New Mexico Register / Volume XXXIII,
Issue 1 / January 11, 2022
This is an amendment to 16.22.11 NMAC, Section 8, and
Section 9 effective 02/10/2022.
16.22.11.8 COMPLAINT PROCEDURES:
A. Inquiries
regarding filing of complaints.
(1) Inquiries made to the board or to a
board member regarding a potential complaint will be referred to the board
administrator or compliance liaison for a response.
(2) Upon
receipt of an inquiry, the board administrator or compliance liaison shall
forward to the potential complainant a complaint form with instructions on how
to file the complaint. Complaints shall
be submitted in writing on the prescribed form, signed [and notarized],
and state the facts upon which the complaint is based. Anonymous complaints will not be
investigated, unless the board determines an exception is valid due to unusual
circumstances.
(3) Once a complaint, is made, it will
come under the provisions of this section and cannot be withdrawn.
B. Procedures
for processing complaints. The board
administrator or compliance liaison shall:
(1) log in the date the complaint is
received;
(2) determine
if the subject of the complaint is a licensed psychologist, psychologist
associate or an applicant or person otherwise within the jurisdiction of the
board;
(3) assign an individual file with a
complaint number, which numbering sequence shall begin each new calendar year;
(4) send a letter to the complainant
confirming receipt of the complaint;
(5) forward the complaint to respondent
with a letter requesting a response to the allegations and any documents or
materials relevant to the complaint, unless it will impede an investigation or
interfere with the acquisition of documents or relevant papers or the
development of the case; and
(6) forward
the complaint file to the chair of the complaint committee.
C. Review
by the complaint committee.
(1) The chair of the complaint committee
is appointed by the board chair and shall consist of a board member and may
include the board administrator and compliance liaison.
(2) The
complaint committee shall review the entire complaint file to determine if the
allegations in the complaint are substantiated and constitute grounds for
disciplinary action.
(3) The
complaint committee or its designee may employ experts, consultants, or private
investigators to assist in investigations of complaints.
(4) The
complaint committee, or its designee, on behalf of the board, may issue
investigative subpoenas, pursuant to Subsection A of Section 61-1-4 NMSA 1978.
(5) Upon completion of an investigation
and review, the complaint committee shall submit to the full board a case
summary containing alleged violations of the code, board regulations or the act
and recommendations for disposition.
Throughout this process, confidentiality of interested parties will be
maintained.
D. Review
by the full board.
(1) Any board member or any member of the
complaint committee who is partial or who believes he is not capable of judging
a particular controversy fairly on the basis of [it] it’s own
circumstances shall not participate in the decision whether to issue a notice
of contemplated action and shall not participate in the hearing, deliberation,
or decision of the board.
(2) The board shall review the case
summary presented by the complaint committee, relevant documents, witness
statements, and other pertinent information regarding the complaint. If the board has sufficient evidence that a
violation may have occurred, the board shall forward the evidence to the administrative
prosecutor for issuance of a [an] notice of contemplated action.
(3) Following
the issuance of a notice of contemplated action, the board may at its option
authorize a board member, or the administrative prosecutor to confer with the
applicant or the licensee for the purpose of settlement of the complaint. Such settlement must be approved by the
board, must be with the consent of the applicant or licensee, and shall include
a knowing and intentional waiver by the applicant or the licensee of his rights
to hearing under the Uniform Licensing Act.
(4) The board may refer a complaint to
the attorney general for injunctive proceedings or to the district attorney for
criminal prosecution.
[16.22.11.8 NMAC - Rp,
16.22.11.8 NMAC, 11/15/2006; A, 2/22/2013; A, 02/10/2022]
16.22.11.9 ADJUDICATORY
PROCEEDINGS:
A. General
provisions and pre-hearing and preliminary matters.
(1) All
hearings shall be conducted either by the board or, at the election of the
board, by a hearing officer.
(2) If the board appoints a hearing
officer, the hearing officer shall have authority to decide pre-hearing
matters, preside over the hearing, and direct post-hearing matters in
accordance with the requirements of the case in a manner that ensures an
efficient and orderly hearing and expedites the final resolution of the
case. Except as otherwise limited in
this part, the hearing officer shall have the authority to rule on all
non-dispositive motions. If the board
does not appoint a hearing officer or if the hearing officer is unavailable or
unable to proceed, the board chair or other board member designated by the
board shall have the authority to decide pre-hearing or preliminary matters on
behalf of the board. This authority
shall be in accordance with the requirements of the case in a manner that
ensures an efficient and orderly hearing and expedites the final resolution of
the case, including, without limitation.
(a) Unopposed
or stipulated motions to change venue.
(b) Motions
for continuance of a hearing date. A
motion to vacate the hearing must contain an affirmative statement that the
licensee or applicant waives his right to a hearing held not more than 60 days
from the date of service of the notice hearing.
(c) The granting of
one notice of pre-emptory excusal to each party if the notice is timely and if
the pre-emptory excusal does not result in a loss of a quorum of the board.
(d) Motions
regarding discovery.
(3) The
original of any papers and pleadings shall be filed with the board. Copies shall be sent to the hearing officer
and attorneys or parties of record.
