Garrett v. The Tex. State Bd. of Pharm.
| Decision Date | 25 January 2023 |
| Docket Number | 03-21-00039-CV |
| Parties | Michael Garrett, M. D. and Kristin Held, M.D., Appellants v. The Texas State Board of Pharmacy, Ian Shaw, Bradley Miller, Donnie Lewis, Jenny Yoakum, Rick Fernandez, Daniel Guerrero, Lori Henke, Donna Montemayor, Julie Spier, Rick Tisch, and Suzette Tijerina, in their Official Capacities as members of the State Board of Pharmacy; Timothy Tucker, in his Official Capacity as the Executive Director of the Texas State Board of Pharmacy; the Texas Medical Board; Sherif Zaafran, Robert Martinez, Devinder S. Bhatia, James Distefano, Jayaram Naidu, Manuel Quinones, Satish Nayak, David Vanderweide, George De Loach, Kandace Farmer, Jason Tibbels, Sharon Barnes, Michael Cokinos, Robert Gracia, Tomeka Moses Herod, LuAnn Morgan, and Ebony Todd, in their Official Capacities as members of the Texas Medical Board; and Stephen Carlton, in his Official Capacity as the Executive Director of the Texas Medical Board, Appellees |
| Court | Texas Court of Appeals |
FROM THE 98TH DISTRICT COURT OF TRAVIS COUNTY NO D-1-GN-19-003686, THE HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING
Before Chief Justice Byrne, Justices Triana and Kelly
Appellants Michael Garrett, M.D., and Kristin Held, M.D., (collectively "Doctors") appeal from the trial court's final judgment granting Appellees'[1] motion for summary judgment, denying Doctors' motion for summary judgment and dismissing all of Doctors' claims with prejudice. For the following reasons, we affirm the trial court's final judgment.
Texas regulates the pharmacy profession through the Texas Pharmacy Act, which "shall be liberally construed to regulate in the public interest the practice of pharmacy in this state as a professional practice that affects the public health, safety, and welfare." Tex. Occ. Code §§ 551.001, .002(a). Because "[i]t is a matter of public interest and concern that the practice of pharmacy merits and receives the confidence of the public and that only qualified persons be permitted to engage in the practice of pharmacy," id. § 551.002(b), pharmacists and pharmacies are subject to extensive regulations. A person must hold a license to practice pharmacy in Texas, and that license requires, among other things, graduating and obtaining a degree from a college of pharmacy, completing at least a 1,000-hour internship, and passing two examinations. See id. §§ 558.001, .051(a); see also 22 Tex. Admin. Code §§ 283.3-4, .7 (Licensing Requirements for Pharmacists).[2]
The Texas State Board of Pharmacy (the "Pharmacy Board") has also adopted numerous administrative rules governing the actions and responsibilities of licensed pharmacists in Texas. See Tex. Occ. Code § 554.051(a) (). For example, "[a] pharmacist shall exercise sound professional judgment with respect to the accuracy and authenticity of any prescription drug order dispensed." 22 Tex. Admin. Code § 291.29(a) (Professional Responsibility of Pharmacists). Among other things, licensed pharmacists are responsible for ensuring that medication "is dispensed and delivered safely and accurately as prescribed" as part of the dispensing process, which includes "drug regimen review and verification of accurate prescription data entry." Id. § 291.32(c)(1)(F) (Personnel). The "drug regimen review" includes reviewing the patient's medical record to identify clinically significant information (e.g., known allergies, adverse drug reactions, drug-drug interactions), and the pharmacist must take "appropriate steps to avoid or resolve the problem including consultation with the prescribing practitioner." Id. § 291.33(c)(2)(A) (Operational Standards). Pharmacists must also counsel patients regarding said prescriptions. Id. § 291.33(c)(1).
