R986-100-131. Setting Aside A Default or Reopening the Hearing After the Hearing Has Been Concluded

  (1) If a default order is issued, an adversely affected party may request that the default order be set aside and a hearing or a new hearing be scheduled. If a party failed to participate in a hearing but no decision has yet been issued, the party may request that the hearing be reopened.

  (2) The request may be made orally or in writing as set forth in R986-100-123. A request to set aside a default order must be made within thirty days of the issuance of the default order. A request to reopen must be made within thirty days of the hearing date. If a request to reopen is made after a decision is issued, it shall be treated as a request to set aside a default order. If the request is made after the expiration of the relevant time limit, the requesting party must show good cause for not making a timely request. Good cause is defined as a showing that the delay was due to circumstances beyond the party's control, or that the delay was due to circumstances that were compelling and reasonable. Ordinary illness, lack of transportation, and temporary absence do not generally constitute good cause.

  (3) The ALJ may, on his or her own motion, set aside a default order or reschedule, continue, or reopen a hearing if it appears necessary to take continuing jurisdiction based on a mistake as to facts or a change in conditions, or if the denial of a hearing would be an affront to fairness. A presiding officer may, on his or her own motion, agree on behalf of the Department to set aside a default order on the same grounds.

  (4) If a default order is not set aside or a hearing is not reopened under Subsection (3) above, the request to set aside or reopen shall be forwarded to the Division of Adjudication for assignment to an ALJ. The ALJ shall hold a hearing to determine whether to set aside the default order or reopen the prior hearing unless it is clear from the record before the ALJ that the person seeking to set aside the default order or reopen the hearing cannot meet the applicable standards set forth in this rule or R986-100-132.

  (5) If a request to set aside the default order or reopen the hearing is not granted, the ALJ will issue a decision denying the request. A copy of the decision will be given or mailed to each party, with a clear statement of the right of appeal or judicial review. A party may appeal the denial by following the procedure in R986-100-135. The appeal can only contest the denial of the request to set aside or reopen and not the underlying merits of the case. If the denial is reversed on appeal, the Executive Director or designee may rule on the merits or remand the case to an ALJ for a ruling on the merits on an additional hearing if necessary.