Ohio’s Medical Practitioner Conscience Clause Becomes Effective

Ohio’s two-year state operating budget, which passed in June, enacted Revised Code 4743.10, which established a general medical conscience clause in Ohio law. Under the new law, which became effective September 30, 2021, “a medical practitioner, health care institution, or health care payer has the freedom to decline to perform, participate in, or pay for any health care service which violates the practitioner's, institution's, or payer's conscience as informed by the moral, ethical, or religious beliefs or principles held by the practitioner, institution, or payer.”

Scope & Regulatory Issues

The scope of the Revised Code 4743.10 is extremely broad. Existing medical conscience laws typically apply to specific delineated services, such as the federal Church Amendments, which protect the conscience rights of individuals and entities that object to performing or assisting in the performance of abortion or sterilization procedures or Ohio’s withdrawal of life-sustaining treatment laws, which permit physicians and employees of health care facilities to refuse to participate in decisions to remove life-sustaining treatment. Ohio’s new law, on the other hand, applies to “any health care service which violates the practitioner's, institution's, or payer's conscience….” 

However, the new Ohio law states that “[e]xercise of the right of conscience is limited to conscience-based objections to a particular health care service.” This makes clear that the new law does not permit refusal to provide services based on who is receiving the services (e.g., declining to provide services to specific patient populations but providing those services to other patient populations). Rather, the new law only protects a conscience-based objection to a specific health care service. This provision of the new law is consistent with federal nondiscrimination laws enforced by the Department of Health and Human Services Office for Civil Rights, which generally prohibit discrimination and require covered entities to provide individuals an equal opportunity to participate in a program activity, regardless of race, color, national origin, age, disability, or (under certain conditions) religion or sex.

The new law expressly excludes services required by the Emergency Medical Treatment and Labor Act (“EMTALA”). Accordingly, a hospital subject to EMTALA cannot as a health care institution under Revised Code 4743.10 decline to provide emergency medical treatment via use of this medical conscience law. Further, a medical practitioner could not refuse to provide or participate in services at the hospital that are required under EMTALA.

Employment

Because medical practitioners are permitted under the new law to decline to perform or participate in any health care service that violates the practitioner’s conscience, health care entities could face legal action for disciplining, demoting, or terminating practitioners exercising this right. As this provision may make it more difficult to staff cases and to direct health care practitioners as to the provision of care to their patients, hospitals and health systems might consider proactively inquiring if their health care practitioners currently have any conscience-based objections to certain courses of treatment so that they can be better prepared in the event that such a practitioner declines to perform or participate in treatment.  

Medical Staff

As stated above, the new law provides for a medical practitioner to notify the practitioner’s supervisor of their refusal to participate in the particular health care service.  The medical practitioner is to notify their supervisor when the practitioner “becomes aware of the conflict” arising out of a situation in which a requested course of treatment is one in which the medical practitioner declines to perform or participate. The situation may be further complicated by the fact that the medical practitioner is not required to seek a transfer of the patient to a practitioner colleague but may do so if the medical practitioner is “willing.” If the medical practitioner is unwilling to transfer the patient or no willing colleague is identified, the patient is to then be notified and provided the opportunity to seek an alternate medical practitioner.

As a result, hospitals and health systems should consider a medical staff policy that triggers a notification protocol when this conflict arises so that appropriate patient care can be rendered despite the medical practitioner’s refusal to perform or participate. Further, hospitals and health systems should begin to proactively educate their leadership and medical staffs about the Ohio medical practitioner conscience clause to ensure care for all patients and to ensure compliance with the law.

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This Insight was authored by Jennifer M. Nelson Carney, Allen R. Killworth, James G. Petrie, and Stephen R. Kleinman. For additional information, please contact one of the authors or the Epstein Becker Green attorney who regularly handles your legal matters.