1. (1) A request to reopen or set aside for failure to participate will be granted if the party was prevented from participating or appearing at the hearing due to circumstances beyond the party's control.

2. (2) A request to reopen or set aside for failure to participate may be granted upon such terms determined to be just for any of the following reasons: mistake, inadvertence, surprise, excusable neglect or any other reason justifying relief from the operation of the decision. The determination of excusable neglect is an equitable one, taking into account the relevant circumstances, including:

   1. (a) the danger that the party not requesting reopening will be harmed by reopening;
   2. (b) the length of the delay caused by the party's failure to participate including the length of time to request reopening;
   3. (c) the reason for the request including whether it was within the reasonable control of the party requesting reopening;
   4. (d) whether the party requesting reopening acted in good faith;
   5. (e) whether the party was represented by another at the hearing;
   6. (f) whether the party was represented by an attorney or professional representative who is required to know and understand Department rules and are held to a higher standard; and
   7. (g) whether, based on the evidence of record and the parties' arguments or statements, setting aside the default and taking additional evidence might affect the outcome of the case.
3. (3) Requests to reopen or set aside are remedial in nature and thus must be liberally construed in favor of providing parties with an opportunity to be heard and present their case. Any doubt must be resolved in favor of granting reopening.

KEY: administrative procedures, complaint procedures

Date of Last Change: October 18, 2022

Notice of Continuation: September 16, 2021

Authorizing, and Implemented or Interpreted Law: 35A-1-303; 35A-13-102; 35A-1-104