Medicaid Coverage for Race-Based Drugs

The FDA recently approved BiDil as a race-based drug and suggested that it was the first of many. This Note examines how Medicaid agencies should treat such race-based drugs. It begins by determining when it is medically appropriate for the FDA to approve a drug as a race-based drug. The Note then details the different ways that state Medicaid agencies may cover or exclude drugs, and applies the equal protection test to these different policies, ultimately concluding that states' decisions to deny off-label coverage to such drugs are examined under strict scrutiny. Because such an examination has negative policy effects, the Note proposes that coverage decisions for race-based drug be made by a federal agency, the Department of Health and Human Services.