HHS Issues Guidelines for Pharmacies Regarding Access to Reproductive Health Care | King and Spalding

Following President Biden’s executive order to ensure access to reproductive health care, on July 13, 2022, HHS issued guidance to U.S. retail pharmacies regarding their obligations under federal civil rights laws. These guidelines encompass the approximately 60,000 retail pharmacies in the United States and cover their non-discrimination obligations as recipients of federal payments such as Medicare and Medicaid payments.

These guidelines remind retail pharmacies that as recipients of federal financial assistance, they are prohibited under Section 1557 of the Affordable Care Act (Section 1557), 42 USC 18116, from excluding a person from participation, denying them benefits or otherwise subjecting them to discrimination based on sex and other bases (i.e. race, color, national origin, age and disability) in their programs and activities. Additionally, under Section 504 of the Rehabilitation Act of 1973 (Section 504), 29 USC 794, recipients of federal financial assistance are prohibited from discriminating on the basis of disability.

These guidelines note that discrimination against pregnant women on the basis of their pregnancy or related conditions is a form of sex discrimination. Under federal civil rights law, pregnancy-related discrimination includes discrimination based on current pregnancy, past pregnancy, potential or planned pregnancy, and medical conditions related to the pregnancy or childbirth. Pharmacies, under the direction of HHS, are therefore reminded that they are prohibited from discriminating against pharmacy customers on the grounds prohibited by Sections 1557 and 504, including with respect to the provision of drugs; make decisions regarding the suitability of a prescribed medication for a patient; or counseling patients on medications and how to take them.

These guidelines are the latest action taken by HHS, following the Supreme Court’s recent decision in Dobbs v. Jackson Women’s Health Organization, no. 19-1392, 2022 WL 2276808 (United States, 24 June 2022). HHS guidance can be found here.

Comments are closed.