[Federal Register Volume 82, Number 205 (Wednesday, October 25, 2017)]
[Proposed Rules]
[Pages 49300-49302]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-23257]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 82, No. 205 / Wednesday, October 25, 2017 / 
Proposed Rules  

[[Page 49300]]



DEPARTMENT OF HEALTH AND HUMAN SERVICES

Office of the Secretary

21 CFR Chapter I

42 CFR Chapters I and IV

45 CFR Subtitle A and Subtitle B, Chapters II, III, IV, X, and XIII

[HHS-9928-RFI]


Removing Barriers for Religious and Faith-Based Organizations To 
Participate in HHS Programs and Receive Public Funding

AGENCY: Center for Faith-Based and Neighborhood Partnerships, Office of 
Intergovernmental and External Affairs, HHS.

ACTION: Request for information.

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SUMMARY: The U.S. Department of Health and Human Services (HHS) is 
committed to delivering services to the public as efficiently and 
effectively as possible. Religious and faith-based organizations 
(hereafter ``faith-based organizations'') are important partners with 
unique expertise that is crucial to advancing HHS's mission of 
protecting and enhancing the health and well-being of Americans. HHS 
seeks comment from faith-based organizations and other interested 
parties to inform HHS on how it may best identify and remove regulatory 
or other barriers in order for these institutions 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 or activities 
because of HHS requirements that burden or interfere with their 
religious character or exercise.

DATES: Comments must be submitted on or before November 24, 2017.

ADDRESSES: You may submit comments in one of four ways (please choose 
only one of the ways listed):
    1. Electronically. You may submit electronic comments through 
http://www.regulations.gov.
    2. By email. You may submit email comments to the following email 
address ONLY: [email protected].
    3. By regular mail. You may mail written comments to the following 
address ONLY: Center for Faith-Based and Neighborhood Partnerships, 
Office of Intergovernmental and External Affairs, U.S. Department of 
Health and Human Services, Attention: RFI Regarding Faith-Based 
Organizations, Hubert H. Humphrey Building, 200 Independence Avenue 
SW., Washington, DC 20201. Please allow sufficient time for mailed 
comments to be received before the close of the comment period.
    4. By express or overnight mail. You may send written comments to 
the following address ONLY: Center for Faith-Based and Neighborhood 
Partnerships, Office of Intergovernmental and External Affairs, U.S. 
Department of Health and Human Services, Attention: RFI Regarding 
Faith-Based Organizations, Hubert H. Humphrey Building, 200 
Independence Avenue SW., Washington, DC 20201.

FOR FURTHER INFORMATION CONTACT: Shannon Royce, (202) 690-6060.

SUPPLEMENTARY INFORMATION: All submissions made must include the Agency 
name HHS-9928-RFI. All comments received may be posted without change 
to http://www.regulations.gov, including any personal information 
provided.

I. Background

    Executive Orders 13279 and 13559, issued by President George W. 
Bush and President Barack Obama, respectively, direct 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.'' Further, in Executive Order 13798, 
President Donald Trump declared that ``the Founders envisioned a Nation 
in which religious voices and views were integral to a vibrant public 
square, and in which religious people and institutions were free to 
practice their faith without fear of discrimination or retaliation by 
the Federal Government . . . Federal law protects the freedom of 
Americans and their organizations to exercise religion and participate 
fully in civic life without undue interference by the Federal 
Government. The executive branch will honor and enforce those 
protections.'' The President further declared that it will be ``the 
policy of the executive branch to vigorously enforce Federal law's 
robust protections for religious freedom.'' \1\
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    \1\ See also Memorandum from Attorney Gen. Jeff Sessions for All 
Executive Departments and Agencies, ``Federal Law Protections for 
Religious Liberty'' (Attorney General Memorandum) at 1 (Oct. 6, 
2017), https://www.justice.gov/opa/press-release/file/1001891/download (``[r]eligious liberty is a foundational principle of 
enduring importance in America, enshrined in our Constitution and 
other sources of federal law'').
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    This commitment to faith-based organizations has extended across 
administrations because faith-based organizations have a long history 
of providing an array of important services to people and communities 
in need of health care, education, social services, and other 
charitable services in the United States. Religious faith, in its many 
expressions, is a key aspect of American life and culture. Because so 
many people live their lives through their faith commitments, faith-
based organizations are uniquely positioned to understand and serve 
their neighbors and communities in culturally competent ways. These 
organizations are driven by faith to serve people of all faiths or none 
with compassion and commitment, and to provide them with food, housing, 
health care, family support, mental health support, addiction recovery, 
counseling, education, and other essential services. According to a 
study by researchers at Georgetown University and the Newseum 
Institute, over 150 million Americans are members of over 344,000 
religious congregations which sponsor a combined 1,621,000 health and 
social service programs.\2\ The study estimated that religious 
organizations provide about $1.2 trillion in socio-economic value to 
the U.S. every year.\3\ Furthermore, the mission driving these

