Innovations-Magazine-Nov-Dec-2024 - 4

REGULATORY PERSPECTIVES
Two Heads Are Better Than One
Listen | 9:45
Dale J. Atkinson, Esq
The Atkinson Firm
Under political, practical, and legal
perspectives, challenges are being levied
at the regulation of some professions.
Politically, legislatures are being lobbied
to either deregulate professions entirely
or, at a minimum, alter the prerequisites
for licensure. Practically, arguments
are being propounded that regulation
creates unnecessary barriers to entry
into a profession, thereby affecting
one's opportunities to realize economic
advantages. Legally, arguments are being
made that legislation regulating a profession
is violative of certain constitutional
principles. While some professions may
be presumed to be justifiably in need of
regulation and not subject to challenge,
arguments related to overlapping scopes
and allowances of practice can also be made.
Consider the following.
In Texas, individuals, including
physicians, are prohibited from dispensing
or distributing " non-controlled prescription
drugs " or dangerous drugs unless the
person is a licensed pharmacist or
otherwise statutorily authorized to
dispense or distribute such medication,
according to Garrett v. Texas State Board
of Pharmacy. Dangerous drugs include
any drug or device that is unsafe for
self-medication and that is not included
in specific penalty groups under the
Texas Controlled Substances Act or has
been designated by the Federal Drug
Administration [sic] as a drug that
requires a prescription. These licensure
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requirements also apply to non-controlled
prescription medications. The licensure
of and jurisdiction over pharmacists and
the practice of pharmacy is regulated by
the Texas State Board of Pharmacy.
There are three exceptions that permit
physicians to dispense prescription
medications without a pharmacist
license. They include the 72-hour
supply exception necessary to meet the
immediate needs of the patient, the free
sample exception related to medication
samples provided to the physician free of
charge, and the rural exception allowing
a physician to dispense medication at
cost to patients if the physician practices
in a narrowly defined rural area.
The plaintiffs alleged
that the dispensing
ban of non-controlled
prescription medications
without a pharmacist
license violated their
constitutional rights.
An Austin-based family physician with
over 20 years of experience operated a direct
primary care family practice where patients
paid a monthly fee for pre-agreed medical
services rather than accepting insurance or
other third-party payments. A San Antoniobased
ophthalmologist and surgeon with
over 30 years of experience also engaged in a
practice that did not take insurance or thirdparty
payments. Both physicians desired
to dispense non-controlled prescription
medications at cost to their patients but
were prohibited from doing so under the
Texas laws. The two physicians challenged
the laws under the Texas Constitution and
will collectively be referred to as plaintiffs.
The plaintiffs alleged that the dispensing
ban of non-controlled prescription
medications without a pharmacist license
violated their constitutional rights.
Specifically, the plaintiffs argued that
the ban violated their rights to pursue
a chosen business protected by the Due
Course of Law provision of the Texas
Constitution. They also argued that the
ban violated their right to equal protection,
citing the rural exception of the law. The
plaintiffs sued the Texas Medical Board
and the Texas State Board of Pharmacy,
including the board members and executive
directors in their official capacities.
Where applicable, the defendants will
be collectively referred to as the State.
The parties filed cross motions for
summary judgment. Summary judgment
motions argue that there are no material
issues of fact in dispute and the judge
can rule on the proceedings as a matter
of law and without the need for a trial.
After a hearing, the trial court granted the
State's motion and denied the plaintiffs'
motion. The plaintiffs appealed.
On appeal, the plaintiffs asserted that the
trial court erred in failing to conclude that
the dispensing ban violated the due course
of law and equal protection clauses of the
Texas Constitution. The Court of Appeals
addressed the arguments separately.
The Texas Constitution states that " no
citizen of this state shall be deprived of life,
liberty, property, privileges or immunities
or in any manner disenfranchised, except
by the due course of the law of the land. "
Due course of law claims are assessed
under a two-part test. First is whether
the plaintiffs have a liberty or property
interest that is entitled to procedural due
process protection. Both parties agreed that
the plaintiffs asserted a protected liberty
interest. That is, the right to " engage in
any of the common occupations of life. "
The second prong of the test is what
process is due to protect the liberty interest
of the challenging party. The plaintiffs, in
Innovations-Magazine-Nov-Dec-2024

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