Nebraska Administrative Code › Topic - EDUCATION, DEPARTMENT OF › Title 92 - NEBRASKA DEPARTMENT OF EDUCATION › Chapter 55 - RULES OF PRACTICE AND PROCEDURE FOR DUE PROCESS HEARINGS IN SPECIAL EDUCATION CONTESTED CASES › Section 92-55-001 - General

Current through June 17, 2024
001.01 Application of Rules
Pursuant to
Neb. Rev. Stat.
§
										84-909.01,
				  the Attorney General shall promulgate model rules of procedure appropriate for
				  use by as many agencies as possible. For rules of procedure adopted on or after
				  August 1, 1994, each agency shall adopt as many of the model rules as is
				  practicable under the circumstances. Agencies may adopt regulations which vary
				  from the model rules; however, any agency adopting a rule of procedure that
				  differs from the model rule shall include in the agency's explanatory statement
				  the reasons why the relevant portions of the Attorney General's model rules are
				  impracticable under the circumstances. This Chapter is based upon the Attorney
				  General's model rule for contested cases with modifications to comply with the
				  requirements of the Nebraska Special Education Act (
Neb. Rev.
				  Stat
. §§
										79-1110
				  to
				  79-1184 ) and
				  the Individuals With Disabilities Education Act (
				  20 U.S.C.
				  1400 to
				  1487 ). This Chapter
				  shall apply to all hearings brought by a parent or a public agency pursuant to
				  the Nebraska Special Education Act, Title 92 NAC 51 (Rule 51) or the
				  Individuals With Disabilities Education Act and its implementing regulations
				  which relate to the identification, evaluation or educational placement of a
				  child with a disability, or the provision of a free appropriate public
				  education to a child; and only to such hearings.
001.02 Definitions
The following definitions shall apply as used throughout
				  Chapter 55 of these rules and regulations.
001.02A. Commissioner shall mean the State
				Commissioner of Education.
001.02B.
				Special education contested case shall mean a proceeding before a hearing
				officer in which the legal rights, duties, or privileges of specific parties
				are required by the Nebraska Special Education Act or the Individuals With
				Disabilities Education Act to be determined after a hearing.
001.02C. Department shall mean the Nebraska
				Department of Education, which is comprised of the State Board of Education and
				the Commissioner of Education.
001.02D. Ex parte communication shall mean an
				oral or written communication which is not on the record in a special education
				contested case with respect to which reasonable notice to all parties was not
				given. Ex parte communication shall not include:
001.02D1. Communications which do not pertain
				to the merits of a special education contested case;
001.02D2. Communications required for the
				disposition of ex parte matters as authorized by law; and,
001.02D3. Communications to which all parties
				have given consent.
001.02E. Hearing officer shall mean the
				person or persons conducting a special education hearing, contested case, or
				other proceeding pursuant to the Nebraska Special Education Act or the
				Individuals With Disabilities Education Act, whether designated as the
				presiding officer, administrative law judge, or some other title
				designation.
001.02F. Parent means:
001.02F1. A natural, adoptive or foster
				parent of a child;
001.02F2. A
				guardian but not the State if the child is a ward of the State;
001.02F3. A person acting in the place of a
				natural or adoptive parent (including a grandparent, stepparent or other
				relative with whom the child lives; or a person who is legally responsible for
				the child's welfare); or
001.02F4.
				A surrogate parent who has been appointed in accordance with 92 NAC
				51-009.08.
001.02G. Party
				means the parent of a child with a disability, a competent student of the age
				of majority with a disability, or a public agency by or against whom a special
				education contested case is brought or a person allowed to intervene in a
				special education contested case. The Department shall be named as a party if,
				and only if, the petition contains an allegation that the Department has acted
				improperly or has improperly failed to act with respect to its duties under
Neb. Rev. Stat.
§
										79-1152.
001.02H. Petition means the initial document
				filed with the Department and served on the other party that sets forth a claim
				related to the initiation, change, or termination or the refusal to initiate,
				change, or terminate the identification, evaluation, or educational placement
				of a child with a disability or the provision of a free appropriate public
				education or records relating thereto and a request for action.
001.02H1. The petition shall set forth an
				alleged violation or violations that occurred not more than two (2) years
				before the date the parent or public agency knew or should have known about the
				alleged action that forms the basis of the claim, except that the exceptions to
				the timeline described in subsection 004.02 shall apply to the timeline
				described in this subsection.
001.02I. Public agency includes the state
				educational agency, local educational agencies, educational service agencies,
				and any other political subdivisions of the state that are responsible for
				providing education to children with disabilities.
001.02I1. Local educational agency (LEA)
				means a public board of education or other public authority legally constituted
				within the state for either administrative control or direction of, or to
				perform a service function for, public elementary or secondary schools in a
				city, county, township, school district, or other political subdivision of the
				state, or for a combination of school districts or counties as are recognized
				in the state as an administrative agency for its public elementary or secondary
				schools. The term includes an educational service agency as defined in
				subsection
				001.02I2 and any
				other public institution or agency having administrative control and direction
				of a public elementary or secondary school.
001.02I2. Educational service agency (ESA)
				means a regional public multiservice agency which is authorized by state law to
				develop, manage, and provide services or programs to LEAs and which is
				recognized as an administrative agency for purposes of the provision of special
				education and related services provided within public elementary and secondary
				schools of the state. The term includes any other public institution or agency
				having administrative control and direction over a public elementary or
				secondary school and includes entities that meet the definition of intermediate
				educational unit in section 602(23) of the Individuals With Disabilities
				Education Act as in effect prior to June 4, 1997.
001.02J. Day, as used in this Chapter, means
				calendar day unless otherwise indicated as business day. Business day means
				Monday through Friday, except for federal and state holidays.
001.02K. Serious bodily injury shall have the
				meaning given the term under paragraph (3) of Subsection (h) of Section 1365 of
				Title 18, United States Code.