TITLE 13 INSURANCE
CHAPTER 21 PATIENT’S
PART 3 PROCEDURAL RULES FOR PUBLIC RULE
18.104.22.168 ISSUING AGENCY: New
Mexico Superintendent of Insurance.
[22.214.171.124 NMAC – N/E, 3/01/2019; Rp, 126.96.36.199
188.8.131.52 SCOPE: This
rule applies to all proceedings relating to the Patient’s Compensation Fund
(the fund) in which the superintendent adopts rules as required by law.
[184.108.40.206 NMAC – N/E, 3/01/2019; Rp, 220.127.116.11
NMAC, 4/30/2019 A, 01/01/2022]
14-4-5.8 NMSA 1978.
[18.104.22.168 NMAC – N/E, 3/01/2019; Rp, 22.214.171.124
[126.96.36.199 NMAC – N/E, 3/01/2019; Rp, 188.8.131.52
30, 2019, unless a later date is cited at the end of a section.
[184.108.40.206 NMAC – N/E, 3/01/2019; Rp, 220.127.116.11
To provide procedural
rules for public rule hearings for use by the superintendent consistent with
the State Rules Act in the organization, administration, and defense of the fund
and to facilitate public engagement with the superintendent’s rulemaking
process in a transparent, organized, and fair manner.
[18.104.22.168 NMAC – N/E, 3/01/2019; Rp, 22.214.171.124
NMAC, 4/30/2019; A, 01/01/2022]
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 126.96.36.199 NMAC, and in 188.8.131.52 NMAC. In addition:
A. “Final order” also means “concise
explanatory statement” as described in Section 14-4-5.5 NMSA 1978;
B. “Logical outgrowth” occurs
when a final rule differs from the proposed rule if interested parties should have anticipated that the change was
possible, and thus reasonably should have filed their comments on the subject
during the notice-and-comment period;
C. “Recommended decision” means the
written decision of any designated hearing officer which contains a description
of the rulemaking proceeding, a summary of any written comments submitted to
the superintendent, a summary of any oral comments made at the public hearing,
any analysis or conclusions of the designated hearing officer, and
recommendations to the superintendent concerning adoption, rejection, or
amendment of the proposed rule.
[184.108.40.206 NMAC – N/E, 3/01/2019; Rp, 220.127.116.11
NMAC, 4/30/2019; A, 01/01/2022]
OF THE RULEMAKING PROCESS BY THE SUPERINTENDENT:
A. The rulemaking process may be initiated
by the superintendent through a notice for a rule hearing that is publicly
posted pursuant to this rule.
B. The superintendent shall proceed
with the rulemaking process by posting public notice, publishing the proposed
rule for comment, and setting a public rule hearing in accordance with the
State Rules Act and any other applicable law.
C. Once the superintendent initiates
the rulemaking process, the superintendent must maintain a record as prescribed
in Section 14-4-5.4 NMSA 1978.
[18.104.22.168 NMAC – N/E, 3/01/2019; Rp, 22.214.171.124
OF THE RULEMAKING PROCESS BY THE PUBLIC:
A. Any person may file a petition for
rulemaking with the superintendent.
B. A petition for rulemaking shall be
made in writing and include an explanation of the purpose or statement of
reasons for the proposed rule. A
petition shall include a citation to the legal authority authorizing the
superintendent to adopt the rule and a copy of or citation to technical
information, if any, that serves as the basis for the proposed rule. A petition should be as clear as possible and
may include the proposed rule in underline and strikethrough format, consistent
with requirements of the state records administrator.
C. The superintendent shall, if required
by law, consider the petition and make a determination within 30 calendar days
whether to grant or deny the petition. If the superintendent denies the petition, the
superintendent shall issue a final order explaining the reason for denial. No affirmative duty to respond to a public
petition is created by these rules. If a
public right to petition the superintendent exists under the MMA, the
superintendent must follow all timelines or responses governed by the MMA.
