Current through Register Vol. 35, No. 6, March 26, 2024
A.
Rights at hearing: The parties are given an opportunity to:
(1) present their case or have it presented
by his or her authorized representative or legal counsel;
(2) bring witnesses to present information
relevant to the case;
(3) submit
evidence to establish all pertinent facts and circumstances in the
case;
(4) advance arguments without
undue interference; and
(5)
question or contradict any testimony or evidence, including an opportunity to
confront and cross-examine opposing witnesses.
B.
ALJ: Hearings are conducted
by an impartial official, the ALJ, who:
(1)
does not have any personal stake or involvement in the case; and
(2) was not involved in the determination or
the action which is being contested; if the ALJ had any involvement with the
action in question, including giving advice or consultation on the points at
issue, or is personally related in any relevant degree to the parties, the ALJ
must disqualify him or herself as the ALJ for that specific case.
(3)
Authority and duties of the
ALJ: The ALJ must:
(a) explain how the
provider administrative hearing will be conducted to participants at the start
of the hearing, before administering oaths;
(b) administer oaths and
affirmations;
(c) request, receive,
and make part of the record all evidence considered necessary to decide the
issues raised;
(d) regulate the
conduct and the course of the provider administrative hearing and any
pre-hearing conference to ensure an orderly hearing;
(e) request, if appropriate, an independent
medical assessment or professional evaluation from a source mutually
satisfactory to the parties; and
(f) produce the provider administrative
hearing report and recommendation for review and final decision by the MAD
director or designee.
(4)
Appointment of ALJ: The ALJ
is appointed by the HSD FHB chief upon receipt of the request for hearing. All
communications are to be addressed to the assigned ALJ.
C.
Evidence and procedure:
Formal rules of evidence and civil procedure do not apply. A free, orderly
exchange of relevant information is necessary for the decision-making process.
(1)
Admissibility: All evidence
is admissible subject to the ALJ's authority to limit irrelevant, repetitive or
unduly cumulative evidence and his or her ability to conduct an orderly
hearing. The ALJ must admit evidence that is relevant to those allegations
against the provider included in the notice of recovery of overpayment,
sanction or other remedy, application denial, or application
termination.
(2)
Confidentiality: The confidentiality of records is to be
maintained. Information which is not presented during the provider
administrative hearing in the presence of the provider, his or her authorized
representative or legal counsel, and the MAD representative may not be used by
the ALJ in making the provider administrative hearing recommendation except as
allowed by Subsection E of Section 13 of this part.
(3)
Administrative notice: The
ALJ may take administrative notice of any matter in which courts of this state
may take judicial notice.
(4)
Privilege: The rules of privilege apply to the extent that they
are required to be recognized in civil actions in the district courts of New
Mexico.
(5)
Medical
issues: In a case involving medical and behavioral health issues, the
parties may submit expert testimony, reports, affidavits or medical and
behavioral health records into record as necessary. Admission of this evidence
is at the discretion of the ALJ. All parties to the provider administrative
hearing have the right to examine any documents which may influence the
decision.
D.
Burden of proof: MAD has the burden of proving the basis to
support its proposed action by a preponderance of the evidence. In cases
involving the imposition of civil money penalties against a NF provider, MAD's
conclusion about the NF's level of noncompliance must be upheld unless clearly
erroneous.
E.
Record of the
provider administrative hearing: A hearing is electronically recorded.
The recording is placed on file at the FHB and is available to the parties for
60 calendar days following the decision. In addition to the recorded
proceedings, the record of the provider administrative hearing includes any
pleadings, documents, or other exhibits admitted into evidence. Any of the
parties to the provider administrative hearing may request one digital copy of
the recordings without charge. Subsequent copies will be charged at a rate HSD
sets for any other digital request.
