Current through Register Vol. 35, No. 18, September 24, 2024
A.
RIGHT TO HEARING - SCOPE:
Vendors may appeal decisions of the State WIC Office which adversely affect
their participation in the program, including but not limited to the following
actions:
(1) Denial of a vendor's application
to participate in the program;
(2)
Suspension of a vendor's authorization to participate in the program;
(3) Termination of a vendor's authorization
to participate in the program;
(4)
Denial of redemption of food instruments submitted to the State WIC
Office.
(5) The following
determinations are not subject to review: Disqualification of a vendor as
result of disqualification from the Food Stamp Program, expiration of a
contract or agreement with a vendor, and the State Agency's determination
regarding participant access.
B.
NOTICE OF PROPOSED
SANCTIONS: Vendors shall be informed in writing of any action adversely
affecting their participation in the WIC program. Notice shall be to all
parties whose names and addresses are on file by certified mail or personal
service. The notice shall:
(1) Describe the
offense(s) and the proposed sanction(s);
(2) Inform the vendor of the effective date
of proposed sanction(s) and their duration; and
(3) Inform the vendor of the right to request
an evidentiary hearing.
C.
REQUEST FOR HEARING: Hearing
requests must be made in writing and mailed to the New Mexico Department of
Health, Public Health Division, Family Health Bureau - WIC, 525 Camino de los
Marquez, Suite 6, Santa Fe, New Mexico 87501, and received by the State WIC
Office within 30 days after the vendor's receipt of the notice of proposed
sanctions. Untimely requests may be grounds for dismissal. A request for
hearing shall not operate to stay the imposition of proposed sanctions against
a vendor. The State WIC Office may, within its discretion, implement proposed
sanctions at any time after fifteen (15) days from the date of service of a
notice of proposed sanctions upon a vendor.
D.
PRE-HEARING PROCEDURE:
(1) Impartial Hearing Officer: Upon receipt
of a timely request for hearing, the Secretary of the Department, or his
designee, shall appoint an impartial Hearing Officer to preside over the case.
The Hearing Officer shall not have been involved in the action in question, or
in any way be affiliated with the State WIC Office. The Hearing Officer should
be familiar with the WIC program and procedures, and with evidentiary rules and
adjudicatory proceedings. The Hearing Officer need not be an
attorney.
(2) Scheduling of
Hearings: The Hearing Officer shall schedule a hearing on the matter to be held
in Santa Fe, and shall provide all parties with written, advance notice of the
date, time and place of the hearing, a minimum of seven (7) calendar days prior
to the hearing, unless otherwise agreed to. The notice shall identify the
proposed Hearing Officer. A hearing date shall be scheduled no later than
thirty (30) days after receipt of a timely request for hearing by the State WIC
Office.
(3) Rescheduling: Either
party may, without cause, request that the initial hearing be rescheduled.
Subsequent requests to reschedule shall be granted only for good cause or
exigent circumstances, upon motion by a party or upon the Hearing Officer's own
motion. Upon timely motion, and upon a showing of undue hardship and burden,
the Hearing Officer may order the hearing changed to another in-state location.
Notice of rescheduling shall be furnished to both parties reasonably in advance
of the previously scheduled date.
(4) Discovery:
(a) Initial discovery - Documents: Upon
request, vendors shall have the right to review their case record in advance of
the hearing, and shall be furnished copies of requested documents contained
therein at cost.
(b) Initial
discovery -Witnesses: Each party shall disclose to the other orally or in
writing the names of prospective witnesses and the general subject matter of
their anticipated testimony, not less than three (3) days before the hearing.
Affidavits may be presented instead of live testimony, upon a showing that the
witness is not available in the state, or that compelling the witness to appear
at the hearing would present undue hardship. Such affidavits, to be admissible
at the hearing, must be submitted to the opposing party and the Hearing Officer
no less than seven (7) days prior to the hearing.
(c) Additional discovery in complex cases:
Upon written request of a party setting forth reasons why additional discovery
may be necessary or desirable, and at the Hearing Officer's discretion, further
discovery in the form of document production or informal witness interviews may
be permitted. Formal depositions are not allowed. Factors to be weighed in the
Hearing Officer's decision concerning whether additional discovery is merited
include whether the complexity of fact or law surrounding a particular case
requires further discovery to reasonably assure a full and fair hearing, the
timeliness of the request, and whether such requests granted would unreasonably
delay the hearing, or the rendering of a final decision. If additional
discovery is allowed, the Hearing Officer may reschedule the hearing in
accordance with paragraph (3) of sub-section D of 7.31.2.23 NMAC above.
