N.M. Admin. Code § 7.29.5.13

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

Section 7.29.5.13 - HEARINGS

A. Right to appeal: An applicant may appeal a decision by the department to deny, suspend or revoke a certificate by requesting a hearing by mailing a certified return receipt letter to the address provided in the notice of action within 20 days after service of notice.

B. Notice: The department shall serve upon an applicant written notice containing the action against a certificate and a statement of the grounds or subject upon which the action is based and instructions for requesting a hearing.

C. Notice of hearing: Upon receipt of a timely request for a hearing, the department shall appoint a hearing officer and schedule a hearing, to be held in Santa Fe, New Mexico within 60 working days of receipt of the request.

(1) Either party may request a continuance at least 10 days prior to the scheduled hearing, to be approved or denied by the hearing officer.

(2) If an applicant fails to appear after requesting a hearing, the hearing officer may proceed to consider the matter and render a report and recommendation.

(3) If no request for a hearing is made in the time and manner specified, the committee shall take the action against the certificate and such action shall be final.

D. Hearing officer duties: The hearing officer shall preside over the hearing, administer oaths, take evidence and decide evidentiary objections and rule on any motions or other matters that arise prior to the hearing.

E. Admissible evidence: The hearing officer may admit evidence and may give probative effect to evidence that is of a kind commonly relied on by reasonably prudent persons in the conduct of serious affairs. Rules of evidence shall not apply but may be considered in determining the weight to be given to any item of evidence. Action against a certificate must not be based solely on hearsay evidence.

F. Discovery: Any party is entitled to obtain the names and addresses of witnesses who will or may be called by the other party to testify and to inspect and copy any documents or items which the other party will or may introduce in evidence at the hearing. Additional discovery may be ordered at the hearing officer's discretion.

G. Burden of proof: In accordance with the Criminal Offender Employment Act:

(1) When the action against a certificate is not based on a review of the applicant's criminal history report, the department has the burden of proving by a preponderance of the evidence the basis for the action.

(2) When the action against a certificate is based on a review of the applicant's criminal history report, and the applicant has been convicted of a felony directly related to the scope of practice, the applicant has the burden of proving sufficient rehabilitation by a preponderance of the evidence.

(3) When the action against a certificate is based on a review of the applicant's criminal history report, and the applicant has been convicted of a felony not directly related to the scope of practice, there is a presumption of rehabilitation and the department has the burden of proving by a preponderance of the evidence that the applicant has not been sufficiently rehabilitated.

H. Conduct of hearing: Hearings shall be open to the public but may be closed at either party's request, at the discretion of the hearing officer. The hearing officer shall state on the record the reasons for holding a closed hearing.

I. Legal representation: An individual entitled to a hearing under this rule shall have the right to be represented by an attorney licensed to practice in New Mexico or by a member of his or her profession or occupation, or both.

J. Hearing officer written report and recommendation(s): The hearing officer shall issue a report and recommended finding to the department secretary within 30 working days of the final submission in the case.

K. Decision of the department: The secretary shall render a final determination in writing, including the basis for the decision, within 30 calendar days of the submission of the hearing officer's written report. A copy of the final decision shall be mailed to the applicant by certified mail, return receipt requested to the most current address provided by the applicant. It is the responsibility of the applicant to provide current contact information to the program.

L. Reinstatement of a suspended or revoked certificate:

(1) Requests for reinstatement for a revoked certificate shall not be considered by the department prior to the expiration of three years from the date of the revocation indicated in the department's final decision. Requests for reinstatement of a suspended certificate shall not be considered by the department prior to the expiration of one year from the date of the suspension indicated in the department's final decision.

(2) Individuals who request reinstatement of their certificate shall provide the department with substantial evidence to support their request in the form of notarized written reports or sworn statements from individuals who have personal knowledge of the individual's activities and progress during the time that the certificate is suspended or revoked.

(3) Reinstatement of a suspended or revoked certificate requires proof of meeting the recertification requirements as set forth in this rule including payment of the reinstatement fee designated in this rule.

(4) If reinstatement of a suspended or revoked certificate is denied, individuals have a right to appeal in accordance with the hearing procedures set forth in this rule.

N.M. Admin. Code § 7.29.5.13

Adopted by New Mexico Register, Volume XXVI, Issue 02, January 30, 2015, eff. 1/30/2015