N.Y. Social Services Law § 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.