Thought Leadership

The First District Court of Appeal issued a blockbuster opinion on February 25, 2026, in the case of Publix Super Markets, Inc., et.al. v. Dept. of Financial Services, et. al., ---So.3d---(Fla. 1st DCA 2026). The court held that, while injured workers have an absolute right to choose their own “pharmacy or pharmacist,” physicians may not dispense medications directly to their patients under Chapter 440. This marks a significant development in the often contentious relationship between insurance carriers and dispensing physicians. Those opposing the dispensing practice claim that it has resulted in practitioners charging more for medications, and that ending the practice could save insurance carriers millions of dollars.

For many years, the Department of Financial Services (DFS) interpreted the “free, full, and absolute choice in the selection of the pharmacy or pharmacist” language of section 440.13(3)(j) to exclude dispensing physicians. Thus, insurers could deny reimbursement when physicians dispensed medications to injured workers. In 2020, however, DFS reversed course and issued an Informational Bulletin stating that dispensing practitioners were considered pharmacists under the absolute choice provision. Then in 2023, DFS proposed two administrative rules confirming that “physicians (including oral surgeons), physician assistants, ARNPs, and any other recognized practitioners registered to dispense medications pursuant to section 465.0276, F.S., may dispense medications” to injured workers. The rules were challenged by Publix and various insurance companies. After a final hearing, the administrative law judge (ALJ) issued a final order upholding the proposed rules.

The First DCA disagreed with the ALJ’s final order and set it aside. The court held that the proposed rules were invalid exercises of delegated legislative authority because they enlarged, modified, or contravened the plain language of the “absolute choice” provision in section 440.13(3)(j). It explained that a “pharmacist” is someone licensed to practice pharmacy by obtaining a degree from a pharmacy school, completing a board-certified internship program, and passing a pharmacy exam. The statutes governing and regulating pharmacists under Chapter 465 of the Florida Statutes do allow for certain non-pharmacists, defined as “dispensing practitioners,” to distribute medications. The crux of the First DCA’s opinion is its holding that the plain language of the absolute choice section 440.13(3)(j) of Chapter 440 only applies to pharmacists and does not encompass dispensing practitioners.

The issue, however, may not be permanently resolved, as an appeal to the Supreme Court could follow. The court also implied that an opposite result would have been reached if section 440.13(3)(j) expressly included dispensing practitioners or if the statute used a broader term like “health care provider.” In effect, the opinion provided a potential roadmap for groups to lobby for statutory amendments that could survive judicial review.