N.M. Admin. Code § 8.8.4.11

Current through Register Vol. 35, No. 23, December 10, 2024

Section 8.8.4.11 - CONDUCT OF THE HEARING

A. Notice of a hearing is made by certified mail with return receipt requested at least 14 calendar days prior to the hearing unless prior agreement of the time and manner of the hearing has been agreed to in the pre-hearing order or otherwise agreed to by the parties and the hearing officer.

B. Failure of a party to appear on the date and time set for hearing, without good cause shown, constitutes a default, and the hearing officer so notifies the parties in writing.

C. The hearing is open to the public unless the hearing officer directs that the hearing be closed.

D. A party may appear at the hearing through a legal representative, provided such representative has made a written entry of appearance prior to the hearing date.

E. The hearing officer may clear the room of witnesses not under examination, if either party so requests, and of any person who is disruptive. The department is entitled to have a person, in addition to its attorney, in the hearing room during the course of the hearing, even if the person will also testify in the hearing.

F. The hearing is conducted in an orderly and informal manner without strict adherence to the rules of evidence that govern proceedings in the courts of the state of New Mexico. However, in order to support the secretary's decisions, there must be a residuum of legally competent evidence to support a verdict in a court of law.

G. Both parties have certain procedural due process rights during the hearing.

(1) Each party may make opening and closing statements.

(2) Each party may call and examine witnesses and introduce exhibits.

(3) Each party may cross-examine witnesses.

(4) Each party may re-direct their witnesses following cross-examination.

(5) Each party may impeach any witness.

(6) Each party may rebut any relevant evidence.

(7) Each party may introduce evidence relevant to the choice of sanction if it was raised as an issue in the pre-hearing order.

H. Oral evidence is taken only under oath or affirmation.

I. Generally, except as provided in the following subsection, the order of presentation for hearings is as follows:

(1) opening of proceeding and taking of appearances by the hearing officer;

(2) disposition of preliminary and pending matters;

(3) opening statement of the department;

(4) opening statement of the appellant;

(5) department's case-in-chief;

(6) appellant's case-in-chief;

(7) department's rebuttal;

(8) department's closing argument;

(9) appellant's closing argument;

(10) department's rebuttal argument; and

(11) losing of the proceedings by the hearing officer.

J. The order of presentation in a denial of an initial annual license or certification, denial of an award in an RFP or IFB, or cease and desist order matters, will vary from the general order of presentation in that appellant will make an opening statement before the department makes its opening statement, will present a case-in-chief before the department presents its case-in-chief, will make a closing argument before the department makes its closing argument, and will have the option to make a rebuttal argument following the department's closing argument

K. The burden of proof in matters arising from substantiation of abuse or neglect, suspension, revocation, denial of renewal of a license, certification, or registration, denial or termination of subsidies or monetary benefits, intermediate sanctions, emergency suspension, or emergency intermediate sanctions lies with the department. The burden of proof in matters arising from a denial of an initial annual license or certification, denial of an award in an RFP or IFB, or cease and desist orders lies with the appellant. In all cases the parties must prove their case by a preponderance of the evidence.

L. The technical rules of evidence are generally not applicable but will be used as a guide and may be considered in determining the weight to be given any item of evidence. The hearing officer admits all evidence, including affidavits, if it is the sort of evidence upon which responsible persons are accustomed to rely in the conduct of serious affairs. The hearing officer may exclude, with or without formal objection, immaterial, irrelevant, unreliable or unduly cumulative testimony. The hearing officer may question witnesses.

M. The hearing officer may take official notice of those matters in which courts of this state may take judicial notice.

N. The rules of privilege are effective to the extent that they are required to be recognized in civil actions in the district courts of the state of New Mexico.

O. The hearing officer admits evidence relevant only to those allegations against the appellant included in the notice of results of investigation, notice of contemplated action, notice of revocation of foster care license, or which are contested issues as set forth in the pre-hearing order.

P. The hearing is recorded by a sound-recording device under the supervision of the hearing officer. No other recording of the hearing, by whatever means, is permitted without the approval of the hearing officer.

N.M. Admin. Code § 8.8.4.11

8.8.4.11 NMAC - N, 2/15/2002, Adopted by New Mexico Register, Volume XXVII, Issue 05, March 15, 2016, eff. 3/15/2016