TITLE 8 SOCIAL SERVICES
CHAPTER 8 CHILDREN, YOUTH AND FAMILIES GENERAL PROVISIONS
PART 4 ADMINISTRATIVE APPEALS
8.8.4.1 ISSUING AGENCY: Children, Youth and Families
Department.
[8.8.4.1
NMAC - Rp, 8.8.4.1 NMAC, 3/15/2016]
8.8.4.2 SCOPE: Department staff and the general
public.
[8.8.4.2
NMAC - Rp, 8.8.4.2 NMAC, 3/15/2016]
8.8.4.3 STATUTORY AUTHORITY: Subsection D of 9-2A-7 NMSA 1978
provides that the secretary may make and adopt such reasonable procedural rules
and regulations as may be necessary to carry out the duties of the department
and its divisions.
[8.8.4.3
NMAC - Rp, 8.8.4.3 NMAC, 3/15/2016]
8.8.4.4 DURATION: Permanent.
[8.8.4.4
NMAC - Rp, 8.8.4.4 NMAC, 3/15/2016]
8.8.4.5 EFFECTIVE DATE: March 15, 2016, unless a later date
is cited at the end of a section.
[8.8.4.5
NMAC - Rp, 8.8.4.5 NMAC, 3/15/2016]
8.8.4.6 OBJECTIVE: The objective of this rule is to
implement the department’s policy on administrative appeals hearings consistent
with federal and state constitutions and laws.
[8.8.4.6
NMAC - Rp, 8.8.4.6 NMAC, 3/15/2016]
8.8.4.7 DEFINITIONS:
A. “Administrative hearing” means the
process to address appeals, protests, and disputes dealing with substantiations
of abuse and neglect, licensing, certification, procurement, contracts,
termination or modification of existing services, or any other action that
warrants the commencement of a formal hearing.
B. “Appellant” means the party seeking
administrative appeal of a decision of a division of the department.
C. “Burden of proof” means the burden
of persuasion, the onus on the party to convince the hearing officer of all elements
of the case.
D. “Cease and desist order” means a
formal, enforceable order issued when a facility is found to be operating
without a license.
E. “Certification” means the
determination which is conveyed to the appropriate oversight body as to whether
a facility or agency complies with all federal or state regulations and
conditions of participation to provide services. Certification of noncompliance
may be the basis for a denial or termination of provider participation in a
program.
F. “Department” means the New Mexico
children, youth and families department.
G. “Director” means the director of any
division of the children, youth and families department.
H. “Emergency suspension” means the
prohibition of operation of a facility for a stated period of time by the
temporary withdrawal of the license or certification, prior to a hearing on the
matter, when immediate action is required to protect human health and safety.
The emergency suspension is carried out by personal service of an emergency
suspension order and a notice of hearing.
I. “Facility” means any facility or
agency required to be licensed or certified under state or federal law or
regulation.
J. “Final decision” means the written
document following a hearing, stating the final determination of the secretary
made after review of the hearing officer’s report and recommendation.
K. “Five-day hearing” means the hearing
noted in the emergency suspension order and notice of hearing.
L. “Hearing” means a proceeding in
which legal rights, duties or privileges of a party are at issue which includes
an opportunity for the parties to present testimony and evidence.
M. “Hearing officer” means an individual
designated by the secretary to conduct pre-hearing conferences and hearings and
to make reports and recommendations, based on the evidence taken, to the
secretary.
N. “Hearing office administrator”
means an individual who assists the hearing officer with administrative tasks.
O. “IFB” means an invitation to bid and
is used to initiate a competitive procurement contract.
P. “Intervenor” means a party permitted
to intervene in the hearing proceeding by written order of the hearing officer
and includes the department.
Q. “Official notice” means
administrative notice, the act by which the hearing officer, in conducting the
hearing or framing his/her decision, recognizes the existence and truth of
certain facts without the production of evidence by the parties.
R. “Party” or “parties” means the
persons, entities, or agencies with a direct interest and participation in the
subject matter of a hearing and such intervenors permitted to intervene by
written order of the hearing officer.
S. “Person” means an individual,
partnership, proprietorship, agency, corporation, company, association, tribal
government or tribal organization, state or local government entity, or similar
legal entity and the legal successor thereof.
T. “RFP” means a request for proposals
and is used to initiate a competitive proposal procurement.
U. “Secretary” means the secretary for
the children, youth and families department.
V. “Service” means
a notification by personal delivery, fax or certified mail.
W. “Subpoena” means a written command
issued by the hearing officer to appear at a certain time and place to give
testimony upon a certain matter. The subpoena may include a command to produce
books, papers, documents and other things.
X. “Working days” means, when
determining compliance with various deadlines in these regulations, Monday
through Friday of each calendar week, excluding state observed holidays.
