Neb. Admin. Code tit. 184 — General Administration - Division of Public Health

Chapter 1 Rules of Practice and Procedure of the Department of Health for Administrative Hearings

Neb. Admin. Code tit. 184, ch. 1 Rules of Practice and Procedure of the Department of Health for Administrative Hearings {#sec-184-nac-1 omnilex-key=us-ne-regs-official--title-184--184 NAC 1}

TITLE 184 GENERAL ADMINISTRATION – DIVISION OF PUBLIC HEALTH

CHAPTER 1 RULES OF PRACTICE AND PROCEDURE FOR DIVISION OF PUBLIC HEALTH ADMINISTRATIVE HEARINGS

001. SCOPE AND AUTHORITY. This chapter governs administrative hearings in contested cases brought by or against the Division of Public Health except where other procedures are required by statute or rules and regulations. Absent specific statutes, rules and regulations, or orders of the Division as to procedures, the statutes and Nebraska Supreme Court rules governing civil proceedings in district courts apply. The chapter implements the Administrative Procedure Act, Uniform Credentialing Act, Asbestos Control Act, Child Care Licensing Act, Children's Residential Facilities and Placing Licensure Act, Environmental Health Specialists Practice Act, Lead Based Paint Professions Certification Act, Medication Aide Act, provisions of Nebraska Revised Statutes (Neb. Rev. Stat.) §§ 71-6038 to 71-6042 regarding nurse aides and paid dining assistants, provisions of Neb. Rev. Stat. §§ 71-2225 to 71-2230 regarding the Commodity Supplemental Food Program, provisions of Neb. Rev. Stat. §§ 71-4901 to 71-4905 regarding chronic renal diseases, and provisions of Neb. Rev. Stat. §§ 71-7001 to 71-7013 regarding breast and cervical cancer, Radiation Control Act, and Vital Statistics Act.

002. DEFINITIONS. The following definitions apply.

002.01 APPLICANT. Any person who makes an application.

002.02 APPLICATION. A request for a credential or permit or for the amendment, correction, or issuance of a vital record that the Division is authorized by law to grant or deny, in whole or in part.

002.03 BOARD. A publicly appointed body that performs public functions related to Division programs.

002.04 CONTESTED CASE. Has the meaning given in 53 Nebraska Administrative Code (NAC) 4-001.02B.

002.05 CREDENTIAL. A license, certificate, or registration that the Division is authorized by law to grant or deny.

002.06 DAY. A calendar day unless otherwise specified.

002.07 DECISIONMAKER. The Division employee who issues a preliminary order or decision on behalf of the Division that is the subject of a contested case.

002.08 DIVISION. The Department of Health and Human Services, Division of Public Health or persons exercising authority delegated to them by the Division.

002.09 EX PARTE COMMUNICATION. Has the meaning given in 53 NAC 4-001.02B.

002.10 HEARING OFFICER. the Director of the Division or a person designated by the Director to conduct a hearing, contested case, or other proceeding.

002.11 PARTY. Has the meaning given in 53 NAC 4-001.02B.

002.12 PERMIT. A permission, authority, or approval of any kind that the Division is authorized by law to grant or deny.

002.13 PETITION. Has the meaning given in 53 NAC 4-001.02B.

002.14 PLEADING. A petition, answer, reply or response, notice, motion, stipulation, objection, discovery document, order, decision or other written document filed in a proceeding.

003. COMPUTATION OF TIME. 53 NAC 4-004.09 governs when computing the time prescribed by this chapter or by any applicable statute which does not specifically specify the method of computing time.

004. INFORMAL PROCEDURES. Informal procedures may be used for disposition of any matter that, under law, may be acted upon without hearing.

005. REPRESENTATION. Practice of law in contested cases brought by or against the Division is governed by the Revised Statutes of Nebraska and the decisions of the Nebraska Supreme Court provided that these rules do not interfere with or prohibit persons from transacting their own business before the Division.

006. EX PARTE COMMUNICATIONS. The prohibitions against ex parte communications and the requirements regarding disclosure of such communications set forth in 53 NAC 4-002 apply to proceedings under this chapter.

007. COMMENCEMENT OF PROCEEDINGS.

007.01 INITIATION AND PARTIES. A contested case begins when proper delivery of notice or request for hearing is obtained, by:

(A) Timely request for hearing after issuance of written notice by the decisionmaker of the total or partial denial of an application. The sole parties are the applicant and the Division.

(B) Timely request for hearing after issuance of written notice by the decisionmaker of refusal to renew a credential or permit. The sole parties are the holder of the credential or permit and the Division.

(C) The filing of a petition for discipline. The sole parties are the State of Nebraska on the relation of the Attorney General and the credential holder.

(D) Timely request for hearing after issuance of written notice by the decisionmaker of revocation, suspension, citation, or other discipline. The sole parties are the Division and the credential or permit holder.

(E) Except as provided in section 009.04, timely request for hearing after denial of an application or petition for reinstatement of a credential or permit. The sole parties are the person requesting reinstatement and the Division.

(F) Timely request for hearing after issuance of an administrative order by the decisionmaker compelling or prohibiting performance of an action. The sole parties are the Division and the person to whom the order is directed.

