TITLE 13 INSURANCE
CHAPTER
21 PATIENT’S COMPENSATION FUND
PART
5 SURCHARGE RATE HEARINGS
13.21.5.1 ISSUING AGENCY: New
Mexico Superintendent of Insurance.
[13.21.5.1 NMAC – N, 01/01/2022]
13.21.5.2 SCOPE: Except as otherwise
provided, the rules in this part govern every surcharge rate proceeding
conducted pursuant to Subsection D and Subsection F of Section 41-5-25 NMSA
1978.
[13.21.5.2
NMAC – N, 01/01/2022]
13.21.5.3 STATUTORY AUTHORITY: Section
41-5-25 NMSA 1978.
[13.21.5.3
NMAC – N, 01/01/2022]
13.21.5.4 DURATION: Permanent.
[13.21.5.4
NMAC – N, 01/01/2022]
13.21.5.5 EFFECTIVE DATE: January 1, 2022, unless
a later date is cited at the end of a section.
[13.21.5.5
NMAC – N, 01/01/2022]
13.21.5.6 OBJECTIVE: The purpose of this rule is to provide
procedures to govern surcharge rate hearings required by the Medical Malpractice
Act.
[13.21.5.6
NMAC – N, 01/01/2022]
13.21.5.7 DEFINITIONS: This rule adopts the
definitions found in Section 41-5-3 NMSA 1978, in Section 14-4-2 NMSA 1978, in Chapter 59A, Article 1 NMSA 1978,
in 1.24.1.7 NMAC, in 13.21.1.7 NMAC, and in 3.21.4.7 NMAC.
[13.21.5.7
NMAC – N, 01/01/2022]
13.21.5.8 REVISION OF STANDING ORDERS: The superintendent may issue or withdraw
standing procedural orders addressing general practice issues and filing
protocols for the handling of surcharge rate hearings. Such standing orders
will be available for public inspection at OSI office facilities, on the Patient’s Compensation Fund website, and
in any applicable information provided with a notice of hearing. Parties
appearing at surcharge rate hearings are expected to comply with standing
orders.
[13.21.5.8
NMAC – N, 01/01/2022]
13.21.5.9 ADVISORY BOARD AS HEARING OFFICER:
A. General authority. The advisory board is the hearing officer
for surcharge rate hearings. The advisory board may conduct any hearing en
banc, may designate any number of members less than its whole to conduct
any hearing, or may designate a single member to conduct any hearing.
B. Duties of the advisory board. The advisory
board shall conduct fair and impartial hearings, take all necessary action to
avoid delay in the proceedings and maintain order. The advisory board 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 the 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 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) 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 advisory board. In
the performance of these functions, the advisory board shall not be responsible
to or subject to the direction of any officer, employee or agent of OSI or the TPA.
Pursuant to Subsection A of Section 41-5-25.1 NMSA 1978, OSI shall provide
staff services to the advisory board to assist in the administration of the
hearing.
D. Ex parte communication. In the
performance of these functions, the advisory board 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 advisory board, or any of
its members, 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 advisory board to go on the record with only one party when the other party
has failed to appear at a scheduled hearing.
E. Recommended decision. Upon
conclusion of the surcharge rate hearing, the advisory board, or a quorum
thereof, shall meet to determine the surcharge rates to recommend to the
superintendent. The advisory board shall base its determination upon
substantial evidence in the whole record. The advisory board shall provide a
written recommended decision to the superintendent on or before October 21 of
each year, which shall set forth the recommended surcharge rates and a summary
of the evidence supporting those rates.
F. Final
order. After a thorough review of the record and the recommendation
prepared by the advisory board, 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 a final decision. The superintendent may seek counsel from OSI’s office
of legal counsel.
[13.21.5.9
NMAC – N, 01/01/2022]
13.21.5.10 INITIATION OF THE SURCHARGE RATE HEARING:
A. Selection of actuary. No later than March 1 of each year, the
advisory board shall meet with the superintendent to consult on the selection
of an independent actuary to perform the independent actuarial study of the
fund. The actuarial study is to be completed by August 1 of the year in which
the actuary is selected.
