2018 New Mexico Statutes
Chapter 27 - Public Assistance
Article 3 - Public Assistance Appeals
Section 27-3-3 - Fair hearing.

A. An applicant for or recipient of assistance or services under any provisions of the Public Assistance Act [27-2-1 NMSA 1978], Social Security Act or Special Medical Needs Act [27-4-1 NMSA 1978] or regulations of the board adopted pursuant to those acts may request a hearing in accordance with regulations of the board if:

(1) an application is not acted upon within a reasonable time after the filing of the application;

(2) an application is denied in whole or in part; or

(3) the assistance or services are modified, terminated or not provided.

The department shall notify the recipient or applicant of his rights under this section.

B. The board shall by regulation establish procedures for the filing of a request for a hearing and the time limits within which a request may be filed; provided, however, that the department may grant reasonable extensions of the time limits. If the request is not filed within the specified time for appeal or within whatever extension the department may grant, the department action shall be final. Upon receipt of a timely request, the department shall give the applicant or recipient reasonable notice of an opportunity for a fair hearing in accordance with the regulations of the board.

C. The hearing shall be conducted by a hearing officer designated by the director. The powers of the hearing officer shall include administering oaths or affirmations to witnesses called to testify, taking testimony, examining witnesses, admitting or excluding evidence and reopening any hearing to receive additional evidence. The technical rules of evidence and the rules of civil procedure shall not apply. The hearing shall be conducted so that the contentions or defenses of each party to the hearing are amply and fairly presented. Either party may be represented by counsel or other representative of his designation, and he or his representative may conduct cross-examination. Any oral or documentary evidence may be received, but the hearing officer may exclude irrelevant, immaterial or unduly repetitious evidence.

D. The director shall review the record of the proceedings and shall make a decision thereon. The applicant or recipient or his representative shall be notified in writing of the director's decision and the reasons for the decision. The written notice shall inform the applicant or recipient of his right to judicial review. The department shall be responsible for assuring that the decision is enforced.

History: 1953 Comp., § 13-18-3, enacted by Laws 1973, ch. 256, § 3; 1991, ch. 155, § 3.

Cross references. — For the federal Social Security Act, see 42 U.S.C.S. § 301 et seq.

The 1991 amendment, effective June 14, 1991, in Subsection A, substituted "Social Security Act" for "Social Services Act" near the beginning and added "or not provided" at the end of Paragraph (3) and made minor stylistic changes in Subsections A and D.

Judicial review. — In reviewing an administrative decision, the courts must view the evidence in the light most favorable to the decision. N.M. Dep't of Human Servs. v. Tapia, 1982-NMSC-033, 97 N.M. 632, 642 P.2d 1091.

Consideration of evidence not presented to the original caseworker. — Regardless of whether the original caseworker had access to the evidence, a hearing officer should consider new evidence that tends to establish eligibility at the time of the original denial of benefits. Carter v. N.M. Human Servs. Dep't, 2009-NMCA-063, 146 N.M. 422, 211 P.3d 219.

Consideration of evidence not presented to the original caseworker. — Where a case worker formally denied the petitioner's application for medicaid benefits on February 9, 2006, because the petitioner's bank statements for November and December 2005 showed that the petitioner was financially ineligible to receive benefits; at the administrative hearing on the petitioner's appeal, the petitioner introduced the petitioner's bank statement for February 2006, which showed that the petitioner was financially eligible for benefits; the hearing officer did not consider the February statement because the bank statement had not been considered by the case worker; and the hearing officer affirmed the caseworker's denial of the petitioner's application for benefits, the hearing officer should have considered the petitioner's February bank statement, because the bank statement tended to establish the petitioner's eligibility for benefits on February 1, 2006, as provided by 8.281.500.10 NMAC, prior to the denial of the petitioner's application on February 9, 2006. Carter v. N.M. Human Servs. Dep't, 2009-NMCA-063, 146 N.M. 422, 211 P.3d 219.

Right to hearing. — Medicaid recipient's allegations of both a past lack of success with the type of conventional therapy offered by her HMO and a history of successful treatment by licensed physicians employing non-conventional therapy were sufficient to entitle her to a fair hearing to determine whether her HMO in fact has contracted with providers having the necessary qualifications to provide her with appropriate treatment. Hyden v. Human Servs. Dep't, 2000-NMCA-107, 130 N.M. 19, 16 P.3d 444.

Requirement that medical reports evidence be available for examination. — Since medical reports are written information, they cannot be made a part of a hearing record or be used in making a decision on the case unless they have been made available for examination prior to or during the hearing. Hillman v. Health & Soc. Servs. Dep't, 1979-NMCA-007, 92 N.M. 480, 590 P.2d 179.

