Congress restores money for Christian Science nursing

A bill requiring Medicare and Medicaid payments for "religious non-medical health care" was passed by Congress in July and signed into law by President Clinton August 6.

The law responds to a federal court ruling that previous statutes and regulations mandating payments for Christian Science nursing are unconstitutional. CHILD Inc. and two of its Minnesota members filed a taxpayers' suit challenging the statutes and regulations.

Reno opposes statutes

In January of this year, five months after the ruling in favor of CHILD, U. S. Attorney-General Janet Reno advised Congress that her office could not defend the statutes on appeal. She petitioned the court to realign the administration against them.

Congress still had the option of defending the statutes in the appeal that the Christian Science church had declared its intention to pursue.

On April 11, Senators Orrin Hatch, R-Utah, and Ed Kennedy, D-Massachusetts, wrote Reno claiming that many legislators were "seriously troubled" by her decision not to defend the statutes.

Senators lament conflict with Reno

"Should the litigation proceed," they added, "it is our belief that a majority of Senators are likely to advocate a resolution supporting congressional intervention to defend the statutes. The executive and legislative branches will then be in conflict with one another, and that possibility raises grave concerns for each of us."

They stated their intention to pass new statutes that would give Christian Scientists Medicare and Medicaid benefits again, but would not be "sect specific." After the court ruling, the church repeatedly stated that the statutes could be made constitutional by removing references to Christian Science and offering benefits for "religious non-medical health care" instead.

On April 25 Senator Hatch wrote the Christian Science church to assure its officials that he had "taken the lead in coordinating legislative activity on this important issue."

No discussion

On June 16 Hatch posted a proposed amendment to the balanced budget bill for the Christian Scientists. On June 18 the Senate Finance Committee agreed to "the concept" with no debate, discussion, hearing, or even a text of the amendment.

Eventually a text was inserted. A House committee made minor changes, but also had no debate, discussion, or hearing.

Several CHILD members voiced their objections to the amendment, but legislators' responses regurgitated the church's rhetoric. They showed no concern for the children and adults endangered by Christian Science nurses nor did they acknowledge that

paying such people with public money might be inappropriate.

Medicare/Medicaid funds for RNHCI's

The law, PL 105-33, classifies some "religious nonmedical health care institutions" (hereafter called RNHCI's) as hospitals and skilled nursing facilities for the purpose of receiving Medicare and Medicaid funds.

The RNHCI's eligible for public money must provide "only nonmedical nursing items and services exclusively to patients who choose to rely solely upon a religious method of healing."

They must provide the "nonmedical items and services exclusively through nonmedical nursing personnel who are experienced in caring for the physical needs of such patients.

Religious beliefs against diagnosis required

The RNHCI's must also have "religious beliefs" against "medical items and services (including any medical screening, examination, diagnosis, prognosis, treatment, or the administration of drugs)."

They must have a utilization review plan to insure that admissions are necessary, but the reviews are to be carried out by RNHCI staff.

They do not have to be accredited or licensed, but the law allows the federal government to determine that the RNHCI's are meeting federal standards on the basis of "reasonable assurances" from any accrediting agency. The Christian Science church has recently set up a body called the Commission for Accreditation of Christian Science Nursing Organizations/Facilities, Inc.

The law provides that RNHCI's can receive Medicare/Medicaid money "for inpatient hospital services or post-hospital extended care services" only when the patient "has a condition" that would qualify for covered treatment in a state-licensed hospital or skilled nursing facility.

How the federal government or anyone else can determine the patient's condition is quite unclear since the law also provides that the government cannot require any patient in an RNHCI to get a medical exam.

The law allows Medicare payments to RNHCIs to reach $20,000,000 a year, almost three times what Medicare has been paying for Christian Science nursing. The amount for Medicaid is unknown.

A-G's office warns of establishment problems

On June 13 the Department of Justice (DOJ) sent a 21-page letter advising Congress that their draft bills might be unconstitutional because many provisions are special privileges for religion. A significant issue is that Medicare is expressly prohibited from paying for custodial care except as incident to hospitalization for medical treatment. Medicare does not pay for secular nursing home care.

DOJ said the benefits cannot be limited to those with religious objections to medical treatment, but must also include those with philosophical, ethical, or moral objections.

The DOJ complained that the government has no way of determining the patient's needs when no medical exam is allowed.

Religious privilege, the DOJ charged, is created by requiring that the nonmedical items and services be furnished only in an RNHCI and by nonmedical nurses and only to persons who "rely solely upon a religious method of healing."

The DOJ also reiterated Reno's point in her January letter to Congress that requiring the RNHCIs to have certain religious beliefs forces "persons who seek Medicare benefits to receive their nursing services in locations approved by an official church: Eligibility would turn not only on the need for or the quality of nursing services, but also on whether the services provided bore a church's stamp of approval."

Privilege for certain religions prevents fraud

The DOJ further emphasized that the care paid for by the government "must genuinely be secular."

In its conference report on the bill, Congress claimed that the eligibility criteria it established for the RNHCIs were "necessary to protect the health and safety of patients in such institutions and to prevent fraud and abuse."

Congress consults with itself

Most significantly, the report did not state that Congress had consulted the Attorney-General or that her office had approved of the bill. Instead, it said that the legislators' "extensive consultation with the Committee on the Judiciary of the Senate and of the House of Representatives" convinced them that their bill was constitutional.

Though Senator Hatch and Kennedy told Janet Reno in April that having a conflict between Congress and her office caused them "grave concerns," the bill they passed three months later ignored many of her points.

Instead, we are assured that Congress consulted with itself.