441—7.13 (17A) Rights of appellants during hearings.
	 7.13(1) Examination of the evidence. The department shall provide the appellant, or representative, opportunity prior to, as well as during, the hearing, to examine all materials permitted under rule 9.1(17A,22) or to be offered as evidence. Off the record, or confidential information which the appellant or representative does not have the opportunity to examine shall not be included in the record of the proceedings or considered in reaching a decision.
	 7.13(2) Conduct of hearing. The hearing shall be conducted by an administrative law judge designated by the department of inspections and appeals. It shall be an informal rather than a formal judicial procedure, and shall be designed to serve the best interest of the appellant. The appellant shall have the right to introduce any evidence on points at issue believed necessary, and to challenge and cross-examine any statement made by others, and to present evidence in rebuttal. A verbatim record shall be kept of the evidence presented.
	 7.13(3) Opportunity for response. Opportunity shall be afforded all parties to respond and present evidence and arguments on all issues involved and to be represented by counsel at their own expense.
	 7.13(4) Default. If a party to the appeal fails to appear or participate in a contested case proceeding after proper service of notice, the presiding officer may, if no adjournment is granted, enter a default decision or proceed with the hearing pursuant to subrules 7.13(1), 7.13(2) and 7.13(3) and render a proposed decision on the merits in the absence of the defaulting party.
	  a.   	 Where appropriate and not contrary to law, any party may move for a default decision against a party who has failed to file a required pleading or has failed to appear after proper service for a hearing. A proposed decision on the merits may be issued in the absence of a defaulting party.
	  b.   	 A default decision or a proposed decision rendered on the merits in the absence of the defaulting party may award any relief against the defaulting party consistent with the relief requested before the default, but the relief awarded against the defaulting party may not exceed the requested relief before the default.
	  c.   	 Proceedings after a default decision are specified in subrule 7.13(5).
	  d.   	 Proceedings after a hearing and a proposed decision on the merits in the absence of a defaulting party are specified in subrule 7.13(6).
	 7.13(5) Proceedings after default decision.
	  a.   	 Default decisions or decisions rendered on the merits after a party has failed to appear or participate in a contested case proceeding become final agency action unless a motion to vacate the decision is filed within the time allowed for an appeal of a proposed decision by subrule 7.16(5).
	  b.   	 A motion to vacate must state all facts relied upon by the moving party which establish that good cause existed for the party’s failure to appear or participate at the contested case proceeding and must be filed with the Department of Human Services, Appeals Section, Fifth Floor, 1305 East Walnut Street, Des Moines, Iowa 50319-0114. Each fact so stated must be substantiated by at least one sworn affidavit of a person with personal knowledge of each such fact. Each affidavit must be attached to the motion. In lieu of an affidavit, the moving party may submit business records or other acceptable documentation from a disinterested third party that substantiates the claim of good cause.
	 (1) 	 The appeals section shall be responsible for serving all parties with the motion to vacate. All parties to the appeal shall have ten days from service by the department to respond to the motion to vacate. All parties to the appeal shall be allowed to conduct discovery as to the issue of good cause and shall be allowed to present evidence on the issue before a decision on the motion, if a request to do so is included in that party’s response. If the department responds to any party’s motion to vacate, all parties shall be allowed another ten days to respond to the department.
	 (2) 	 The appeals section shall certify the motion to vacate to the department of inspections and appeals for the presiding officer to review the motion, hold any additional proceedings, as appropriate, and determine if good cause exists to set aside the default.
	  c.   	 Properly substantiated and timely filed motions to vacate shall be granted only for good cause shown. The burden of proof as to good cause is on the moving party.
	  d.   	 “Good cause” for purposes of this rule is defined as an emergency circumstance that is beyond the control of the party and that prevents the party from being able to participate in the hearing.
	 (1) 	 Examples of good cause include, but are not limited to:
	  1. 	 Sudden, severe illness or accident involving the party or the party’s immediate family (spouse, partner, children, parents, sibling).
	  2. 	 Death or serious illness in the party’s immediate family.
	  3. 	 Other circumstances evidencing an emergency situation which was beyond the party’s control and was not reasonably foreseeable.
