Current through September 17, 2024
013.01
CONSOLIDATION. Whenever two or more contested cases
are pending between the same or related parties or involving substantially the
same facts or issues of law, the actions may be consolidated upon a motion to
show cause why the cases should not be consolidated made by a party or the
hearing officer. If good cause is not shown, the actions will be
consolidated.
013.02
DISCOVERY. Discovery may be made in contested cases in
the same manner as in civil actions in Nebraska district courts. Discovery will
be governed by the Nebraska Rules of Discovery, except that responses, answers,
or objections to discovery must be filed within 15 days of the date of service
of the request unless the time for discovery has been extended or shortened by
the hearing officer upon motion of a party for good cause or upon the hearing
officer's own motion. Parties need not file copies of discovery requests until
objection is made or a motion to compel discovery is filed, but they must file
a notice of service that includes the caption of the case and meets the
requirements for a certificate of service in section 012.01(E).
013.03
ACCESS TO
EXAMINATIONS. Persons whose applications for credentials or
permits are denied because they failed a required examination may review the
examination questions and any of their own answers marked wrong or given
partial credit subject to the following conditions:
(A) Review may take place only after results
of the examination have been issued;
(B) Applicants must provide photographic
identification to Division representatives;
(C) Review must take place in the Division's
offices during regular business hours;
(D) Review may take place only in the
presence of Division representatives Representatives of the governing board may
also be present;
(E) Neither
examination nor answer sheet may be taken from the review site;
(F) Neither examination questions nor answers
may be copied. Notes may be made but are limited to the question number and
objections, challenges, or concerns about the question or answer. Notes will be
reviewed and may be copied or confiscated if they are likely to compromise the
examination's integrity;
(G)
Division and board representatives may not be asked or answer questions about
the examination or examination answers Objections, challenges, and concerns may
be submitted in writing for consideration; and
(H) Examinees may have their attorneys
present during review or provide written authorization for their attorney or
other designee to review the examination and their answers in their absence.
Such review is subject to the same conditions and terms as review by the
examinee.
013.04
DISCOVERY OF EXAMINATION DURING APPEALS. Unsuccessful
examinees appealing the denial of credentials or permits because they failed
the required examination may review the examination and their answers as
provided in this chapter, as well as the model answers for questions marked
wrong or given partial credit on their answer sheets. No copies of examination
materials will be provided except upon order of the Director or court of
competent jurisdiction. If the number of wrong answers is so great that release
of copies of such records will jeopardize the examination's security, or if
access to or copies of the questions are sought, the Director may order
disclosure of the relevant records under such conditions as are warranted in
the circumstances.
013.05
HEARINGS ON MOTIONS. Motions, special appearances, and
similar pleadings must be in writing and conform to the requirements for
pleadings in this chapter. They must be set for hearing before the hearing
officer if a party requests hearing or the hearing officer so orders Hearings
will be held within a reasonable time given the nature of the motion or
pleading, case status, and scheduled date for formal hearing.
013.05(A)
ASSERTION OF
PRIVILEGES. Parties who intend to assert constitutional or
statutory privileges on their own behalf or on behalf of others to refuse to
testify, disclose any matter, produce any object or writing, or prevent another
from being a witness or making other disclosure must raise the issue by motion,
notice, objection, or pleading as necessary to preserve the privilege as
provided by law. Briefs must accompany the motion, objection, or
pleading.
013.05(B)
PROCESS.013.05(B)(i)
OBTAINING HEARING DATE. Parties intending to file
motions or similar pleadings for which a hearing is sought may contact the
Division to request a hearing date and include a notice of hearing in the
pleading.
013.05(B)(ii)
NOTICE OF HEARING. The notice of hearing must include
the date, time, and location of hearing, and the subject matter of the hearing,
if not included in the pleading. At least 3 days' advance notice must be
provided to the other party unless the parties agree to a lesser
time.
013.05(B)(iii)
CONDUCT OF HEARINGS. Hearings may be held in person or
by teleconference. They may be made on the record if so directed by the hearing
officer or requested by a party. Parties who wish copies of the transcription
of the record of the hearing must obtain the same from a court reporter at
their own cost.
013.06
SUBPOENAS.
013.06(A)
APPLICATIONS. Subpoenas for the attendance of a
witness or production of documents or things will be issued by hearing officer
upon application by praecipe by a party. The praecipe for subpoena must:
(i) Contain the case's caption;
(ii) Name the person to be served;
(iii) State the addresses at which the person
to be served may be found;
(iv)
Specify the method of service, if service by the Division is desired;
(v) State the reason for subpoena;
(vi) Specify the date, time, and location for
the witness to appear;
(vii)
Designate the books, papers, documents, or things to be produced, when the
subpoena involves the production of documents or things (subpoena duces
tecum);
(viii) Be accompanied by a
draft made payable to the witness in an amount equal to the statutory fee for
one day's attendance plus mileage, computed at the rate allowed by law for
travel by the most direct route from the witness's place of residence to the
designated place for hearing or deposition and back, for attachment to the
subpoena, except when the subpoena is issued at the reqest of a state agency or
the witness is a Division employee;
(1) When
subpoenas are issued at the request of state agencies, witnesses are not
entitled to demand witness and mileage fees, but rather are required to obey
the subpoena if, at the time of service, they are furnished a statement
advising them of the rate of travel fees allowable and the fee for each day's
attendance and that they will be paid at such fees following attendance;
and
(2) Division employees will
appear without payment of witness or mileage fees, subject to quashing of the
subpoeana, except that they must be compensated by the party who requests the
subpoena for actual and necessary expenses when required to travel outside
their county of residence; and
(ix) Be accompanied by a draft made payable
to the Department of Health and Human Services in an amount sufficient to pay
the costs of service for the method of service designated, if service by the
Division is requested.
