92 Neb. Admin. Code, ch. 71, § 004 - Commencement of a contested case

004.01 When an individual with a disability, who is an applicant for, or recipient of, Vocational Rehabilitation services, is dissatisfied with a written determination made by Vocational Rehabilitation personnel, they may obtain a review of the determination by filing a petition within thirty (30) calendar days from the date they received the written determination.

004.02 The contested case begins with the filing of a petition and request for hearing with the Director at his or her official office, at the Nebraska Department of Education, 301 Centennial Mall South, 6th Floor, Lincoln, Nebraska 68509-4987. Filing may be accomplished by personal delivery or mail and will be received during regular office hours of the Department, which are 8:00 a.m. to 5:00 p.m., Central Time, Monday through Friday, except state holidays. The petition is the initial document filed with the Director that sets forth a claim and request for action by the Department.

004.03 A party to a contested case shall be the person by or against whom a contested case is brought or a person allowed to intervene in a contested case.

004.04 A party may appear on his or her own behalf in a contested case proceeding or may be represented by an attorney or other representative as permitted by law.

004.05 The pleadings in a contested case may include a petition, answer, reply, notice, motion, stipulation, objection or order or other formal written document filed in a proceeding before the Department. Any pleading filed in a contested case shall meet the following requirements:

004.05A The pleading shall contain a heading specifying the name of the Department and the title or nature of the pleading, shall state material factual allegations and state concisely the action the Department is being requested to take, shall contain the name and address of the petitioner, and shall be signed by the party filing the pleading, or when represented by an attorney, the signature of that attorney. A sample petition is contained in Appendix A.

004.05A1 Attorneys shall also include their address, telephone number and bar number.

004.05A2 The initial petition shall also contain the name and address of the respondent and shall include as an attachment a copy of the written determination with which the petitioner is dissatisfied. The petition may be filed on an optional form provided in Appendix A.

004.05B All pleadings shall be made on white, letter-sized ( 8.5 x 11) paper and shall be legibly typewritten, photostatically reproduced, printed or handwritten. If handwritten, a pleading must be legibly written in ink.

004.06 If the petition appears to comply with the procedural requirements of 004.05, the Director shall appoint a hearing officer selected pursuant to Section 005 and Section 006 of this Chapter, to hear the contested case. The Director shall send a Notice of Appointment to the hearing officer with the petition attached and a copy to the petitioner and respondent.

004.07 All pleadings subsequent to the petition shall be filed with the hearing officer, with copies sent to the Director at his or her official office. Filing of pleadings and copies may be accomplished by personal delivery or mail to the hearing officer's address and to the Director for Vocational Rehabilitation, Nebraska Department of Education, 301 Centennial Mall South, 6th Floor, Lincoln, Nebraska 68509-4987 and will be received during regular office hours of the Department.

004.08 After appointment of the hearing officer, the Director shall serve a copy of the petition and a Notice to File Responsive Pleading on each respondent listed in the petition personally or by first-class or certified mail.

Written proof of such service shall be filed with the Director. Each respondent who chooses to file a responsive pleading must do so within 20 calendar days from the date of personal service or the date of Director mailing of the petition.

004.09 All pleadings subsequent to the initial petition shall be served by the party filing such pleading upon all attorneys of record or other representatives of record and upon all unrepresented parties. Service shall be made personally or by first-class or certified mail. Written proof of such service shall be filed with the hearing officer with a copy to the Director.

004.10 A hearing date shall be set by the Director so that the hearing shall be held within sixty (60) calendar days of the filing of the petition unless the parties agree to a specific extension of time. A written notice of the time and place of hearing shall be served by the Director upon all attorneys of record or other representatives of record and upon all unrepresented parties. The notice must include a proof of such service and will be filed with the Director.

004.11 In computing time prescribed or allowed by this chapter of these rules and regulations or by any applicable statute in which the method of computing time is not specifically provided, days will be computed by excluding the day of the act or event and including the last day of the period. If the last day of the period falls on a Saturday, Sunday, or state holiday, the period shall include the next working day.

004.12 Unless the individual with a disability so requests or, in an appropriate case, the representative of such individual so requests, pending a decision of the hearing officer under this Chapter, the Department shall not institute a suspension, reduction, or termination of services being provided for the individual at the time of the filing of the petition, including evaluation and assessment services and plan development, unless such services have been obtained through misrepresentation, fraud, collusion or criminal conduct on the part of the petitioner or his/her representative.

Notes

92 Neb. Admin. Code, ch. 71, § 004