Physician Dispensing in Texas Heads to Court

The 86th Texas Legislative Session came to an end without any movement on physicians’ ability to expense a limited number of common prescription drugs, so two Texas doctors are taking their case to the Travis County Civil District Court, where they are claiming the ban on physician dispensing is unconstitutional.

Texas is out of step with the rest of the nation when it comes to the rule, as it is just one of five states to ban physicians from dispensing anything but free samples to their patients, though the state does allow doctors to dispense medications if they live more than fifteen miles from a pharmacy. Only eight doctors statewide fit that description.

Dr. Michael Garrett, a family physician from Austin, and San Antonio Ophthalmologist Dr. Kristin Held are the plaintiffs in the lawsuit, partnering with the Institute for Justice, who says the ban runs counter to the Texas constitution. “The Texas Constitution forbids government from imposing unreasonable and protectionist restrictions on the right to pursue a chosen business, and these protections are no less applicable to licensed doctors than anyone else,” IFJ says.

The pharmacy industry cites patient safety as their main reason for opposing the ban. Chief Executive Officer of the Texas Pharmacy Association and licensed Texas pharmacist Debbie Garza told DCEO earlier this year, “The Texas Pharmacy Association is opposed to physician dispensing and believes the practice puts patients’ health and safety at risk. The proposed legislation provides no oversight nor checks and balances put in place by the Texas Legislature and the Texas State Board of Pharmacy.”

But research from the Texas Public Policy Foundation says that the practice, which is legal in 45 other states, is just as safe as using a pharmacy. Adverse reactions to medication occurred just as frequently when picked up from a pharmacy as when dispensed from a doctor’s office. TPPF says allowing physicians to dispense medication will also improve rates of prescription adherence. The Annals of Internal Medicine says that over 30 percent of medicine that is prescribed is not filled. Removing the ban would allow patients to leave the office with the medicine.

Lastly, physicians are not allowed to profit on dispensing medicine, so they would be selling the prescriptions at cost, which could take a chunk out of the ever-increasing drug prices. A Kaiser Family Foundation study found that one in four Americans say that paying for medication is a significant financial strain.

The lawsuit rests on portions of the Texas Constitution banning irrational, oppressive, and protectionist laws on the right to pursue a business or on similarly situated groups. Because the ban does not apply to samples or rural physicians, and because physicians in other states can dispense drugs, the lawsuit claims the ban is unconstitutional.

See more in a video produced by IJF here.