Current through Register 1531, September 27, 2024
(A)
Rescheduling before the Day
of the Hearing.
(1) BOH may
change the date, time, and location of the hearing upon due notice to the
parties involved.
(2) For good
cause shown as defined in 130 CMR 610.048(D), BOH may, at the request of any
party to a hearing, reschedule the hearing provided that the request is
received before the date of the hearing. If the BOH Director or his or her
designee concludes that the request does not constitute good cause, the request
will be denied.
(3) If a party does
not request to reschedule or is denied a request to reschedule and fails to
attend the hearing, the appeal will be dismissed.
(4) BOH will inform the parties of the
procedures set forth in 130 CMR 610.048(A)(1) through (3).
(B)
Rescheduling following
Failure to Appear at a Scheduled Hearing. If a party fails to
request or requests, but does not receive approval, to reschedule a hearing and
fails to appear at the hearing, BOH will notify the party and any appeal
representative in writing (at the address supplied by the party) that, if the
party fails to demonstrate good cause within ten days of the notice, the appeal
will be considered abandoned by such party. If the party who does not appear is
an appellant and if, in the determination of the BOH Director or his or her
designee, good cause, as defined in 130 CMR 610.048(D), has not been timely
shown by such appellant, the appeal will be dismissed subject to the procedures
set forth in 130 CMR 610.048(C), and aid pending, if any, will be discontinued.
If the party who fails to appear is a respondent and not an appellant, BOH will
issue an appropriate order. The BOH Director or his or her designee may at his
or her discretion reschedule a hearing to another date at which time the party
who failed to appear at the scheduled hearing will be required to establish
good cause for the failure to appear. A finding by the hearing officer that
good cause has not been shown will result in dismissal of the appeal.
(C)
Procedures for an Appellant
to Request Vacating a Dismissal.
(1) The appellant will be informed by written
notice of the dismissal and of the procedures for requesting that the dismissal
be vacated.
(2) A request to vacate
a dismissal must be in writing and must be signed by the appellant. Such
request must be received by BOH within ten days of the date of the dismissal
notice. If the dismissal is for failure to appear at a hearing, such a
dismissal will be vacated by the BOH Director or his or her designee upon a
finding that the appellant has shown good cause for
(a) failure to appear at a scheduled hearing;
and
(b) failure to inform BOH
before the date of a scheduled hearing of his or her inability to appear at
that hearing.
(D)
Good Cause.
(1) The following circumstances may
constitute good cause subject to 130 CMR 610.048(D)(2):
(a) a death in the family;
(b) a personal injury or illness that
reasonably prevents the party from attending the hearing;
(c) a sudden and serious emergency or act of
nature that reasonably prevents the party from attending the hearing;
(d) an obligation or responsibility that a
reasonable person in the conduct of his or her serious affairs would conclude
takes precedence over attendance at the hearing; or
(e) the need for additional time to produce
evidence or witnesses or obtain legal assistance; or
(f) for the purposes of 130 CMR 610.048(A)
only, the agreement of the parties to reschedule.
(2) In evaluating a party's good cause claim,
the BOH Director or his or her designee considers the following factors:
(a) the amount of time during which the party
had advance notice of the hearing;
(b) the party's ability to anticipate the
circumstances that resulted in his or her inability to appear for the
hearing;
(c) the party's ability to
reschedule any conflicting event;
(d) delay by the party in notifying BOH of
his or her inability to attend the hearing; and
(e) previous rescheduling requests or failure
to appear for scheduled hearings that indicate a pattern of delay or
noncompliance with the fair hearing rules.
(3) If a party will be required to show good
cause at the hearing, BOH will notify that party in advance that a hearing
officer will address that issue. The party will also be notified that the party
may bring documentation and witnesses in support of the good cause claim and
that failure to demonstrate good cause may result in dismissal of the
appeal.
