Skip to Main Content
Services Talent Knowledge
Site Search


Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

March 11, 2014

NYS Department of Health Medicaid Benefit Review Process

In 2011, Governor Cuomo established the Medicaid Redesign Team (MRT) by Executive Order. The MRT's charge was to come up with ideas to reform the Medicaid system and to reduce costs. One of those ideas was to establish a process to review (clinically and financially) both the benefits that Medicaid currently covers and any new technologies or treatments for which Medicaid coverage is sought.

While coverage of broad benefit categories (such as dental and durable medical equipment) is a matter for the Legislature, many items or services within those broad categories are generally not mandated by statute or regulation, and the administrative agency has some coverage decision leeway.

New York Medicaid is working with the Oregon Health and Science University on this project. The University has established a Medicaid Evidence Based Decision Project for the stated purpose of providing State Medicaid agencies (roughly a dozen nationwide) with "the tools and resources they need to make evidence-based decisions." For example, the University has performed studies on Elective Cesarean Sections, Bone Growth Stimulators and Vagus Nerve Stimulation for Depression and for Epilepsy, among others. A New York Medicaid administrator has stated that University reports and recommendations are received by Medicaid but that New York Medicaid decides which items or services will be subject to review.

Regarding benefits that Medicaid currently covers, the Department of Health (DOH) has announced that it does not plan to give comprehensive reviews to items or services with low programmatic costs (considering both price and utilization); situations of clear and known benefit; and mere code clarifications or updates. In addition, pharmaceutical decisions will remain within the purview of the Pharmacy and Therapeutics Committee.

For both existing and new services, those of "uncertain value (e.g., high cost with lower cost alternative; high risk; questionable efficacy)" (this, per the DOH website) will be subjected to an evidentiary review called the Dossier Process. The Dossier Process (including forms and instructions) is set forth on the DOH website at The Dossier requires the comprehensive submission of materials such as service rationale, references, studies and quality appraisal checklists, and other supporting documents as necessary, such as FDA approval letters and IRB protocols.

DOH states that the review is primarily a clinical one but that, this being Medicaid, financial considerations come in as well. What are the anticipated costs (including fee for service and managed care premium costs) of the service or item? Will there be offsetting costs through elimination or diminution of other, alternative, service modalities? Obviously, benefit decisions that will result in higher cost outlays will receive scrutiny at higher levels within the DOH and the Governor's Division of the Budget.

DOH has not established a formal administrative process to review negative coverage decisions (there is no administrative hearing process, for example). While informal appeals to DOH and/or Governor's Office officials can be effective, legal challenge of a negative decision through an Article 78 Proceeding may be necessary. A typical claim in such a Proceeding would be that: DOH got the science wrong; or that DOH's decision improperly discriminated against certain disease states; or that DOH failed to follow its own stated review protocols; or that DOH allowed financial considerations to overwhelm the science. Any such proceeding would need to be brought within four months of DOH's negative decision.

We have had conversations about this topic with high level staff within DOH's Office of Health Insurance Programs and its Division of Legal Affairs. DOH states that it does not see this process as an opportunity to do a "slash and burn" through the Medicaid benefit package. Officials are also aware that decisions based primarily on the dollars and not on the science are inherently suspect and will receive heightened scrutiny from the courts. However, all must bear in mind that this project is part of a major initiative of the Governor and, while it is doubtful that DOH has received a "quota" of cuts and denials, it will be expected to work the process.

When faced with an existing service that is under review or a new service for which Medicaid coverage is being sought, it will be important to complete the dossier process to the best of your ability. A court will rarely jump in if there is an established administrative process set up by the State agency that is not followed by the applicant. DOH states that it will answer questions about the dossier process and has provided a phone number: 518-473-2160.

Should you need assistance with the dossier process or a discussion regarding any Medicaid coverage issue, contact Gregor Macmillan at (518) 429-4234 or, Melissa M. Zambri, Chair of the Health Care & Human Services Practice Area at (518) 429-4229 or, or any member of our firm's Health Care & Human Services Practice Area.


Click here to sign up for alerts, blog posts, and firm news.

Featured Media


CDPAP Providers Get First Look at the Future of CDPAP Without FIs


New York State Fiscal Year 2025 Budget: Implications for Employers Unpacked


Lab Providers Under Increased Scrutiny From Civil and Criminal Agencies for OTC COVID-19 Test Claims


NYS Appellate Court Dismisses Claim Based on Material Misrepresentations in Insurance Application


It's Not Over Yet. Turning Your Judgments Into Dollars.


Website Accessibility Lawsuits: Several "Tester" Plaintiffs—Danso, Martinez, Hedges, Thorne, Genwright, and Donet—Targeting Businesses in Recent Flurry of Lawsuits

We're Growing in DC!

We’re excited to announce Barclay Damon’s combination with Washington DC–based Shapiro, Lifschitz & Schram. SLS’s 10 lawyers, three paralegals, and four administrative staff will join Barclay Damon while maintaining their current office in DC’s central business district. Our clients will benefit from SLS’s corporate, real estate, finance, and construction litigation experience and national energy-industry profile, and their clients from our full range of services.

Read More

This site uses cookies to give you the best experience possible on our site and in some cases direct advertisements to you based upon your use of our site.

By clicking [I agree], you are agreeing to our use of cookies. For information on what cookies we use and how to manage our use of cookies, please visit our Privacy Statement.

I AgreeOpt-Out