§ 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.