184 Neb. Admin. Code, ch. 1, § 010 Prehearing Procedures

• Library: Nebraska Administrative Code
• Edition: 2023
• Currency: Current through January 1, 2024
• Citation: 184 Neb. Admin. Code, ch. 1, § 010
• Year: 2023

010.01 Consolidation.

Whenever two or more actions are pending before the Department between the same or related parties or involving substantially the same facts or issues of law, the actions may be consolidated. Either party may on motion and notice to the adverse party, require him or her to show cause why the cases should not be consolidated. The Department may also, on its own motion, enter an order to show cause to both parties. If good cause is not shown, the actions shall be consolidated.

010.02 Discovery.

Discovery may be made in proceedings before the Department in the same manner as discovery in civil actions in the district courts of this state. Discovery shall be governed by the Nebraska Rules of Discovery adopted by the Nebraska Supreme Court, except that responses, answers or objections to discovery must be filed within fifteen (15) days of the date of service of the request. A party need not file a copy of the discovery request unless and until objection is made or a motion to compel discovery is filed, but he or she shall file a Notice of Service that includes the caption of the case and meets the requirements for a certificate of service as set forth in HEALTH AND HUMAN SERVICES SYSTEMGeneral requirements for all pleadings and other filings009.01A5. A sample Notice is attached as Attachment 4.

010.03 Extension or Shortening of Time for Discovery

The Department may extend or shorten time for discovery upon motion of a party for good cause shown or upon its own motion by progression order or other order.

010.04 Access to Examination.

All persons whose applications for licensure, certification or registration or other form of approval are denied due to failure of a required examination may review the examination questions and their answers with respect to questions marked wrong or given partial credit. Review is subject to the following conditions:

010.04A Review may take place only after results of such examination have been issued by the Department.

010.04B Photographic identification of the applicant must be provided to the Department representative.

010.04C Review must take place in the offices of the Department during regular business hours.

010.04D Review may take place only in the presence of a representative of the Department. A representative of the appropriate governing Board may also be present.

010.04E Neither the examination nor the answer sheet may be taken from the site designated for review.

010.04F Neither examination questions nor answers may be copied. Notes may be made but shall be limited to the question number and any objections, challenges or questions concerning examination questions and answers. Notes shall be reviewed and may be copied or may be confiscated by the Department if, in the opinion of such representative, the notes are likely to compromise the integrity of the examination.

010.04G No questions may be asked of or answered by the Department or Board representative during review concerning the examination questions or answers. Questions, objections, or challenges may be submitted in writing for consideration.

010.04H The examinee may have his or her attorney present during review or authorize, in writing, such attorney or other designee to conduct review in his or her absence. Review by counsel or any other designee of the examinee shall be subject to the same conditions and terms as those for the examinee.

010.05 Discovery of Examination During Appeals.

Unsuccessful examinees in the process of appeal of the denial of a license, certificate or other form of approval for failure of the required examination may review their own answer sheets, subject to the conditions set forth in 010.04, and the questions and model answers for questions marked wrong or not given full credit on their answer sheets. No copies of examination materials shall be provided except upon order of the Director of Health or a court of competent jurisdiction. If the number of wrong answers is so great that release of copies of such records will jeopardize the security of the examination, or if access to and/or copies of the questions is sought, the Director, on motion, may order disclosure of such records as are relevant under such conditions as are warranted in the circumstances. Conditions on records found by the Director to be subject to disclosure may include, but are not limited to:

010.05A Restrictions on who may possess the copies;

010.05B Restriction on the number of copies thereto which may be made;

010.05C Restriction on distribution of any copies provided;

010.05D Restriction of the persons who may review the material or copies thereof including limitations on the examinee;

010.05E Procedures for maintaining security of the copies and for documenting or logging access provided;

010.05F Security of the examination during hearing and further appeal; and/or

010.05G Other measures as may be deemed necessary to ensure that security is maintained.

010.06 Access to Other Examination Materials.

Except as provided in 010.04 and 010.05, any person may have access to public records concerning examinations and their development, or statistical information available, if any, relating to examination results.

010.07 Motions and other Matters; Hearing.

All motions, special appearances, demurrers, and other similar pleadings shall be in writing and conform to the requirements for pleadings set forth in section 009 of these regulations. Such pleadings shall be set for hearing before the Director, designated Hearing Officer, or other designee if either party requests hearing or the Director, Hearing Officer or other designee so orders. Hearings shall be held within a reasonable time giving due regard to the nature of the motion or other pleading, the status of the case, and the scheduled date for formal hearing.

010.07A Privileges; Motion or Notice Required. When a party intends to assert a constitutional or statutory privilege on his or her own behalf or on behalf of others to refuse to testify, to disclose any matter, to produce any object or writing or to prevent another from being a witness or making other disclosure, the party must raise the issue by motion, notice, objection or pleading as necessary to preserve the privilege as provided by law. Briefs shall accompany the motion objection, or pleading. See also sections 010.11, 010.12 and HEALTH AND HUMAN SERVICES SYSTEMAdmissibility Generally011.01A infra.

010.07B Process. 010.07B1 Obtaining a Hearing Date. The party intending to file a motion or other similar pleading for which a hearing is sought may contact the office of the Director to request an available date or dates for hearing on the motion or other pleading, and include a Notice of Hearing in the pleading In no event may a party set a date for hearing without advance approval of the date by the Director, Hearing Officer, or other designee of the Director. 010.07B2 Notice of Hearing. The notice of hearing shall include the date, time, and location of hearing, and, where not included in the pleading to be heard, shall identify the subject matter of the hearing. At least three (3) days' advance notice shall be provided to the other party unless the parties agree to a lesser time. 010.07B3 Hearings on Motions. Hearings on motions or other similar pleadings may be held in person or by teleconference. They may be made on the record if so directed by the Hearing Officer or if requested by a party. A party who wishes a copy of the transcription of the record of the hearing shall obtain the same from the court reporter at his or her own cost.

010.08 Subpoenas.

010.08A Application Requirements. Subpoenas for the attendance of a witness or production of documents or things will be issued by the Department through the Director, a hearing officer, or such person designated by the Director, upon application by praecipe by a party. The praecipe for subpoena shall 010.08A1 Contain the caption of the...