A. Requesting a Fair Hearing: How to Request a Hearing. A request for hearing shall be made to the director of DVR, at 435 St. Michael's Drive, Building D, Santa Fe, New Mexico 87505. A hearing request should indicate the contested decision and the counselor assigned to the case. A hearing request must be made within twenty days of the disputed decision.
B. Appointment of a hearing officer: A hearing officer shall be appointed on a random basis or by agreement between the client and the DVR director. The selection of a hearing officer shall be made from a pool of qualified hearing officers established jointly by the state rehabilitation advisory council and the DVR Director. The hearing officer shall not be an employee of DVR.
C. Time of Hearing: The hearing shall be held not less than ten nor later than forty-five days from the date of the request for hearing. The time limit may be extended by the hearing officer upon the request of either party, for good cause shown. The time limit may also be extended upon agreement of both parties.
E. Opportunity to Present Evidence: At the hearing, the client or client's representative shall be allowed to present evidence, information, and witnesses to the hearing officer, and to examine all witnesses and other sources of evidence and information.
F. Duties of Hearing Officer: The hearing officer shall:
(1) conduct a pre-hearing conference on a date reached by mutual agreement between the parties;
(2) administer oaths and affirmations to the witnesses;
(3) regulate the course and conduct of the hearing;
(4) assure that all properly raised and relevant issues are considered;
(5) rule on the introduction of testimony and other evidence (the technical rules of evidence do not apply);
(6) assure that the proceedings are properly recorded;
(7) review the evidence and testimony;
(8) make a decision based upon the facts presented at the hearing, the provisions of the approved state plan, the Rehabilitation Act of 1973 and accompanying federal regulations, the manual of operating procedures, and good rehabilitation practice.
G. Decision of Hearing Officer: The hearing officer shall issue a written decision within thirty days of the completion of the hearing. The decision shall fully set forth the findings of the hearing officer and the grounds for the decision.
H. A decision by a hearing officer shall be final unless a party brings civil action under section 8.9 NMAC NMAC (Subsection J of 6.101.2.8 NMAC).
I. Review by Director: The director of DVR may not overturn a hearing officer's decision.
J. Provision of Services Pending Appeal: Pending a final determination of a civil action, DVR shall not suspend, modify, or terminate services being provided under an individualized written rehabilitation program, unless such services have been obtained through misrepresentation, fraud, collusion, or criminal conduct on the part of the individual with a disability.
K. Civil Action: Any party aggrieved by a final decision described in section 8.6 NMAC NMAC (Subsection G of 6.101.2.8 NMAC) may bring a civil action for review of such decision. The action may be brought in any state court of competent jurisdiction or in a district court of the United States of competent jurisdiction without regard to a the amount in controversy. In any action brought under this subparagraph, the court:
(1) shall receive the records relating to the hearing and the records relating to the state review, if applicable;
(2) shall hear additional evidence at the request of the party to the action; and
(3) basing the decision of the court on the preponderance of the evidence, shall grant such relief as the court determines to be appropriate.
(12-31-98, 02-14-00; Recompiled 10/31/01)
HIERARCHY NOTES: See 6.101.2 NMAC