TITLE 8 SOCIAL
SERVICES
CHAPTER 352 ADMINISTRATIVE
HEARINGS
PART 2 CLAIMANT HEARINGS
8.352.2.1 ISSUING
AGENCY: New Mexico Health Care Authority.
[8.352.2.1 NMAC -
Rp, 8.352.2.1 NMAC, 6/15/2014; A, 7/1/2024]
8.352.2.2 SCOPE: The rule applies to the general public.
[8.352.2.2 NMAC -
Rp, 8.352.2.2 NMAC, 6/15/2014]
8.352.2.3 STATUTORY
AUTHORITY: The New Mexico medicaid program and other
health care programs are administered pursuant to regulations promulgated by
the federal department of health and human services under Title XIX of the
Social Security Act as amended or by state statute. See Section 27-1-12 et seq
NMSA 1978. Section 9-8-1 et seq. NMSA 1978 establishes
the health care authority (HCA) as a single, unified department to administer
laws and exercise functions relating to health care facility licensure and
health care purchasing and regulation.
[8.352.2.3 NMAC -
Rp, 8.352.2.3 NMAC, 6/15/2014; A, 7/1/2024]
8.352.2.4 DURATION: Permanent.
[8.352.2.4 NMAC -
Rp, 8.352.2.4 NMAC, 6/15/2014]
8.352.2.5 EFFECTIVE
DATE: June 15, 2014, unless a later date is cited
at the end of a section.
[8.352.2.5 NMAC -
Rp, 8.352.2.5 NMAC, 6/15/2014]
8.352.2.6 OBJECTIVE: The objective of this rule is to provide
instruction for the service portion of the New Mexico medical assistance
programs.
[8.352.2.6 NMAC -
Rp, 8.352.2.6 NMAC, 6/15/2014]
8.352.2.7 DEFINITIONS:
A. “Administrative law judge (ALJ)” means the hearing officer
appointed by the HSD fair hearings bureau (FHB) to oversee the claimant’s
administrative hearing process, to produce and evidentiary record and render a
recommendation to the medical assistance division director.
B. “Appeal” means the process open to a managed care
organization’s member when his or her managed care organization (MCO) has
taken, or intends to take, an adverse action related to the member’s benefits
or services.
C. “Authorized representative” means the individual
designated to represent and act on the claimant’s behalf during the appeal
process. The claimant or authorized representative
must provide formal documentation authorizing the named individual or
individuals 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, or any other
individual or individuals designated in writing by the claimant.
D. “Claimant” means the individual, or in case of eligibility
determinations, the household, requesting a HSD administrative hearing that is
claiming to be affected by an adverse action or actions taken or intended to be
taken by MAD, its UR contractor or a MCO.
E. “HSD administrative hearing” or “fair hearing” means an
informal evidentiary hearing that is conducted by the FHB so that evidence may
be presented as it relates to an adverse action taken, or intended to be taken,
by MAD, its UR contractor, or the MCO; see Section 10 of this rule for
definitions of an adverse action.
F. “MAD” means the medical assistance division, which
administers medicaid and other medical assistance programs under HSD.
G. “MAP” means the medical assistance programs administered
by MAD.
H. “MCO” means a member’s HSD contracted managed care
organization.
I. “MCO appeal decision” means the MCO’s final decision
regarding a member’s appealed adverse action it intends to take or has taken
against its member.
J. “Member” means a MAP eligible recipient enrolled in a HSD
contracted MCO.
K. “Notice of action” means the notice issued by MAD or its
UR contractor or a MCO. Adverse actions include:
(1) the intent of MAD or its UR contractor
or the MCO to take an adverse action against an individual in the form of a
termination, suspension, change or reduction, of an existing service including
level of care (LOC) or the transfer or discharge of a nursing facility (NF)
resident. If the notice of action is for one of the listed adverse actions, MAD
or its UR contractor or the MCO must send the notice of action 10 calendar days
prior to the date of the intended adverse action; or
(2) an adverse determination made with
regard to preadmission or annual resident review (PASRR) requirements; or
(3) the denial or reduction, or a limited
authorization of a service including the type or level of care of a request for
a new service or item.
L. “Parties to the hearing” are MAD and as appropriate, its
designees, the individual’s MCO or the MAD UR contractor, and the claimant or
authorized representative.
M. “UR contractor” is a MAD contractor responsible for
physical and behavioral health level of care (LOC) reviews, medical necessity
reviews, and other determinations as directed by MAD when a MAP eligible
recipient is enrolled in a medicaid fee-for-service plan.
[8.352.2.7 NMAC -
Rp, 8.352.2.7 NMAC, 6/15/2014]
8.352.2.8 MISSION
STATEMENT: To reduce the impact of poverty on people
living in New Mexico by providing support services that help families break the
cycle of dependency on public assistance.
[8.352.2.8 NMAC -
Rp, 8.352.2.8 NMAC, 6/15/2014]
8.352.2.9 CLAIMANT
OR THE CLAIMANT’S AUTHORIZED REPRESENTATIVE AND HSD ADMINISTRATIVE HEARING
PROCESS: MAD has established a process to determine if
an individual is eligible to request a HSD administrative hearing. MAD has also established a process for an
individual or the individual’s authorized representative to request a HSD
administrative hearing when an adverse action is intended or has been taken by
MAD, its UR contractor or the MCO against the individual; see Section 10 of
this rule.
