New Mexico
Register / Volume XXXV, Issue 11 / June 11, 2024
This amendment to
8.100.970 NMAC, Section 1, 3 & 9 effective 7/1/2024.
8.100.970.1 ISSUING
AGENCY: [New Mexico Human Services
Department] New Mexico Health Care Authority.
[8.100.970.1 NMAC - Rp,
8.100.970.1 NMAC, 11/27/2013; A, 7/1/2024]
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)] Health Care Authority (HCA) was created by the HSD secretary
under authority granted by 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] New Mexico health care authority
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; A, 7/1/2024]
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 90th day following the date of the notice of
adverse action. If the 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 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 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 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 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 section 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 section 155.330 and
155.335;
(iii) a determination of eligibility for
an enrollment period, made in accordance with 45 CFR section 155.305(b); and
(b) A failure by NMHIX to provide timely
notice of an eligibility determination in accordance with 45 CFR section
155.310(g), 45 CFR section 155.330(e)(1)(ii), 45 CFR section 155.335(h)(1)(ii),
or 45 CFR section 155.610(i).
(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 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 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)]
(3) the claimant fails to
appear, without good cause, at a scheduled fair hearing;
[(5)] (4) the same issue has already been appealed and a
hearing decision made;
[(6)]
(5) there is no adverse
action or delay of benefits or services for which a fair hearing may be
requested; or
[(7)]
(6) the issue is one that the
fair hearings bureau does not have jurisdiction as provided by federal or state
laws and regulations;
[(8)]
(7) 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)] (8) 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 10th calendar day immediately following the
scheduled hearing date. If the 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 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;
A, 7/1/2024]