25-10-143. Advisory opinions — Definition.

25-10-143. Advisory opinions — Definition. (a) As used in this section, “advisory opinion” means a written statement by the Secretary of the Department of Human Services or his or her designee that explains the applicability to a specified set of facts of a pertinent statutory or regulatory provision relating to the provision of medical items or services under the medical assistance program administered by the Department of Human Services. (b)(1) The secretary may issue an advisory opinion at the request of a provider enrolled in the medical assistance program. (2) Except as provided under subsection (h) of this section, the opinion is binding upon the secretary with respect to that provider only. (3) If the secretary cannot respond to the request for an advisory opinion, the secretary shall within thirty (30) days notify the provider that he or she will not be responding to the request for an opinion. (c) A provider may request an advisory opinion concerning: (1) A substantive question or a procedural matter; (2) Questions arising before an audit or investigation concerning a provider's claim for payment or reimbursement; and (3) A hypothetical or projected service plan. (d) The secretary shall not issue an advisory opinion if the request 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, the Attorney General, a criminal investigation, or a civil or criminal proceeding, or if the provider has received a written notice from the secretary or the Medicaid Inspector General that advises the provider of an imminent investigation, audit, suspended claim, or withholding of payment or reimbursement. (e) This section does not supersede a federal regulation, law, requirement, or guidance. (f) The secretary shall adopt a rule establishing the time within which an advisory opinion shall be issued and the criteria for determining the eligibility of a request for departmental response. (g) An advisory opinion represents an expression of the views of the secretary as to the application of laws, rules, and other precedential material to the set of facts specified in the request for an advisory opinion. (h)(1) A previously issued advisory opinion found by the secretary to be in error may be modified or revoked. (2) If the secretary modifies or revokes an advisory opinion, the modification or revocation operates prospectively. (3) A recovery of medical assistance overpayments caused by a provider's reliance on an advisory opinion that is later modified or revoked is prohibited for the period up until the modification or revocation unless the provider is involved in fraud. (4) The department promptly shall notify the provider of a modification or revocation of an advisory opinion. (i) An advisory opinion 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 request.” (j) An advisory opinion shall cite the pertinent law and rule upon which the advisory opinion is based. (k) An advisory opinion or a modification or revocation of a previously issued advisory opinion is a public record.