Current through Register Vol. 35, No. 18, September 24, 2024
A.
Request for a fair hearing. A request for a fair hearing shall be
made in writing online, via email, or by mailed letter to the director of the
NMDVR. Incomplete requests that do not contain all of the required information
will not be considered. Requests shall include the following information:
(1) the NMDVR counselor assigned to the
case;
(2) the determination being
contested; and
(3) the date of the
contested determination.
B.
Time limitation for request.
The request for a fair hearing must be received by the director of the NMDVR
within 45 calendar days of the contested determination. Failure to submit the
request within 45 calendar days may result in a denial of the requests, as
determined by the NMDVR, in its sole discretion.
C.
Appointment of a hearing
officer. A qualified and impartial hearing officer shall be appointed on
a random basis from a qualified pool of hearing officers established jointly by
the New Mexico state rehabilitation council and the NMDVR, or by agreement of
the applicant or recipient and the director of the NMDVR. The hearing officer
shall not be a current employee of the NMDVR.
D.
Timing of hearing. The fair
hearing shall be held within 60 calendar days of the NMDVR's receipt of the
applicant's or recipient's request for review of the contested determination,
unless informal resolution of a mediation agreement is achieved prior to the
sixtieth calendar day or both parties agree to an extension of time. The time
limit may be extended by the hearing officer upon the request of either party
for good cause shown.
E.
Pre-hearing conference. At least 10 calendar days prior to the
date of the fair hearing, the hearing officer shall conduct at least one
pre-hearing conference on a date and time agreed upon by both parties. The time
limit may be extended by the hearing officer upon the request of either party
for good cause shown.
(1) All parties shall
attend and participate in a pre-hearing conference.
(2) Failure to attend and participate in a
pre-hearing conference may result in dismissal of the action.
(3) At the pre-hearing conference, the
hearing officer may take action and make rulings on issues including, but not
limited to:
(a) identifying any accommodations
needed by the parties, representatives, and witnesses in the hearing, which may
include the necessity for hearing or interpreter assistance or the need for a
party or witness to appear by phone or video rather than in person;
(b) identifying, simplifying, and clarifying
issues and dates directly related to the contested NMDVR determination
identified in the fair hearing request;
(c) eliminating irrelevant or non-hearable
issues as determined by the hearing officer;
(d) identifying potential witnesses and
exhibits from each party and establishing deadlines and procedures for the
parties to share witness and exhibit lists and exhibits;
(e) establishing procedural matters
pertaining to the conduct of the fair hearing; and
(f) establishing deadlines for pre-hearing
motions and responses.
F.
Fair hearing process. Fair
hearings shall be scheduled and conducted within 60 calendar days of the
request for hearing, unless the parties mutually agree to an extension in
writing, or the hearing officer extends the time for good cause shown. Fair
hearings shall be held in a location and manner that is convenient to the
parties.
(1) Fair hearings are not open to the
public.
(2) During the fair hearing
process, the applicant or recipient may represent themself or may be
represented by a guardian, legal counsel, or another advocate of their choice.
(a) All expenses of such representation,
including legal fees and travel costs, shall be the responsibility of the
applicant or recipient.
(b) The
applicant or recipient shall notify the NMDVR in writing of the name and
contact information of the designated representative. Authorization for
representation may be withdrawn at any time by giving written notice of the
withdrawal to the NMDVR.
(3) Each party has certain procedural due
process rights during the hearing, and may:
(a) make opening and closing
statements;
(b) call and examine
witnesses and introduce exhibits;
(c) cross-examine witnesses;
(d) re-direct their witnesses following
cross-examination;
(e) impeach any
witness; and
(f) rebut any relevant
witness.
(4) Oral
evidence shall be taken only under oath or affirmation.
(5) The order of presentation for hearings is
as follows:
(a) opening of proceedings and
disposition of preliminary and pending matters of the hearing
officer;
(b) if the hearing officer
requires, the applicant or recipient shall submit oral opening statements;
otherwise, parties may submit oral opening statements voluntarily;
(c) if the hearing officer requires, the
NMDVR shall submit oral opening statements; otherwise, parties may submit oral
opening statements voluntarily;
(d)
applicant's or recipient's case-in-chief;
(e) the NMDVR's case-in-chief;
(f) applicant's or recipient's
rebuttal;
(g) the NMDVR's
rebuttal;
(h) if the hearing
officer requires, the applicant or recipient shall submit oral or written
closing statements; otherwise, parties may submit oral or written closing
statements voluntarily;
(i) if the
hearing officer requires, the NMDVR shall submit oral or written closing
statements; otherwise, parties may submit oral or written closing statements
voluntarily; and
(j) closing of the
proceedings by the hearing officer.
