N.M. Code R. § 7.27.2.15 – Hearings

A. Right to appeal: A licensee or applicant may appeal a decision by the department to take a disciplinary action against the licensee or applicant under this rule.
B. Right to hearing: A licensee or applicant may request a hearing before a hearing officer appointed by the secretary to contest a proposed action or immediate suspension under this rule, by mailing a certified letter, return receipt requested, to the bureau within 20 days after service of the notice of the contemplated action or immediate suspension. If the licensee or applicant fails to request a hearing in the time and manner required by this section, the licensee or applicant shall forfeit the right to a hearing, and the proposed action shall become final and not subject to judicial review.
C. Scheduling the hearing:
1. (1) Appointment of hearing officer: Upon the bureau’s receipt of a timely request for a hearing, the department shall appoint a hearing officer and schedule a hearing.
2. (2) Hearing date: The hearing shall be held not more than 60 days and not less than 15 days from the date of service of the notice of the hearing. Exception for immediate suspensions; expedited hearing: In the event that the bureau immediately suspends an individual’s license, the department shall afford the individual an expedited hearing within 20 days of the date of the bureau’s timely receipt of the licensee’s request for a hearing, unless the individual waives this provision.
3. (3) Notice of hearing: The department shall notify the licensee or applicant of the date, time, and place of the hearing and the identity of the hearing officer, and shall identify the statute(s) and regulation(s) authorizing the department to take the contemplated action (unless previously disclosed), within 20 days of the bureau’s timely receipt of the request for hearing. Exception for immediate suspensions: In the event that the bureau immediately suspends an individual’s license, the department shall notify the individual of the expedited hearing not less than seven days prior to the scheduled date of the expedited hearing.
4. (4) Hearing venue: The hearing shall be held in the county in which the person whose license is involved maintains his residence, or at the election of the hearing officer, in any county in which the acts complained of occurred. In any case, the hearing officer may, with the agreement of the parties, hold the hearing in some other county. Exceptions; expedited hearings and cases involving initial licensure: Expedited hearings shall be held in Santa Fe, New Mexico. Hearings in cases involving initial licensure shall also be held in Santa Fe, New Mexico.
D. Method of service: Any notice or decision required to be served under this section may be served
either personally or by certified mail, return receipt requested, directed to the licensee or applicant at the last known mailing address (or, if service is made personally, by the last known physical address) shown by the records of the bureau. If the notice or decision is served personally, service shall be made in the same manner allowed by the rules of civil procedure for the state district courts of New Mexico. Where the notice or decision is served by certified mail, it shall be deemed to have been served on the date borne by the return receipt showing delivery, or the date of the last attempted delivery of the notice or decision, or the date of the addressee’s refusal to accept delivery.
E. Excusal of the hearing officer:
1. (1) Peremptory excusal: A party shall have the ability to excuse one hearing officer. The party may request the peremptory excusal by submitting to the secretary a motion for peremptory excusal at least 20 days prior to the date of the hearing, or at least five days prior to the date of an expedited hearing concerning the immediate suspension of an individual’s license.
2. (2) Excusal for good cause shown: A party may request that a hearing officer be excused for good cause shown by submitting to the secretary a motion of excusal for good cause at least 20 days prior to the date of the hearing, or at least five days prior to an expedited hearing concerning the immediate suspension of an individual’s license.
F. Hearing officer duties: The hearing officer shall conduct the hearing, rule on any motions or
other matters that arise prior to the hearing, and issue a written report and recommendation(s) to the secretary following the close of the hearing.
G. Official file: Upon appointment, the hearing officer shall establish an official file which shall
contain all notices, hearing requests, pleadings, motions, written stipulations, evidence, briefs, and correspondence received in the case. The official file shall also contain proffered items not admitted into evidence, which shall be so identified and shall be separately maintained. Upon conclusion of the proceeding and following issuance of the final decision, the hearing officer shall tender the complete official file to the department for its retention as an official record of the proceedings.
H. Powers of hearing officer: The hearing officer shall have all the powers necessary to conduct a hearing and to take all necessary action to avoid delay, maintain order, and assure development of a clear and complete record, including but not limited to the power to: administer oaths or affirmations; schedule continuances; direct discovery; examine witnesses and direct witnesses to testify; subpoena witnesses and relevant books, papers, documents, and other evidence; limit repetitious and cumulative testimony; set reasonable limits on the amount of time a witness may testify; decide objections to the admissibility of evidence or receive the evidence subject to later ruling; receive offers of proof for the record; take notice of judicially cognizable facts or take notice of general, technical, or scientific facts within the hearing officer’s specialized knowledge (provided that the hearing officer notifies the parties beforehand and offers the parties an opportunity to contest the fact so noticed); direct parties to appear and confer for the settlement or simplification of issues, and otherwise conduct pre-hearing conferences; impose appropriate evidentiary sanctions against a party who fails to provide discovery or who fails to comply with a subpoena; dispose of procedural requests or similar matters; and enter proposed findings of fact and conclusions of law, orders, reports and recommendations. The hearing officer may utilize his or her experience, technical competence, or specialized knowledge in the evaluation of evidence presented.
