TMA Argues to Overturn Physician Dispensing Ban
By Joey Berlin

Two Texas physicians are taking on the state’s general ban on physicians dispensing medications out of their offices, now with support from the Texas Medical Association for their argument that the prohibition does more to protect pharmacies than patient care.

TMA filed a friend-of-the-court brief in the 3rd Court of Appeals to back up Austin family physician Michael Garrett, MD, and San Antonio ophthalmologist and eye surgeon Kristin Held, MD, whose suit argues that the broad ban on physician dispensing of noncontrolled substances at cost violates multiple parts of the state constitution, including an equal-protection section that “forbids the legislature from drawing irrational, oppressive, and protectionist distinctions between similarly situated groups.” Their appeal came after a trial court dismissed their suit, filed against the Texas Medical Board (TMB) and the Texas State Board of Pharmacy (TSBP).

The practical effect of the current law, the physicians’ lawsuit claims, is that physicians can dispense only at quantities, prices, and locations “that do not threaten the profits of Texas pharmacies. Pharmacies, by contrast, can dispense an unlimited supply of medication, for a profit, in the most populated areas of Texas – all while enjoying at least a 15-mile zone of protection from competition by the nearest doctor.”

TMA’s brief adopted the arguments Drs. Garrett and Held made in their lawsuit, and told the appeals court that despite TSBP and TMB contending “physician dispensing of noncontrolled substance prescriptions is more harmful to patients than pharmacy dispensing, research shows there is no difference between the two options in patient adverse drug reactions. Instead, studies demonstrate physician dispensing of noncontrolled substances from their offices at cost (or even for an additional fee) provides numerous public health benefits, including driving down prescription costs by encouraging market competition, removing barriers to filling prescriptions, better protecting patient confidentiality, increasing opportunity for medication counseling, and improving continuity of care, which can lead to better patient outcomes.”

Although Drs. Garrett and Held’s lawsuit seeks the ability to dispense drugs at cost, TMA notes that the association is in support of physicians charging a fee for dispensing services. Medicine’s brief offers evidence that physicians dispensing for a fee can improve patient health outcomes, helping with cost savings, medication counseling, medication adherence, and more.

The brief also notes one of the core American Medical Association Principles of Medical Ethics: “A physician shall respect the law and also recognize a responsibility to seek changes in those requirements which are contrary to the best interests of the patient.”

“This is exactly what [the] physicians – who simply want to dispense noncontrolled substances at cost to their patients – are doing here,” TMA wrote. “The state’s ban is ‘contrary to the best interests of the patient.’ It undermines good public health policy by placing irrational restrictions on physician dispensing that unfairly limit patients’ health care options – options that could substantially benefit patients, including by improving medication nonadherence. This oppressive ban hurts, not protects, Texas patients.”

One exemption in the current law allows Texas physicians in rural areas working more than 15 miles from the nearest pharmacy to dispense out of their offices at cost. TMA’s brief notes that just eight physicians in Texas qualify for that exemption. Physicians in Texas can also dispense up to a 72-hour supply of noncontrolled prescription medication at no additional charge to address a patient’s “immediate needs,” as defined by TMB. They can also distribute free samples.

Last Updated On

July 15, 2021

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Joey Berlin

Associate Editor

(512) 370-1393
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Joey Berlin is associate editor of Texas Medicine. His previous work includes stints as a reporter and editor for various newspapers and publishing companies, and he’s covered everything from hard news to sports to workers’ compensation. Joey grew up in the Kansas City area and attended the University of Kansas. He lives in Austin.

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