New
Mexico Register / Volume XXXVI, Issue 18 / September 23, 2025
TITLE 9 HUMAN RIGHTS
CHAPTER 2 AGE
PART 22 HEARINGS TO CHALLENGE CIVIL PENALTY
ASSESSMENTS BY THE STATE LONG-TERM CARE OMBUDSMAN
9.2.22.1 ISSUING AGENCY: Aging
and Long-Term Services Department.
[9.2.22.1 NMAC - Rp,
9.2.22.1 NMAC, 09/23/2025]
9.2.22.2 SCOPE: This
rule applies to the general public and governs the hearings conducted by the
aging and long-term services department to address civil penalties that have
been assessed on persons or entities by the state long-term care
ombudsman. It does not govern other
hearings conducted by the department.
[9.2.22.2 NMAC - Rp,
9.2.22.2 NMAC, 09/23/2025]
9.2.22.3 STATUTORY AUTHORITY: This
rule is adopted pursuant to the terms of 42 U.S.C. Section 3058g(j), Subsection
B of Section 28-4-6, 28-17-5 and 28-17-19 NMSA 1978 and Subsection (E) of Section
6 of Chapter 23 Laws 2004.
[9.2.22.3 NMAC - Rp,
9.2.22.3 NMAC, 09/23/2025]
9.2.22.4 DURATION:
Permanent.
[9.2.22.4 NMAC - Rp,
9.2.22.4 NMAC, 09/23/2025]
9.2.22.5 EFFECTIVE DATE: September
23, 2025, unless a later date is cited in the history note at the end of a
section.
[9.2.22.5 NMAC - Rp,
9.2.22.5 NMAC, 09/23/2025]
9.2.22.6 OBJECTIVE: This
rule establishes a hearing procedure for a person or entity to challenge a
civil penalty assessment that has been issued to it by the state long-term care
ombudsman pursuant to the terms of Section 28-17-19 NMSA 1978 and applicable
department regulations.
[9.2.22.6 NMAC - Rp,
9.2.22.6 NMAC, 09/23/2025]
9.2.22.7 DEFINITIONS: The
following terms are used in this rule:
A. “Assessed party” means a person or entity that has been issued a civil penalty
assessment by the state long-term care ombudsman.
B. “Civil penalty assessment” means a civil monetary penalty imposed on a
person or entity by the state long-term care ombudsman pursuant to the terms of
Section 28-17-19 NMSA 1978 and applicable department regulations.
C. “Department” means the aging and long-term services department. It is the state department charged, among
other things, with implementing the requirements of the federal Older Americans
Act of 1965, as amended (42 U.S.C. Section 3001, et seq.).
D. “Hearing officer” means an impartial person designated by the secretary to preside over
proceedings under this rule. A hearing
officer may be an employee of the department (except for an employee of the
long-term care ombudsman program), a policy advisory committee member, or any
other impartial person. A hearing
officer may be, but is not required to be, an attorney at law.
E. “Long-term care ombudsman program” means the program administered by the state
long-term care ombudsman.
F. “Parties”
mean the assessed party and the state long-term care ombudsman.
G. “Secretary” means the secretary of the department.
H. “State long-term care ombudsman” means the office established pursuant to the
terms of 42 U.S.C. Section 3058g and Section 28-17-4 NMSA 1978 to, among other
things, identify, investigate and resolve complaints that are made by, or on
behalf of, residents of long-term care facilities and that relate to action,
inaction or decisions that may adversely affect the health, safety, welfare or
rights of the residents.
[9.2.22.7 NMAC - Rp,
9.2.22.7 NMAC, 09/23/2025]
9.2.22.8 REPRESENTATION:
A. A
natural person may appear as a party on his or her own behalf or by an attorney
licensed to practice law in New Mexico.
B. The
state long-term care ombudsman, corporations and other legal entities may be
represented by a duly authorized officer or employee of the entity or by an
attorney licensed to practice law in New Mexico.
C. An
attorney for a party must file an entry of appearance at least 10 working days
before the commencement of any hearing.
The attorney of record for a party shall be deemed to continue to be the
attorney of record until written notice of withdrawal of representation is
provided to the hearing officer and the parties.
[9.9.22.8 NMAC - Rp,
9.2.22.8 NMAC, 09/23/2025]
9.2.22.9 REQUEST FOR HEARING:
A. An
assessed party may request a hearing before the department. The request for hearing shall be in writing
and received by the secretary no later than 10 working days from the date that
the assessed party receives the civil penalty assessment. The request for hearing shall include:
(1) the name and address of the assessed
party;
(2) a copy of the civil penalty
assessment;
(3) a brief statement of the factual or
legal bases upon which the assessed party challenges the civil penalty
assessment; and
(4) a statement of the relief requested.
