TITLE 13 INSURANCE
CHAPTER
21 PATIENT’S COMPENSATION FUND
PART
4 ADMINISTRATIVE HEARINGS
13.21.4.1 ISSUING AGENCY: New
Mexico Superintendent of Insurance.
[13.21.4.1 NMAC – N/E, 3/01/2019; Rp, 13.21.4.1 NMAC 4/30/2019]
13.21.4.2 SCOPE: Except as otherwise
provided, the rules in this part govern every adjudicatory proceeding, except
any surcharge rate proceeding conducted pursuant to a notice of hearing issued
by the superintendent on any matter delegated to the superintendent under the
Medical Malpractice Act (MMA) or the rules adopted in Chapter 21 of Title 13 of
the New Mexico Administrative Code, and to any request for hearing submitted to
the superintendent, unless a more specific statutory or regulatory provision
applies to the specific hearing type being conducted.
[13.21.4.2 NMAC – N/E, 3/01/2019; Rp, 13.21.4.2 NMAC 4/30/2019; A,
01/01/2022]
13.21.4.3 STATUTORY AUTHORITY: Section
41-5-25 NMSA 1978.
[13.21.4.3 NMAC – N/E, 3/01/2019; Rp, 13.21.4.3 NMAC 4/30/2019]
13.21.4.4 DURATION: Permanent.
[13.21.4.4 NMAC – N/E, 3/01/2019; Rp, 13.21.4.4 NMAC 4/30/2019]
13.21.4.5 EFFECTIVE DATE: April 30, 2019, unless a later date is
cited at the end of a section.
[13.21.4.5 NMAC – N/E, 3/01/2019; Rp, 13.21.4.5 NMAC 4/30/2019]
13.21.4.6 OBJECTIVE: The purpose of this rule is to provide
procedures to govern administrative hearings held before the superintendent in
his capacity administering the MMA.
[13.21.4.6 NMAC – N/E, 3/01/2019; Rp, 13.21.4.6 NMAC 4/30/2019]
13.21.4.7 DEFINITIONS: This rule adopts the
definitions found in Section 41-5-3 NMSA 1978, in Section 14-4-2 NMSA 1978, in 1.24.1.7 NMAC, and in 13.21.1.7
NMAC. In addition:
A. “Attorney”
means only an individual who is licensed
to practice law in New Mexico or who has requested temporary licensure under
the New Mexico supreme court’s pro hac
vice rules.
B. “Day
or Days” shall be interpreted as follows, unless otherwise specified:
(1) “Business day” means Monday through Friday, excluding any days that state
offices are officially closed;
(2) one
to five days means only business days; and
(3) six
days or more means calendar days, including weekends and state holidays.
C. “Hearing” means an on-the-record adjudicatory proceeding before the
superintendent or the before a hearing officer appointed by the superintendent.
D. “Hearing
officer” is the superintendent, or a person designated by the
superintendent, to serve as a
neutral decision maker in a proceeding.
E. “Order”
means any directive, command, determination of a disputed issue, or ruling on a
disputed matter issued by the superintendent or a hearing officer in a
proceeding governed by these rules.
F. “OSI” means the New Mexico office of superintendent
of insurance.
G. “Party” means an entity who participates in a proceeding governed by
these rules by order of the superintendent.
H. “Pleading” means any written request, motion, or proposed action filed by
a party in a docketed proceeding, as set forth in 13.21.4.10 NMAC.
I. “Proceeding”
means any formal adjudicatory proceeding, case, or hearing conducted by the
superintendent pursuant to these rules.
J. “Request
for hearing” means a formal written request for an opportunity to appear
before the superintendent and offer testimony, to call witnesses, present
evidence and ask questions, that is submitted by a person with respect to a
particular matter where the superintendent has statutory or regulatory
authority to conduct an adjudicatory proceeding.
K. “Sua
Sponte” means any determination of the superintendent or of his designee
made without prompting of the parties.
L. “Superintendent” means the
superintendent of insurance, the office of superintendent of insurance, or
employees of the office of superintendent of insurance acting within the scope
of the superintendent’s official duties and with the superintendent’s
authorization.
[13.21.4.7 NMAC – N/E, 3/01/2019; Rp, 13.21.4.7 NMAC 4/30/2019; A,
01/01/2022]
13.21.4.8 REVISION OF STANDING ORDERS: The superintendent may issue or withdraw
standing procedural orders addressing general practice issues and filing
protocols for the handling of matters to be adjudicated before the
superintendent. Such standing orders
will be available for public inspection at OSI office facilities, on the OSI website,
and in any applicable information provided with a notice of hearing. Parties appearing before the superintendent
are expected to comply with standing orders.