G.
Duties of hearing officer.
The hearing officer shall:
(1) conduct a
pre-hearing conference no later than 10 calendar days prior to the scheduled
fair hearing date, unless extended by agreement of both parties, or for good
cause shown.
(2) administer an oath
or affirmation to all witnesses before testimony is given.
(3) regulate the course and conduct of the
hearing.
(4) maintain decorum
during the hearing.
(5) assure that
all properly raised and relevant issues are considered.
(6) make rulings on the introduction of
testimony and other evidence. The formal Rules of Evidence and Rules of Civil
Procedure do not apply but may lend guidance to the hearing officer when making
rulings.
(7) request post-hearing
statements or documentation from both parties if needed.
(8) ensure that all pre-hearing and hearing
proceedings are properly recorded.
(9) create the record on appeal of the case
which shall include, but not be limited to;
(a) the recordings of the pre-hearing and
hearing proceedings;
(b) all
exhibits admitted into the record;
(c) all pleadings made by the
parties;
(d) all correspondence
related to the pre-hearing(s) and hearing(s) by the parties and the hearing
officer; and,
(e) the final written
decision.
(10) review
the evidence and testimony and issue a decision and order based on the facts
presented as the hearing, and the provisions of the approved vocational
rehabilitation services portion of the Unified of Combined State Plan, the
Rehabilitation Act of 1973, as amended, accompanying federal and state
regulations, and NMDVR policies that are consistent with the federal
requirements.
(11) prepare a
written report that states the findings and grounds for the decision and order.
The written report shall be mailed and emailed to both parties within 30
calendar days of the completion of the fair hearing.
H.
Burden of proof. The burden
of proof at the fair hearing is on the applicant or recipient to prove by a
preponderance of evidence that the contested NMDVR determination is in
violation of the Unified or Combined State Plan, the Rehabilitation Act of
1973, as amended, accompanying federal and state regulations, or NMDVR policies
that are consistent with the federal requirements.
I.
Dismissal prior to fair
hearing. The hearing officer shall consider a motion for dismissal
without a fair hearing. If the hearing officer finds that a motion for
dismissal should be granted, they may enter a final order of dismissal which
may be appealed in accordance with Section 11 of this rule. The reasons to
consider a motion for dismissal are:
(1) lack
of jurisdiction;
(2) unripe or moot
questions;
(3) failure to pursue
the cause by the applicant or recipient;
(4) failure to raise a justiciable issue in
the request for hearing;
(5)
unnecessary duplication of proceedings, res judicata, or collateral
estoppel;
(6) withdrawal of the
request for hearing by the applicant or recipient;
(7) failure to appear or participate at the
pre-hearing conference or the fair hearing by the applicant or recipient;
or
(8) the matter was successfully
resolved through informal resolution or a mediation agreement prior to the
hearing.
J.
Cost
of a fair hearing. The NMDVR shall pay the costs of the fair hearing,
including the pre-hearing conference. However, the NMDVR shall not be required
to pay for any costs related to the representation or travel of the applicant
or recipient, or the applicant's or recipient's representative.
K.
Impact on provision of
service. Pending the decision and order of the hearing officer, the
NMDVR shall not suspend, reduce, or terminate services being provided under an
IPE, unless such services have been obtained through misrepresentation, fraud,
collusion, or criminal conduct on the part of the applicant or recipient or the
applicant, as determined by the NMDVR, or recipient requests a suspension,
reduction, or termination of services.
L.
Implementation of final
decision. The decision and order of the hearing officer is binding and
shall be implemented pending review of any civil action filed with a court of
competent jurisdiction. Either party has the right to contest the decision of
the hearing officer by bringing a civil action in any state court of competent
jurisdiction or in a district court of the United States with competent
jurisdiction without regard to the amount in controversy. The civil action
shall be brought within 30 calendar days of the hearing officer's final
decision and in accordance with New Mexico Rules of Civil Procedure, District
Court Rule 1-074.
M.
Cost of
civil action litigation. Each party shall bear its own costs for the
civil action including, but not limited to, filing costs and attorney fees. The
NMDVR shall not be required to pay for any costs related to the representation
or travel of the applicant or recipient or the applicant's or recipient's or
recipient's representative.
