Current through Register Vol. 35, No. 18, September 24, 2024
A.
Notice of hearing: Unless the claimant or authorized
representative requests an expedited scheduling of a fair hearing, the fair
hearings bureau shall provide written notice of the scheduling of a fair
hearing to all parties not less than 10 calendar days prior to date of the fair
hearing, or not less than 15 calendar days prior to the date of the fair
hearing if the hearing involves an adverse action by the New Mexico health
insurance exchange (NMHIX). The notice of hearing shall include:
(1) the date, time and place of the
hearing;
(2) the name, address and
phone number of the hearing officer;
(3) information regarding the fair hearing
process and the procedures to be followed by the respective parties;
(4) the right of the claimant and the
authorized representative to receive a copy of the SOE and any document, not
specifically prohibited by federal and state law and regulation, contained in
the claimant's case record in order to prepare for the fair hearing in
accordance with Subsection B of
8.100.970.8
NMAC;
(5) notice that the appeal
will be dismissed if the claimant or the authorized representative fails to
appear without good cause;
(6)
information about resources in the community that may provide free legal
assistance with the fair hearing process; and
(7) notice that the department will not pay
for any costs of the claimant or authorized representative, including legal
counsel, that are incurred in the preparation for, or attendance at, an ARC,
fair hearing or judicial appeal.
B.
Postponement: A claimant or
authorized representative is entitled to, and the fair hearings bureau shall
grant, at least one postponement of a scheduled fair hearing. The department
may request and be approved for one postponement at the discretion of the fair
hearings bureau due to the unavailability of any department witness to appear
at the scheduled fair hearing. Requests for more than one postponement are
considered at the discretion of the fair hearings bureau, on a case-by-case
basis. A request for postponement must be submitted not less than one business
day prior to the scheduled fair hearing, unless otherwise allowed by the fair
hearings bureau, and is subject to the following limitations:
(1)
SNAP and LIHEAP cases: A
postponement may not exceed 30 days and the time limit for action on the
decision is extended for as many days as the fair hearing is
postponed.
(2)
Cash
assistance cases: The fair hearing may be postponed, but must be
rescheduled to assure a final decision is made no more than 90 days from the
date of the request for fair hearing.
(3)
Medical assistance cases:
The fair hearing may be postponed, but must be rescheduled to assure a final
decision is made no more than 90 days from the date of the request for fair
hearing. Fair hearings for medical assistance cases involving the termination,
modification, reduction or suspension of services are governed by all
applicable federal and state laws and regulations, including 8.352 NMAC, et
seq.
(4)
NMHIX cases:
The fair hearing may be postponed but must be rescheduled to assure a final
decision is made not more than 90 days from the date of the appeal
request.
(5) The fair hearings
bureau shall issue notice of the rescheduling of a postponed fair hearing not
less than 10 calendar days before the rescheduled date, unless oral agreements
are obtained from all parties to reschedule the fair hearing with less notice
in an effort to meet the required timeframes. Documentation of the oral
agreement shall be maintained in the fair hearing record.
C.
Expedited hearing:
(1)
SNAP cases: Hearing requests
from SNAP households, such as migrant farm workers that plan to move out of the
state before the hearing decision would normally be made should be scheduled on
an expedited basis.
(2)
NMHIX
cases: an appellant may request an expedited appeals process where there
is an immediate need for health services because a standard appeal could
jeopardize the appellant's life, health, or ability to attain, maintain, or
regain maximum function. If the request for an expedited appeal is denied, the
appeal request must be handled under the standard process and the appellant
must be promptly informed of the denial, through electronic or oral
notification, if possible. If notification is oral, the appeals entity must
follow up with the appellant by written notice. Written notice of the denial
must include:
(a) the reason for the
denial;
(b) an explanation that the
appeal request will be transferred to the standard process; and
(c) an explanation of the appellant's rights
under the standard process.
D.
