Current through Register Vol. 35, No. 18, September 24, 2024
A. A final
written decision of the director which results in a denial of a claim for
retirement-related benefits or a recommendation of the medical review committee
for a denial of an application for disability or termination of disability
benefits may be appealed by an affected member.
B. The appeal shall be initiated by the
affected party serving on the director a notice of appeal within 30 days of the
date of the letter in which the member received notice of the final decision or
recommendation. The notice of appeal must state the reasons for claiming the
decision or recommendation is improper. If the claimant fails to submit a
notice of appeal as provided herein, the decision or recommendation shall
become final.
C. The appeal shall
be heard by a hearing officer designated by the board, unless otherwise
provided by the board.
D.
Procedure.
(1) The 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 copies separately addressed to the educational
retirement board's (ERB) office of general counsel, at least 15 days prior to
the scheduled hearing, any documentary evidence a party 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 provision may result in the
appeal proceeding without consideration of the documentary evidence.
(b) At the same time documentary evidence is
due to be submitted, the ERB may, but is not required to, file a written
response to claimant's notice of appeal.
(c) The parties shall provide to the other
parties the names and addresses of persons that may be called as witnesses at
the hearing.
(d) Upon the written
request of any party, pre-hearing discovery permitted by the rules of civil
procedure for the state district courts in New Mexico may be allowed as
authorized by the hearing officer.
(e) Upon request, the claimant shall provide
to the director authorizations for the release of records regarding employment
(whether self-employed or as an employee or an independent contractor) and, in
the case of a disability appeal, the claimant's health care records.
(f) The rules of evidence do not apply, but
the hearing officer may admit all relevant evidence which in the hearing
officer's opinion 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 director or
the medical review committee for reconsideration.
(3) Hearing.
(a) A hearing shall be held within 90 days of
receipt of the notice of appeal unless the parties agree to an extension of
time and the extension is approved in writing by the hearing officer. The
hearing officer also may grant an extension upon good cause shown by one party,
without the agreement of other parties. The parties shall be given at least 30
days written notice of the scheduled hearing. The hearing shall be held in
Santa Fe.
(b) A hearing involving
the denial of disability benefits shall not be open to the public.
(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 a New Mexico licensed attorney.
(e) The parties shall appear in person at the
hearing, except as provided in this rule. The claimant may appear by telephone
or video conference when it is difficult or impossible for the claimant to
appear in person. A claimant who wishes to appear by telephone or video
conference shall submit a written request to the hearing officer at least five
days prior to the hearing stating the reason(s) why it is difficult or
impossible for the claimant to appear in person. Failure of the party bringing
the appeal or that party's representative to appear in person or by telephone
or video conference at the hearing, without prior approval from the hearing
officer, shall result in automatic final denial of the appeal and any claims
previously asserted. Witnesses may appear by telephone or video conference if
approved by the hearing officer.
(f) If the party bringing the appeal or that
party's representative requests rescheduling of a hearing so close to the time
of the hearing that additional costs are incurred, any such additional costs
may be assessed against that party, such as court reporting or other
costs.
(4) Burden of
persuasion. Unless otherwise established by law, the party bringing the appeal
has the burden of proving by a preponderance of the evidence the facts relied
upon to show that such party is entitled to relief or the benefit
denied.
(5) Record. The hearing
shall be recorded, and copies of all evidence offered shall be maintained by
the director for a period of five years. Any party desiring a transcript of the
proceedings shall be responsible for paying the cost, if any, of preparing such
transcript. A party appealing the decision of the board to the district court
shall make arrangements with the director for the preparation of transcripts
for that appeal.
(6) Written
closing arguments. If any party requests permission to file a written closing
argument, the hearing officer may permit all parties to file written closing
arguments and shall set a time for the simultaneous filing of written closing
arguments.
(7) Recommended
decision.
(a) The hearing officer shall
prepare a recommended decision for the board's consideration. The hearing
officer shall provide the parties a copy of the recommended decision upon its
completion. The hearing officer's recommended decision shall be based upon the
evidence adduced at the hearing and shall be issued within 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.
(8) Exceptions to recommended decision.
(a) The parties may file exceptions to the
hearing officer's recommended decision with the board within 15 days of the
date of issuance of the recommended decision. Any other party may file a
response to exceptions within 15 days of the date such exceptions were filed.
Upon the written request of a party, and for good cause shown, the hearing
officer may extend the time to file exceptions and responses.
(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 solely on the evidence and
arguments presented at the hearing. Any exception that fails to comply with the
foregoing requirements may be disregarded.
(d) The hearing officer may file with the
board a response to any exceptions filed within 15 days of the date of filing
of the exceptions and shall serve copies of the response on all
parties.
E.
Final action by the board.
(1) The board shall
consider the hearing officer's recommended decision, any exceptions to the
recommended decision together with supporting briefs, 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 and may discuss the recommended decision with
the hearing officer. Board deliberations regarding the recommended decision and
consultations with counsel to the board shall occur in closed session in
accordance with the Open Meetings Act.
(4) The board's final action shall be
rendered in an open meeting no later than 180 days after the date the hearing
officer's recommended decision was issued. Board members who need additional
time to review the record before taking final action may ask the board chairman
for additional time to complete the review. If additional time is requested,
the deadline for the board's final action shall be extended until the next
regularly scheduled board meeting.
(5) Ex parte communication with board members
or the hearing officer 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.
F. A refund of a member's contributions
pending appeal shall result in the forfeiture of service credit and the
automatic dismissal of an appeal and issuance of a notice of
dismissal.