(G) Timely request for appeal of a decision by a person or entity, other than the Division, which the Division is authorized by law to review. The sole parties are the person requesting review and the person whose decision is the subject of review.

(H) An Order to Show Cause why the Division should not take disciplinary or other action. The sole parties are the Division and the person to whom the order is directed.

(I) Such other actions as may require a hearing as provided by law or constitutional right.

007.02 HEARING NOT REQUIRED.

007.02(A) CIRCUMSTANCES. Notwithstanding the procedures set forth in this chapter, an evidentiary hearing is not required:

(i) If there are no issues of material fact;

(ii) If an application for approval cannot be granted because it contains information showing on its face that the applicant does not meet statutory requirements for approval;

(iii) If an application is denied, renewal of approval refused, or approval revoked solely for failure to submit a complete application by failure to pay a required fee, submit a required document, or make another submission that is required as a condition for approval or continued approval; or

(iv) If a request for hearing is received after the time for filing the request has expired so that a preliminary decision has become final.

007.02(B) NOTICE. If it is known at the time of the initial action that a matter is one that does not require an evidentiary hearing, the Division will include in its preliminary notice of action a statement advising the applicant or credential or permit holder that no evidentiary hearing will be held, the basis for this determination, and the method to challenge the determination.

007.02(C) CHALLENGES TO DIVISION DETERMINATION. A party may challenge the Division’s determination that the matter does not require an evidentiary hearing by filing a request for hearing in the manner and within the time provided in section 008.03, the request must also include notice that the party wishes to dispute the decision that no hearing is required. In other cases, the matter will be disposed of by order of the Division on its own motion or upon motion by a party. In other cases, the matter will be disposed of by order of the Division on its own motion or upon motion of a party. If there are no issues of material fact in dispute, but there are contested issues of law, the Division may set the matter for oral argument, require briefs, or both.

007.03 INTERVENTION.

007.03(A) CIRCUMSTANCES. Intervention is allowed only when:

(i) A statute requires that a person be allowed to intervene as of right in an administrative proceeding, upon petition made in proper form and in a timely manner showing that petitioner qualifies as an intervenor; or

(ii) A statute authorizes the Division to allow persons to intervene in an action, upon petition made at least 5 working days before the hearing begins and showing that the person seeking intervention has equal rights, duties, privileges, immunities, or other interests that may be substantially affected by the proceeding.

007.03(B) PETITIONS. Petitions must meet the requirements for pleadings generally and must state the name, address, and telephone number of the person making the motion and grounds for intervention; identify claims or defenses for which intervention is sought; and be served on all parties at least 5 days before hearing.

007.03(C) GRANTING AND CONDITIONS. The granting of petitions for intervention and imposition of conditions upon intervenors’ participation is governed by 53 NAC 4-003.02 to 4-003.04.

008. DENIAL, REFUSAL TO RENEW, SUSPENSION, REVOCATION, OR OTHER DISCIPLINE. This section governs actions involving denial, refusal to renew, or discipline of credentials and permits except for petitions for discipline covered under section 009 or when specific procedures are required by statute or rules and regulations.

008.01 NOTICE. A denial, refusal to renew, suspension, revocation or other discipline may be made in the form of a notice, order, or letter that:

(A) Provides the affected person reasonable notice of the factual basis for the action and statutory or regulatory provisions supporting the action;

(B) Notifies affected persons of their right to request a hearing and the time and method for doing so; or, if hearing is not required, notifies affected persons that no hearing will be held and the basis for that determination; and

008.02 EFFECTIVE DATE. The decision becomes final 30 days after the date the decision was mailed unless the person affected makes a timely request for hearing.

008.03 HEARING REQUESTS. Subject to section 007.02, an applicant or credential or permit holder will be given an opportunity for hearing if a written request for hearing is filed with the Division within 30 days of the date the challenged decision was mailed. The request must contain the person's name, address, and telephone number; the name, business address, and telephone number of the person’s attorney, if any; a request for a hearing and identification of the decision on which the person wishes to be heard; and a description of the issues to be decided at hearing, to the extent known. The request may be made in the form of a letter or pleading submitted in hard copy or electronically.

008.04 ANSWERS AND OTHER RESPONSES. Applicants and credential or permit holders may answer the allegations of the Division’s notice of action, although an answer is not required. If the party wishes to answer, the answer must be filed with the Division within thirty 30 days of the date the challenged decision was mailed. An answer may be included in the request for hearing.

008.05 NOTICE OF HEARING. Notices of hearing are governed by 53 NAC 4-004.08, provided that, if the issues cannot be fully stated in advance of hearing, or if subsequent amendment of the issues is necessary, they must be fully stated as soon as practicable by prehearing offer, stipulation of the parties, or other appropriate means.

008.06 SETTING HEARINGS. The hearing officer will set the time and place of the hearing within 30 days after receipt of a timely request for hearing. Hearings will be held within 90 days after receipt of a timely request for hearing unless another time period is prescribed by statute or rules and regulations, or the hearing is continued for good cause.