013.06(B)
SERVICE.
Parties requesting issuance of a subpoena may make their own arrangements for
service, or request that the Division make arrangements for service.
013.06(B)(i)
MAIL OR OTHER
SERVICE. Subpoenas may be served by a means permitted by
law.
013.06(B)(ii)
WITNESSES. Witnesses may waive service and arrange to
pick up a subpoena as agreed to with the party.
013.06(C)
PROOF OF
SERVICE. Service by other than certified mail must be shown by a
proof of service meeting the requirements of section 009.01(E)(iii). When
service is made by certified mail, the return must be filed with a notice of
filing.
013.06(D)
COMPLIANCE. Unless the subpoena is quashed, persons
must appear at the time, date, and location specified in the subpoena and
produce any documents or items as commanded.
013.06(E)
MOTIONS TO
QUASH. Motions to quash may be made in the same manner as in any
civil action in Nebraska. Such motion is not available in asserting a fifth
amendment privilege against self-incrimination.
013.07
CONTINUANCES.
Continuances may be granted as provided in 53 NAC 4-006.03.
013.08
BRIEFS.
Parties may submit briefs in support of motions or applications for relief. The
hearing officer may require that briefs be filed simultaneously or according to
a prescribed schedule.
013.09
CASE PROGRESSION. The hearing officer may prescribe a
schedules for the progression of cases, including deadlines for filing motions,
amending pleadings, completing discovery, conferences before hearing and final
prehearing conferences, and may also include other matters appropriate in the
circumstances.
013.10
PREHEARING CONFERENCES. Prehearing conference
procedures are governed by 53 NAC 5-006.
013.11
DISMISSAL. A
proceeding may be dismissed by order of the hearing officer, upon motion of the
other party or the hearing officer's own motion, when the party with the burden
of proof fails to appear at hearing; by order of the hearing officer, upon
motion by the plaintiff, appellant, or petitioner or upon joint stipulation of
the parties for withdrawal of the action, when made prior to final submission
of the case; by order of the hearing officer after hearing on the merits under
Neb. Rev. Stat. §
38-196; by order of the hearing
officer, upon motion of a party or joint stipulation of the parties, when
probation or the terms and conditions of an order based on a settlement
agreement or plan of correction have been satisfied; by the plaintiff before
judgment; or as otherwise provided by law.
013.11(A)
ADDITIONAL
REQUIREMENTS. When dismissal of an action requires notices to a
board and the board's opportunity for input and consultation, statements
affirming that the requirements of Neb. Rev. Stat. §
38-190 have been met in the motion
or notice of dismissal.
013.11(B)
PREJUDICE. Actions will be dismissed without prejudice
to future actions except when the Division's jurisdiction depends upon a party
requesting a hearing within a specified time to prevent an initial decision
from becoming final or as otherwise provided by law. In such cases, dismissal
will be entered with prejudice.
013.11(C)
MOTIONS.
Motions must meet the requirements of section 012 for pleadings and section
012.08 for motions and must include at least a brief statement of the grounds
for the motion.
013.11(D)
HEARINGS. Hearings must be held on motions for
dismissal only upon the request of a party or when ordered by the hearing
officer. No hearing will be held when a party is entitled to dismissal by
right.
013.12
RULES OF EVIDENCE. The Division will not be bound to
follow the Rules of Evidence applicable in district courts of this state unless
a party so requests. Such requests are subject to the requirements of 53 NAC
4-007.02B.
013.13
FILING AND SERVING EXHIBITS. Upon demand by opposing
parties or by order of the hearing officer, parties proposing to introduce
exhibits into evidence in a proceeding must serve copies of the exhibits upon
the opposing party and the Division not less than 3 working days in advance of
hearing. If a party fails to furnish an exhibit upon demand, it will be
excluded from the hearing unless good cause is shown for the failure to furnish
the same. This section does not apply to exhibits to be offered for impeachment
purposes only.
013.14
SEQUESTRATION OF WITNESSES. Upon the written request
of a party made not less than 3 working days in advance of hearing or the
hearing officer's own motion, the hearing officer will order witnesses excluded
from the hearing room, except that the hearing officer may not exclude a party
who is a natural person; an officer or employee of a party that is not a
natural person who is specifically designated as that party's representative;
or an expert or other person whose presence is shown by a party to be essential
to presentation of the party's case.
013.15
HEARINGS BY TELEPHONE OR
ELECTRONIC MEANS. The evidentiary hearing on the merits may be
conducted entirely or partially by telephone or other electronic means upon the
request of a party. Requests must be made by motion in writing at least 10 days
prior to hearing and will be approved if each participant in the hearing has an
opportunity to participate in, hear, and if technically feasible, see the
entire proceeding while it is taking.
