New York/New Jersey, October 23, 2024—Frier Levitt is proud to announce a significant legal victory on behalf of New York Cancer & Blood Specialists (NYCBS). The firm successfully challenged the New York State Department of Health (DOH) ‘s restrictive definition of “oncologic protocol.” This ruling restores oncologists’ ability to provide supportive therapies in-office, a vital component of cancer care that had been blocked since 2021.[1]
The case began when Pharmacy Benefit Managers (PBMs) began denying claims for supportive therapies, citing the DOH’s narrow interpretation of the term “oncologic protocol.” This interpretation was included in a Medicaid update, directing PBMs and managed care organizations to deny coverage for medications addressing cancer treatment side effects, forcing patients to rely on third-party pharmacies. Frier Levitt attorneys Jason Silberberg and Michael Sheflin argued that this definition was irrational, and the New York Appellate Division, Third Department, agreed, declaring the DOH’s policy unlawful.
Prior to the DOH’s 2021 redefinition, oncologists had been permitted for years to dispense both anti-cancer drugs and supportive therapies—such as anti-nausea medications and hydration treatments—in-office as part of comprehensive care. The DOH’s sudden policy change disrupted patient access to these treatments, adding delays and complications for cancer patients.
In its unanimous decision, the Appellate Division found the DOH’s definition to be baseless, citing the lack of clinical evidence to justify the restriction. The court emphasized that supportive therapies are essential for managing the side effects of cancer treatment and ensuring its effectiveness. With this ruling, oncologists across New York can once again provide critical supportive therapies in the office, ensuring timely and convenient care for their patients.
“This ruling is not just a victory for NYCBS but for every oncology practice in New York,” said Jason Silberberg, Partner at Frier Levitt. “It ensures that cancer patients have easier access to the therapies they need, without facing delays or complications.”
“Our priority is always providing the best possible care for our patients,” said Dr. Jeff Vacirca, CEO of NYCBS. “This ruling lets us continue delivering essential therapies in-office, reducing barriers and improving patient outcomes throughout their treatment journey.”
The court’s decision reinstates the standard of care that existed before 2021. Allowing practices to offer supportive therapies in-office simplifies patient care, reduces delays, and enhances access to critical treatments for oncology patients statewide.
For more information or to view the full court decision visit frierlevitt.com.
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About Frier Levitt
Founded in 2000, Frier Levitt is a premier boutique law firm with offices in New York and New Jersey. Firm attorneys provide an array of services to healthcare and life sciences clients nationally. Frier Levitt serves the provider community, wholesalers, manufacturers and plan sponsors, large physician group practices, hospitals, hospital medical staffs, ambulatory surgery centers, and laboratory companies.
[1] Of note, Frier Levitt also continues to challenge a Medicaid policy that precludes dispensing physicians, including oncologists, from participating in Medicaid’s pharmacy benefit for the dispensing of any drugs, and instead, permitting them only to submit claims through Medicaid’s medical benefit, where reimbursement rates are essentially capped at the provider’s acquisition costs. This case, New York Cancer & Blood Specialists v. New York State Dep’t of Health, Dkt. No.: CV-23-2119, remains pending under a separate appeal.
