July 2012 Bar Bulletin
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July 2012 Bar Bulletin

Pharmacy Refusals: A Case Study on Freedom to Access Healthcare v. Freedom to Refuse

By Janet Chung


Federal healthcare reform has brought to the fore some longstanding clashes in fundamental beliefs about what core freedoms people should have when it comes to healthcare. While not new, these clashes hit the news with a vengeance this year.

Should religiously affiliated entities be excepted from requirements that insurance plans should cover contraceptive care? Do women have a right to access the full spectrum of healthcare? Should employers, insurers or healthcare providers be able to deny access based on their personal, moral or religious beliefs?

As these debates have raged in the other Washington and around the country, our own state has been grappling with the issue of healthcare refusals for several years. In 2005, staff at the Washington State Pharmacy Board, which regulates pharmacy practice in Washington, became aware of reports that some pharmacies were refusing to stock and dispense certain medication, such as emergency contraception, HIV/AIDS medicine and prenatal vitamins, and that certain pharmacists were refusing to return, or were destroying, prescriptions. The Pharmacy Board began to receive hundreds of inquiries about the propriety of these "refuse and refer" policies.

"Refuse and refer" is a practice whereby a pharmacist refuses to dispense a lawfully prescribed medication, and instead refers the patient to another pharmacy that will dispense the treatment. Because the then-current Pharmacy Board rules did not clearly define a pharmacist or pharmacy's obligation to dispense a lawfully prescribed drug, the Pharmacy Board voted unanimously to begin a rulemaking process in January 2006.

Over the next 16 months, the Pharmacy Board heard evidence for and against the proposed rule. In an unprecedented display of public participation, more than 21,000 comments and testimonials were submitted from individuals and organizations from across Washington. Some of the most powerful testimony came from individuals who themselves had been denied fulfillment of a variety of prescriptions, such as insulin syringes, antibiotics, contraceptives, prenatal vitamins and HIV/AIDS medication. Other individuals, such as advocates for disabled persons, testified about the hardships some patients face when they are refused service at their local pharmacies and have to find another pharmacy to fill their prescriptions.

The Pharmacy Board ultimately adopted two changes to its current rules. First, it amended the rules governing individual pharmacists to make clear that they could not violate a patient's privacy, destroy or refuse to return a valid prescription, unlawfully discriminate against patients, or intimate or harass patients. But the rule also made clear that individual pharmacists did not have to dispense drugs if they had a conscientious objection to doing so.

The second rule, however, applied to pharmacies. This rule established that pharmacies had a duty to dispense lawfully prescribed medication in a timely manner.

Taken together, these rules placed responsibility on pharmacies to ensure that patients had access to critical medication. A pharmacy could accommodate an individual pharmacist who objected to dispensing a drug - such as Plan B - but that pharmacy also had to accommodate the patient's needs by ensuring another pharmacist was available to fill that lawful prescription. The Pharmacy Board voted unanimously to adopt these rules on April 12, 2007.

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