184 Neb. Admin. Code, ch. 1, § 009

Current through September 17, 2024

Section 184-1-009 - PETITIONS FOR DISCIPLINE AND RELATED ACTIONS

009.01PETITIONS FOR DISIPLINE.

009.01(A)FILING. For the Director to discipline a credential, a petition for discipline must be filed by the Attorney General. The petition may be withheld from the public for a period of 5 days from the date of filing or until service is made, whichever is earliest.

009.01(B)FORM. Petitions for discipline must meet the requirements of subsections 012.01 to 012.03. Allegations pertinent to entry of an order for temporary suspension or limitation under Neb. Rev. Stat. § 38-183 must be made in the petition. The petition must be amended in accordance with section 012.07 if the facts supporting a temporary suspension or limitation are discovered or arise after filing of a petition.

009.01(C)SETTING HEARINGS. Petitions will be set for hearing upon filing. Hearings will be held not less than 30 days nor more than 60 days after the petition's filing unless continued for good cause, except when an order of temporary suspension or limitation is entered under Neb. Rev. Stat. § 38-183. When such an order is entered, the hearing will be heard no later than 15 days from the date the temporary limitation or suspension takes effect, unless another period is prescribed by statute or the hearing is continued upon the defendant's written request.

009.01(D)HEARING NOTICES. Hearings may be set by notice or order, which must:

(i) Advise the defendant that a petition for discipline has been filed;

(ii) State the date, time, and location of the hearing;

(iii) Advise the defendant that all allegations in the petition will be deemed denied, but that the defendant may answer or otherwise plead to the petition if so desired, and the number of days for filing a responsive pleading; and

(iv) Attach a copy of the petition for discipline and the order for temporary suspension or limitation, if applicable.

009.01(E)SERVICE. The notice, petition for discipline, and order, where applicable must be served upon the defendant at least 10 days before the hearing by a means permitted by law.

009.01(E)(i)PRAECIPE FOR SERVICE. The plaintiff must file a praecipe for service on the defendant stating the name of the party to be served, the addresses at which the party may be found, and the method of service to be used.

009.01(E)(ii)VOLUNTARY APPEARANCE. The defendant may file a voluntary appearance and thereby waive service.

009.01(E)(iii)PROOF OR RETURN OF SERVICE. The person serving the notice must file proof of service, stating the time; place; including the address, if applicable; name of the person with whom the notice was left; method of service; or, if unable to serve, file a return of service with a statement of the reason for failure to serve. Service by a method or person permitted under law other than that specified by the plaintiff or failure to file a proof of return or delay in doing so will not affect the validity of service.

009.01(F)SERVICE ON PLAINTIFF. Notice of hearing may be served on the plaintiff by email, inter-office mail, regular U.S. mail or by leaving a copy at the Attorney General's offices.

009.02POST-HEARING ACTIONS. Actions for revocation of probation or further discipline of a credential or permit for violation of a term of probation or a limitation or condition of an order of discipline may be filed by the Attorney General by petition, application, motion, or other form of pleading submitted to the Division. Such actions proceed in the same manner and subject to the same requirements as initial petitions for discipline.

009.03POST-HEARING MODIFICATIONS.

009.03(A)APPLICATIONS. Applications for modification of terms or conditions of probation or limitations imposed by final orders in actions brought by a petition for discipline may be filed by either party during the term of probation or limitation.

009.03(B)GROUNDS. Modifications may be made when an original term or condition of probation cannot reasonably be met because of a substantial change in circumstances or similar reason, or to clarify the meaning and effect of ambiguous or indefinite terms or conditions of probation or limitation in orders of discipline. Modification is not a substitute for or applicable to requests for reconsideration under 017; appeals described in 018; or actions for reinstatement or partial reinstatement of a credential or permit under Neb. Rev. Stat. §§ 38-148 to 38-149, 38-190, or 38-197.

009.03(C)FORM AND CONTENT. Applications for modification must have the caption of the original action for discipline; meet the requirements for pleadings in 012.01 to 012.03; and include a statement of facts supporting modification on the grounds alleged.

009.03(D)SERVICE. The party applying for modification must cause a copy of the application to be delivered or mailed to the opposing party at time of filing and must include a certificate of service in the application.

009.03(E)HEARING. Applications will be set for oral argument if requested by a party or ordered by the Director. Evidentiary hearings will be held only if there are disputed issues of fact.

009.03(F)NOTICE OF HEARING. When an evidentiary hearing is to be held, a notice of hearing will be provided, stating the date, time, and location of hearing; identifies the hearing officer, if known; and states that the subject of the hearing is an application for modification.

009.03(G)SERVICE. The notice of hearing must be served on the licensee by a means permitted by law at least 10 days prior to hearing.

009.04APPLICATIONS FOR REINSTATEMENT. Persons whose credentials have been revoked, suspended, limited, or subject to other discipline may request that the Director reinstate their credentials after proceedings held in accordance with Neb. Rev. Stat. §§ 38-148 to 38-149, 38-190, or 38-197 when the board for their profession recommends reinstatement or the person accepts a board recommendation of partial reinstatement with limitations or conditions. Acceptance can include not appealing the board's decision to the district court.

009.04(A)TIMING. Applications for reinstatement must be filed within 30 days of receipt of the board's decision.

009.04(B)CONTENTS. Requests for reinstatement may be made by application containing the petitioner's name, mailing address, and telephone number; the name and decision of the board; the relief sought; and the notarized signature of the petitioner. Requests must be accompanied by the written recommendation of the board, including any findings of fact or order; application submitted to the board; record of any hearing; and all pleadings, motions, requests, preliminrary or intermediate rulings or orders, and other correspondence between the petitioner and board. Requests may be made on forms provided by the Division.

