Section 404-3-004 - HEARINGS FOR ISSUES RELATED TO DEVELOPMENTAL DISABILITIES SERVICES FUNDED BY STATE GENERAL FUNDSAn 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.004.02TIMELINESS 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.004.03REQUESTING 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.004.04STAYING 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.004.05HEARING 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.004.06AUTHORITY 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.004.07THE 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. 004.08JUDICIAL 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.404 Neb. Admin. Code, ch. 3, § 004
Amended effective 11/19/2022