As previously discussed in our article in June 2022, the New York Department of Health (“NYDOH”) has taken the position that community pharmacies that have dual enrollment with Medicare as both a pharmacy provider (through CMS-855B enrollment) and a Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (“DMEPOS”) supplier (through CMS-855S enrollment, irrespective of whether the pharmacy actually dispenses durable medical equipment) must demonstrate “full participation” in Medicare.
More recently, NY Provider Enrollment published a new form entitled “Attestation of Need for/Exemption from Medicare Enrollment,” which acknowledges that pharmacies, depending on their business model, may need Form 855S, Form 855B, or both enrollments. In these instances, pharmacies have the opportunity to seek an exemption to Medicare enrollment. Still, in the absence of a documented exemption, NYDOH reserves the right to terminate pharmacies that do not have DMEPOS supplier enrollment. NYDOH warns that “[p]harmacies are subject to audit, recovery, and Medicaid provider termination for non-compliance with the requirement of Medicare enrollment.”
Providers who are already enrolled in Medicare via Forms 855S and Form 855B should evaluate their operations to determine whether dual enrollment is necessary for their business. Before you seek an exemption from the Medicare Form 855S enrollment for DMEPOS, it is important to note that DMEPOS in the New York Medicaid Pharmacy Program includes diabetic supplies, nebulizer drugs, and oral anticancer or antiemetic drugs covered by Medicare Part B.[1] The exemption form requires that the Pharmacy attest that it does not dispense these items to any patients of the pharmacy. A request for an exemption to the Medicare enrollment requirements must be timely submitted to eMedNY before the pharmacy’s Medicare enrollment lapses. Pharmacy providers that do not maintain Medicare dual enrollment can face termination from the New York Medicaid Program, resulting in significant disruption to their business, and potentially subjecting them to audit and recovery.
How Frier Levitt Can Help
Frier Levitt attorneys regularly counsel pharmacy clients regarding enrollment, termination, and/or audit issues related to state and federal programs. If you have received a notice from the New York Medicaid Program or have questions about pharmacy enrollment requirements, contact us.
[1] See, e.g., NYRx The NY Medicaid Pharmacy Program Pharmacy Manual Policy Guidelines, Version 2023-1 (Jan. 2023), available at https://www.emedny.org/ProviderManuals/Pharmacy/PDFS/Pharmacy_Policy_Guidelines.pdf.
