperative
agreements, contracts, grants under a contract,
memoranda of understanding, and any other funding or
employment instrument or contract. [HHS
Explanation]
Recipient means an
organization or individual receiving funds directly
from the Department or component of the Department
to carry out a project or program. The term includes
State and local governments, public and private
institutions of higher education, public and private
hospitals, commercial organizations, and other
quasi-public and private nonprofit organizations
such as, but not limited to, community action
agencies, research institutes, educational
associations, and health centers. The term may
include foreign or international organizations (such
as agencies of the United Nations) which are
recipients, sub-recipients, or contractors or
subcontractors of recipients or sub-recipients at
the discretion of the Department awarding agency. [Comment
on definition] [HHS
Explanation]
Sub-recipient
means an organization or individual receiving funds
indirectly from the Department or component of the
Department through a recipient or another
sub-recipient to carry out a project or program. The
term includes State and local governments, public
and private institutions of higher education, public
and private hospitals, commercial organizations, and
other quasi-public and private nonprofit
organizations such as, but not limited to, community
action agencies, research institutes, educational
associations, and health centers. The term may
include foreign or international organizations (such
as agencies of the United Nations) which are
recipients, sub-recipients, or contractors or
subcontractors of recipients or sub-recipients at
the discretion of the Department awarding agency. [Comment
on definition] [HHS
Explanation]
Workforce means
employees, volunteers, trainees, contractors, and
other persons whose conduct, in the performance of
work for a Department funded entity, is under the
control or authority of such entity, whether or not
they are paid by the Department-funded entity, or
health care providers holding privileges with the
entity. [Comment
on definition] [HHS
Explanation]
(a) The Department of Health and Human Services
is required to comply with sections §§
88.4(a),
(b)(1), and (d)(1) of
this part.
(b) Any State or local government that receives
federal funds appropriated through the
appropriations act for the Department of Health and
Human Services is required to comply with§§
88.4(b)(1) and
88.5 of this part.
(c) Any entity that receives federal funds
appropriated through the appropriations act for the
Department of Health and Human Services to implement
any part of any federal program is required to
comply with §§ 88.4(b)(2)
and
88.5 of this part.
(d) Any State or local government that receives
federal financial assistance is required to comply
with §§ 88.4(a) and
88.5 of this part.
(e) Any State or local government, any part of
any State or local government, or any other public
entity must comply with § 88.4(e)
of this part.
(f)(1) Any entity, including a State or local
government, that receives a grant, contract, loan,
or loan guarantee under the Public Health Service
Act, the Community Mental Health Centers Act, or the
Developmental Disabilities Assistance and Bill of
Rights Act of 2000, must comply with §§
88.4(c)(1) and
88.5 of this part.
(2) In addition to complying with the
provisions set forth in §
88.4(c)(1) of this part, any such entity
that is an educational institution, teaching
hospital, or program for the training of health
care professionals or health care workers shall
also comply with §
88.4(c)(2) of this part.
(g)(1) Any entity, including a State or local
government, that carries out any part of any health
service program or research activity funded in whole
or in part under a program administered by the
Secretary of Health and Human Services must comply
with §§ 88.4(d)(1)and
88.5 of this part.
(2) In addition to complying with the
provisions set forth in (g)(1) of this section,
any such entity that receives grants or
contracts for biomedical or behavioral research
under any program administered by the Secretary
of Health and Human Services shall also comply
with §§ 88.4(d)(2) of
this part.
(a) Entities to whom this
paragraph (a) applies shall not:
(1) Subject any
institutional or individual health care entity
to discrimination for refusing:
(i) To undergo training in the
performance of abortions, or to require,
provide, refer for, or make arrangements for
training in the performance of abortions;
(ii) To perform, refer for, or make other
arrangements for, abortions; or
(iii) To refer for abortions;
(2) Subject any
institutional or individual health care entity
to discrimination for attending or having
attended a post-graduate physician training
program, or any other program of training in the
health professions, that does not or did not
require attendees to perform induced abortions
or require, provide, or refer for training in
the performance of induced abortions, or make
arrangements for the provision of such training;
(3) For the purposes
of granting a legal status to a health care
entity (including a license or certificate), or
providing such entity with financial assistance,
services or benefits, fail to deem accredited
any postgraduate physician training program that
would be accredited but for the accrediting
agency's reliance upon an accreditation standard
or standards that require an entity to perform
an induced abortion or require, provide, or
refer for training in the performance of induced
abortions, or make arrangements for such
training, regardless of whether such standard
provides exceptions or exemptions;
(b)(1) Any entity to whom
this paragraph (b)(1) applies shall not subject any
institutional or individual health care entity to
discrimination on the basis that the health care
entity does not provide, pay for, provide coverage
of, or refer for, abortion.
