N.M. Admin. Code § 7.30.15.16 - HEARINGS

A. Scheduling the hearing:

(1) Appointment of hearing officer: Upon the program's receipt of a conforming request for hearing, the department shall appoint a hearing officer and schedule a hearing.

(2) Hearing date: The hearing shall be held not more than 60 days and not less than 15 days from the date of service of the notice of the hearing.

(3) Notice of hearing: The department shall notify the SBHC or SBHC applicant of the date, time, and place of the hearing and the identity of the hearing officer within 20 days of the program's receipt of the conforming request for hearing.

(4) Hearing venue: The hearing shall be held in Santa Fe, New Mexico, or may be held via internet-based web video conference by agreement of the parties.

B. Method of service: Any notice or decision required to be served under this section may be served either personally or by certified mail, return receipt requested, directed to the SBHC or SBHC applicant at the last known mailing address shown by the records of the program. The notice or decision shall be deemed to have been served on the date borne by the return receipt showing delivery, or the date of the last attempted delivery of the notice or decision, or the date of the addressee's refusal to accept delivery.

C. Hearing officer duties: The hearing officer shall conduct the hearing, rule on any motions or other matters that arise prior to the hearing, and issue a written report and recommendation(s) to the secretary following the close of the hearing.

D. Official file: Upon appointment, the hearing officer shall establish an official file which shall contain all notices, hearing requests, pleadings, motions, written stipulations, evidence, briefs, and correspondence received in the case. The official file shall also contain proffered items not admitted into evidence, which shall be so identified and shall be separately maintained. Upon conclusion of the proceeding and following issuance of the final decision, the hearing officer shall tender the complete official file to the department for its retention as an official record of the proceedings.

E. Powers of hearing officer: The hearing officer shall have all the powers necessary to conduct a hearing and to take all necessary action to avoid delay, maintain order, and assure development of a clear and complete record, including but not limited to the power to: administer oaths or affirmations; schedule continuances; direct discovery; examine witnesses and direct witnesses to testify; subpoena witnesses and relevant books, papers, documents, and other evidence; limit repetitious and cumulative testimony; set reasonable limits on the amount of time a witness may testify; decide objections to the admissibility of evidence or receive the evidence subject to later ruling; receive offers of proof for the record; take notice of judicially cognizable facts or take notice of general, technical, or scientific facts within the hearing officer's specialized knowledge (provided that the hearing officer notifies the parties beforehand and offers the parties an opportunity to contest the fact so noticed); direct parties to appear and confer for the settlement or simplification of issues, and otherwise conduct pre-hearing conferences; impose appropriate evidentiary sanctions against a party who fails to provide discovery or who fails to comply with a subpoena; dispose of procedural requests or similar matters; and enter proposed findings of fact and conclusions of law, orders, reports and recommendations. The hearing officer may utilize his or her experience, technical competence, or specialized knowledge in the evaluation of evidence presented.

F. Postponement or continuance: The hearing officer, at their discretion, may postpone or continue a hearing upon his or her own motion, or upon the motion of a party, for good cause shown. Notice of any postponement or continuance shall be given in person, by telephone, or by mail to all parties within a reasonable time in advance of the previously scheduled hearing date.

G. Conduct of hearing: Hearings shall be open to the public; provided, however, that hearings may be closed in part to prevent the disclosure of confidential information, including but not limited to health information protected by state and federal laws.

H. Recording: The hearing officer or a designee shall record the hearing by means of a mechanical sound recording device provided by the department for a record of the hearing. Such recording need not be transcribed, unless requested by a party who shall arrange and pay for the transcription.

I. Burden of proof: Except as otherwise provided in this rule, the department has the burden of proving by a preponderance of the evidence the basis for the proposed action. Exception in denied application cases: in cases arising from the denial of an application for certification, the SBHC applicant shall bear the initial burden of proving by a preponderance of the evidence the applicant's qualifications.

