New Mexico Administrative Code › Title 2 - PUBLIC FINANCE › Chapter 82 - EDUCATIONAL RETIREMENT › Part 11 - ADMINISTRATIVE APPEALS › Section 2.82.11.8 - GENERAL PROVISIONS

Current through Register Vol. 35, No. 13, July 16, 2024
A. A final
				written decision of the director which results in a denial of a claim for
				retirement-related benefits or a recommendation of the medical review committee
				for a denial of an application for disability or termination of disability
				benefits may be appealed by an affected member.
B. The appeal shall be initiated by the
				affected party serving on the director a notice of appeal within 30 days of the
				date of the letter in which the member received notice of the final decision or
				recommendation. The notice of appeal must state the reasons for claiming the
				decision or recommendation is improper. If the claimant fails to submit a
				notice of appeal as provided herein, the decision or recommendation shall
				become final.
C. The appeal shall
				be heard by a hearing officer designated by the board, unless otherwise
				provided by the board.
D.
				Procedure.
(1) The 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 copies separately addressed to the educational
				retirement board's (ERB) office of general counsel, at least 15 days prior to
				the scheduled hearing, any documentary evidence a party 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 provision may result in the
				appeal proceeding without consideration of the documentary evidence.
(b) At the same time documentary evidence is
				due to be submitted, the ERB may, but is not required to, file a written
				response to claimant's notice of appeal.
(c) The parties shall provide to the other
				parties the names and addresses of persons that may be called as witnesses at
				the hearing.
(d) Upon the written
				request of any party, pre-hearing discovery permitted by the rules of civil
				procedure for the state district courts in New Mexico may be allowed as
				authorized by the hearing officer.
(e) Upon request, the claimant shall provide
				to the director authorizations for the release of records regarding employment
				(whether self-employed or as an employee or an independent contractor) and, in
				the case of a disability appeal, the claimant's health care records.
(f) The rules of evidence do not apply, but
				the hearing officer may admit all relevant evidence which in the hearing
				officer's opinion 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 director or
				the medical review committee for reconsideration.
(3) Hearing.
(a) A hearing shall be held within 90 days of
				receipt of the notice of appeal unless the parties agree to an extension of
				time and the extension is approved in writing by the hearing officer. The
				hearing officer also may grant an extension upon good cause shown by one party,
				without the agreement of other parties. The parties shall be given at least 30
				days written notice of the scheduled hearing. The hearing shall be held in
				Santa Fe.
(b) A hearing involving
				the denial of disability benefits shall not be open to the public.
(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 a New Mexico licensed attorney.
(e) The parties shall appear in person at the
				hearing, except as provided in this rule. The claimant may appear by telephone
				or video conference when it is difficult or impossible for the claimant to
				appear in person. A claimant who wishes to appear by telephone or video
				conference shall submit a written request to the hearing officer at least five
				days prior to the hearing stating the reason(s) why it is difficult or
				impossible for the claimant to appear in person. Failure of the party bringing
				the appeal or that party's representative to appear in person or by telephone
				or video conference at the hearing, without prior approval from the hearing
				officer, shall result in automatic final denial of the appeal and any claims
				previously asserted. Witnesses may appear by telephone or video conference if
				approved by the hearing officer.
(f) If the party bringing the appeal or that
				party's representative requests rescheduling of a hearing so close to the time
				of the hearing that additional costs are incurred, any such additional costs
				may be assessed against that party, such as court reporting or other
				costs.
(4) Burden of
				persuasion. Unless otherwise established by law, the party bringing the appeal
				has the burden of proving by a preponderance of the evidence the facts relied
				upon to show that such party is entitled to relief or the benefit
				denied.
(5) Record. The hearing
				shall be recorded, and copies of all evidence offered shall be maintained by
				the director for a period of five years. Any party desiring a transcript of the
				proceedings shall be responsible for paying the cost, if any, of preparing such
				transcript. A party appealing the decision of the board to the district court
				shall make arrangements with the director for the preparation of transcripts
				for that appeal.
(6) Written
				closing arguments. If any party requests permission to file a written closing
				argument, the hearing officer may permit all parties to file written closing
				arguments and shall set a time for the simultaneous filing of written closing
				arguments.
(7) Recommended
				decision.
(a) The hearing officer shall
				prepare a recommended decision for the board's consideration. The hearing
				officer shall provide the parties a copy of the recommended decision upon its
				completion. The hearing officer's recommended decision shall be based upon the
				evidence adduced at the hearing and shall be issued within 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.
(8) Exceptions to recommended decision.
(a) The parties may file exceptions to the
				hearing officer's recommended decision with the board within 15 days of the
				date of issuance of the recommended decision. Any other party may file a
				response to exceptions within 15 days of the date such exceptions were filed.
				Upon the written request of a party, and for good cause shown, the hearing
				officer may extend the time to file exceptions and responses.
(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 solely on the evidence and
				arguments presented at the hearing. Any exception that fails to comply with the
				foregoing requirements may be disregarded.
(d) The hearing officer may file with the
				board a response to any exceptions filed within 15 days of the date of filing
				of the exceptions and shall serve copies of the response on all
				parties.