[8.8.4.7
NMAC - Rp, 8.8.4.7 NMAC, 3/15/2016]
8.8.4.8 HEARING OFFICER:
A. All administrative hearings are
conducted by a hearing officer appointed by the secretary or his/her designee.
The hearing officer may be assisted by a hearing office administrator in
completing mailings, notices of hearings, subpoenas, and other administrative
tasks.
B. Qualifications
of the hearing officer:
(1) The hearing officer may be an
employee of the children, youth and families department, but has not been
involved, directly or indirectly, with the administrative decision at issue.
(2) The hearing officer need not be a
licensed attorney. However, he or she shall be familiar with the applicable
law, regulations, procedures, and constitutional requirements related to the
administrative decision at issue.
C. Disqualification
of the hearing officer:
(1) A hearing officer shall not
participate in any proceeding if, for any reason, the hearing officer cannot
afford a fair and impartial hearing to either party.
(2) The hearing officer can only be
removed for good cause. Any party seeking to recuse the hearing officer must
file a motion with the officer within seven days of receipt of the initial
communication from the hearing officer, setting forth the grounds for
disqualification and accompanied by all supporting reasons, affidavits, and
authorities. The hearing officer rules on the request to disqualify, and an
appeal of the ruling may be made to the secretary within seven days of the
ruling. The secretary promptly determines the validity of the grounds alleged
and takes any appropriate action.
(3) A written request to disqualify and
an appeal of the hearing officer’s ruling on the matter tolls any applicable
timetable for completion of the proceedings.
D. The hearing
officer may not dismiss a hearing and must submit all recommended decisions to
the secretary upon completion of proceedings except as outlined in Subsection J
of 8.8.4.9 NMAC.
[8.8.4.8
NMAC - Rp, 8.8.4.8 NMAC, 3/15/2016]
8.8.4.9 PRE-HEARING:
A. Within five business days of receipt
of the request for administrative hearing, the division director, or his/her
designee, submits a memorandum of information to the hearing office, with a
copy of the notice of contemplated action, cease and desist order, or emergency
suspension order and a copy of the notice of appeal included. An additional
copy of those items will be forwarded to the department’s office of general
counsel.
B. Unless otherwise
agreed, the hearing officer and all parties will confer within 30 days from the
date the memorandum of information is received in the hearing office to choose
an agreeable date for hearing.
C. The hearing
shall be held within 180 days from the date the memorandum of information is
received in the hearing office. Extensions may only be granted under
extenuating circumstances as determined by the hearing officer.
D. Upon receipt of the memorandum of
information, cease and desist order, or emergency suspension order and copy of
the notice of appeal, the hearing officer or hearing office administrator
establishes an official record which will contain all the filed notices,
pleadings, briefs, recommendations, correspondence, documents or items admitted
into evidence, recordings of the proceedings, and decisions. The hearing
officer will make contact with the parties as soon as practicable, but in any
case, no later than seven days from the date the appeal is filed in the hearing
office.
E. No person may discuss the merits of
any pending adjudicatory proceeding with the designated hearing officer or the
secretary, unless both parties or their representatives are present.
F. The hearing officer may consolidate
or join cases if there is commonality of legal issues or parties and if it
would expedite final resolution of the cases and would not adversely affect the
interests of the parties. The hearing officer may join the appeals of an
appellant who has two or more appeals pending.
G. The hearing officer may permit a
person to enter into a proceeding as an intervenor only when the intervention
is necessary to protect some right or interest of that person which may be
directly affected by the proceedings. The purpose of an intervention is to
prevent delay and unnecessary duplication. A request may be denied, however, if
it interferes with the rights of the original parties to conduct their cause on
their own terms.
H. Upon request of a party or upon the
hearing officer’s own motion, a pre-hearing order may be required or a
pre-hearing conference may be scheduled by the hearing officer at a time and
place reasonably convenient to all parties to:
(1) limit
and define issues;
(2) discuss
possible pre-hearing dispositions;
(3) set
a discovery plan;
(4) consider
possible admissions of fact or stipulations;
(5) identify
and limit the number of witnesses; and
(6) discuss
such other matters as may aid in the simplification of evidence and disposition
of the proceedings.
I. A pre-hearing conference is an
informal proceeding and may occur telephonically. The pre-hearing conference
may or may not be recorded, at the discretion of the hearing officer.
J. No offer of settlement made in a
pre-hearing conference is admissible as evidence at a later hearing.
Stipulations and admissions are binding and may be used as evidence at the
hearing. Any stipulation, settlement or consent order reached between the
parties is written and signed by the hearing officer and the parties or their
attorneys.
