New Mexico Register / Volume XXXIII,
Issue 6 / March 22, 2022
This is an amendment to
8.100.970 NMAC, Sections 3 and 6 through 15, effective 4/1/2022.
8.100.970.3 STATUTORY
AUTHORITY:
A. Section 27 NMSA 1978 (1992 Repl.) provides for the department to
"...adopt, amend and repeal bylaws, rules and regulations..." It also
provides for administration of public assistance programs.
B. The income support division (ISD) of the human services department
(HSD) was created by the HSD secretary under authority granted by [Section 9-8-6-B-(3) NMSA 1978] Paragraph (3) of
Subsection B of Section 9-8-6 NMSA 1978.
C. The
New Mexico health insurance exchange (NMHIX) was established by Section 59A-23F-1
of NMSA 1978 et al. Pursuant to
45 CFR 155.505(c) and 155.510(a), NMHIX has designated to the New Mexico human
services department the authority to conduct fair hearings of NMHIX eligibility
appeals pursuant to 45 CFR 155 Subpart F.
[8.100.970.3 NMAC - Rp,
8.100.970.3 NMAC, 11/27/2013, A/E, 11/1/2021; A, 4/1/2022]
8.100.970.6 OBJECTIVE: The objective
of these regulations is to provide general policy and procedures for the public
assistance programs administered by the department, as well as policy and
procedures for the department to conduct hearings for claimants of adverse
actions by NMHIX.
[8.100.970.6 NMAC - Rp,
8.100.970.6 NMAC, 11/27/2013; A/E, 11/1/2021; A, 4/1/2022]
8.100.970.7 DEFINITIONS:
A. Agency review conference (ARC): means an optional conference offered by the department
to households adversely affected by a department action that is normally held
prior to a fair hearing. An ARC may be
attended by all parties responsible for and affected by the adverse action
taken by the department, including but not limited to, the ISD field office
staff, the child support enforcement division (CSED), a New Mexico works (NMW)
representative and the household or its authorized representative for the
purpose of informally resolving the dispute.
The ARC is optional and shall in no way delay or replace the fair
hearing process. This subsection does
not apply to appeals of adverse actions by NMHIX.
B. Authorized representative: means an individual designated by a household
to represent and act on its behalf during the fair hearing process. The household must provide formal
documentation authorizing the named individual(s) to access the identified case
information for a specified purpose and time frame. An authorized representative may be an
attorney representing a person or household, a person acting under the
authority of a valid power of attorney, a guardian ad litem, or any other
individual(s) designated by the household.
C. Claimant
or Appellant: means the
household requesting a fair hearing that is claiming to be adversely affected
by an action(s) taken by the department or NMHIX.
D. Informal
resolution process: means an
opportunity for informal resolution between NMHIX and a household adversely
affected by an NMHIX action in accordance with the requirements of 45 CFR §
155.535(a). The informal resolution
process happens prior to a fair hearing.
The appellant’s right to a hearing is preserved in any case in which the
appellant remains dissatisfied with the outcome of the informal resolution
process. If the appeal does not advance to a hearing, the informal resolution
is final and binding.
[8.100.970.7 NMAC - N, 11/27/2013;
A/E, 11/1/2021; A, 4/1/2022]
8.100.970.8 FAIR
HEARINGS:
A. [A household aggrieved by an
adverse action taken by the department that affects the participation of the
household in a department administered public assistance program may appeal the
department’s decision by requesting a fair hearing in accordance with federal
and state laws and regulations. Medicaid recipients wanting to request a fair
hearing due to termination, modification, reduction or suspension of services must
do so in accordance with any applicable federal and state laws and regulations,
including 8.200.430.12 NMAC and 8.352 NMAC, et seq.] A household
aggrieved by an adverse action taken by the department or NMHIX that affects
the participation of the household in a department administered public
assistance program or in the New Mexico health insurance exchange, if
applicable, may appeal the department’s or NMHIX’s decision by requesting a
fair hearing in accordance with federal and state laws and regulations.
(1) Medicaid recipients wanting to request a fair hearing due
to termination, modification, reduction or suspension of services must do so in
accordance with any applicable federal and state laws and regulations,
including 8.200.430.12 NMAC and 8.352 NMAC, et seq.
(2) Fair hearings related to adverse actions by NMHIX shall be
held in accordance with any applicable federal and state laws and regulations,
including those set forth in 45 CFR 155 Subpart F.
B. A household may designate an
authorized representative to request a hearing on its behalf and to represent
them during the fair hearing process. The
claimant or [his or her] their authorized representative must
complete a request for access to a case record each time [he or she wishes]
they wish to have access to the record outside what is provided to the
claimant in the summary of evidence (SOE). If the claimant wishes to have [his or her]
their authorized representative review the record in [his or her]
their absence, the claimant must provide formal documentation
authorizing the named individual(s) to access the identified case information
for a specified purpose and time frame.
