Current through Register Vol. 35, No. 11, June 11, 2024
Section 7.31.2.23 - HEARING PROCESS AND PROCEDURESA. RIGHT TO HEARING - SCOPE: Vendors may appeal decisions of the State WIC Office which adversely affect their participation in the program, including but not limited to the following actions:(1) Denial of a vendor's application to participate in the program;(2) Suspension of a vendor's authorization to participate in the program;(3) Termination of a vendor's authorization to participate in the program;(4) Denial of redemption of food instruments submitted to the State WIC Office.(5) The following determinations are not subject to review: Disqualification of a vendor as result of disqualification from the Food Stamp Program, expiration of a contract or agreement with a vendor, and the State Agency's determination regarding participant access.B. NOTICE OF PROPOSED SANCTIONS: Vendors shall be informed in writing of any action adversely affecting their participation in the WIC program. Notice shall be to all parties whose names and addresses are on file by certified mail or personal service. The notice shall:(1) Describe the offense(s) and the proposed sanction(s);(2) Inform the vendor of the effective date of proposed sanction(s) and their duration; and(3) Inform the vendor of the right to request an evidentiary hearing.C. REQUEST FOR HEARING: Hearing requests must be made in writing and mailed to the New Mexico Department of Health, Public Health Division, Family Health Bureau - WIC, 525 Camino de los Marquez, Suite 6, Santa Fe, New Mexico 87501, and received by the State WIC Office within 30 days after the vendor's receipt of the notice of proposed sanctions. Untimely requests may be grounds for dismissal. A request for hearing shall not operate to stay the imposition of proposed sanctions against a vendor. The State WIC Office may, within its discretion, implement proposed sanctions at any time after fifteen (15) days from the date of service of a notice of proposed sanctions upon a vendor.D. PRE-HEARING PROCEDURE:(1) Impartial Hearing Officer: Upon receipt of a timely request for hearing, the Secretary of the Department, or his designee, shall appoint an impartial Hearing Officer to preside over the case. The Hearing Officer shall not have been involved in the action in question, or in any way be affiliated with the State WIC Office. The Hearing Officer should be familiar with the WIC program and procedures, and with evidentiary rules and adjudicatory proceedings. The Hearing Officer need not be an attorney.(2) Scheduling of Hearings: The Hearing Officer shall schedule a hearing on the matter to be held in Santa Fe, and shall provide all parties with written, advance notice of the date, time and place of the hearing, a minimum of seven (7) calendar days prior to the hearing, unless otherwise agreed to. The notice shall identify the proposed Hearing Officer. A hearing date shall be scheduled no later than thirty (30) days after receipt of a timely request for hearing by the State WIC Office.(3) Rescheduling: Either party may, without cause, request that the initial hearing be rescheduled. Subsequent requests to reschedule shall be granted only for good cause or exigent circumstances, upon motion by a party or upon the Hearing Officer's own motion. Upon timely motion, and upon a showing of undue hardship and burden, the Hearing Officer may order the hearing changed to another in-state location. Notice of rescheduling shall be furnished to both parties reasonably in advance of the previously scheduled date.(4) Discovery: (a) Initial discovery - Documents: Upon request, vendors shall have the right to review their case record in advance of the hearing, and shall be furnished copies of requested documents contained therein at cost.(b) Initial discovery -Witnesses: Each party shall disclose to the other orally or in writing the names of prospective witnesses and the general subject matter of their anticipated testimony, not less than three (3) days before the hearing. Affidavits may be presented instead of live testimony, upon a showing that the witness is not available in the state, or that compelling the witness to appear at the hearing would present undue hardship. Such affidavits, to be admissible at the hearing, must be submitted to the opposing party and the Hearing Officer no less than seven (7) days prior to the hearing.(c) Additional discovery in complex cases: Upon written request of a party setting forth reasons why additional discovery may be necessary or desirable, and at the Hearing Officer's discretion, further discovery in the form of document production or informal witness interviews may be permitted. Formal depositions are not allowed. Factors to be weighed in the Hearing Officer's decision concerning whether additional discovery is merited include whether the complexity of fact or law surrounding a particular case requires further discovery to reasonably assure a full and fair hearing, the timeliness of the request, and whether such requests granted would unreasonably delay the hearing, or the rendering of a final decision. If additional discovery is allowed, the Hearing Officer may reschedule the hearing in accordance with paragraph (3) of sub-section D of 7.31.2.23 NMAC above. Rescheduling for discovery purposes tolls the time period for the Hearing Officer's rendering of a final decision in the matter, as set forth in sub-section F of 7.31.2.23 NMAC below.