Frier Levitt has been contacted by an alarming number of pharmacies who have had their applications for enrollment in the New York State Medicaid Program denied by the New York Office of the Medicaid Inspector General (OMIG) based on the pharmacies having, at one point or another, “failed to meet the criteria to be a participating provider” with certain private payors. By all appearances, this is an unconstitutional delegation of OMIG’s quasi-legislative or quasi-judicial authority to private parties, and an inexcusable and unlawful failure by the agency to exercise independent discretion in evaluating provider Medicaid enrollment applications. In addition to likely being violative of both the federal and New York Constitutions, the foregoing appears to run afoul of a number of statutes, including the New York Administrative Procedure Act.
Pharmacies, pharmacy associations, pharmacy societies, and other representational bodies are not without judicial or public policy recourse to push back against OMIG’s apparent unlawful agency action, including by way of potential class action. Contact Frier Levitt today to speak to an attorney about litigation options of action or Frier Levitt Government Affairs to discuss your policy options.