009. PETITIONS FOR DISCIPLINE AND RELATED ACTIONS.

009.01 PETITIONS 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.

009.02 POST-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.

009.03 POST-HEARING MODIFICATIONS.

009.03(A) APPLICATIONS. Applications for modification of a 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.

009.04 APPLICATIONS 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 may 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.

009.05 ACTIONS 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.

010. SPECIAL CASES.

010.01 SUMMARY SUSPENSIONS OR LIMITATIONS. These procedures apply when the Division exercises its statutory authority to suspend, limit, or take other action against a credential or permit to take effect immediately, without advance notice or hearing, because of imminent danger to public health, safety, or welfare, unless other procedures are prescribed by statute or rules and regulations.

010.01(A) NOTICE AND ORDER. The notice of alleged violations will be accompanied by an order which:

(i) Recites the basis for the immediate suspension, limitation, or other action, including the basis for finding reasonable cause to believe that the violations have occurred and are grounds for discipline and for determining that such violations constitute an immediate danger to the public; and

(ii) Sets the matter for hearing and notifies the person against whom the action is taken of the date, time, and location of hearing.

010.01(B) HEARING DATE. The hearing will be held within 15 days of the date the order is entered unless continued upon the written request of the party against whom the action is taken or joint motion of the parties.

010.01(C) SERVICE. The order and notice of charges will be served at least 10 days prior to the date set for hearing by any method permitted by law.

010.01(D) EFFECT. The suspension, limitation, or other action remains in effect until 15 days after the hearing is closed, unless an alternative period is prescribed by statute. If no decision is reached within that time, the temporary suspension, limitation, or other action terminates unless or until such time as a final decision is entered imposing a like sanction.

010.02 SHOW CAUSE PROCEEDINGS. These procedures apply when a statute calls for the initiation of a case by requiring a person to show cause why discipline should not be taken, unless other procedures are prescribed by statute or rules and regulations.

010.02(A) ENTRY OF ORDER. An order to show cause will be entered which:

(i) Notifies the person of the charges or claims that form the basis to believe that a violation has occurred, including the factual basis for the belief and reference to the statutes or rules and regulations alleged to be violated. Such notice may be included in the order or in a statement of charges attached to the order and incorporated by reference; and

(ii) Sets the matter for hearing and notifies the person of the date, time, and location of hearing and other matters as provided in section 008.05.

010.02(B) SERVICE. The order and charges will be served upon the person affected by a means permitted by law at least 30 days before the date of hearing.

010.02(C) HEARING. The hearing will be held not less than 60 days nor more than 90 days after the date the order to show cause is entered, unless continued for good cause. The burden is on the person charged to show cause why the Division should not proceed with a hearing on the alleged violations.

010.03. REINSTATEMENT. The procedures of section 008 apply to denials of petitions for reinstatement of credential or permit except as provided in section 009.04 or when a statute or rules and regulations provide otherwise.

011. HEARING OFFICERS. The appointment of hearing officers upon receipt of timely requests for hearing, or filing of petitions or other pleadings initiating contested cases, is govered by 53 NAC 4-005.

012. PLEADINGS AND OTHER FILINGS. These requirements apply to pleadings and other filings except where otherwise prescribed by statute or rules and regulations.

012.01 FORM. Except as provided in section 008, pleadings and filings other than letters must contain:

(A) Captions that include the venue, names and capacities of the parties, and pleading name;

(B) Descriptions of all material facts pertinent to the pleading, requests for whatever action or relief is sought, references to applicable law, and any further statements necessary to explain the pleading or as required by law;

(D) Names, addresses, and telephone numbers of the party or the party’s attorney, typed or hand-printed beneath the signature, as well as attorneys’ bar numbers; and

(E) Certificates of service, signed by the party, the party’s attorney, or other person who serves the pleading, in the case of pleadings other than petitions. Certificates must identify the pleading, names and address of all persons on whom the filing was served, method of service, and date service was made.

012.02 SIZE AND PAPER. Pleadings and other filings must be on white, letter-sized (8 ½ X 11) paper, single-sided, and legible. If handwritten, pleadings must be in ink. Attachments must meet these requirements unless otherwise approved by the hearing officer.

012.03 FILING. Pleadings and other materials must be filed in the Division by personal delivery, email, or mail during regular office hours. Pleadings received after regular officer hours will be stamped as received on the following work day. Parties may request receipts for any filing they make. Requests must be accompanied by an extra copy of the document for stamping and return.

012.04 ANSWERS. Answers are permitted but not required. Except as provided in section 008.04, parties wishing to answer must do so within 20 days of service of a petition or other initial pleading. If no answer is filed, the allegations will be deemed denied.

012.05 SPECIAL APPEARANCES. Defendants may challenge the Division’s jurisdiction over their person by filing a special appearance within 10 days of service of the petition. Defects in service must be specified in the special appearance. If any other issue is raised, including the Division’s jurisdiction over the subject matter, the appearance is general, and special appearance is waived.

012.06 REPLIES. Replies to answers may be filed within 20 days of the date of personal service or the date of the agency mailing the answer.

