N.M. Admin. Code § 8.352.3.11

Current through Register Vol. 35, No. 21, November 5, 2024

Section 8.352.3.11 - PRE-HEARING PROCEDURE

A.Notice of hearing: Not less than 30 calendar days before the provider administrative hearing, written notice is given to all parties involved of the time, date, and place of the hearing. If an accommodation is necessary, the party must notify the assigned ALJ at least 10 calendar days prior to the hearing. The FHB includes in its written notice to the provider an explanation of the HSD provider administrative hearing process and procedures, and informs the provider HSD does not pay fees or costs incurred by the provider as a result of the provider administrative hearing or district court appeals of the final HSD provider administrative hearing decision.

B.Postponement: A provider may request, and is entitled to receive, one postponement of the scheduled provider administrative hearing, as long as it does not interfere with the 120 calendar day timeframe. Requests for more than one postponement are considered on a case-by-case basis at the ALJ's discretion.

C.Expedited hearing: The parties may request an expedited hearing in cases involving a medical assistance program (MAP) eligible recipient's health, safety, or service availability concerns. The request must be made in writing and state in detail the reasons why an expedited hearing is necessary. Granting an expedited hearing is at the discretion of the ALJ.

D.Group hearing: The ALJ may respond to a series of individual requests for hearings by conducting a single group hearing. In all group hearings, the HSD administrative hearing process governing an individual hearing is followed. Each provider, his or her authorized representative or legal counsel may present his or her case individually. If a group hearing is arranged, each affected provider has the right to withdraw from the group hearing in favor of an individual HSD provider administrative hearing.

E. Informal resolution conference: The parties are encouraged to hold an informal resolution conference before the provider administrative hearing to discuss the issues involved in the hearing. The informal resolution conference is optional and does not delay or replace the provider administrative hearing process. Conference participants may include the provider, his or her authorized representative or legal counsel, MAD or other responsible agency representatives, and the MAD selected claims and provider enrollment processing contractor. The purpose of the informal resolution conference is to informally review MAD's action and to determine whether the issues can be resolved by mutual agreement. The issues to be decided at the provider administrative hearing may also be clarified or further defined. Regardless of the outcome of the informal resolution conference, a provider administrative hearing is still held, unless the provider submits a written withdrawal of the request of the provider administrative hearing.

F.Pre-hearing conference: The assigned ALJ schedules a pre-hearing conference within 30 calendar days of the receipt of the provider's request for a HSD provider administrative hearing. A pre-hearing conference is an informal proceeding and may occur telephonically.

(1)Purpose of conference: The purposes of the pre-hearing conference include, but are not limited to:

(a) expediting the disposition of the action;

(b) identification, clarification, formulation and simplification of issues;

(c) resolution of some or all issues;

(d) exchange of documents and information;

(e) preparing stipulations of fact to avoid unnecessary introduction of evidence at the hearing;

(f) review of audit findings;

(g) reconsideration of a suspension or withholding of payments;

(h) identifying the number of witnesses; and

(i) facilitating the settlement of the case.

(2)Scheduling: A scheduling order shall be entered into, which shall set the due date for the summary of evidence (SOE), due date for exhibits, and sets the date for the provider administrative hearing. The order shall be issued as soon as practicable, but in any event within 30 calendar days of the request for provider administrative hearing.

(3)Continuations and rescheduling: A pre-hearing conference may be continued or rescheduled with the consent of all parties after the 30 calendar day time limit.

(4)Settlements, stipulations and admissions: No offer of settlement made in a pre-hearing conference is admissible as evidence at the later provider administrative hearing. Stipulations and admissions are binding and may be used as evidence at the provider administrative hearing. Any stipulation, settlement or consent order reached between the parties is written and signed by the ALJ and all parties to the provider administrative hearing.

(5)Timeliness: The pre-hearing conference will not delay or replace the provider administrative hearing itself. Pre-hearing conferences may include the provider, his or her authorized representative or legal counsel, MAD or other responsible agency representatives, and the MAD selected claims and provider enrollment processing contractor. Subsequent to the conference or in the event that any of the parties to the provider administrative hearing fail to participate, the scheduled hearing is still held, unless the provider submits a written request for withdrawal.

(6)Unresolved issues: If all matters in controversy are not resolved at the pre-hearing conference, the ALJ sets a provider administrative hearing date within 30 calendar days of the last conference date, or at a later time agreed to by all parties, recognizing the 120 calendar day timeframes.

(7)Written summaries: The ALJ may request the parties to submit a written summary of all issues resolved at the pre-hearing conference.

(8)Pre-hearing order: The may, at his or her sole discretion, prepare or ask the parties to prepare a pre-hearing order. The pre-hearing order may contain:

(a) statements of any contested facts and issues;

(b) stipulation of matters not in dispute;

(c) list of witnesses to be called and the subject of their testimony;

(d) list of exhibits;

(e) discovery directives; or

(f) other matters relevant to the issues.

(9)Points of law: The ALJ may direct the parties to submit memoranda on points of law to inform the final decision, and may dictate the length and scope of the submissions.

G. Summary of evidence (SOE): A summary of evidence (SOE) is a document submitted by MAD that provides preliminary information concerning the basis of its or its selected claims and provider enrollment processing contractor's action. The SOE may be amended by MAD at any point prior to the pre-hearing if the ALJ and the provider, his or her authorized representative or legal counsel receives copies of the amended SOE at least two working days of the pre-hearing conference.

(1) The SOE must be provided at least 10 working days prior to the pre-hearing conference or if the pre-hearing conference is not held, within 10 working days prior to the scheduled provider administrative hearing date.

(2) The failure of MAD to timely provide the SOE may, at the ALJ's discretion, result in its exclusion or a continuance of the hearing.

(3) MAD staff or its designee is responsible for the preparation of the SOE and coordination of parties and witnesses. MAD is responsible for the submission of the SOE to all parties.

(4) The summary of evidence shall contain:

(a) the provider's name, telephone number and address and the status of any previous or concurrent appeal through the MAD or its selected claims and provider enrollment processing contractor;

(b) the action, proposed action or inaction being appealed;

(c) information on which the action or proposed action is based with supporting documentation and correspondence; and

(d) applicable federal and state law, regulations, statutes, rules or any combination of these.

H.Availability of provider evidence:

(1) The provider, his or her authorized representative or legal counsel will provide at least ten calendar days prior to the hearing to the FHB assigned ALJ any document to be introduced as evidence at the pre-hearing conference. The SOE may be amended by the provider, his or her authorized representative or legal counsel at any point prior to the pre-hearing if the ALJ and MAD receive copies of the amended SOE at least within two working days of the pre-hearing conference. The FHB will forward to the MAD administrative hearings unit copies of such evidence. MAD will then make these available to its selected claims and provider enrollment processing contractor.

(2) Failure of the provider, his or her authorized representative or legal counsel to timely provide the documentary evidence may result in its exclusion or a continuance of the provider administrative hearing at the discretion of the ALJ.

I.Availability of information: MAD must:

(1) provide, on request, in a timely manner and without charge, any documents in its possession concerning the underlying action, that are not already in the provider's possession, and that are necessary for a provider to decide whether to request a hearing or to prepare for a provider administrative hearing; and

(2) allow the provider, his or her authorized representative or legal counsel to examine all documents to be used at the provider administrative hearing at a reasonable time before the date of the provider administrative hearing and during such hearings; documents or records which the provider would not otherwise have an opportunity to challenge or contest, may not be introduced at the provider administrative hearing or be taken into consideration by the ALJ.

N.M. Admin. Code § 8.352.3.11

8.352.3.11 NMAC - N, 1-1-14