Publix battle with Florida doctors’ groups over drugs for injured workers is heading to appeals court

TALLAHASSEE — An appeals court this month will hear arguments in a long-running battle pitting the Publix supermarket chain and insurers against a state agency and doctors over rules for dispensing medications to injured workers.

The case involves whether workers’ compensation insurers should be required to reimburse physicians who dispense medications to people injured on the job. Publix and the insurers say drugs should be dispensed at pharmacies.

While the issue might appear esoteric to the public, it has drawn interest from major insurance and medical groups.

Publix, which self-insures its huge workforce, and six insurance companies have been backed in the case by the Florida Insurance Council and the American Property Casualty Insurance Association. On the other side, the Florida Medical Association, the Florida Osteopathic Medical Association and the Florida Orthopaedic Society intervened to support the Florida Department of Financial Services.

Publix and the insurers went to the 1st District Court of Appeal in April after Administrative Law Judge Darren Schwartz upheld proposed rules issued by the Department of Financial Services, which oversees the workers’ compensation system.

The proposed rules, issued in December 2022 after more than two years of wrangling about the issue, said physicians and other types of health-care providers, such as physician assistants and advanced registered nurse practitioners, could dispense medications to workers’ compensation patients.

While many physicians dispense medications to other types of patients, the workers’ compensation system gives insurers power to authorize treatment for injured workers. Publix and the insurers contend that the Department of Financial Services overstepped its legal authority in the proposed rules and that medications for workers’ compensation patients can only be dispensed by pharmacies.

“A dispensing practitioner is neither pharmacy nor pharmacist,” Publix and the insurers said in a July brief. “To conclude otherwise is to simply ignore the plain language of the statute, which is precisely what the department did by implementing the challenged rules.”

But the department, in an August brief, disputed the arguments and cited a law that gives injured workers “free, full, and absolute choice in the selection of the pharmacy or pharmacist dispensing and filling prescriptions for medicines.” Also, it said insurers would still have power to sign off on the doctors who treat injured workers and medications.

“The rules do not change anything about the right of the employer/carrier to choose the doctor who treats the injured worker or determine what treatment is authorized because the employer/carrier still authorizes (or does not authorize) the medication,” the department brief said. “The rules simply confirm for the purposes of billing and reimbursement that Florida law does not permit the employer/carrier to interfere with an injured worker’s right to choose where to obtain their medication.”

In a friend-of-the-court brief filed in August, the Florida Insurance Council and the American Property and Casualty Insurance Association contended that physician dispensing of medication can drive up costs and pose health risks.

“Circumventing the checks provided by a pharmacist reviewing contraindications and/or dosages removes a valuable safety net provided by pharmacies to injured workers,” the insurance industry groups said. “There is an increased risk of adverse medical outcomes when a practitioner, who is typically not the injured worker’s primary doctor, dispenses medication without a second check by a pharmacist for potential drug interactions.”

But the Florida Medical Association, the Florida Osteopathic Medical Association, the Florida Orthopaedic Society and another intervenor, Prescription Partners, LLC, argued in a brief that “there is no evidentiary basis for any finding” by the appeals court on such issues. Also, they said issues about cost and safety are policy decisions that should be made by the Legislature.

“The question of whether the physician-dispensing of medication is a wise policy decision is outside this court’s authority in this proceeding, and must be taken before the Legislature, the branch of government tasked with making such policy decisions,” the intervenors’ brief said.

A three-judge panel of the appeals court is scheduled to hear arguments Jan. 16. The insurers in the case are Normandy Insurance Co., Zenith Insurance Co., Bridgefield Employers Insurance Co., Bridgefield Casualty Insurance Co., BusinessFirst Insurance Co. and RetailFirst Insurance Co.