A. Eligible claimant:
(1) When an adverse eligibility
determination is made by HSD against a MAP applicant, he or she may file as a
claimant to request a HSD administrative hearing. See 8.100.970 NMAC for the
rules governing a HSD administrative hearing for a MAP adverse eligibility
determination.
(2) When an adverse action is taken or
intended to be taken against a MAP eligible recipient by MAD or its UR
contractor, the MAP eligible recipient may file as a claimant to request a HSD
administrative hearing.
(3) When an adverse action is taken or
intended to be taken against a member by his or her MCO, and the member has
exhausted his or her MCO’s appeal process, he or she may file as a claimant to
request a HSD administrative hearing.
B. A claimant or the claimant’s authorized representative may
have legal counsel assist him or her during the MCO appeal and HSD
administrative hearing process. If a
claimant or the claimant’s authorized representative, MAD, its UR contractor or
the MCO retains legal counsel, that legal counsel must submit an entry of
appearance to the assigned ALJ and the ALJ will forward this information to the
MAD administrative hearings unit (MAD AHU).
[8.352.2.9 NMAC - Rp,
8.352.2.9 NMAC, 6/15/2014]
8.352.2.10 ADVERSE
ACTION: The following constitute an adverse action
for which an individual may request a MCO appeal and a HSD administrative
hearing.
A. The denial or reduction by MAD, its UR contractor, or a
MCO of an authorized service or item, including level of care (with the
exception of a MCO value-added service).
B. When a notice of action against a member is not from his
or her MCO, but instead is from an entity MAD has authorized to make
utilization of service determinations, the member may request a HSD
administrative hearing rather than request a MCO appeal.
C. The denial in whole or in part of an individual’s provider
claim by MAD, its UR contractor, or the MCO which results in the individual
becoming liable for payment of all or part of the claim when the denial is
based on medical necessity.
D. The failure of MAD, its UR contractor or the MCO to
approve a service or item in a timely manner.
E. The failure of the MCO to act on an appeal within the time-frames
specified in 42 CFR Section 438.408(b).
F. The MCO’s final decision to deny a member a MCO expedited
appeal hearing. The HSD administrative
hearing will only address the member’s request for a MCO expedited appeal
hearing.
G. The denial of an individual’s application for MAP
enrollment.
H. A determination that an individual is to be transferred or
discharged.
I. The belief of an individual or the individual’s
authorized representative that the MAD UR contractor or the MCO’s preadmission,
change in condition, or annual resident review (PASRR) requirements
determination is erroneous. When a
claimant requests a HSD administrative hearing due to an adverse PASRR
determination, the parties to the hearing will comply with 8.354.2 NMAC in
place of this rule.
[8.352.2.10 NMAC -
Rp, 8.352.2.10 NMAC, 6/15/2014]
8.352.2.11 RIGHT
TO A HSD ADMINISTRATIVE HEARING:
MAD must grant an individual or his or her authorized representative the
opportunity for a HSD administrative hearing under specific circumstances
pursuant to 42 CFR Section 431.220(a) and 27-3-3 NMSA 1978. A HSD administrative hearing occurs
telephonically between the parties to the hearing and the assigned ALJ.
A. An individual or the individual’s authorized
representative may request a HSD administrative hearing based on his or her
belief that MAD or its UR contractor intends to take, or has taken, an adverse
action.
B. A member shall have the right to request a HSD
administrative hearing after he or she has exhausted the MCO’s appeal process
and:
(1) the member does not agree with the
MCO’s final decision;
(2) the member requests an HSD
administrative hearing within 30 calendar days of the date of the MCO’s final
decision; and
(3) the basis for the member’s request for
an HSD administrative hearing meets one of the definitions of an adverse action
in Section 10 of this rule.
C. MAD, its UR contractor or the MCO will not be responsible
for any fees or costs, incurred by the individual or his or her authorized
representative as a result of a MCO appeal or a HSD administrative hearing, or
if he or she files an appeal of the HSD administrative hearing final decision
to a New Mexico district court.
[8.352.2.11 NMAC -
Rp, 8.352.2.11 NMAC, 6/15/2014]
8.352.2.12 NOTICE,
TIME LIMITS, POSTPONEMENT, OR THE DISMISSAL OF MCO APPEAL OR A HSD
ADMINISTRATIVE HEARING REQUEST:
A. Notice:
(1) MAD or its UR contractor shall issue a
“notice of action” to an individual when it intends to take an adverse action
against an individual. When the notice
of action relates to a reduction or termination of a service, LOC, or another
benefit the individual already receives, the notice of action shall be sent not
less than 10 calendar days prior to the date of MAD’s or its UR contractor’s
intended adverse action.
(2) The MCO appeal process is governed by and
set forth in detail in 8.308.15 NMAC.