(2) Entities to whom
this paragraph (b)(2) applies shall not subject
any institutional or individual health care
entity to discrimination on the basis that the
health care entity does not provide, pay for,
provide coverage of, or refer for abortion, as
part of the federal program for which it
receives funding.
(c) Entities to whom this
paragraph (c) applies shall not:
(1) Discriminate
against any physician or other health care
professional in the employment, promotion,
termination, or extension of staff or other
privileges because he performed or assisted in
the performance, or refused to perform or assist
in the performance of a lawful sterilization
procedure or abortion on the grounds that doing
so would be contrary to his religious beliefs or
moral convictions, or because of his religious
beliefs or moral convictions concerning
abortions or sterilization procedures
themselves;
(2) Discriminate
against or deny admission to any applicant for
training or study because of reluctance or
willingness to counsel, suggest, recommend,
assist, or in any way participate in the
performance of abortions or sterilizations
contrary to or consistent with the applicant's
religious beliefs or moral convictions.
(d) Entities to whom this
paragraph (d) applies shall not:
(1) Require any
individual to perform or assist in the
performance of any part of a health service
program or research activity funded by the
Department if such service or activity would be
contrary to his religious beliefs or moral
convictions.
(2) Discriminate in
the employment, promotion, termination, or the
extension of staff or other privileges to any
physician or other health care personnel because
he performed, assisted in the performance,
refused to perform, or refused to assist in the
performance of any lawful health service or
research activity on the grounds that his
performance or assistance in performance of such
service or activity would be contrary to his
religious beliefs or moral convictions, or
because of the religious beliefs or moral
convictions concerning such activity themselves.
(e) Entities to whom this
paragraph (e) applies shall not, on the basis that
the individual or entity has received a grant,
contract, loan, or loan guarantee under the Public
Health Service Act, the Community Mental Health
Centers Act, or the Developmental Disabilities
Assistance and Bill of Rights Act of 2000, require:
(1) Such individual to
perform or assist in the performance of any
sterilization procedure or abortion if his
performance or assistance in the performance of
such procedure or abortion would be contrary to
his religious beliefs or moral convictions, or
(2) Such entity to:
(i) Make its facilities available for the
performance of any sterilization procedure
or abortion if the performance of such
procedure or abortion in such facilities is
prohibited by the entity on the basis of
religious beliefs or moral convictions, or
(ii) provide any personnel for the
performance or assistance in the performance
of any sterilization procedure or abortion
if the performance or assistance in the
performance of such procedure orabortion by
such personnel would be contrary to the
religious beliefs or moral convictions of
such personnel.
(a)
Certification Requirement.
Except as provided in paragraph
(e) of this section,
recipients shall include the written certifications
as set forth in paragraph (c)(4)
of this section in the application for the grant,
cooperative agreement, contract, grant under a
contract, memorandum of understanding or other
funding or employment instrument or contract, as
applicable. Except as provided in paragraph
(e) of this section,
subrecipients must provide the Certification of
Compliance as set out in paragraph
(d)(3) of this section,
submitted as part of the sub-recipient's original
agreement with the recipient in the execution of its
grant, cooperative agreement, contract, grant under
a contract, memorandum of understanding or other
funding instrument or contract, or in a separate
writing, signed by the sub-recipient's officer or
other person authorized to bind the sub-recipient.
All certifications shall be addressed directly to
the Department; recipients are required to submit
their certifications directly to the Department.
Recipients and subrecipients shall be required to be
in full compliance with all applicable certification
requirements by no later than the beginning of the
federal fiscal year following the effective date of
this regulation.
(b) Notification of Certification Requirement.
