NY Soc Serv L § 365-J (2021)
2021 New York Laws SOS - Social Services Article 5 - Assistance and Care Title 11 - Medical Assistance for Needy Persons 365-J - Advisory Opinions.

§  365-j.  Advisory opinions. 1. General. (a) Definition and nature of advisory opinions. An advisory opinion is a  written  statement,  issued pursuant  to  the provisions of this chapter, by the commissioner of the department of health or his or her specifically authorized  designee  or designees setting forth the applicability to a specified set of facts of pertinent  statutory and regulatory provisions relating to the provision of medical items or services pursuant to the medical assistance  program administered  by  the  department  of  health as the single state agency responsible for the administration of the program. Advisory opinions are issued at the request of any provider enrolled in the medical assistance program, and are binding upon the  commissioner  with  respect  to  that provider only.  (b)  Areas  in  which  advisory opinions may be requested. An advisory opinion may be sought with respect  to  a  substantive  question,  or  a procedural  matter.  Advisory  opinions may be requested with respect to questions arising prior to an audit or  investigation  with  respect  to questions  relating  to a provider's claim for payment or reimbursement. Advisory opinions may also be utilized for purposes of service planning. Thus, they may be requested with respect to a hypothetical or  projected future set of facts.  (c)  An  advisory opinion will not be issued where the petition for an advisory opinion relates to a pending question raised by the provider in an  ongoing  or  initiated  investigation  conducted  by  the   Medicaid inspector  general, deputy attorney general for the Medicaid fraud unit, or any other criminal investigation or any civil or criminal proceeding, or  where  the  provider  has  received  any  written  notice   of   the commissioner  or the Medicaid inspector general which advises a provider of an imminent  investigation,  audit,  pended  or  otherwise  suspended claim, or withhold of payment or reimbursement.  (d)  Nothing  in  this  section  shall be construed as superseding any federal rule, law, requirement or guidance.  (e)  The  commissioner  shall   promulgate   rules   and   regulations establishing  the  time period for issuance of such advisory opinion and the  criteria  for  determining  the  eligibility  of  a   request   for departmental response.   2.  Effect of advisory opinions. (a) An advisory opinion represents an expression of the  views  of  the  commissioner  of  health  as  to  the application  of  law, regulations and other precedential material to the set of facts specified in the petition for advisory opinion. An advisory opinion shall apply only with  respect  to  the  provider  to  whom  the advisory opinion is rendered.  (b)  A previously issued advisory opinion found by the commissioner to be in error may be  modified  or  revoked,  provided,  however,  that  a subsequent modification by such commissioner of such an advisory opinion shall  operate  prospectively.  The department shall promptly notify the provider of modification or revocation of an advisory opinion.  (c) All advisory opinions shall include the  following  notice:  "This advisory  opinion  is limited to the person or persons who requested the opinion and it pertains only to the facts and circumstances presented in the petition."  (d) All advisory opinions shall cite the pertinent law and  regulation upon which the advisory opinion is based.  (e)  All  advisory opinions and all modifications and revocations of a previously issued advisory opinion shall be deemed a public record.