The Institute for Justice has taken up the cause of doctors in Texas who want to offer their patients affordable medications at the point of care—a practice known as physician dispensing of prescription drugs. As the doctors point out, the Texas ban on physician dispensing is irrational.
“As 45 other states have recognized, doctor dispensing is a safe and effective way to increase patients’ access and adherence to their prescribed medications—which is good for patients, doctors, and the broader healthcare system,” IJ attorneys said in a press conference outside the Travis County Civil District Court where the lawsuit was filed.
Our research is clear—physician dispensing makes sense. Yet efforts to convince the 86th Texas Legislature to allow it went nowhere. That’s why doctors—and the attorneys from the Institute for Justice—feel it’s now appropriate to bring this state constitutional challenge to the courts in an effort to vindicate the rights of licensed Texas doctors.
In fact, physicians have attempted for nearly a decade to bring Texas in line with the majority of the nation, with no success at the legislative level.
Efforts to expand physicians’ ability to dispense drugs are contested by pharmacy cooperatives throughout the state. Their primary stated reasons for opposition are patient safety, the need for regulatory oversight, and potential conflicts of interest. Even though all of these points have been debunked (again, see our research), Texas is still one of five states in the nation that does not allow for a competitive option that is safe and affordable. This is especially grievous at a time when patients are struggling to afford their medications.
The new lawsuit has two points on which doctors say the state constitution has been violated. The first is based on the fact that the state forbids the Legislature from imposing irrational, oppressive, and protectionist restrictions on the right to pursue a chosen business. Clearly, this has been violated by the instituted ban—and by the exemptions and exclusions given to physicians that are inconsistent with their stated oppositions.
For example, physicians can give out free samples to their patients, and there is another state law that allows physicians to dispense from their office so long as there is not a pharmacy within 15 miles of their location. Clearly, the practice is safe—otherwise these two provisions in current law would be targeted by not only the pharmacy industry, but by physicians themselves, whose top concern is the safety of their patients.
The second claim of constitutional violation is based on the fact that the Texas Constitution forbids the Legislature from drawing irrational, oppressive, and protectionist distinctions between similarly situated groups. The distinction doesn’t exist in 45 other states—or in Texas when a doctor’s office is more than 15 miles from a pharmacy—so this is clearly irrational, oppressive, and protectionist in nature.
At a time when the high costs of prescription drugs are discussed at every level of government—and around the water cooler—it is more important to offer more venues where patients can get the medications they need. According to the Kaiser Family Foundation, “about three in ten (29%) of all adults report not taking their medicines as prescribed at some point in the past year because of the cost. This includes about one in five who say they didn’t fill a prescription (19%) or took an over-the counter drug instead (18%), and about one in 10 (12%) who say they cut pills in half or skipped a dose.”
Physician dispense can improve medication adherence by making prescription-filling more convenient and providing patients the opportunity to take their first dose in the physician’s office with assistance from their doctor or nurse. Physician dispensing (at the point of care) will expand physicians’ ability to provide care, improve patients’ experience, and reduce the underuse of medications.