K. The hearing officer may dismiss an
appeal with prejudice in accordance with the provisions of a settlement
agreement approved by the hearing officer, upon a motion to withdraw the appeal
at any time before the deadline for the completion of discovery, or for failure
to prosecute.
M. Upon request of a
party or upon the hearing officer’s own motion, a status conference may be held
to assess pre-hearing issues and progression of the case. A status conference is an informal proceeding
and may occur telephonically. The status conference may or may not be recorded,
at the discretion of the hearing officer.
N. The hearing officer has the power to
compel the appearance of witnesses and the production of written materials or
other evidence the hearing officer may deem relevant or material. The hearing
officer, upon request by a party, may issue subpoenas and subpoenas duces tecum. The parties have a right to
discovery limited to depositions or interviews of named witnesses,
interrogatories, requests for production, and requests for admission. The
parties shall confer in good faith to schedule requested interviews or
depositions. All discovery is subject to
the control of the hearing officer and may be made a part of the pre-hearing order.
[8.8.4.9
NMAC - Rp, 8.8.4.9 NMAC, 3/15/2016]
8.8.4.10 HEARING ON IMMEDIATE SANCTIONS:
A. An immediate
sanction affecting a child care license or registration requires that a hearing
is held within five working days of the effective date of the immediate sanction as
noticed in the immediate sanction order and notice of hearing unless, no later than 24 hours prior to
the expiration of the five-day period, the right to a five-day hearing is
waived and a request for a hearing at a later date is made. An appeal of an
immediate sanction does not stay the sanction. This section does not apply to
actions against a foster care license.
B. If the person affected intends to
appear for the five-day hearing noticed in the emergency suspension order and
notice of hearing, a request for hearing need not be made.
C. If the person affected timely waives
the five-day hearing and requests a hearing to be held at a later date, the
extension is provided. Pre-hearing discovery can occur; however, an extension
of the five-day hearing date does not stay the immediate sanctions.
D. A person or facility is operating
illegally if operations continue after the effective date of an immediate
suspension or revocation and is subject to appropriate administrative and
judicial sanctions and criminal charges.
[8.8.4.10 NMAC
- Rp, 8.8.4.10 NMAC, 3/15/2016]
8.8.4.11 CONDUCT OF THE HEARING:
A. Notice of a hearing is made by
certified mail with return receipt requested at least 14 calendar days prior to
the hearing unless prior agreement of the time and manner of the hearing has
been agreed to in the pre-hearing order or otherwise agreed to by the parties
and the hearing officer.
B. Failure of a party to appear on the
date and time set for hearing, without good cause shown, constitutes a default,
and the hearing officer so notifies the parties in writing.
C. The hearing is open to the public
unless the hearing officer directs that the hearing be closed.
D. A party may appear at the hearing
through a legal representative, provided such representative has made a written
entry of appearance prior to the hearing date.
E. The hearing officer may clear the
room of witnesses not under examination, if either party so requests, and of
any person who is disruptive. The department is entitled to have a person, in
addition to its attorney, in the hearing room during the course of the hearing,
even if the person will also testify in the hearing.
F. The hearing is conducted in an
orderly and informal manner without strict adherence to the rules of evidence
that govern proceedings in the courts of the state of New Mexico. However, in
order to support the secretary’s decisions, there must be a residuum of legally
competent evidence to support a verdict in a court of law.
G. Both parties have certain procedural
due process rights during the hearing.
(1) Each party may make opening and
closing statements.
(2) Each party may call and examine
witnesses and introduce exhibits.
(3) Each party may cross-examine
witnesses.
(4) Each party may re-direct their
witnesses following cross-examination.
(5) Each party may impeach any witness.
(6) Each party may rebut any relevant
evidence.
(7) Each party may introduce evidence
relevant to the choice of sanction if it was raised as an issue in the
pre-hearing order.
H. Oral evidence is taken only under
oath or affirmation.
I. Generally, except as provided in the
following subsection, the order of presentation for hearings is as follows:
(1) opening of proceeding and taking of
appearances by the hearing officer;
(2) disposition of preliminary and
pending matters;
(3) opening statement of the department;
(4) opening statement of the appellant;
(5) department’s case-in-chief;
(6) appellant’s case-in-chief;
(7) department’s rebuttal;
(8) department’s closing argument;
(9) appellant’s
closing argument;
(10) department’s rebuttal argument; and
(11) losing of the proceedings by the
hearing officer.