B. Exceptions to a
notice of action: Notwithstanding
the notice requirement set forth in the preceding subsection, MAD, its UR
contractor or the MCO may mail a notice of action to the individual or the
individual’s authorized representative or estate (in the event of an
individual’s death) no later than the actual date of the intended adverse
action when:
(1) MAD, its UR contractor or the MCO has
confirmed the death of the individual;
(2) MAD, its UR contractor or the MCO has
received a clear written statement signed by the individual or the individual’s
authorized representative that all or a portion of an authorized service is no
longer wanted;
(3) the individual or the individual’s authorized
representative provides information to MAD, its UR contractor or the MCO that
indicates his or her understanding that such information may require MAD, its
UR contractor or the MCO to take the adverse action;
(4) MAD, its UR contractor or the MCO
learns the individual is residing in an institution, which renders the
individual ineligible for MAP enrollment and MAD services;
(5) MAD, its UR contractor or the MCO
cannot determine the physical location of either the individual, or if
designated, his or her authorized representative;
(6) MAD, its UR contractor or the MCO has
established that the individual has been accepted for medicaid services outside
of the state; or
(7) the primary care provider for the
individual has prescribed a change in his or her LOC.
C. Time limits: An individual or his or her authorized
representative must adhere to the time limits for requesting both a
continuation of a benefit and a HSD administrative hearing.
(1) Requesting a HSD administrative
hearing: an individual who is not
enrolled in a MCO has 90 calendar days from the date of the “notice of action” to
request a HSD administrative hearing. To
be considered timely, the request must be received by FHB, the individual’s
local income support division (ISD) office or by the MAD director’s office no
later than the close of business on the 90th calendar day immediately following
the date of the notice of action. If the
request for a HSD administrative hearing is mailed by the individual, the
request must be postmarked by the 90th calendar day from the date of the notice
of action. For a member of a MCO, see
8.308.15 NMAC for detailed description of the MCO appeal process.
(2) Continuation of a benefit:
(a) An individual who is not a member of a
MCO, may request that the benefit that is the subject of an adverse action
continue while his or her HSD administrative hearing proceeds. A request for a continuation of the benefit
shall be accorded to any claimant who requests the continuation within 10
calendar days of the mailing of the notice of action by MAD or its UR
contractor. The continuation of a
benefit is only available to an individual that is currently receiving the
appealed benefit and will be the same as the individual’s current allocation,
budget or LOC. MAD or its UR contractor
must provide information in its notice of action of an individual’s rights and
limitations to continue a benefit during his or her HSD administrative hearing
process and of the responsibility to repay MAD for the continued benefit if the
HSD administrative hearing final decision is against the individual.
(b) A member of a MCO must follow his or
her MCO appeal process. The member may
request the benefit that is the subject of an adverse action continue while his
or her MCO appeal process proceeds. A
request for a continuation of a benefit shall be accorded to any member who requests
the continuation within 10 calendar days of his or her MCO’s mailing of the
notice of action. The continuation of a
benefit is only available to a member that is currently receiving the appealed
benefit. The continuation of the benefit
will be the same as the member’s current allocation, budget or LOC. The MCO must provide information in its
notice of action of a member’s rights and limitations to continue a benefit
during his or her MCO appeal process and of the responsibility to repay the MCO
for the continued benefit if the MCO final appeal decision is against a member and,
if the member requests a HSD administrative hearing, its final decision is also
against the member as a claimant. The
MCO appeal process is outlined in 8.308.15 NMAC.
(3) For a member who is enrolled in a MCO
and who is dissatisfied with the MCO’s final appeal process, the time limit to
request a HSD administrative hearing is 30 calendar days following the MCO’s
final decision of his or her appeal.
(a) Upon requesting a HSD administrative
hearing within this time limit, the member is referred to as the claimant and
is governed by the remaining sections of this rule.
(b) If the member had a continuation of
his or her benefit during the MCO appeal process, the claimant automatically
maintains his or her continuation of the benefit throughout the remaining HSD
administrative hearing process. If the
claimant or the claimant’s authorized representative opts to discontinue his or
her benefit during the HSD administrative hearing process, the claimant or the
claimant’s authorized representative must contact the MCO to end services.
(4) The HSD administrative hearing is
concluded within 90 calendar days from the date the claimant or the claimant’s
authorized representative requests a HSD administrative hearing unless the
claimant or the claimant’s authorized representative agrees to extend the HSD
administrative hearing time frame in order to facilitate the process.
D. Dismissal of a
hearings request: HSD authorizes FHB
to issue a dismissal of a claimant or member’s request for a HSD administrative
hearing when:
(1) the request is not received within the
time periods specified in the rules and notice of action, or if the claimant is
a MCO member and the member has not followed or exhausted the appeal process
available under the MCO;
(2) the request is withdrawn or cancelled
in writing by the individual or the individual’s authorized representative;
(3) the sole issue presented concerns a
federal or state statue, regulation or rule requiring an adjustment of benefits
for all or certain classes of individuals, including, but not limited to, a
termination, modification, reduction, or suspension of a service;
(4) the same issue involving the individual
has already been subject to a final decision by the MAD director following a
HSD administrative hearing;
(5) the sole issue presented is regarding
a New Mexico administrative code (NMAC) rule rather than the application of the
rule to the claimant or the member; or
(6) the claimant, the member, or the
authorized representative fails to appear telephonically or in person at a
scheduled hearing without good cause at which time a HSD administrative hearing
may be considered abandoned and therefore dismissed. However, if the claimant or the claimant’s
authorized representative presents to the ALJ good cause for failure to appear
within 10 calendar days after the date of the scheduled HSD administrative
hearing, the HSD administrative hearing may be rescheduled. Good cause includes a death in the family, a
disabling personal illness or another significant emergency or at the
discretion of the ALJ, as appropriate, another exceptional circumstance. If the ALJ determines that the claimant or
the claimant’s authorized representative has shown good cause, the HSD
administrative hearing will be rescheduled.