B. The
assessed party shall send a copy of the request for hearing to the state
long-term care ombudsman.
C. The
department shall dismiss any request for hearing that is untimely or fails to
substantially comply with the terms of this rule.
[9.2.22.9 NMAC - Rp,
9.2.22.9 NMAC, 09/23/2025]
9.2.22.10 APPOINTMENT OF HEARING OFFICER:
Within five working days of receipt of a timely request for hearing, the
secretary will appoint a hearing officer and will send written notice of the
appointment to the parties.
[9.2.22.10 NMAC - Rp,
9.2.22.10 NMAC, 09/23/2025]
9.2.22.11 NOTICE OF HEARING AND TIME LIMITS
FOR HOLDING HEARING:
A. Within
10 working days of appointment, the hearing officer will establish the date,
time and place of the hearing. The
hearing will be no more than 120 calendar days from the date of the civil
penalty assessment unless the parties agree otherwise.
B. The
hearing officer will issue a notice of hearing at least 30 calendar days before
the hearing date, unless the parties agree to a shorter timeframe. The notice will be served on the parties by
certified mail, return receipt requested.
At the discretion of the hearing officer, the notice may be served by
regular mail or other appropriate means on any other persons or entities that
may have an interest in the proceedings.
C. The
notice of hearing shall include:
(1) the name of the assessed party;
(2) the name and address of the state
long-term care ombudsman;
(3) the time, date, place, and nature of
the hearing; and
(4) a statement of the legal authority
under which the hearing is to be held.
[9.2.22.11 NMAC - Rp,
9.2.22.11 NMAC, 09/23/2025]
9.2.22.12 VENUE:
Unless the parties agree otherwise, the hearing will be held in the
county where the events allegedly occurred that gave rise to the civil penalty
assessment or where the long-term care facility in question is located.
[9.2.22.12 NMAC - Rp,
9.2.22.12 NMAC, 09/23/2025]
9.2.22.13 POWERS AND DUTIES OF THE HEARING
OFFICER: The hearing officer shall have the authority
to:
A. preside
over hearings;
B. assure
that hearings are properly recorded;
C. administer
oaths and affirmations to the witnesses;
D. issue
subpoenas and subpoenas duces tecum;
E. establish
procedural schedules;
F. rule
on motions and procedural requests;
G. require
parties to attend hearings, pre-hearing conferences and settlement conferences;
H. require
parties to produce for examination information or witnesses under their
control;
I. require
parties to express their positions on any issues in the proceedings;
J. require
parties to submit legal briefs on any issues in the proceedings;
K. examine
witnesses, and permit parties to examine witnesses;
L. determine
the admissibility of evidence;
M. take
official notice of any matter that is among the traditional matters of official
or administrative notice in accordance with the terms of this rule;
N. recess
any hearing from time to time;
O. regulate
the course of the proceedings and the conduct of any participants;
P. take
any action reasonably necessary to compel discovery or control the conduct of
parties or witnesses;
Q. issue
a recommended decision on the merits of a case, including findings of fact and
conclusions of law;
R. approve
settlements or other pre-hearing or post-hearing dispositions of cases by the
parties, subject to final approval by the secretary; and
S. take
any other action reasonably necessary to conclude the proceedings in a timely
and fair manner.
[9.2.22.13 NMAC - Rp,
9.2.22.13 NMAC, 09/23/2025]
9.2.22.14 APPLICABILITY OF RULES OF CIVIL
PROCEDURE AND RULES OF EVIDENCE: Although formal rules of civil
procedure and evidence do not apply, the hearing officer may look to the New
Mexico rules of civil procedure and the New Mexico rules of evidence for
guidance during the course of the proceedings.
In addition, the hearing officer’s recommended decision and the
secretary’s final decision must be supported by a residuum of legally competent
evidence as would support a verdict in a court of law.
[9.2.22.14 NMAC - Rp,
9.2.22.14 NMAC, 09/23/2025]
9.2.22.15 COMMUNICATIONS WITH SECRETARY AND
HEARING OFFICER:
A. No
party, representative of a party, or other person shall communicate off the
record about the merits of a case with the secretary or the hearing officer
unless the communication is in writing and a copy is provided to all parties to
the proceedings.