J. Order of presentation; general rule: Except as provided in this rule, the order of presentation for hearings in all cases shall be:

(1) appearances: opening of proceeding and taking of appearances by the hearing officer;

(2) pending matters: disposition by the hearing officer of preliminary and pending matters;

(3) opening statements: the opening statement of the department; and then the opening statement of the party challenging the department's action or proposed action;

(4) cases: the department's case-in-chief, and then the case-in-chief of the party challenging the department's action;

(5) rebuttal: the department's case-in-rebuttal;

(6) closing argument: the department's closing statement, which may include legal argument; and then the closing statement of the party opposing the department's action or proposed action, which may include legal argument; and

(7) close: close of proceedings by the hearing officer.

K. Order of presentation in denied application cases: The order of presentation in cases arising from the denial of an application for certification shall be:

(1) appearances: opening of proceeding and taking of appearances by the hearing officer;

(2) pending matters: disposition by the hearing officer of preliminary and pending matters;

(3) opening statements: applicant's opening statement; and then the opening statement of the department;

(4) cases: the applicant's case-in-chief, and then the department's case-in-chief;

(5) rebuttal: the applicant's case-in-rebuttal;

(6) closing argument: the applicant's closing statement, and then the department's closing statement; and

(7) close: close of proceedings by the hearing officer.

L. Admissible evidence; rules of evidence not applicable: The hearing officer may admit evidence and may give probative effect to evidence that is of a kind commonly relied on by reasonably prudent persons in the conduct of serious affairs. Rules of evidence, such as the New Mexico rules of evidence for the district courts, shall not apply but may be considered in determining the weight to be given any item of evidence. The hearing officer may at his or her discretion, upon his or her motion or the motion of a party or a party's representative, exclude incompetent, irrelevant, immaterial, or unduly repetitious evidence, including testimony, and may exclude confidential or privileged evidence.

M. Objections: A party may timely object to evidentiary offers by stating the objection together with a succinct statement of the grounds for the objection. The hearing officer may rule on the admissibility of evidence at the time an objection is made or may receive the evidence subject to later ruling.

N. Official notice: The hearing officer may take notice of any facts of which judicial notice may be taken, and may take notice of general, technical, or scientific facts within his or her specialized knowledge. When the hearing officer takes notice of a fact, the parties shall be notified either before or during the hearing of the fact so noticed and its source, and the parties shall be afforded an opportunity to contest the fact so noticed.

O. Record content: The record of a hearing shall include all documents contained in the official file maintained by the hearing officer, including all evidence received during the course of the hearing, proposed findings of fact and conclusions of law, the recommendations of the hearing officer, and the final decision of the secretary.

P. Written evidence from witnesses: The hearing officer may admit evidence in the form of a written statement made by a witness, when doing so will serve to expedite the hearing and will not substantially prejudice the interests of the parties.

Q. Failure to appear: If a party who has requested a hearing or a party's representative fails to appear on the date, time, or location announced for a hearing, and if no continuance was previously granted, the hearing officer may proceed to hear the evidence of such witnesses as may have appeared or may accept offers of proof regarding anticipated testimony and other evidence, and the hearing officer may further proceed to consider the matter and issue his report and recommendation(s) based on the evidence presented; and the secretary may subsequently render a final decision. Where a person fails to appear at a hearing because of accident, sickness, or other cause, the person may within a reasonable time apply to the hearing officer to reopen the proceeding, and the hearing officer may, upon finding sufficient cause, fix a time and place for a hearing and give notice to the parties.

R. Hearing officer written report and recommendation(s): The hearing officer shall submit a written report and recommendation(s) to the secretary that contains a statement of the issues raised at the hearing, proposed findings of fact and conclusions of law, and a recommended determination. Proposed findings of fact shall be based upon the evidence presented at the hearing or known to all parties, including matters officially noticed by the hearing officer. The hearing officer's recommended decision is a recommendation to the secretary of the New Mexico department of health and is not a final order.

S. Submission for final decision: The hearing officer's report and recommendation(s) shall be submitted together with the complete official file to the secretary of the New Mexico department of health for a final decision no later than 30 days after the last submission by a party.

T. Secretary's final decision: The secretary shall render a final decision within 45 calendar days of the secretary's receipt of the hearing officer's written report. A copy of the final decision shall be mailed to the SBHC or SBHC applicant by certified mail, return receipt requested, within 15 days after the final decision is rendered and signed.

Notes

N.M. Admin. Code § 7.30.15.16

Adopted by New Mexico Register, Volume XXXVI, Issue 09, May 6, 2025, eff. 5/6/2025