N.M. Admin. Code § 6.101.2.9

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

Section 6.101.2.9 - MEDIATION

A.Request. A request for mediation 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 following required information shall not be considered:

(1) the name of 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 must be received by the director of the NMDVR within 45 calendar days of the date of the contested determination. Failure to submit the request within 45 calendar days may result in a denial of the request, as determined by the NMDVR, in its sole discretion.

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

D.Duties of mediator. A mediator facilitates discussions between the parties to help the parties come to a mutually agreed upon resolution of disputed issues by:

(1) scheduling the mediation;

(2) explaining how the mediation process works and the confidentially of the process;

(3) communicating with both parties to gather information about the contested issues and helping the parties work through the contestation;

(4) assisting the parties in understanding the applicable laws, precedents, and other established guidelines;

(5) helping the parties to find common ground and resolutions that both parties can accept; and

(6) helping the parties complete the mediation paperwork at the conclusion of the mediation.

E.Mediation process. Mediations shall be scheduled and completed in a timely manner, but not later than 30 calendar days after receipt of the request if there is also a request for fair hearing pending. If no fair hearing request is pending, the mediation shall be completed no later than 45 days of the request.

(1) The mediation shall be held in a location and manner that is convenient to the parties.

(2) Mediation is voluntary on the part of both parties, and either party or the mediator may terminate the mediation at any point in the process for any reason. If the mediation is terminated for any reason, the applicant or recipient may request resolution through a fair hearing.

(3) During the mediation 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.

(4) Both parties shall have the opportunity to submit relevant evidence in the form of documentation or other information in support of their position.

(5) Discussions that occur during mediation shall be kept confidential and shall not be used as evidence in any subsequent fair hearing or civil proceeding. The parties will be required to sign a confidentiality agreement prior to the commencement of the process.

(6) If the parties reach agreement during the mediation, the terms of the agreement shall be described in a written mediation agreement developed by the parties with the assistance of the mediator.

(a) The mediation agreement shall be signed by both parties.

(b) A copy of the mediation agreement shall be mailed or emailed to both parties by the mediator.

(c) A signed mediation agreement is a binding and final resolution of the contested decision.

F.Cost of mediation. The NMDVR shall pay the costs of the mediation up to eight hours. However, the NMDVR shall not be required to pay any costs related to the representation of the applicant or recipient.

G.Impact on provision of services. Pending resolution through mediation, 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, as determined by the NMDVR, or the applicant or recipient requests a suspension, reduction or termination of services.

N.M. Admin. Code § 6.101.2.9

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