2023 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.