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Dispensing Justice in Texas: IJ Challenges Protectionist State Health Care Law

The last thing sick patients want to do after seeing their doctors is stand in line at a pharmacy for basic medication—and in most of the country, they don’t have to. Forty-five states and the District of Columbia allow doctors, if they choose, to dispense medication directly to patients in their offices. This practice, known as “doctor dispensing,” is a safe and effective way for doctors to increase patients’ access to the medications they need.

But not in Texas. There, unlike in the vast majority of states, doctors are generally banned from dispensing unless they work in certain “rural” areas more than 15 miles from a pharmacy. Those rural doctors are permitted to dispense non-controlled prescription medications and even to recover their costs. But over 99% of Texas doctors work too close to a pharmacy to qualify.

This ban has nothing to do with protecting real patients. Texas doctors are just as qualified as their peers across the country to dispense medication safely and ethically. And doctors who work in more populated parts of Texas are just as qualified as their rural peers to provide identical services. Research also shows that it’s just as safe for doctors to dispense medication as it is for pharmacies.

But Texas’ ban does serve another purpose: protecting pharmacies from competition. Under the law, pharmacies enjoy a 15-mile zone of protection from competition by the nearest doctor. The results are telling: Only eight doctors in a state of 29 million residents are legally permitted to dispense medication they prescribe.

To learn more about this case watch our Doctors Challenge Texas’s Ban on Dispensing Medication to Their Patients video.

The law has real consequences. Up to 30% of all prescriptions in America go unfilled due to factors like cost and inconvenience, resulting in complications for patients and billions of dollars annually in avoidable medical expenses for the broader health care system. Dispensing offers doctors a way to help alleviate these problems by providing patients with immediate access to the medications they need—often at a fraction of the price offered by nearby pharmacies.

It is easy to see why Texas’ scheme does not sit well with Texas doctors, like IJ client Dr. Kristin Held, who would like to dispense medication to their own patients. Dr. Held is an ophthalmologist based in San Antonio who performs eye surgeries and would like to send patients home with the antibiotic and anti-inflammatory eye drops they need to recover. She simply wants to dispense in the same manner as her rural peers, but because she works in a big city near pharmacies, she is banned from doing so.

For years, Dr. Held and Dr. Michael Garrett, another IJ client, have advocated for change at the legislative level—often with the support of the Texas Medical Association, the largest state doctors’ association in the country. Over the years, these efforts have produced several promising bills that would have reformed or repealed Texas’ dispensing ban. But every time, powerful pharmacy groups and their lobbyists have exerted their considerable influence to defeat the bills.

Now, Dr. Held and Dr. Garrett are taking their cause to the courts. In June, the doctors and IJ filed a constitutional lawsuit to strike down Texas’ protectionist ban on doctor dispensing. As IJ’s 2015 victory in Patel v. Texas Department of Licensing and Regulation made clear, the Texas Constitution provides strong protections for economic liberty. We look forward to showing that these protections also apply to licensed medical professionals—and that naked economic protectionism has no place in the Lone Star State.

Joshua Windham is an IJ attorney.

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