Senate Bill S7517

                                 BILL NUMBER:  S7517

 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 :
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 :
§ 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.

§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".

 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 rulemaking 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.

 LEGISLATIVE HISTORY :
A.8859 (2004) - referred to assembly health committee
A.4191/S.4892 - (2005-06) - passed Assembly, referred to Senate Social
Services, Children & Families Committee

A.2265/S.3883 (2007-08) - passed Assembly, referred to Senate Social
Services, Children & Families Committee

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

 EFFECTIVE DATE :
This act shall take effect on the 30th day after it shall have become
law.