[13.21.4.8 NMAC – N/E, 3/01/2019; Rp, 13.21.4.8 NMAC 4/30/2019; A,
01/01/2022]
13.21.4.9 REQUESTING A HEARING:
A. Written request required. Any person seeking a hearing before the
superintendent shall file a written request for a hearing to the OSI’s
electronic docket or as otherwise directed by the superintendent. The request shall include all of the
following:
(1) a brief summary identifying the
nature of the dispute;
(2) the applicable statute, rule,
bulletin, or order in dispute in the matter;
(3) a statement of the jurisdictional
basis for the superintendent to adjudicate the matter;
(4) the triggering action of the
superintendent, such as an order, denial, suspension, revocation, penalty,
fine, rule, or interpretative publication;
(5) the requestor’s reason for challenging
that action or inaction; and
(6) the mailing address of the
requestor.
B. Request rejected. The superintendent may reject any request
for hearing if the superintendent lacks jurisdiction to adjudicate the matter;
the matter is moot; or the request for hearing is procedurally or substantively
deficient.
(1) If
a request for hearing is rejected, the superintendent will issue an order
denying the request with an explanation.
(2) If the request for hearing is
deficient for any reason other than lack of subject matter jurisdiction of
mootness, the requestor may correct any deficiency and resubmit the request for
hearing.
C. Designation of hearing officer. Upon
receipt of a request for hearing that contains all information required by
Subsection A of this section and over which the superintendent has
jurisdiction, the superintendent may designate a hearing officer to preside in
the matter based on the knowledge, expertise, experience, efficiency, and
staffing needs of the office. The
superintendent may subsequently reassign the matter to a different hearing
officer, if necessary. The
superintendent shall assign a docket number to be referenced in all subsequent
communications and filings concerning the matter.
D. Intervenors. Any person who claims an interest relating
to the subject of a notice of hearing, and is so situated that the hearing may
impair or impede the person’s ability to protect that interest, may apply to
intervene in the proceeding.
(1) In
determining whether to allow or deny intervention, the superintendent shall
consider the nature of the claimed interest of the applicant, the potential
impact of the superintendent’s decision on the applicant’s ability to protect
that interest, the timeliness of the application, the potential disruption of
the proceedings and prejudice to existing parties if intervention were allowed.
(2) Whether
to allow intervention at the sole discretion of the superintendent.
(3) OSI
staff may intervene in any proceeding as a matter of right by filing a notice
of intervention.
[13.21.4.9 NMAC – N/E, 3/01/2019; Rp, 13.21.4.9 NMAC 4/30/2019; A,
01/01/2022]
13.21.4.10 REPRESENTATION AT HEARING, FORMAL ENTRY OF
APPEARANCE, SUBSTITUTION OF COUNSEL, AND WITHDRAWAL FROM REPRESENTATION:
A. Representation. Unless otherwise expressly authorized by
statute, only the person challenging the action or a bona fide majority owner
if the party is a business entity, or that person’s attorney may represent the
person in a proceeding.
B. Entry of appearance. Any attorney wishing to represent a party
must file a formal written entry of appearance in the docket of the proceeding.
The entry of appearance must list the
attorney’s mailing address, phone and fax number (if any), and an email address
(if any). Any attorney wishing to
substitute in for a previous attorney must file a substitution of counsel
containing the same information required in the initial entry of appearance.
C. Withdrawal. An attorney who intends to withdraw from
representation of a party must do so in accordance with the rules of
professional conduct.
(1) Withdrawing
counsel must file in the docket a written request to withdraw from
representation that indicates when counsel notified the party of the withdrawal,
and of the date and time of the scheduled hearing.
(2) The
superintendent may deny a request to withdraw from representation only when
withdrawal would have a clear, materially adverse effect on the represented
party’s interests and impede the conduct of a full, fair, and efficient hearing.
[13.21.4.10 NMAC – N/E, 3/01/2019; Rp, 13.21.4.10 NMAC 4/30/2019]
13.21.4.11 ELECTRONIC DOCKET AND FILING OF PLEADINGS:
A. Electronic
docket. Individuals or their counsel may access
OSI’s free electronic docket to view cases and filed pleadings. Registration of
a free user account is required to file pleadings into a docket or to request a
hearing. Every written document that is submitted to a hearing officer or
exchanged between parties for consideration, including pleadings, such as
motions, responses and objections, all evidentiary documents and any other
filings shall include the caption and shall be filed to the electronic docket.
B. Opening the docket. A docket shall be opened by the
superintendent at the superintendent’s discretion or by request for hearing
filed in the OSI’s electronic docket.
C. Public
access. Unless otherwise determined
by the superintendent upon consideration of a request by a party for
confidentiality, all dockets shall be open for public inspection.
D. Filing restrictions and service.
(1) The OSI docket administrator will
review all filings for compliance with these rules. Non compliance with filings
will be returned to submitter for correction..
(2)
The OSI’s electronic docket does allow for electron service. All
parties of record shall be listed on the initial request for hearing and shall
be selected for service with each additional filing.
(3) All
filings shall include a certificate of service that documents the method of
service used. A represented party shall
only be served through counsel.
