92 Neb. Admin. Code, ch. 55, § 008 - Decision and order in a special education contested case
008.01 Every
decision and order adverse to a party to the proceeding, rendered by the
hearing officer in a special education contested case, shall be in writing or
stated in the record and shall be accompanied by a jurisdictional statement and
by findings of fact and conclusions of law.
008.02 Subject to subsection 008.03, a
decision made by a hearing officer shall be made on substantive grounds based
on a determination of whether the child received a free appropriate public
education.
008.03 In matters
alleging a procedural violation, a hearing officer may find that a child did
not receive a free appropriate public education only if the procedural
inadequacies:
008.03A. Impeded the child's
right to a free appropriate public education;
008.03B. Significantly impeded the parents'
opportunity to participate in the decisionmaking process regarding the
provision of a free appropriate public education to the parents' child;
or
008.03C. Caused a deprivation of
educational benefit.
008.04 Nothing in subsections 008.02 and
008.03 shall be construed to preclude a hearing officer from ordering a local
educational agency to comply with procedural requirements under this
section.
008.05 Nothing in this
Chapter shall be construed to affect the right of a parent to file a complaint
with the Department pursuant to 92 NAC 51-009.09.
008.06 The decision and order should include:
008.06A. The name of the Department and name
of the proceeding;
008.06B. The
time and place of the hearing;
008.06C. The names of all parties or their
attorneys who entered an appearance at the hearing;
008.06D. The findings of fact consisting of a
concise statement of the conclusions upon each special education contested
issue of fact;
008.06E. The
conclusions of law consisting of the applications of the controlling law to the
facts found and the legal results arising therefrom; and
008.06F. The order consisting of the action
taken as a result of the facts found and the legal conclusions arising
therefrom.
008.07
Parties to the proceeding shall be notified of the decision and order or by
certified mail in the manner required by subsection 008.08. A copy of the
decision and order and accompanying findings and conclusions shall be delivered
or mailed upon request to each party or his or her attorney of record in the
manner required by subsection 008.08.
008.08 At the completion of the proceedings,
the hearing officer shall prepare a report based on the evidence presented
containing findings of fact and conclusions of law. The report shall contain a
description of the substance of the evidence presented at the hearing and a
list of exhibits offered into evidence together with a statement of which
exhibits were received and which were not. Within forty-five (45) days after
the receipt of a request for a hearing by the Department, or longer if
continuances are granted pursuant to subsection 006.03, the hearing officer
shall prepare and mail a final decision and order directing such action as may
be necessary. The report and the final decision and order shall be delivered
via certified mail to each party or attorney of record and to the Commissioner
of Education.
008.09 A decision
made in a hearing conducted pursuant to this Chapter shall be final, except
that any party involved in such hearing may appeal such decision under the
provisions of law referred to in Section 009.
008.10 The hearing officer shall forward to
the Department the original pleadings, orders, and exhibits in the case. Such
materials shall be forwarded within five (5) calendar days of the date of the
final decision and order.
Notes
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