C. Hearing
rights: Each household has the right
to request a fair hearing and:
(1) to be advised of the nature and
availability of a fair hearing and an ARC, if applicable;
(2) to be represented by counsel or other
authorized representative of the claimant's choice;
(3) to receive reasonable assistance in
completing procedures necessary to request a fair hearing; and
(4) to receive a copy of the SOE and any
document contained in the claimant's case record in order to prepare for the
fair hearing in accordance with Subsection B of 8.100.970.8 NMAC; the
department shall forward the SOE and any other document(s) submitted to the
fair hearings bureau for admission into the fair hearing record to the
claimant’s authorized representative once the department or NMHIX
becomes aware that an authorized representative has been designated by the
claimant;
(5) to have a fair hearing that safeguards
the claimant's opportunity to present a case;
(6) where applicable/for non-NMHIX
matters, to elect to continue to receive the current level of benefit,
provided the request for hearing is received by the department before the close
of business of the [thirteenth (13th)] 13th day immediately
following the date of the notice of adverse action; a claimant that elects to
continue to receive the same level of benefit pending the fair hearing decision
shall be informed that a hearing decision in favor of the department may result
in an overpayment of benefits and a requirement that the household repay the
benefits; a claimant may waive a continuation of benefits pending the outcome
of the fair hearing;
(7) in matters involving NMHIX, to be considered eligible
while an appeal is pending, in accordance with the provisions of 45 CFR §
155.525;
[(7)]
(8) to have prompt notice
and implementation of the final fair hearing decision; and
[(8)]
(9) to be advised that
judicial review may be invoked to the extent such review is available under
state or federal law; and
(10) in matters involving NMHIX, to be advised that a second-tier
appeal to the United States department of health and human services is
available.
D. The department and NMHIX will neither provide representation
for, nor pay for any costs incurred by a claimant or the authorized representative
in preparation for, or attendance at an ARC, fair hearings or judicial appeals.
E. Notice of rights:
(1) At the time of application for
assistance, the department shall inform each applicant of the applicant’s right
to request a fair hearing if the applicant disagrees with an action taken by
the department. In matters involving
NMHIX, NMHIX shall provide notice of appeal rights and appeal procedures,
including the right to request a fair hearing, at the time that the applicant
submits an application and the notice of
eligibility determination is sent under 45 CFR §§ 155.310(g), 155.330(e)(1)(ii), 155.335(h)(1)(ii), and 155.610(i). The applicant
may choose to receive the notice by mail or in electronic format.
(2) The notice shall inform the applicant
of the procedure by which a fair hearing may be requested and that the
claimant's case may be presented by the claimant or an authorized
representative.
(3) The department shall remind the
household of its right to request a fair hearing any time the household
expresses disagreement with an action taken on its case by the department.
(4) Each county office shall post a notice
of the right to request a fair hearing and an ARC, and a copy shall be given,
upon request, to any person that has requested a hearing.
(5) Each notice provided to a claimant
pursuant to this section shall include a statement that free legal assistance,
by an individual or organization outside of the department, may be available to
assist with the fair hearing process.
(6) A claimant may request special
accommodations for a disability or a language or speech interpreter be
available during [a] an informal resolution process, a fair
hearing or ARC. An interpreter or special accommodations shall be provided by
the department or NMHIX, as applicable, at no cost to the claimant. A request for a language interpreter, a
speech interpreter or other disability accommodation must be made within [ten
(10)] 10 days of the date of the fair hearing. If an interpreter or disability
accommodations are not requested timely, the claimant can request postponement
of the hearing in accordance with Subsection B of 8.100.970.10 NMAC.
F. Special provisions pertaining to mass
changes: Special provisions apply in
situations involving mass changes. These provisions are contained at
8.100.180.12 and 15 NMAC, 8.139.120.13 NMAC, 8.139.500.8 and 9 NMAC,
8.106.630.10 and 11 NMAC, 8.102.501.9 NMAC and 8.102.630.10 NMAC.
G. Continuing benefit for cash assistance: If a claimant who is a cash assistance
recipient requests a fair hearing before the close of business of the [thirteenth
(13th)] 13th day immediately following the date of the notice of
adverse action, the claimant may elect to waive or continue receiving the same
amount of cash assistance and services issued immediately prior to the notice
of adverse action until a final decision is issued. If there is no indication that the claimant
has waived a continuation of benefits, the department will assume a
continuation of benefits is desired. The
household is required to comply with the reporting and renewal provisions at
8.102.120 NMAC and 8.106.120 NMAC. Cash
assistance recipients are to continue compliance with the NMW compliance
requirements at 8.102.460 NMAC.
H. Continuing SNAP benefits: If a claimant who is a SNAP recipient
requests a fair hearing before the close of business of the [thirteenth
(13th)] 13th day immediately following the date of the notice of
adverse action, the claimant may elect to waive or continue receiving the same
amount of SNAP benefits issued immediately prior to the adverse action until a
final decision is issued. If there is no indication that the claimant has
waived a continuation of benefits, the department will assume a continuation of
benefits is desired. The claimant is
required to comply with the reporting and renewal provisions at 8.139.120 NMAC.
