Nebraska Administrative Code
Topic - HEALTH AND HUMAN SERVICES SYSTEM
Title 184 - NEBRASKA DEPARTMENT OF HEALTH
Chapter 1 - RULES OF PRACTICE AND PROCEDURE OF THE DEPARTMENT OF HEALTH FOR ADMINISTRATIVE HEARINGS
Section 184-1-011 - EVIDENCE

Universal Citation: 184 NE Admin Rules and Regs ch 1 ยง 011

Current through March 20, 2024

011.01 Admissibility Generally.

In contested cases, the Department may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs. It shall give effect to the rules of privilege recognized by law. It may exclude incompetent, irrelevant, immaterial, and unduly repetitious or cumulative evidence. The rules of evidence applicable in civil actions in district courts of this state will not be applied unless requested by a party as set forth in 010.15 of these regulations.

011.01A Privileges. When an issue of constitutional or statutory privilege arises at hearing, the Hearing Officer may require briefs to support the assertion or to address any issues of waiver of a privilege and, if necessary for orderly progression of the case, continue the hearing until privilege issues are resolved.

011.02 Affidavits.

Affidavits may be used in evidence as permitted by law. Affidavits shall

011.02A Contain the caption of the case;

011.02B Contain statements of fact within the personal knowledge of the person making the affidavit (Affiant);

011.02C Be sworn to before a Notary Public; and

011.02D Be signed by the Affiant.

011.03 Evidence Made Part of the Record

All records and documents shall be offered and made a part of the record in the case. Relevant portions of books, papers or documents shall be plainly designated and distinguished from all irrelevant portions before the relevant material may be entered into the record. When irrelevant material in a document is so voluminous it will encumber the record, the document may be marked for identification and the relevant material read into the record. All exhibits must be marked and shown to the opposing party or counsel before being offered into evidence.

011.04 Substitution of Copies.

Duplicate copies may be substituted for original documents marked and made part of the record with the permission of the Director or Hearing Officer.

011.05 Official Records.

Certified copies of official records of the Department or of public records of other public bodies may be accepted in evidence without other evidence of their authenticity. Any party desiring to introduce into evidence any part or parts of public records of the Department shall obtain copies prior to hearing.

011.05A Rules and Regulations. The filing of any rule or regulation pursuant to the Administrative Procedure Act, if certified and filed with the Secretary of State, shall be received as prima facie evidence of the existence of such rule or regulation, and that such rule or regulation is as described in the permanent file copy of the Secretary of State. Any rule or regulation so certified and filed shall be admitted into evidence without further foundation.

011.06 Evidence under a Protective Order.

Evidence subject to a protective order may be received in camera or under such conditions as may be appropriate to preserve confidentiality. That portion of the record pertaining to evidence under a protective order may be sealed to be opened only by the Director or other person authorized to recommend or render a decision in the case or by a court of competent jurisdiction in any appeal.

011.07 Examination of Witnesses.

Every party shall have the right to present testimony of his own witnesses by direct examination and to cross-examination of witnesses who testify on behalf of the opposing party.

011.08 Rebuttal Evidence.

Every party shall have the right to submit rebuttal evidence.

011.09 Objections.

011.09A To Hearing Testimony. In general, objections should be made after the question but before the answer if the question calls for inadmissible matter or that the question is in improper form. When the question is not objectionable, but a witness's answer emerges as inadmissible, a motion to strike must be made immediately after the answer.

011.09B To Documentary or Tangible Evidence. An objection to a document should be made at the time the document is offered into evidence.

011.10 Offers of Proof.

When an objection by the opposing party or counsel is made and sustained by the Hearing Officer, the offering party may request permission to make an offer of proof. An offer of proof may be made either by proceeding with examination of the witness by question and answer or by stating, in narrative form, what the witness would have testified had he or she been permitted to do so. The party or counsel should clearly state in the record when the offer begins and ends. A marked, authenticated, and offered item of documentary or other tangible evidence is its own offer of proof.

011.11 Official Notice.

The Director or Hearing Officer may take official notice of cognizable facts. In addition, the Director or other person authorized to render a final decision in the case may take official notice of general, technical, or scientific facts within the Department's specialized knowledge. The record shall contain a written record of everything officially noticed.

011.11A Cognizable Facts. Cognizable facts must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the Department or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

011.11B When Taken. The Director or Hearing Officer may take official notice, whether requested or not, and shall take notice if requested by a party and supplied with the necessary information.

011.11C Notice to Parties. Parties shall be notified that official notice will be taken:
011.11C1 before hearing;

011.11C2 during hearing;

011.11C3 by reference in a preliminary report; or

011.11C4 otherwise of the material so noticed.

011.11D Opportunity to Contest. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking official notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after official notice has been taken.

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