(4) In-person
filing shall be accepted on business days between 8:00 am. and 4:00 pm. In-person pleadings will be marked as filed on
the business day that the OSI receives the pleading.
D. Filing requirements.
(1) All motions, except motions made on
the record during the hearing or a continuance request made in a genuine
unforeseen emergency circumstance (such as an unexpected accident, force
majeure, or major medical emergency occurring in such close proximity to the
date of the scheduled hearing that a written motion could not be completed),
shall be in writing and shall state with particularity the grounds and the
relief sought.
(2) Absent
any order to the contrary, no pleading shall exceed 10 pages, excluding the
caption and certificate of service, of double-spaced (except for block
quotations), 12-point font. Only
relevant excerpts of a motion exhibit shall be filed, with the pertinent
portions highlighted, underlined, or otherwise emphasized. All exhibits and attachments shall identify
the total number of pages, and consecutive page numbers (e.g., “Page 1 of 10”). Only
single-sided documents will be accepted for filing or into a record at a
hearing.
E. Request for concurrence. Before submission of any motion, request
for relief or request for continuance, the requesting party should make
reasonable efforts to consult with each other party about that party’s position
on the motion unless the nature of the pleading is such that it can be reasonably
assumed the requested relief would be opposed.
The moving party shall state the position of each other party in the
pleading.
F. Responses to pleadings.
(1) Unless a different deadline has been
established by the hearing officer, each non-moving party shall have 10
calendar days to file a written response to a pleading.
(2) If
a deadline for filing falls on a non-business day, the deadline falls on the
next business day.
(3) The
hearing officer has the discretion to extend or shorten the response deadline.
(4) Failure
to file a response in opposition may be presumed to be consent to the relief
sought.
(5) The
hearing officer is not required to make a default ruling on any motion if the
relief sought could be contrary to the facts or law on the issues.
G. In
the event of a procedural defect or other error with the manner, method, or
content of a submitted pleading, the hearing officer or records manager may
communicate such error to the filing party and withhold filing of the pleading
until the moving party remedies the procedural defect. Examples of a procedural defect include, but
are not limited to, failure to certify service, failure to comply with the page
limitations, failure to confer with other parties, failure to use the form or
follow the specific filing method required by the OSI, submission of
double-sided documents, failing to properly number pages, failure to use the
correct caption of reference the assigned docket number, or failure to comply
with an applicable standing order.
[13.21.4.11 NMAC – N/E, 3/01/2019; Rp, 13.21.4.11 NMAC 4/30/2019;
A, 01/01/2022]
13.21.4.12 PREHEARING CONFERENCES, STATUS CONFERENCES,
AND STATUS CHECKS:
A. Purpose of prehearing conferences. The hearing officer may direct
representatives for all parties to meet together or with the hearing officer
present for a prehearing conference to consider any or all of the following:
(1) simplify,
clarify, narrow or resolve the pending issues;
(2) stipulations
and admissions of fact and of the contents and authenticity of documents;
(3) expedition
in the discovery and presentation of evidence, including, but not limited to,
restriction on the number of exhibits and expert, economic or technical
witnesses;
(4) matters
of which administrative notice will be taken; and
(5) such
other matters as may aid in the orderly and expeditious disposition of the
proceeding, including disclosure of the names of witnesses and the identity of
documents or other physical exhibits which will be introduced in evidence in
the course of the proceeding.
B. Conduct of prehearing conferences.
(1) Prehearing conferences conducted by
the hearing officer may be electronically, but not stenographically, recorded. Should a party request that the recording be
transcribed, that party shall pay any costs of transcription.
(2) The
hearing officer may issue a written order that recites the results of the
conference. Such order shall include
rulings upon matters considered at the conference, together with appropriate
directions to the parties. The order
shall control the subsequent course of the proceeding, unless superseded by a
subsequent order.
C. Status conferences.
(1) The hearing officer may require the
parties to submit a written report of any conference ordered to be conducted
between the parties updating the status of the proceeding in light of the
conference.
(2) The
hearing officer may conduct a status conference upon the request of either
party or on the hearing officer’s own initiative, at which time the hearing officer
may require the parties, attorneys, or authorized representatives, to provide
information regarding the status of a proceeding.
[13.21.4.12 NMAC – N/E, 3/01/2019; Rp, 13.21.4.12 NMAC 4/30/2019]
13.21.4.13 HEARING LOCATION, TIME AND PLACE, NOTICE OF
HEARING:
A. Location.
(1) In the absence
of any statutory requirements to the contrary, all hearings conducted by the superintendent
shall occur in Santa Fe, at the office of superintendent of insurance, unless
the hearing officer orders the parties to appear at another location in New
Mexico.
(2) The parties may express a mutual
preference for location of the hearing in their request for hearing.
