006.01 Prehearing
conferences and orders
A hearing officer designated to conduct a hearing may
determine whether a prehearing conference will be conducted. 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.
006.01A. If a prehearing
conference is conducted:
006.01A1. The hearing
officer shall set the time and place of the conference and give reasonable
written notice to all parties and to all persons who have filed written
petitions to intervene in the matter and shall give notice to other persons
entitled to notice.
006.01A2. The
notice referred to in subsection
006.01A1 shall
include the following:
006.01A2(a) The names
and mailing addresses of all parties and other persons to whom notice is being
given by the hearing officer;
006.01A2(b) The official file or other
reference number, the name of the proceeding, and a general description of the
subject matter;
006.01A2(c) A
statement of the time, place, and nature of the prehearing
conference;
006.01A2(d) A statement
of the legal authority and jurisdiction under which the prehearing conference
and the hearing are to be held;
006.01A2(e) The name, official title, mailing
address, and telephone number of the hearing officer for the prehearing
conference;
006.01A2(f) A statement
that a party who fails to attend or participate in a prehearing conference,
hearing, or other stage of a special education 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 unless otherwise precluded by
law; and
006.01A2(g) Any other
matters that the hearing officer considers desirable to expedite the
proceedings.
006.01B. 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.
006.01C. 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.
006.02 Discovery in special education
contested cases
006.02A. The hearing officer,
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.
006.02B. Any prehearing
motion to compel discovery, motion to quash, motion for protective order or
other discovery-related motion shall:
006.02B1. 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;
006.02B2. State the reasons supporting the
motion;
006.02B3. Be accompanied by
a statement setting forth the steps or efforts 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
006.02B4. Be
filed with the hearing officer. The moving party must serve copies of all such
motions to all parties to the special education contested case and to the
Department.
006.02C.
Other than is provided in subsection
006.02B4 above,
discovery materials need not be filed with the hearing officer or served on the
Department.
006.03
Continuances
Except as specified in subsection
007.07C2 for
expedited hearings, the hearing officer may, in his or her discretion, grant
specific extensions of time or continuances of hearings beyond the forty-five
(45) day time limit for rendering a final decision in subsection 004.18 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 and the
Department.
006.03A. Good cause. Good
cause for an extension of time or continuance may include, but is not limited
to, the following:
006.03A1. Illness of the
party, legal counsel or witness;
006.03A2. A change in legal representation;
or
006.03A3. Settlement
negotiations are underway.
006.04 Amendments
006.04A. A petition may be amended only if
the other party consents in writing to such amendment and is given the
opportunity to resolve the complaint through a meeting held pursuant to 92 NAC
51-009.11A or if
the hearing officer grants permission for a party to amend its petition at any
time not later than five (5) days before a due process hearing
occurs.
006.04B. The applicable
timeline for a due process hearing under this part shall recommence a the time
the party files an amended petition, including the timeline under 92 NAC
51-009.11A.
006.04C. A hearing officer may 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.
006.05 Informal Disposition
Unless otherwise precluded by law, informal disposition may
be made of any special education contested case by stipulation, agreed
settlement, consent order, or default.