Section 192-2-004 - Commencement of A Contested Case004.01. When a blind individual, who is an applicant for, or recipient of, NCBVl services, is dissatisfied with a written determination made by NCBVl personnel, he or she may obtain a review of the determination by filing a petition within thirty (30) calendar days from the date he or she received the written determination. NCBVl will have made every effort to provide written determination in the individual's preferred format.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 Commission for the Blind and Visually Impaired, 4600 Valley Road, Suite 100, Lincoln, Nebraska 68510. Filing shall be accomplished in writing and will be received during regular office hours of the Commission, 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 NCBVl. 004.02A. NCBVl has established procedures consistent with the requirements of Section 102©) of the Act for the option of formal mediation prior to review through an impartial due process hearing. Mediation is voluntary and is available whenever an impartial hearing is requested.004.02B. Details of the procedures for formal mediation of a vocational rehabilitation determination are provided in Appendix B.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 NCBVl. Any pleading filed in a contested case shall meet the following requirements: 004.05A. The pleading shall contain a heading specifying the name of NCBVl and the title or nature of the pleading, shall state material factual allegations and state concisely the action NCBVl is being requested to take. The pleading shall also 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 {8Y2 x 11) paper and shall be legibly typewritten, photostatically reproduced, brailled, electronically transmitted, 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 004.05A, 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 NCBVI Director, Nebraska Commission for the Blind and Visually Impaired, 4600 Valley Road, Suite 100, Lincoln, Nebraska 68510 and will be received during regular office hours of NCBVI.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. Certification of mailing of the legal document 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 the Director's 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, in the preferred format of all individuals. 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 blind individual so requests or, in an appropriate case, the representative of such individual so requests, pending a decision of the hearing officer under this Chapter, NCBVI shall not institute a suspension, reduction, or termination of services being provided for the individual, 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.192 Neb. Admin. Code, ch. 2, § 004
Amended effective 7/2/2019