D. Once the
superintendent initiates the rulemaking process, the superintendent must
maintain a record as prescribed in Section 14-4-5.4
[126.96.36.199 NMAC – N/E, 3/01/2019; Rp, 188.8.131.52
superintendent shall provide to the public, as defined in Section 14-4-2
NMSA 1978, notice of the proposed rulemaking a minimum of 30 calendar days
prior to the public rule hearing and in accordance with requirements of Section
[184.108.40.206 NMAC – N/E, 3/01/2019; Rp,
220.127.116.11 NMAC, 4/30/2019]
A. The public comment period must be at
least 30 calendar days, beginning after publication of the notice in the New
Mexico register and issuance of the rulemaking notice. The superintendent shall not adopt a proposed
rule before the end of the public comment period.
B. As long as the public comment period
is at least 30 calendar days, the public comment period will close for initial
comments at 4:00 p.m. on the day of the public hearing, or on the last day of
the public hearing if the public hearing extends for more than one day. For purposes only of responses to written
comments or oral comments at the public hearing, the public comment period will
extend at least 10 calendar days beyond the public hearing or close of the 30
day comment period, whichever is later, unless the necessity of adopting or
publishing the rule by a certain date makes the extension of the public comment
C. A person may submit, by mail or in electronic
form, written comments or responses to comments on a proposed rule, and those
comments or responses shall be made part of the record. Written comments may be submitted through the
end of the public comment period, and responses to comments may be submitted
for an additional 10 days, unless the necessity of adopting or publishing the
rule by a certain date makes a response period impractical.
D. The superintendent may decide to
amend the comment period, or response period, if the superintendent provides to
the public, as defined in Section 14-4-2
NMSA 1978, notice of the changes.
E. The superintendent shall post all
written comments and responses on the patient’s compensation fund website, as
soon as practicable, and no more than three business days following receipt to
allow for public review. All written
comments and responses received by the superintendent shall also be available
for public inspection at the main office of the superintendent.
[18.104.22.168 NMAC – Rp, 22.214.171.124 NMAC,
4/30/2019; A, 01/01/2022]
A. Prior to adopting a proposed rule,
the superintendent must hold a public rule hearing. The purpose of the hearing is to provide all
interested persons a reasonable opportunity to submit data, views or arguments
orally or in writing on the proposed rule. The superintendent, at the
superintendent’s discretion, directly or through a designated hearing officer,
may determine whether to hold more than one hearing.
B. The superintendent may act as the
hearing officer or designate an individual hearing officer to preside over the
hearing. The hearing officer may ask
questions and provide comments for clarification purposes only, but should
refrain from providing opinions or engaging in discussion regarding the merits
of the proposed rule or any public comment presented. All written comments submitted during the
public comment period, as well as any written comments submitted during the
hearing, will be made part of the record.
D. Individuals wishing to provide
public comment or submit information at the hearing must state their name and
any relevant affiliation for the record and be recognized before presenting. Public comment shall not be taken under oath
unless required by law or separate rule. Any individual who provides public comment at
the hearing may be questioned by the superintendent or hearing officer or, at
the discretion of the superintendent or hearing officer, or as otherwise
provided by law, by other persons at the hearing.
E. The hearing shall be conducted in a
fair and equitable manner. The
superintendent or hearing officer may determine the format in which the hearing
is conducted (e.g. introduction of each part or section one at a time for
comment), but the hearing will be conducted in a simple and organized manner
that facilitates public comment and a clear rulemaking record.
F. The rules of evidence do not apply
to public rule hearings and the superintendent or hearing officer may, in the
interest of efficiency, exclude or limit comment or questions deemed
irrelevant, redundant, or unduly repetitious.
G. The superintendent must hold the
hearing in a venue that reasonably accommodates all persons who wish to
participate or observe, and appropriate audio equipment should be secured to
ensure all in attendance can hear the proceeding and be heard when presenting
comment. Reasonable efforts shall be
made to accommodate the use of audio and video recording devices. Hearings shall be open to the public, but are
not subject to the New Mexico Open Meetings Act.
