1. A. Right to a hearing: in the event a sanction is imposed, the children, youth and families department provides the detention facility with a written notice of the intent to impose a sanction. The notice of sanction is provided as soon as possible after the discovery of the violation, but in no event later than thirty (30) days from the date of the last inspection conducted. A request for a hearing does not act as a stay of any sanction imposed, unless agreed to by all the parties and such an agreement is reduced to writing.
2. B. If a review of a sanction is requested, the detention facility shall send written notice within ten (10) working days to: Director, Juvenile Justice Division, P.O. Drawer 5160, Santa Fe, New Mexico 87502-5160. The children, youth and families department appoints a hearing officer to conduct an evidentiary hearing within thirty (30) days. The hearing officer issues a written decision to the secretary of the children, youth and families department within fifteen (15) days of the date of the hearing. The secretary of the children, youth and families department issues a formal acceptance or rejection of the hearing officer’s decision within ten (10) days. In the event the secretary rejects the finding of the hearing officer, the secretary provides notice of the specific findings or conclusions rejected and the facts from the record supporting such rejection. Any appeal form this administrative determination if filed in accordance with NMSA 1978 39-3-1.1 (1999). Any deadline in this hearing process may be extended by agreement of the parties and noted in writing.
3. C. Initiation of hearing process: the hearing process is begun upon receipt by the department of a timely request for hearing, or, in the case of a pre-hearing suspension of certification, by service upon the facility of an emergency suspension order and notice of hearing.

4. D. Request for hearing:

   (1) shall be: made in writing; and shall be signed;

   (2) by the applicant, and/or;

   (3) by the applicant or an authorized representative, including but not limited to the administrator or director of the facility, in the case of an emergency suspension, suspension or revocation; delivery; the request for hearing shall be addressed to the director of the juvenile justice division of the New Mexico, children, youth and families department, and hand delivered or by certified mail to the office of the director at the department’s offices located at the PERA Building, Juvenile Justice Division, or PO Drawer 5160, Santa Fe, NM, 87502-5160.

   (4) Timeliness. In order to be timely, the request for hearing must be received by the department within ten (10) working days after receipt by the renewal applicant of notice of the decision denying the certification renewal: if mailed, it must be postmarked within the ten (10) day period.

   (5) Department’s responsibility following receipt of request for hearing scheduling appointment of hearing officer. Upon receipt of a timely request for hearing the department shall schedule a hearing to be held in Santa Fe and appoint a hearing officer.

   (6) Hearing date. The hearing date shall be no later than thirty (30) days after receipt of a timely request for hearing by the department, unless the hearing officer extends the time limitations based upon just cause.

   (7) Notice. The hearing officer shall, not less than fifteen (15) days prior to the date set for hearing, notify the facility, or recipient of the:

   (a) date, time and place for the hearing;

   (b) identity of the hearing officer;

   (c) subject matter of the hearing;

   (d) regulations claimed violated, and

   (e) service of notice. Notice shall be written and made by certified mail.

5. E. Hearing officer: all administrative hearings are conducted by a hearing officer appointed by the secretary or his/her designee.
6. F. Qualifications of the hearing officer: the hearing officer may be an employee of the children, youth and families department but may not have been involved, directly or indirectly, with the administrative decision at issue. The hearing officer need not be a licensed attorney.
7. G. Disqualification of the hearing officer: A hearing officer does not participate in any proceeding if, for any reason, the hearing officer cannot afford a fair and impartial hearing to either party. The hearing officer can only be removed for good cause. Any party seeking to recuse the hearing officer must file a motion with the officer within seven (7) days of receipt of the initial communication from the hearing officer, setting forth the grounds for disqualification and accompanied by all supporting reasons, affidavits, and authorities. The hearing officer rules on the request to disqualify, and an appeal of the ruling may be made to the secretary within seven days of the ruling. The secretary promptly determines the validity of the grounds alleged and takes any appropriate action. A written request to disqualify and an appeal of the hearing officer’s ruling on the matter tolls any applicable timetable for completion of the proceedings.
8. H. Duties of the hearing officer: upon appointment, the hearing officer establishes an official file which contain all the filed notices, pleadings, briefs, recommendations, correspondence and decisions. It shall also contain the department’s initial action, as well as the request for hearing. Upon conclusion of the proceeding and following issuance of the final decision, the hearing officer shall turn over to the department this official file for future custody.
9. I. The hearing officer shall preside over the hearing, administer oaths, take evidence and rule on matters that arise prior to and at the hearing.

10. J. Appearances and filing:

    (1) Parties may enter an appearance on their own behalf or be represented by an attorney licensed to practice in New Mexico.

    (2) Entities. The department, other organizations and entities may appear by a bona fide officer, employee or may be represented by an attorney licensed to practice in New Mexico at their own cost and expense.