B. Opening the docket. No later than March 15 of each year, the
superintendent shall open a docket in OSI’s electronic docket system for that
year’s surcharge rate hearing. A docket number shall be assigned and referenced
in all subsequent communications and filings concerning the surcharge rate
hearing.
(1) The
superintendent shall file an initial order setting the surcharge rate hearing
between September 15 and September 30 of each year.
(2) The
superintendent shall establish the caption for the docket, which caption shall
be used thereafter for any matters pertaining to the hearing. The caption shall state the nature of the
matter and shall include the docket number.
(3) Every
written document that is submitted to the superintendent or advisory board or
exchanged between the 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 docket.
C. Designation of advisory board as hearing
officer. The superintendent’s
initial order shall designate the advisory board as the hearing officer in the
surcharge rate hearing.
D. Intervenors. Any person who claims an interest relating
to the surcharge rate 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 advisory board shall
consider the nature of the claimed interest of the applicant, the potential
impact of the advisory board’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 is at the sole discretion of the advisory board.
[13.21.5.10
NMAC – N, 01/01/2022]
13.21.5.11 REPRESENTATION AT HEARING, FORMAL ENTRY OF APPEARANCE,
SUBSTITUTION OF COUNSEL, AND WITHDRAWAL FROM REPRESENTATION:
A. Representation. Unless otherwise
expressly authorized by statute, only a person made a party or a bona fide
majority owner if the party is a business entity, or that person’s attorney may
represent the person in the surcharge rate 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
advisory board 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.
[13.21.5.11
NMAC – N, 01/01/2022]
13.21.5.12 ELECTRONIC DOCKET AND FILING OF DOCUMENTS:
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. 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. Public
access. Unless the document contains information
protected under Subsection D of Section 41-5-25 NMSA 1978, all documents filed
in the docket for the surcharge rate proceeding shall be open for public
inspection. Any protected information will be filed under seal or redacted in
publicly available documents, in a manner ensuring the greatest possible public
access to non-confidential information.
C. 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 filings.
(1) Unless a different deadline has been
established by the advisory board, 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
advisory board 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
advisory board 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 filing, the advisory board 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 Patient’s Compensation Fund,
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.
[13.21.5.12
NMAC – N, 01/01/2022]
13.21.5.13 PREHEARING CONFERENCES, STATUS CONFERENCES,
AND STATUS CHECKS:
A. Purpose of prehearing conferences. The advisory board may direct
representatives for all parties to meet together or with the advisory board
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 advisory board 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
advisory board 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 advisory board 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
advisory board may conduct a status conference upon the request of either party
or on the advisory board’s own initiative, at which time the advisory board may
require the parties, attorneys, or authorized representatives, to provide
information regarding the status of a proceeding.
[13.21.5.13
NMAC – N, 01/01/2022]
13.21.5.14 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 advisory
board shall occur in Santa Fe, at the office of superintendent of insurance,
unless the advisory board orders the parties to appear at another location in
New Mexico.
(2) The parties may express a mutual
preference for location of any hearing.
(3) In selecting a location other
than Santa Fe, the advisory board shall consider and give weight to the
location and wishes of the parties, witnesses, and access for members of the advisory
board.
(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 advisory board will
promptly review the objection and, upon a showing of an unreasonable, undue
burden, may move the hearing to another more reasonable location.
B. Notice. Except for the evidentiary hearing to
establish surcharge rates set by the superintendent’s initial order (unless the
advisory board determines to change the date of that hearing), the advisory
board will notify the parties to the hearing of the date, time and place
scheduled for any hearing at least seven days before the that hearing. This notice will be directed to the party’s
attorney, or to the last known address of any unrepresented party. Notice will be provided in a manner
calculated to provide actual notice.
[13.21.5.14
NMAC – N, 01/01/2022]
13.21.5.15 TELEPHONIC, VIDEOCONFERENCE AND
OTHER EQUIVALENT ELECTRONIC METHOD HEARINGS:
A. If
not otherwise prohibited by statute, rule, or court ruling, the advisory board
may conduct any hearing in person or by telephone, videoconference, or other
equivalent electronic method. The advisory
board 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 advisory board.
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 advisory board 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 advisory board to appear via telephone, videoconference,
or other equivalent electronic methods.
E. All
parties appearing via telephone, videoconference, or other electronic method
shall provide the advisory board 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 advisory board’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 advisory board.