(7) When an ALJ dismisses a claimant’s
request for a HSD administrative hearing, that decision becomes HSD’s
administrative hearing final decision. A
claimant may elect to then file a state district court judicial appeal.
[8.352.2.12 NMAC -
Rp, 8.352.2.13 NMAC, 6/15/2014]
8.352.2.13 SCHEDULING
OF A HSD ADMINISTRATIVE HEARING:
A. Scheduling: The ALJ will assign a date for a HSD
administrative hearing that affords the MAD director the opportunity to render
his or her HSD administrative hearing final decision within the 90 calendar day
time limit. The claimant or the
claimant’s authorized representative must agree via a recorded message to the
assigned ALJ or in writing to the assigned ALJ to extend the 90 calendar day
time limit up to an additional 30 calendar days to provide the necessary time for
the HSD administrative hearing to be conducted and a final decision rendered. The ALJ has the authority on a case-by-case
basis to extent the 90-calendar day time limit to more than 30-calendar days
when the claimant or the claimant’s authorized representative requests such an
extension in writing. If an
accommodation is necessary for a disability, the claimant or the claimant’s authorized
representative must notify FHB at least 10 calendar days prior to the HSD
administrative hearing.
B. Rescheduling: Any party to a HSD administrative hearing may
request, and is entitled to receive, one postponement of a HSD administrative
hearing, as long as it does not interfere with the HSD administrative hearing
final decision time frames.
(1) A request for more than one
postponement is at the ALJ’s discretion on a case-by-case basis.
(2) The claimant or the claimant’s
authorized representative must agree to allow the ALJ to extend the 90 calendar
day time limit up to an additional 30 calendar days to provide the necessary
time for the HSD administrative hearing to be conducted and a final decision
rendered.
C. Expedited HSD
administrative hearing: Any party
may request an expedited HSD administrative hearing in cases involving a
claimant’s health, safety, or service availability issues. The request must be made in writing to the
claimant’s assigned ALJ. The request
must state in detail the reasons why an expedited HSD administrative hearing is
necessary. The granting of an expedited
HSD administrative hearing is at the discretion of the ALJ.
D. Group hearing: An ALJ may respond to a series of individual
claimant or the claimant’s authorized representative requests for HSD
administrative hearings by conducting a single group hearing. In all group hearings, the rules governing an
individual HSD administrative hearing are followed. Each claimant or the claimant’s authorized
representative is permitted to present his or her own case. If a group hearing is arranged, any claimant
or a claimant’s authorized representative has the right to withdraw from the
group hearing in favor of an individual HSD administrative hearing.
[8.352.2.13 NMAC -
Rp, 8.352.2.15 NMAC, 6/15/2014]
8.352.2.14 SUMMARY
OF EVIDENCE (SOE):
A. Summary of evidence.
(1) At a HSD administrative hearing, MAD
has the burden to prove through the preponderance of the evidence that an
adverse action against a claimant is correct.
A summary of evidence (SOE) provides information concerning the basis of
MAD, its UR contractor or the MCO’s adverse action. MAD may have its designee complete an SOE for
final review by MAD; however, MAD is ultimately responsible for the submission
of its SOE. An SOE is submitted by MAD
to the ALJ and claimant or the claimant’s authorized representative within
specified timeframes.
(2) A claimant or the claimant’s
authorized representative may submit an SOE to provide the ALJ with information
to refute MAD’s SOE. A claimant or the
claimant’s authorized representative is not required to provide a SOE, as the
burden of proof falls on MAD.
(3) The MAD SOE shall, at a minimum, contain:
(a) the claimant’s name, and as
applicable, his or her authorized representative’s or legal counsel’s telephone
number and address, and the status of any previous or concurrent appeal through
his or her MCO or MAD UR contractor;
(b) the adverse action against the
claimant;
(c) the documentation supporting MAD, its
UR contractor, or the MCO basis for the intended or taken adverse action; and
(d) any applicable federal or state
statutes, regulations, rules or any combination of these; however, that a
failure by MAD, the UR contractor or a MCO to submit an applicable statute,
regulation or rule shall not constitute per se grounds for the ALJ to find that
MAD, the UR contractor or the MCO failed to meet its burden of proof.
B. Timeframes.
(1) The HSD administrative hearing.
(a) MAD’s SOE shall be delivered to the
ALJ and the parties to the HSD administrative hearing at least 10 working days
prior to the HSD administrative hearing.
