New Mexico Administrative Code › Title 2 - PUBLIC FINANCE › Chapter 80 - PUBLIC EMPLOYEES RETIREMENT › Part 1500 - APPEAL OF DENIAL OF CLAIM OF BENEFITS › Section 2.80.1500.10 - GENERAL PROVISIONS

Current through Register Vol. 35, No. 13, July 16, 2024
A. The
				denial of any claim for retirement benefits may be appealed by a claimant. A
				refund or withdrawal of a member's contributions causes the forfeiture of
				service credit and shall result in the automatic dismissal of an appeal and the
				issuance of notice of dismissal. The appeal shall be initiated by receipt by
				PERA of a notice of appeal within ninety (90) days of the date of the letter in
				which the written notification to the claimant of the denial. The notice of
				appeal must state the reasons for claiming the denial is improper. If the
				claimant fails to submit a notice of appeal as provided herein, the initial
				denial of any claim shall constitute the final order of the board.
B. The appeal shall be heard by a hearing
				officer designated to represent the board unless otherwise provided by the
				board or board rules.
C. Procedure.
(1) PERA's office of general counsel will
				establish internal procedures for processing appeals, within the parameters set
				by this rule.
(2) Discovery and
				evidence.
(a) Following the filing of an
				appeal, the parties must submit to the hearing officer, with a copy to the
				other parties, including PERA, at least fifteen (15) days prior to the
				scheduled hearing, any documentary evidence he or she may wish to present for
				consideration at the de novo hearing. The hearing officer may grant a request
				for extension of time to submit documentary evidence for good cause, if such
				extension is not prejudicial to another party. This documentary evidence shall
				include all documents that will be introduced as exhibits at the hearing.
				Failure to comply with the requirements of this paragraph may result in the
				consideration of the appeal without the documentary evidence.
(b) At the same time documentary evidence is
				due to be submitted, PERA may, but is not required to file a written response
				to claimant's notice of appeal.
(c)
				Upon written request of any party, the parties shall provide to the other
				parties the names and addresses of persons that may be called as witnesses at
				the hearing.
(d) Pre-hearing
				discovery permitted by the rules of civil procedure for the district courts in
				New Mexico shall be allowed as authorized by the hearing officer. Upon the
				request of any party in writing, the hearing officer may authorize
				depositions.
(e) Upon request, the
				claimant shall provide to the attorney for the association authorizations for
				the release of records regarding the claimant's health care and employment
				(whether self-employed or as an employee or an independent
				contractor).
(f) The rules of
				evidence do not apply, but the hearing officer may admit all relevant evidence,
				which in the opinion of the hearing officer, is the best evidence most
				reasonably obtainable, having due regard to its necessity, competence,
				availability and trustworthiness. Such evidence shall be given the weight the
				hearing officer deems appropriate.
(g) The hearing officer may, upon good cause
				shown, remand the matter back to the disability review committee or the
				association for reconsideration.
(3) Hearing.
(a) A hearing shall be held within sixty (60)
				days of receipt of the notice of appeal unless the parties mutually agree to an
				extension of time and the extension is approved in writing by the hearing
				officer. The parties shall be given at least thirty (30) days written notice of
				the scheduled hearing.
(b) The
				board's authority to issue subpoenas is delegated to the hearing officer for
				the purpose of obtaining evidence or testimony not otherwise
				available.
(c) The board's
				authority to administer oaths is delegated to the hearing officer for the
				purpose of conducting the hearing.
(d) The parties have the right to present
				argument and evidence orally, to present or cross-examine witnesses, and to be
				accompanied by counsel.
(e) Failure
				of the claimant or his or her representative to appear at the hearing, without
				prior approval from the hearing officer, shall result in automatic final denial
				of any claims previously asserted.
(f) If the claimant or his or her
				representative requests rescheduling of a hearing so late that additional costs
				are incurred, any additional costs incurred shall be assessed against the
				claimant.
(4) Burden of
				persuasion. Unless otherwise established by law, the claimant has the burden of
				proving by a preponderance of the evidence the facts relied upon to show he or
				she is entitled to the benefit denied.
(5) Record. The hearing shall be recorded by
				a certified court reporter, and copies of all evidence offered shall be
				maintained by the association for a period of not less than five (5) years. Any
				party desiring a copy of the transcript of the proceedings shall be responsible
				for paying the cost, if any, of preparing such copy. The appellant shall make
				arrangements with the association for the preparation of transcripts for appeal
				to the district court.
(6)
				Recommended decision.
(a) The hearing
				officer's recommended decision shall be based upon the evidence adduced at the
				hearing and shall be issued by the hearing officer within sixty (60) days
				following the close of the record.
(b) The hearing officer shall propose
				findings of fact and conclusions of law as part of the recommended decision to
				the board.
(7)
				Exceptions to recommended decision.
(a) The
				parties to a proceeding may file with the board exceptions to the hearing
				officer's recommended decision within fifteen (15) days of the date of issuance
				of the recommended decision. Upon the written request of a party, and for good
				cause shown, the hearing officer may extend the time to file
				exceptions.
(b) Copies of such
				exceptions and any briefs shall be served on all parties and the hearing
				officer, and a statement of such service shall be filed with the
				exceptions.
(c) Exceptions to a
				hearing officer's recommended decision shall cite the precise substantive or
				procedural issue to which exceptions are taken and shall be based only on the
				evidence and arguments presented at the hearing.
(d) Any exception not specifically made shall
				be considered waived. Any exception that fails to comply with the foregoing
				requirements may be disregarded.
(e) The hearing officer may file with the
				board a response to any exceptions filed within fifteen (15) days of the date
				of filing of the exceptions and shall serve copies on all parties.