N.M. Admin. Code § 6.101.2.9 - MEDIATION
A.
Request. A request for mediation shall be made in writing online,
via email, or by mailed letter to the director of the NMDVR. Incomplete
requests that do not contain all of the following required information shall
not be considered:
(1) the name of the NMDVR
counselor assigned to the case;
(2)
the determination being contested; and
(3) the date of the contested
determination.
B.
Time limitation for request. The request must be received by the
director of the NMDVR within 45 calendar days of the date of the contested
determination. Failure to submit the request within 45 calendar days may result
in a denial of the request, as determined by the NMDVR, in its sole
discretion.
C.
Appointment of
mediator. A qualified and impartial mediator shall be appointed on a
random basis from a qualified pool of mediators established jointly by the New
Mexico state rehabilitation council and the NMDVR or by agreement between the
applicant or recipient and the director of the NMDVR. The mediator shall not be
a current employee of the NMDVR.
D.
Duties of mediator. A mediator facilitates discussions between the
parties to help the parties come to a mutually agreed upon resolution of
disputed issues by:
(1) scheduling the
mediation;
(2) explaining how the
mediation process works and the confidentially of the process;
(3) communicating with both parties to gather
information about the contested issues and helping the parties work through the
contestation;
(4) assisting the
parties in understanding the applicable laws, precedents, and other established
guidelines;
(5) helping the parties
to find common ground and resolutions that both parties can accept;
and
(6) helping the parties
complete the mediation paperwork at the conclusion of the mediation.
E.
Mediation process.
Mediations shall be scheduled and completed in a timely manner, but not later
than 30 calendar days after receipt of the request if there is also a request
for fair hearing pending. If no fair hearing request is pending, the mediation
shall be completed no later than 45 days of the request.
(1) The mediation shall be held in a location
and manner that is convenient to the parties.
(2) Mediation is voluntary on the part of
both parties, and either party or the mediator may terminate the mediation at
any point in the process for any reason. If the mediation is terminated for any
reason, the applicant or recipient may request resolution through a fair
hearing.
(3) During the mediation
process, the applicant or recipient may represent themself or may be
represented by a guardian, legal counsel, or another advocate of their choice.
(a) All expenses of such representation,
including legal fees and travel costs, shall be the responsibility of the
applicant or recipient.
(b) The
applicant or recipient shall notify the NMDVR in writing of the name and
contact information of the designated representative. Authorization for
representation may be withdrawn at any time by giving written notice of the
withdrawal to the NMDVR.
(4) Both parties shall have the opportunity
to submit relevant evidence in the form of documentation or other information
in support of their position.
(5)
Discussions that occur during mediation shall be kept confidential and shall
not be used as evidence in any subsequent fair hearing or civil proceeding. The
parties will be required to sign a confidentiality agreement prior to the
commencement of the process.
(6) If
the parties reach agreement during the mediation, the terms of the agreement
shall be described in a written mediation agreement developed by the parties
with the assistance of the mediator.
(a) The
mediation agreement shall be signed by both parties.
(b) A copy of the mediation agreement shall
be mailed or emailed to both parties by the mediator.
(c) A signed mediation agreement is a binding
and final resolution of the contested decision.
F.
Cost of mediation. The NMDVR
shall pay the costs of the mediation up to eight hours. However, the NMDVR
shall not be required to pay any costs related to the representation of the
applicant or recipient.
G.
Impact on provision of services. Pending resolution through
mediation, the NMDVR shall not suspend, reduce, or terminate services being
provided under an IPE, unless such services have been obtained through
misrepresentation, fraud, collusion, or criminal conduct on the part of the
applicant or recipient, as determined by the NMDVR, or the applicant or
recipient requests a suspension, reduction or termination of
services.
Notes
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