H. The hearing shall be recorded by any
stenographic method in use in the district court or by audio recording.
[126.96.36.199 NMAC – N/E, 3/01/2019; Rp,
188.8.131.52 NMAC, 4/30/2019]
RECORD AND ADOPTION OF RULE:
superintendent shall maintain a record of the rulemaking proceeding as required
in Section 14-4-5.4 NMSA 1978, and any written comment, document, or
other exhibit entered into the record during the rule hearing shall be labeled
clearly. Pre-filed written comments are
part of the rulemaking record without the need for formal admission. Pre-filed comments include, but are not
limited to: the petition; public notices of the rulemaking, including any lists
of individuals to whom notice was mailed or sent electronically; the proposed
rule in underline and strikethrough format; and any written comment submitted
during the comment period prior to the rule hearing. Written comments or other
documents introduced during the hearing should be admitted into the record
after being marked as an exhibit.
B. If the rule hearing is conducted by
a designated hearing officer, the complete rulemaking record, including any
memoranda summarizing the contents of the hearing, if written, shall be
compiled and forwarded to the superintendent with sufficient time to review. The superintendent shall review the rulemaking
record or the hearing officer’s recommended decision before rendering a final
decision on the proposed rule.
C. The superintendent may adopt, amend,
or reject the proposed rule. Any amendments
to the proposed rule must fall within the scope of the current rulemaking
proceeding. Amendments to a proposed
rule are within the scope of the rulemaking if the amendments:
a logical outgrowth of the rule proposed in the notice; or
proposed, or are reasonably suggested, by comments made during the comment
period, and the 10 day response period after the close of the comment period
has been provided, and
(a) any person affected by the
adoption of the rule, if amended, should have reasonably expected that any
change from the published proposed rule would affect that person’s interest; or
(b) the subject matter of the amended
rule or the issues determined by that rule are the same as those in the
published proposed rule.
D. The date of adoption of the proposed
rule shall be the date the final order is signed by the superintendent, unless
otherwise specified in the final order.
F. The final order may adopt by
reference some or all of any recommended decision and shall include by
reference or otherwise, but not be limited to, the following:
(1) citation to specific statutory or
other authority authorizing the rule;
(2) effective date of the rule;
(3) date of adoption of the rule, if
different than the date of the final order;
(4) reasons for adopting the rule,
including any findings otherwise required by law of the superintendent, and a
summary of any independent analysis done by the superintendent;
(5) reasons for any change between the
published proposed rule and the final rule; and
(6) reasons for not accepting substantive
arguments made through public comment.
[184.108.40.206 NMAC – N/E, 3/01/2019; Rp,
220.127.116.11 NMAC, 4/30/2019]
AND PUBLICATION; EFFECTIVE DATE:
A. Within 15 calendar days after the date
of adoption of a rule, the superintendent shall file the adopted rule with the
state records administrator and shall provide to the public the adopted rule
and final order in accordance with the State Rules Act.
B. Unless another date is stated in the
superintendent’s final order, or otherwise provided by law, the effective date
of the rule shall be the date of publication in the New Mexico register.
[18.104.22.168 NMAC – N/E, 3/01/2019; Rp,
22.214.171.124 NMAC, 4/30/2019]
126.96.36.199 EMERGENCY RULES: The superintendent shall
comply with the rulemaking procedures in Section 14-4-5.6 NMSA 1978, regarding the promulgation of
[188.8.131.52 NMAC – N/E, 3/01/2019; Rp,
184.108.40.206 NMAC, 4/30/2019]
History of 13.21.3 NMAC:
13.21.3 NMAC, Procedural
Rules For Public Rule Hearings, effective 3/1/2019.
History of Repealed Material:
13.21.3 NMAC, Procedural
Rules For Public Rule Hearings, effective 3/1/2019 was repealed and replaced by
13.21.3 NMAC, Procedural Rules For Public Rule Hearings, effective 4/23/2019.