New Mexico Administrative Code
Title 8 - SOCIAL SERVICES
Chapter 100 - GENERAL PROVISIONS FOR PUBLIC ASSISTANCE PROGRAMS
Part 970 - OVERSIGHT - PROGRAM PARTICIPATION HEARINGS
Section 8.100.970.15 - JUDICIAL REVIEW

Universal Citation: 8 NM Admin Code 8.100.970.15

Current through Register Vol. 35, No. 18, September 24, 2024

A. Right of appeal

If a final fair hearing decision upholds the department's or NMHIX's original action, the claimant has the right to pursue judicial review of the final fair hearing decision and is notified of that right in the department's final fair hearing decision. In matters involving NMHIX, the claimant may submit a second-tier appeal to the United States department of health and human services and is notified of that right in the department's final fair hearing decision.

B. Timeliness:

(1) SNAP, LIHEAP, general assistance (GA), and medical assistance programs: Unless otherwise provided by law, within 30 days of the issuance of the department's final fair hearing decision, the claimant may appeal the final fair hearing decision by filing a notice of appeal with the appropriate district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978.

(2) NMW: Unless otherwise provided by law, within 30 days of the issuance of the department's final fair hearing decision, the claimant may appeal the final fair hearing decision by filing a notice of appeal with the court of appeals pursuant to the provisions of Section 27-2B-13 NMSA 1978.

C. Jurisdiction and standard of review:

(1) The district court's jurisdiction is defined by statute at Section 27-3-3 NMSA 1978 and Section 39-3-1.1 NMSA 1978. The court of appeals jurisdiction is defined by statute at Section 27-2B-13 NMSA 1978.

(2) The court of appeals or district court may set aside, reverse or remand the department's final fair hearing decision if it determines that:
(a) the department acted fraudulently, arbitrarily or capriciously;

(b) the final fair hearing decision was not supported by substantial evidence; or,

(c) the department did not act in accordance with federal and state laws and regulations.

D. Benefits pending an appeal: If the court decides in favor of the claimant, the department must immediately act in accordance with the court's final hearing decision. If the decision is in favor of the department, the department shall take any and all appropriate actions in accordance with Subsection A of 8.100.970.14 NMAC and 8.100.640 NMAC.

E. Effect of appeal: If the court of appeals decides in favor of the claimant, the HSD office of general counsel immediately notifies the county office as to the appropriate benefit issuance and adjustments, if any. If the decision is in favor of HSD, and a reduction has been pending the decision on appeal, an overpayment claim retroactive to the date the change should have been made is filed.

F. Appealing the appellant court's decision:

(1) SNAP, LIHEAP, GA and medical assistance programs: A party to the appeal to district court may appeal the district court's decision by filing a petition for writ of certiorari with the court of appeals, which may exercise its discretion to grant review. A party may seek further review by filing a petition for writ of certiorari with the supreme court. Section 39-3-1.1 NMSA 1978.

(2) NMW: A party may seek further review by filing a petition for writ of certiorari with the supreme court.

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