192 NAC 2-007. PREHEARING PROCEDURES

007. PREHEARING PROCEDURES. 007.01. PREHEARING CONFERENCES AND ORDERS. A hearing officer designated to conduct a hearing may hold a prehearing conference at the request of either party or on his or her own order. If a prehearing conference is not held, a hearing officer for the hearing may issue a prehearing order, based on the pleadings, to regulate the conduct of the proceedings. 007.01A. If a prehearing conference is conducted: 007.01A1. The hearing officer shall promptly notify the Director and the parties of the determination that a prehearing conference will be conducted. The Director may assign another hearing officer for the prehearing conference or the initial hearing officer may hold the prehearing conference; and 007.01A2. The hearing officer for the prehearing conference shall set the time and place of the conference and give reasonable written notice, in preferred format, to all parties and to all persons who have filed written petitions to intervene in the matter. The Director shall give notice to other persons entitled to notice. 007.01A3. The notice referred to in subsection 007.01A2 shall include the following: 007.01A3(a). The names and mailing addresses of all parties and other persons to whom notice is being given by the hearing officer; 007.01A3(b). The name, official title, mailing address, and telephone number of any counsel or employee who has been designated to appear for the agency; 007.01A3(c). The official file or other reference number, the name of the proceeding, and a general description of the subject matter; 007.01A3(d). A statement of the time, place, and nature of the prehearing conference; 007.01A3(e). A statement of the legal authority and jurisdiction under which the prehearing conference and the hearing are to be held; 007.01A3(f). The name, official title, mailing address, and telephone number of the hearing officer for the prehearing conference; 007.01A3(g). A statement that a party who fails to attend or participate in a prehearing conference, hearing, or other stage of a contested case or who fails to make a good faith effort to comply with a prehearing order may be held in default under the Administrative Procedure Act; and 007.01A3(h). Any other matters that the hearing officer considers desirable to expedite the proceedings. 007.01B. The hearing officer shall conduct a prehearing conference, as may be appropriate, to deal with such matters as exploration of settlement possibilities, preparation of stipulations, clarification of issues, rulings on identity and limitation of the number of witnesses, objections to proffers of evidence, determination of the extent to which direct evidence, rebuttal evidence, or cross-examination will be presented in written form and the extent to which telephone, television, or other electronic means will be used as a substitute for proceedings in person, order of presentation of evidence and cross-examination, rulings regarding issuance of subpoenas, discovery orders, and protective orders, and such other matters as will promote the orderly and prompt conduct of the hearing. The hearing officer shall issue a prehearing order incorporating the matters determined at the prehearing conference. 007.01C. The hearing officer may conduct all or part of the prehearing conference by telephone, television, or other electronic means if each participant in the conference has an opportunity to participate in, to hear, and, if technically feasible, to see the entire proceeding while it is taking place. 007.02. DISCOVERY IN CONTESTED CASES. 007.02A. The hearing officer or a designee, at the request of any party or upon the hearing officer's own motion, may issue subpoenas, discovery orders, and protective orders 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. 007.02B. Any prehearing motion to compel discovery, motion to quash, motion for protective order or other discovery-related motion shall: 007.02B1. Quote the interrogatory, request, question, or subpoena at issue, or be accompanied by a copy of the interrogatory, request, subpoena or excerpt of a deposition; 007.02B2. State the reasons supporting the motion; 007.02B3. Be accompanied by a statement setting forth the steps or effort made by the moving party or his or her counsel to resolve by agreement the issues raised and that agreement has not been achieved; and 007.02B4. Be filed with the hearing officer with a copy to the Director. The moving party must also serve copies of all such motions to all parties to the contested case. 007.02C. Other than is provided in subsection 007.02B4 above, copies of discovery materials need not be filed with the Director. 007.03. CONTINUANCES. Except for the time limitation in subsection 004.10, the hearing officer may, in his or her discretion, grant reasonable extensions of time or continuances of hearings at the timely request of any party for good cause shown. A party must file a written motion for continuance which states in detail the reasons why a continuance is necessary and serve a copy of the motion on all other parties, in the preferred format of each party. 007.03A. GOOD CAUSE. Good cause for an extension of time or continuance may include, but is not limited to, the following: 007.03A1. Illness of the party, legal counsel, representative, or witness; 007.03A2. A change in legal representation; or 007.03A3. Settlement negotiations are underway. 007.04. AMENDMENTS. 007.04A. A petition may be amended at any time before an answer is filed or is due if notice is given to the respondent or his or her attorney. In all other cases, a petitioner must request permission to amend from the hearing officer. 007.04B. A hearing officer may also allow, in his or her discretion, the filing of supplemental pleadings alleging facts material to the case occurring after the original pleadings were filed. A hearing officer may also permit amendment of pleadings where a mistake appears or where amendment does not materially change a claim or defense. 007.05. INFORMAL DISPOSITION. Unless otherwise precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, or default 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(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 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 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. 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 192 NAC 1. 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.