Rescheduling for discovery purposes tolls the time period for the Hearing
Officer's rendering of a final decision in the matter, as set forth in
sub-section F of 7.31.2.23 NMAC below.
(5) Motions and pre-hearing conferences:
Either party may file motions at least ten (10) days in advance of the hearing
which are intended to narrow or dispose of anticipated issues. The Hearing
Officer may rule on such motions as a preliminary matter at the hearing itself,
or may set a pre-hearing conference, if it would serve to narrow or dispose of
issues in advance of the hearing. Copies of all motions shall be mailed to the
opposing party at or before the time of mailing to the Hearing
Officer.
E.
HEARING PROCEDURE:
(1) Right to
counsel: Vendors may represent themselves at the hearing, or may be represented
by legal counsel or other designated representative, provided such
representative has made a written entry of appearance prior to the
hearing.
(2) Hearing Officer powers
and duties: The Hearing Officer shall have the power to issue subpoenas and
compel the appearance of witnesses, shall administer oaths to witnesses, take
testimony, rule on the admissibility of evidence, schedule pre-hearing
conferences if helpful to narrow issues, rule on motions, schedule hearings,
and otherwise assure full development of the issues. The Hearing Officer may
consolidate hearings of different parties if they involve common questions of
law and fact. Before rendering a final decision, the Hearing Officer shall not
communicate with any party concerning the subject matter of the hearing outside
of the presence of the opposing party. The Hearing Officer is responsible for
recording the proceedings. A Hearing Officer may not be disqualified except by
agreement of both parties, or upon the Hearing Officer's own motion.
(3) Conduct of the Hearing: Hearings shall be
conducted in an orderly manner such that both parties shall have the
opportunity to present witnesses, to establish all facts pertinent to the case
or defense, to introduce exhibits and documentary evidence through qualified
witnesses, to advance arguments without undue interference, to confront,
impeach, and cross-examine witnesses, and to refute adverse testimony or
evidence.
(4) Procedure and
evidence: The technical rules of evidence and civil procedure shall not apply
in these hearings. Where such rules would be helpful to an understanding or
resolution of a point or issue, non-binding reference to the Federal Rules of
Evidence and the Federal Rules of Civil Procedure may be permitted. The Hearing
Officer may admit all relevant evidence including hearsay, if it is of such a
nature that ordinary, reasonable and prudent persons would rely on the
information in the conduct of serious business affairs. The Hearing Officer may
consider the hearsay nature of testimony in assessing the weight it should be
accorded.
(5) Mechanics and burden
of proof: The State WIC Office shall have the burden of proving by a
preponderance of the evidence one or more of the allegations cited in the
notice of proposed sanctions. The State WIC Office may make an opening
statement and shall present its evidence first. Either party may invoke the
rule. Both parties may make objections or raise defenses generally recognized
under law in civil cases. The State WIC Office is entitled to a
representative's presence in the hearing room throughout the proceeding, even
if that representative will testify in the hearing. The vendor may make an
opening statement either before or after the State WIC Office's evidence is
presented, and shall present its evidence after the State WIC Office rests its
case. Oral evidence shall be taken only upon oath or affirmation. In the
discretion of the Hearing Officer, closing arguments may be made orally after
the vendor's presentation of the case, or in writing within a time specified by
the Hearing Officer. Hearings shall be recorded by a sound recording
device.
(6) Failure to appear:
Failure of a party to appear at the hearing without good cause shall constitute
a default, and the Hearing Officer shall so inform both parties.
(7) Open hearings: Hearings are open to the
public unless all parties agree otherwise.
F.
HEARING OFFICER'S DECISION:
The Hearing Officer shall, as soon as practicable after the conclusion of the
hearing and submission of closing arguments, render a written decision in the
matter, state the basis for the decision, and specify the effective date of the
decision. The Hearing Officer's decision shall be based exclusively on evidence
and testimony introduced at the hearing. The decision need not contain findings
of fact or conclusions of law. The Hearing Officer's decision shall be final.
The Hearing Officer shall, within 60 days of the date of the State WIC Office's
receipt of a request for hearing from a vendor, issue written notification of
the decision in the matter. If the hearing in the matter is continued for any
reason from its originally scheduled setting, this time period is tolled for
the period of the continuance.
G.
JUDICIAL REVIEW: Any party may appeal the Hearing Officer's final
decision pursuant to the provisions of Section
39-3-1.1
NMSA 1978. Filing for judicial review does not stay or dissolve enforcement of
the final decision. The reviewing court shall set aside the final order only if
it is found to be:
(1) Arbitrary, capricious,
or an abuse of discretion;
(2) Not
supported by substantial evidence in the record;
(3) In excess of the authority of the State
WIC Office; or
(4) Otherwise not in
accordance with law.
