184 Neb. Admin. Code, ch. 1, § 013

Current through September 17, 2024

Section 184-1-013 - PREHEARING PROCEDURES

013.01CONSOLIDATION. 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.

013.02DISCOVERY. 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).

013.03ACCESS 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.

013.04DISCOVERY 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.

013.05HEARINGS 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.

013.06SUBPOENAS.

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.

013.07CONTINUANCES. Continuances may be granted as provided in 53 NAC 4-006.03.

013.08BRIEFS. 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.

013.09CASE 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.

013.10PREHEARING CONFERENCES. Prehearing conference procedures are governed by 53 NAC 5-006.

013.11DISMISSAL. 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.

013.12RULES 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.

013.13FILING 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.

013.14SEQUESTRATION 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.

013.15HEARINGS 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.

184 Neb. Admin. Code, ch. 1, § 013

Amended effective 9/17/2024