252 - Procedures for determinations relating to package, or form of dosage or administration, of certain drugs.

§  252.  Procedures for determinations relating to package, or form of  dosage or administration, of certain drugs.  1.  If  the  department  of  health makes an initial determination that a particular package, or form  of  dosage  or administration, of a drug shall be excluded in accordance  with the provisions of paragraph (b) of subdivision one of  section  two  hundred  forty-one  of this title, the executive department shall notify  the manufacturer of such drug  product  that  the  executive  department  intends  to  seek  the  exclusion  of such package, or form of dosage or  administration, from the program and  shall  provide  such  manufacturer  with  the  reasons therefor together with the facts which the department  relies upon to support its initial determination. The manufacturer shall  have fifteen days after receiving such exclusion notice  to  notify  the  executive  department  of  an  intent  to  appeal  the  decision. If the  manufacturer fails to notify the executive department of  an  intent  to  appeal  within  the  time specified in this section, the commissioner of  health shall forthwith determine whether the package, or form of  dosage  or   administration,   shall  be  excluded  from  the  program.  If  the  manufacturer notifies the executive department of an intent  to  appeal,  the  manufacturer  shall  submit  to  the  executive  department  within  forty-five days of receiving such exclusion notice,  the  basis  of  the  manufacturer's  appeal. Within fifteen days of receiving such submission  from the manufacturer, the executive department  shall  provide  to  the  manufacturer  any  additional facts concerning the drug product that the  department relies upon to support its initial determination. Within  ten  days  of  receiving  such  facts, the manufacturer may submit additional  facts concerning the drug package, or form of dosage or  administration.  Based  on the facts submitted pursuant to this section, the commissioner  of health shall make a  final  determination,  in  accordance  with  the  standard  set  forth  in paragraph (b) of subdivision one of section two  hundred forty-one of this title, as to whether the package, or  form  of  dosage or administration, of the drug product shall constitute a covered  drug  for  the  purposes of this article. A determination to exclude the  drug package, or form of dosage or administration, shall be  subject  to  judicial  review pursuant to article seventy-eight of the civil practice  law and rules.    2. The  commissioner  of  health  shall  establish  by  regulation  an  appropriate  process  allowing  drug  packages,  or  forms  of dosage or  administration, finally determined under this section not to be  covered  drugs  for  the  purposes  of  this  title  to  be  dispensed to program  participants for  whom  such  drug  packages,  or  forms  of  dosage  or  administration,  are  medically indicated as certified to by a physician  treating such participant. Any such drug package, or form of  dosage  or  administration,  so  certified  as  medically  indicated  for a specific  participant in accordance with such regulations shall be a covered  drug  for the purpose of this title.