B. The
secretary and the hearing officer shall not communicate off the record about
the merits of a case with any party, representative of a party, or other person
unless the communication is in writing and a copy is sent to all parties to the
proceedings.
[9.2.22.15 NMAC - Rp,
9.2.22.15 NMAC, 09/23/2025]
9.2.22.16 PRE-HEARING DISCLOSURES AND
DISCOVERY:
A. Upon
written request of any party, the hearing officer may require parties to comply
with reasonable discovery requests. Oral
and written depositions are prohibited except to preserve the testimony of
persons who are sick or elderly, or persons who will not be able to attend the
hearing.
B. At
least 15 calendar days before the hearing, each party shall file the following
information with the hearing officer and send copies to the other parties:
(1) the name of each witness that the
party will or may call at the hearing;
(2) a summary of the anticipated direct
testimony of each witness and, if the testimony includes expert opinions, a
list of documents or other information that provides the bases for those
opinions;
(3) an estimate of the length of time for
the direct testimony of each witness; and
(4) a list of exhibits that will or may be
offered into evidence at the hearing. In
addition, each party shall provide the other parties, but not the hearing
officer, with copies of all exhibits that are identified on the exhibit list
but have not been provided previously.
C. Parties
are encouraged to enter into stipulations of fact to expedite the hearing
process. Any stipulations must be filed
jointly with the hearing officer at least 10 working days before the hearing.
[9.2.22.16 NMAC - Rp,
9.2.22.16 NMAC, 09/23/2025]
9.2.22.17 SUBPOENAS:
A. Pursuant
to Subsection C of Section 28-17-19 NMSA 1978, upon the written request of a
party, the hearing officer may issue subpoenas to compel attendance of
witnesses or production of records in connection with proceedings before the
department.
B. In
order to subpoena a person who is not a party to the proceedings, or an agent
or representative of a party, the party requesting the subpoena shall tender
witness fees and mileage to the person subpoenaed in accordance with the terms
of Rule 1-045 NMRA.
C. The
hearing officer may condition a subpoena to permit the inspection and copying
of records upon the party requesting the subpoena paying the person subpoenaed
the reasonable cost of inspection and copying in advance.
[9.2.22.17 NMAC - Rp,
9.2.22.17 NMAC, 09/23/2025]
9.2.22.18 EVIDENCE AND CONDUCT OF HEARING:
A. Hearings
will be conducted as follows:
(1) all hearings will be open to the
public, unless closing a hearing is necessary to protect the privacy of any
person who is entitled to privacy protection under federal or state law;
(2) only relevant and material evidence is
admissible at hearings. Evidence will be
allowed if it is of a type commonly relied upon by reasonably prudent persons
in the conduct of serious affairs;
(3) redundant evidence will be excluded;
(4) witnesses shall be examined orally,
under oath or affirmation. The parties
and the hearing officer shall have the right to cross-examine witnesses; and
(5) the hearing officer may take official
notice of any matter that is among the traditional matters of official or
administrative notice, and may take official notice of any matter that is
within the department’s specialized knowledge.
The hearing officer shall inform the parties of any matters officially
noticed, and shall afford the parties an opportunity to contest any such
matters.
B. The
burden of persuasion at the hearing shall be on the state long-term care
ombudsman, which must prove its case by a preponderance of the evidence unless
the case involves allegations of fraud.
In cases involving allegations of fraud, the state long-term care
ombudsman must prove its case by clear and convincing evidence.
C. At
the hearing, the state long-term care ombudsman shall present its evidence
first. If the assessed party wishes to
present evidence, it shall proceed second.
Thereafter, only the state long-term care ombudsman may present rebuttal
evidence. Rebuttal evidence shall be
confined to the issues raised in the assessed party's presentation of
evidence. Each party will be given an
opportunity to offer a final oral or written argument without additional
presentation of evidence.
[9.2.22.18 NMAC - Rp,
9.2.22.18 NMAC, 09/23/2025]
9.2.22.19 RECORD OF
HEARING:
A. Unless
a hearing is stenographically recorded and the hearing officer orders
otherwise, all hearings shall be recorded electronically by audio or
audio-video. Any party desiring a copy
of the audio or audio-video shall make a written request to the hearing officer
and shall pay the cost of preparing a copy.
B. No
later than five working days before a hearing, a party may request that the
hearing be stenographically recorded at the cost of the requesting party. The request shall be in writing to the
hearing officer and shall certify that the party has hired a certified court
reporter and made all necessary arrangements for the court reporter to perform
his or her job. In addition, the
requesting party shall arrange for the court reporter to deliver two copies of
the completed hearing transcript to the hearing officer. A court reporter’s transcription becomes
official when certified by the hearing officer.
