001.01 Application
of Rules
Pursuant to Neb. Rev. Stat.
§
84-909.01,
the Attorney General shall promulgate model rules of procedure appropriate for
use by as many agencies as possible. For rules of procedure adopted on or after
August 1, 1994, each agency shall adopt as many of the model rules as is
practicable under the circumstances. Agencies may adopt regulations which vary
from the model rules; however, any agency adopting a rule of procedure that
differs from the model rule shall include in the agency's explanatory statement
the reasons why the relevant portions of the Attorney General's model rules are
impracticable under the circumstances. This Chapter is based upon the Attorney
General's model rule for contested cases with modifications to comply with the
requirements of the Nebraska Special Education Act (Neb. Rev.
Stat. §§
79-1110
to
79-1184 ) and
the Individuals With Disabilities Education Act (
20 U.S.C.
1400 to
1487 ). This Chapter
shall apply to all hearings brought by a parent or a public agency pursuant to
the Nebraska Special Education Act, Title 92 NAC 51 (Rule 51) or the
Individuals With Disabilities Education Act and its implementing regulations
which relate to the identification, evaluation or educational placement of a
child with a disability, or the provision of a free appropriate public
education to a child; and only to such hearings.
001.02 Definitions
The following definitions shall apply as used throughout
Chapter 55 of these rules and regulations.
001.02A. Commissioner shall mean the State
Commissioner of Education.
001.02B.
Special education contested case shall mean a proceeding before a hearing
officer in which the legal rights, duties, or privileges of specific parties
are required by the Nebraska Special Education Act or the Individuals With
Disabilities Education Act to be determined after a hearing.
001.02C. Department shall mean the Nebraska
Department of Education, which is comprised of the State Board of Education and
the Commissioner of Education.
001.02D. Ex parte communication shall mean an
oral or written communication which is not on the record in a special education
contested case with respect to which reasonable notice to all parties was not
given. Ex parte communication shall not include:
001.02D1. Communications which do not pertain
to the merits of a special education contested case;
001.02D2. Communications required for the
disposition of ex parte matters as authorized by law; and,
001.02D3. Communications to which all parties
have given consent.
001.02E. Hearing officer shall mean the
person or persons conducting a special education hearing, contested case, or
other proceeding pursuant to the Nebraska Special Education Act or the
Individuals With Disabilities Education Act, whether designated as the
presiding officer, administrative law judge, or some other title
designation.
001.02F. Parent means:
001.02F1. A natural, adoptive or foster
parent of a child;
001.02F2. A
guardian but not the State if the child is a ward of the State;
001.02F3. A person acting in the place of a
natural or adoptive parent (including a grandparent, stepparent or other
relative with whom the child lives; or a person who is legally responsible for
the child's welfare); or
001.02F4.
A surrogate parent who has been appointed in accordance with 92 NAC
51-009.08.
001.02G. Party
means the parent of a child with a disability, a competent student of the age
of majority with a disability, or a public agency by or against whom a special
education contested case is brought or a person allowed to intervene in a
special education contested case. The Department shall be named as a party if,
and only if, the petition contains an allegation that the Department has acted
improperly or has improperly failed to act with respect to its duties under
Neb. Rev. Stat.
§
79-1152.
001.02H. Petition means the initial document
filed with the Department and served on the other party that sets forth a claim
related to the initiation, change, or termination or the refusal to initiate,
change, or terminate the identification, evaluation, or educational placement
of a child with a disability or the provision of a free appropriate public
education or records relating thereto and a request for action.
001.02H1. The petition shall set forth an
alleged violation or violations that occurred not more than two (2) years
before the date the parent or public agency knew or should have known about the
alleged action that forms the basis of the claim, except that the exceptions to
the timeline described in subsection 004.02 shall apply to the timeline
described in this subsection.
001.02I. Public agency includes the state
educational agency, local educational agencies, educational service agencies,
and any other political subdivisions of the state that are responsible for
providing education to children with disabilities.
001.02I1. Local educational agency (LEA)
means a public board of education or other public authority legally constituted
within the state for either administrative control or direction of, or to
perform a service function for, public elementary or secondary schools in a
city, county, township, school district, or other political subdivision of the
state, or for a combination of school districts or counties as are recognized
in the state as an administrative agency for its public elementary or secondary
schools. The term includes an educational service agency as defined in
subsection
001.02I2 and any
other public institution or agency having administrative control and direction
of a public elementary or secondary school.
001.02I2. Educational service agency (ESA)
means a regional public multiservice agency which is authorized by state law to
develop, manage, and provide services or programs to LEAs and which is
recognized as an administrative agency for purposes of the provision of special
education and related services provided within public elementary and secondary
schools of the state. The term includes any other public institution or agency
having administrative control and direction over a public elementary or
secondary school and includes entities that meet the definition of intermediate
educational unit in section 602(23) of the Individuals With Disabilities
Education Act as in effect prior to June 4, 1997.
001.02J. Day, as used in this Chapter, means
calendar day unless otherwise indicated as business day. Business day means
Monday through Friday, except for federal and state holidays.
001.02K. Serious bodily injury shall have the
meaning given the term under paragraph (3) of Subsection (h) of Section 1365 of
Title 18, United States Code.
