N.M. Admin. Code § 8.371.4.14 - ADMINISTRATIVE APPEAL PROCESS
The administrative appeal process is available only to review the decision of the division director as to alleged violations by the service provider, its employees, or persons under contract with the service provider of rights set forth in the federal or state constitutions, statutes, or authority regulations or policies designated "client's rights." The administrative hearing is intended to be accomplished without the involvement of legal counsel, but the complainant and the service provider may be represented by legal counsel of their choosing at their own expense.
A. Step one: Administrative hearing:
(1) Request for hearing:
(a) If the complainant is not satisfied with
the decision of the director, the complainant may request an evidentiary
hearing before and impartial hearing officer. The request must be in writing,
must be filed with the director, and must be mailed within 20 days from receipt
of the director's decision.
(b) The
appeal shall be a brief statement of the acts that are the basis of the alleged
violation of rights.
(2)
Assignment of hearing officer:
(a) The
director shall assign a hearing officer within 10 days of receipt of the
request for hearing.
(b) If any
person who may appear at the hearing, as described in Paragraph (3) of
Subsection B of
8.371.4.14 NMAC, has reason to
believe that the hearing officer cannot render an impartial decision, the
person shall notify the director in writing stating the objection and the
reason(s) therefor within five days of the date of the notice of the
assignment. If the director determines that there is a good cause, the director
shall assign another hearing officer within 10 days of receipt of the
objection.
(3) Notice of
hearing:
(a) The hearing officer shall
conduct the hearing within 15 days of assignment as hearing officer. The
hearing officer may grant a continuance not to exceed 15 days for good cause
shown.
(b) The hearing officer
shall notify the complainant and the service provider (s) of the date, time and
place of the hearing at least five days prior to the hearing. If feasible, the
hearing shall be held in the city or town where the client resides or at a
location convenient to the client.
(c) The service provider may decline to
appear at the hearing and the hearing shall proceed. The complainant and the
service provider may settle the complaint by mutual agreement at any time prior
to the hearing unless the client objects. The complainant shall notify the
hearing officer of the settlement by withdrawing the complaint in writing prior
to the hearing. The hearing officer shall notify the division director that the
complainant has withdrawn the complaint.
(4) Conduct of hearing:
(a) The complainant has the burden to show by
a preponderance of the evidence that:
(i) the
act (s) complained occurred;
(ii)
the act (s) constitutes a violation by the service provider, employee or a
person under contract with the service provider, of rights of the client set
forth in the federal or state constitution, statutes, or authority regulations
or policies designated "client's rights"; and
(iii) the client is adversely
affected.
(b) The
complainant and the service provider (s) have the right to call witnesses on
their behalf, question witnesses called by others, and present other evidence
relevant to the complaint.
(c) The
hearing officer shall admit all relevant evidence that is reasonably likely to
assist him or her in making a fully informed, fair decision. The hearing
officer may exclude irrelevant or repetitious evidence. Conformity to rules of
evidence is not required. The hearing officer's rulings on evidence are
final.
(5) Recommended
decision of the hearing officer:
(a) The
hearing officer shall render a recommended decision to the secretary of the
authority or the secretary's designee in writing within 10 days of the
hearing.
(b) The recommended
decision shall include:
(i) a statement of
uncontested facts and finding of fact on contested issues; and
(ii) a recommendation dismissing the
complaint as not supported by a preponderance of the evidence; or
(iii) a finding substantiating the complaint
and a recommendation either adopting the authority's relief or remedy or
proposing individual relief or remedy.
B. Step two: Decision:
(1) The secretary or the secretary's designee
may adopt the recommendation of the hearing officer or may reverse or modify
the recommendation of the hearing officer. If the secretary or the designee
modifies or reverses the recommendation of the hearing officer, they shall
state the reasons for the decision.
(2) The secretary or their designee shall
notify the persons described in Paragraph (3) of Subsection A of
8.371.4.14 NMAC of the decision in
writing within 15 days of receipt of the recommendations of the hearing
officer.
(3) The decision of the
secretary or the secretary's designee is final and is not subject to judicial
review.
Notes
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