Group hearings: A hearing
officer may respond to a series of individual requests for hearings by
conducting a single group hearing. Group hearing procedures apply only to cases
in which individual issues of fact are not disputed and where related issues of
state or federal law, regulation or policy are the sole issues being raised. In
all group hearings, the regulations governing individual hearings are followed.
Each individual claimant is permitted to present the claimant's own case or to
be represented by an authorized representative. If a group hearing is
scheduled, any individual claimant may withdraw from the group hearing and
request an individual hearing. The confidentiality of client records is to be
maintained in accordance with federal and state laws and regulations.
E.
Agency review conference
(ARC): Except in matters involving NMHIX, the department and the
claimant are encouraged to meet for an ARC before the scheduled fair hearing to
discuss the department's action(s) that the claimant has appealed. The ARC is
optional and does not delay or replace the fair hearing process. An ARC will be
held within 10 calendar days from the date of the fair hearing request. If the
claimant submits a hearing request to the field office, in person or by
telephone, the ARC may, at the claimant's option, be conducted at that time. An
appeal may not be dismissed by the department for failure of the claimant or
authorized representative to appear at a scheduled ARC.
(1) The department shall send a written
notice of the scheduled ARC to the claimant and authorized representative. The
claimant may choose to receive the notice by mail or in electronic
format.
(2) An ARC may be attended
by all parties responsible for and affected by the adverse action taken by the
department, including but not limited to, the ISD field office staff, the CSED,
a NMW representative and the claimant or its authorized
representative.
(3) The purpose of
the ARC is to informally review the adverse action taken by the department and
to determine whether the dispute can be resolved in accordance with federal and
state law and regulation. The ARC is optional and shall in no way delay or
replace the fair hearing process, unless the outcome of the ARC is the claimant
withdrawing the fair hearing request.
(4) For cases in which the household appeals
a denial of expedited SNAP service, the ARC shall be scheduled within two
business days, unless the household requests that it be scheduled at a later
date or does not wish to have an ARC.
(5) A household may request an ARC in order
to discuss an adverse action taken by the department against the household,
regardless of whether or not a fair hearing is requested.
F.
Summary of evidence (SOE): An
SOE shall be prepared by the department or NMHIX, if applicable, and submitted
to the fair hearings bureau and the claimant and authorized representative no
less than 10 calendar days prior to the date of the fair hearing. Failure to
provide the SOE within the prescribed timeframe may result in its exclusion or
a postponement or continuance of the hearing at the discretion of the hearing
officer pursuant to Subsection B of 8.100.970.10 NMAC and Subsection D of
8.100.970.12
NMAC. Unless the hearing request is withdrawn by the claimant or authorized
representative, an SOE shall be prepared and submitted in accordance with this
paragraph, regardless of the results of an ARC. The SOE shall contain at least
the following information:
(1) identifying
information, including but not limited to, claimant's name, at least the last
four digits of the claimant's social security number, the claimant's individual
identification number, case identification number or reference identification
number, the claimant's last known address, and the type of assistance involved,
if applicable;
(2) the issue(s) on
appeal that outlines the adverse action taken by the department against the
household;
(3) documentation in
support of the department's adverse action, including any facts, information
and department findings related to the fair hearing issue(s);
(4) applicable federal and state laws and
regulations, internal department policy documents, and any additional
supportive legal documentation; and
(5) results of the ARC, if completed at the
time of submission of the SOE.
G.
Availability of information:
The department staff shall:
(1) allow the
claimant and the authorized representative to examine the case record and
provide the claimant and the authorized representative a copy of the SOE and
any document, not specifically prohibited by federal and state laws and
regulations, contained in the claimant's case record in order to prepare for
the fair hearing in accordance with Subsection B of
8.100.970.8 NMAC;
and
(2) provide accommodations for
a disability or a language or speech interpreter in accordance with Paragraph
(6) of Subsection E of
8.100.970.8 NMAC
and
45 CFR section
155.505(f), as
applicable.
