HHS Announces Proposed Rule Regarding Equal Treatment of Faith-Based Organizations in HHS-Supported Social Service Programs

Today, January 16, 2020, the U.S. Department of Health and Human Services (HHS) is proposing a rule that implements President Trump’s Executive Order No. 13831 (May 3, 2018), removes regulatory burdens on religious organizations, and ensures that religious and non-religious organizations are treated equally in HHS-supported programs.  The proposed rule ensures that HHS-supported social service programs are implemented in a manner consistent with the Constitution and other applicable federal law. 

“President Trump’s administration is taking historic action to protect religious social service providers from discrimination in federal regulations,” said HHS Secretary Alex Azar. “Americans of faith play an essential role in providing healthcare and human services to so many vulnerable people and communities, and President Trump is dedicated to removing every unfair barrier that stands in the way of this important work. Americans from every walk of life deserve to be treated with dignity and respect. Our Constitution and civil rights laws ensure equal treatment and today’s action makes clear that the federal government cannot discriminate against people and institutions based on how they live out the dictates of their faith.”

Under current regulations that govern HHS-supported programs, religious providers of social services—but not other providers of social services—must make referrals under certain circumstances to alternative service providers and must post notices regarding this referral procedure.  These regulatory burdens had been required by then-President Obama’s Executive Order No. 13559 (Nov. 17, 2010).   Consistent with President Trump’s Executive Order No. 13831 (May 3, 2018), HHS’s proposed rule would eliminate these requirements from department regulations.  As HHS’s proposed rule observes, these burdens were not required by any applicable law, and because they were imposed only on religious social service providers, they are in tension with recent Supreme Court precedent regarding nondiscrimination against religious organizations.  The proposed rule also will foreclose other unequal treatment of religious organizations by ensuring that they are not required to provide assurances or notices that are not required of secular organizations. 

By compelling religious organizations, but not secular organizations, to post special notices and make referrals, the alternative-provider requirements placed burdens unequally on religious organizations and cast unwarranted suspicion on them.  By singling out religious organizations for unique regulatory burdens, the requirements infringed the organizations’ religious liberty rights.

In addition, the proposed rule will clarify that religious organizations may apply for awards on the same basis as any other organization and that when HHS selects award recipients, HHS will not discriminate based on an organization’s religious character. The proposed rule also clarifies that religious organizations participating in HHS-supported programs retain their independence from the government and may continue to carry out their missions consistent with religious freedom protections in federal law, including the Free Speech and Free Exercise Clauses of the First Amendment. 

The proposed rule incorporates the Attorney General’s 2017 Memorandum for All Executive Departments and Agencies, Federal Law Protections for Religious Liberty.  That memorandum was issued pursuant to President Trump’s Executive Order No. 13798 (May 4, 2017), and it guides all federal administrative agencies and executive departments in complying with federal law.