The Department shall notify recipients of funding of
the certification requirement at the time of award
through the Request for Proposal, Request for
Agreement, Provider Agreement, contract, guidance,
or other public announcement of the availability of
funding. Recipients shall not construe anything in
this paragraph to mean that an entity or
organization is in any way exempt from providing the
certification in the event the Department should
fail to provide notification.
(c)
Certification by recipients.
(1) Except as provided in paragraph
(e) of this section,
all recipients through any instrument must provide
the Certification of Compliance as set out in
paragraph (c)(4) of this
section, submitted as part of the recipient's
application for the grant, cooperative agreement,
contract, grant under a contract, memorandum of
understanding or other funding instrument or
contract or in a separate writing signed by the
recipients' officer or other person authorized to
bind the recipient.
(2) Recipients must file with the Department a
renewed certification upon any renewal, extension,
amendment, or modification of the grant, cooperative
agreement, contract, grant under a contract,
memorandum of understanding or other funding or
employment instrument or contract that extends the
term of such instrument or adds additional funds to
it. Recipients that are already recipients as of the
effective date of this regulation must file a
certification upon any extension, amendment, or
modification of the grant, cooperative agreement,
contract, grant under a contract, memorandum of
understanding or other funding instrument or
contract that extends the term of such instrument or
adds additional funds to it.
(3) Recipients shall require certifications and
re-certifications by all sub-recipients that receive
funding through their association with the
recipient. Recipients shall require these
certifications and re-certifications as often as
recipients are required to sign or amend the
instrument, for as long as the relationship between
the recipient and the sub-recipient lasts.
Recipients shall collect and maintain sub-recipient
certifications for as long as the relationship
between the recipient and the sub-recipient lasts,
and for a reasonable time after the
relationshipends, for the purpose of investigations,
litigation, or other purposes.
(4) Except as provided in
paragraph (e) of
this section, all recipients shall provide the
following certification:
''As the duly authorized representative of
the recipient I certify that the recipient of
funds made available through this [instrument]
will not [check all that are appropriate]:
l[if recipient is a state or local
government receiving federal funds
appropriated through the appropriations act
for the U.S. Department of Health and Human
Services] subject any institutional or
individual health care entity to
discrimination on the basis that the health
care entity does not provide, pay for,
provide coverage of, or refer for, abortion.
l[if recipient is an entity receiving
federal funds appropriated through the
appropriations act for the U.S. Department
of Health and Human Services to implement
any part of any federal program] subject
any institutional or individual health care
entity to discrimination on the basis that
the health care entity does not provide, pay
for, provide coverage of, or refer for
abortion as part of the federal program for
which it receives funding.
l[if recipient is a State or local
government that receives federal financial
assistance]
(1) Subject any institutional or
individual health care entity to
discrimination for refusing:
(a) To undergo training in the
performance of abortions, or to require,
provide, refer for, or make arrangements
for training in the performance of
abortions;
(b) to perform, refer for, or make
other arrangements for, abortions; or
(c) to refer for abortions.
(2) subject any institutional or
individual health care entity to
discrimination for attending or having
attended a post-graduate physician training
program, or any other program of training in
the health professions, that does not or did
not require attendees to perform induced
abortions or require, provide, or refer for
training in the performance of induced
abortions, or make arrangements for the
provision of such training.
(3) for the purposes of granting a legal
status to a health care entity (including a
license or certificate), or providing such
entity with financial assistance, services
or benefits, fail to deem accredited any
postgraduate physician training program that
would be accredited but for the accrediting
agency's reliance upon an accreditation
standard or standards that require an entity
to perform an induced abortion or require,
provide, or refer for training in the
performance of induced abortions, or make
arrangements for such training, regardless
of whether such standard provides exceptions
or exemptions.
l[if recipient is a State or local
government, any part of any State or local
government, or any other public entity]
on the basis that the individual or entity
has received a grant, contract, loan, or
loan guarantee under the Public Health
Service Act, the Community Mental Health
Centers Act, or the Developmental
Disabilities Assistance and Bill of Rights
Act of 2000, require such individual to
perform or assist in the performance of any
sterilization procedure or abortion if his
performance or assistance in the performance
of such procedure or abortion would be
contrary to his religious beliefs or moral
convictions, or such entity to make its
facilities available for the performance of
any sterilization procedure or abortion if
the performance of such procedure or
abortion in such facilities is prohibited by
the entity on the basis of religious beliefs
or moral convictions, or provide any
personnel for the performance or assistance
in the performance of any sterilization
procedure or abortion if the performance or
assistance in the performance of such
procedure or abortion by such personnel
would be contrary to the religious beliefs
or moral convictions ofsuch personnel.
