Nebraska Administrative Code
Topic - EDUCATION, DEPARTMENT OF
Title 92 - NEBRASKA DEPARTMENT OF EDUCATION
Chapter 55 - RULES OF PRACTICE AND PROCEDURE FOR DUE PROCESS HEARINGS IN SPECIAL EDUCATION CONTESTED CASES
Section 92-55-004 - Commencement of a special education contested case

Universal Citation: 92 NE Admin Rules and Regs ch 55 ยง 004

Current through March 20, 2024

004.01 A parent or local educational agency shall request a hearing by filing a petition under this Chapter within two (2) years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the petition.

004.02 The timeline described in subsection 004.01 shall not apply to a parent if the parent was prevented from requesting the hearing due to:

004.02A. specific misrepresentations by the local educational agency that it had resolved the problem form the basis of the petition, or

004.02B. the local educational agency's withholding or information from parent that was required under this chapter to be provided to the parent.

004.03 The special education contested case begins with the filing of a petition with the Department and the service of a copy of the petition on the other party. The petition is the initial document filed with the Department and served on the other party that sets forth a claim and request for action. The petition shall remain confidential. A sample petition (request for a hearing) is available from the Nebraska Department of Education Office of Special Education.

004.04 A party to a special education contested case shall be the parent or public agency by or against whom a special education contested case is brought or a parent or public agency allowed to intervene in a special education contested case.

004.05 A party may appear on his or her own behalf in a special education contested case proceeding or may be represented by an attorney or other representative as permitted by law.

004.06 The pleadings in a special education contested case may include a petition, answer, reply, notice, motion, stipulation, objection or order or other formal written document filed in a proceeding before the Department. Any pleading filed in a special education contested case shall meet the following requirements:

004.06A. The pleading shall contain a heading specifying the name of the Department and the title or nature of the pleading, shall state material factual allegations and state concisely the action that is being requested shall contain the name and address of the petitioner and respondent, and shall be signed by the party filing the pleading, or when represented by an attorney, the signature of that attorney.
004.06A1. Attorneys shall also include their address, telephone number and bar number.

004.06A2. The initial petition shall contain, in addition, the following information which shall remain confidential:
004.06A2(a) . The name of the child whose special education is the subject of the hearing, the address of the residence of the child (or available contact information in the case of a homeless child), and the name of the school the child is attending;

004.06A2(b) . A description of the nature of the problem of the child relating to the proposed or refused initiation of, or change in, the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to the child including facts relating to the problem; and,

004.06A2(c) . A proposed resolution of the problem to the extent known and available to the party at the time.

004.06A3. A party may not have a due process hearing until the party, or the attorney representing the party, files and serves on the other party a copy of a petition meeting the requirements of subsection 004.06A2.

004.06B. All pleadings shall be made on white, letter-sized (8 1/2 x 11) paper and shall be legibly typewritten, photostatically reproduced, printed or handwritten. If handwritten, a pleading must be written in ink.

004.07 The initial petition shall be filed with the Department at its official office, at the State Office Building, 6th Floor, 301 Centennial Mall South, Lincoln, Nebraska, 68509 and a copy of the petition shall be served on the other party. Filing may be accomplished by personal delivery or mail and will be received during regular office hours of the Department, which are 8:00 a.m. to 5:00 p.m. Central Time, Monday through Friday, except state holidays. All subsequent pleadings shall be filed with the hearing officer as directed by the hearing officer. Service of the petition on the other party shall be by U.S. mail return receipt requested. Proof of service by return receipt shall be filed with the Department and the hearing officer.

004.08 Upon receipt of the initial petition, the Department shall assign the petition to a hearing officer and send a notice of assignment to the hearing officer with the petition attached. The Department shall also serve a notice to file an answer and a copy of the notice of assignment and of the petition on each respondent listed in the petition personally or by first-class or certified mail and send copies to the hearing officer and petitioner. Written proof of such service shall be filed with the Hearing Officer. Except as provided in subsection 004.09, each respondent must within ten (10) days of receiving the petition, send to the petitioner and file with the hearing officer an answer that specifically addresses the issues raised in the petition.

004.09 If a local education agency has not sent a prior written notice to the parent as required by subsection 009.03B of Rule 51 regarding the subject matter contained in the parent's petition, such local education agency shall, within ten (10) days of receiving the petition, send to the parent and file with the hearing officer an answer that shall include:

004.09A. An explanation of why the agency proposed or refused to take the action raised in the petition;

004.09B. A description of other options that the IEP Team considered and the reasons why those options were rejected;

004.09C. A description of each evaluation procedure, assessment, record, or report the agency used as the basis for the proposed or refused action; and

004.09D. A description of the factors that are relevant to the agency's proposal or refusal.

004.10 The petition shall be deemed sufficient unless the party receiving service of a copy of the petition notifies the hearing officer and the other party in writing that the receiving party believes the petition has not met the requirements of subsection 004.06A2.

004.11 The party providing a hearing officer notification under subsection 004.10 shall provide the notification within fifteen (15) days of receiving a copy of the petition.

004.12 Within five (5) days of receipt of the notification provided under Section 004.11, the hearing officer shall make a determination on the face of the petition of whether the petition meets the requirements of subsection 004.06A2, and shall immediately notify the parties in writing of such determination.

004.13 An answer filed by a local education agency pursuant to subsection 004.09 shall not be construed to preclude such local educational agency from asserting that the parent's petition was insufficient where appropriate.

004.14 All pleadings subsequent to the initial petition shall be served by the party filing such pleading upon all attorneys of record or other representatives of record, upon all unrepresented parties, and upon the Department. Service shall be made personally or by first-class or certified mail. Written proof of such service shall be filed with the hearing officer.

004.15 Subsection 009.11 of Rule 51 (92 NAC 51) requires that within fifteen (15) days prior to the opportunity for an impartial due process hearing under this Chapter, the local educational agency shall convene a meeting with the parents and the relevant member or members of the IEP Team who have specific knowledge of the facts identified in the complaint for the purpose of resolving the issues raised in the complaint.

004.16 If the local educational agency has not resolved the issues raised in the petition to the satisfaction of the parents within thirty (30) days of the receipt of the petition, a hearing date shall be set by the hearing officer and all of the applicable timelines for a due process hearing under this Chapter shall commence. A written notice of the time and place of hearing and the name of the hearing officer shall be served by the hearing officer upon all attorneys of record or other representatives of record and upon all unrepresented parties. The notice must include a proof of such service and shall be filed with the hearing officer.

004.17 In computing time prescribed or allowed by this Chapter of these rules and regulations or by any applicable statute in which the method of computing time is not specifically provided, days will be computed by excluding the day of the act or event and including the last day of the period.

004.18 Within forty-five (45) days after the receipt of a petition by the Department, the hearing officer shall prepare a final decision and order directing such action as may be necessary and mail a copy of the decision and order to each of the parties and to the Commissioner in the manner required by subsection 008.04.

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