I. Continuing eligibility for a
medical assistance program: If a
claimant who is a recipient of a medical assistance program requests a fair
hearing before the close of business of the [thirteenth (13th)] 13th
day immediately following the date of the notice of adverse action, the
claimant may elect to waive or continue receiving the same medical assistance
benefit issued immediately prior to the adverse action until a final decision
is issued. If there is no indication that the claimant has waived a continuation
of benefits, the department will assume a continuation of benefits is
desired. If the hearing is regarding the
termination, modification, reduction or suspension of medical assistance
program services, a continuation of services is governed by all applicable
federal and state laws and regulations, including 8.352 NMAC, et seq.
J. Continuing
eligibility in cases involving NMHIX:
In matters involving NMHIX, eligibility pending appeal is governed by
the provisions of 45 CFR § 155.525.
[8.100.970.8 NMAC - Rp,
8.100.970.8 NMAC, 11/27/2013; A/E, 11/1/2021; A, 4/1/2022]
8.100.970.9 THE
HEARING PROCESS:
A. Initiation of the hearing process:
(1) A request for a fair hearing can be
made by the claimant or an authorized representative orally or in writing.
(2) If a claimant requests a fair hearing
orally, the department shall take such actions as are necessary to initiate the
fair hearing process.
(3) The fair hearings bureau shall
promptly send written acknowledgement to the claimant and the authorized
representative upon its receipt of a written or oral hearing request.
B. Time limits:
(1) A household or its authorized
representative shall request a fair hearing no later than close of business on
the [ninetieth (90th)] 90th day following
the date of the notice of adverse action.
If the ninetieth (90th)] 90th day falls on a weekend,
holiday or other day the department is closed, a request received the next
business day will be considered timely.
(2) The department shall assure that the
fair hearing is conducted, a fair hearing decision is reached and the claimant
and the authorized representative are notified of the decision within the
specified program time limit set forth below, except in instances where the
time limit may be extended pursuant to Subsection B of 8.100.970.10 NMAC or Subsection
G of 8.100.970.12 NMAC.
(a) SNAP program: The final fair hearing decision shall be
issued to the claimant and the authorized representative within [sixty (60)]
60 days from the date the department receives the hearing request unless
extended pursuant to Subsection B of 8.100.970.10 NMAC or Subsection G of
8.100.970.12 NMAC.
(b) Cash assistance programs: The final fair hearing decision shall be
issued to the claimant and the authorized representative within [ninety (90)]
90 days from the date that the department receives the hearing request
unless extended pursuant to Subsection B of 8.100.970.10 NMAC or Subsection G
of 8.100.970.12 NMAC.
(c) LIHEAP: The final fair hearing decision shall be
issued to the claimant and the authorized representative within [sixty (60)]
60 days from the date that the department receives the hearing request
unless extended pursuant to Subsection B of 8.100.970.10 NMAC or Subsection G
of 8.100.970.12 NMAC.
(d) Medical assistance programs: The final fair hearing decision shall be
issued to the claimant and the authorized representative within [ninety (90)]
90 days from the date that the department receives the hearing request
unless extended pursuant to Subsection B of 8.100.970.10 NMAC or Subsection G
of 8.100.970.12 NMAC. Fair hearing
decisions regarding the termination, modification, reduction or suspension of
services is governed by all applicable federal and state laws and regulations,
including 8.352 NMAC, et seq.
(e) NMHIX matters: The final fair hearing decision shall be
issued to the claimant and the authorized representative within 90 days from
the date of the appeal request. Fair
hearing decisions regarding adverse actions by NMHIX are governed by all
applicable federal and state laws and regulations, including 45 CFR 155 Subpart
F. In the case of an appeal request submitted under 45 CFR 155.540 that the
department determines meets the criteria for an expedited appeal, the
department must issue the fair hearing decision notice as expeditiously as
reasonably possible.
C. Jurisdiction of the fair hearings
bureau:
(1) An applicant for, or recipient of, a
department administered public assistance program may request a fair hearing,
and the department’s fair hearings bureau shall have jurisdiction over the
matter, if:
(a) an application
for benefits or services is denied in whole or in part, or not processed
timely;
(b) assistance or
services are reduced, modified, terminated, suspended or not provided, or the
form of payment is changed;
(c) a good cause
request for not participating in the work program or CSED is denied in whole or
in part;
(d) the department
refuses or fails to approve a work program participation plan, or the
supportive services related to it, that have been developed by a participant;
or
(e) the claimant is
aggrieved by any other action affecting benefit level or participation in an
assistance program administered by HSD.
