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From Health Law Daily, October 26, 2017

HHS seeks information on removing barriers to faith-based organizations’ program participation

By Harold Bishop, J.D.

HHS is requesting comments on how it may best identify and remove regulatory or other barriers in order for religious and faith-based organizations to participate in HHS-funded or regulated programs, strengthen partnerships with faith-based organizations to improve service delivery to the American people, and ensure faith-based organizations are affirmatively accommodated and not excluded from publicly funded or conducted programs because of HHS requirements that burden or interfere with their religious character or exercise (Notices, 82 FR 49300, October 25, 2017).

Background. Historically, faith-based organizations have been a crucial component of HHS’ efforts by delivering charitable care to Americans in need and engaging in other important initiatives with the assistance of grant and contract funding from HHS. According to HHS:

  • In fiscal year (FY) 2007, HHS awarded over $817 million in funding to faith-based organizations across 65 competitive, non-formula grant programs.
  • In 2013, over half of all Continuing Care Retirement Communities in the U.S. were faith-based.
  • In 2016, almost 60 percent of the emergency shelter beds for the homeless in 11 major cities were provided by faith-based organizations.
  • In 2015, one in six hospital patients were cared for in Catholic hospitals.
  • Over 150 million Americans are members of over 344,000 religious congregations which sponsor over 1.6 million health and social service programs, providing about $1.2 trillion in socio-economic value to the U.S. every year.

HHS also recognizes that faith-based organizations provide significant assistance in natural disasters and emergencies.

Recent executive orders and DOJ memorandum. HHS notes that Executive Orders 13279 and 13559, issued by President’s George W. Bush and Barack Obama, respectively, directed federal agencies to "ensure equal protection under the laws for faith-based and community organizations" and "to strengthen the capacity of faith-based and other neighborhood organizations to deliver services effectively to those in need."

In addition, the U.S. Attorney General’s Memorandum for All Executive Departments and Agencies, entitled Federal Law Protections for Religious Liberty, issued on October 6, 2017, pursuant to President Trump’s May 4, 2017, Executive Order 13798,, instructed that, "to the greatest extent practicable and permitted by law, religious observance and practice should be reasonably accommodated in all government activity, including employment, contracting, and programming" (see AG Sessions lists 20 principles to protect religious liberty, October 18, 2017).

HHS’ commitment and goal. As a result of the historical importance of faith-based organizations and these executive directives, HHS confirms that it is dedicated to engaging in partnerships with a broad range of private sector organizations, some of which are faith-based and some of which are not, and it aims to administer its programs and funding without discrimination on the basis of religion. HHS further declares that it is fully committed to fostering robust and thriving partnerships with faith-based organizations that serve as either recipients or sub-recipients of HHS funding or as partners with state or local agencies funded or regulated by HHS.

Information requested. HHS seeks input from the public and relevant stakeholders on:

  • potential changes that could be made to existing HHS regulations or guidance to ensure that faith-based organizations and their religious beliefs and moral convictions (1) are properly accommodated, (2) that they are not required to act contrary to their religious beliefs or moral convictions (as a recipient, sub-recipient, contractor, sub-contractor, or otherwise), or (3) are otherwise not restricted, excluded, substantially burdened, discriminated against, or disproportionately disadvantaged in HHS-conducted or funded programs or activities because of their religious character, identity, beliefs, or moral convictions;
  • whether faith-based organizations could face potential obstacles to participation in state or locally funded programs, or restrictions on their privately funded activities, because of HHS requirements imposed on state and local governments as a condition of receiving HHS funding; and
  • what policies, procedures, and assessment tools HHS should develop to affirmatively further the accommodation, equal treatment, and respect for the religious exercise of faith-based organizations interacting with HHS or HHS-funded entities.

To be considered, comments and information must be submitted on or before November 24, 2017.

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