A.
Right
of appeal
If a final fair hearing decision upholds the department's or
NMHIX's original action, the claimant has the right to pursue judicial review
of the final fair hearing decision and is notified of that right in the
department's final fair hearing decision. In matters involving NMHIX, the
claimant may submit a second-tier appeal to the United States department of
health and human services and is notified of that right in the department's
final fair hearing decision.
B.
Timeliness:
(1)
SNAP, LIHEAP, general assistance
(GA), and medical assistance programs: Unless otherwise provided by law,
within 30 days of the issuance of the department's final fair hearing decision,
the claimant may appeal the final fair hearing decision by filing a notice of
appeal with the appropriate district court pursuant to the provisions of
Section 39-3-1.1 NMSA 1978.
(2)
NMW: Unless otherwise
provided by law, within 30 days of the issuance of the department's final fair
hearing decision, the claimant may appeal the final fair hearing decision by
filing a notice of appeal with the court of appeals pursuant to the provisions
of Section
27-2B-13 NMSA
1978.
C.
Jurisdiction and standard of review:
(1) The district court's jurisdiction is
defined by statute at Section
27-3-3 NMSA 1978 and Section
39-3-1.1 NMSA 1978. The court of
appeals jurisdiction is defined by statute at Section
27-2B-13 NMSA 1978.
(2) The court of appeals or district court
may set aside, reverse or remand the department's final fair hearing decision
if it determines that:
(a) the department
acted fraudulently, arbitrarily or capriciously;
(b) the final fair hearing decision was not
supported by substantial evidence; or,
(c) the department did not act in accordance
with federal and state laws and regulations.
D.
Benefits pending an appeal:
If the court decides in favor of the claimant, the department must immediately
act in accordance with the court's final hearing decision. If the decision is
in favor of the department, the department shall take any and all appropriate
actions in accordance with Subsection A of
8.100.970.14 NMAC and
8.100.640
NMAC.
E.
Effect of
appeal: If the court of appeals decides in favor of the claimant, the
HSD office of general counsel immediately notifies the county office as to the
appropriate benefit issuance and adjustments, if any. If the decision is in
favor of HSD, and a reduction has been pending the decision on appeal, an
overpayment claim retroactive to the date the change should have been made is
filed.
F.
Appealing the
appellant court's decision:
(1)
SNAP, LIHEAP, GA and medical assistance programs: A party to the
appeal to district court may appeal the district court's decision by filing a
petition for writ of certiorari with the court of appeals, which may exercise
its discretion to grant review. A party may seek further review by filing a
petition for writ of certiorari with the supreme court. Section
39-3-1.1 NMSA 1978.
(2)
NMW: A party may seek
further review by filing a petition for writ of certiorari with the supreme
court.
