Current through March 20, 2024
An individual has the right to appeal decisions made by the
Department with respect to State General Fund services as follows:
(A) The denial, change, or termination of
eligibility of the individual for specialized services;
(B) The evaluation of the
individual;
(C) The provision of
specialized services to the individual;
(D) The amount of the individual's authorized
funding; or
(E) The records
relating to the individual.
004.01
An individual is not entitled to appeal when state or federal law requires
automatic changes adversely affecting some or all classes of persons applying
for or receiving services under the Developmental Disabilities Services
Act.
004.02
TIMELINESS
OF APPEAL. In order to exercise the right to appeal, an individual
must file a formal appeal, within 90 days of the mailing date of the decision
being contested. If the individual does not file an appeal, the decision
becomes final on the 90th day after the mailing date of the decision.
004.03
REQUESTING A
HEARING. In order to exercise the right to a hearing, the
individual must file an appeal with the Department. The appeal may be made on a
form provided by the Department for such purpose or in another writing that
contains at least the following information:
(1) The name, address, and phone number of
the appellant; the name, address, and phone number of the legal representative,
if applicable; and the signature of the appellant or legal
representative;
(2) The specific
decision contested;
(3) The date of
the decision contested; and
(4) Any
other information that the individual wants to be included at the
hearing.
004.03(A) If the appeal
fails to include any of the above information, it will be ineffective to
initiate the hearing process and the Department may either reject the appeal or
request additional information from the individual.
004.03(B) In order to be effective, the
appeal must be either mailed, sent via electronic mail, submitted by telephone
or online portal, or hand delivered to the Department.
004.03(C) If mailed, the appeal will be
deemed to be received by the Department on the date of the postmark. If hand
delivered, emailed, or submitted via online portal or telephone, the appeal
will be deemed to be received by the Department on the actual date of
receipt.
004.04
STAYING THE DECISION OR ACTION. If an individual
appeals within 10 days of a notice of decision being mailed, it is assumed that
the individual is requesting that any ongoing assistance that is the subject of
the appeal will continue during the pendency of the appeal unless the
individual indicates a contrary intent.
004.05
HEARING
OFFICER. Upon receipt of an appeal, the Director of the Division
of Developmental Disabilities will assign the matter to a hearing officer who
will receive all subsequent pleadings and will conduct the hearing.
004.05(A) Any party may challenge a hearing
officer on the grounds that the hearing officer has a conflict of interest. The
challenge may be made to the hearing officer on, or before, the date set for
hearing. The hearing officer may hear and decide the challenge or may refer the
matter to the Director of the Division of Developmental Disabilities. If the
hearing officer does not hear the challenge immediately, the hearing on the
appeal will be continued until the challenge is resolved. The hearing officer
will notify all parties of the new hearing date by mail at least five business
days before the date of the hearing.
004.05(B) The Director of the Division of
Developmental Disabilities may substitute a hearing officer for good cause. The
substitution of a hearing officer is reason for a continuance.
004.06
AUTHORITY AND
DUTIES OF THE HEARING OFFICER. A hearing officer is assigned to
each appeal and has the duty to:
(1) Conduct
full, fair, and impartial hearings;
(2) Take appropriate action to avoid
unnecessary delay in the disposition of proceedings; and
(3) Maintain order during the
hearing.
004.06(A) The hearing
officer has all the powers necessary to carry out his or her duties, including
to:
(i) Administer oaths and
affirmations;
(ii) Issue subpoenas
as authorized by law to compel the appearance of witnesses and the production
of relevant evidence;
(iii) Compel
discovery and to impose appropriate sanctions for failure to make
discovery;
(iv) Rule upon offers of
proof and receive relevant, competent, and probative evidence;
(v) Regulate the course of the proceedings in
the conduct of the parties and their representatives;
(vi) Hold conferences for simplification of
the issues, settlement of the proceedings, or any other proper
purpose;
(vii) Consider and rule
orally or in writing, upon all procedural and other motions appropriate in
adjudicative proceedings, including the application of, or exclusion from, the
stay of an action or decision on appeal;
(viii) Establish the time for filing
briefs;
(ix) Grant a specific
extension of time, at the request of either party for good cause
shown;
(x) Produce evidence on his
or her own motion;
(xi) Exclude
people from the hearing;
(xii) See
that facts are fully developed including witness examination and cross
examination, if needed; and
(xiii)
Take any other action consistent with the purpose of the law and consistent
with these rules.
004.07
THE HEARING.
The hearing officer will set the date, time, and location of the hearing.
004.07(A) Unless as otherwise specified in
these regulations or applicable statutes, the hearing officer and all parties
may serve all motions, notices, pleadings, orders, or other papers personally
or by mail.
004.07(B) The hearing
officer and all parties must serve all parties who have entered their
appearances with all notices, motions, pleadings, orders, or other papers
filed. Service on an attorney of record is service on the party represented by
the attorney.
004.07(C)
PRESENTATION OF EVIDENCE. The Nebraska Evidence Rules,
Neb. Rev. Stat. §§
27-101
et seq., will not apply unless invoked in writing by either party at least ten
business days before the hearing. However, the hearing officer will admit
competent, relevant, and material evidence, but will exclude evidence that is
incompetent, irrelevant, immaterial, or unduly repetitious.
004.07(C)(i) Any party invoking the Nebraska
Evidence Rules is liable for the payment of all costs related thereto,
including the cost of court reporting services, which the party is responsible
for procuring for the hearing.
004.07(D)
ORDER OF
PRESENTATION. At the hearing, the parties will present evidence on
the issues raised in the appeal and any subsequent pleadings.
004.07(D)(i) The order in which evidence and
testimony is presented will be at the discretion of the hearing
officer.
004.07(D)(ii) The
appellant has the burden of persuasion throughout the hearing.
004.07(D)(iii) The appellant must prove his
or her case by a preponderance of the evidence.
004.07(E)
RIGHTS. A
party at a hearing has the right to:
(i) Be
accompanied and advised by counsel and by individuals with special knowledge or
training with respect to needs of persons with developmental disabilities,
request subpoenas, and issue discovery as authorized by law to compel the
appearance of witnesses and the production of relevant evidence;
(ii) Present evidence and confront,
cross-examine, and compel the attendance of witnesses;
(iii) Prohibit the introduction of any
evidence at the hearing that has not been disclosed to that party at least five
calendar days before the hearing;
(iv) Obtain a written or electronic verbatim
record of the hearing at his or her cost; and
(v)
Obtain written findings of fact and decisions from the Director
of the Division of Developmental Disabilities.
004.07(F)
WITNESSES.
The hearing officer may issue subpoenas to compel witnesses to attend or
produce evidence. Witnesses are entitled to the fees and expenses as allowed in
District Court.
004.07(F)(i) The Director of
the Division of Developmental Disabilities may certify failure to respond to a
subpoena to the District Court of Lancaster County for enforcement or for
punishment for contempt of the District Court.
004.07(F)(ii) Each party is responsible for
the payment of witness fees and mileage, including the fees and expenses of
expert witnesses that the party calls.
004.07(F)(iii) The Department will provide
personnel as witnesses when served with a subpoena without payment of witness
fees or mileage fees.
004.07(G) At the completion of the
proceedings, the hearing officer will prepare a report based on the evidence
presented containing recommendations for the Director of the Division of
Developmental Disabilities to make findings of fact and conclusions of law.
004.08
JUDICIAL REVIEW. Any party aggrieved by the final
decision and order of the Director of the Division of Developmental
Disabilities is entitled to judicial review under applicable state
law.