[[Page 49301]]

organizations can lead to improved services and innovative service 
delivery.
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    \2\ Brian Grim and Melissa Grim, ``The Socio-economic 
Contribution of Religion to American Society: An Empirical 
Analysis,'' Interdisciplinary Journal of Research on Religion 12, 
no. 3 (2016), http://www.religjournal.com/pdf/ijrr12003.pdf.
    \3\ Ibid, Table 13.
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    The U.S. Department of Health and Human Services (``HHS'' or ``the 
Department'')--the Federal Government's largest grant-maker and the 
third largest Federal contracting agency--administers Federal funding 
with the overarching goal of delivering services, providing access to 
programs, and funding research that will improve the health and well-
being of Americans. HHS's Federal funding opportunities span a wide 
range of activities: From providing health care services to particular 
populations, to aiding child welfare programs and providing resources 
to the elderly, to funding child care and nutrition programs and 
helping refugees and asylees connect with the resources they need to 
become self-sufficient, to supporting biomedical and other scientific 
research.
    Faith-based organizations have historically been a crucial 
component of HHS's efforts by delivering charitable care to Americans 
in need and engaging in other worthwhile initiatives with the 
assistance of grant and contract funding provided by the Department. 
For instance, HHS awarded over $817 million in funding to faith-based 
organizations across 65 competitive, non-formula grant programs in 
fiscal year 2007.\4\ Over half of all Continuing Care Retirement 
Communities in the country were faith-based in 2013; almost 60 percent 
of the emergency shelter beds for the homeless in eleven major cities 
were provided by faith-based organizations in 2016; and one in six 
hospital patients were cared for in Catholic hospitals in 2015, to name 
just a few of the industries in which these groups are invaluable in 
advancing the Department's objectives.\5\ Faith-based organizations 
also provide significant assistance in natural disasters and 
emergencies.
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    \4\ The White House Office of Faith-Based and Community 
Initiatives, ``Federal Competitive Funding to Faith-Based and 
Secular Non-Profits Fiscal Year 2007,'' last accessed September 29, 
2017, https://georgewbush-whitehouse.archives.gov/government/fbci/data-collection-2007.html.
    \5\ Lisa McCracken, ``Faith and the Not-For-Profit Provider,'' 
Ziegler Investment Banking, August 25, 2014, http://image.exct.net/lib/ff021271746401/d/4/zNews_Featured_082514.pdf; Byron Johnson, 
William H. Wubbenhorst, and Alfreda Alvarez, ``Assessing the Faith-
Based Response to Homelessness in America: Findings from Eleven 
Cities,'' Baylor Institute for Studies of Religion, (2017), 
available at http://www.baylorisr.org/wp-content/uploads/ISR-Homeless-FINAL-01092017-web.pdf; Catholic Health Association of the 
United States, ``Catholic Health Care in the United States,'' last 
updated January 2017, https://www.chausa.org/about/about/facts-statistics.
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    HHS 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 we aim to administer our programs and funding 
without discrimination on the basis of religion. As part of achieving 
the Department's overall goals, HHS is fully committed to fostering 
robust and thriving partnerships with faith-based organizations that 
serve as either recipients or sub-recipients of Department funding or 
as partners with state or local agencies funded or regulated by HHS. 
This commitment is bolstered by the Attorney General's Memorandum for 
