Current through Register Vol. 35, No. 11, June 11, 2024
Section 7.1.2.29 - BURDEN OF PROOFA. General rule: except as specifically provided for in the following paragraph, in all cases, including but not limited to those arising from suspension, revocation, denial of renewal of license, Intermediate sanctions, civil monetary penalties, emergency suspension, emergency intermediate sanctions, or medicaid provider appeals, the department shall present evidence supporting its decision. The party challenging the department's decision shall then present evidence to show that the department's decision is incorrect. The burden of proving by a preponderance of the evidence the basis for the decision at issue rests with the department.B. Special cases: in cases arising from the denial of initial license and cease and desist orders, the applicant for initial license or the recipient of the cease and desist order shall present evidence supporting the license application, or evidence supporting the legality of operating without a license. The licensing authority shall then present evidence supporting the denial of the application, or evidence of the propriety and of cease and desist order. The burden of proving by a preponderance of the evidence: (1) that the application was improperly denied by the licensing authority and should be approved, or(2) that operation is proper and in accordance with law, rests with the license applicant or recipient of the cease and desist order.7.1.2.29 NMAC - Rp, 7 NMAC 1.2.218, 12/15/09