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Letter to Charles E. Johnson Acting Secretary, Department of Health and Human Services, Office of Public Health and Science

Murray Leads Senate Effort to Repeal 11th Hour Bush Administration Regulation that Undermines Women's Health

Murray-led letter outlines strong Senate support for Department of Health and Human Service' (HHS) March 10th proposal to rescind highly-controversial regulation in its entirety

Today, U.S. Senator Patty Murray (D-WA) led a group of 22 other U.S. Senators in writing to Acting Department of Health and Human Services (HHS) Secretary Charles E. Johnson to voice strong support for HHS's move to fully rescind a Bush Administration regulation that limits patient access to critical health care services.

"The HHS regulation is an unnecessary and ambiguous policy that casts a pall of uncertainty over health care providers and the millions of patients they serve," the Senators wrote in today's letter. "Rescinding the regulation will improve patients' access to health care services and information."

As a senior member of the Senate Health, Education, Labor, and Pension (HELP) Committee, Senator Murray has fought the last-minute Bush Administration attempt to impose an ambiguous and ideologically-driven regulation that threatened access to care at every turn.

Senator Murray was joined by U.S. Senators Patrick J. Leahy (D-VT), Max Baucus (D-MT), Carl Levin (D-MI), Jeff Bingaman (D-NM), John F. Kerry (D-MA), Tom Harkin (D-IA), Barbara Mikulski (D-MD), Dianne Feinstein (D-CA), Barbara Boxer (D-CA), Ron Wyden (D-OR), Debbie Stabenow (D-MI), Maria Cantwell (D-WA), Frank R. Lautenberg (D-NJ), Robert Menendez (D-NJ), Sherrod Brown (D-OH), Benjamin L. Cardin (D-MD), Bernard Sanders (I-VT), Amy Klobuchar (D-MN), Sheldon Whitehouse (D-RI), Jeanne Shaheen (D-NH), Mark Begich (D-AK), and Kirsten E. Gillibrand (D-NY) in sending today's letter.

The full text of the letter follows:

Department of Health and Human Services
Office of Public Health and Science
Attn: Mahak Nayyar
Hubert Humphrey Building
200 Independence Avenue SW
Room 716G
Washington, DC 20201

Re: RIN 0991-AB49

Dear Acting Secretary Johnson:

We are writing in strong support of the proposed regulation, "Rescission Proposal," published on Tuesday, March 10, 2009, by the Department of Health and Human Services (HHS) to fully rescind the HHS regulation entitled "Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law."

The HHS regulation was issued in the waning months of the Bush Administration despite a lack of demonstrated need and an overwhelming outcry from patient advocates, religious leaders, health care providers, and many others. It undermines patient access to health care information and services and creates confusion for hundreds of thousands of health care providers and patients. Rescinding the HHS regulation in its entirety will help protect patients' access to vital health services and information and will ensure that health care providers are not subject to confusing and onerous requirements that serve no public health purpose.

Background

On August 26, 2008, the Bush Administration proposed a regulation that purported to educate recipients of Department funds about their legal obligations under three statutes - the Church Amendments (42 USC § 300a-7), the Coats Amendment (42 USC § 238n), and the Weldon Amendment (Consolidated Appropriations Act 2008, PL 110-161, Div. G, 508d). These laws give certain individuals and institutions the ability to refuse to provide certain health services or research activities.

Rather than clarify these laws, however, the regulation's expansive language and ambiguity created the opposite effect. HHS received more than 200,000 comments from those who opposed the proposed regulation, including: the American Medical Association; the American Hospital Association; the American Public Health Association; the National Association of Community Health Centers; a bipartisan collection of 16 state Attorneys General; at least seven Governors; the Equal Employment Opportunity Commission's Legal Counsel and two Commissioners; religious leaders; and more than 150 members of Congress, including many signatories here.

Despite this outpouring of objection, the Bush Administration published the final regulation on December 19, 2008, making it effective on January 20, 2009, President Obama's first day in office. The result is an ambiguous regulation to which nearly 572,000 individuals and entities must certify compliance, at an annual cost that many believe exceeds even the $43.6 million estimate put forth by the Bush Administration.

The HHS Regulation Should be Rescinded Because it Compromises Patients' Access to Health Care Services, Especially for Low-Income Americans

The HHS Regulation gives sweeping license to entities and individuals who receive funding or reimbursement from HHS or, in some cases, other federal financial assistance, to refuse to provide health care services and information to patients.

The Regulation will have a disproportionate impact on low-income women and others who are more likely to depend on the federal government to receive health services. For example, the regulation jeopardizes the ability of low-income women to receive comprehensive family planning information and services under the federal Title X program, which currently provides contraceptive services and cancer screenings to 5 million low-income women annually. Communities of color, more of whom rely on HHS-funded health care programs than their white counterparts, will also be disproportionately burdened by the HHS regulation.

In addition, individuals living in rural areas will be disproportionately affected, because there may be no alternative source of health care in a community if a provider refuses to offer full information and services to its patients.

