In Post-Dobbs Guidance, HHS Addresses Sex and Disability Discrimination Rules for Pharmacies | Practical Law

In Post-Dobbs Guidance, HHS Addresses Sex and Disability Discrimination Rules for Pharmacies | Practical Law

In response to the US Supreme Court's Dobbs ruling, which held that there is not a constitutional right to abortion, the Department of Health and Human Services (HHS) has issued guidance addressing how retail pharmacies can—in the context of women's reproductive health care—avoid violating sex and disability discrimination standards under Section 1557 of the Affordable Care Act (ACA) and Section 504 of the Rehabilitation Act.

In Post-Dobbs Guidance, HHS Addresses Sex and Disability Discrimination Rules for Pharmacies

by Practical Law Employee Benefits & Executive Compensation
Published on 15 Jul 2022 • USA (National/Federal)
In response to the US Supreme Court's Dobbs ruling, which held that there is not a constitutional right to abortion, the Department of Health and Human Services (HHS) has issued guidance addressing how retail pharmacies can—in the context of women's reproductive health care—avoid violating sex and disability discrimination standards under Section 1557 of the Affordable Care Act (ACA) and Section 504 of the Rehabilitation Act.
In response to the US Supreme Court's Dobbs ruling, HHS's Office for Civil Rights (OCR) has issued guidance that addresses sex and disability nondiscrimination requirements for pharmacies under Section 1557 of the Affordable Care Act (ACA) and Section 504 of the Rehabilitation Act of 1973. In Dobbs, the Supreme Court held that there is not a constitutional right to abortion, thereby overturning its rulings in Roe v. Wade and Planned Parenthood v. Casey (Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228 (2022); see Legal Update, Supreme Court's Overruling of Roe v. Wade Raises Health Plan and Employment Implications and Abortion and Contraceptives Services for Group Health Plans Toolkit). HHS's guidance includes several examples of situations in which pharmacies may violate sex and disability nondiscrimination rules by refusing to fill or stock prescriptions for certain medications.

Prohibited Discrimination on the Basis of Sex and Disability

As background, ACA Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs and activities (see Practice Note, June 2020 Final Regulations Under ACA Section 1557: Nondiscrimination in Health Programs and Activities). Under Section 1557, sex discrimination includes discrimination based on pregnancy or related conditions. Section 1557 incorporates the grounds for prohibited discrimination under four federal civil rights laws, including Section 504 of the Rehabilitation Act (Section 504), which prohibits disability discrimination in certain contexts (29 U.S.C. § 794).

Guidance on Pharmacies' Nondiscrimination Obligations

HHS takes the view in its guidance that retail pharmacies that receive federal financial assistance may not discriminate against health plan participants and other individuals on the grounds prohibited under ACA Section 1557 and Section 504 when:
  • Providing prescription medications, including contraceptives and abortion medications.
  • Making determinations about a medication's suitability for a particular participant.
  • Advising individuals about medications and how to take them.
(By receiving payments from Medicare or Medicaid, pharmacies are recipients of federal financial assistance.)
Using a series of examples, HHS also identifies instances of possible discrimination on the basis of sex and disability.

First-Trimester Miscarriage and Abortion Pills (Mifespritone and Misoprostol)

One example involves an individual who experiences a first-trimester miscarriage, after which the individual's health provider prescribes mifepristone and misoprostol—medications that are used in medical abortions—to assist with the passing of the miscarriage. According to HHS, the pharmacy may be discriminating on the basis of sex if it refuses to fill the prescriptions on the grounds that they can also be used to terminate a pregnancy.

Potential Disability Discrimination (Misoprostol)

Another example assumes that:
  • An individual experiences severe and chronic stomach ulcers.
  • The individual's condition meets the definition of disability under federal civil rights laws.
  • The individual's provider prescribes misoprostol to reduce the risk of serious complications associated with ulcers.
In this example, if a pharmacy refuses to fill the individual's prescription for misoprostol (or does not stock the drug) because of its alternate uses, the pharmacy may be discriminating on the basis of disability.

Antibiotics for Septic Abortions

One example posits that:
  • An individual arrives at a hospital's emergency department with chills, fever, and vaginal bleeding.
  • The individual's treating physician diagnoses a miscarriage complicated by a uterine infection (known as a septic abortion) and orders an antibiotic.
The hospital's pharmacy in this example refuses to provide the antibiotic because it is concerned that follow-up care may include uterine evacuation (through medical or surgical abortion). If so, the pharmacy may, in HHS's view, be discriminating on the basis of sex.

Ectopic Pregnancy

In another example, an individual experiences symptoms consistent with an ectopic pregnancy, after which the individual's provider:
  • Confirms the fertilized egg is located in the fallopian tube.
  • Prescribes methotrexate—a medication that prevents cells from dividing—to stop the egg from growing.
If a pharmacy refuses to fill the individual's prescription because it will end the pregnancy, the pharmacy may be discriminating on the basis of sex.

Sexual Assault and Emergency Contraceptives

Another example assumes that an individual:
  • Experiences a sexual assault.
  • Seeks to fill a prescription for emergency contraception to prevent a pregnancy from occurring.
The pharmacy in this example generally provides contraceptives but refuses to fill the emergency contraception prescription because it prevents ovulation or fertilization. As a result, the pharmacy may be discriminating on the basis of sex.

Hormonal Contraception

A pharmacy provides contraceptives (for example, external and internal condoms) but refuses to fill an individual's prescription for a particular type of hormonal contraception because it may prevent pregnancy. Examples of hormonal contraception include:
  • Oral contraceptive pills.
  • Emergency contraception.
  • A patch placed on the skin.
  • A contraceptive ring.
  • Any other FDA-approved contraceptive product.
(For more information, see Practice Note, Contraceptives Coverage Under the ACA: List of Required Contraceptive Methods.)
Under HHS's guidance, the pharmacy in this example may be discriminating on the basis of sex.

Practical Impact

One step many plan sponsors have taken in response to Dobbs is to review their group health plan provisions regarding the coverage of abortion—which may include taking stock of related pharmacy benefit provisions. For example, the abortion pills referenced in HHS's guidance (mifepristone and misoprostol) may become a source of concern for health plans if state laws are enacted to prohibit plans from reimbursing the cost of these drugs. Of course, the post-Dobbs state-law landscape regarding coverage of abortion and related services and benefits is now in a state of flux—making this a challenging area of compliance for employer-sponsored health plans.
HHS's guidance on pharmacies and federal nondiscrimination laws is one part of the Biden administration's larger rollout of post-Dobbs guidance. The government also recently issued guidance reminding health providers that emergency medical care includes abortions. These administrative interpretations would be subject to change, however, if a different administration assumes office in the future. For more information on this guidance, see Abortion and Contraceptives Services for Group Health Plans Toolkit.