New Mexico Administrative Code
Title 8 - SOCIAL SERVICES
Chapter 371 - DEVELOPMENTAL DISABILITIES
Part 4 - CLIENT COMPLAINT PROCEDURES
Section 8.371.4.14 - ADMINISTRATIVE APPEAL PROCESS
Universal Citation: 8 NM Admin Code 8.371.4.14
Current through Register Vol. 35, No. 18, September 24, 2024
The administrative appeal process is available only to review the decision of the division director as to alleged violations by the service provider, its employees, or persons under contract with the service provider of rights set forth in the federal or state constitutions, statutes, or authority regulations or policies designated "client's rights." The administrative hearing is intended to be accomplished without the involvement of legal counsel, but the complainant and the service provider may be represented by legal counsel of their choosing at their own expense.
A. Step one: Administrative hearing:
(1) Request for hearing:
(a) If the complainant is not satisfied with
the decision of the director, the complainant may request an evidentiary
hearing before and impartial hearing officer. The request must be in writing,
must be filed with the director, and must be mailed within 20 days from receipt
of the director's decision.
(b) The
appeal shall be a brief statement of the acts that are the basis of the alleged
violation of rights.
(2)
Assignment of hearing officer:
(a) The
director shall assign a hearing officer within 10 days of receipt of the
request for hearing.
(b) If any
person who may appear at the hearing, as described in Paragraph (3) of
Subsection B of 8.371.4.14 NMAC, has reason to believe that the hearing officer
cannot render an impartial decision, the person shall notify the director in
writing stating the objection and the reason(s) therefor within five days of
the date of the notice of the assignment. If the director determines that there
is a good cause, the director shall assign another hearing officer within 10
days of receipt of the objection.
(3) Notice of hearing:
(a) The hearing officer shall conduct the
hearing within 15 days of assignment as hearing officer. The hearing officer
may grant a continuance not to exceed 15 days for good cause shown.
(b) The hearing officer shall notify the
complainant and the service provider (s) of the date, time and place of the
hearing at least five days prior to the hearing. If feasible, the hearing shall
be held in the city or town where the client resides or at a location
convenient to the client.
(c) The
service provider may decline to appear at the hearing and the hearing shall
proceed. The complainant and the service provider may settle the complaint by
mutual agreement at any time prior to the hearing unless the client objects.
The complainant shall notify the hearing officer of the settlement by
withdrawing the complaint in writing prior to the hearing. The hearing officer
shall notify the division director that the complainant has withdrawn the
complaint.
(4) Conduct
of hearing:
(a) The complainant has the burden
to show by a preponderance of the evidence that:
(i) the act (s) complained
occurred;
(ii) the act (s)
constitutes a violation by the service provider, employee or a person under
contract with the service provider, of rights of the client set forth in the
federal or state constitution, statutes, or authority regulations or policies
designated "client's rights"; and
(iii) the client is adversely
affected.
(b) The
complainant and the service provider (s) have the right to call witnesses on
their behalf, question witnesses called by others, and present other evidence
relevant to the complaint.
(c) The
hearing officer shall admit all relevant evidence that is reasonably likely to
assist him or her in making a fully informed, fair decision. The hearing
officer may exclude irrelevant or repetitious evidence. Conformity to rules of
evidence is not required. The hearing officer's rulings on evidence are
final.
(5) Recommended
decision of the hearing officer:
(a) The
hearing officer shall render a recommended decision to the secretary of the
authority or the secretary's designee in writing within 10 days of the
hearing.
(b) The recommended
decision shall include:
(i) a statement of
uncontested facts and finding of fact on contested issues; and
(ii) a recommendation dismissing the
complaint as not supported by a preponderance of the evidence; or
(iii) a finding substantiating the complaint
and a recommendation either adopting the authority's relief or remedy or
proposing individual relief or remedy.
B. Step two: Decision:
(1) The secretary or the secretary's designee
may adopt the recommendation of the hearing officer or may reverse or modify
the recommendation of the hearing officer. If the secretary or the designee
modifies or reverses the recommendation of the hearing officer, they shall
state the reasons for the decision.
(2) The secretary or their designee shall
notify the persons described in Paragraph (3) of Subsection A of 8.371.4.14
NMAC of the decision in writing within 15 days of receipt of the
recommendations of the hearing officer.
(3) The decision of the secretary or the
secretary's designee is final and is not subject to judicial review.
Disclaimer: These regulations may not be the most recent version. New Mexico may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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