Current through Register Vol. 35, No. 18, September 24, 2024
A. The
denial of any claim for retirement benefits may be appealed by a claimant. A
refund or withdrawal of a member's contributions causes the forfeiture of
service credit and shall result in the automatic dismissal of an appeal and the
issuance of notice of dismissal. The appeal shall be initiated by receipt by
PERA of a notice of appeal within ninety (90) days of the date of the letter in
which the written notification to the claimant of the denial. The notice of
appeal must state the reasons for claiming the denial is improper. If the
claimant fails to submit a notice of appeal as provided herein, the initial
denial of any claim shall constitute the final order of the board.
B. The appeal shall be heard by a hearing
officer designated to represent the board unless otherwise provided by the
board or board rules.
C. Procedure.
(1) PERA's office of general counsel will
establish internal procedures for processing appeals, within the parameters set
by this rule.
(2) Discovery and
evidence.
(a) Following the filing of an
appeal, the parties must submit to the hearing officer, with a copy to the
other parties, including PERA, at least fifteen (15) days prior to the
scheduled hearing, any documentary evidence he or she may wish to present for
consideration at the de novo hearing. The hearing officer may grant a request
for extension of time to submit documentary evidence for good cause, if such
extension is not prejudicial to another party. This documentary evidence shall
include all documents that will be introduced as exhibits at the hearing.
Failure to comply with the requirements of this paragraph may result in the
consideration of the appeal without the documentary evidence.
(b) At the same time documentary evidence is
due to be submitted, PERA may, but is not required to file a written response
to claimant's notice of appeal.
(c)
Upon written request of any party, the parties shall provide to the other
parties the names and addresses of persons that may be called as witnesses at
the hearing.
(d) Pre-hearing
discovery permitted by the rules of civil procedure for the district courts in
New Mexico shall be allowed as authorized by the hearing officer. Upon the
request of any party in writing, the hearing officer may authorize
depositions.
(e) Upon request, the
claimant shall provide to the attorney for the association authorizations for
the release of records regarding the claimant's health care and employment
(whether self-employed or as an employee or an independent
contractor).
(f) The rules of
evidence do not apply, but the hearing officer may admit all relevant evidence,
which in the opinion of the hearing officer, is the best evidence most
reasonably obtainable, having due regard to its necessity, competence,
availability and trustworthiness. Such evidence shall be given the weight the
hearing officer deems appropriate.
(g) The hearing officer may, upon good cause
shown, remand the matter back to the disability review committee or the
association for reconsideration.
(3) Hearing.
(a) A hearing shall be held within sixty (60)
days of receipt of the notice of appeal unless the parties mutually agree to an
extension of time and the extension is approved in writing by the hearing
officer. The parties shall be given at least thirty (30) days written notice of
the scheduled hearing.
(b) The
board's authority to issue subpoenas is delegated to the hearing officer for
the purpose of obtaining evidence or testimony not otherwise
available.
(c) The board's
authority to administer oaths is delegated to the hearing officer for the
purpose of conducting the hearing.
(d) The parties have the right to present
argument and evidence orally, to present or cross-examine witnesses, and to be
accompanied by counsel.
(e) Failure
of the claimant or his or her representative to appear at the hearing, without
prior approval from the hearing officer, shall result in automatic final denial
of any claims previously asserted.
(f) If the claimant or his or her
representative requests rescheduling of a hearing so late that additional costs
are incurred, any additional costs incurred shall be assessed against the
claimant.
(4) Burden of
persuasion. Unless otherwise established by law, the claimant has the burden of
proving by a preponderance of the evidence the facts relied upon to show he or
she is entitled to the benefit denied.
(5) Record. The hearing shall be recorded by
a certified court reporter, and copies of all evidence offered shall be
maintained by the association for a period of not less than five (5) years. Any
party desiring a copy of the transcript of the proceedings shall be responsible
for paying the cost, if any, of preparing such copy. The appellant shall make
arrangements with the association for the preparation of transcripts for appeal
to the district court.
(6)
Recommended decision.
(a) The hearing
officer's recommended decision shall be based upon the evidence adduced at the
hearing and shall be issued by the hearing officer within sixty (60) days
following the close of the record.
(b) The hearing officer shall propose
findings of fact and conclusions of law as part of the recommended decision to
the board.
(7)
Exceptions to recommended decision.
(a) The
parties to a proceeding may file with the board exceptions to the hearing
officer's recommended decision within fifteen (15) days of the date of issuance
of the recommended decision. Upon the written request of a party, and for good
cause shown, the hearing officer may extend the time to file
exceptions.
(b) Copies of such
exceptions and any briefs shall be served on all parties and the hearing
officer, and a statement of such service shall be filed with the
exceptions.
(c) Exceptions to a
hearing officer's recommended decision shall cite the precise substantive or
procedural issue to which exceptions are taken and shall be based only on the
evidence and arguments presented at the hearing.
(d) Any exception not specifically made shall
be considered waived. Any exception that fails to comply with the foregoing
requirements may be disregarded.
(e) The hearing officer may file with the
board a response to any exceptions filed within fifteen (15) days of the date
of filing of the exceptions and shall serve copies on all parties.
D. Final action by the
board.
(1) The board shall consider the
hearing officer's recommended decision, exceptions and any supporting briefs to
the recommended decision, and the hearing officer's response to the exceptions,
if any. The board may review all of the record made before the hearing
officer.
(2) The board shall not
consider any additional oral argument, evidence or affidavits not in the record
before the hearing officer, or pleadings not filed in accordance with these
rules.
(3) The board may request
that the hearing officer be present at the time the board reviews a recommended
decision issued by a hearing officer and may discuss the recommended decision
with the hearing officer. The board members may also discuss the recommended
decision among themselves and with legal counsel to the board.
(4) The board's final action shall be
rendered no later than 180 days from the date of the hearing officer's
recommended decision. Board members who need additional time to review the
record before taking final action may request of the board chair that
additional time for review be given. If additional time is requested, the
deadline for the board's final action shall be extended for one
month.
(5) Ex parte communication
with board members or hearing officers concerning a decision that is on appeal
is prohibited.
(6) The board may
remand a recommended decision to the hearing officer for additional findings,
conclusions, clarification or the taking of additional evidence. Such a remand
shall restart the time frames contained in this rule.
(7) The board shall approve, disapprove or
modify the recommended decision, and shall enter a final order concerning the
matter being appealed. The board may modify the proposed conclusions of law
based on the proposed findings of fact. If the board wishes to modify the
proposed findings of fact, it may do so only after review of the record before
the hearing officer. The board shall provide a reasoned basis for changing the
hearing officer's recommendation.