(3) In selecting a location other
than Santa Fe, the hearing officer shall consider and give weight to the
location and wishes of the parties, witnesses, access for a hearing officer
with expertise in the matter, and the scheduling and staffing needs of the OSI,
(4) If selecting a location other
than Santa Fe would cause an unreasonable, undue burden to any party, that
party may file a written objection to the selected location within 10 days of
issuance of the notice of hearing, articulating the reasons supporting the
objection. The hearing officer will
promptly review the objection and, upon a showing of an unreasonable, undue
burden, may move the hearing to another more reasonable location and the
superintendent may designate another hearing officer if necessary.
B. Notice. The superintendent will notify the parties
to the hearing of the date, time and place scheduled for the hearing at least
seven days before the scheduled hearing.
This notice will be directed to the party’s attorney, or to the last known
address of any unrepresented party.
Notice will be sent via US mail unless the parties have requested an
alternate method of notification that is acceptable to the superintendent.
[13.21.4.13 NMAC – N/E, 3/01/2019; Rp, 13.21.4.13 NMAC 4/30/2019;
A, 01/01/2022]
13.21.4.14 TELEPHONIC, VIDEOCONFERENCE AND
OTHER EQUIVALENT ELECTRONIC METHOD HEARINGS:
A. If
not otherwise prohibited by statute, rule, or court ruling, the hearing officer
may conduct the hearing in person or by telephone, videoconference, or other
equivalent electronic method. The
hearing officer shall cause a stenographic or audio recording to be made of all
proceedings involving the presentation of evidence, points, authorities or
argument pertaining to the merits of the matter before the hearing officer.
B. If
the hearing is to be conducted by telephone, videoconference or other
equivalent electronic method, the notice shall so inform the parties. Either party may file a written objection to
conducting the hearing by telephone, videoconference, or other equivalent
electronic method within 10 days of the notice of hearing. Failure to timely object to the conduct of a
telephone, videoconference, or other equivalent electronic method hearing
constitutes consent to the hearing proceeding in that manner and waiver of any
other applicable statutory in-county hearing requirement.
C. Upon
receipt of a timely objection, the hearing officer shall consider the
applicable legal requirements, the location of the parties and witnesses, the
complexity of the particular matter, the availability of necessary electronic
equipment for conduct of a full and fair hearing by telephone, videoconference,
or other equivalent electronic method, and the basis of the objection in
determining whether the hearing should occur at a specific location rather than
via telephone, videoconference, or other equivalent electronic method.
D. Provided
that the requesting party has not previously demanded an in-person hearing or
otherwise objected to conducting the matter via telephone, videoconference, or
other equivalent electronic methods, any party may request to appear directly
or have a witness on their behalf appear via telephone, videoconference, or
alternative electronic means by filing a request at least three business days
before the scheduled hearing. The filing
of a request to appear via telephone, videoconference, or other alternative
electronic method shall be deemed as a total and complete waiver of any
in-person, in-county hearing requirement and deemed as consent for all parties,
all witnesses, and the hearing officer to appear via telephone,
videoconference, or other equivalent electronic methods.
E. All
parties appearing via telephone, videoconference, or other electronic method
shall provide the hearing officer with a working email address or facsimile
number for the exchange of all documentary evidence before or during the
hearing.
F. Failure
to follow the hearings officer’s instructions for participating in the hearing
via telephone, videoconference, or other equivalent electronic method will be
treated as a non-appearance at the hearing.
G. Any
technical issues shall be promptly reported to the hearing officer.
H. In
the event that technical or other computer problems prevent a hearing by
videoconference or other electronic method from occurring or otherwise
interfere with maintaining or developing a complete record at the hearing, the
parties agree and consent that the assigned hearing officer may continue the
matter to a different time before expiration of the statutory deadline, may
order the parties to appear for an in-person hearing, or may conduct the
remaining portion of the hearing via telephone.
I. If
the assigned hearing officer determines during the course of the hearing,
either sua sponte or upon argument of
a party, that an in-person hearing is necessary to adequately complete the
record, address credibility issues, or is otherwise necessary to ensure a full
or fair hearing process, the hearing officer may recess a hearing occurring by
telephone, videoconference, or other equivalent electronic method and reconvene
the proceeding as an in-person hearing.
[13.21.4.14 NMAC – N/E, 3/01/2019; Rp, 13.21.4.14 NMAC 4/30/2019]
13.21.4.15 CONTINUANCES:
A. At
the request of a party, a witness, or upon the hearing officer’s own
determination, a hearing may be continued for good cause. The hearing officer shall consider only
written continuance requests made at least three working days prior to the
scheduled hearing absent extraordinary, unforeseen circumstances that the
requesting party or witness could not have known earlier. An order to grant or deny the request may be
issued prior to the scheduled hearing or if there is insufficient time to issue
an order prior to the scheduled hearing, the hearing officer may grant or deny
the request on the record at the hearing.
No continuance request may be granted unless there is adequate time to
provide notice to the parties, subpoena witnesses and conduct the rescheduled
hearing before expiration of any statutory jurisdictional deadline.