012.07 AMENDMENTS. Amendments and supplemental pleadings may be made as provided in 53 NAC 4-006.04.

012.08 MOTIONS. Motions must conform to the statutory requirements applicable in civil actions in Nebraska district courts.

012.09 CHANGES IN TIME. The hearing officer mayextend time for pleading for good cause. Requests for extension of time must be made by motion filed on or before the date the pleading is required to be filed. Hearing officers may also order a shorter time for pleading than is provided in these rules on their own motion or parties’ motion to assure the pleading process is complete before hearing.

012.10 SERVICE. Pleadings and other filings must be served on all parties to the proceeding. Except as otherwise provided, service may be made by a means permitted by law. Whenever parties have the right or are required to do something within a prescribed period after service, 3 days will be added to the prescribed period if service is by mail. Service upon the attorney of record will be deemed to be service on the party.

012.11 WITHDRAWAL OF PLEADINGS. Once filed, pleadings and other filings may not be withdrawn from the record without the hearing officer’s permission for good cause shown.

012.12 WITHDRAWAL AS COUNSEL. To withdraw as counsel for a party, attorneys must file a notice of withdrawal and serve the same upon opposing counsel and the party affected. Notices must be filed not later than 3 work days prior to hearing absent good cause.

013. PREHEARING PROCEDURES.

013.01 CONSOLIDATION. Whenever two or more contested cases are pending between the same or related parties or involving substantially the same facts or issues of law, the actions may be consolidated upon a motion to show cause why the cases should not be consolidated made by a party or the hearing officer. If good cause is not shown, the actions will be consolidated.

013.02 DISCOVERY. Discovery may be made in contested cases in the same manner as in civil actions in Nebraska district courts. Discovery will be governed by the Nebraska Rules of Discovery, except that responses, answers, or objections to discovery must be filed within 15 days of the date of service of the request unless the time for discovery has been extended or shortened by the hearing officer upon motion of a party for good cause or upon the hearing officer’s own motion. Parties need not file copies of discovery requests until objection is made or a motion to compel discovery is filed, but they must file a notice of service that includes the caption of the case and meets the requirements for a certificate of service in section 012.01(E).

013.03 ACCESS TO EXAMINATIONS. Persons whose applications for credentials or permits are denied because they failed a required examination may review the examination questions and any of their own answers marked wrong or given partial credit subject to the following conditions:

(A) Review may take place only after results of the examination have been issued;

(B) Applicants must provide photographic identification to Division representatives;

(D) Review may take place only in the presence of Division representatives Representatives of the governing board may also be present;

(E) Neither examination nor answer sheet may be taken from the review site;

(F) Neither examination questions nor answers may be copied. Notes may be made but are limited to the question number and objections, challenges, or concerns about the question or answer. Notes will be reviewed and may be copied or confiscated if they are likely to compromise the examination’s integrity;

(G) Division and board representatives may not be asked or answer questions about the examination or examination answers Objections, challenges, and concerns may be submitted in writing for consideration; and

(H) Examinees may have their attorneys present during review or provide written authorization for their attorney or other designee to review the examination and their answers in their absence. Such review is subject to the same conditions and terms as review by the examinee.

013.04 DISCOVERY OF EXAMINATION DURING APPEALS. Unsuccessful examinees appealing the denial of credentials or permits because they failed the required examination may review the examination and their answers as provided in this chapter, as well as the model answers for questions marked wrong or given partial credit on their answer sheets. No copies of examination materials will be provided except upon order of the Director or court of competent jurisdiction. If the number of wrong answers is so great that release of copies of such records will jeopardize the examination’s security, or if access to or copies of the questions are sought, the Director may order disclosure of the relevant records under such conditions as are warranted in the circumstances.

013.05 HEARINGS ON MOTIONS. Motions, special appearances, and similar pleadings must be in writing and conform to the requirements for pleadings in this chapter. They must be set for hearing before the hearing officer if a party requests hearing or the hearing officer so orders Hearings will be held within a reasonable time given the nature of the motion or pleading, case status, and scheduled date for formal hearing.

013.05(A) ASSERTION OF PRIVILEGES. Parties who intend to assert constitutional or statutory privileges on their own behalf or on behalf of others to refuse to testify, disclose any matter, produce any object or writing, or prevent another from being a witness or making other disclosure must raise the issue by motion, notice, objection, or pleading as necessary to preserve the privilege as provided by law. Briefs must accompany the motion, objection, or pleading.

013.05(B) PROCESS.

013.05(B)(i) OBTAINING HEARING DATE. Parties intending to file motions or similar pleadings for which a hearing is sought may contact the Division to request a hearing date and include a notice of hearing in the pleading.

013.05(B)(ii) NOTICE OF HEARING. The notice of hearing must include the date, time, and location of hearing, and the subject matter of the hearing, if not included in the pleading. At least 3 days' advance notice must be provided to the other party unless the parties agree to a lesser time.

013.05(B)(iii) CONDUCT OF HEARINGS. Hearings may be held in person or by teleconference. They may be made on the record if so directed by the hearing officer or requested by a party. Parties who wish copies of the transcription of the record of the hearing must obtain the same from a court reporter at their own cost.