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 advisory board 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 advisory board 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 advisory board may recess a hearing occurring by
telephone, videoconference, or other equivalent electronic method and reconvene
the proceeding as an in-person hearing.
[13.21.5.15
NMAC – N, 01/01/2022]
13.21.5.16 CONTINUANCES:
A. At
the request of a party, a witness, or upon the advisory board’s own
determination, a hearing may be continued for good cause. The advisory board 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 advisory board 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 deadline.
B. Within
the time limits set by statute, the superintendent or advisory board may sua sponte continue any matter as
necessary to address OSI or TPA staffing needs, to ensure efficient and
adequate use of state resources, and to manage the hearing docket. To this end, the advisory board 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 time limit on the case.
[13.21.5.16
NMAC – N, 01/01/2022]
13.21.5.17 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.
[13.21.5.17
NMAC – N, 01/01/2022]
13.21.5.18 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 advisory board makes reasonable exceptions related to the
availability of the witnesses and representatives or other scheduling concerns.
C. Opening statements. The advisory board 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 advisory board may also ask questions of
the witness as appropriate. At the advisory
board’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 advisory
board, in writing after conclusion of the hearing.
F. Post-hearing
briefs. The advisory board 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 advisory board will establish a timeline
for submission of any post-hearing pleadings, including time for the parties to
exchange briefs, as the advisory board 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 advisory board.
(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 advisory board.
(c) Exhibits
must be introduced and explained by a witness, who must be prepared to answer
questions from the parties and the advisory board.
(d) The
advisory board shall be asked by the party offering an exhibit to accept the
exhibit into evidence. The advisory board 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
advisory board 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 advisory board 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
advisory board 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 advisory
board. The advisory board may admit
larger documentary exhibits presented at hearing, provided the proponent of such
exhibits provides the advisory board 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 advisory board 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.
[13.21.5.18
NMAC – N, 01/01/2022]
13.21.5.19 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 advisory
board.
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 advisory
board 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. Advisory board as a witness. The current or previously assigned advisory
board 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 advisory
board 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 advisory board may request one or
more members of OSI staff to be present at the hearing to assist the advisory
board with any matters within the expertise of the staff person.
(2) The
staff person may be called as a witness by the advisory board and examined by
the parties and the advisory board.
(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 advisory board, the advisory board may permit re-direct or re-cross examination
of the staff person.
(5) The
advisory board 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 advisory board shall not be subject
to the exclusionary rule.
[13.21.5.19
NMAC – N, 01/01/2022]
13.21.5.20 CLOSED OR PUBLIC HEARING, SEALED
RECORDS, AND DELIBERATIVE NOTES OF ADVISORY BOARD:
A. Closed hearings. Unless otherwise provided by law, ordered
by the advisory board 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.
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 advisory board, media members may record the proceeding from a fixed location
in the hearing room. The advisory board
may direct any member of the public, including media members, to leave the
proceeding if they engage in any conduct that interferes with the advisory
board’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 advisory board 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 advisory board’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.
[13.21.5.20
NMAC – N, 01/01/2022]
13.21.5.21 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 advisory board 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.
[13.21.5.21
NMAC – N, 01/01/2022]
13.21.5.22 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 advisory board 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.
[13.21.5.22
NMAC – N, 01/01/2022]
13.21.5.23 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 advisory board, the person waives the
right to protest or challenge any 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 the
advisory board shall enter an appropriate order 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 advisory board may consider the contents of the
docket, information conveyed to or known by the advisory board, 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 advisory board 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.
[13.21.5.23
NMAC – N, 01/01/2022]
13.21.5.24 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.
[13.21.5.24
NMAC – N, 01/01/2022]
13.21.5.25 APPEALS FOLLOWING HEARING: Any person who is adversely affected by
a final order or decision in a surcharge rate proceeding may appeal pursuant to
the provisions of Section 39-3-1.1 NMSA
1978. Each order issued by the
superintendent after a
surcharge rate 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.
[13.21.5.25
NMAC – N, 01/01/2022]
13.21.5.26 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.
[13.21.5.26
NMAC – N, 01/01/2022]
History of 13.21.5 NMAC: [RESERVED]