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 92-55-006 - Prehearing Procedures

Universal Citation: 92 NE Admin Rules and Regs ch 55 ยง 006

Current through March 20, 2024

006.01 Prehearing conferences and orders

A hearing officer designated to conduct a hearing may determine whether a prehearing conference will be conducted. If a prehearing conference is not held, a hearing officer for the hearing may issue a prehearing order, based on the pleadings, to regulate the conduct of the proceedings.

006.01A. If a prehearing conference is conducted:
006.01A1. The hearing officer shall set the time and place of the conference and give reasonable written notice to all parties and to all persons who have filed written petitions to intervene in the matter and shall give notice to other persons entitled to notice.

006.01A2. The notice referred to in subsection 006.01A1 shall include the following:
006.01A2(a) The names and mailing addresses of all parties and other persons to whom notice is being given by the hearing officer;

006.01A2(b) The official file or other reference number, the name of the proceeding, and a general description of the subject matter;

006.01A2(c) A statement of the time, place, and nature of the prehearing conference;

006.01A2(d) A statement of the legal authority and jurisdiction under which the prehearing conference and the hearing are to be held;

006.01A2(e) The name, official title, mailing address, and telephone number of the hearing officer for the prehearing conference;

006.01A2(f) A statement that a party who fails to attend or participate in a prehearing conference, hearing, or other stage of a special education contested case or who fails to make a good faith effort to comply with a prehearing order may be held in default under the Administrative Procedure Act unless otherwise precluded by law; and

006.01A2(g) Any other matters that the hearing officer considers desirable to expedite the proceedings.

006.01B. The hearing officer shall conduct a prehearing conference, as may be appropriate, to deal with such matters as exploration of settlement possibilities, preparation of stipulations, clarification of issues, rulings on identity and limitation of the number of witnesses, objections to proffers of evidence, determination of the extent to which direct evidence, rebuttal evidence, or cross-examination will be presented in written form and the extent to which telephone, television, or other electronic means will be used as a substitute for proceedings in person, order of presentation of evidence and cross-examination, rulings regarding issuance of subpoenas, discovery orders, and protective orders, and such other matters as will promote the orderly and prompt conduct of the hearing. The hearing officer shall issue a prehearing order incorporating the matters determined at the prehearing conference.

006.01C. The hearing officer may conduct all or part of the prehearing conference by telephone, television, or other electronic means if each participant in the conference has an opportunity to participate in, to hear, and, if technically feasible, to see the entire proceeding while it is taking place.

006.02 Discovery in special education contested cases

006.02A. The hearing officer, at the request of any party or upon the hearing officer's own motion, may issue subpoenas, discovery orders, and protective orders in accordance with the rules of civil procedure except as may otherwise be prescribed by law. Subpoenas and orders issued under this subsection may be enforced by the district court.

006.02B. Any prehearing motion to compel discovery, motion to quash, motion for protective order or other discovery-related motion shall:
006.02B1. Quote the interrogatory, request, question, or subpoena at issue, or be accompanied by a copy of the interrogatory, request, subpoena or excerpt of a deposition;

006.02B2. State the reasons supporting the motion;

006.02B3. Be accompanied by a statement setting forth the steps or efforts made by the moving party or his or her counsel to resolve by agreement the issues raised and that agreement has not been achieved; and

006.02B4. Be filed with the hearing officer. The moving party must serve copies of all such motions to all parties to the special education contested case and to the Department.

006.02C. Other than is provided in subsection 006.02B4 above, discovery materials need not be filed with the hearing officer or served on the Department.

006.03 Continuances

Except as specified in subsection 007.07C2 for expedited hearings, the hearing officer may, in his or her discretion, grant specific extensions of time or continuances of hearings beyond the forty-five (45) day time limit for rendering a final decision in subsection 004.18 at the timely request of any party for good cause shown. A party must file a written motion for continuance which states in detail the reasons why a continuance is necessary and serve a copy of the motion on all other parties and the Department.

006.03A. Good cause. Good cause for an extension of time or continuance may include, but is not limited to, the following:
006.03A1. Illness of the party, legal counsel or witness;

006.03A2. A change in legal representation; or

006.03A3. Settlement negotiations are underway.

006.04 Amendments

006.04A. A petition may be amended only if the other party consents in writing to such amendment and is given the opportunity to resolve the complaint through a meeting held pursuant to 92 NAC 51-009.11A or if the hearing officer grants permission for a party to amend its petition at any time not later than five (5) days before a due process hearing occurs.

006.04B. The applicable timeline for a due process hearing under this part shall recommence a the time the party files an amended petition, including the timeline under 92 NAC 51-009.11A.

006.04C. A hearing officer may allow, in his or her discretion, the filing of supplemental pleadings alleging facts material to the case occurring after the original pleadings were filed. A hearing officer may also permit amendment of pleadings where a mistake appears or where amendment does not materially change a claim or defense.

006.05 Informal Disposition

Unless otherwise precluded by law, informal disposition may be made of any special education contested case by stipulation, agreed settlement, consent order, or default.

Disclaimer: These regulations may not be the most recent version. Nebraska may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.