(2) An applicant for, or enrollee in, health insurance
coverage or insurance affordability programs through the New Mexico health
insurance exchange may request a fair hearing, and the department’s fair
hearings bureau shall have jurisdiction over the matter, if the applicant or
enrollee is appealing:
(a) An eligibility determination made in
accordance with 45 CFR Subpart D, including:
(i) an initial determination of
eligibility, including the amount of advance payments of the premium tax credit
and level of cost-sharing reductions, made in accordance with the standards in 45
CFR § 155.305(a) through (h); and
(ii) a redetermination of eligibility,
including the amount of advance payments of the premium tax credit and level of
cost-sharing reductions, made in accordance with 45 CFR § 155.330 and 155.335;
(iii) a determination of eligibility for
an enrollment period, made in accordance with 45 CFR § 155.305(b); and
(b) A failure by NMHIX to provide timely
notice of an eligibility determination in accordance with 45 CFR § 155.310(g),
45 CFR § 155.330(e)(1)(ii), 45 CFR § 155.335(h)(1)(ii), or 45 CFR § 155.610(i).
[(2)] (3) Fair hearing requests submitted to the local county office shall be
immediately forwarded to the fair hearings bureau for scheduling. The fair hearings bureau shall promptly
inform the applicable local county office upon its receipt of a written or oral
fair hearing request submitted directly to the fair hearings bureau to ensure
timely scheduling of an ARC.
D. Denial or dismissal of request for
hearing: The fair hearings bureau
shall deny or dismiss, as applicable, a request for a fair hearing when:
(1) the request is not received by the
close of business on the [ninetieth (90th)] 90th day following
the date of the notice of adverse action; in instances where the fair hearings
bureau schedules a hearing prior to becoming aware of the lateness of the fair hearing
request, the fair hearings bureau shall, upon learning of the late request,
promptly dismiss the matter and provide notice thereof to all parties;
(2) the request for a fair hearing is
withdrawn or canceled, either orally or in writing, by the claimant or
claimant's authorized representative; if withdrawn orally, the claimant and the
authorized representative shall be provided written verification of the
withdrawal and given [ten (10)] 10 calendar days from the date of
the notification to request reinstatement of the hearing;
(3) the sole issue presented concerns a
federal or state law requiring an adjustment of assistance for all or certain
classes of clients, including but not necessarily limited to a reduction,
suspension or cancellation of benefits, unless the reason for the hearing
request involves alleged error in the computation of benefits (e.g. mass
changes);
(4) the claimant fails to appear, without
good cause, at a scheduled fair hearing;
(5) the same issue has already been
appealed and a hearing decision made;
(6) there is no adverse action or delay
of benefits or services for which a fair hearing may be requested; or
(7) the issue is one that the fair
hearings bureau does not have jurisdiction as provided by federal or state laws
and regulations.
(8) Requests for fair hearings for
medical assistance cases involving the termination, modification, reduction or
suspension of services are governed by all applicable federal and state laws
and regulations, including 8.352 NMAC, et seq.
(9) In matters involving NMHIX, an appeal will be dismissed if
the appellant:
(a) withdraws the appeal request in
writing or orally;
(b) fails to appear at a scheduled
hearing without good cause;
(c) fails to submit a valid appeal
request as specified in section 155.520(a)(4); or
(d) dies while the appeal is pending,
except if the executor, administrator, or other duly authorized representative
of the estate requests to continue the appeal.
E. Good cause for failing to appear:
(1) If the claimant or the claimant's
authorized representative fails to appear for a fair hearing at the scheduled
time and place, the claimant’s appeal will be considered abandoned and the fair
hearings bureau shall dismiss the matter, unless the claimant or authorized
representative presents good cause. A
claimant or authorized representative may present good cause for failing to
appear to the scheduled fair hearing at any time no later than close of
business on the [tenth (10th)] 10th calendar day immediately
following the scheduled hearing date. If the [tenth (10th)] 10th
calendar day falls on a weekend, holiday or other day that the department is
closed, a request received the next business day will be considered
timely. If good cause is submitted
timely and permitted, the fair hearings bureau shall reschedule the hearing or,
where appropriate, reinstate a matter previously dismissed.
(2) If the department fails to appear due
to circumstances beyond its control, the department may present good cause
within [ten (10)] 10 calendar days after the scheduled
hearing. If good cause is submitted
timely and permitted, the fair hearings bureau shall reschedule the fair hearing.
(3) Good cause includes, but is not
limited to, a death in the family, disabling personal illness, or other
significant emergencies. At the
discretion of the hearing officer, other exceptional circumstances may be
considered good cause.
[8.100.970.9 NMAC - Rp,
8.100.970.9 NMAC, 11/27/2013; A/E, 11/1/2021; A, 4/1/2022]
8.100.970.10 PRE-HEARING
PROCEDURE
A. Notice of hearing: Unless the claimant or authorized
representative requests an expedited scheduling of a fair hearing, the fair
hearings bureau shall provide written notice of the scheduling of a fair
hearing to all parties not less than [ten (10)] 10 calendar days
prior to date of the fair hearing, or not less than 15 calendar days prior
to the date of the fair hearing if the hearing involves an adverse action by
the New Mexico health insurance exchange (NMHIX). The notice of hearing shall include:
(1) the date, time and place of the
hearing;
(2) the name, address and phone number of
the hearing officer;
(3) information regarding the fair hearing process and the
procedures to be followed by the respective parties;
(4) the right of the claimant and the
authorized representative to receive a copy of the SOE and any document, not
specifically prohibited by federal and state law and regulation, contained in
the claimant's case record in order to prepare for the fair hearing in
accordance with Subsection B of 8.100.970.8 NMAC;
(5) notice that the appeal will be
dismissed if the claimant or the authorized representative fails to appear
without good cause;
(6) information about resources in the
community that may provide free legal assistance with the fair hearing process;
and
(7) notice that the department will not
pay for any costs of the claimant or authorized representative, including legal
counsel, that are incurred in the preparation for, or attendance at, an ARC, fair
hearing or judicial appeal.
