On Tuesday, New York Cancer & Blood Specialists, LLC filed a lawsuit against the New York State Department of Health and the New York State Education Department and seeks an Order to nullify a de facto rule promulgated by the two departments.
According to the complaint, on June 4, the New York State Departments of Health and Education “slipped” a de facto agency rule into the New York State Medicaid Pharmacy Manual that narrowly defined “oncologic protocol.” The definition from the manual that was provided in the complaint limits “oncologic protocol” to the protocols for the administration of chemotherapy and other therapies for the treatment of cancer or tumors. Further, the definition specifically states that “oncologic protocol” “does not include protocols that cover drugs prescribed to relieve side effects of these treatments.” New York Cancer & Blood Specialists argue that this narrow definition lacks any basis and will adversely impact New York’s vulnerable Medicaid population with cancer by preventing oncologists from dispensing medicine, such as pain medication and antibiotics, to treat the side effects of various cancer treatments.
The claim states this rule was promulgated without a valid rationale, need or serious study and conflicts with the current ordinary practice of oncology and best practices supported by The National Comprehensive Cancer Network.
The complaint alleges that the de facto rule was not filed with the Secretary of State for publication in the state register nor was the public given the opportunity to participate in a notice and comment hearing. Because of this, there has been alleged confusion about the rule and claim denials for oncologists trying to provide supportive care medications.
Accordingly, New York Cancer & Blood Specialists argue that the respondents’ failure to file a notice of proposed rulemaking or to provide a public notice and comment hearing renders the rule unlawful and unenforceable under the New York State Administrative Procedure Act and the New York State Constitution.
The petitioner seeks an order annulling the rule on the grounds that it is in violation of the New York State Administrative Procedure Act and Article IV § 8 of the New York State Constitution, is arbitrary and capricious for lack of a rational basis and is constitutionally vague. The petitioner is represented by Frier & Levit, LLC.