At this time of economic crisis, with more and more Americans losing their health care coverage and finding themselves needing to rely on these government programs, the Department should be focused on getting complete health care information and services to these individuals - not taking information and services away. Rescission of the regulation will help to accomplish that goal.

The HHS Regulation Should Be Rescinded Because It Creates Ambiguity and Confusion for Patients and Health Care Providers

The HHS regulation creates unnecessary confusion for nearly 572,000 health care providers—and the millions of patients they serve.

The Regulation Creates Confusion about Patients' Health Options

The regulation fails to require that patients even be notified about the services and information that their health care providers are refusing to offer. This fundamentally undermines the relationship between patients and their health care providers and violates ethical requirements under the principle of informed consent. Rescinding the regulation will restore the trust to this relationship and help ensure that patients understand their full range of health options.

The Regulation Creates Unnecessary - And Inaccurate - Confusion about Access to Contraception

An early draft of the HHS regulation contained a medically inaccurate definition of "abortion" that would have included many commonly-used forms of contraception. Subsequently, more than 325,000 individuals urged HHS to clarify that for the purposes of these statutes, "contraception" is not "abortion." HHS refused to provide any clarification in either the proposed or the final HHS regulation that contraception may not be considered "abortion" under the regulation. This leaves the door open for insurance plans, hospitals, and other entities to deny women access to contraception—including emergency contraception for rape survivors.

The Regulation Creates Confusion that Threatens Access to Emergency Care

Certain state and federal laws require the provision of care in life-threatening emergency situations. The HHS regulation creates uncertainty as to whether these laws can be enforced, putting patients unnecessarily at risk. Rescinding the HHS regulation will make sure patients' access to emergency care will be more fully protected.

The Regulation Creates Confusion about Enforcement of State Laws

The HHS regulation gave rise to serious concerns raised by state attorneys general and governors about their ability to enforce state laws and policies that protect and expand access to health care, including laws ensuring contraceptive equity in insurance, access to emergency contraception for sexual assault victims in emergency rooms, and laws and policies to ensure access to birth control at the pharmacy. In the final regulation, the Department noted these concerns and seemed to acknowledge that States would have problems enforcing these laws, but provided no answers or any clarity as to how to go about enforcement. Rescinding the HHS regulation would allow these important patient protections to be enforced.

The Regulation Creates Confusion Regarding Employment Practices

The regulation fails to resolve serious questions about its interaction with Title VII of the Civil Rights Act of 1964, the federal law that addresses religion and workforce issues. For decades, federal enforcement of Title VII has allowed employers to strike a careful balance between protecting employees' religious beliefs and ensuring that patients are able to access vital health care services and information. During the public comment period, the Legal Counsel and two current Commissioners of the Equal Employment Opportunity Commission, the federal agency charged with enforcing Title VII, raised concerns about the confusion the regulation would cause and the burden it would impose on the regulated community. The final regulation did not resolve these concerns.

The Regulation Creates Confusion about Its Effects on International Assistance

The regulation allows the federal refusal laws to be applied to international, foreign and multilateral organizations, without any deference to existing federal law governing U.S. foreign policy. This could create confusion among federal agencies about which laws to follow, generate conflict with policies promulgated by the Departments of State and Defense and the U.S. Agency for International Development, and lead to unforeseen foreign policy complications. Requiring compliance with these laws and certification of compliance from international grantees could also create a severe burden on agencies that work with local sub-grantees in other countries.

The HHS Regulation Should Be Rescinded Because It Is Unnecessary

In the Rescission Proposal, the Department has asked for comments about the need for the regulation. The reality is that the regulation was a "solution" in search of a problem. The statutes that underlie the regulation have been on the books and in effect for many years without any recognized need for clarification. Indeed, in issuing the final regulation, the prior Administration itself seemed to recognize that there was no evidence that the regulation was necessary, stating that "there is insufficient data to estimate the number of funding recipients not currently compliant with [the underlying laws]. We received no Comments indicating that there were any funding recipients not currently compliant." 73 Fed. Reg. at 78,094-95.

In conclusion, the HHS regulation is an unnecessary and ambiguous policy that casts a pall of uncertainty over health care providers and the millions of patients they serve. Rescinding the regulation will improve patients' access to health care services and information. We fully support the Department's March 10th proposal to rescind the regulation in its entirety.

Thank you for your consideration.

Sincerely,

U.S. Senators Patty Murray (D-WA), Patrick J. Leahy (D-VT), Max Baucus (D-MT), Carl Levin (D-MI), Jeff Bingaman (D-NM), John F. Kerry (D-MA), Tom Harkin (D-IA), Barbara Mikulski (D-MD), Dianne Feinstein (D-CA), Barbara Boxer (D-CA), Ron Wyden (D-OR), Debbie Stabenow (D-MI), Maria Cantwell (D-WA), Frank R. Lautenberg (D-NJ), Robert Menendez (D-NJ), Sherrod Brown (D-OH), Benjamin L. Cardin (D-MD), Bernard Sanders (I-VT), Amy Klobuchar (D-MN), Sheldon Whitehouse (D-RI), Jeanne Shaheen (D-NH), Mark Begich (D-AK), Kirsten E. Gillibrand (D-NY)


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