§ 365-J — Advisory opinions

§ 365-j. Advisory opinions. 1. General. (a) Definition and nature of\nadvisory opinions. An advisory opinion is a written statement, issued\npursuant to the provisions of this chapter, by the commissioner of the\ndepartment of health or his or her specifically authorized designee or\ndesignees setting forth the applicability to a specified set of facts of\npertinent statutory and regulatory provisions relating to the provision\nof medical items or services pursuant to the medical assistance program\nadministered by the department of health as the single state agency\nresponsible for the administration of the program. Advisory opinions are\nissued at the request of any provider enrolled in the medical assistance\nprogram, and are binding upon the commissioner with respect to that\nprovider only.\n (b) Areas in which advisory opinions may be requested. An advisory\nopinion may be sought with respect to a substantive question, or a\nprocedural matter. Advisory opinions may be requested with respect to\nquestions arising prior to an audit or investigation with respect to\nquestions relating to a provider's claim for payment or reimbursement.\nAdvisory opinions may also be utilized for purposes of service planning.\nThus, they may be requested with respect to a hypothetical or projected\nfuture set of facts.\n (c) An advisory opinion will not be issued where the petition for an\nadvisory opinion relates to a pending question raised by the provider in\nan ongoing or initiated investigation conducted by the Medicaid\ninspector general, deputy attorney general for the Medicaid fraud unit,\nor any other criminal investigation or any civil or criminal proceeding,\nor where the provider has received any written notice of the\ncommissioner or the Medicaid inspector general which advises a provider\nof an imminent investigation, audit, pended or otherwise suspended\nclaim, or withhold of payment or reimbursement.\n (d) Nothing in this section shall be construed as superseding any\nfederal rule, law, requirement or guidance.\n (e) The commissioner shall promulgate rules and regulations\nestablishing the time period for issuance of such advisory opinion and\nthe criteria for determining the eligibility of a request for\ndepartmental response.\n 2. Effect of advisory opinions. (a) An advisory opinion represents an\nexpression of the views of the commissioner of health as to the\napplication of law, regulations and other precedential material to the\nset of facts specified in the petition for advisory opinion. An advisory\nopinion shall apply only with respect to the provider to whom the\nadvisory opinion is rendered.\n (b) A previously issued advisory opinion found by the commissioner to\nbe in error may be modified or revoked, provided, however, that a\nsubsequent modification by such commissioner of such an advisory opinion\nshall operate prospectively. The department shall promptly notify the\nprovider of modification or revocation of an advisory opinion.\n (c) All advisory opinions shall include the following notice: "This\nadvisory opinion is limited to the person or persons who requested the\nopinion and it pertains only to the facts and circumstances presented in\nthe petition."\n (d) All advisory opinions shall cite the pertinent law and regulation\nupon which the advisory opinion is based.\n (e) All advisory opinions and all modifications and revocations of a\npreviously issued advisory opinion shall be deemed a public record.\n