Sec. 92-55-001 - General

§ 92-55-001. General

001.01 Application of Rules

Pursuant to Neb. Rev. Stat. § 84-909.01, the Attorney General shall promulgate model rules of procedure appropriate for use by as many agencies as possible. For rules of procedure adopted on or after August 1, 1994, each agency shall adopt as many of the model rules as is practicable under the circumstances. Agencies may adopt regulations which vary from the model rules; however, any agency adopting a rule of procedure that differs from the model rule shall include in the agency's explanatory statement the reasons why the relevant portions of the Attorney General's model rules are impracticable under the circumstances. This Chapter is based upon the Attorney General's model rule for contested cases with modifications to comply with the requirements of the Nebraska Special Education Act (Neb. Rev. Stat. §§ 79-1110 to 79-1184) and the Individuals With Disabilities Education Act ( 20 U.S.C. 1400 to 1487). This Chapter shall apply to all hearings brought by a parent or a public agency pursuant to the Nebraska Special Education Act, Title 92 NAC 51 (Rule 51) or the Individuals With Disabilities Education Act and its implementing regulations which relate to the identification, evaluation or educational placement of a child with a disability, or the provision of a free appropriate public education to a child; and only to such hearings.

001.02 Definitions

The following definitions shall apply as used throughout Chapter 55 of these rules and regulations.

001.02A. Commissioner shall mean the State Commissioner of Education.

001.02B. Special education contested case shall mean a proceeding before a hearing officer in which the legal rights, duties, or privileges of specific parties are required by the Nebraska Special Education Act or the Individuals With Disabilities Education Act to be determined after a hearing.

001.02C. Department shall mean the Nebraska Department of Education, which is comprised of the State Board of Education and the Commissioner of Education.

001.02D. Ex parte communication shall mean an oral or written communication which is not on the record in a special education contested case with respect to which reasonable notice to all parties was not given. Ex parte communication shall not include:

001.02D1. Communications which do not pertain to the merits of a special education contested case;

001.02D2. Communications required for the disposition of ex parte matters as authorized by law; and,

001.02D3. Communications to which all parties have given consent.

001.02E. Hearing officer shall mean the person or persons conducting a special education hearing, contested case, or other proceeding pursuant to the Nebraska Special Education Act or the Individuals With Disabilities Education Act, whether designated as the presiding officer, administrative law judge, or some other title designation.

001.02F. Parent means:

001.02F1. A natural, adoptive or foster parent of a child;

001.02F2. A guardian but not the State if the child is a ward of the State;

001.02F3. A person acting in the place of a natural or adoptive parent (including a grandparent, stepparent or other relative with whom the child lives; or a person who is legally responsible for the child's welfare); or

001.02F4. A surrogate parent who has been appointed in accordance with 92 NAC 51-009.08.

001.02G. Party means the parent of a child with a disability, a competent student of the age of majority with a disability, or a public agency by or against whom a special education contested case is brought or a person allowed to intervene in a special education contested case. The Department shall be named as a party if, and only if, the petition contains an allegation that the Department has acted improperly or has improperly failed to act with respect to its duties under Neb. Rev. Stat. § 79-1152.

001.02H. Petition means the initial document filed with the Department and served on the other party that sets forth a claim related to the initiation, change, or termination or the refusal to initiate, change, or terminate the identification, evaluation, or educational placement of a child with a disability or the provision of a free appropriate public education or records relating thereto and a request for action.

001.02H1. The petition shall set forth an alleged violation or violations that occurred not more than two (2) years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the claim, except that the exceptions to the timeline described in subsection 004.02 shall apply to the timeline described in this subsection.

001.02I. Public agency includes the state educational agency, local educational agencies, educational service agencies, and any other political subdivisions of the state that are responsible for providing education to children with disabilities.

001.02I1. Local educational agency (LEA) means a public board of education or other public authority legally constituted within the state for either administrative control or direction of, or to perform a service function for, public elementary or secondary schools in a city, county, township, school district, or other political subdivision of the state, or for a combination of school districts or counties as are recognized in the state as an administrative agency for its public elementary or secondary schools. The term includes an educational service agency as defined in subsection 001.02I2 and any other public institution or agency having administrative control and direction of a public elementary or secondary school.

001.02I2. Educational service agency (ESA) means a regional public multiservice agency which is authorized by state law to develop, manage, and provide services or programs to LEAs and which is recognized as an administrative agency for purposes of the provision of special education and related services provided within public elementary and secondary schools of the state. The term includes any other public institution or agency having administrative control and direction over a public elementary or secondary school and includes entities that meet the definition of intermediate educational unit in section 602(23) of the Individuals With Disabilities Education Act as in effect prior to June 4, 1997.

001.02J. Day, as used in this Chapter, means calendar day unless otherwise indicated as business day. Business day means Monday through Friday, except for federal and state holidays.

001.02K. Serious bodily injury shall have the meaning given the term under paragraph (3) of Subsection (h) of Section 1365 of Title 18, United States Code.

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