The requesting party shall pay the court reporter’s fees, including any
costs associated with providing the copies of the completed hearing transcript
to the hearing officer.
C. Record. The
record in a hearing shall consist of the following:
(1) the civil penalty assessment;
(2) the assessed party’s request for
hearing;
(3) the notice of appointment of the
hearing officer;
(4) the notice of hearing;
(5) all pleadings and orders;
(6) any written information requested by
the hearing officer and provided to him or her by the parties before the
hearing;
(7) all exhibits;
(8) all stipulations;
(9) all statement of matters officially
noticed by the hearing officer;
(10) the electronic audio or audio-video
recording, or the court reporter’s written transcription of the hearing
prepared in accordance with this rule;
(11) the hearing officer’s recommended
decision;
(12) any motions for reconsideration and
rulings thereon; and
(13) the secretary’s final decision.
[9.2.22.19 NMAC - Rp,
9.2.22.19 NMAC, 09/23/2025]
9.2.22.20 HEARING
OFFICER’S RECOMMENDED DECISION:
A. The
hearing officer shall present a written recommended decision to the secretary
after the close of the hearing, and shall send copies to the parties. The recommended decision shall be based
solely on the record and shall include proposed findings of fact and
conclusions of law.
B. Any
motions for reconsideration shall be submitted to the hearing officer within
five working days from the date of service of the hearing officer’s recommended
decision. Such motions shall be decided
without a hearing unless the hearing officer orders otherwise.
[9.2.22.20 NMAC - Rp,
9.2.22.20 NMAC, 09/23/2025]
9.2.22.21 SECRETARY’S FINAL DECISION:
A. The
secretary shall issue a final written decision within 10 working days of the
receipt of the hearing officer's recommended decision or ruling on a motion for
reconsideration. Based upon the evidence
in the record, the secretary may affirm, reverse or modify the hearing
officer’s recommended decision as modified by any subsequent rulings of the
hearing officer. The secretary’s final
decision shall inform the parties of their right to seek judicial review.
B. The
secretary shall send copies of the final decision to the parties by certified
mail, return receipt requested.
C. When
the secretary’s final decision affirms a civil penalty assessment by the state
long-term care ombudsman, the assessed party shall pay the civil penalty to the
department within 30 calendar days from the date of the decision. Payment shall be in the form of cash,
cashier’s check or money order.
[9.2.22.21 NMAC - Rp,
9.2.22.21 NMAC, 09/23/2025]
9.2.22.22 APPEAL: A
person who is aggrieved by the secretary’s final decision may appeal to the
district court in accordance with the provisions of Section 39-3-1.1 NMSA 1978
and Rule 1-074 NMRA. The date of filing
of the secretary’s final decision starts the time limit for appeal.
[9.2.22.22 NMAC - Rp,
9.2.22.22 NMAC, 09/23/2025]
9.2.22.23 NO AUTOMATIC STAY PENDING JUDICIAL
REVIEW: The filing of a notice of appeal shall not
stay the enforcement of the secretary’s final decision. Upon a showing of substantial hardship and
irreparable harm, the secretary may grant a stay of the final decision pending
appeal. The district court may also
grant a stay in accordance with the provisions of Rule 1-074 NMRA.
[9.2.22.23 NMAC - Rp,
9.2.22.23 NMAC, 09/23/2025]
9.2.22.24 ENFORCEMENT OF ORDERS AND PAYMENT
IN DEFAULT: Whenever an assessed party is in default of a
civil penalty assessment, the state long-term care ombudsman may file an action
in district court solely for the purpose of entry of judgment and enforcement
of the civil penalty. The district court
shall accept the civil penalty assessment without reviewing the basis for it
and shall enter an appropriate judgment or order to enforce the civil penalty
assessment.
[9.2.22.24 NMAC - Rp,
9.2.22.24 NMAC, 09/23/2025]
History of 9.2.22
NMAC: [RESERVED]
History of
Repealed Material:
9.2.22 NMAC, Hearings to Challenge Civil Penalty Assessments By The
State Long - Term Care Ombudsman filed 3/8/2004 Repealed effective 09/23/2025.
Other: 9.2.22 NMAC, Hearings to Challenge Civil Penalty Assessments By The
State Long - Term Care Ombudsman filed 3/8/2004 Replaced by 9.2.22 NMAC,
Hearings to Challenge Civil Penalty Assessments By The State Long - Term Care
Ombudsman effective 09/23/2025.