(4) The
hearing officer or designated board member shall issue appropriate orders to
control the course of the proceedings.
(5) Consistent
with provisions of the Uniform Licensing Act and to the extent practicable, the
rules of civil procedure for the district courts shall apply unless the hearing
officer or designated board member orders otherwise.
(6) A request for an order shall be made
by a motion filed with the board. Except
for motions made during the course of the hearing, a motion shall be in
writing. A motion shall state with
particularity the grounds for the motion and shall set forth the relief and
order sought.
(7) A motion shall be accompanied by a
memorandum brief in support of the motion.
The brief shall state with particularity the grounds for the motion and
shall contain citation to authorities, statutes, and references to the
pleadings on file. If matters outside of
the pleadings are considered, a copy of the referenced material shall be
attached to the brief. Responsive briefs
shall be permitted in accordance with the rules of civil procedure for the
district courts to the extent practicable unless the hearing officer or
designated board member orders otherwise.
(8) The
hearing officer or the designated board member may order the filing of briefs
or other documents and may set oral argument on any matter.
(9) No
more than two continuances of the hearing date will be granted without the
approval of the board for good cause shown.
(10) All dispositive motions shall be
decided by the board.
(11) No
proposed settlement, consent agreement, voluntary surrender of a license in
lieu of prosecution, or other proposal for the resolution of a pending
disciplinary case shall be effective unless approved by the board and executed
by the board and the licensee or applicant.
The board or hearing officer may seek information from the
administrative prosecutor and the licensee or applicant concerning
circumstances of the case relevant to a consideration of the proposed
settlement or clarification of the proposed terms and conditions. No board member is presumed to be biased and
shall not be excused based solely on the reason that the member considered a
proposed settlement, consent agreement, or other proposal for the resolution of
a pending disciplinary case. The board
may submit a counterproposal for the settlement or resolution of the case.
(12) Any
proposed settlement, consent agreement, voluntary surrender of a license in
lieu of prosecution, or other proposal for the resolution of a pending
disciplinary case shall contain at least the following:
(a) an
admission of all jurisdictional facts; an acknowledgment of the rights
contained in the Uniform Licensing Act and an express waiver of those rights
and of all rights to hearing and judicial review or any other opportunity to
contest the validity of the board order in any other proceeding or forum;
(b) a
statement that the proposal resolves only the violations alleged in the notice
of contemplated action and a statement that the board reserves the right to
initiate other proceedings for any other violations of the act or board
regulations;
(c) a
general nature of the evidence underlying each alleged violation;
(d) if
appropriate, a list of provisions of the acts or practices from which the
licensee or applicant will refrain in the future;
(e) a
statement of the type, terms, and conditions of the proposed disciplinary
action of the board;
(f) a
statement that the licensee will be responsible for all costs of disciplinary
proceedings or a statement setting forth the reason why the licensee should be
excused from paying costs; the affidavit of the board administrator concerning
the costs incurred to date shall accompany the proposal;
(g) a
statement that the decision and order of the board shall be a public record and
reported, as required by law. If the
proposed settlement involves an action of the type specified in the Uniform
Licensing Act Section 61.1.1-3 NMSA 1978 [Subsections D-(i) thru
61-1-3 K(n), NMSA 1978] or voluntary surrender of a license in lieu of
prosecution, the decision and order shall be reported by the board to the ASPPB
disciplinary data report, healthcare integrity and protection data bank
(HIPDB), and to other appropriate entities;
(h) other provisions
necessary to ensure the complete and final resolution of the proceedings.
(13) A
proposal to settle a matter shall not stay the proceedings or vacate the
hearing date unless otherwise ordered by the hearing officer or presiding
officer upon the filing of a timely motion.
B. Duties
of the board administrator. The board
administrator shall:
(1) after consultation with the board or
hearing officer, issue a notice of hearing stating the date, time, and place of
the hearing;
(2) execute on behalf of the hearing
officer or board notices, scheduling orders, subpoenas, and subpoenas duces
tecum, and other routine procedural documents that facilitate the efficient
conduct of adjudicatory proceedings;
(3) maintain
the official record of all papers and pleadings filed with the board in any
matter;
(4) prepare an affidavit as to costs of
any disciplinary proceeding at the conclusion of any hearing or upon request by
a party submitting a proposed settlement, consent agreement, or voluntary
surrender of a license in lieu of prosecution;
(5) prepare, certify, and file with the
district court the record of the case on appeal or review;
(6) unless the board orders otherwise,
have the authority to sign the decision of the board to grant or refuse a
request to reopen the case.
C. Conduct
of hearings.
(1) The
hearing officer, or presiding officer if the case is heard by the board, shall
ensure the fair, efficient, and orderly conduct of the hearing in accordance
with the Uniform Licensing Act.
(2) Unless
the board orders otherwise, a board member hearing officer, the board chair, or
presiding officer shall have the authority to sign the written decision of the
board.
(3) The
board administrator shall serve the decision of the board on the licensee or
applicant in accordance with law.
(4) A
motion for an order staying the operation of a board decision shall be decided
by the board.
[16.22.11.9 NMAC - Rp,
16.22.11.9 NMAC, 11/15/2006; A, 02/10/2022]