B. Within
the jurisdictional time limits set by statute, the superintendent or hearing
officer may sua sponte continue any
matter as necessary to address OSI, staffing needs, to ensure efficient and
adequate use of state resources, and to manage the hearing docket. To this end, the hearing officer may contact
the parties to inquire about the status of a scheduled case.
C. No
case shall be continued, even with a showing of good cause or an emergency
circumstance, beyond any mandatory, applicable jurisdictional time limit on the
case.
[13.21.4.15 NMAC – N/E, 3/01/2019; Rp, 13.21.4.15 NMAC 4/30/2019;
A, 01/01/2022]
13.21.4.16 ATTIRE AT HEARING: All attorneys and other
authorized representatives must be attired in a dignified, professional manner
at all times during the hearing.
Witnesses shall dress in a respectful manner. No attire or dress so flamboyant, disheveled,
inflammatory, obscene, offensive or revealing as to create a distraction to the
orderly conduct of the hearing will be permitted.
[13.21.4.16 NMAC – N/E, 3/01/2019; Rp, 13.21.4.16 NMAC 4/30/2019]
13.21.4.17 BURDEN OF PROOF, PRESENTATION OF
CASE, EVIDENCE:
A. Burden of proof. Unless otherwise specified by statute, the
burden of proof in a proceeding is the preponderance of evidence.
B. Presentation order. The party with the burden of proof in the
case will ordinarily present their case first, followed by the opposing party,
if any, unless the hearing officer makes reasonable exceptions related to the
availability of the witnesses and representatives or other scheduling concerns.
C. Opening statements. The hearing officer may require or allow
opening statements as the circumstances justify. Opening statements are not ordinarily
evidence, but without objection, may be adopted as evidence by sworn oath of
the party-witness who made the opening statement.
D. Testimony under oath. All testimony must be given under oath and
will be subject to questioning of each other party. The hearing officer may also ask questions of
the witness as appropriate. At the
hearing officer’s discretion, redirect and re-cross may be allowed.
E. Closing arguments. The parties may make closing arguments,
either orally at the conclusion of the case or, upon order of the hearing officer,
in writing after conclusion of the hearing.
F. Post-hearing
briefs. The hearing officer may also
order the parties to submit further briefing on any issue in the case, and to
submit proposed findings of fact and conclusions of law. The hearing officer will establish a timeline
for submission of any post-hearing pleadings, including time for the parties to
exchange briefs, as the hearing officer finds necessary. No decision-writing deadline commences until
the parties have submitted any ordered post-hearing briefing or submission.
G. Rules of evidence.
(1) Formal rules of evidence and civil
procedure shall not apply in a proceeding unless otherwise expressly and
specifically required by statute, regulation, or order of the hearing officer.
(2) Relevant
and material evidence shall be admissible.
Irrelevant, immaterial, unreliable, or unduly repetitious evidence may
be excluded.
(3) A
party may offer exhibits, such as records of transactions.
(a) The
party shall have the exhibits numbered by the stenographer prior to the
hearing.
(b) The
party shall provide copies of the evidence to the stenographer, all parties and
to the hearing officer.
(c) Exhibits
must be introduced and explained by a witness, who must be prepared to answer
questions from the parties and the hearing officer.
(d) The
hearing officer shall be asked by the party offering an exhibit to accept the
exhibit into evidence. The hearing officer may be asked to consider all
exhibits introduced by a witness at the conclusion of that witness’s testimony
or at the conclusion of that party’s case.
(e) The
stenographer shall retain copies of all exhibits that are admitted and shall
make them a part of the record.
(4) The
hearing officer shall consider and give appropriate weight to all relevant and
material evidence admitted in rendering a final decision on the merits of a
matter.
H. Hearsay evidence. Hearsay evidence may be admitted in a
proceeding.
I. Taking notice.
(1) The hearing officer may take
administrative notice of facts not subject to reasonable dispute that are
generally known within the community, capable of accurate and ready
determination by resort to sources whose accuracy cannot be reasonably
disputed, or as provided by an applicable statute.
(2) The
hearing officer may take administrative notice at any stage in the proceeding,
whether sua sponte or at the request of a party.
(3) A
party may dispute the propriety of taking administrative notice, including the
opportunity to refute a noticed fact.
J. Objections.
(1) A party objecting to evidence,
qualifications of an expert, a line of questioning, or the response shall
timely and briefly state the grounds for the objection.
(2) Rulings
on objections may be addressed on the record at the time of the objection,
reserved for ruling in a subsequent written order, or noted as a continuing,
ongoing objection for which ruling is reserved to later in the proceeding.
K. Audio or video evidence. Any party wishing to submit a video or
audio recording into the record must provide a complete tangible, playable copy
that can be retained as part of the record.