l[if recipient is any entity
(including a state or local government) that
receives a grant, contract, loan, or loan
guarantee under the Public Health Service
Act, the Community Mental Health Centers
Act, or the Developmental Disabilities
Assistance and Bill of Rights Act of 2000]
discriminate against any physician or other
health care professional in the employment,
promotion, termination, or extension of
staff or other privileges because he
performed or assisted in the performance, or
refused to perform or assist in the
performance of a lawful sterilization
procedure or abortion on the grounds that
doing so would be contrary to his religious
beliefs or moral convictions, or because of
his religious beliefs or moral convictions
concerning abortions or sterilization
procedures themselves.
l[if recipient is any entity
(including a state or local government) that
receives a grant, contract, loan, or loan
guarantee under the Public Health Service
Act, the Community Mental Health Centers
Act, or the Developmental Disabilities
Assistance and Bill of Rights Act of 2000
that is an educational institution, teaching
hospital, or program for the training of
health care professionals or health care
workers] discriminate against or deny
admission to any applicant for training or
study because of reluctance or willingness
to counsel, suggest, recommend, assist, or
in any way participate in the performance of
abortions or sterilizations contrary to or
consistent with the applicant's religious
beliefs or moral convictions.
l[if recipient is an entity, including
a State or local government, that carries
out any part of any health service program
or research activity funded in whole or in
part under a program administered by the
U.S. Secretary of Health and Human Services]
require any individual to perform or assist
in the performance of any part of a health
service program or research activity funded
by the U.S. Department of Health and Human
Services if such service or activity would
be contrary to his religious beliefs or
moral convictions.
l[if recipient is an entity that
receives grants or contracts for biomedical
or behavioral research under any program
administered by the U.S. Secretary of Health
and Human Services] discriminate in the
employment, promotion, termination, or the
extension of staff or other privileges to
any physician or other health care personnel
because he performed, assisted in the
performance, refused to perform, or refused
to assist in the performance of any lawful
health service or research activity on the
grounds that his performance or assistance
in performance of such service or activity
would be contrary to his religious beliefs
or moral convictions, or because of the
religious beliefs or moral convictions
concerning such activity themselves.''
l[All recipients] I further
certify that the recipient acknowledges that
any violation of these certifications may
result in termination by the Department of
any grant, cooperative agreement, contract,
grant under a contract, memorandum of
understanding or other funding or employment
instrument or contract prior to the end of
its term and recovery of appropriated funds
expended prior to termination, and may be
used as such at the Department's discretion.
I further certify that, except as provided
in 45 CFR
88.5(e), the recipient will include this
certification requirement in any
[instrument] to a sub-recipient of funds
made available under this instrument, and
will require, except as provided in 45 CFR
88.5(e),
such sub-recipient to provide the same
certification that the recipient
organization or entity provided. I further
certify the recipient organization will
collect and maintain sub-recipient
certifications for as long as the
relationship between the recipient and the
sub-recipient lasts, and for a reasonable
time after the relationship ends, for the
purpose of investigations, litigation, or
other purposes.''
(d) Certification by Sub-recipients.
(1) Except as provided in paragraph
(e) of this section,
organizations or entities that are sub-recipients of
the organization or entity providing the initial
Certification of Compliance must submit to the
recipient for maintenance by the recipient through
which the subrecipient receives Department funds
Certification of Compliance as set out in paragraph
(d)(3) of this section, as
part of the grant, cooperative agreement, contract,
grant under a contract, memorandum of understanding
or other funding instrument or contract between the
recipient and the sub-recipient or in a separate
writing signed by the subrecipients' officer or
other person authorized to bind the sub-recipient.
(2) Except as provided in paragraph
(e) of this section,
sub-recipients of funds shall renew certification to
the recipient through which it receives Department
funds upon any renewal, extension, amendment, or
modification of the grant, cooperative agreement,
contract, grant under a contract, memorandum of
understanding or other funding or employment
instrument or contract that extends the term of such
instrument or adds additional funds to it.