013.06 SUBPOENAS.

013.06(A) APPLICATIONS. Subpoenas for the attendance of a witness or production of documents or things will be issued by hearing officer upon application by praecipe by a party. The praecipe for subpoena must:

(i) Contain the case’s caption;

(ii) Name the person to be served;

(iii) State the addresses at which the person to be served may be found;

(iv) Specify the method of service, if service by the Division is desired;

(v) State the reason for subpoena;

(vi) Specify the date, time, and location for the witness to appear;

(vii) Designate the books, papers, documents, or things to be produced, when the subpoena involves the production of documents or things (subpoena duces tecum);

(viii) Be accompanied by a draft made payable to the witness in an amount equal to the statutory fee for one day's attendance plus mileage, computed at the rate allowed by law for travel by the most direct route from the witness's place of residence to the designated place for hearing or deposition and back, for attachment to the subpoena, except when the subpoena is issued at the reqest of a state agency or the witness is a Division employee;

(1) When subpoenas are issued at the request of state agencies, witnesses are not entitled to demand witness and mileage fees, but rather are required to obey the subpoena if, at the time of service, they are furnished a statement advising them of the rate of travel fees allowable and the fee for each day’s attendance and that they will be paid at such fees following attendance; and

(2) Division employees will appear without payment of witness or mileage fees, subject to quashing of the subpoeana, except that they must be compensated by the party who requests the subpoena for actual and necessary expenses when required to travel outside their county of residence; and

(ix) Be accompanied by a draft made payable to the Department of Health and Human Services in an amount sufficient to pay the costs of service for the method of service designated, if service by the Division is requested.

013.06(B) SERVICE. Parties requesting issuance of a subpoena may make their own arrangements for service, or request that the Division make arrangements for service.

013.06(B)(i) MAIL OR OTHER SERVICE. Subpoenas may be served by a means permitted by law.

013.06(B)(ii) WITNESSES. Witnesses may waive service and arrange to pick up a subpoena as agreed to with the party.

013.06(C) PROOF OF SERVICE. Service by other than certified mail must be shown by a proof of service meeting the requirements of section 009.01(E)(iii). When service is made by certified mail, the return must be filed with a notice of filing.

013.06(D) COMPLIANCE. Unless the subpoena is quashed, persons must appear at the time, date, and location specified in the subpoena and produce any documents or items as commanded.

013.06(E) MOTIONS TO QUASH. Motions to quash may be made in the same manner as in any civil action in Nebraska. Such motion is not available in asserting a fifth amendment privilege against self-incrimination.

013.07 CONTINUANCES. Continuances may be granted as provided in 53 NAC 4-006.03.

013.08 BRIEFS. Parties may submit briefs in support of motions or applications for relief. The hearing officer may require that briefs be filed simultaneously or according to a prescribed schedule.

013.09 CASE PROGRESSION. The hearing officer may prescribe a schedules for the progression of cases, including deadlines for filing motions, amending pleadings, completing discovery, conferences before hearing and final prehearing conferences, and may also include other matters appropriate in the circumstances.

013.10 PREHEARING CONFERENCES. Prehearing conference procedures are governed by 53 NAC 5-006.

013.11 DISMISSAL. A proceeding may be dismissed by order of the hearing officer, upon motion of the other party or the hearing officer’s own motion, when the party with the burden of proof fails to appear at hearing; by order of the hearing officer, upon motion by the plaintiff, appellant, or petitioner or upon joint stipulation of the parties for withdrawal of the action, when made prior to final submission of the case; by order of the hearing officer after hearing on the merits under Neb. Rev. Stat. § 38-196; by order of the hearing officer, upon motion of a party or joint stipulation of the parties, when probation or the terms and conditions of an order based on a settlement agreement or plan of correction have been satisfied; by the plaintiff before judgment; or as otherwise provided by law.

013.11(A) ADDITIONAL REQUIREMENTS. When dismissal of an action requires notices to a board and the board’s opportunity for input and consultation, statements affirming that the requirements of Neb. Rev. Stat. § 38-190 have been met in the motion or notice of dismissal.

013.11(B) PREJUDICE. Actions will be dismissed without prejudice to future actions except when the Division’s jurisdiction depends upon a party requesting a hearing within a specified time to prevent an initial decision from becoming final or as otherwise provided by law. In such cases, dismissal will be entered with prejudice.

013.11(C) MOTIONS. Motions must meet the requirements of section 012 for pleadings and section 012.08 for motions and must include at least a brief statement of the grounds for the motion.

013.11(D) HEARINGS. Hearings must be held on motions for dismissal only upon the request of a party or when ordered by the hearing officer. No hearing will be held when a party is entitled to dismissal by right.

013.12 RULES OF EVIDENCE. The Division will not be bound to follow the Rules of Evidence applicable in district courts of this state unless a party so requests. Such requests are subject to the requirements of 53 NAC 4-007.02B.

013.13 FILING AND SERVING EXHIBITS. Upon demand by opposing parties or by order of the hearing officer, parties proposing to introduce exhibits into evidence in a proceeding must serve copies of the exhibits upon to the opposing party and the Division not less than 3 working days in advance of hearing. If a party fails to furnish an exhibit upon demand, it will be excluded from the hearing unless good cause is shown for the failure to furnish the same. This section does not apply to exhibits to be offered for impeachment purposes only.