L. Size of exhibits. In general, documentary evidence should be
no larger than 8.5 inches by 11 inches unless expressly allowed by the hearing
officer. The hearing officer may admit
larger documentary exhibits presented at hearing, provided the proponent of such
exhibits provides the hearing officer with a copy of the exhibit reduced to 8.5
inches by 11 inches. After the hearing
at which the exhibit was admitted, the reduced copy shall be substituted for
the larger exhibit and made part of the record of the hearing. Arrangements to provide a reduced copy of a
large exhibit shall be undertaken in advance of the hearing. Failure by the proponent to provide a reduced
copy shall be deemed a withdrawal of the exhibit.
M. Substitutions for objects. In lieu of the introduction of tangible
objects as exhibits, the hearing officer may require the moving party to submit
a photograph, video, or other appropriate substitute such as a verbal
description of the pertinent characteristics of the object for the record.
[13.21.4.17 NMAC – N/E, 3/01/2019; Rp, 13.21.4.17 NMAC 4/30/2019]
13.21.4.18 WITNESSES, EXPERT WITNESSES, AND
INVOCATION OF THE RULE:
A. Use of witnesses. Any person having relevant, material
knowledge related to one of the issues in a hearing may testify as a witness
under oath in a proceeding. Upon
affirming the oath, the witness may be questioned by any party and by the
hearing officer.
B. Method of appearance. Unless a more specific provision applies,
witnesses are ordinarily expected to appear in the same manner or by the same
method as the parties in a proceeding, absent express preapproval of the
hearing officer allowing an appearance by a different method. For example, if the hearing is scheduled to
be conducted in person in a specific place, the witnesses are also ordinarily
expected to appear in person at that same place; however, if the matter is set
to occur by telephone or videoconference, then the witnesses may ordinarily
appear by telephone of videoconference.
C. Hearing officer as a witness. The current or previously assigned hearing
officer in a matter shall not be called and shall not be a witness in the
proceeding.
D. Use of expert witnesses.
(1) If either party intends to call and
treat a particular witness as an expert witness in the proceeding, the party
must identify the purported expert to the other parties and to the hearing
officer at least seven days before the scheduled hearing, or with sufficient
time before completion of the discovery deadline specified in a scheduling
order to allow for deposition.
(2) The
party shall include the scope of that expert’s purported testimony relative to
the proceeding, the expert’s credentials, and a listing of any materials the
expert reviewed as part of reaching his or her expert opinion.
(3) The
opposing party may file a response in opposition before the hearing or
challenge the designation of the witness as an expert during the course of the
hearing.
E. Use of exclusionary rule. At the hearing, any party can invoke the
exclusionary rule, excluding all witnesses other than the real party in
interest, their representative, one main case agent, and any designated expert
witness from the proceeding until the time of their testimony. If the rule has been invoked, the witnesses
shall not discuss their testimony with each other until the conclusion of the
proceeding. When the rule has been
invoked, any witness who remains in the hearing after conclusion of their
testimony may not be recalled as a witness in the proceeding, except that any
witness may observe the testimony of an expert witness and be recalled to
provide any subsequent rebuttal testimony.
F. OSI staff as experts.
(1) The hearing officer may request one
or more members of OSI staff to be present at the hearing to assist the hearing
officer with any matters within the expertise of the staff person.
(2) The
staff person may be called as a witness by the hearing officer and examined by
the parties and the hearing officer.
(3) Any
party may call the staff person as a witness.
(4) Each
other party will have the opportunity to cross-examine a staff person who is
called as a witness. In the discretion
of the hearing officer, the hearing officer may permit re-direct or re-cross examination
of the staff person.
(5) The
hearing officer shall not discuss the case with the staff person outside the
hearing or off the record.
(6) Any
staff person requested to be present by the hearing officer shall not be
subject to the exclusionary rule.
[13.21.4.18 NMAC – N/E, 3/01/2019; Rp, 13.21.4.18 NMAC 4/30/2019]
13.21.4.19 HEARING OFFICER POWERS AND
RESPONSIBILITIES:
A. General authority. The superintendent may preside over OSI,
hearings or may designate a hearing officer to preside instead.
B. Duties of the hearing officer. The hearing officer shall conduct fair and
impartial hearings, take all necessary action to avoid delay in the proceedings
and maintain order. The hearing officer
shall have the powers necessary to carry out these duties, including the
following:
(1) to
administer or have administered oaths and affirmations;
(2) to
cause depositions to be taken;
(3) to
require the production or inspection of documents and other items;
(4) to
require the answering of interrogatories and requests for admissions;
(5) to
rule upon offers of proof and receive evidence;
(6) to
regulate the course of the hearings and the conduct of the parties and their
representatives therein;
(7) to
issue a scheduling order, schedule a
prehearing conference for simplification of the issues, or any other proper
purpose;
(8) to
schedule, continue and reschedule hearings;
(9) to
consider and rule upon all procedural and other motions appropriate in
proceeding, including qualification of expert witnesses and admission of
exhibits;
(10) to
require the filing of briefs on specific legal issues prior to or after the
hearing;
(11) to
cause a docket to be opened and a complete record of a hearing to be made;
(12) to
make and issue decisions and procedural orders;
(13) to
issue subpoenas in the name of the superintendent;
(14) if
acting on behalf of the superintendent, to issue a recommendation to the
superintendent regarding the final resolution of the matter; and
(15) to
appropriately sanction, up to exclusion, indecorous, obstinate, recalcitrant,
obstreperous, unethical, unprofessional or other improper conduct that
interferes with the conduct of a fair and orderly hearing or the development of
a complete record.
