Section 1240-05-05-.04 - DEFAULT AND UNCONTESTED PROCEEDINGS(1) Default. (a) The failure of a party to attend or participate in a pre-hearing conference, hearing or other stage of contested case proceedings after appropriate notice of those actions is cause for holding such party in default pursuant to T.C.A. § 4-5-309. Failure to comply with any lawful order of the hearing official, necessary to maintain the orderly conduct of the hearing, may be deemed a failure to participate in a stage of a contested case and shall be cause for a holding of default.(b) If a party fails to attend or participate as provided in subparagraph (a) above, the hearing official, after entering into the record evidence of service of notice to an absent party shall determine whether the service of notice is sufficient as a matter of law, according to State Rule 1240-5-4-.01. If the notice is held to be adequate, the hearing official may do either of the following: 1. Hold the party failing to attend or to participate in default and, after determining that the party in default has the burden of proof, adjourn the proceedings and enter an order of default setting forth the grounds for the default, that will become a Final Order without further notice as provided in State Rule 1240-5-8-.02, unless a timely filed Petition for Reconsideration is filed; or2. Hold the party failing to attend or to participate in default and, after determining that the party not in default has the burden of proof, conduct the proceedings without the participation of the defaulting party and include in the Initial Order a written notice of default setting forth the grounds for the default. The Initial Order will become a Final Order without further notice as provided in State Rule 1240-5-8 - .02, unless a timely filed Petition for Reconsideration is filed.(c) The hearing official shall serve upon all parties the written notice of entry of default for failure to appear as provided in part (b)1 or 2 above. The defaulting party, no later than fifteen (15) days after service of such notice of default, may file a Petition for Reconsideration as provided in T.C.A. § 4-5-317, requesting that the default be set aside for good cause shown, and stating the grounds relied upon. The hearing official may make any order in regard to such motion as is deemed appropriate, pursuant to T.C.A. § 4-5-317.Tenn. Comp. R. & Regs. 1240-05-05-.04
Original rule filed January 19, 1977; effective February 18, 1977. Amendment filed December 17, 1983; effective March 16, 1983. Amendment filed February 26, 2007; effective May 12, 2007.Authority: T.C.A. §§ 4-5-202, 4-5-219, 4-5-309, 4-5-317, 71-1-105(12) and 71-1-111; 42 C.F.R. § 431.223; 45 C.F.R. § 205.10(a)(5)(v); and 7 C.F.R. § 273.15(j)(1)(ii).