Hematology-Oncology Associates of Central New York Lends Its Voice to Growing Chorus of Oncologists Opposing New York’s New Definition of the “Oncologic Protocol”

As previously reported, Frier Levitt filed suit against the New York Department of Health and the New York State Department of Education on behalf of an independent New York oncology practice in an effort to void the State’s new and legally unsupported definition of the “oncologic protocol”. As written, the oncologic protocol definition permits New York oncologists to in-office dispense medications for the “treatment of cancer or tumors[,]” on the one hand, but prohibits them from in-office dispensing “drugs prescribed to relieve side effects of these therapies or to relieve distressing symptoms[,] on the other. In the pending suit, the oncologic protocol definition’s significant and substantive legal deficiencies are laid out in great detail. Now, Hematology-Oncology Associates of Central New York (“HOACNY”) has weighed in by way of Motion for Leave to file an Amicus Curiae or “friend of the court” submission to express its strong disapproval of the oncologic protocol definition from a clinical, ethical, and policy standpoint. Notably, HOACNY’s submission follows on the heels of the Community Oncology Alliance’s (“COA”) Motion for Leave to File an Amicus Curiae Submission, which the State has vigorously opposed and is still pending before the Court.

The proposed amicus filing is an Affidavit executed by HOACNY’s president and practicing clinical oncologist M. Daniel Bingham, M.D., who, in addition to joining in those points raised in COA’s proposed amicus filing and further elaborating on the clinical unworkability of the oncologic protocol definition’s vague and confused parameters, also highlights the oncologic protocol definition’s disparate and discriminatory impact on New York’s vulnerable Medicaid population. To this latter point, Dr. Bingham noted, among other things, that:

“The diverse benefits associated with in-office dispensing supportive clinical therapies, an otherwise standard oncological practice now prohibited by the [oncologic protocol definition] within New York Medicaid, are generally available to patients enrolled in Medicare and commercial plans . . .As a corollary[,] . . .  the [oncologic protocol definition’s] negative clinical effects – resulting from its requirement that cancer patients seek all supportive therapies (and even some oral oncolytics) from third-party pharmacies – solely and specifically impact New York’s Medicaid cancer patient population, which is to say, the deeply impoverished and/or significantly disabled. Thus, as a law, the [oncologic protocol definition] is plainly a discriminatory and an unseemly one.”

The oncologic protocol and other recently-promulgated agency rules (issued in the guise of mere “policy”) by New York’s Department of Health continues to wreak havoc on many New York oncology practices, resulting in nonsensical and costly claims denials by many New York managed Medicaid plans. These issues have been further compounded by the State’s convoluted enrollment denials in its fee-for-service Medicaid program, which threatens to potentially kill off physician dispensing for New York Medicaid more broadly. Frier Levitt has been working with these practices, using its healthcare litigation and regulatory knowledge and experience, to help navigate through labyrinthine bureaucratic hurdles and red-tape to secure fair and prompt compensation for our clients.

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