Section 92-71-008 - Conducting a contested case hearing008.01 Burden of Proof The Petitioner shall have the burden of proving that the written determination made by Vocational Rehabilitation cited in the petition was arbitrary or capricious or that the determination violates fundamental constitutional rights of the Petitioner. 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(c) Rebuttal evidence is presented by the petitioner; and 008.01C1(d) Surrebuttal 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(c) 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 arguments.008.02 Evidence008.02A 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.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 the Department. 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 it.008.03 Conducting the hearing by electronic means The hearing officer may conduct all 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.
008.04A The written report shall meet the requirements of 009.008.04B The hearing officer's decision shall be based on the approved Nebraska State Plan for Vocational Rehabilitation, the Rehabilitation Act of 1973, as amended and the regulations promulgated pursuant to it, Neb.Rev.Stat. Sections 79-11,121 to 79-11,132 and 92 NAC 72. 008.04C The hearing officer's decision is the final decision.008.04D. For purposes of this section, "completion of the hearing" means when all proceedings and submissions from the parties to the hearing officer are completed. This includes any post-hearing briefs, written closing arguments and any other post-hearing submissions arranged for by the hearing officer.008.05 Official record 008.05A The Department 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 the Department upon request and tender of the cost of preparation.008.05B The Department 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 The Department 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 the Department or hearing officer or Director pertaining to the contested case;008.05C3 The record of the hearing before the Department, 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 92 NAC 71 Section 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 Procedure Act or another statute provides otherwise, the Department record shall constitute the exclusive basis for Department action in contested cases under the act and for judicial review thereof.008.06 Costs Each party shall pay his or her own costs to appeal the final decision.
92 Neb. Admin. Code, ch. 71, § 008