(5) Motions and pre-hearing conferences: Either party may file motions at least ten (10) days in advance of the hearing which are intended to narrow or dispose of anticipated issues. The Hearing Officer may rule on such motions as a preliminary matter at the hearing itself, or may set a pre-hearing conference, if it would serve to narrow or dispose of issues in advance of the hearing. Copies of all motions shall be mailed to the opposing party at or before the time of mailing to the Hearing Officer.E. HEARING PROCEDURE:(1) Right to counsel: Vendors may represent themselves at the hearing, or may be represented by legal counsel or other designated representative, provided such representative has made a written entry of appearance prior to the hearing.(2) Hearing Officer powers and duties: The Hearing Officer shall have the power to issue subpoenas and compel the appearance of witnesses, shall administer oaths to witnesses, take testimony, rule on the admissibility of evidence, schedule pre-hearing conferences if helpful to narrow issues, rule on motions, schedule hearings, and otherwise assure full development of the issues. The Hearing Officer may consolidate hearings of different parties if they involve common questions of law and fact. Before rendering a final decision, the Hearing Officer shall not communicate with any party concerning the subject matter of the hearing outside of the presence of the opposing party. The Hearing Officer is responsible for recording the proceedings. A Hearing Officer may not be disqualified except by agreement of both parties, or upon the Hearing Officer's own motion.(3) Conduct of the Hearing: Hearings shall be conducted in an orderly manner such that both parties shall have the opportunity to present witnesses, to establish all facts pertinent to the case or defense, to introduce exhibits and documentary evidence through qualified witnesses, to advance arguments without undue interference, to confront, impeach, and cross-examine witnesses, and to refute adverse testimony or evidence.(4) Procedure and evidence: The technical rules of evidence and civil procedure shall not apply in these hearings. Where such rules would be helpful to an understanding or resolution of a point or issue, non-binding reference to the Federal Rules of Evidence and the Federal Rules of Civil Procedure may be permitted. The Hearing Officer may admit all relevant evidence including hearsay, if it is of such a nature that ordinary, reasonable and prudent persons would rely on the information in the conduct of serious business affairs. The Hearing Officer may consider the hearsay nature of testimony in assessing the weight it should be accorded.(5) Mechanics and burden of proof: The State WIC Office shall have the burden of proving by a preponderance of the evidence one or more of the allegations cited in the notice of proposed sanctions. The State WIC Office may make an opening statement and shall present its evidence first. Either party may invoke the rule. Both parties may make objections or raise defenses generally recognized under law in civil cases. The State WIC Office is entitled to a representative's presence in the hearing room throughout the proceeding, even if that representative will testify in the hearing. The vendor may make an opening statement either before or after the State WIC Office's evidence is presented, and shall present its evidence after the State WIC Office rests its case. Oral evidence shall be taken only upon oath or affirmation. In the discretion of the Hearing Officer, closing arguments may be made orally after the vendor's presentation of the case, or in writing within a time specified by the Hearing Officer. Hearings shall be recorded by a sound recording device.(6) Failure to appear: Failure of a party to appear at the hearing without good cause shall constitute a default, and the Hearing Officer shall so inform both parties.(7) Open hearings: Hearings are open to the public unless all parties agree otherwise.F. HEARING OFFICER'S DECISION: The Hearing Officer shall, as soon as practicable after the conclusion of the hearing and submission of closing arguments, render a written decision in the matter, state the basis for the decision, and specify the effective date of the decision. The Hearing Officer's decision shall be based exclusively on evidence and testimony introduced at the hearing. The decision need not contain findings of fact or conclusions of law. The Hearing Officer's decision shall be final. The Hearing Officer shall, within 60 days of the date of the State WIC Office's receipt of a request for hearing from a vendor, issue written notification of the decision in the matter. If the hearing in the matter is continued for any reason from its originally scheduled setting, this time period is tolled for the period of the continuance.G. JUDICIAL REVIEW: Any party may appeal the Hearing Officer's final decision pursuant to the provisions of Section 39-3-1.1 NMSA 1978. Filing for judicial review does not stay or dissolve enforcement of the final decision. The reviewing court shall set aside the final order only if it is found to be: (1) Arbitrary, capricious, or an abuse of discretion;(2) Not supported by substantial evidence in the record;(3) In excess of the authority of the State WIC Office; or(4) Otherwise not in accordance with law.8-30-89, 10-31-96; 7.31.2.23 NMAC - Rn, 7 NMAC 31.2.23, A, 5-31-2000