Thoughtful agency rule- and policymaking in healthcare, informed by medical science and stakeholder input, is a good and necessary thing. Agency rule- and policymaking in the absence of such guidance is not. Not only may it be unlawful, but it can easily become a public health hazard. A recent decision from New York’s Appellate Division, Third Department underscores this point well, in addition to highlighting the importance of the judiciary’s role as a check on agency abuses of power in the healthcare space.

Specifically, in North Shore Hematology-Oncology Associates, P.C. d/b/a New York Cancer & Blood Specialists v. New York State Department of Health and New York State Department of Education (Dkt. No. CV-23-0517) (“NYCBS Matter”), the Appellate Division held that the New York Department of Health’s (NYDOH) newly-crafted definition of the term “oncologic protocol”—a term that, for decades prior to the new definition, had permitted oncologists to in-office dispense medications to their cancer patients beyond the default statutory 72-hour supply limit— was “irrational” and owed no deference by virtue of the agency’s “expertise” since there was “no evidence...any such expertise was genuinely exercised...in arriving at the definition.” Id. at 4-5.