(b) MAD’s SOE may be amended by MAD at any
point prior to the HSD administrative hearing if the ALJ and the claimant or
the claimant’s authorized representative is delivered copies of the amended SOE
at least two working days prior to the HSD administrative hearing. MAD is responsible for providing its UR
contractor or MCO the amended SOE.
(c) If the claimant or his or her authorized
representative has an SOE that he or she wants entered into evidence for the
HSD administrative hearing, he or she must provide the ALJ the SOE not less
than three working days prior to the HSD administrative hearing. The ALJ will provide MAD AHU with a copy of the
claimant’s SOE within one working day of its receipt. The MAD AHU will provide a copy of the SOE to
either its UR contractor or the MCO within one working day of its receipt.
(d) If the claimant or the claimant’s
authorized representative has an amendment to his or her SOE, he or she shall
follow the process in Subparagraph (c) of Paragraph (1) of Subsection B of this
section.
(2) The failure of MAD to provide its SOE in
a timely manner may, at the ALJ’s discretion result in its exclusion or a
postponement of the HSD administrative hearing charged against MAD.
(3) If the claimant or the claimant’s
authorized representative fails to provide the assigned ALJ a SOE or any
amendments to the SOE within the specified timeframes, and the claimant or the
claimant’s authorized representative wishes to submit such documents for
consideration at the HSD administrative hearing, the claimant or the claimant’s
authorized representative will utilize his or her one allowed postponement
opportunity in which to submit the SOE or any amendments to the ALJ. The ALJ will follow the process in Subparagraph
(b) of Paragraph (1) of Subsection B of this section for the disbursement of
the amended SOE.
C. Availability of
information to the claimant or the claimant’s representative: MAD, its UR contractor or the MCO shall:
(1) provide upon request to the claimant
or his or her authorized representative, any document in its possession
concerning its adverse action against the claimant that is not already in its
SOE;
(2) provide the claimant or the claimant’s
authorized representative the requested documents; such documents will be
provided by MAD, its UR contractor or MCO to the claimant or the claimant’s
authorized representative in a timely manner and without charge.
D. No party to a HSD administrative hearing may present into
evidence, as part of an amended SOE, any document or record that any other
party of the hearing has not received at least two working days prior to the
HSD administrative hearing. The ALJ will
not take such information into consideration when reaching his or her
recommendation.
[8.352.2.14 NMAC -
Rp, 8.352.2.16 NMAC, 6/15/2014]
8.352.2.15 ADMINISTRATIVE
HEARING STANDARDS:
A. Administrative law
judge.
(1) A HSD administrative hearing is
conducted by an impartial official who:
(a) does not have any personal stake or
involvement in the case; and
(b) 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 his or herself as the assigned ALJ for that case.
(2) In conducting a HSD administrative
hearing, the ALJ must:
(a) explain how the HSD 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 that has been provided to each party within the required
time-frames that the ALJ considers necessary to decide the issues raised;
(d) regulate the conduct and the course of
the HSD administrative hearing to ensure an orderly HSD administrative hearing;
(e) request, if appropriate, an
independent physical or behavioral health assessment or a professional
evaluation from a source mutually satisfactory to the parties at no cost to the
claimant; and
(f) produce the ALJ HSD administrative
hearing report that includes findings of fact and recommendations for the MAD
director’s consideration.
(3) Appointment of the ALJ: the ALJ is appointed by FHB upon receipt of
the request for a HSD administrative hearing.
The ALJ will be copied on all written communications between the parties
to HSD administrative hearing to ensure all parties are free of undue influence
and receive written notices and documents within the required time-frames.
B. Record of the
hearing: A HSD administrative
hearing is digitally recorded. The
digital recording, findings of fact, SOEs and any amendments, pleadings,
documents, NMAC rules, other relevant statutes or other exhibits admitted into
evidence, as well as the ALJ’s recommendations will be available to the parties
for one calendar year following the HSD administrative hearing final
decision. These items are referred to as
the record of the HSD administrative hearing.
Parties to the HSD administrative hearing may request one copy of the record
without charge. Subsequent copies will
be charged at a pre-determined rate set by HSD.
C. Rights at an administrative
hearing: A claimant or the
claimant’s authorized representative will provide the assigned ALJ a signed
release-of-information in order for a designated spokesperson to assist or
represent the claimant or the claimant’s authorized representative in
presenting the claimant’s case at a HSD administrative hearing. If the claimant or the claimant’s authorized
representative, MAD, its UR contractor or MCO have retained legal counsel, that
legal counsel will submit a notice appearance to the assigned ALJ and the ALJ
will forward this information to the MAD administrative hearings unit (MAD
AHU). The parties are given an
opportunity to:
(1) call witnesses to present information
relevant to the case;
(2) submit evidence to establish all
pertinent facts and circumstances in the case;
(3) advance arguments without undue
interference; and
(4) question or contradict any testimony
or evidence, including an opportunity to confront and cross-examine opposing
witnesses.
D. Evidence and procedure: Formal rules of evidence and civil procedure
do not apply to a HSD administrative hearing.
A free, orderly exchange of relevant information is necessary for the decision-making
process.
