N.Y. Social Services Law Section 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.

Source: Section 365-J — Advisory opinions, https://www.­nysenate.­gov/legislation/laws/SOS/365-J (updated Sep. 22, 2014; accessed May 4, 2024).

363
Declaration of objects 363‑A
Federal aid 363‑B
Agreements for federal determination of eligibility of aged, blind and disabled persons for medical assistance 363‑C
Medicaid management 363‑D
Provider compliance program 363‑E
Medicaid plan, applications for waivers and plan amendments 363‑F
Electronic visit verification for personal care and home health providers 364
Responsibility for standards 364‑A
Cooperation of state departments 364‑B
Residential and medical care placement demonstration projects 364‑C
National long term care channeling demonstration project 364‑D
Medical assistance research and demonstration projects 364‑E
Aid to families with dependent children homemaker/home health aide demonstration projects 364‑F
Primary care case management programs 364‑G
Medical assistance capitation rate demonstration project 364‑H
Foster family care demonstration programs for elderly or disabled persons 364‑I
Medical assistance presumptive eligibility program 364‑J
Managed care programs 364‑J‑2
Transitional supplemental payments 364‑JJ
Special advisory review panel on Medicaid managed care 364‑KK
Condition of Participation 364‑M
Statewide patient centered medical home program 364‑N
Diabetes and chronic disease self-management pilot program 365
Responsibility for assistance 365‑A
Character and adequacy of assistance 365‑B
Local medical plans: professional directors 365‑C
Medical advisory committee 365‑D
Medicaid evidence based benefit review advisory committee 365‑E
Optional or continued membership in entities offering comprehensive health services plans 365‑F
Consumer directed personal assistance program 365‑G
Utilization review for certain care, services and supplies 365‑H
Provision and reimbursement of transportation costs 365‑J
Advisory opinions 365‑K
Provision of prenatal care services 365‑L
Health homes 365‑M
Administration and management of behavioral health services 365‑N
Department of health assumption of program administration 365‑O
Provision and coverage of services for living organ donors 365‑P
Doulas for Medicaid 366
Eligibility 366‑A
Applications for assistance 366‑B
Penalties for fraudulent practices 366‑C
Treatment of income and resources of institutionalized persons 366‑D
Medical assistance provider 366‑E
Certified home health agency medicare billing 366‑F
Persons acting in concert with a medical assistance provider 366‑G
Newborn enrollment for medical assistance 366‑H
Automated system 366‑I
Long-term care financing demonstration program 367
Authorization for hospital care 367‑A
Payments 367‑B
Medical assistance information and payment system 367‑C
Payment for long term home health care programs 367‑D
Personal care need determination 367‑E
Payment for AIDS home care programs 367‑F
Partnership for long term care program 367‑G
Authorization and provision of personal emergency response services 367‑H
Payment for assisted living programs 367‑I
Personal care services provider assessments 367‑O
Health insurance demonstration programs 367‑P
Responsibilities of local districts for personal care services, home care services and private duty nursing 367‑P*2
Payment for limited home care services agencies 367‑Q
Personal care services worker recruitment and retention program 367‑R
Private duty nursing services worker recruitment and retention program 367‑S
Long term care demonstration program 367‑S*2
Emergency medical transportation services 367‑T
Payment for emergency physician services 367‑U
Payment for home telehealth services 367‑V
County long-term care financing demonstration program 367‑W
Health care and mental hygiene worker bonuses 367‑X
Payment for violence prevention programs 368
Quarterly estimates 368‑A
State reimbursement 368‑B
State reimbursement to local health districts 368‑C
Audit of state rates of payment to providers of health care services 368‑D
Reimbursement to public school districts and state operated/state supported schools which operate pursuant to article eighty-five, eighty... 368‑E
Reimbursement to counties for pre-school children with handicapping conditions 368‑F
Reimbursement of costs under the early intervention program 369
Application of other provisions
Green check means up to date. Up to date

Accessed:
May 4, 2024

Last modified:
Sep. 22, 2014

§ 365-J’s source at nysenate​.gov

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