I. Minimum discovery; inspection and copying of documents: Upon written request to another party, any party shall have access to documents in the possession of the other party that are relevant to the subject matter of the appeal, except confidential or privileged documents.
J. Minimum discovery; witnesses: The parties shall each disclose to each other and to the hearing officer, either orally or in writing, the names of witnesses to be called, together with a brief summary of the testimony of each witness. In situations where written statements will be offered into evidence in lieu of a witness’s oral testimony, the names of the persons making the statements and a brief summary of the statements shall be disclosed.
K. Depositions: Depositions may be taken by any party after service of notice in accordance with the Rules of Civil Procedure for the district courts. Depositions may be used as in proceedings governed by those rules.
L. Subpoenas: A party may have subpoenas and subpoenas duces tecum (to compel discovery and the attendance of witnesses and the production of relevant books, papers, documents and other evidence) issued as of right prior to the commencement of a hearing upon making written request therefor to the hearing officer. The issuance of such subpoenas after the commencement of the hearing rests in the discretion of the hearing officer.
M. Subpoena limits; service: Geographical limits upon the subpoena power shall be the same as if the hearing officer were a district court sitting at the location at which the hearing or discovery proceeding is to take place. The method of service shall be the same as that under the rules of civil procedure for the district courts, except that rules requiring the tendering of fees shall not apply to the department.
N. Pre-hearing disposition: The subject matter of any hearing may be disposed of by stipulation, settlement or consent order, unless otherwise precluded by law. Any stipulation, settlement, or consent order reached between the parties shall be written and shall be signed by the hearing officer and the parties or their attorneys.
O. Postponement or continuance: The hearing officer, at his or her discretion, may postpone or continue a hearing upon his or her own motion, or upon the motion of a party, for good cause shown. Notice of any postponement or continuance shall be given in person, by telephone, or by mail to all parties within a reasonable time in advance of the previously scheduled hearing date.
P. Conduct of hearing: Pursuant to the NM Open Meetings Act, Section 10-15-1, et seq., NMSA 1978, hearings shall be open to the public; provided, however, that hearings may be closed in part to prevent the disclosure of confidential information, including but not limited to health information protected by state and federal laws.
Q. Telephonic testimony: Upon timely notice to the opposing party and the hearing officer, and with the approval of the hearing officer, the parties may present witnesses by telephone or live video (if available).
R. Legal representation: A licensee or applicant may be represented by an attorney licensed to practice in New Mexico, or by a licensed EMT, or both. The department may be represented by a department employee or an attorney licensed to practice in New Mexico, or both.
S. Recording: The hearing officer or a designee shall record the hearing by means of a mechanical sound recording device provided by the department for a record of the hearing. Such recording need not be transcribed, unless requested by a party who shall arrange and pay for the transcription.
T. Burden of proof: Except as otherwise provided in this rule, the department has the burden of proving by a preponderance of the evidence the basis for the proposed action. Exception in denied application cases: in cases arising from the denial of permission to take a licensing examination for which application has been properly made, denial of a license for any cause other than failure to pass an examination, or denial of a license for which application has been properly made on the basis of reciprocity or endorsement or acceptance of a national certificate of qualification, the applicant shall bear the initial burden of proving by a preponderance of the evidence the applicant’s qualifications.
U. Order of presentation; general rule: Except as provided in this rule, the order of presentation for hearings in all cases shall be:
1. (1) appearances: opening of proceeding and taking of appearances by the hearing officer;
2. (2) pending matters: disposition by the hearing officer of preliminary and pending matters;
3. (3) opening statements: the opening statement of the department; and then the opening statement of the party challenging the department's action or proposed action;
4. (4) cases: the department's case-in-chief, and then the case-in-chief of the party challenging
  the department's action;
5. (5) rebuttal: the department's case-in-rebuttal;
6. (6) closing argument: the department's closing statement, which may include legal argument; and then the closing statement of the party opposing the department’s action or proposed action, which may include legal argument; and
7. (7) close: close of proceedings by the hearing officer.
