N.M. Admin. Code § 8.100.970.12 - CONDUCTING THE FAIR HEARING
A fair hearing is conducted in an orderly manner and in an informal atmosphere. The fair hearing is not open to the public. The fair hearing is conducted by telephone, unless the claimant or the authorized representative makes a special request for the fair hearing to be held in person and the request is justified by special circumstances, as determined by the hearing officer on a case-by-case basis. In cases involving NMHIX, the fair hearings shall also be conducted in accordance with 45 CFR 155.535(c)-(f).
A.
Opening the fair hearing: The
fair hearing is opened by the hearing officer who will explain the telephonic
fair hearing procedures to all present at the fair hearing. The hearing officer
will then explain their role in the proceedings, and that the final fair
hearing decision on the issue(s) appealed will be made by the appropriate
department division director after review of the hearing officer's report and
recommendation, including the fair hearing record. On the record, the
individuals present are asked to identify themselves, the order of testimony is
explained, the oath is administered to all witnesses who will testify during
the hearing, the issue is identified, and all pleadings, papers, and requests,
including but not limited to, the SOE and any evidence being presented, will be
identified and entered into the record with any objections handled in
accordance with applicable federal and state laws and regulations.
B.
Order of testimony: The order
of testimony is as follows:
(1)
Presentation of the department's case: The department or NMHIX
will present its case and the evidence, including testimony and exhibits, in
support of the adverse action taken against the household, and:
(a) the claimant or authorized representative
may cross-examine the department representative;
(b) the hearing officer may ask further
clarifying questions; and
(c) if
the department calls other witnesses, the order of examination of each witness
is as follows:
(i) direct testimony by the
witness(es);
(ii) cross-examination
by the claimant or the authorized representative; and
(iii) examination or further clarifying
questions by the hearing officer or, if requested, follow up questions from the
department representative.
(2)
Presentation of the
claimant's/appellant's case: The claimant or the authorized
representative will present its case and the evidence, including testimony and
exhibits, in support of its position, and:
(a)
the department may cross-examine the claimant or the authorized
representative;
(b) the hearing
officer may ask further clarifying questions; and,
(c) if the claimant calls other witnesses,
the order of examination of each witness is as follows:
(i) direct testimony by the
witness(es);
(ii) cross-examination
by the department representative; and
(iii) examination or further clarifying
questions by the hearing officer or, if requested, follow up questions from the
claimant or the authorized representative.
(3) The claimant may offer evidence on the
points at issue without undue interference, may request proof or verification
of evidence or statements submitted by the department or its witnesses, and may
present evidence in rebuttal.
(4)
The hearing officer may ask the parties to summarize and present closing
arguments.
C.
Written closing argument: If the claimant or the department is
represented by legal counsel, the hearing officer may request that the closing
argument be submitted in writing to the fair hearings bureau.
D.
Continuance: The hearing
officer may continue the hearing upon the request of either party, or on the
hearing officer's own motion, for admission of additional testimony or
evidence. A party seeking a continuance in order to obtain additional evidence
must make a showing that the evidence was not available at the time of the
hearing despite a reasonable attempt having been made to obtain it. The
granting of a continuance is at the discretion of the hearing officer is
subject to the same limitations set forth in Subsection B of
8.100.970.10 NMAC. The reason(s)
for the continuance and if any oral agreements were reached in regards to the
continuance shall be stated for the hearing record. The fair hearings bureau
shall issue notice of the rescheduling of a continued fair hearing not less
than 10 calendar days before the rescheduled date, unless oral agreements are
obtained from all parties to reschedule the fair hearing with less notice in an
effort to meet the required timeframes.
E.
Additional documentary
evidence: If the hearing officer requests additional documentary
evidence based on testimony heard during the fair hearing, the hearing officer
may close the fair hearing but keep the record open subject to production of
the additional evidence being submitted by a party or parties.
(1) The hearing officer shall set a date and
time for production of the requested evidence, not to exceed 10 calendar days;
the party producing the additional evidence shall submit copies to the hearing
officer and each party.
(2) Within
10 calendar days of its receipt of the additional evidence, the non-producing
party may submit a written response to the hearing officer and each party that
will become part of the fair hearing record; or, the hearing officer may
continue the hearing until such a date and time that the non-producing party
may respond to the additional evidence on the record.
(3) The hearing officer shall close the
record at the close of business on the 10th calendar day following its receipt
of the additional evidence.
(4) The
hearing officer may only request additional evidence pursuant to this paragraph
if it will not result in a violation of the limitations set forth in Subsection
B of 8.100.970.10
NMAC.
F.
Re-opening
a fair hearing: The hearing officer, at the hearing officer's
discretion, may re-open a fair hearing when the evidentiary record fails to
address an issue that is relevant to resolution of a fair hearing request. The
fair hearing can only be re-opened if the parties have agreed to an extension
of the timeframes in accordance with Paragraph (2) of Subsection B of
8.100.970.9 NMAC and the
limitations set forth in Subsection B of
8.100.970.10 NMAC. Written notice
of the date, time and place of the re-opened fair hearing is sent to the
parties, not less than 10 days before the date of the re-opened hearing, or not
less than 15 days in matters involving NMHIX, unless oral agreements are
obtained from all parties to reschedule the fair hearing with less notice in an
effort to meet the required timeframes.
Notes
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