Sub-recipients shall submit such renewals to the
recipient entities through which they receive
Department funding. Entities that are already
subrecipients as of the effective date of
thisregulation must certify upon any extension,
amendment, or modification of the grant, cooperative
agreement, contract, grant under a contract,
memorandum of understanding or other funding
instrument or contract that extends the term of such
instrument or adds additional funds to it, and shall
submit such certifications to the recipient entity
through which they receive Department funding.
(3) Except as provided in
paragraph (e) of
this section, all sub-recipients of Department funds
shall provide the following certification:
''As the duly authorized representative of
the sub-recipient I certify that the
sub-recipient of funds made available through
this [instrument] will not [check all that
are appropriate]:
l[if sub-recipient is a State or local
government receiving federal funds
appropriated through the appropriations act
for the U.S. Department of Health and Human
Services] subject any institutional or
individual health care entity to
discrimination on the basis that the health
care entity does not provide, pay for,
provide coverage of, or refer for, abortion.
l[if sub-recipient is an entity
receiving federal funds appropriated through
the appropriations act for the U.S.
Department of Health and Human Services to
implement any part of any federal program]
subject any institutional or individual
health care entity to discrimination on the
basis that the health care entity does not
provide, pay for, provide coverage of, or
refer for abortion as part of the federal
program for which it receives funding.
l[if sub-recipient is a State or local
government that receives federal financial
assistance]
(1) Subject any institutional or
individual health care entity to
discrimination for refusing:
(a) To undergo training in the
performance of abortions, or to require,
provide, refer for, or make arrangements
for training in the performance of
abortions;
(b) to perform, refer for, or make
other arrangements for, abortions; or
(c) to refer for abortions.
(2) subject any institutional or
individual health care entity to
discrimination for attending or having
attended a post-graduate physician training
program, or any other programof training in
the health professions, that does not or did
not require attendees to perform induced
abortions or require, provide, or refer for
training in the performance of induced
abortions, or make arrangements for the
provision of such training.
(3) for the purposes of granting a legal
status to a health care entity (including a
license or certificate), or providing such
entity with financial assistance, services
or benefits, the recipient will not fail to
deem accredited any postgraduate physician
training program that would be accredited
but for the accrediting agency's reliance
upon an accreditation standard or standards
that require an entity to perform an induced
abortion or require, provide, or refer for
training in the performance of induced
abortions, or make arrangements for such
training, regardless of whether such
standard provides exceptions or exemptions.
l[if sub-recipient is a State or local
government, any part of any State or local
government, or any other public entity]
on the basis that the individual or entity
has received a grant, contract, loan, or
loan guarantee under the Public Health
Service Act, the Community Mental Health
Centers Act, or the Developmental
Disabilities Assistance and Bill of Rights
Act of 2000, require such individual to
perform or assist in the performance of any
sterilization procedure or abortion if his
performance or assistance in the performance
of such procedure or abortion would be
contrary to his religious beliefs or moral
convictions, or such entity to make its
facilities available for the performance of
any sterilization procedure or abortion if
the performance of such procedure or
abortion in such facilities is prohibited by
the entityon the basis of religious beliefs
or moral convictions, or provide any
personnel for the performance or assistance
in the performance of any sterilization
procedure or abortion if the performance or
assistance in the performance of such
procedure or abortion by such personnel
would be contrary to the religious beliefs
or moral convictions of such personnel.
l[if sub-recipient is any entity
(including a state or local government) that
receives these funds through a recipient
which received them through a grant,
contract, loan, or loan guarantee under the
Public Health Service Act, the Community
Mental Health Centers Act, or the
Developmental Disabilities Assistance and
Bill of Rights Act of 2000] discriminate
against any physician or other health care
professional in the employment, promotion,
termination, or extension of staff or other
privileges because he performed or assisted
in the performance, or refused to perform or
assist in the performance of a lawful
sterilization procedure or abortion on the
grounds that doing so would be contrary to
his religious beliefs or moral convictions,
or because of his religious beliefs or moral
convictions concerning abortions or
sterilization procedures themselves.
