Adds certain substances to the list of nonprescription drugs reimbursed by medicaid

2 Co-sponsors

• William J. Larkin Jr.
• Dale M. Volker

Title of bill

An act to amend the social services law and the state administrative procedure act, in relation to additions to the list of medicaid reimbursable nonprescription drugs

Purpose or general idea of bill

To expand the availability of safe, cost-effective medications under the Medicaid program by providing a "fast track" for adding nonprescription drugs to the list of Medicaid reimbursable nonprescription drugs in Health Department regulations.

Summary of provisions

Bill § 1 amends Social Services Law §365-a(4)(a) to provide that additions to the list of drugs reimbursable under the Medicaid program may be filed as regulations without prior notice and comment.

Bill §2 adds a new subparagraph (xiv) to § 102(2)(a) of the State Administrative Procedure Act (SAPA) providing that "any regulation comprised solely of one or more additions to the list of nonprescription drugs reimbursable under the Medicaid program" is not included within the definition of a "rule".

Effects of present law which this bill would alter

There is currently no statutory authority to "fast track" the addition of new over-the-counter drugs to the Health Department's regulations listing nonprescription medications that are reimbursable under the Medicaid program.

Justification

The New York State Medicaid program currently provides coverage for all prescription drugs. The Social Services Law also allows Medicaid reimbursement for nonprescription drugs that are specifically listed in the Health Department's regulations. This policy recognizes that some medications available over the counter are as safe and effective as similar prescription drugs, but may be beyond the reach of low-income patients. If a nonprescription product is not on the reimbursable list, a health care provider might opt to treat a patient of limited means with a more expensive prescription drug which might not be more effective but is Medicaid reimbursable.

The Health Department must go through the SAPA rulemaking process to make changes to the list. This includes preparation of supporting documentation, publishing a notice of proposed rule making in the State Register and receiving comments for at least 45 days. The final rule cannot be effective until a notice of adoption is published in the Register. Also, since the list is currently included within SAPA's definition of a "rule", executive review under Executive Order 20 can further delay additions to the list.

In limited cases the Department may be able to justify acting through emergency rulemaking, but still must complete all of the above steps to finalize the rule.

There is little need for prior public review and comment when a new item is added to the list of reimbursable nonprescription drugs. The Department has already determined that the product is beneficial. and cost-effective, and no one is required to prescribe the nonprescription drug. Providers use their own professional judgment on which prescription and nonprescription drugs are best for their patients.

This bill merely provides a "fast track" to speed up the process for making new nonprescription products an option under Medicaid. Other changes to delete or restrict currently-listed drugs would remain subject to ordinary notice and comment rulemaking under SAPA.

Prior legislative history

2005: Senate Social Services Cmte./Assembly Ways & Means. 2006: Senate Social Services Cmte./Passed Assembly. 2007-08: Senate Social Services Cmte./Passed Assembly

Fiscal implications for state and local governments

Savings from allowing health care providers to treat patients covered by Medicaid with safe, cost-effective nonprescription medications on an expedited basis.

Effective date

Immediately.