013.14 SEQUESTRATION OF WITNESSES. Upon the written request of a party made not less than 3 working days in advance of hearing or the hearing officer’s own motion, the hearing officer will order witnesses excluded from the hearing room, except that the hearing officer may not exclude a party who is a natural person; an officer or employee of a party that is not a natural person who is specifically designated as that party’s representative; or an expert or other person whose presence is shown by a party to be essential to presentation of the party’s case.

013.15 HEARINGS BY TELEPHONE OR ELECTRONIC MEANS. The evidentiary hearing on the merits may be conducted entirely or partially by telephone or other electronic means upon the request of a party. Requests must be made by motion in writing at least 10 days prior to hearing and will be approved if each participant in the hearing has an opportunity to participate in, hear, and if technically feasible, see the entire proceeding while it is taking.

014. EVIDENCE. The admissibility of evidence in contested cases is governed by 53 NAC 4-007.02.

015. HEARINGS.

015.01 PUBLIC ATTENDANCE. Hearings on contested cases are open to the public, except that evidence subject to a protective order may be received in camera or under such conditions as may be appropriate to preserve confidentiality. Records will be made of any portion of a hearing held in camera. The hearing officer may order the record sealed to be made available only for purposes of review by the hearing officer or other person authorized to recommend or render a decision in the case or a court of competent jurisdiction in an appeal.

015.02 BROADCASTING HEARINGS. Broadcasting, televising, recording, or taking photographs in the hearing room and areas immediately adjacent to the hearing room during sessions of hearing or recesses between sessions is prohibited, except that hearing officers may authorize:

(A) Use of electronic or photographic means for the presentation of evidence, perpetuation of a record, or other purposes of official administration; and

(B) Photographic or electronic recording and reproduction of proceedings under the following conditions:

(i) The means of recording will not distract participants or impair the proceeding’s dignity;

(ii) The parties have consented, and consent to being depicted or recorded has been obtained from each witness appearing in the recording and reproduction;

(iii) The reproduction will not be exhibited until after the proceeding has been concluded and all direct appeals have been exhausted; and

(iv) The reproduction will be exhibited only for instructional purposes in educational institutions.

015.03 HEARING DECORUM.

015.03(A) ATTENDANCE. Parties and their attorneys, if represented, must be present in the hearing room ready to proceed at the time set for hearing.

015.03(B) EXAMINING WITNESSES. Except when necessary to approach a witness or exhibit, persons must conduct the examination of witnesses while seated at the counsel table or from the lectern, if the hearing room is equipped with a lectern. Only one person for each party may examine a witness or make objections during a witness’s testimony. No party or counsel may approach a witness without the hearing officer’s permission.

015.03(C) DISCUSSIONS. No party or attorney, when represented, may participate in discussions with the opposing party or attorney during session without the hearing officer’s permission.

015.03(D) HEARING DECORUM. Nothing in this chapter may be construed to limit the power of the hearing officer to maintain decorum by ordering unruly spectators to leave the hearing room or reasonably limiting the number of spectators.

015.04 ORDER OF PROOF. Evidence will be received in the following order unless a different order is required by law or ordered by the hearing officer:

(A) The main case of the plaintiff, petitioner, or appellant;

(B) The case of the defendant, respondent, or appellee;

(D) Surrebuttal of defendant, respondent, or appellee.

015.05 BASIC STAGES.

015.05(A) OPENING. Hearing officers will open proceedings by announcing the case to be heard, introducing themselves and asking the parties or their counsel to make appearances.

015.05(B) PRELIMINARY MATTERS. The hearing officer hears any motions, stipulations, or other matters preliminary to proceeding with the hearing.

015.05(C) OPENING STATEMENTS. Parties may make opening statements of no more than 20 minutes in length, unless otherwise permitted by the hearing officer, related to the evidence presented and explanation of that evidence. Opening statements take place in the same order as the order of proof. Parties may reserve the opening statement to precede the presentation of that party’s case.

015.05(D) PRESENTATION OF EVIDENCE. The evidence is presented in the order described in 015.04. In each stage, witnesses customarily pass through the following steps:

(i) Direct examination by the party calling the witness;

(ii) Cross‑examination by the opposing party;

(iii) Re‑direct examination by the party who called the witness; and

(iv) Re‑cross examination by the opposing party.

015.05(E) CLOSING ARGUMENTS. After the evidence is presented, parties may make closing arguments of no more than 20 minutes in length, unless otherwise permitted by the hearing officer, related to the evidence presented and explanation of that evidence. Closing arguments will be made in the same order as the order of proof.

015.05(F) OTHER MATTERS. After the close of the evidence and any argument, the hearing officer may take up such matters as may be necessary before closing the hearing.

015.05(G) CLOSING. The hearing officer announces the closing of the hearing.

015.06 HEARING BY WRITTEN SUBMISSIONS AND STIPULATIONS. Parties may enter into agreements to offer their cases by written submission or stipulate to the facts and proceed to hearing on the issue of disposition only. Such agreements must be in writing and entered into the record or be made verbally on the record at time of hearing.

