Nebraska Administrative Code
Topic - EDUCATION, DEPARTMENT OF
Title 92 - NEBRASKA DEPARTMENT OF EDUCATION
Chapter 71 - PROCEDURES FOR FORMAL REVIEW OF VOCATIONAL REHABILITATION DETERMINATIONS
Section 92-71-007 - Prehearing Procedures

Universal Citation: 92 NE Admin Rules and Regs ch 71 ยง 007

Current through March 20, 2024

007.01 Prehearing conferences and orders

A hearing officer designated to conduct a hearing may hold a prehearing conference at the request of either party or on his or her own order. 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.

007.01A If a prehearing conference is conducted:
007.01A1 The hearing officer shall promptly notify the Director and the parties of the determination that a prehearing conference will be conducted. The Director may assign another hearing officer for the prehearing conference or the initial hearing officer may hold the pre-hearing conference; and

007.01A2 The hearing officer for the prehearing conference 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. The Director shall give notice to other persons entitled to notice.

007.01A3 The notice referred to in subsection 007.01A2 shall include the following:
007.01A3(a) The names and mailing addresses of all parties and other persons to whom notice is being given by the hearing officer;

007.01A3(b) The official file or other reference number, the name of the proceeding, and a general description of the subject matter;

007.01A3(c) A statement of the time, place, and nature of the prehearing conference;

007.01A3(d) A statement of the legal authority and jurisdiction under which the prehearing conference and the hearing are to be held;

007.01A3(e) The name, official title, mailing address, and telephone number of the hearing officer for the prehearing conference;

007.01A3(f) A statement that a party who fails to attend or participate in a prehearing conference, hearing, or other stage of a 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; and

007.01A3(g) Any other matters that the hearing officer considers desirable to expedite the proceedings.

007.01B 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.

007.01C 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.

007.02 Discovery in contested cases

007.02A The hearing officer or a designee, 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.

007.02B Any prehearing motion to compel discovery, motion to quash, motion for protective order or other discovery-related motion shall:
007.02B1 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;

007.02B2 State the reasons supporting the motion;

007.02B3 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

007.02B4 Be filed with the hearing officer with a copy to the Director. The moving party must also serve copies of all such motions to all parties to the contested case.

007.02C Other than is provided in subsection 007.02B4 above, copies of discovery materials need not be filed with the Director.

007.03 Continuances

Except for the time limitation in subsection 004.10, the hearing officer may, in his or her discretion, grant reasonable extensions of time or continuances of hearings 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.

007.03A Good cause. Good cause for an extension of time or continuance may include, but is not limited to, the following:
007.03A1 Illness of the party, legal counsel, representative, or witness;

007.03A2 A change in legal representation; or

007.03A3 Settlement negotiations are underway.

007.04 Amendments

007.04A A petition may be amended at any time before an answer is filed or is due if notice is given to the respondent or his or her attorney. In all other cases, a petitioner must request permission to amend from the hearing officer.

007.04B A hearing officer may also 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.

007.05 Informal Disposition

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

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