Consideration of report not properly admitted into evidence held harmless error. — Where a report is not available to recipient before the hearing is concluded, and is not properly admitted into evidence, consideration of this report by the hearing officer violates the program manual but where the report does no more than agree with previous reports of specialists, which were properly in evidence and which provide substantial support for the decision to terminate benefits, consideration of the report is harmless error. State ex rel. Human Servs. Dep't v. Gomez, 1982-NMSC-153, 99 N.M. 261, 657 P.2d 117.

Termination of benefits cannot be based upon information outside record. Hillman v. Health & Soc. Servs. Dep't, 1979-NMCA-007, 92 N.M. 480, 590 P.2d 179.

Termination hearing must protect claimant's opportunity to present case. — Any decision terminating a claimant's benefits must be based on a hearing which fully protects the claimant's opportunity to present his case; specifically, the option to examine all medical reports prior to or during the hearing. Hillman v. Health & Soc. Servs. Dep't, 1979-NMCA-007, 92 N.M. 480, 590 P.2d 179.

Hearing conducted by telephone not denial of due process. — A recipient of welfare benefits is not deprived of due process because his termination hearing is conducted by telephone and not in the presence of a hearing officer who can observe his demeanor. State ex rel. Human Servs. Dep't v. Gomez, 1982-NMSC-153, 99 N.M. 261, 657 P.2d 117.

Reasons for decision. — Although the director signed a form paragraph entitled "Final Decision" and inserted a check mark indicating "[d]ecided in favor of Dept.," his signature and the check mark failed to comply with Subsection D because they did not indicate the reason for his decision. Specifically, the director failed to indicate whether he adopted or approved the findings and conclusions of the hearing officer or whether he reached his decision on some other basis. Green v. N.M. Human Servs. Dep't, 1988-NMCA-083, 107 N.M. 628, 762 P.2d 915.

Burden on department to inform about subsequent hearing opportunities. — The burden of informing an applicant/recipient of the opportunity to present his case in light of new medical reports and social summaries at subsequent hearings is placed upon the department. Hillman v. Health & Soc. Servs. Dep't, 1979-NMCA-007, 92 N.M. 480, 590 P.2d 179.

No duty to inform of right to reapply. — There is nothing in the statutes or regulations that would impose upon the department the duty to inform an applicant to reapply for benefits. Landavazo v. N.M. Dep't of Human Servs., 1988-NMCA-002, 106 N.M. 715, 749 P.2d 538.

Subsequent change of circumstance. — Where an applicant's application for food stamp benefits was originally denied by the county office because the resource maximum for his household was exceeded by the value of his vehicle, and he then modified his vehicle to accommodate his physical handicap, so as to exclude it from consideration as a resource, this modification constituted a changed condition or circumstance subsequent to the original denial of his application, so that the hearing officer did not err in refusing to consider this evidence. The applicant's proper remedy was to reapply for benefits. Landavazo v. N.M. Dep't of Human Servs., 1988-NMCA-002, 106 N.M. 715, 749 P.2d 538.

Department is bound by its own regulations. Hillman v. Health & Soc. Servs. Dep't, 1979-NMCA-007, 92 N.M. 480, 590 P.2d 179.

Notice of right of review. — This section provides for joint notice of decision and notice of the right of review, and, consequently, the notice of the right of review can be sent to a representative who has represented the applicant at the hearing and who receives notice of the director's decision. James v. N.M. Human Serv. Dep't, 1987-NMCA-105, 106 N.M. 318, 742 P.2d 530, cert. quashed, 106 N.M. 353, 742 P.2d 1058.

Tardy notice of appeal. — An applicant may not rely on inaccurate information in her notification from the director under this section as to the time for taking an appeal to excuse the tardy filing of her notice of appeal. James v. N.M. Human Serv. Dep't, 1987-NMCA-105, 106 N.M. 318, 742 P.2d 530, cert. quashed, 106 N.M. 353, 742 P.2d 1058.

Scope of judicial review of "fair hearing" decision. — A judicial review of a "fair hearing" decision is not limited to whether the department's representative proceeded properly on the basis of information known prior to the "fair hearing". On the contrary, the evidence that is considered is the evidence contained in the record of the entire "fair hearing." Cruz v. N.M. Dep't of Human Servs., 1983-NMCA-080, 100 N.M. 133, 666 P.2d 1280 (decided prior to 1999 amendment to Section 27-3-4 NMSA 1978).

Law reviews. — For article, "Survey of New Mexico Law, 1979-80: Administrative Law," see 11 N.M.L. Rev. 1 (1981).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Representation by attorney of social security benefit claimant in administrative proceeding, 59 A.L.R. Fed. 595.