015.07 OATH OR AFFIRMATION. Parties will be sworn in prior to testifying by oath or affirmation.

015.08 PARTIES APPEARING WITHOUT COUNSEL. Parties appearing without counsel may present their testimony by narration and will be sworn in prior to beginning testimony.

015.09 RECESSES. The hearing officer may recess the hearing for breaks, meals, and from day to day until the hearing is completed. If a hearing exceeds the day or days scheduled, the matter may be recessed to the next available date for proceeding with hearing.

015.10 BRIEFS. Parties may submit pre‑hearing or post‑hearing briefs, and they may be required by the hearing officer to submit briefs simultaneously or according to a prescribed schedule.

015.11 LATE SUBMISSIONS. Submission of exhibits after the close of hearing may be made only with the permission of the hearing officer upon motion by the party at the hearing. If the motion is granted, the opposing party will be given opportunity to offer rebuttal.

015.12 REOPENING. Once a hearing is closed, it will be reopened only upon showing of good cause and before judgment. Application may be made by motion and will be heard unless the parties stipulate and jointly move to reopen the case.

016. DECISIONS AND ORDERS. The rendering of decisions and issuance of orders are subject to 53 NAC 4-008.

017. RECONSIDERATION. A party dissatisfied with the Division’s decision may request reconsideration by filing a motion that meets the requirements of 012 within 5 days of the date the final decision was served. The Division’s authority to reconsider its decisions exists only until an appeal is filed or the statutory period for filing an appeal expires. A motion for reconsideration does not extend the statutory time to appeal.

017.01 HEARING. Hearings on motions for reconsideration will be held no later than 10 days from the date the final decision was served. When possible, parties will receive three days' advance notice of the time set for hearing.

017.02 BRIEFS. Parties may file briefs at time of hearing or may be ordered by the hearing officer to file briefs at hearing or within 3 days after hearing.

017.03 DECISIONS. Decisions on motions for reconsideration will be made by order within 27 days of the date the final decision was served. A decision may be made orally by the hearing officer at time of hearing, but will be reduced to writing within such period.

017.04 BASIS FOR RECONSIDERATION. Motions for reconsideration made in the proper form and filed within the proper time may be granted if:

(A) The motion and record show a serious irregularity in the conduct of the proceeding;

(B) There is newly‑discovered evidence which was not available to the moving party at the time of the hearing and which may be sufficient to reverse the Division’s action;

(D) The motion and record show an error of law; or

(E) There was good cause for the moving party's failure to appear or file papers, which resulted in default by that party.

017.05 PROCEDURE. Depending up the basis upon which it is granted, reconsideration may consist of an entirely new hearing; reopening the record of hearing for the limited purpose of receiving newly discovered evidence; or entry of new findings and conclusions of law. Upon the granting of a motion for reconsideration the original decision will be vacated. When new hearing proceedings are required, the order will set the date, time and location of hearing, and prehearing and hearing procedures will be the same as those for the original proceeding.

018. APPEALS. Appeals are governed by 53 NAC 4-009.

History

Effective 2024-09-17

Chapter 6 Removal of Appointed Board Members by the Nebraska Board of Health

Neb. Admin. Code tit. 184, ch. 6 Removal of Appointed Board Members by the Nebraska Board of Health {#sec-184-nac-6 omnilex-key=us-ne-regs-official--title-184--184 NAC 6}

TITLE 184 GENERAL ADMINISTRATION – DIVISION OF PUBLIC HEALTH

CHAPTER 6 REMOVAL OF APPOINTED BOARD MEMBERS BY THE NEBRASKA BOARD OF HEALTH

001. SCOPE AND AUTHORITY. This chapter implements the Uniform Credentialing Act, Nebraska Revised Statutes (Neb. Rev. Stat.) §§ 38-101 to 38-1,146 and the practice acts cited in Neb. Rev. Stat. § 38-101. The chapter applies to the removal of any member of an appointed board by the Board of Health except when erroneous appointments are vacated to comply with statutory requirements.

002. DEFINITIONS. Definitions are set out in the Uniform Credentialing Act and this chapter.

002.01 BOARD OF HEALTH. The Nebraska State Board of Health.

002.02 CHAIRPERSON OF THE HEARING PANEL. A member of the Board of Health designated by the chairperson of the Board to serve as chairperson of the hearing panel. This person may be the chairperson of the Board of Health.

002.03 COMPLAINT. A negative report against a member as it relates to the member’s status, ability, or capacity to serve as an appointed board member.

002.04 HEARING PANEL. The members of the Board of Health who hear and make final decisions regarding members’ removal. Members of the hearing panel may not be on the review panel.

002.05 REVIEW PANEL. A standing committee of the Board of Health, comprised of three members appointed by the chairperson of the Board.

003. REMOVAL AUTHORITY. Professional and lay members of appointed boards may be removed on the grounds set forth in Neb. Rev. Stat. § 38-160.

