Current through Register Vol. 35, No. 18, September 24, 2024
A.
Grounds for disciplinary
action: Disciplinary action may be taken against a qualified patient,
patient-applicant, primary caregiver, or primary caregiver-applicant.
Disciplinary action may include revocation, suspension, or denial, summary
suspension, summary revocation, and other action. Disciplinary action may be
imposed for:
(1) failure to comply with or
satisfy any provision of this rule;
(2) falsification or misrepresentation of any
material or information submitted to the department;
(3) failing to allow or impeding a monitoring
visit by authorized representatives of the department;
(4) failure to adhere to any acknowledgement,
verification, or other representation made to the department;
(5) failure to submit or disclose information
required by this rule or otherwise requested by the department;
(6) failure to correct any violation of this
rule cited as a result of a monitoring visit;
(7) diversion of cannabis or a
cannabis-derived product, as determined by the department;
(8) threatening or harming a patient, a
medical practitioner, or an employee of the department;
(9) for primary caregivers: conviction of the
primary caregiver of any of the disqualifying convictions identified by
department rule:
(10) for
patients: failure of the patient to satisfy any criterion identified as a
prerequisite to eligibility for a condition approved by the
department:
(11) for patients: if a
certifying provider of the patient determines that the use of cannabis by the
patient would more likely than not be detrimental to the patient's health;
and
(12) any other basis identified
in this rule.
B.
Request for hearing: A qualified patient or primary caregiver who
is the subject of disciplinary action, or an applicant who has received a
notice of contemplated action to deny their application for any reason other
than failure to submit a completed application or failure to meet a submittal
requirement of this rule, may request a hearing in writing. The appellant shall
file the request for hearing within 30 calendar days of the date the action is
taken or the notice of contemplated action is received. The request shall:
(1) be properly addressed to the medical
cannabis program;
(2) state the
requestor's name, address, and telephone numbers; and
(3) include a statement of the issues that
the appellant considers relevant to the review of the action.
C.
Hearing process:
(1) All formal adjudicatory hearings held
pursuant to this regulation shall be conducted by a hearing examiner appointed
by the secretary.
(2) Hearings
shall be conducted in Santa Fe, New Mexico, or, with the consent of the
parties, at another location.
(3)
Due to federal and state laws regarding the confidentiality of protected health
information, all hearings held pursuant to this section shall be closed to the
public.
(4) The hearing shall be
recorded on audiotape or other means of sound reproduction.
(5) Any hearing provided for in this rule may
be held telephonically, with the consent of the parties.
D.
Scheduling: The department
shall schedule and hold the hearing no later than 60 calendar days from the
date the department receives the appellant's request for hearing. The hearing
examiner may extend the 60 day time period for good cause shown, or the parties
may extend that period by mutual agreement. The department shall issue notice
of the hearing, which shall include:
(1) a
statement of the time, place, and nature of the hearing;
(2) a statement of the legal authority and
jurisdiction under which the hearing is to be held; and
(3) a short and plain statement of the
subject of the hearing.
E.
Presentation of evidence: All
parties shall be given the opportunity to respond and present evidence and
argument on relevant issues.
F.
Record of proceeding: The record of the proceeding shall include
the following:
(1) all pleadings, motions,
and rulings;
(2) evidence and
briefs received or considered;
(3)
a statement of any matters officially noticed;
(4) offers of proof, objections, and rulings
thereon;
(5) proposed findings and
conclusions; and
(6) any action
recommended by the hearing examiner.
G.
Audio recording: A party may
request a copy of the audio recording of the proceedings.
H.
Procedures and evidence:
(1) a party may be represented by a person
licensed to practice law in New Mexico or a non-lawyer representative, or may
represent himself or herself;
(2)
the rules of evidence as applied in the courts do not apply in these
proceedings; any relevant evidence shall be admitted; irrelevant, immaterial,
or unduly repetitious evidence may be excluded;
(3) the experience, technical competence, and
specialized knowledge of the hearing examiner, the department or the
department's staff may be used in the evaluation of evidence;
(4) an appellant's failure to appear at the
hearing at the date and time noticed for the hearing shall constitute a
default.
I.
Conduct of proceeding: Unless the hearing examiner determines a
different procedure to be appropriate, the hearing shall be conducted as
follows:
(1) the appellant may present an
opening statement and the department may present an opening statement or
reserve the statement until presentation of its case;
(2) upon conclusion of any opening
statements, the appellant shall present his or her case;
(3) upon the conclusion of the appellant's
case, the department shall present its case;
(4) upon conclusion of either party's case,
the opposing party may present rebuttal evidence; and
(5) after presentation of the evidence by the
parties, the parties may present closing arguments.
J.
Burden of proof: The
appellant bears the burden of establishing by a preponderance of the evidence
that the decision made or proposed by the department should be reversed or
modified.
K.
Continuances:
The hearing examiner may grant a continuance for good cause shown. A
motion to continue a hearing shall be made at least 10 calendar days before the
hearing date.
L.
Telephonic
hearings:
(1) any party requesting a
telephonic hearing shall do so no less than 10 business days prior to the date
of the hearing; notice of the telephonic hearing shall be given to all parties
and shall include all necessary telephone numbers;
(2) failure of an appellant to provide their
correct telephone number or failure to be available at the commencement of the
hearing shall be treated as a failure to appear and shall constitute a
default;
(3) the in-person presence
of some parties or witnesses at the hearing shall not prevent the participation
of other parties or witnesses by telephone with prior approval of the hearing
examiner.
M.
Recommended action and final decision:
(1) the parties may submit briefs including
findings of fact and conclusions of law for consideration by the hearing
examiner;
(2) no later than 30
calendar days after the last submission by a party, the hearing examiner shall
prepare and submit to the secretary a written recommendation of action to be
taken by the secretary; the recommendation shall propose sustaining, reversing,
or modifying the proposed action of the department;
(3) the secretary shall issue a final written
decision accepting or rejecting the hearing examiner's recommendation in whole
or in part no later than 30 calendar days after receipt of the hearing
examiner's recommendation; the final decision shall identify the final action
taken; service of the secretary's final decision shall be made upon the
appellant by registered or certified mail;
(4) the final decision or order shall be made
a part of the patient or primary caregiver's file with the medical cannabis
program.
