N.M. Admin. Code § 11.3.500.13

Current through Register Vol. 35, No. 21, November 5, 2024

Section 11.3.500.13 - THE BOARD OF REVIEW

A. The board of review's authority: In every case referred to the board of review by the secretary from an appeal tribunal decision the board of review may, in its discretion, hear and decide the case upon the record; it may entertain written arguments, or, after notice to all parties and in accordance with 11.3.500.9 NMAC it may conduct a hearing and take additional evidence before it.

B. Review of the record as an appellate or reviewing body: As a general practice and unless the board of review gives specific notice to the contrary, the board sits in its capacity as an appellate or reviewing body. As such, it reviews the record; it does not receive new evidence.

C. Remand by board of review to the appeal tribunal or the department: With an order directing that a determination or decision be made with regard to that issue, or that additional procedures be taken to perfect a determination or decision already issued, or to make other disposition in the matter, as the board of review, in its discretion, may deem necessary, the board of review may remand any claim or an issue involved in a claim; any issue developed from evidence presented at the hearing or apparent from the existing record:

(1) To the appeal tribunal for the taking of additional evidence or a hearing de novo. Hearings conducted by the appeal tribunal pursuant to a remand by the board of review shall be conducted after notice to all parties and in accordance with 11.3.500 NMAC. Unless directed otherwise by the board of review, the appeal tribunal shall issue a decision based upon the entire record before it, including the record of all the prior hearings. Parties to any additional hearing shall have the right to review the appeal tribunal recording made at any prior evidentiary hearing.

(2) To the department for fact-finding and issuance of an initial determination or redetermination.

D. Appeals by the secretary: Within 15 days from the date of issuance of any decision by the appeal tribunal, the secretary, on the secretary's motion, may request the board of review to reconsider a decision of an appeal tribunal administrative law judge, which the secretary believes to be inconsistent with law or the applicable rules of interpretation or which is not supported by the evidence. In such situations the board of review may, in its discretion, take additional evidence, review the matter on the record or remand the matter to the appeal tribunal for an additional evidentiary hearing.

E. Where an appeal was not filed within the statutory appeal period, the cabinet secretary shall, after review of the record and appeal, determine whether the appellant has good cause for failure to timely appeal from an initial determination. Any decision that denies a request to extend the time frame for the appeal shall include findings and conclusions for the denial of the reopening.

F. Decision by the board of review:

(1) Decision in writing: The board of review may take the appeal under advisement, may order a transcript of proceedings for review may afford the parties an opportunity to file memorandum briefs and proposed findings of fact and conclusions of law; or the board may issue a decision. The decision shall be in writing, shall include findings of fact and conclusions of law, and shall be signed by the members of the board who heard or reviewed the appeal. If a decision of the board of review is not unanimous, the decision of the majority shall control. The minority may file a dissent from such decision.

(2) Findings of fact shall be based exclusively on the record, the evidence presented at the tribunal hearing and matters officially noted.

(3) Publication of decision: Copies of any decision issued by the board of review shall be promptly transmitted to all interested parties to the appeal.

N.M. Admin. Code § 11.3.500.13

11.3.500.13 NMAC - N, 01-01-2003; A, 11-15-2012, Amended by New Mexico Register, Volume XXX, Issue 20, October 29, 2019, eff. 10/29/2019