004. SCREENING OF COMPLAINTS.

004.01 RECEIPT OF COMPLAINTS. No particular form is required. Complaints may be reported to any member of the Board of Health or the Department of Health and Human Services.

004.01(A) PETITIONS FOR DISCIPLINE. A filing of a petition for disciplinary action based on Neb. Rev. Stat. §§ 38-178 or 38-179 or certification by an appointed board that a member is not qualified to practice a profession for reasons set out in Neb. Rev. Stat. § 38-1,110 constitutes the filing of a complaint.

004.01(B) INITIATION BY REVIEW PANEL. The review panel may initiate a complaint based upon public information.

004.01(C) REQUESTS FOR REMOVAL AND QUESTIONS ABOUT FITNESS. Requests that board members be removed or information questioning members’ fitness to serve constitute the filing of a complaint.

004.02 EXAMINATION OF COMPLAINTS. The review panel will review and examine complaints no later than the next regularly scheduled Board of Health meeting.

004.03 REFERRAL OF COMPLAINTS.

004.03(A) COMPLAINTS ABOUT ACTIONS AS HEALTH CARE PROFESSIONALS. Complaints involving allegations for which credentials may be disciplined will be referred for investigation as provided by statute. The review panel will suspend action on these referrals pending the receipt of notice from the Director of the Division of Public Health, or the Attorney General of their determination of a course of action concerning the complaint. Such notice will be provided to complainants.

004.03(B) COMPLAINTS PERTAINING TO CAPACITY TO SERVE. Complaints pertaining to capacity to serve on an appointed board will be referred for investigation.

004.04 EVALUATION OF INVESTIGATIONS. The review panel may determine if investigation is required beyond that provided for in section 004.03 and will provide such investigation. In determining whether to conduct such an investigation the review panel may consider:

(A) Whether circumstances indicate that a complaint is made in good faith and is not malicious, frivolous, or vexatious;

(B) Whether the complaint is timely or has been delayed too long to justify present evaluation of its merit; and

(C) Whether complainants may be necessary witnesses if action is taken and are unwilling to identify themselves and come forward to testify.

004.05 REVIEW PANEL DETERMINATION.

004.05(A) FINDING BASIS FOR REMOVAL. If a majority of the review panel determines, after review and investigation of all complaints, that there is reasonable cause to believe that members or their actions are encompassed within section 003, the review panel will prepare a petition for removal and forward it to the hearing panel in accordance with section 005. The petition will set out in detail the factual basis for the allegations and allege the basis for removal under section 003.

004.05(B) FINDING NO BASIS FOR REMOVAL. If, after review and investigation of all complaints, a majority of the review panel determines that members or their actions are not encompassed within section 003, or are not substantiated, the complaints against the member will be dismissed for purposes of removal from an appointed board, and the review panel will so notify the member and any complainant. Dismissed complaints and all related investigation material will be forwarded to the hearing panel at the next scheduled meeting for informational purposes only.

005. HEARING PROCESS.

005.01 GENERAL. Upon receipt of a petition, the chairperson of the hearing panel will set a hearing date subject to section 005.05. The hearing date will be no later than the first meeting of the Board of Health after the petition is filed and proper notice is given as required by section 005.04. The hearing panel may not make a final determination until the member has been afforded a complete evidentiary hearing.

005.02 ROLES OF BOARD OF HEALTH. The members of the review panel will serve as the prosecution and are responsible for presenting the investigative findings regarding complaints against members. The hearing panel will determine if the investigative findings establish that the member or the member’s actions fall under the criteria in section 003. If the member or member’s actions are found to fall under section 003, the hearing panel may remove the member.

005.03 LEGAL REPRESENTATION. Review and hearing panels may request legal representation.

005.04 NOTICE OF HEARING. The hearing panel chairperson will prepare an official notice setting forth the time and place of the formal hearing and a general description of the hearing’s purpose. The notice and a copy of the petition will be served on the member by any means permitted by law at least 30 days before the hearing.

005.05 HEARING PROCEDURES. The hearing will be conducted in accordance with 53 Nebraska Administrative Code Chapter 4. The hearing may be conducted by the hearing panel or a designated hearing officer, but in no case will a final decision be rendered by fewer than a majority of the hearing panel.

005.06 BURDEN AND STANDARD OF PROOF. The review panel will bear the burden of proof by a preponderance of the evidence.

006. FINAL DECISION.

006.01 TIMING OF DETERMINATION. The hearing panel will make a determination on the petition no later than the next regular meeting of the Board of Health following completion of the hearing. This decision will constitute the final decision of the Board of Health.

006.02 REMOVAL. Members may be removed only by positive vote of a majority of the hearing panel.

006.03 FORM OF DECISION. The decision will be in writing or stated in the record and accompanied by findings of fact and conclusions of law. The findings of fact will consist of a concise statement of the conclusions upon each contested issue of fact.

006.04 SERVICE. The final decision, including the findings and conclusions, will be served on the member by any means permitted by law. Service on the member’s attorney will be deemed service on the member. A copy of the final decision will be transmitted to all other interested parties in person or by mail.

007. APPEALS. Members aggrieved by a final decision of the Board of Health are entitled to judicial review under the Administrative Procedure Act.