	 (2) 	 Examples of circumstances that do not constitute good cause include, but are not limited to:
	  1. 	 A lost or misplaced notice of hearing.
	  2. 	 Confusion as to the date and time for the hearing.
	  3. 	 Failure to follow the directions on the notice of hearing.
	  4. 	 Oversleeping.
	  5. 	 Other acts demonstrating a lack of due care by the party.
	  e.   	 Upon determining whether good cause exists, the presiding officer shall issue a proposed decision on the motion to vacate, which shall be subject to review by the director pursuant to rule 441—7.16(17A).
	  f.   	 Upon a final decision granting a motion to vacate, the contested case hearing shall proceed accordingly, after proper service of notice to all parties. The situation shall be treated as the filing of a new appeal for purposes of calculating time limits, with the filing date being the date the decision granting the motion to vacate became final.
	  g.   	 Upon a final decision denying a motion to vacate, the default decision becomes final agency action.
	 7.13(6) Proceedings after hearing and proposed decision on the merits in the absence of a defaulting party.
	  a.   	 Proposed decisions on the merits after a party has failed to appear or participate in a contested case become final agency action unless:
	 (1) 	 A motion to vacate the proposed decision is filed by the defaulting party based on good cause for the failure to appear or participate, within the time allowed for an appeal of a proposed decision by subrule 7.16(5); or
	 (2) 	 Any party requests review on the merits by the director pursuant to rule 441—7.16(17A).
	  b.   	 If a motion to vacate and a request for review on the merits are both made in a timely manner after a proposed decision on the merits in the absence of a defaulting party, the review by the director on the merits of the appeal shall be stayed pending the outcome of the motion to vacate.
	  c.   	 A motion to vacate must state all facts relied upon by the moving party which establish that good cause existed for the party’s failure to appear or participate at the contested case proceeding and must be filed with the Department of Human Services, Appeals Section, Fifth Floor, 1305 East Walnut Street, Des Moines, Iowa 50319-0114.
	 (1) 	 The appeals section shall be responsible for serving all parties with the motion to vacate. All parties to the appeal shall have ten days from service by the department to respond to the motion to vacate. All parties to the appeal shall be allowed to conduct discovery as to the issue of good cause and shall be allowed to present evidence on the issue before a decision on the motion, if a request to do so is included in that party’s response. If the department responds to any party’s motion to vacate, all parties shall be allowed another ten days to respond to the department.
	 (2) 	 The appeals section shall certify the motion to vacate to the department of inspections and appeals for the presiding officer to review the motion, hold any additional proceedings, as appropriate, and determine if good cause exists to set aside the default.
	  d.   	 Properly substantiated and timely filed motions to vacate shall be granted only for good cause shown. The burden of proof as to good cause is on the moving party.
	  e.   	 “Good cause” for purposes of this rule is defined as an emergency circumstance that is beyond the control of the party and that prevents the party from being able to participate in the hearing.
	 (1) 	 Examples of good cause include, but are not limited to:
	  1. 	 Sudden, severe illness or accident involving the party or the party’s immediate family (spouse, partner, children, parents, sibling).
	  2. 	 Death or serious illness in the party’s immediate family.
	  3. 	 Other circumstances evidencing an emergency situation which was beyond the party’s control and was not reasonably foreseeable.
	 (2) 	 Examples of circumstances that do not constitute good cause include, but are not limited to:
	  1. 	 A lost or misplaced notice of hearing.
	  2. 	 Confusion as to the date and time for the hearing.
	  3. 	 Failure to follow the directions on the notice of hearing.
	  4. 	 Oversleeping.
	  5. 	 Other acts demonstrating a lack of due care by the party.
	  f.   	 Upon determining whether good cause exists, the presiding officer shall issue a proposed decision on the motion to vacate, which shall be subject to review by the director pursuant to rule 441—7.16(17A).
	  g.   	 Upon a final decision granting a motion to vacate, a new contested case hearing shall be held after proper service of notice to all parties. The situation shall be treated as the filing of a new appeal for purposes of calculating time limits, with the filing date being the date the decision granting the motion to vacate became final.
	  h.   	 Upon a final decision denying a motion to vacate, the proposed decision on the merits in the absence of a defaulting party becomes final unless there is request for review on the merits by the director made pursuant to paragraph 7.13(6)“a” or “j.”
	  i.   	 Any review on the merits by the director requested pursuant to paragraph 7.13(6)“a” and stayed pursuant to paragraph 7.13(6)“b” pending a decision on a motion to vacate shall be conducted upon a final decision denying the motion to vacate.
	  j.   	 Upon a final decision denying a motion to vacate a proposed decision issued in the absence of a defaulting party, any party to the contested case proceeding may request a review on the merits by the director pursuant to rule 441—7.16(17A), treating the date that the denial of the motion to vacate became final as the date of the proposed decision.
[ARC 8003B, IAB 7/29/09, effective 9/2/09; ARC 0304C, IAB 9/5/12, effective 11/1/12]