C. Independence of the hearing officer. In the performance of these functions, the
hearing officer shall not be responsible to or subject to the direction of any
other officer, employee or agent of OSI or the TPA, except that a hearing
officer appointed by the superintendent shall be subject to the direction of
the superintendent.
D. Ex parte communication. In the performance of these functions, the
hearing officer is prohibited from engaging in any improper ex parte communications about the
substantive issues with any party on any matter. An improper ex parte communication occurs when the hearing officer discusses or
otherwise communicates regarding the substance of a case without the opposing
party being present, except that it is not an improper ex parte communication for the hearing officer to go on the record
with only one party when the other party has failed to appear at a scheduled
hearing.
E. Final
order. After a thorough review of
the record and any recommendation prepared by a designated hearing officer, the
superintendent shall issue a final order. No party or member of OSI or TPA staff shall
engage in any ex parte communication
with the superintendent in an attempt to influence his final decision.
[13.21.4.19 NMAC – N/E, 3/01/2019; Rp, 13.21.4.19 NMAC 4/30/2019;
A, 01/01/2022]
13.21.4.20 CLOSED OR PUBLIC HEARING, SEALED
RECORDS, AND DELIBERATIVE NOTES OF HEARING OFFICER:
A. Closed hearings. Unless otherwise provided by law, ordered
by the hearing officer for good cause, or required to prevent disclosure of confidential
information, all hearings and the record are open to the public. Any party to a proceeding may submit a
written request to close the hearing and the record to the public, which shall
be granted if authorized by statute, regulation, to preserve confidentiality or
to protect a party from harassment or reprisal. Any proceedings and records
that involve an individual’s medical issues shall be closed to the public.
B. Open hearings. If the hearing is open to the public,
members of the public and the media may attend the hearing so long as they do
not interrupt, interfere with, or impede the orderly, fair, and efficient
hearing process. With prior consent of
the hearing officer, media members may record the proceeding from a fixed
location in the hearing room. The
hearing officer may direct any member of the public, including media members,
to leave the proceeding if they engage in any conduct that interferes with the
hearing officer’s ability to maintain order, develop the record, and provide a
fair and efficient hearing process. The
proceedings shall be made available telephonically to members of the public,
including the media, upon prior request.
C. Sealed records. Upon request of any party, and upon a
showing of good cause, the hearing officer may seal a particular exhibit,
document, or portions of a witness’s testimony from public disclosure if such
items contain statutorily-protected confidential information, privileged
information, or otherwise contain private identification information of a party
or third party that is immaterial to a substantive issue in the proceeding or
if its materiality is substantially outweighed by the prejudice of public
release of the information. Upon
issuance of an order sealing such documents or exhibits, these records will
remain under seal throughout the proceeding and shall be returned to the
submitting party at the conclusion of the appeal period or the appeal. The opposing party shall be entitled to
promptly review these documents in preparing for the hearing, and may rely on
those documents during the hearing as necessary to ensure a fair hearing
process; however, the opposing party shall not maintain its own copy of the
sealed document after conclusion of the hearing nor reveal, discuss, or
disclose the contents of these sealed documents to any other party outside of
the hearing process.
D. Notes of deliberation. The hearing officer’s notes taken during
the course of the hearing, notes generated during the decision-making process,
and any draft orders or draft decisions are confidential as part of the
deliberative process and are not subject to public disclosure.
[13.21.4.20 NMAC – N/E, 3/01/2019; Rp, 13.21.4.20 NMAC 4/30/2019]
13.21.4.21 SUBPOENAS: Any request for issuance
of subpoenas in matters subject to these rules shall be guided by Rule 45 of
the rules of civil procedure for the district courts of New Mexico, except
where provisions of that rule conflict with the powers of the superintendent. Any subpoena issued shall be in the name of
the superintendent. The party requesting
the subpoena shall prepare a proposed subpoena, submit the proposed subpoena to
each other party and to the hearing officer for approval, and shall timely and
reasonably serve the subpoena on the person or entity subject to the subpoena. Unless good cause is shown for a shorter
period, a subpoena shall provide at least 10 days-notice before compelled
attendance at a hearing or deposition, and at least 10 days-notice before
compelled production of materials. All
returns or certificates of service on served subpoenas shall be filed in the
docket of the proceeding, copied to the opposing party, and shall be made part
of the record of the proceeding.
