192 Neb. Admin. Code, ch. 2, § 008

Current through September 17, 2024

Section 192-2-008 - Conducting A Contested Case Hearing

008.01.ORDER. At the discretion of the hearing officer, the hearing may be conducted in the following order:

008.01A. The hearing is called to order by the hearing officer. Any preliminary motions, stipulations or agreed orders are entertained.

008.01B. Each party may be permitted to make an opening statement. Opening statements take place in the same order as the presentation of evidence.

008.01C. Presentation of evidence.

008.01C1. Evidence will be received in the following order:

008.01C1(a). Evidence is presented by the petitioner;

008.01C1(b). Evidence is presented by the respondent;

008.01C1©). Rebuttal evidence is presented by the petitioner; and

008.01C1(d). Surrebuttat evidence is presented by the respondent.

008.01C2. With regard to each witness who testifies, the following examination may be conducted:

008.01C2(a). Direct examination conducted by the party who calls the witness;

008.01C2(b). Cross-examination by the opposing party;

008.01C2©). Redirect examination by the party who called the witness; and

008.01C2(d) Recross-examination by the opposing party.

008.01D After the evidence is presented, each party may have the opportunity to make a closing argument. Closing arguments shall be made in the same order as the presentation of evidence. The hearing officer may request that the parties submit briefs in lieu of closing argument.

008.02.EVIDENCE.

008.02A. In contested cases the hearing officer may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs and may exclude incompetent, irrelevant, immaterial and unduly repetitious evidence.

008.02B. Any party to a contested case from which a decision may be appealed to the courts of this state, may request that the hearing officer be bound by the rules of evidence applicable in district court by delivering to the hearing officer at least three (3) calendar days prior to the holding of the hearing a written request therefore. Such request shall include the requesting party's agreement to be liable for the payment of costs incurred thereby and upon any appeal or review thereof, including the cost of court reporting services which the requesting party shall procure for the hearing.

008.02C. Documentary evidence may be received in the form of copies or excerpts or incorporated by reference.

008.02D. All evidence including records and documents in the possession of the hearing officer of which he or she desires to avail himself or herself shall be offered and made a part of the record in the case. No factual information or evidence other than the record shall be considered in the determination of the case.

008.02E. A hearing officer or designee may administer oaths and issue subpoenas in accordance with the rules of civil procedure except as may otherwise be prescribed by law. Subpoenas and orders issued under this subsection may be enforced by the district court.

008.02F. The hearing officer shall give effect to the rules of privilege recognized by law.

008.02G. The hearing officer may take official notice of cognizable facts and in addition may take official notice of general, technical, or scientific facts within his or her specialized knowledge and the rules and regulations adopted and promulgated by NCBVI.

008.02G1. Parties shall be notified either before or during the hearing or by reference in preliminary reports or otherwise of materials so noticed.

008.02G2. Parties shall be afforded an opportunity to contest facts so noticed

008.02G3. The record shall contain a written record of everything officially noticed.

008.02H. The hearing officer may utilize his or her experience, technical competence and specialized knowledge in the evaluation of the evidence presented to.

008.03.CONDUCTING THE HEARING BY ELECTRONIC MEANS. The hearing officer may conduct ail or part of the hearing by telephone, television, or other electronic means if each participant in the hearing has an opportunity to participate in, to hear, and, if technically feasible, to see the entire proceeding while it is taking place.

008.04.HEARING OFFICER'S DECISION. Within thirty (30) calendar days of the completion of the hearing, the hearing officer shall make a decision and provide a full written report of the findings and grounds for the decision to the petitioner, his or her attorney of record and/or petitioner's representative, and the Director by U.S. certified mail return receipt requested. Such report must be provided in preferred format for each party.

008.04A. The written report shall meet the requirement of 009.

008.04B. The hearing officer's decision shall be based on the approved NCBVI State Plan for Vocational Rehabilitation Services, the Rehabilitation Act of 1973, as amended and the regulations promulgated pursuant to it, Nebraska Revised Statute Sections 71-8601 to 71-8616 and 192NAC1.

008.04C. The hearing officer's decision is the final decision.

008.05.OFFICIAL RECORD.

008.05A. NCBVI shall prepare an official record, which shall include testimony and exhibits, in each contested case, but it shall not be necessary to transcribe the record of the proceedings unless requested for purpose of rehearing or appeal, in which event the transcript and record shall be furnished by NCBVI upon request and tender of the cost of preparation.

008.05B. NCBVI shall maintain an official record of each contested case under this Chapter for at least four years following the date of the final order.

008.05C. NCBVI record shall consist only of the following:

008.05C1. Notices of all proceedings;

008.05C2. Any pleadings, motions, requests, preliminary or intermediate rulings and orders, and similar correspondence to or from NCBVI or hearing officer or Director pertaining to the contested case;

008.05C3. The record of the hearing before NCBVI, including all exhibits and evidence introduced during such hearing, a statement of matters officially noticed by the hearing officer during the proceeding, and all proffers of proof and objections and rulings thereon; and

008.05C4. The final order of the hearing officer.

008.05D. As provided in 002.03, the hearing officer who receives or who makes or knowingly causes to be made an ex parte communication as set forth in that subsection shall make the appropriate filings which shall be included in the official record of the contested case.

008.05E. Except to the extent that the Administrative Procedures Act or another statute provides otherwise, NCBVI record shall constitute the exclusive basis for NCBVI action in contested cases under the act and for judicial review there

008.06.COSTS. Each party shall pay his or her own costs to appeal the final decision.

192 Neb. Admin. Code, ch. 2, § 008

Amended effective 7/2/2019