All Executive Departments and Agencies, ``Federal Law Protections for 
Religious Liberty,'' issued on October 6, 2017 pursuant to Executive 
Order 13798. The Attorney General 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,'' provided twenty 
principles to guide administrative agencies and executive departments 
in carrying out such tasks, and also provided guidance to such agencies 
and department in implementing such religious liberty principles.\6\ 
Given the regulatory nature of many of HHS's programs, HHS notes that 
the Attorney General's guidance directed that, ``[i]n formulating 
rules, regulations, and policies, administrative agencies should also 
proactively consider potential burdens on the exercise of religion and 
possible accommodations of those burdens.'' \7\ Similarly, with respect 
to grants and contracts, the Attorney General's guidance instructs that 
``[a]gencies also must not discriminate against religious organizations 
in their contracting or grant-making activities,'' noting that 
``[a]bsent unusual circumstances, agencies should not condition receipt 
of a government contract or grant on the effective relinquishment of a 
religious organization's Section 702 exemption for religious hiring 
practices, or any other constitutional or statutory protection for 
religious organizations.'' \8\
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    \6\ Attorney General Memorandum at 1.
    \7\ Id. at 7.
    \8\ Id. at 8.
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    Given the importance of faith-based organizations in carrying out 
the Department's mission of improving Americans' health and well-being, 
and the principles and directives in the Attorney General's Memorandum 
for All Executive Departments and Agencies, HHS solicits comments, 
through this request for information, to determine whether its existing 
regulations and guidance advance the Department's priority of 
cultivating partnerships with faith-based organizations that provide 
services to people in need or conduct other meaningful work. Because 
HHS primarily partners with faith-based organizations through grant and 
contract funding, HHS specifically seeks to identify any regulatory, 
guidance-based, or other requirements or conditions for grants or 
contracts that present barriers for faith-based organizations to 
participate in HHS-funded programs, and methods to ensure faith-based 
organizations are affirmatively accommodated, and not excluded from 
HHS-funded or conducted programs or activities because of HHS 
requirements that burden or interfere with their religious character or 
exercise.
    In this request for information, 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 are 
properly accommodated, that faith-based organizations are not required 
to act contrary to their religious beliefs or moral convictions (as a 
recipient, sub-recipient, contractor, sub-contractor, or otherwise) or 
are otherwise not restricted, excluded, substantially burdened, 
discriminated against, or disproportionately disadvantaged in HHS-
conducted or funded programs or activities (including those 
administered by state and local governments) because of their religious 
character, identity, beliefs, or moral convictions.
    HHS also seeks input on 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.
    Finally, HHS seeks input on 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.

II. Solicitation of Comments

    HHS solicits comments on potential changes to existing regulations 
or guidance that affirmatively assure the equal treatment of faith-
based organizations and on the extent to which faith-based 
organizations are beneficial to furthering the mission of the 
Department. Specifically, HHS seeks

[[Page 49302]]

