Current through Register Vol. 35, No. 18, September 24, 2024
A.
Rights during the fair hearing:
The claimant or authorized representative shall be given an
opportunity to:
(1) examine the SOE and
case record prior to, and during, the hearing in accordance with Subsection B
of
8.100.970.8
NMAC;
(2) present their case or
have it presented by an authorized representative;
(3) introduce witnesses;
(4) establish all pertinent facts and
circumstances;
(5) advance any
arguments without undue interference; and
(6) question or refute any testimony or
evidence, including an opportunity to confront and cross-examine the
department's witnesses.
B.
Hearing officer: Fair
hearings are conducted by an impartial official who:
(1) does not have any personal stake or
involvement in the case;
(2) was
not directly involved in the initial determination of the action which is being
contested;
(3) was not the
immediate supervisor of the worker who took the action that is being contested
and, in hearings involving adverse actions by NMHIX, has not been directly
involved in the eligibility determination or any prior appeal decisions in the
same matter;
(4) may not discuss
the merits of any pending fair hearing with anyone outside the fair hearings
bureau, unless all parties or their authorized representatives are
present.
C.
Disqualification and withdrawal: If the appointed hearing officer
had any involvement with the department action(s) being appealed, including
giving advice or consulting on the issue(s) presented, or is related in any
relevant degree to the claimant, the claimant's authorized representative, or
ISD worker that took the action being appealed, the appointed hearing officer
shall be disqualified as the hearing officer for that case. In addition, an
appointed hearing officer shall, prior to the date of the fair hearing,
withdraw from participation in any proceedings that the hearing officer
determines that he cannot afford a fair and impartial hearing or where
allegations of bias have arisen and have not been resolved prior to the
deadline for a fair hearing decision to be issued pursuant to Paragraph (2) of
Subsection B of
8.100.970.9
NMAC.
D.
Authority and duties
of the hearing officer: The authority and duties of the hearing officer
are to:
(1) explain how the fair hearing will
be conducted to participants at the start of the hearing;
(2) administer oaths and
affirmations;
(3) insure that all
relevant issues are considered during the fair hearing;
(4) request, receive and make part of the
fair hearing record all evidence necessary to decide the issues being
raised;
(5) regulate the content,
conduct and the course of the hearing to ensure an orderly hearing; if a
claimant, the claimant's authorized representative, any witness or other
participant in the fair hearing refuses to cooperate or comply with rulings on
the procedures and issues as determined by the hearing officer, or acts in such
a manner that an orderly fair hearing is not possible, the hearing officer may
take appropriate measures to ensure that order is fully restored so that the
claimant's opportunity to fairly present their case is safeguarded; such
measures shall include, but not be limited to, excluding or otherwise limiting
the presentation of irrelevant evidence, or terminating the fair hearing and
making the recommendation based on the record that has been made up to the
point that the fair hearing was terminated;
(6) limit cross-examination that is
repetitive or harassing;
(7)
request, if appropriate, and except in matters involving NMHIX, an independent
medical assessment or professional evaluation from a source mutually
satisfactory to the claimant and the department; and
(8) provide a fair hearing record and report
and recommendation for review and final decision by the appropriate division
director; and
(9) in matters
involving adverse action by NMHIX, provide a written final decision.
E.
Appointment of hearing
officer: A hearing officer is appointed by the fair hearings bureau upon
receipt of the request for hearing.
F.
Process: Formal rules of
evidence and civil procedure do not apply to the fair hearing process. All
relevant evidence is admissible, subject to the hearing officer's authority to
limit evidence that is repetitive or unduly cumulative. Evidence that is not
available to the claimant may not be presented to the hearing officer or used
in making the final fair hearing decision, unless the unavailability of
evidence was in accordance with federal and state laws and regulations.
(1)
Confidentiality: The
confidentiality of client records is to be maintained in accordance with
federal and state laws and regulations. Confidential information that is
protected from release and other documents or records that the claimant will
not otherwise have an opportunity to contest or challenge shall not be
introduced at the fair hearing or affect the hearing officer's
recommendation.
(2)
Administrative notice: The hearing officer may take administrative
notice of any matter for which judges of this state may take judicial
notice.
(3)
Privilege:
The rules of privilege apply to the extent that they are requested and
recognized in civil actions in New Mexico.
(4)
Medical issues: In a case
involving medical care or a medical condition, the claimant waives
confidentiality and both parties shall have the right to examine any medical
documents that are admitted into evidence.
(5) When the evidence presented at the fair
hearing does not adequately address the relevant medical issues, additional
medical information may be obtained at the discretion of the hearing officer.
The additional medical information may include, but is not limited to, a
medical evaluation or analysis obtained at the department's expense, from a
source satisfactory to the claimant.
G.
Motions: Motions shall be
decided by the hearing officer without a hearing, unless permitted by the
hearing officer upon written request of the department, the claimant or the
authorized representative.
H.
Burden of proof: The department has the burden of proving the
basis for its action, proposed action or inaction by a preponderance of the
evidence.
I.
Record of the
fair hearing: A record of each fair hearing shall be made by the hearing
officer, in accordance with the following.
(1)
The fair hearing proceedings, including testimony and exhibits, shall be
recorded electronically.
(2) The
hearing officer's electronic recording shall be the official transcript of the
fair hearing, and shall be retained by the fair hearings bureau in accordance
with all federal and state laws and regulations.
(3) The record of the fair hearing includes:
the recorded fair hearing, including testimony and exhibits, any pleadings
filed in the proceeding, any and all papers and requests filed in the
proceeding, the report and recommendation of the hearing officer, except in
matters involving NMHIX; and, the final fair hearing decision made by the
division director, or the hearing officer in matters involving NMHIX. The fair
hearing record will be maintained in the department's secure electronic data
management system, but may be made available to the claimant or the authorized
representative for copying and inspection at a reasonable time.
(4) If a final fair hearing decision is
appealed, a written verbatim transcript of the fair hearing shall be prepared
by the department and a copy of the transcript shall be provided to the
claimant or authorized representative, free of charge.