V. Order of presentation in denied application cases: The order of presentation in cases arising
from the denial of permission to take a licensing examination for which application has been properly made, denial of a license for any cause other than failure to pass an examination, or denial of a license for which application has been properly made on the basis of reciprocity or endorsement or acceptance of a national certificate of qualification shall be:
1. (1) appearances: opening of proceeding and taking of appearances by the hearing officer;
2. (2) pending matters: disposition by the hearing officer of preliminary and pending matters;
3. (3) opening statements: applicant's opening statement; and then the opening statement of the department;
4. (4) cases: the applicant's case-in-chief, and then the department’s case-in-chief;
5. (5) rebuttal: the applicant's case-in-rebuttal;
6. (6) closing argument: the applicant's closing statement, which may include legal argument; and then the department’s closing statement, which may include legal argument; and
7. (7) close: close of proceedings by the hearing officer.
W. Admissible evidence; rules of evidence not applicable: 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, such as the New Mexico rules of evidence for the district courts, shall not apply but may be considered in determining the weight to be given any item of evidence. The hearing officer may at his or her discretion, upon his or her motion or the motion of a party or a party’s representative, exclude incompetent, irrelevant, immaterial, or unduly repetitious evidence, including testimony, and may exclude confidential or privileged evidence.
X. Objections: A party may timely object to evidentiary offers by stating the objection together with a succinct statement of the grounds for the objection. The hearing officer may rule on the admissibility of evidence at the time an objection is made or may receive the evidence subject to later ruling.
Y. Official notice: The hearing officer may take notice of any facts of which judicial notice may be taken, and may take notice of general, technical, or scientific facts within his or her specialized knowledge. When the hearing officer takes notice of a fact, the parties shall be notified either before or during the hearing of the fact so noticed and its source, and the parties shall be afforded an opportunity to contest the fact so noticed.
Z. Record content: The record of a hearing shall include all documents contained in the official file maintained by the hearing officer, including all evidence received during the course of the hearing, proposed findings of fact and conclusions of law, the recommendations of the hearing officer, and the final decision of the secretary.
AA Written evidence from witnesses: The hearing officer may admit evidence in the form of a
written statement made by a witness, when doing so will serve to expedite the hearing and will not substantially prejudice the interests of the parties.
BB. Failure to appear: If a party who has requested a hearing or a party’s representative fails to
appear on the date, time, or location announced for a hearing, and if no continuance was previously granted, the hearing officer may proceed to hear the evidence of such witnesses as may have appeared or may accept offers of proof regarding anticipated testimony and other evidence, and the hearing officer may further proceed to consider the matter and issue his report and recommendation(s) based on the evidence presented; and the secretary may subsequently render a final decision. Where a person fails to appear at a hearing because of accident, sickness, or other cause, the person may within a reasonable time apply to the hearing officer to reopen the proceeding, and the hearing officer may, upon finding sufficient cause, fix a time and place for a hearing and give notice to the parties.
CC. Hearing officer written report and recommendation(s): The hearing officer shall submit a written report and recommendation(s) to the secretary that contains a statement of the issues raised at the hearing, proposed findings of fact and conclusions of law, and a recommended determination. Proposed findings of fact shall be based upon the evidence presented at the hearing or known to all parties, including matters officially noticed by the hearing officer. The hearing officer's recommended decision is a recommendation to the secretary of the New Mexico department of health and is not a final order.
DD. Submission for final decision: The hearing officer's report and recommendation(s) shall be submitted together with the complete official file to the secretary of the New Mexico department of health for a final decision no later than 30 days after the hearing.
EE. Secretary’s final decision: The secretary shall render a final decision within 45 calendar days of the submission of the hearing officer’s written report. The final decision shall contain a statement informing the applicant or licensee of their right to judicial review and the time within which such review must be brought (see below). A copy of the final decision shall be mailed to the appealing party by certified mail, return receipt requested, within 15 days after the final decision is rendered and signed. A copy shall be provided to legal counsel for the bureau.
FF. Right to judicial review: Pursuant to Section 39-3-1.1 NMSA 1978, a licensee or applicant who is entitled to a hearing under this rule and who is aggrieved by an adverse final decision may obtain a judicial review of the decision by filing in state district court a notice of appeal within 30 days of the entry of the final decision by the secretary.
GG. Court-ordered stay: Filing for judicial review shall not itself stay enforcement of the final decision. Any party may petition the court whose jurisdiction has been properly invoked for an order staying enforcement.

[7.27.2.15 NMAC - Rp, 7.27.2.15 NMAC, 12/12/2017]