information that would assist it in pursuing the following objectives:
    1. To remove obstacles to participation by faith-based 
organizations in the delivery of publicly funded services and 
activities. What changes in HHS regulations, guidance, or other 
documents (e.g., contracts and funding opportunity announcements) or 
processes might encourage faith-based organizations to participate in 
HHS-funded programs and services? What existing regulations, guidance, 
or other documents or processes deter such participation?
    2. To ensure faith-based organizations--particularly those with a 
history of providing health, education, and other support to low-income 
people--are not excluded from eligibility for HHS funding. Which 
provisions in HHS regulations, guidance, or other documents directly or 
indirectly inhibit faith-based organizations from receiving HHS funds? 
How can the Department improve these regulations, guidance, or other 
documents? Are any faith-based organizations being restricted, 
excluded, substantially burdened, discriminated against, or 
disproportionately disadvantaged by HHS, an HHS grantee or contractor, 
or a state or local government entity administering an HHS-funded 
program or activity because of their religious character, identity, 
beliefs, or moral convictions?
    3. To ensure that faith-based organizations receive accommodation, 
equal treatment, and respect for their religious beliefs and moral 
convictions from HHS or HHS-funded entities. What regulations, guidance 
documents, policies, procedures, and/or assessment tools should HHS 
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?
    4. To improve our understanding of the role of faith-based 
organizations in implementing programs and activities that advance the 
goals and objectives of HHS. Describe the value, whether qualitative or 
quantitative, that faith-based organizations provide in improving the 
health and well-being of Americans and other populations eligible for 
public benefits and services. What would the consequences be if these 
organizations were no longer able to participate in the Department's 
programs or services or were denied eligibility for Federal funding? Do 
faith-based organizations provide unique value that could not easily be 
replicated by other recipients? Would adequate services be available to 
people in need in the absence of Federal partnerships with faith-based 
organizations?
    This is a request for information only. Respondents are encouraged 
to provide complete but concise responses to any or all of the 
questions outlined above. This request for information is issued solely 
for information and planning purposes; it does not constitute a notice 
of proposed rulemaking or request for proposals, applications, proposal 
abstracts, or quotations, nor does it suggest that the Department will 
undertake any particular action in response to comments. This request 
for information does not commit the United States Government 
(``Government'') to contract for any supplies or services or make a 
grant award. Further, HHS is not seeking proposals through this request 
for information and will not accept unsolicited proposals. Respondents 
are advised that the Government will not pay for any information or 
administrative costs incurred in response to this request for 
information; all costs associated with responding to this request for 
information will be solely at the interested party's expense. Not 
responding to this request for information does not preclude 
participation in any future rulemaking or procurement, if conducted. It 
is the responsibility of the potential responders to monitor this 
request for information announcement for additional information 
pertaining to this request. We also note that HHS will not respond to 
questions about the policy issues raised in this request for 
information. HHS may or may not choose to contact individual 
responders. Such communications would only serve to further clarify 
written responses. Contractor support personnel may be used to review 
the responses submitted under this request for information. Responses 
to this notice are not offers and cannot be accepted by the Government 
to form a binding contract or issue a grant. Information obtained as a 
result of this request for information may be used by the Government 
for program planning on a non-attribution basis. Respondents should not 
include any information that might be considered proprietary or 
confidential. This request for information should not be construed as a 
commitment or authorization to incur cost for which reimbursement would 
be required or sought. All submissions become Government property and 
will not be returned. HHS may publicly post the comments received, or a 
summary thereof. While responses to this request for information do not 
bind HHS to any further actions related to the response, all comments 
may be posted online on http://www.regulations.gov.

III. Collection of Information Requirements

    This document does not impose information collection requirements; 
that is, reporting, recordkeeping or third-party disclosure 
requirements. This request for information constitutes a general 
solicitation of comments. In accordance with the implementing 
regulations of the Paperwork Reduction Act (PRA) at 5 CFR 1320.3(h)(4), 
information subject to the PRA does not generally include ``facts or 
opinions submitted in response to general solicitations of comments 
from the public, published in the Federal Register or other 
publications, regardless of the form or format thereof, provided that 
no person is required to supply specific information pertaining to the 
commenter, other than that necessary for self-identification, as a 
condition of the agency's full consideration of the comment.'' 
Consequently, this document need not be reviewed by the Office of 
Management and Budget under the authority of the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3501 et seq.).

    Dated: October 20, 2017.
Jane E. Norton,
Director, Office of Intergovernmental & External Affairs, U.S. 
Department of Health and Human Services.
[FR Doc. 2017-23257 Filed 10-24-17; 8:45 am]
 BILLING CODE 4120-01-P