R151-4-109. Extension of Time and Continuance of Hearing

  (1) When ruling on a motion or request for extension of time or continuance of a hearing, the presiding officer shall consider:

  (a) whether there is good cause for granting the extension or continuance;

  (b) the number of extensions or continuances the requesting party has already received;

  (c) whether the extension or continuance will work a significant hardship upon the other party;

  (d) whether the extension or continuance will be prejudicial to the health, safety or welfare of the public; and

  (e) whether the other party objects to the extension or continuance.

  (2)(a) Except as provided in R151-4-109(2)(b), an extension of a time period or a continuance of a hearing may not result in the hearing being concluded more than 240 calendar days after the day on which:

  (i) the notice of agency action was issued; or

  (ii) the initial decision with respect to a request for agency action was issued.

  (b) Notwithstanding R151-4-109(2)(a), an extension of a time period or a continuance may exceed the time restriction in R151-4-109(2)(a) only if:

  (i)(A) a party provides an affidavit or certificate signed by a licensed physician verifying that an illness of the party, the party's counsel, or a necessary witness precludes the presence of the party, the party's counsel, or a necessary witness at the hearing;

  (B) counsel for a party withdraws shortly before the final hearing, unless the presiding officer finds the withdrawal was for the purpose of delaying the hearing, in which case the hearing will go forward with or without counsel;

  (C) a parallel criminal proceeding or investigation exists based on facts at issue in the administrative proceeding, in which case the continuance must address the expiration of the continuance upon the conclusion of the criminal proceeding; or

  (D) the board or commission designated to act as the fact-finder at hearing is unavailable to meet on a date that:

  (I) allows the parties a reasonable period of time for discovery, motion practice, or hearing preparation; and

  (II) falls within the 240-day deadline for resolution; and

  (ii) the presiding officer finds that injustice would result from failing to grant the extension or continuance.

  (c)(i) If the presiding officer considers that extenuating circumstances not contemplated in R151-4-109(2)(b) justify a continuance beyond the 240-day deadline, the presiding officer shall file a written request for continuance with the Executive Director.

  (ii) A party may not directly petition the Executive Director for a continuance.

  (iii) The Executive Director's decision on the presiding officer's request for continuance shall be issued on an interlocutory basis, not subject to a request for reconsideration or judicial review until after a final order on the merits is issued.

  (d) The failure to conclude a hearing within the required time period is not a basis for dismissal.

  (3) The presiding officer may not grant an extension of time or continuance that is not authorized by statute or rule.

  (4) The factors in Subsection (1) do not apply to a request for agency review made pursuant to Subsection R151-4-901(1)(a). A request for an extension to file a request for agency review is governed by Subsection R151-4-901(1)(c).