N.M. Admin. Code § 6.101.2.10

Current through Register Vol. 35, No. 20, October 22, 2024

Section 6.101.2.10 - FAIR HEARING

A.Request for a fair hearing. A request for a fair hearing shall be made in writing online, via email, or by mailed letter to the director of the NMDVR. Incomplete requests that do not contain all of the required information will not be considered. Requests shall include the following information:

(1) the NMDVR counselor assigned to the case;

(2) the determination being contested; and

(3) the date of the contested determination.

B.Time limitation for request. The request for a fair hearing must be received by the director of the NMDVR within 45 calendar days of the contested determination. Failure to submit the request within 45 calendar days may result in a denial of the requests, as determined by the NMDVR, in its sole discretion.

C.Appointment of a hearing officer. A qualified and impartial hearing officer shall be appointed on a random basis from a qualified pool of hearing officers established jointly by the New Mexico state rehabilitation council and the NMDVR, or by agreement of the applicant or recipient and the director of the NMDVR. The hearing officer shall not be a current employee of the NMDVR.

D.Timing of hearing. The fair hearing shall be held within 60 calendar days of the NMDVR's receipt of the applicant's or recipient's request for review of the contested determination, unless informal resolution of a mediation agreement is achieved prior to the sixtieth calendar day or both parties agree to an extension of time. The time limit may be extended by the hearing officer upon the request of either party for good cause shown.

E.Pre-hearing conference. At least 10 calendar days prior to the date of the fair hearing, the hearing officer shall conduct at least one pre-hearing conference on a date and time agreed upon by both parties. The time limit may be extended by the hearing officer upon the request of either party for good cause shown.

(1) All parties shall attend and participate in a pre-hearing conference.

(2) Failure to attend and participate in a pre-hearing conference may result in dismissal of the action.

(3) At the pre-hearing conference, the hearing officer may take action and make rulings on issues including, but not limited to:

(a) identifying any accommodations needed by the parties, representatives, and witnesses in the hearing, which may include the necessity for hearing or interpreter assistance or the need for a party or witness to appear by phone or video rather than in person;

(b) identifying, simplifying, and clarifying issues and dates directly related to the contested NMDVR determination identified in the fair hearing request;

(c) eliminating irrelevant or non-hearable issues as determined by the hearing officer;

(d) identifying potential witnesses and exhibits from each party and establishing deadlines and procedures for the parties to share witness and exhibit lists and exhibits;

(e) establishing procedural matters pertaining to the conduct of the fair hearing; and

(f) establishing deadlines for pre-hearing motions and responses.

F.Fair hearing process. Fair hearings shall be scheduled and conducted within 60 calendar days of the request for hearing, unless the parties mutually agree to an extension in writing, or the hearing officer extends the time for good cause shown. Fair hearings shall be held in a location and manner that is convenient to the parties.

(1) Fair hearings are not open to the public.

(2) During the fair hearing process, the applicant or recipient may represent themself or may be represented by a guardian, legal counsel, or another advocate of their choice.

(a) All expenses of such representation, including legal fees and travel costs, shall be the responsibility of the applicant or recipient.

(b) The applicant or recipient shall notify the NMDVR in writing of the name and contact information of the designated representative. Authorization for representation may be withdrawn at any time by giving written notice of the withdrawal to the NMDVR.

(3) Each party has certain procedural due process rights during the hearing, and may:

(a) make opening and closing statements;

(b) call and examine witnesses and introduce exhibits;

(c) cross-examine witnesses;

(d) re-direct their witnesses following cross-examination;

(e) impeach any witness; and

(f) rebut any relevant witness.

(4) Oral evidence shall be taken only under oath or affirmation.

(5) The order of presentation for hearings is as follows:

(a) opening of proceedings and disposition of preliminary and pending matters of the hearing officer;

(b) if the hearing officer requires, the applicant or recipient shall submit oral opening statements; otherwise, parties may submit oral opening statements voluntarily;

(c) if the hearing officer requires, the NMDVR shall submit oral opening statements; otherwise, parties may submit oral opening statements voluntarily;

(d) applicant's or recipient's case-in-chief;

(e) the NMDVR's case-in-chief;

(f) applicant's or recipient's rebuttal;

(g) the NMDVR's rebuttal;

(h) if the hearing officer requires, the applicant or recipient shall submit oral or written closing statements; otherwise, parties may submit oral or written closing statements voluntarily;

(i) if the hearing officer requires, the NMDVR shall submit oral or written closing statements; otherwise, parties may submit oral or written closing statements voluntarily; and

(j) closing of the proceedings by the hearing officer.