B. Postponement: A claimant or authorized representative is
entitled to, and the fair hearings bureau shall grant, at least one
postponement of a scheduled fair hearing.
The department may request and be approved for one postponement at the
discretion of the fair hearings bureau due to the unavailability of any
department witness to appear at the scheduled fair hearing. Requests for more than one postponement are
considered at the discretion of the fair hearings bureau, on a case-by-case
basis. A request for postponement must
be submitted not less than [one (1)] one business day prior to
the scheduled fair hearing, unless otherwise allowed by the fair hearings
bureau, and is subject to the following limitations:
(1) SNAP
and LIHEAP cases: A postponement may
not exceed [thirty (30)] 30 days and the time limit for action on
the decision is extended for as many days as the fair hearing is postponed.
(2) Cash
assistance cases: The fair hearing
may be postponed, but must be rescheduled to assure a final decision is made no
more than [ninety (90)] 90 days from the date of the request for fair
hearing.
(3) Medical
assistance cases: The fair hearing
may be postponed, but must be rescheduled to assure a final decision is made no
more than [ninety (90)] 90 days from the date of the request for fair
hearing. Fair hearings for medical
assistance cases involving the termination, modification, reduction or
suspension of services are governed by all applicable federal and state laws
and regulations, including 8.352 NMAC, et seq.
(4) NMHIX cases:
The fair hearing may be postponed but must be rescheduled to assure a
final decision is made not more than 90 days from the date of the appeal
request.
[(4)]
(5) The fair hearings bureau shall issue notice of the rescheduling of
a postponed fair hearing not less than [ten (10)] 10 calendar
days before the rescheduled date, unless oral agreements are obtained from all
parties to reschedule the fair hearing with less notice in an effort to meet
the required timeframes. Documentation
of the oral agreement shall be maintained in the fair hearing record.
C. Expedited hearing:
(1) SNAP cases: Hearing requests from SNAP households, such
as migrant farm workers that plan to move out of the state before the hearing
decision would normally be made should be scheduled on an expedited basis.
(2) NMHIX cases:
an appellant may request an expedited appeals process where there is an
immediate need for health services because a standard appeal could jeopardize
the appellant’s life, health, or ability to attain, maintain, or regain maximum
function. If the request for an
expedited appeal is denied, the appeal request must be handled under the
standard process and the appellant must be promptly informed of the denial,
through electronic or oral notification, if possible. If notification is oral, the appeals entity
must follow up with the appellant by written notice. Written notice of the denial must include:
(a) the reason for the denial;
(b) an explanation that the appeal
request will be transferred to the standard process; and
(c) an explanation of the appellant's
rights under the standard process.
D. Group hearings: A hearing
officer may respond to a series of individual requests for hearings by
conducting a single group hearing. Group
hearing procedures apply only to cases in which individual issues of fact are
not disputed and where related issues of state or federal law, regulation or
policy are the sole issues being raised.
In all group hearings, the regulations governing individual hearings are
followed. Each individual claimant is
permitted to present the claimant’s own case or to be represented by an authorized
representative. If a group hearing is
scheduled, any individual claimant may withdraw from the group hearing and
request an individual hearing. The confidentiality of client records is to be
maintained in accordance with federal and state laws and regulations.
E. Agency review conference (ARC): [The] Except in matters involving
NMHIX, the department and the claimant are encouraged to meet for an ARC
before the scheduled fair hearing to discuss the department’s action(s) that
the claimant has appealed. The ARC is
optional and does not delay or replace the fair hearing process. An ARC will be held within [ten (10)] 10
calendar days from the date of the fair hearing request. If the claimant submits a hearing request to
the field office, in person or by telephone, the ARC may, at the claimant’s
option, be conducted at that time. An
appeal may not be dismissed by the department for failure of the claimant or
authorized representative to appear at a scheduled ARC.
(1) The department shall send a written
notice of the scheduled ARC to the claimant and authorized representative. The
claimant may choose to receive the notice by mail or in electronic format.
(2) An ARC may be attended by all parties
responsible for and affected by the adverse action taken by the department,
including but not limited to, the ISD field office staff, the CSED, a NMW
representative and the claimant or its authorized representative.
(3) The purpose of the ARC is to
informally review the adverse action taken by the department and to determine
whether the dispute can be resolved in accordance with federal and state law
and regulation. The ARC is optional and
shall in no way delay or replace the fair hearing process, unless the outcome
of the ARC is the claimant withdrawing the fair hearing request.
(4) For cases in which the household
appeals a denial of expedited SNAP service, the ARC shall be scheduled within [two
(2)] two business days, unless the household requests that it be
scheduled at a later date or does not wish to have an ARC.
