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The final fair hearing decision shall be made by the appropriate department division director after review of the fair hearing record and the hearing officer's report and recommendation.
A. Hearing officer recommendation: The hearing officer reviews the record of the fair hearing and all appropriate regulations, and evaluates the testimony and evidence admitted during the hearing. The hearing officer submits the complete record of the fair hearing, along with the hearing officer’s report and recommendation, in a standard format to the appropriate division director(s) within 15 days of the hearing, or sooner, to ensure the timeframes set forth in Paragraph (2) of Subsection B of 8.100.970.9 NMAC are met.
B. Content of recommendation: The hearing officer specifies the reason(s) for all factual conclusions, identifies the supporting evidence, references the relevant federal and state laws and regulations, along with appropriate department policy and procedural guidance, and responds to the arguments of the parties in a written report and recommendation. The hearing officer shall submit a recommendation:
(1) in favor of the claimant when the adverse action taken by the department is not supported by a preponderance of the evidence available as a result of the fair hearing;
(2) in favor of the department when the preponderance of the evidence, available as a result of the fair hearing, supports the adverse action taken by the department is in accordance with federal and state laws and regulations; or
(3) any other result supported by the fair hearing record.
C . Review of recommendation: The fair hearing record and report and recommendation are reviewed by the appropriate department division director(s) or designee to ensure conformity with applicable federal and state laws and regulations.
D. Final decision: The hearing officer's recommendation may be adopted or rejected, in whole or in part, in a final written decision by the appropriate department division director. The final fair hearing decision shall be based solely on the fair hearing record as defined in Paragraph (3) of Subsection I of 8.100.970.11 NMAC. The final fair hearing decision must summarize the facts of the case, specify the reasons for the decision, and identify the supporting evidence and relevant federal and state laws and regulations. No person who participated in the original action under appeal may participate in arriving at the final fair hearing decision. The final fair hearing decision becomes part of the fair hearing record.
E. Notice to claimant: The claimant, the authorized representative and the department shall be notified in writing of the final fair hearing decision and its effect on the benefits. If a claimant has an authorized representative, the authorized representative is mailed a copy of the final fair hearing decision. When a final fair hearing decision is adverse to the claimant, the decision shall include:
(1) a statement that the claimant has exhausted all administrative remedies available;
(2) the claimant's right to pursue judicial review of the final fair hearing decision; and
(3) information on how to file an appeal of the final fair hearing decision, the timeframe for filing an appeal and where the appeal may be filed.
F. Fair hearing decisions involving adverse actions by NMHIX: The provisions of Subsections A through E of 8.100.970.13 NMAC do not apply to fair hearings involving adverse actions by NMHIX. For hearings involving adverse actions by NMHIX, there shall be no recommendation by the hearing officer. The hearing officer shall instead issue a written final fair hearing decision, which shall become part of the fair hearing record, and which shall:
(1) be based exclusively on:
(a) the information used to determine the appellant’s eligibility as well as any additional relevant evidence presented during the course of the appeals process, including at the hearing; and
(b) the eligibility requirements under Subpart D or G of 45 CFR Part 155, as applicable.
(2) state the decision, including a plain language description of the effect of the decision on the appellant’s eligibility;
(3) summarize the facts relevant to the appeal;
(4) identify the legal basis, including the regulations that support the decision;
(5) state the effective date of the decision;
(6) provide an explanation of the appellant’s right to pursue the appeal before the HHS appeals entity, including the applicable timeframe, if the appellant remains dissatisfied with the eligibility determination; and
(7) indicate that the decision of the fair hearing officer is final, unless the appellant pursues a second-tier appeal before the United States department of health and human services.
[8.100.970.13 NMAC - Rp, 8.100.970.13 NMAC, 11/27/2013; A/E, 11/1/2021; A, 4/1/2022]