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January 23, 2020

HHS Issues Proposed Rule Regarding Faith-Based Organizations in Social Service Programs

On January 16, HHS issued a proposed rule that would eliminate the requirement for religious providers of social services to make referrals under certain circumstances to alternative service providers and post notices regarding this referral procedure. Non-religious providers of such social services have no corresponding requirement to make referrals or provide such notice.

The proposed rule also clarifies that HHS cannot discriminate against religious organizations on the basis of an organization’s “religious character” when evaluating the recipient of a grant or award from HHS. HHS contends that this proposed rule, which implements Executive Order No. 13831 on free speech and religious liberty, will remove tension between HHS’ current policy and Supreme Court precedent regarding the First Amendment and the Religious Freedom Restoration Act.

The comment period for the proposed rule is open until February 18.