(5) A household may request an ARC in
order to discuss an adverse action taken by the department against the
household, regardless of whether or not a fair hearing is requested.
F. Summary of evidence (SOE): An SOE shall
be prepared by the department or NMHIX, if applicable, and submitted to
the fair hearings bureau and the claimant and authorized representative no less
than [ten (10)] 10 calendar days prior to the date of the fair
hearing. Failure to provide the SOE
within the prescribed timeframe may result in its exclusion or a postponement
or continuance of the hearing at the discretion of the hearing officer pursuant
to Subsection B of 8.100.970.10 NMAC and Subsection D of 8.100.970.12
NMAC. Unless the hearing request is
withdrawn by the claimant or authorized representative, an SOE shall be
prepared and submitted in accordance with this paragraph, regardless of the
results of an ARC. The SOE shall contain
at least the following information:
(1) identifying information, including
but not limited to, claimant's name, at least the last four digits of the
claimant’s social security number, the claimant’s individual identification
number, [or] case identification number or reference
identification number, the claimant’s last known address, and the type of
assistance involved, if applicable;
(2) the issue(s) on appeal that outlines
the adverse action taken by the department against the household;
(3) documentation in support of the
department’s adverse action, including any facts, information and department
findings related to the fair hearing issue(s);
(4) applicable federal and state laws and
regulations, internal department policy documents, and any additional supportive
legal documentation; and
(5) results of the ARC, if completed at
the time of submission of the SOE.
G. Availability of information: The department
staff shall:
(1) allow the claimant and the authorized
representative to examine the case record and provide the claimant and the
authorized representative a copy of the SOE and any document, not specifically
prohibited by federal and state laws and regulations, contained in the
claimant's case record in order to prepare for the fair hearing in accordance
with Subsection B of 8.100.970.8 NMAC; and
(2) provide accommodations for a
disability or a language or speech interpreter in accordance with Paragraph (6)
of Subsection E of 8.100.970.8 NMAC and 45 CFR section 155.505(f), as
applicable.
[8.100.970.10 NMAC - Rp,
8.100.970.10 NMAC, 11/27/2013; A/E, 11/1/2021; A, 4/1/2022]
8.100.970.11 HEARING
STANDARDS
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 [his or her] 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 [his or her] 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.
[8.100.970.11 NMAC - Rp,
8.100.970.11 NMAC, 11/27/2013; A/E, 11/1/2021; A, 4/1/2022]
8.100.970.12 CONDUCTING
THE FAIR HEARING: A fair hearing is conducted in an orderly
manner and in an informal atmosphere. The fair hearing is not open to the
public. The fair hearing is conducted by
telephone, unless the claimant or the authorized representative makes a special
request for the fair hearing to be held in person and the request is justified
by special circumstances, as determined by the hearing officer on a
case-by-case basis. In cases
involving NMHIX, the fair hearings shall also be conducted in accordance with
45 CFR 155.535(c)-(f).
A. Opening the fair hearing: The fair
hearing is opened by the hearing officer who will explain the telephonic fair
hearing procedures to all present at the fair hearing. The hearing officer will
then explain [his or her] their role in the proceedings, and that
the final fair hearing decision on the issue(s) appealed will be made by the
appropriate department division director after review of the hearing officer's
report and recommendation, including the fair hearing record. On the record,
the individuals present are asked to identify themselves, the order of
testimony is explained, the oath is administered to all witnesses who will
testify during the hearing, the issue is identified, and all pleadings, papers,
and requests, including but not limited to, the SOE and any evidence being
presented, will be identified and entered into the record with any objections
handled in accordance with applicable federal and state laws and regulations.
B. Order of testimony: The order of
testimony is as follows:
(1) Presentation
of the department’s case: The
department or NMHIX will present its case and the evidence, including
testimony and exhibits, in support of the adverse action taken against the
household, and:
(a) the claimant or
authorized representative may cross-examine the department representative;
(b) the hearing
officer may ask further clarifying questions; and
(c) if the
department calls other witnesses, the order of examination of each witness is
as follows:
(i) direct
testimony by the witness(es);
(ii) cross-examination
by the claimant or the authorized representative; and
(iii) examination
or further clarifying questions by the hearing officer or, if requested, follow
up questions from the department representative.
(2) Presentation
of the claimant’s/appellant’s case:
The claimant or the authorized representative will present its case and
the evidence, including testimony and exhibits, in support of its position,
and:
(a) the department
may cross-examine the claimant or the
authorized representative;
(b) the hearing
officer may ask further clarifying questions; and,
(c) if the claimant
calls other witnesses, the order of examination of each witness is as follows:
(i) direct
testimony by the witness(es);
(ii) cross-examination
by the department representative; and
(iii) examination
or further clarifying questions by the hearing officer or, if requested, follow
up questions from the claimant or the authorized representative.
(3) The claimant may offer evidence on
the points at issue without undue interference, may request proof or
verification of evidence or statements submitted by the department or its
witnesses, and may present evidence in rebuttal.
(4) The hearing officer may ask the
parties to summarize and present closing arguments.