11. K. Filing: any party filing documents in the appeal shall sign the original and hand deliver or mail it to the hearing officer, and shall hand deliver or mail copies to all other parties.

12. L. Pre-hearing conference: Purpose: a pre-hearing conference is scheduled at a time reasonably convenient to all parties, in order to:

    (1) identify issues;

    (2) identify admissions of fact or stipulations;

    (3) set discovery plan;

    (4) identify witnesses; and

    (5) notice: the hearing officer will give notice of the time and place of the pre-hearing conference to the parties by telephone, in person or by mail.

13. M. Costs: each party shall bear its own costs, including transportation costs, and attorney fees.
14. N. Informal: either party may request an informal resolution conference to try to establish a corrective action plan addressing the areas of non-compliance identified in its notice of sanction. The informal conference does not stay any hearing, unless the parties agree to a stay and so notify the hearing officer, in writing of this agreement. No offer of settlement made at the conference shall be admissible evidence at a later hearing. No record shall be made of informal conference.
15. O. Settlement: any settlement reached between the parties is written, signed by the hearing officer and the parties or their attorneys, and submitted to the secretary. The secretary approves the settlement agreement.

16. P. Postponement or continuance: the hearing officer may postpone or continue a hearing upon his own motion or upon motion of a party, for good cause shown.

    (1) Notice. Notice of any postponement or continuance shall be given in person, by telephone, or by mail to all parties.

    (2) Limits. No more than two (2) thirty (30) day postponements or continuances shall be granted for a pre-hearing conference or appeal hearing.

17. Q. Conduct of the hearing: Public: all hearings are open to the public. If it is necessary to use the names of children or employees of the detention facility, the hearing officer directs the parties to develop a process to prevent the disclosure of the full identity of the child or employee.

18. R. Authority and responsibility of hearing officer. The hearing officer has 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:

    (1) administration of oaths;

    (2) examine witnesses and direct witnesses to testify; limit repetitions and cumulative testimony; and set reasonable limits on the amount of time each witness may testify;

    (3) take such evidence as may be necessary to resolve the appeal;

    (4) conduct pre-hearing conferences;

    (5) make findings of fact and conclusions of law, opinions, decisions and recommendations; and

    (6) record proceedings.

19. S. Order of presentation should be the same for all adverse actions:

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

    (2) opening statement of the department;

    (3) facility’s opening statement;

    (4) department’s case-in-chief;

    (5) facility’s case-in-chief;

    (6) department’s rebuttal;

    (7) department’s closing statement;

    (8) facility’s closing statements;

    (9) closing proceedings by the hearing officer and

    (10) disposition by the hearing officer on the merits of the hearing.

20. T. Hearing decision must be in writing.
21. U. Burden of proof. The department must prove that the action proposed in the notice of sanction is supported by a preponderance of evidence.
22. V. Evidence: 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.
23. W. Record: Content: the record of a proceeding under these regulations includes tape recording of proceedings, all documents the hearing officer marks into evidence during the hearing, including orders the hearing officer issues, the notice of department sanctions, findings of fact and conclusions of law, recommendations of the hearing officer, and the final decision of the secretary. Any records produced during the hearing are public records provided that all identifying information concerning children is redacted.

24. X. Report and recommendation of hearing officer: hearing officer’s report contains:

    (1) the notice of sanction proposed;

    (2) findings of fact and conclusions of law;

    (3) findings of fact are based on the evidence presented at the hearing;

    (4) the standard is the best interest of the child to be placed in a detention facility; best interest means whether the violations in the notice of sanction pose a risk to their health and safety;

    (5) recommended determination;

    (6) proposed findings and conclusions; and

    (7) the hearing officer may request the parties to submit proposed findings of fact, and conclusions of law.

25. Y. Review by department:

    (1) The hearing officer’s recommendation and all records are submitted to the secretary of the New Mexico children, youth and families department for final determination.

    (2) Entry of decision: The hearing officer submits the recommendation to the secretary within fifteen (15) of the conclusion of the hearing. If the hearing officer fails to render a timely decision, the parties submit a letter to the secretary. The secretary issues a directive to command the hearing officer to issue a recommendation.

    (3) Final decision: The secretary of the New Mexico children, youth and families department accepts or rejects the hearing officers recommendation within ten (10) working days.

    (4) The secretary’s decision represents the final action of the children, youth and families department. Failure of the facility or recipient of any order to appear on the date and at the time set for any hearing, without good cause shown, constitutes a default with the notice of sanction operating as proof of violations warranting the proposed action.

    (5) Service: service of any notice of sanction is accomplished through regular mail. All notices mailed are deemed received within three (3) days of the postmark. In the event of an emergency sanction, service may be accomplished through fax, with the fax receipt serving as proof of transmittal. The notice of sanction may be transmitted electronically with the receipt from the electronic posting serving as proof.

[8.14.15.15 NMAC - N, 7/31/01]