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A. Notice of hearing: Unless the claimant or authorized representative requests an expedited scheduling of a fair hearing, the fair hearings bureau shall provide written notice of the scheduling of a fair hearing to all parties not less than 10 calendar days prior to date of the fair hearing, or not less than 15 calendar days prior to the date of the fair hearing if the hearing involves an adverse action by the New Mexico health insurance exchange (NMHIX). The notice of hearing shall include:
(1) the date, time and place of the hearing;
(2) the name, address and phone number of the hearing officer;
(3 ) information regarding the fair hearing process and the procedures to be followed by the respective parties;
(4) the right of the claimant and the authorized representative to receive a copy of the SOE and any document, not specifically prohibited by federal and state law and regulation, contained in the claimant's case record in order to prepare for the fair hearing in accordance with Subsection B of 8.100.970.8 NMAC;
(5) notice that the appeal will be dismissed if the claimant or the authorized representative fails to appear without good cause;
(6) information about resources in the community that may provide free legal assistance with the fair hearing process; and
(7) notice that the department will not pay for any costs of the claimant or authorized representative, including legal counsel, that are incurred in the preparation for, or attendance at, an ARC, fair hearing or judicial appeal.
B. Postponement: A claimant or authorized representative is entitled to, and the fair hearings bureau shall grant, at least one postponement of a scheduled fair hearing. The department may request and be approved for one postponement at the discretion of the fair hearings bureau due to the unavailability of any department witness to appear at the scheduled fair hearing. Requests for more than one postponement are considered at the discretion of the fair hearings bureau, on a case-by-case basis. A request for postponement must be submitted not less than one business day prior to the scheduled fair hearing, unless otherwise allowed by the fair hearings bureau, and is subject to the following limitations:
(1) SNAP and LIHEAP cases: A postponement may not exceed 30 days and the time limit for action on the decision is extended for as many days as the fair hearing is postponed.
(2) Cash assistance cases: The fair hearing may be postponed, but must be rescheduled to assure a final decision is made no more than 90 days from the date of the request for fair hearing.
(3) Medical assistance cases: The fair hearing may be postponed, but must be rescheduled to assure a final decision is made no more than 90 days from the date of the request for fair hearing. Fair hearings for medical assistance cases involving the termination, modification, reduction or suspension of services are governed by all applicable federal and state laws and regulations, including 8.352 NMAC, et seq.
(4) NMHIX cases: The fair hearing may be postponed but must be rescheduled to assure a final decision is made not more than 90 days from the date of the appeal request.
(5) The fair hearings bureau shall issue notice of the rescheduling of a postponed 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. Documentation of the oral agreement shall be maintained in the fair hearing record.
C. Expedited hearing:
(1) SNAP cases: Hearing requests from SNAP households, such as migrant farm workers that plan to move out of the state before the hearing decision would normally be made should be scheduled on an expedited basis.
(2) NMHIX cases: an appellant may request an expedited appeals process where there is an immediate need for health services because a standard appeal could jeopardize the appellant’s life, health, or ability to attain, maintain, or regain maximum function. If the request for an expedited appeal is denied, the appeal request must be handled under the standard process and the appellant must be promptly informed of the denial, through electronic or oral notification, if possible. If notification is oral, the appeals entity must follow up with the appellant by written notice. Written notice of the denial must include:
(a) the reason for the denial;
(b) an explanation that the appeal request will be transferred to the standard process; and
(c) an explanation of the appellant's rights under the standard process.
D. Group hearings: A hearing officer may respond to a series of individual requests for hearings by conducting a single group hearing. Group hearing procedures apply only to cases in which individual issues of fact are not disputed and where related issues of state or federal law, regulation or policy are the sole issues being raised. In all group hearings, the regulations governing individual hearings are followed. Each individual claimant is permitted to present the claimant’s own case or to be represented by an authorized representative. If a group hearing is scheduled, any individual claimant may withdraw from the group hearing and request an individual hearing. The confidentiality of client records is to be maintained in accordance with federal and state laws and regulations.
E. Agency review conference (ARC): Except in matters involving NMHIX, the department and the claimant are encouraged to meet for an ARC before the scheduled fair hearing to discuss the department’s action(s) that the claimant has appealed. The ARC is optional and does not delay or replace the fair hearing process. An ARC will be held within 10 calendar days from the date of the fair hearing request. If the claimant submits a hearing request to the field office, in person or by telephone, the ARC may, at the claimant’s option, be conducted at that time. An appeal may not be dismissed by the department for failure of the claimant or authorized representative to appear at a scheduled ARC.
(1) The department shall send a written notice of the scheduled ARC to the claimant and authorized representative. The claimant may choose to receive the notice by mail or in electronic format.
(2) An ARC may be attended by all parties responsible for and affected by the adverse action taken by the department, including but not limited to, the ISD field office staff, the CSED, a NMW representative and the claimant or its authorized representative.
(3) The purpose of the ARC is to informally review the adverse action taken by the department and to determine whether the dispute can be resolved in accordance with federal and state law and regulation. The ARC is optional and shall in no way delay or replace the fair hearing process, unless the outcome of the ARC is the claimant withdrawing the fair hearing request.
(4) For cases in which the household appeals a denial of expedited SNAP service, the ARC shall be scheduled within two business days, unless the household requests that it be scheduled at a later date or does not wish to have an ARC.
(5) A household may request an ARC in order to discuss an adverse action taken by the department against the household, regardless of whether or not a fair hearing is requested.
F. Summary of evidence (SOE): An SOE shall be prepared by the department or NMHIX, if applicable, and submitted to the fair hearings bureau and the claimant and authorized representative no less than 10 calendar days prior to the date of the fair hearing. Failure to provide the SOE within the prescribed timeframe may result in its exclusion or a postponement or continuance of the hearing at the discretion of the hearing officer pursuant to Subsection B of 8.100.970.10 NMAC and Subsection D of 8.100.970.12 NMAC. Unless the hearing request is withdrawn by the claimant or authorized representative, an SOE shall be prepared and submitted in accordance with this paragraph, regardless of the results of an ARC. The SOE shall contain at least the following information:
(1) identifying information, including but not limited to, claimant's name, at least the last four digits of the claimant’s social security number, the claimant’s individual identification number, case identification number or reference identification number, the claimant’s last known address, and the type of assistance involved, if applicable;
(2) the issue(s) on appeal that outlines the adverse action taken by the department against the household;
(3) documentation in support of the department’s adverse action, including any facts, information and department findings related to the fair hearing issue(s);
(4) applicable federal and state laws and regulations, internal department policy documents, and any additional supportive legal documentation; and
(5) results of the ARC, if completed at the time of submission of the SOE.
G. Availability of information: The department staff shall:
(1) allow the claimant and the authorized representative to examine the case record and provide the claimant and the authorized representative a copy of the SOE and any document, not specifically prohibited by federal and state laws and regulations, contained in the claimant's case record in order to prepare for the fair hearing in accordance with Subsection B of 8.100.970.8 NMAC; and
(2) provide accommodations for a disability or a language or speech interpreter in accordance with Paragraph (6) of Subsection E of 8.100.970.8 NMAC and 45 CFR section 155.505(f), as applicable.
[8.100.970.10 NMAC - Rp, 8.100.970.10 NMAC, 11/27/2013; A/E, 11/1/2021; A, 4/1/2022]