C. Written closing argument: If the
claimant or the department is represented by legal counsel, the hearing officer
may request that the closing argument be submitted in writing to the fair hearings
bureau.
D. Continuance: The hearing
officer may continue the hearing upon the request of either party, or on the
hearing officer’s own motion, for admission of additional testimony or
evidence. A party seeking a continuance in order to obtain additional evidence
must make a showing that the evidence was not available at the time of the
hearing despite a reasonable attempt having been made to obtain it. The granting of a continuance is at the
discretion of the hearing officer is subject to the same limitations set forth
in Subsection B of 8.100.970.10 NMAC. The
reason(s) for the continuance and if any oral agreements were reached in
regards to the continuance shall be stated for the hearing record. The fair hearings bureau shall issue notice of
the rescheduling of a continued fair hearing not less than [ten (10)] 10
calendar days before the rescheduled date, unless oral agreements are obtained
from all parties to reschedule the fair hearing with less notice in an effort
to meet the required timeframes.
E. Additional documentary evidence:
If the hearing officer requests
additional documentary evidence based on testimony heard during the fair
hearing, the hearing officer may close the fair hearing but keep the record
open subject to production of the additional evidence being submitted by a
party or parties.
(1) The hearing officer shall set a date
and time for production of the requested evidence, not to exceed [ten (10)]
10 calendar days; the party producing the additional evidence shall
submit copies to the hearing officer and each party.
(2) Within [ten (10)] 10
calendar days of its receipt of the additional evidence, the non-producing
party may submit a written response to the hearing officer and each party that
will become part of the fair hearing record; or, the hearing officer may
continue the hearing until such a date and time that the non-producing party
may respond to the additional evidence on the record.
(3) The hearing officer shall close the
record at the close of business on the [tenth (10th)] 10th
calendar day following its receipt of the additional evidence.
(4) The hearing officer may only request
additional evidence pursuant to this paragraph if it will not result in a
violation of the limitations set forth in Subsection B of 8.100.970.10 NMAC.
F. Re-opening a fair hearing: The hearing officer, at the hearing officer’s
discretion, may re-open a fair hearing when the evidentiary record fails to
address an issue that is relevant to resolution of a fair hearing request. The fair hearing can only be re-opened if the
parties have agreed to an extension of the timeframes in accordance with Paragraph
(2) of Subsection B of 8.100.970.9 NMAC and the limitations set forth in Subsection
B of 8.100.970.10 NMAC. Written notice of the date, time and place of the
re-opened fair hearing is sent to the parties, not less than [ten (10)] 10
days before the date of the re-opened hearing, or not less than 15 days in
matters involving NMHIX, unless oral agreements are obtained from all
parties to reschedule the fair hearing with less notice in an effort to meet
the required timeframes.
[8.100.970.12 NMAC - Rp,
8.100.970.12 NMAC, 11/27/2013; A/E, 11/1/2021; A, 4/1/2022]
8.100.970.13 FAIR
HEARING DECISION: The final fair hearing decision shall be made
by the appropriate department division director after review of the fair
hearing record and the hearing officer's report and recommendation.
A. Hearing officer recommendation: The hearing
officer reviews the record of the fair hearing and all appropriate regulations,
and evaluates the testimony and evidence admitted during the hearing. The hearing officer submits the complete
record of the fair hearing, along with the hearing officer’s report and
recommendation, in a standard format to the appropriate division director(s)
within [fifteen (15)] 15 days of the hearing, or sooner, to
ensure the timeframes set forth in Paragraph (2) of Subsection B of 8.100.970.9
NMAC are met.
B. Content of recommendation: The hearing officer specifies the reason(s)
for all factual conclusions, identifies the supporting evidence, references the
relevant federal and state laws and regulations, along with appropriate
department policy and procedural guidance, and responds to the arguments of the
parties in a written report and recommendation.
The hearing officer shall submit a recommendation:
(1) in favor of the claimant when the
adverse action taken by the department is not supported by a preponderance of the
evidence available as a result of the fair hearing;
(2) in favor of the department when the
preponderance of the evidence, available as a result of the fair hearing,
supports the adverse action taken by the department is in accordance with
federal and state laws and regulations; or
(3) any other result supported by the fair hearing record.
C. Review of recommendation: The fair hearing record and report and
recommendation are reviewed by the appropriate department division director(s)
or designee to ensure conformity with applicable federal and state laws and
regulations.
D. Final decision: The hearing
officer's recommendation may be adopted or rejected, in whole or in part, in a
final written decision by the appropriate department division director. The final fair hearing decision shall be
based solely on the fair hearing record as defined in Paragraph (3) of
Subsection I of 8.100.970.11 NMAC. The final fair hearing decision must
summarize the facts of the case, specify the reasons for the decision, and
identify the supporting evidence and relevant federal and state laws and
regulations. No person who participated
in the original action under appeal may participate in arriving at the final
fair hearing decision. The final fair hearing decision becomes part of the fair
hearing record.
E. Notice to claimant: The claimant, the authorized representative
and the department shall be notified in writing of the final fair hearing
decision and its effect on the benefits.