(1) Admissibility: all relevant evidence is admissible subject
to the ALJ’s authority to limit repetitive, scandalous or unduly cumulative
evidence and his or her ability to conduct an orderly HSD administrative
hearing. The ALJ must admit evidence
that is relevant to the intended or taken adverse action by MAD, its UR
contractor, or the MCO.
(2) Confidentiality: the confidentiality of records is to be
maintained;
(3) Information not entered in the hearing
record: information which is not
presented during the HSD administrative hearing in the presence of the claimant
or the claimant’s authorized representative, MAD, its UR contractor, or the MCO
may not be used by the ALJ in making his or her record of fact finding and
recommendation.
(4) Administrative notice: the ALJ may take administrative notice of any
matter in which courts of this state may take judicial notice.
(5) 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.
(6) Medical issues: in a case involving physical or behavioral
health issues, the parties may submit expert testimony, reports, affidavits or
health care records into evidence as necessary.
Admission of this evidence is at the discretion of the ALJ and must meet
the SOE time-frames for submission. All
parties of the HSD administrative hearing have the right to examine any
documents which may influence the HSD administrative hearing final decision.
[8.352.2.15 NMAC -
Rp, 8.352.2.17 NMAC, 6/15/2014]
8.352.2.16 CONDUCTING
THE HSD ADMINISTRATIVE HEARING: A
HSD administrative hearing is conducted in an orderly manner and in an informal
atmosphere. The HSD administrative
hearing is normally conducted telephonically and is not open to the general
public. The assigned ALJ has the
authority to limit the number of persons in attendance as necessary for the ALJ
to control the hearing.
A. Opening the
hearing: The HSD administrative
hearing is opened by the assigned ALJ. All
individuals present at the hearing must identify themselves for the record,
including when the claimant or the claimant’s authorized representative has
other representation or legal counsel to assist him or her during the HSD
administrative hearing. The ALJ shall explain
his or her role in conducting the HSD administrative hearing that he or she
will submit the record of the HSD administrative hearing to the MAD director
and that the final decision of the HSD administrative hearing will be made by
the MAD director or designee after review of the record of the HSD
administrative hearing.
B. Order of testimony:
The order of testimony is described,
and the oath is administered to all who will testify at the HSD administrative
hearing. Because the burden of proof is
with MAD, it is at the claimant or the claimant’s authorized representative’s
discretion to call witnesses or to present evidence. The order of testimony at the HSD
administrative hearing is as follows:
(1) opening statements of parties,
authorized representatives, or designees, or if the claimant or the claimant’s
authorized representative through a signed statement has identified a
designated spokesperson or legal counsel to assist him or her during the HSD
administrative hearing process;
(2) presentation of MAD’s case; if witnesses are called, the order of
examination of each witness is:
(a) examination by MAD, its UR contractor,
the MCO, or another MAD designee;
(b) cross examination by the claimant, the
claimant’s authorized representative, designated spokesperson, or his or her
legal counsel; and
(c) MAD’s opportunity to redirect the
witness;
(3) presentation of the claimant’s case is
at the claimant or the claimant’s authorized representative discretion, if witnesses are called, the order of
examination of each witness is:
(a) examination by claimant or the
claimant’s authorized representative, designated spokesperson or legal counsel;
(b) cross examination by MAD, its UR
contractor, the MCO or another MAD designee; and
(c) the claimant, claimant’s authorized
representative or designated spokesperson, or legal counsel’s opportunity to
redirect the witness;
(4) presentation of rebuttal evidence by
MAD, its UR contractor, the MCO or another designee and the claimant or the
claimant’s authorized representative, designated spokesperson or legal counsel
respectively;
(5) the ALJ may direct further questions
to any of the parties to the HSD administrative hearing to clarify
inconsistencies or obtain an adequate evidentiary record; and
(6) the ALJ may ask specific parties to
summarize and present closing arguments.
C. Points of law: The ALJ may direct the parties who have legal
counsel to submit memoranda on points of law to assist the ALJ develop the HSD
administrative hearing record and recommendation letter. The ALJ may dictate the length and scope of
these submissions.
D. Written closing
argument: At the discretion of the
ALJ, the parties may be directed to make closing arguments, or submit written
memoranda on points of law.
E. Continuance: The ALJ may, at his or her discretion,
continue the HSD administrative hearing upon the request of the parties to the
HSD administrative hearing or the ALJ’s own motion, to allow for the admission
of additional testimony or evidence. The
reasons for the continuance must be clearly stated for the record. Written notice of the date, time, and place
of the continued HSD administrative hearing shall be sent to the parties if they
are not set at the time of the approval of the continuance.
F. Additional
evidence: If the ALJ requires
additional evidence to further clarify documentary evidence presented during
the HSD administrative hearing, he or she may close the HSD administrative
hearing but keep the record open and direct the parties to submit such
clarifying evidence. The assigned ALJ shall
provide each party to the HSD administrative hearing with a copy of the
direction for further evidence and the documentary evidence to be
submitted. Any party may respond to the ALJ’s
direction, in writing, within 10 calendar days of its receipt of the ALJ’s
notice. The ALJ will provide the other
parties to the HSD administrative hearing a copy of any such submissions and the
additional evidence and responses, subject to the ALJ’s discretion and
appropriate objections by any of the parties to the HSD administrative hearing,
shall become part of the HSD administrative hearing record.