The purpose of those rules and the other provisions in the Texas Pharmacy Act "is to promote, preserve, and protect the public health, safety, and welfare through: (1) effectively controlling and regulating the practice of pharmacy; and (2) licensing pharmacies engaged in the sale, delivery, or distribution of prescription drugs and devices used in diagnosing and treating injury, illness, and disease."[3] Tex. Occ. Code § 551.002(c). Accordingly, a person is prohibited from dispensing or distributing non-controlled prescription drugs unless the person is a licensed pharmacist or otherwise statutorily authorized to dispense or distribute such medication. See id. § 558.001(c); see also id. §§ 158.001(b) (), .003(b) (dispensing of dangerous drugs in certain rural areas); 551.006 ("Notwithstanding any other law, a pharmacist has the exclusive authority to determine whether or not to dispense a drug."); 563.051(d) (), .053(b) (dispensing of dangerous drugs in certain rural areas); 22 Tex. Admin. Code §§ 169.2(10) (Tex. Med. Bd., "Rural Area" definition), 169.5 (Tex. Med. Bd., Exceptions). Collectively, these provisions are the "Dispensing Ban," which generally functions to prohibit persons, including physicians, from dispensing non-controlled prescription medication unless they are licensed pharmacists.[4] There are only three narrow exceptions permitting physicians to dispense such medication without a pharmacist license: (1) the 72-Hour Supply Exception, a three-day supply of medication "necessary to meet the patient's immediate needs," Tex. Occ. Code § 158.001(a); 22 Tex. Admin. Code § 169.2(6) (Texas Med. Bd., "Immediate needs" Definition); (2) the Free Sample Exception, medication samples provided to the physician free of charge, Tex. Occ. Code § 158.002(a); 22 Tex. Admin. Code § 169.5(2) (Texas Med. Bd., Exceptions); and (3) the Rural Exception, allowing physician to dispense medication at cost to patients if the physician practices medicine in a narrowly defined rural area, Tex. Occ. Code § 158.003; 22 Tex. Admin. Code §§ 169.2(10) (Texas Med. Bd., "Rural area" Definition), 169.5(1) (Texas Med. Bd., Exceptions).[5]
Dr. Michael Garrett is an Austin-based family doctor who has practiced medicine for over 20 years. Dr. Garrett currently operates a "direct primary care" family practice, where patients pay a monthly fee for pre-agreed medical services rather than accepting insurance or other third-party payments. Dr. Kristin Held is a San Antonio-based ophthalmologist and surgeon who has practiced medicine for over 30 years. Dr. Held also does not take insurance or third-party payments. Both doctors desire to dispense non-controlled prescription medication at cost to their patients but are currently prohibited from doing so because they do not hold a pharmacist license nor qualify for the Rural Exception.
Doctors therefore brought the present lawsuit against the Pharmacy Board and the Texas Medical Board, as well as each boards' respective members and executive directors in their official capacities (collectively, the State), alleging that the Dispensing Ban (and its prohibition on their dispensing of non-controlled prescription medication at cost without a pharmacist license) violates their constitutional rights. Doctors argue that the Dispensing Laws violates their "rights to pursue a chosen business" protected by the Due Course of Law provision of the Texas Constitution. See Tex. Const. art. I, § 19. Doctors also allege that the distinction drawn between themselves and rural physicians who qualify for the Rural Exception violates their right to equal protection under the Texas Constitution. See id. art. I, § 3. Doctors therefore sought a permanent injunction against the State and attorneys' fees.
The parties filed cross-motions for summary judgment. After a hearing, the trial court granted the State's motion and denied Doctors' motion. Doctors timely appealed.
We review summary judgment rulings de novo. Texas Alcoholic Beverage Comm'n v. Live Oak Brewing Co., 537 S.W.3d 647, 654 (Tex. App.-Austin 2017, pet. denied). To prevail on a motion for summary judgment, the movant must demonstrate that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c). "When, as here, both parties seek summary judgment on the same issue and the court grants one motion and denies the other, we consider the summary judgment evidence presented by both sides, determine all questions presented and, if we determine that the trial court erred, render the judgment the trial court should have rendered." Live Oak Brewing, 537 S.W.3d at 654.
Moreover, we review de novo disputes concerning the constitutionality of a statute. Id. "Although whether a law is unconstitutional is a question of law, the determination will in most instances require the reviewing court to consider the entire record, including evidence offered by the parties." Patel v. Texas Dep't of Licensing &Regulation, 469 S.W.3d 69, 87 (Tex. 2015).
On appeal, Doctors contend that the trial court erred in failing to conclude that the Dispensing Ban violates their rights to due course of law and equal protection under the Texas Constitution. We address each in turn.
The Texas...
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