J. The order of presentation in a
denial of an initial annual license or certification, denial of an award in an
RFP or IFB, or cease and desist order matters, will vary from the general order
of presentation in that appellant will make an opening statement before the
department makes its opening statement, will present a case-in-chief before the
department presents its case-in-chief, will make a closing argument before the
department makes its closing argument, and will have the option to make a
rebuttal argument following the department’s closing argument
K. The burden of proof in matters
arising from substantiation of abuse or neglect, suspension, revocation, denial
of renewal of a license, certification, or registration, denial or termination
of subsidies or monetary benefits, intermediate sanctions, emergency
suspension, or emergency intermediate sanctions lies with the department. The
burden of proof in matters arising from a denial of an initial annual license
or certification, denial of an award in an RFP or IFB, or cease and desist
orders lies with the appellant. In all cases the parties must prove their case
by a preponderance of the evidence.
L. The technical rules of evidence are
generally not applicable but will be used as a guide and may be considered in
determining the weight to be given any item of evidence. The hearing officer
admits all evidence, including affidavits, if it is the sort of evidence upon
which responsible persons are accustomed to rely in the conduct of serious
affairs. The hearing officer may exclude, with or without formal objection,
immaterial, irrelevant, unreliable or unduly cumulative testimony. The hearing
officer may question witnesses.
M. The hearing officer may take official
notice of those matters in which courts of this state may take judicial notice.
N. The rules of privilege are effective
to the extent that they are required to be recognized in civil actions in the
district courts of the state of New Mexico.
O. The hearing officer admits evidence
relevant only to those allegations against the appellant included in the notice
of results of investigation, notice of contemplated action, notice of
revocation of foster care license, or which are contested issues as set forth
in the pre-hearing order.
P. The hearing is recorded by a
sound-recording device under the supervision of the hearing officer. No other
recording of the hearing, by whatever means, is permitted without the approval
of the hearing officer.
[8.8.4.11
NMAC - Rp, 8.8.4.11 NMAC, 3/15/2016]
8.8.4.12 POST-HEARING:
A. The hearing officer may require or
permit written closing arguments, post-hearing briefs and proposed findings of
facts and conclusions of law according to a scheduling order issued by the
hearing officer. If case law is cited, a copy of the case will be provided to
the hearing officer.
B. After the expiration of any time set
for the submittal of the last post-hearing requests of documents, findings and
conclusions, arguments or briefs, the hearing officer submits a recommended
decision to the secretary as soon as practicable, but no later than 25 working
days for regular hearings and five working days for immediate suspensions and
immediate revocations.
C. As a general rule, the secretary
will only consider the hearing officer’s recommended decision, post-hearing
briefs, proposed findings of fact and conclusions of law. Where circumstances
warrant, the secretary or designee may review all or a portion of the record
before the hearing officer.
(1) The secretary or designee will not
consider any additional evidence or affidavits not in the official record of
the hearing or in pleadings not filed in accordance with the hearing officer’s
scheduling order.
(2) If the secretary or designee agrees
with the findings and conclusions of the hearing officer, the secretary or
designee will sign the decision as prepared by the hearing officer.
(3) If the secretary or designee
disagrees with the findings and conclusions of the hearing officer, a separate
order is issued which defines the findings and conclusions at issue and the
reasons a different decision is warranted.
D. The secretary or designee renders a
final determination as soon as practicable but no later than 20 working days
after submission of the hearing officer’s recommended decision. The hearing
officer or hearing office administrator will notify parties of the final
decision personally, by telephone, regular mail or electronic mail, and a copy
of the final decision is mailed to each party or attorney of record as soon as
practicable but no later than 15 working days from receipt of the secretary’s
final decision.
[8.8.4.12
NMAC - Rp, 8.8.4.12 NMAC, 3/15/2016]
8.8.4.13 JUDICIAL REVIEW:
A. An appeal of final decisions by the
secretary must be made to the appropriate district court pursuant to Rules
1-074 or 1-075, NMRA.
B. The hearing officer or hearing
office administrator is responsible for creating the record proper.
C. All exhibits admitted into evidence,
orders, submissions or motions filed and tapes or other transcripts of the
hearing compose the record proper.
D. The expense of copying tape recorded
testimony and any other expense of preparing the record, including accompanying
costs, are the appealing party’s responsibility.
E. Filing for judicial review does not
stay enforcement of the final decision. A motion in state district court is
filed concerning any issuance of a stay. Health and safety of department
clients is the primary consideration when a stay is requested.
[8.8.4.13
NMAC - Rp, 8.8.4.13 NMAC, 3/15/2016]
8.8.4.14 PROCUREMENT PROTESTS: Any bidder
or offeror that falls within the scope and authority of the Procurement Code
will have the right to protest as provided in 1 NMAC 5-2-80 through 5-2-93.
[8.8.4.14
NMAC - Rp, 8.8.4.14 NMAC, 3/15/2016]
HISTORY OF 8.8.4 NMAC:
History of
Repealed Material:
8.8.4
NMAC, Administrative Appeals, filed 2/15/2002 - Repealed effective 3/15/2016.