G. Re-opening a closed
HSD administrative hearing: The ALJ,
at his or her discretion or subject to an order from a court of competent
jurisdiction, may re-open a closed HSD administrative hearing when the
evidentiary record fails to address an issue that is relevant to resolution of
the HSD administrative hearing request.
Written notice of the date, time and place of the re-opened HSD
administrative hearing shall be sent by the ALJ to the parties not less than 10
calendar days before the re-opened HSD administrative hearing. Once the MAD director or designee has issued a
HSD administrative final decision, the HSD administrative hearing cannot be
re-opened absent an order from a court of competent jurisdiction. A claimant or the claimant’s authorized
representative may request a new HSD administrative hearing if additional material
information becomes available that was not available at the time of the first
HSD administrative hearing. The
previously assigned ALJ has the discretion to determine if the additional
information would necessitate a new HSD administrative hearing.
[8.352.2.16 NMAC -
Rp, 8.352.2.18 NMAC, 6/15/2014]
8.352.2.17 HSD
ADMINISTRATIVE HEARING FINAL DECISION:
The final decision concerning the HSD administrative hearing is made by
the MAD director or designee after the review of the HSD administrative hearing
record and the ALJ’s recommendation. If
the ALJ had rendered a decision to dismiss a HSD administrative hearing
request, that decision becomes the HSD administrative hearing final decision
and the following process detailed in this section of the rule does not apply.
A. Decision based on
the record: The ALJ’s HSD
administrative hearing recommendation must be based solely on the record of the
HSD administrative hearing.
B. ALJ recommendation: The ALJ shall review the record of the HSD
administrative hearing and submit a complete copy of the record to the MAD
director.
(1) Content of the ALJ recommendation: the ALJ shall specify the reasons for his or
her conclusions, identifies the supporting evidence, references the pertinent federal
and state statutes, regulations, and NMAC rules, and responds to the arguments
of the parties within his or her written report.
(2) The ALJ recommends:
(a) in favor of the claimant if MAD, its
UR contractor or the MCO's intended or taken adverse action is not supported by
a preponderance of the evidence submitted during the HSD administrative hearing. The ALJ will provide specific recommendations
to each appealed adverse action;
(b) in favor of MAD, if the preponderance
of evidence submitted during the HSD administrative hearing supports the
intended or taken of adverse action or actions; or
(c) any other result supported by the
record of the HSD administrative hearing which may be a combination of
recommendations for and against the claimant or MAD. If the HSD administrative hearing covered a
number of services or components of a service, the ALJ will provide specific
recommendations to each intended or taken adverse action.
C. Review of the
record: The record of the HSD
administrative hearing and the report and recommendation of the ALJ is reviewed
by the MAD director or designee to ensure conformity with applicable federal
and state statutes, regulations, and rules.
D. Final decision: The ALJ’s recommendation may be adopted or
rejected in a final written decision by the MAD director or designee on issues
that were the subject of the HSD administrative hearing. The MAD director’s final decision letter shall
specify the reasons for his or her decision and identify the regulatory
authority and those portions of the record, applicable federal and state law,
rules and policies or any combination of these that support the final decision. No person who participated during the HSD
administrative hearing process may participate in arriving at a HSD
administrative hearing final decision.
E. Notice to parties: MAD shall promptly provide all parties with a
copy of the HSD administrative hearing final written decision. When the claimant is represented by legal
counsel or an authorized representative, each must receive a copy of the final
decision. The HSD administrative hearing
final decision letter shall include an explanation that the parties have
exhausted all HSD administrative remedies and a claimant or the claimant’s
authorized representative may pursue judicial review of this decision.
[8.352.2.17 NMAC -
Rp, 8.352.2.19 NMAC, 6/15/2014]
8.352.2.18 CONTINUATION
OF BENEFITS PURSUANT TO A TIMELY APPEAL AND A HSD ADMINISTRATIVE HEARING PROCEEDING: A continuation of an existing benefit is
provided to a claimant who is not a member of a MCO when the claimant requests a
continuation of the benefit through MAD or its UR contractor as directed on the
claimant’s notice of action within 10 calendar days of the mailing of the MAD
or its UR contractor’s notice of action.
A continuation of the benefit is provided to a member who requests a
continuation of the benefit through his or her MCO within 10 calendar days of
the mailing of the MCO’s notice of action.
The MAD, its UR contractor or the MCO’s notice of action will include
information on the rights to the continued benefit and on the claimant or
member’s responsibility for repayment if the MCO final appeal decision and, as
applicable, the HSD administrative hearing decision is not in his or her
favor. The continuation of a benefit is
only available to a member or claimant that is currently receiving the appealed
benefit. The continuation of the benefit
will be the same as the member or claimant’s current allocation, budget or LOC.
[8.352.2.18 NMAC -
Rp, 8.352.2.20 NMAC, 6/15/2014]
8.352.2.19 IMPLEMENTATION
OF THE HSD ADMINISTRATIVE FINAL DECISION:
The HSD administrative hearing final decision is binding on all issues
that have been the subject of the HSD administrative hearing as to the claimant
unless stayed by either a court order or by the MAD director or designee. MAD is responsible for ensuring that the HSD
administrative hearing final decision is fulfilled.