If a claimant has an authorized representative, the authorized
representative is mailed a copy of the final fair hearing decision. When a final fair hearing decision is adverse
to the claimant, the decision shall include:
(1) a statement that the claimant has
exhausted all administrative remedies available;
(2) the claimant's right to pursue
judicial review of the final fair hearing decision; and
(3) information on how to file an appeal
of the final fair hearing decision, the timeframe for filing an appeal and
where the appeal may be filed.
F. Fair
hearing decisions involving adverse actions by NMHIX: The provisions of Subsections A through E of
8.100.970.13 NMAC do not apply to fair hearings involving adverse actions by
NMHIX. For hearings involving adverse
actions by NMHIX, there shall be no recommendation by the hearing officer. The hearing officer shall instead issue a
written final fair hearing decision, which shall become part of the fair
hearing record, and which shall:
(1) be based exclusively on:
(a) the information used to determine the
appellant’s eligibility as well as any additional relevant evidence presented
during the course of the appeals process, including at the hearing; and
(b) the eligibility requirements under
Subpart D or G of 45 CFR Part 155, as applicable.
(2) state the decision, including a plain language description
of the effect of the decision on the appellant’s eligibility;
(3) summarize the facts relevant to the appeal;
(4) identify the legal basis, including the regulations that
support the decision;
(5) state the effective date of the decision;
(6) provide an explanation of the appellant’s right to pursue
the appeal before the HHS appeals entity, including the applicable timeframe,
if the appellant remains dissatisfied with the eligibility determination; and
(7) indicate that the decision of the fair hearing officer is
final, unless the appellant pursues a second-tier appeal before the United
States department of health and human services.
[8.100.970.13 NMAC - Rp,
8.100.970.13 NMAC, 11/27/2013; A/E, 11/1/2021; A, 4/1/2022]
8.100.970.14 IMPLEMENTATION
OF DECISION: Unless stayed by court order, the
department’s final fair hearing decision is binding on all issues that have
been the subject of the fair hearing as to that claimant. The local county office is responsible for
assuring that decisions are implemented within the timeframes specified
below. The final fair hearing decision
serves as advanced notice for changes in benefits or services.
A. Decision favorable to the department: If assistance
or benefits have been continued pending the outcome of the fair hearing and the
decision is favorable to the department, the department shall take immediate
action to adjust the payment and submit a claim for the excess benefit
amount(s) paid pending the outcome of the fair hearing.
B. Decision favorable to the claimant:
(1) Cash
assistance programs: When a fair
hearing decision is favorable to the claimant, the department authorizes
corrective payment. For incorrectly denied
cases, corrected benefits are issued retroactively in the following manner:
(a) to the date of
adverse action or to the [thirtieth (30th)] 30th
day from the application date, whichever is earlier; or
(b) to the first day
of the month that the case is actually eligible for benefits;
(c) for ongoing
cases, the corrected cash assistance payments are retroactive to the first day
of the month that the incorrect action became effective.
(2) SNAP: Decisions that result in an increased benefit
shall be reflected in the claimant's next authorized allotment. The final fair hearing decision serves as
verification for increased benefits.
(3) Medical
assistance programs: When a fair
hearing decision is favorable to the claimant and a case was incorrectly
denied, corrected benefits are issued retroactively in the following manner:
(a) to the date of
adverse action or to the [thirtieth (30th)] 30th day from the
application date, whichever is earlier; or
(b) to the first day
of the month that the case is actually eligible for benefits;
(c) for ongoing
cases, the corrected benefit is retroactive to the first day of the month that
the incorrect action became effective;
(d) fair hearings
for medical assistance programs involving the termination, modification,
reduction or suspension of services are governed by applicable federal and
state law and regulations, including 8.352 NMAC, et seq.
C. Implementation
of decisions related to NMHIX:
Unless stated by court order, the department’s final fair hearing
decision is binding on all issues that have been the subject of the fair
hearings as to that claimant. NMHIX,
upon receiving notice of the final fair hearing decision, must promptly:
(1) Implement the decision effective:
(a) Prospectively, on the first day of
the month following the date of the notice of appeal decision, or consistent
with 45 CFR section 155.330(f)(2), (3), (4), or (5), if applicable; or
(b) Retroactively, to the coverage
effective date the appellant did receive or would have received if the
appellant had enrolled in coverage under incorrect eligibility determination
that is the subject of the appeal, at the option of the appellant.
(2) Redetermine the eligibility or household members who have
not appealed their own eligibility determinations but whose eligibility may be
affected by the appeal decision, in accordance with the standards specified in 45
CFR section 155.305.
[8.100.970.14 NMAC - Rp,
8.100.970.14 NMAC, 11/27/2013; A/E, 11/1/2021; A, 4/1/2022]
8.100.970.15 JUDICIAL
REVIEW
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 [thirty
(30)] 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 [thirty
(30)] 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.
[8.100.970.15 NMAC - Rp,
8.100.970.15 NMAC, 11/27/2013; A/E, 11/1/2021; A, 4/1/2022]