l[if sub-recipient is any entity
(including a State or local government) that
receives these funds through a recipient
which received them through a grant,
contract, loan, or loan guarantee under the
Public Health Service Act, the Community
Mental Health Centers Act, or the
Developmental Disabilities Assistance and
Bill of Rights Act of 2000 that is an
educational institution, teaching hospital,
or program for the training of health care
professionals or health care workers]
discriminate against or deny admission to
any applicant for training or study because
of reluctance or willingness to counsel,
suggest, recommend, assist, or in any way
participate in the performance of abortions
or sterilizations contrary to or consistent
with the applicant's religious beliefs or
moral convictions.
l[if sub-recipient is an entity
(including a State or local government) that
carries out any part of any health service
program or research activity funded in whole
or in part under a program administered by
the U.S. Secretary of Health and Human
Services] require any individual to
perform or assist in the performance of any
part of a health service program or research
activity funded by the U.S. Department of
Health & Human Services if such service or
activity would be contrary to his religious
beliefs or moral convictions.
l[if sub-recipient is an entity that
these funds through a recipient which
received them through receives grants or
contracts for biomedical or behavioral
research under any program administered by
the U.S. Secretary of Health and Human
Services] discriminate in the
employment, promotion, termination, or the
extension of staff or other privileges to
any physician or other health care personnel
because he performed, assisted in the
performance, refused to perform, or refused
to assist in the performance of any lawful
health service or research activity on the
grounds that his performance or assistance
in performance of such service or activity
would be contrary to his religious beliefs
or moral convictions, or because of the
religious beliefs or moral convictions
concerning such activity themselves.''
l[All sub-recipients] I further
certify that the sub-recipient acknowledges
that these certifications by the
sub-recipient of funds are certifications
made directly to the Department and that any
violation of these certifications may result
in termination by the Department of the
recipient's grant, cooperative agreement,
contract, grant under a contract, memorandum
of understanding or other funding or
employment instrument or contract prior to
the end of its term and recovery of
appropriated funds expended prior to
termination, and may be used as such at the
Department's discretion. I further certify
that the sub-recipient will submit all
certifications to the recipient entity
through which it received Department
funds.''
(e) Exceptions.
Provided that such individuals or organizations are
not recipients or sub-recipients of Department funds
through another instrument, program, or mechanism,
other than those set forth in paragraph (e)(1)
through (e)(6) of this section, the following
individuals or organizations shall not be required
to comply with the written certification
requirements set forth in this section:
(1) A physician, as defined in 42 U.S.C.
1395(r), physician office, or other health care
practitioner participating in Part B of the
Medicare program;
(2) A physician, as defined in 42 U.S.C.
1395(r), physician office, or other health care
practitioner which participates in Part C of the
Medicare program, when such individuals or
organizations are sub-recipients of Department
funds through a Medicare Advantage plan;
(3) A sub-recipient of Department funds
through a State Medicaid program;
(4) A recipient or sub-recipient of
Department funds awarded under certain grant
programs currently administered by the
Administration for Children and Families, whose
purpose is either solely financial assistance
unrelated to health care or which is otherwise
unrelated to health care provision, and which,
in addition, does not involve-
(i) Medical or behavioral research;
(ii) The involvement of health care
providers;
(iii) Any significant likelihood of referral
for the provision of health care;
(5) A recipient or sub-recipient of
Department funds awarded under certain grant
programs currently administered by the
Administration on Aging, whose purpose is either
solely financial assistance unrelated to health
care or which is otherwise unrelated to health
care provision, and which, in addition, does not
involve-
(i) Medical or behavioral research;
(ii) The involvement of health care
providers;
(iii) Any significant likelihood of referral
for the provision of health care; and
(6) Indian Tribes and Tribal Organizations
when contracting with the Indian Health Service
under the Indian Self-Determination and
Education Assistance Act.
The Office for Civil Rights (OCR) of the
Department of Health and Human Services has been
designated to receive complaints of discrimination
and coercion based on the health care conscience
protection statutes and this regulation. OCR will
coordinate handling of complaints with the staff of
the Departmental programs from which the entity,
with respect to which a complaint has been filed,
receives funding (i.e., Department funding
component).
Dated: December 3, 2008.
Michael O. Leavitt,
Secretary.
[FR Doc. E8-30134 Filed 12-18-08; 8:45 am]
BILLING CODE 4150-28-P