92 Neb. Admin. Code, ch. 55, § 004 - Commencement of a special education contested case
004.01 A parent or local educational agency
shall request a hearing by filing a petition under this Chapter within two (2)
years of the date the parent or agency knew or should have known about the
alleged action that forms the basis of the petition.
004.02 The timeline described in subsection
004.01 shall not apply to a parent if the parent was prevented from requesting
the hearing due to:
004.02A. specific
misrepresentations by the local educational agency that it had resolved the
problem form the basis of the petition, or
004.02B. the local educational agency's
withholding or information from parent that was required under this chapter to
be provided to the parent.
004.03 The special education contested case
begins with the filing of a petition with the Department and the service of a
copy of the petition on the other party. The petition is the initial document
filed with the Department and served on the other party that sets forth a claim
and request for action. The petition shall remain confidential. A sample
petition (request for a hearing) is available from the Nebraska Department of
Education Office of Special Education.
004.04 A party to a special education
contested case shall be the parent or public agency by or against whom a
special education contested case is brought or a parent or public agency
allowed to intervene in a special education contested case.
004.05 A party may appear on his or her own
behalf in a special education contested case proceeding or may be represented
by an attorney or other representative as permitted by law.
004.06 The pleadings in a special education
contested case may include a petition, answer, reply, notice, motion,
stipulation, objection or order or other formal written document filed in a
proceeding before the Department. Any pleading filed in a special education
contested case shall meet the following requirements:
004.06A. The pleading shall contain a heading
specifying the name of the Department and the title or nature of the pleading,
shall state material factual allegations and state concisely the action that is
being requested shall contain the name and address of the petitioner and
respondent, and shall be signed by the party filing the pleading, or when
represented by an attorney, the signature of that attorney.
004.06A1. Attorneys shall also include their
address, telephone number and bar number.
004.06A2. The initial petition shall contain,
in addition, the following information which shall remain confidential:
004.06A2(a) . The name of the child whose
special education is the subject of the hearing, the address of the residence
of the child (or available contact information in the case of a homeless
child), and the name of the school the child is attending;
004.06A2(b) . A description of the nature of
the problem of the child relating to the proposed or refused initiation of, or
change in, the identification, evaluation, or educational placement of the
child, or the provision of a free appropriate public education to the child
including facts relating to the problem; and,
004.06A2(c) . A proposed resolution of the
problem to the extent known and available to the party at the time.
004.06A3. A party may not have a
due process hearing until the party, or the attorney representing the party,
files and serves on the other party a copy of a petition meeting the
requirements of subsection
004.06A2.
004.06B. All pleadings
shall be made on white, letter-sized (8 1/2 x 11) paper and shall be legibly
typewritten, photostatically reproduced, printed or handwritten. If
handwritten, a pleading must be written in ink.
004.07 The initial petition shall be filed
with the Department at its official office, at the State Office Building, 6th
Floor, 301 Centennial Mall South, Lincoln, Nebraska, 68509 and a copy of the
petition shall be served on the other party. Filing may be accomplished by
personal delivery or mail and will be received during regular office hours of
the Department, which are 8:00 a.m. to 5:00 p.m. Central Time, Monday through
Friday, except state holidays. All subsequent pleadings shall be filed with the
hearing officer as directed by the hearing officer. Service of the petition on
the other party shall be by U.S. mail return receipt requested. Proof of
service by return receipt shall be filed with the Department and the hearing
officer.
004.08 Upon receipt of the
initial petition, the Department shall assign the petition to a hearing officer
and send a notice of assignment to the hearing officer with the petition
attached. The Department shall also serve a notice to file an answer and a copy
of the notice of assignment and of the petition on each respondent listed in
the petition personally or by first-class or certified mail and send copies to
the hearing officer and petitioner. Written proof of such service shall be
filed with the Hearing Officer. Except as provided in subsection 004.09, each
respondent must within ten (10) days of receiving the petition, send to the
petitioner and file with the hearing officer an answer that specifically
addresses the issues raised in the petition.
004.09 If a local education agency has not
sent a prior written notice to the parent as required by subsection
009.03B of Rule 51
regarding the subject matter contained in the parent's petition, such local
education agency shall, within ten (10) days of receiving the petition, send to
the parent and file with the hearing officer an answer that shall include:
004.09A. An explanation of why the agency
proposed or refused to take the action raised in the petition;
004.09B. A description of other options that
the IEP Team considered and the reasons why those options were
rejected;
004.09C. A description of
each evaluation procedure, assessment, record, or report the agency used as the
basis for the proposed or refused action; and
004.09D. A description of the factors that
are relevant to the agency's proposal or refusal.
004.10 The petition shall be deemed
sufficient unless the party receiving service of a copy of the petition
notifies the hearing officer and the other party in writing that the receiving
party believes the petition has not met the requirements of subsection
004.06A2.
004.11 The party providing a hearing officer
notification under subsection 004.10 shall provide the notification within
fifteen (15) days of receiving a copy of the petition.
004.12 Within five (5) days of receipt of the
notification provided under Section 004.11, the hearing officer shall make a
determination on the face of the petition of whether the petition meets the
requirements of subsection
004.06A2, and
shall immediately notify the parties in writing of such
determination.
004.13 An answer
filed by a local education agency pursuant to subsection 004.09 shall not be
construed to preclude such local educational agency from asserting that the
parent's petition was insufficient where appropriate.
004.14 All pleadings subsequent to the
initial petition shall be served by the party filing such pleading upon all
attorneys of record or other representatives of record, upon all unrepresented
parties, and upon the Department. Service shall be made personally or by
first-class or certified mail. Written proof of such service shall be filed
with the hearing officer.
004.15
Subsection 009.11 of Rule 51 (92 NAC 51) requires that within fifteen (15) days
prior to the opportunity for an impartial due process hearing under this
Chapter, the local educational agency shall convene a meeting with the parents
and the relevant member or members of the IEP Team who have specific knowledge
of the facts identified in the complaint for the purpose of resolving the
issues raised in the complaint.
004.16 If the local educational agency has
not resolved the issues raised in the petition to the satisfaction of the
parents within thirty (30) days of the receipt of the petition, a hearing date
shall be set by the hearing officer and all of the applicable timelines for a
due process hearing under this Chapter shall commence. A written notice of the
time and place of hearing and the name of the hearing officer shall be served
by the hearing officer upon all attorneys of record or other representatives of
record and upon all unrepresented parties. The notice must include a proof of
such service and shall be filed with the hearing officer.
004.17 In computing time prescribed or
allowed by this Chapter of these rules and regulations or by any applicable
statute in which the method of computing time is not specifically provided,
days will be computed by excluding the day of the act or event and including
the last day of the period.
004.18
Within forty-five (45) days after the receipt of a petition by the Department,
the hearing officer shall prepare a final decision and order directing such
action as may be necessary and mail a copy of the decision and order to each of
the parties and to the Commissioner in the manner required by subsection
008.04.
Notes
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