FAIR HEARINGS:

A. A household aggrieved by an adverse action taken by the department or NMHIX that affects the participation of the household in a department administered public assistance program or in the New Mexico health insurance exchange, if applicable, may appeal the department’s or NMHIX’s decision by requesting a fair hearing in accordance with federal and state laws and regulations.

(1) Medicaid recipients wanting to request a fair hearing due to termination, modification, reduction or suspension of services must do so in accordance with any applicable federal and state laws and regulations, including 8.200.430.12 NMAC and 8.352 NMAC, et seq.

(2) Fair hearings related to adverse actions by NMHIX shall be held in accordance with any applicable federal and state laws and regulations, including those set forth in 45 CFR 155 Subpart F.

B. A household may designate an authorized representative to request a hearing on its behalf and to represent them during the fair hearing process. The claimant or their authorized representative must complete a request for access to a case record each time they wish to have access to the record outside what is provided to the claimant in the summary of evidence (SOE). If the claimant wishes to have their authorized representative review the record in their absence, the claimant must provide formal documentation authorizing the named individual(s) to access the identified case information for a specified purpose and time frame.

C. Hearing rights: Each household has the right to request a fair hearing and:

(1) to be advised of the nature and availability of a fair hearing and an ARC, if applicable;

(2) to be represented by counsel or other authorized representative of the claimant's choice;

(3) to receive reasonable assistance in completing procedures necessary to request a fair hearing; and

(4) to receive a copy of the SOE and any document 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; the department shall forward the SOE and any other document(s) submitted to the fair hearings bureau for admission into the fair hearing record to the claimant’s authorized representative once the department or NMHIX becomes aware that an authorized representative has been designated by the claimant;

(5) to have a fair hearing that safeguards the claimant's opportunity to present a case;

(6) where applicable/for non-NMHIX matters, to elect to continue to receive the current level of benefit, provided the request for hearing is received by the department before the close of business of the 13th day immediately following the date of the notice of adverse action; a claimant that elects to continue to receive the same level of benefit pending the fair hearing decision shall be informed that a hearing decision in favor of the department may result in an overpayment of benefits and a requirement that the household repay the benefits; a claimant may waive a continuation of benefits pending the outcome of the fair hearing;

(7) in matters involving NMHIX, to be considered eligible while an appeal is pending, in accordance with the provisions of 45 CFR section 155.525;

(8) to have prompt notice and implementation of the final fair hearing decision; and

(9) to be advised that judicial review may be invoked to the extent such review is available under state or federal law; and

(10) in matters involving NMHIX, to be advised that a second-tier appeal to the United States department of health and human services is available.

D. The department and NMHIX will neither provide representation for, nor pay for any costs incurred by a claimant or the authorized representative in preparation for, or attendance at an ARC, fair hearings or judicial appeals.

E. Notice of rights:

(1) At the time of application for assistance, the department shall inform each applicant of the applicant’s right to request a fair hearing if the applicant disagrees with an action taken by the department. In matters involving NMHIX, NMHIX shall provide notice of appeal rights and appeal procedures, including the right to request a fair hearing, at the time that the applicant submits an application and the notice of eligibility determination is sent under 45 CFR section 155.310(g) , 155.330(e)(1)(ii), 155.335(h)(1)(ii), and 155.610( i ). The applicant may choose to receive the notice by mail or in electronic format.

(2) The notice shall inform the applicant of the procedure by which a fair hearing may be requested and that the claimant's case may be presented by the claimant or an authorized representative.

(3) The department shall remind the household of its right to request a fair hearing any time the household expresses disagreement with an action taken on its case by the department.

(4) Each county office shall post a notice of the right to request a fair hearing and an ARC, and a copy shall be given, upon request, to any person that has requested a hearing.

(5) Each notice provided to a claimant pursuant to this section shall include a statement that free legal assistance, by an individual or organization outside of the department, may be available to assist with the fair hearing process.

(6) A claimant may request special accommodations for a disability or a language or speech interpreter be available during an informal resolution process, a fair hearing or ARC. An interpreter or special accommodations shall be provided by the department or NMHIX, as applicable, at no cost to the claimant. A request for a language interpreter, a speech interpreter or other disability accommodation must be made within 10 days of the date of the fair hearing. If an interpreter or disability accommodations are not requested timely, the claimant can request postponement of the hearing in accordance with Subsection B of 8.100.970.10 NMAC.

F. Special provisions pertaining to mass changes: Special provisions apply in situations involving mass changes. These provisions are contained at 8.100.180.12 and 15 NMAC, 8.139.120.13 NMAC, 8.139.500.8 and 9 NMAC, 8.106.630.10 and 11 NMAC, 8.102.501.9 NMAC and 8.102.630.10 NMAC.

G. Continuing benefit for cash assistance: If a claimant who is a cash assistance recipient requests a fair hearing before the close of business of the 13th day immediately following the date of the notice of adverse action, the claimant may elect to waive or continue receiving the same amount of cash assistance and services issued immediately prior to the notice of adverse action until a final decision is issued. If there is no indication that the claimant has waived a continuation of benefits, the department will assume a continuation of benefits is desired. The household is required to comply with the reporting and renewal provisions at 8.102.120 NMAC and 8.106.120 NMAC. Cash assistance recipients are to continue compliance with the NMW compliance requirements at 8.102.460 NMAC.

H. Continuing SNAP benefits: If a claimant who is a SNAP recipient requests a fair hearing before the close of business of the 13th day immediately following the date of the notice of adverse action, the claimant may elect to waive or continue receiving the same amount of SNAP benefits issued immediately prior to the adverse action until a final decision is issued. If there is no indication that the claimant has waived a continuation of benefits, the department will assume a continuation of benefits is desired. The claimant is required to comply with the reporting and renewal provisions at 8.139.120 NMAC.

I. Continuing eligibility for a medical assistance program: If a claimant who is a recipient of a medical assistance program requests a fair hearing before the close of business of the 13th day immediately following the date of the notice of adverse action, the claimant may elect to waive or continue receiving the same medical assistance benefit issued immediately prior to the adverse action until a final decision is issued. If there is no indication that the claimant has waived a continuation of benefits, the department will assume a continuation of benefits is desired. If the hearing is regarding the termination, modification, reduction or suspension of medical assistance program services, a continuation of services is governed by all applicable federal and state laws and regulations, including 8.352 NMAC, et seq.

J. Continuing eligibility in cases involving NMHIX: In matters involving NMHIX, eligibility pending appeal is governed by the provisions of 45 CFR section 155.525.

[8.100.970.8 NMAC - Rp, 8.100.970.8 NMAC, 11/27/2013; A/E, 11/1/2021; A, 4/1/2022]