009.04(C)DIRECTOR REVIEW. The Director will issue a decision on the application within 180 days of the date the Division receives it. The decision will be based upon review of the record of proceedings before the board. The Director will not hold another hearing. The Director may affirm the board's recommendation and grant reinstatement or reverse or modify the recommendation, if the recommendation exceeds statutory authority; is made upon unlawful proceeding; is unsupported by competent, material, and substantial evidence in view of the entire record; or is arbitrary and capricious.

009.04(C)(i)AFFIRMING. If the Director affirms the board's recommendation, the Director will enter an order reinstating or partially reinstating the petitioner's credential.

009.04(C)(ii)NOT AFFIRMING. If the Director does not affirm the board's recommendation, the Director will enter an order denying reinstatement or, in the case of partial reinstatement, denying or granting partial reinstatement.

009.04(C)(iii)SERVICE. The Director's decision must be served on the petitioner by a means permitted by law.

009.04(C)(iv) APPEALS. Petitioner may appeal the Director's decision pursuant to the Administrative Procedure Act.

009.05ACTIONS UNDER NEB. REV. STAT. §§ 38-1,110 to 38-1,113 and 38-173. These procedures apply in actions arising under Neb. Rev. Stat. § 38-1,110 when the Director finds reasonable cause to question the qualification of an applicant or a credential or permit holder to practice or continue in practice because of physical or mental condition, including substance use disorders.

009.05(A)REPORT TO BOARD. The Director will submit a report of the investigation and findings to the board in the profession or occupation for review.

009.05(B)APPOINTMENT OF PANEL. After review of the record, if the board agrees there is reasonable cause to question the qualifications of the applicant or credential or permit holder, the board will:

(i) Appoint a committee of three professionals qualified by experience or training to evaluate the condition of the applicant or credential or permit holder to perform an examination and report their findings and conclusions to the board. The Division bears the costs of evaluation unless the decision is adverse to the applicant or credential or permit holder, in which case the defendant bears the cost. Applicants and credential or permit holders may submit the results of evaluations conducted by physicians of their choice at their cost for the board's consideration, along with the results of the appointed panel. Any such reports must be submitted within the time set by the board.

(ii) Notify the applicant or credential or permit holder of the finding of reasonable cause, the appointment of the physican panel, and when and where to appear for evaluation.

009.05(C)REVIEW OF RESULTS. The Board will consider the evaluators' findings and conclusions and investigative record. If the board finds, based on this information, that the applicant or credential or permit holder is not qualified to practice or continue in practice, the board will prepare a proposed certification to that effect and proposed recommendations to the Director for disposition. The board will provide the applicant or credential or permit holder a copy of the proposed certification and recommendations along with notice of the right to a hearing. This notice must be given as provided in section 008.01.

009.05(D)EFFECTIVE DATE. The proposed certification and recommendations become final 15 days after their mailing unless the applicant or credential or permit holder a timely written request for hearing.

009.05(E)REQUEST FOR HEARING. Subject to section 007.02, applicants and credential or permit holders will be given an opportunity for hearing before the board if they file a written request for hearing that meets the requirements of section 008.03 as to content and form with the Division within 15 days of the date the decision was mailed.

009.05(F)HEARING. Prehearing and hearing before the board will be conducted as provided in sections 008.05, 008.06, and 012 to 015.

009.05(G)BOARD CERTIFICATION AND RECOMMENDATIONS. Based upon the evidence at hearing, or the failure of the applicant or credential or permit holder to request hearing, the board will certify to the Director that the applicant or credential or permit holder either is or is not qualified to practice or continue in practice and recommend denial, refusal to renew, limitation, suspension, or revocation of the credential, in the case of persons whom the board certifies are not qualified. The certification and any recommendations must in writing and made in accordance with 016, and they must be sumitted, along with the record of the proceedings, to the Director for disposition.

009.05(H)DIRECTOR REVIEW. The Director's decision will be based on the record before the board; no evidentiary hearing will be held before the Director. The matter may be set for oral argument before the Director on the Director's own motion or a party's motion.

009.05(H)(i)BOARD FINDING NOT QUALIFIED. Upon the board's certification that persons are not qualified to practice or continue in practice, the Director will find them not qualified. The Director will thereupon deny, refuse renewal, suspend, limit, or revoke the credential in such manner and to such extent as the Director determines to be necessary to protect the public.

009.05(H)(ii)BOARD FINDING FIT. Upon the board's certification that the persons are mentally or physically fit to practice or continue in practice, the Director must cause the credential to be issued or renewed or the investigation closed, if the person is otherwise qualified for credentialing.

009.05(I)EFFECT OF DIRECTOR'S DECISION. The Director's decision continues in effect until the action is reversed on appeal or until the cause for action no longer exists and the credential is issued or reinstated as provided in section 009.05(L).

009.05(K)REFUSAL TO SUBMIT TO EXAMINATION. The board will notify the Director when an applicant or credential or permit holder refuses to submit to physical or mental examination. Further action in such cases is governed by Neb. Rev. Stat. § 38-1,112.

009.05(L)ISSUANCE AND REINSTATEMENT. Credentials may be issued or reinstated when the cause for denial, refusal to renew, limitation, suspension, or revocation no longer exists if the person is otherwise qualified to practice or continue in practice. Such proceedings are subject to Neb. Rev. Stat. § 38-1,111.

184 Neb. Admin. Code, ch. 1, § 009

Amended effective 9/17/2024