[13.21.4.21 NMAC – N/E, 3/01/2019; Rp, 13.21.4.21 NMAC 4/30/2019]
13.21.4.22 LANGUAGE INTERPRETERS: A party to a proceeding
who needs language interpreter services for translation of one language into
another is responsible for arranging such service for the hearing. While the person serving as an interpreter
need not be a court-certified interpreter in order to provide interpretation at
a hearing, any person serving as an interpreter in a matter before the
superintendent must be approved by the hearing officer and must affirm the
interpreter’s oath applicable in New Mexico courts. Upon reasonable notice by the party, any
interpreter required to be provided under the Americans with Disabilities Act
shall be provided for by the superintendent.
[13.21.4.22 NMAC – N/E, 3/01/2019; Rp, 13.21.4.22 NMAC 4/30/2019]
13.21.4.23 FAILURE TO APPEAR:
A. Entry of default order. If a party fails to appear for a properly
noticed hearing, either in person, through a permissible representative or
telephonically with prior approval of the hearing officer, the person waives
the right to protest or challenge superintendent’s action that is the subject
of the hearing notice. The matter shall
go on the record for the limited purpose of addressing notice and
non-appearance, and a final order shall be entered based on the waiver of the
hearing by failing to appear.
B. Evidence
of notice. In considering the
non-appearance and whether the person received appropriate notice necessitating
issuance of the order, the hearing officer may consider the contents of the
docket, information conveyed to or known by the superintendent, information
related to mailing, including mail tracking, returned receipt information, and
notes written on returned envelopes of the United States postal service or
other mail tracking services, and arguments offered by any present party, all
of which may be addressed on the record of the hearing or in any subsequent
order.
C. Written order required. Oral rulings based on a party’s failure to
appear are not final until reduced to writing.
The hearing officer may issue a different written order as new
information arises after the hearing regarding whether the notice of hearing
was properly sent to the correct address or otherwise properly served.
[13.21.4.23 NMAC – N/E, 3/01/2019; Rp, 13.21.4.23 NMAC 4/30/2019]
13.21.4.24 RECONSIDERATION:
A. Time to file. A party may file a motion for
reconsideration within 15 days after the date of the final order. Any other party may file a response no more
than 15 days after the motion for reconsideration was filed. Motions for reconsideration that are not
filed within this deadline may be denied automatically. A timely filed motion for reconsideration
should be decided based on the merits, whether or not a response is filed.
B. Posture. The prevailing party shall not file a
motion for reconsideration. However, if
a requested action is granted in part and denied in part, either party may file
a motion for reconsideration.
C. Basis for motion. Motions for reconsideration shall not
endeavor to present new evidence previously available, or discoverable through
reasonable diligence, to the parties before the hearing. Motions for reconsideration shall not reargue
the weight of evidence already ruled upon and shall not reiterate legal
arguments already ruled upon. However, a
motion for reconsideration may address gross factual or legal errors or
omissions contained in the final decision and order.
[13.21.4.24 NMAC – N/E, 3/01/2019; Rp, 13.21.4.24 NMAC 4/30/2019]
13.21.4.25 APPEALS FOLLOWING HEARING: Any party who has exhausted all
administrative remedies available under these rules and who is adversely
affected by a final order or decision in an adjudicatory proceeding may appeal
pursuant to the provisions of Section
39-3-1.1 NMSA 1978. Each order issued by the
superintendent after an
adjudicatory proceeding shall include information
about the appeal process for the type of case at issue. Once the appeal is filed in the appropriate
court, the appealing party shall promptly provide a court-endorsed copy of the
appeal to the superintendent so that the OSI records manager can prepare and
submit the proper record.
[13.21.4.25 NMAC – N/E, 3/01/2019; Rp, 13.21.4.25 NMAC 4/30/2019;
A, 01/01/2022]
13.21.4.26 REQUESTING COPIES OF EXHIBITS,
AUDIO, OR THE ADMINISTRATIVE RECORD: Any party may access and copy any written
document filed to the docket. Copies of
an audio recording or written transcript of the proceeding shall be arranged
through the stenographic service. The OSI
may charge a reasonable fee for copies made, consistent with OSI’s fee schedule
under the Inspection of Public Records Act. The superintendent may also require the
requesting party to submit a computer storage device, such as a compact disc,
dvd disc, blu-ray disc, or usb drive, or other tangible device for copying of
any audio or video recording that is part of the administrative record.
[13.21.4.26 NMAC – N/E, 3/01/2019; Rp, 13.21.4.26 NMAC 4/30/2019;
A, 01/01/2022]
History of 13.21.4
NMAC:
13.21.4 NMAC, Administrative Hearings, effective 3/1/2019.
History of Repealed
Material:
13.21.4 NMAC, Administrative Hearings, effective 3/1/2019 was repealed and
replaced by 13.21.4
NMAC, Administrative Hearings,
effective 4/23/2019.