A. If the claimant is a member and he or she received a
benefit under his or her approved continuation of the benefit and the decision
is favorable to the MCO, the claimant’s MCO will take action to file a repayment
claim to the claimant or the claimant’s authorized representative for the
services received during the MCO appeal and the HSD administrative hearing
process up to the date of the HSD administrative hearing final decision. The claimant is responsible for repayment to
his or her MCO the amount of paid claims for the continuation of the benefit
beginning on the first date of service of the claimant’s approved continuation
of the benefit up to and including the date of the HSD administrative hearing
final decision. The claimant’s MCO is
charged with the collection of this amount.
The repayment amount must be used by the claimant’s MCO to benefit its
members.
B. If the claimant is not enrolled in a
MCO and the HSD administrative hearing final decision is favorable to MAD or
its UR contractor, MAD will take action to file a repayment claim to the
claimant or the claimant’s authorized representative for the services received
during the HSD administrative hearing process up to the date of the HSD
administrative hearing final decision.
C. When the HSD administrative hearing final decision is
favorable to the claimant, MAD, its UR contractor or MCO will authorize the
benefit and coverage set forth in the HSD administrative hearing final
decision.
D. A request for a HSD administrative hearing concerning the
MAD or MCO repayment claim is limited to alleging errors in how the repayment
amount was determined. The HSD final
administrative hearing decision serves as the claimant’s notice of action from
either the MCO or MAD to start collection proceedings.
[8.352.2.19 NMAC -
Rp, 8.352.2.21 NMAC, 6/15/2014]
8.352.2.20 JUDICIAL
APPEAL: If the HSD administrative hearing final
decision upholds MAD, its UR contractor or the MCO’s intended or taken adverse
action, the claimant or the claimant’s authorized representative has the right
to pursue judicial review of the HSD administrative hearing final decision and
is notified of that right in the HSD administrative final decision letter. Judicial appeals for the HSD administrative
hearing final decision are governed by New Mexico statutes and court
rules. While the following subsections
highlight applicable procedures, they should not be considered a substitute for
examining the statutes and rules themselves.
A. Jurisdiction: Administrative appeals for a claimant are
governed by the Section 39-3-1.1 NMSA 1978 and by Rule 1-074, Rules of Civil
Procedures for the District Courts.
B. Timeliness: Unless otherwise provided by law, a claimant
or the claimant’s authorized representative must appeal the HSD administrative hearing
final decision within 30 calendar days of the date of the HSD administrative
hearing final decision by filing a notice of appeal with the clerk of the
appropriate New Mexico district court.
C. Jurisdiction and
standard of review: All judicial
appeals are based on the record made at the HSD administrative hearing, and in
accordance with state statute and court rules.
HSD files a copy of the HSD administrative hearing record with the court
clerk and furnishes one copy to the claimant or the claimant’s authorized
representative and if applicable, his or her legal counsel within 30 calendar
days after receipt of the notice of appeal.
The court may set aside the HSD administrative hearing final decision if
it finds the decision is:
(1) arbitrary, capricious, or an abuse of
discretion;
(2) is not supported by substantial evidence
in the record as a whole; or
(3) is otherwise not in accordance with
the applicable law, statutes or rules.
D. Benefits pending
state district court appeal: The
filing of a notice of appeal shall not stay the enforcement of the HSD
administrative hearing final decision.
The claimant or the claimant’s authorized representative may seek a stay
upon a motion to the court or the claimant may request the MAD director or
designee to stay the HSD administrative hearing final decision while the
adverse action is on appeal in a New Mexico district court. If the court orders a stay, MAD, it UR
contractor or the MCO will maintain the benefit at issue in accordance with the
state district court's order. If the New
Mexico district court’s final decision is in favor of MAD, its UR contractor or
the MCO and the claimant continued utilizing his or her benefit during the
district court appeal process, see 8.352.2.19 NMAC for the repayment process.
[8.352.2.20 NMAC -
Rp, 8.352.2.22 NMAC, 6/15/2014]
HISTORY OF 8.352.2 NMAC:
Pre-NMAC History:
The material in this part was derived from that previously filed with
the State Records Center:
SP-004.0200
Section 4, General Program Administration Hearing For Applicants, 1/23/1981
SP-004.2800
Section 4, General Program Administration Appeals Process For Skilled Nursing
Facilities And Intermediate Care Facilities, 3/5/1981.
NMAC History: 8 NMAC 4.MAD.970 Oversight Policies,
Recipient Hearing Policies, Recipient Hearings, 10/16/1996.
8 NMAC 4.MAD.970
Oversight Policies, Recipient Hearing Policies, Recipient Hearings; 12/15/1999.
History of Repealed Material:
8.352.2 NMAC,
Recipient Hearings, filed 6/15/2001 - Repealed effective, 1/1/2014.
8.352.2 NMAC,
Claimant Hearings, filed 12/17/2013 - Repealed effective, 6/15/2014.