Dispensing Practitioners don’t Fall within Florida’s ‘Absolute Choice’ Provisions

Case File

Because dispensing practitioners were the same as pharmacists for purposes of Florida workers' compensation law, such practitioners did not come under the state's "absolute choice" provision that provides injured workers with the latitude to choose who fills their scripts.

Case

Publix Super Markets, Inc. v. Department of Financial Services, Division of Workers' Compensation, No. 1D2023-0941 (Fla. Dist. Ct. App. 02/25/26)

What Happened?

A longstanding provision of Florida's Workers' Compensation Law directs that an injured employee has a "free, full, and absolute choice" of which "pharmacy or pharmacist" fills and dispenses prescriptions.

In 2023, Florida's Division of Workers' Compensation issued proposed rules interpreting the "absolute choice" language to include healthcare practitioners who are authorized to dispense drugs directly to their patients. The proposed rules prohibit workers' compensation insurance carriers from denying authorization or reimbursement for prescription medication solely because a "dispensing practitioner" dispenses the medication.

A group of companies affected by the proposed rules filed an administrative petition challenging the proposals as invalid exercises of delegated legislative authority. Ultimately, after a hearing, the Division of Administrative Hearings issued a final order rejecting the group's claims and dismissing the petition. The group appealed to court.

Rule of Law

Under Florida workers' compensation law, to receive payment, a medical provider who renders non-emergency services must receive authorization from the employer's workers' compensation insurance carrier before providing treatment. With limited exceptions, the carrier selects and authorizes the provider who will provide treatment. After the injured employee receives the authorized treatment, the provider bills the carrier directly, and the carrier pays.

An exception to the typical authorization structure is prescription medication and the "absolute choice" provision.

In a different statutory provision, Florida law provides that a "person may not dispense medicinal drugs unless licensed as a pharmacist or otherwise authorized ... except that a practitioner authorized by law to prescribe drugs may dispense such drugs to her or his patients."

In 2020, the state concluded that dispensing practitioners were to be considered pharmacists under the "absolute choice" provision in an information bulletin and later put this position in the proposed rule at issue in this case.

What the Court Said

Finding that the rules could not be squared with the plain language of the "absolute choice" provision, the court held that the rules were invalid.

The court analyzed Florida's Administrative Procedure Act, under which a rule may be challenged as an invalid exercise of delegated legislative authority where it "goes beyond the powers, functions, and duties delegated by" the state legislature. Per Sw. Fla. Water Mgmt. Dist. v. Save the Manatee Club, Inc., 773 So. 2d 594 (Fla. Dist. Ct. App. 2000), "either the enabling statute authorizes the rule at issue or it does not."

In this case, the langue of the relevant statute -- the "absolute choice" provision -- failed to authorize either of the proposed rules.

The court explained that at the "heart" of its inquiry was whether the phrase "pharmacy or pharmacist" could be read to encompass a dispensing practitioner.

Looking to dictionary definitions and a Florida statue that differentiated between a pharmacist and a dispensing practitioner, the court reasoned that the term "pharmacist" did not include a dispensing practitioner because a license to practice pharmacy was obtained in only two ways:

(1) Through examination or

(2) Endorsement.

In both cases, the candidate must:

(1) Obtain a degree from a pharmacy college or school,

(2) Complete a board-certified internship program, and

(3) Pass the Florida pharmacy exam or a comparable exam.

"Meanwhile, dispensing practitioners are not subject to the same licensing requirements," the court wrote. "To become a dispensing practitioner, a practitioner only needs to register with their professional licensing board, pay a fee of less than $100 and follow the rules as directed in the statute."

The court also pointed out that while dispensing practitioners have a "dispensing practitioner license," they do not carry the license, training, or credentials to be considered.

Verdict: The court set aside the ALJ's order.

Takeaway

In Florida, the "absolute choice" statutory provision fails to include dispensing practitioners, and dispensing practitioners do not fit within the plain meaning of "pharmacist" nor do they engage in the "practice of the profession of pharmacy."

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