N.M. Code R. § 7.34.3.16

Current through Register Vol. 35, No. 11, June 11, 2024

Section 7.34.3.16 - DISCIPLINARY ACTIONS AND APPEAL PROCESS

A.Grounds for disciplinary action: Disciplinary action may be taken against a qualified patient, patient-applicant, primary caregiver, or primary caregiver-applicant. Disciplinary action may include revocation, suspension, or denial, summary suspension, summary revocation, and other action. Disciplinary action may be imposed for:

(1) failure to comply with or satisfy any provision of this rule;

(2) falsification or misrepresentation of any material or information submitted to the department;

(3) failing to allow or impeding a monitoring visit by authorized representatives of the department;

(4) failure to adhere to any acknowledgement, verification, or other representation made to the department;

(5) failure to submit or disclose information required by this rule or otherwise requested by the department;

(6) failure to correct any violation of this rule cited as a result of a monitoring visit;

(7) diversion of cannabis or a cannabis-derived product, as determined by the department;

(8) threatening or harming a patient, a medical practitioner, or an employee of the department;

(9) for primary caregivers: conviction of the primary caregiver of any of the disqualifying convictions identified by department rule:

(10) for patients: failure of the patient to satisfy any criterion identified as a prerequisite to eligibility for a condition approved by the department:

(11) for patients: if a certifying provider of the patient determines that the use of cannabis by the patient would more likely than not be detrimental to the patient's health; and

(12) any other basis identified in this rule.

B.Request for hearing: A qualified patient or primary caregiver who is the subject of disciplinary action, or an applicant who has received a notice of contemplated action to deny their application for any reason other than failure to submit a completed application or failure to meet a submittal requirement of this rule, may request a hearing in writing. The appellant shall file the request for hearing within 30 calendar days of the date the action is taken or the notice of contemplated action is received. The request shall:

(1) be properly addressed to the medical cannabis program;

(2) state the requestor's name, address, and telephone numbers; and

(3) include a statement of the issues that the appellant considers relevant to the review of the action.

C.Hearing process:

(1) All formal adjudicatory hearings held pursuant to this regulation shall be conducted by a hearing examiner appointed by the secretary.

(2) Hearings shall be conducted in Santa Fe, New Mexico, or, with the consent of the parties, at another location.

(3) Due to federal and state laws regarding the confidentiality of protected health information, all hearings held pursuant to this section shall be closed to the public.

(4) The hearing shall be recorded on audiotape or other means of sound reproduction.

(5) Any hearing provided for in this rule may be held telephonically, with the consent of the parties.

D.Scheduling: The department shall schedule and hold the hearing no later than 60 calendar days from the date the department receives the appellant's request for hearing. The hearing examiner may extend the 60 day time period for good cause shown, or the parties may extend that period by mutual agreement. The department shall issue notice of the hearing, which shall include:

(1) a statement of the time, place, and nature of the hearing;

(2) a statement of the legal authority and jurisdiction under which the hearing is to be held; and

(3) a short and plain statement of the subject of the hearing.

E.Presentation of evidence: All parties shall be given the opportunity to respond and present evidence and argument on relevant issues.

F.Record of proceeding: The record of the proceeding shall include the following:

(1) all pleadings, motions, and rulings;

(2) evidence and briefs received or considered;

(3) a statement of any matters officially noticed;

(4) offers of proof, objections, and rulings thereon;

(5) proposed findings and conclusions; and

(6) any action recommended by the hearing examiner.

G.Audio recording: A party may request a copy of the audio recording of the proceedings.

H.Procedures and evidence:

(1) a party may be represented by a person licensed to practice law in New Mexico or a non-lawyer representative, or may represent himself or herself;

(2) the rules of evidence as applied in the courts do not apply in these proceedings; any relevant evidence shall be admitted; irrelevant, immaterial, or unduly repetitious evidence may be excluded;

(3) the experience, technical competence, and specialized knowledge of the hearing examiner, the department or the department's staff may be used in the evaluation of evidence;

(4) an appellant's failure to appear at the hearing at the date and time noticed for the hearing shall constitute a default.

I.Conduct of proceeding: Unless the hearing examiner determines a different procedure to be appropriate, the hearing shall be conducted as follows:

(1) the appellant may present an opening statement and the department may present an opening statement or reserve the statement until presentation of its case;

(2) upon conclusion of any opening statements, the appellant shall present his or her case;

(3) upon the conclusion of the appellant's case, the department shall present its case;

(4) upon conclusion of either party's case, the opposing party may present rebuttal evidence; and

(5) after presentation of the evidence by the parties, the parties may present closing arguments.

J.Burden of proof: The appellant bears the burden of establishing by a preponderance of the evidence that the decision made or proposed by the department should be reversed or modified.

K.Continuances: The hearing examiner may grant a continuance for good cause shown. A motion to continue a hearing shall be made at least 10 calendar days before the hearing date.

L.Telephonic hearings:

(1) any party requesting a telephonic hearing shall do so no less than 10 business days prior to the date of the hearing; notice of the telephonic hearing shall be given to all parties and shall include all necessary telephone numbers;

(2) failure of an appellant to provide their correct telephone number or failure to be available at the commencement of the hearing shall be treated as a failure to appear and shall constitute a default;

(3) the in-person presence of some parties or witnesses at the hearing shall not prevent the participation of other parties or witnesses by telephone with prior approval of the hearing examiner.

M.Recommended action and final decision:

(1) the parties may submit briefs including findings of fact and conclusions of law for consideration by the hearing examiner;

(2) no later than 30 calendar days after the last submission by a party, the hearing examiner shall prepare and submit to the secretary a written recommendation of action to be taken by the secretary; the recommendation shall propose sustaining, reversing, or modifying the proposed action of the department;

(3) the secretary shall issue a final written decision accepting or rejecting the hearing examiner's recommendation in whole or in part no later than 30 calendar days after receipt of the hearing examiner's recommendation; the final decision shall identify the final action taken; service of the secretary's final decision shall be made upon the appellant by registered or certified mail;

(4) the final decision or order shall be made a part of the patient or primary caregiver's file with the medical cannabis program.

N.M. Code R. § 7.34.3.16

7.34.3.16 NMAC - Rp, 7.34.3.14 NMAC, 12/30/2010, Amended by New Mexico Register, Volume XXVI, Issue 04, February 27, 2015, eff. 2/27/2015, Amended by New Mexico Register, Volume XXVII, Issue 04, February 29, 2016, eff. 2/29/2016