G.Duties of hearing officer. The hearing officer shall:

(1) conduct a pre-hearing conference no later than 10 calendar days prior to the scheduled fair hearing date, unless extended by agreement of both parties, or for good cause shown.

(2) administer an oath or affirmation to all witnesses before testimony is given.

(3) regulate the course and conduct of the hearing.

(4) maintain decorum during the hearing.

(5) assure that all properly raised and relevant issues are considered.

(6) make rulings on the introduction of testimony and other evidence. The formal Rules of Evidence and Rules of Civil Procedure do not apply but may lend guidance to the hearing officer when making rulings.

(7) request post-hearing statements or documentation from both parties if needed.

(8) ensure that all pre-hearing and hearing proceedings are properly recorded.

(9) create the record on appeal of the case which shall include, but not be limited to;

(a) the recordings of the pre-hearing and hearing proceedings;

(b) all exhibits admitted into the record;

(c) all pleadings made by the parties;

(d) all correspondence related to the pre-hearing(s) and hearing(s) by the parties and the hearing officer; and,

(e) the final written decision.

(10) review the evidence and testimony and issue a decision and order based on the facts presented as the hearing, and the provisions of the approved vocational rehabilitation services portion of the Unified of Combined State Plan, the Rehabilitation Act of 1973, as amended, accompanying federal and state regulations, and NMDVR policies that are consistent with the federal requirements.

(11) prepare a written report that states the findings and grounds for the decision and order. The written report shall be mailed and emailed to both parties within 30 calendar days of the completion of the fair hearing.

H.Burden of proof. The burden of proof at the fair hearing is on the applicant or recipient to prove by a preponderance of evidence that the contested NMDVR determination is in violation of the Unified or Combined State Plan, the Rehabilitation Act of 1973, as amended, accompanying federal and state regulations, or NMDVR policies that are consistent with the federal requirements.

I.Dismissal prior to fair hearing. The hearing officer shall consider a motion for dismissal without a fair hearing. If the hearing officer finds that a motion for dismissal should be granted, they may enter a final order of dismissal which may be appealed in accordance with Section 11 of this rule. The reasons to consider a motion for dismissal are:

(1) lack of jurisdiction;

(2) unripe or moot questions;

(3) failure to pursue the cause by the applicant or recipient;

(4) failure to raise a justiciable issue in the request for hearing;

(5) unnecessary duplication of proceedings, res judicata, or collateral estoppel;

(6) withdrawal of the request for hearing by the applicant or recipient;

(7) failure to appear or participate at the pre-hearing conference or the fair hearing by the applicant or recipient; or

(8) the matter was successfully resolved through informal resolution or a mediation agreement prior to the hearing.

J.Cost of a fair hearing. The NMDVR shall pay the costs of the fair hearing, including the pre-hearing conference. However, the NMDVR shall not be required to pay for any costs related to the representation or travel of the applicant or recipient, or the applicant's or recipient's representative.

K.Impact on provision of service. Pending the decision and order of the hearing officer, the NMDVR shall not suspend, reduce, or terminate services being provided under an IPE, unless such services have been obtained through misrepresentation, fraud, collusion, or criminal conduct on the part of the applicant or recipient or the applicant, as determined by the NMDVR, or recipient requests a suspension, reduction, or termination of services.

L.Implementation of final decision. The decision and order of the hearing officer is binding and shall be implemented pending review of any civil action filed with a court of competent jurisdiction. Either party has the right to contest the decision of the hearing officer by bringing a civil action in any state court of competent jurisdiction or in a district court of the United States with competent jurisdiction without regard to the amount in controversy. The civil action shall be brought within 30 calendar days of the hearing officer's final decision and in accordance with New Mexico Rules of Civil Procedure, District Court Rule 1-074.

M.Cost of civil action litigation. Each party shall bear its own costs for the civil action including, but not limited to, filing costs and attorney fees. The NMDVR shall not be required to pay for any costs related to the representation or travel of the applicant or recipient or the applicant's or recipient's or recipient's representative.

N.M. Admin. Code § 6.101.2.10

Adopted by New Mexico Register, Volume XXXI, Issue 18, September 29, 2020, eff. 9/29/2020, Adopted by New Mexico Register, Volume XXXV, Issue 18, September 24, 2024, eff. 9/24/2024