|Purpose and Applicability|
|Pamphlet — “Why You Should Have Your Hearing By Video”|
ISSUED: September 3, 2005
REVISED: April 26, 2005
This Temporary Instruction (TI) provides procedures for using video teleconferencing to conduct appearances at hearings held by Administrative Law Judges (ALJs). The TI provides procedures for implementing the regulations that authorize the Social Security Administration (SSA) to conduct hearings before ALJs at which a party or parties and/or a witness or witnesses may appear by video teleconference (VTC). In this respect, the TI is intended for use by those hearing offices (HOs) whose service areas (or parts thereof) have been designated by the Associate Commissioner for Hearings and Appeals (OHA) as areas in which appearances at hearings can be conducted more efficiently by VTC than in person.
The extent of the TI's applicability will gradually increase as our use of VTC increases. By the end of FY 2006, we expect that we will be using VTC on a nationwide basis. Consequently, we expect that this TI will apply nationwide at that time. The TI also describes specific changes that we have made nationwide in the standardized notices of hearing that are generated through the Document Generation System (DGS). All adjudicators should be familiar with these changes which we have identified as appropriate in the course of our development of VTC procedures.
In those hearing offices that the Associate Commissioner has declared ready for use of VTC, ALJs will be able to conduct hearings where one or more participant appears by VTC from a remote location. The ALJ will conduct the hearing using a small, remote control operated video camera and a large, color TV monitor connected to existing SSA communications networks or, in some cases, to Federal, state or commercially owned and operated networks or privately owned equipment. VTC equipment will enable ALJs located at any VTC-equipped site to direct the conduct of hearings with claimants, representatives, translators and/or witnesses located at any other VTC-equipped site.
VTC sites will include hearing rooms, permanent remote hearing sites and other SSA VTC facilities such as field offices, DDSs and similar locations. VTC-equipped sites will also include sites belonging to state networks, such as the Iowa Communications Network and the Montana Educational Network, other Federal networks, state prisons, and secure private or commercial sites. For sites on the SSA network, the ALJ will have the ability to control the VTC equipment at both sites.
The regulations that authorize and direct use of VTC are located at 20 CFR §§ 404.929, 404.936, 404.938, 404.950, 416.1429, 416.1436, 416.1438, and 416.1450, as amended in final rules published in the Federal Register (FR) on February 3, 2003 (68 FR 5210) and December 11, 2003 (68 FR 69003). A copy of the FR documents that amended these regulations to incorporate VTC provisions is attached to this TI as Attachment 1. Background on SSA's testing of the use of VTC and on its decision to gradually rollout use of VTC procedures nationally is provided in the preamble to the February 2003 final rules with request for comment and the December 2003 final rules.
HOs should request the servicing field offices (FOs) in an area that has been declared VTC-ready to stock a supply of our pamphlet “Why You Should Have Your Hearing By Video” (copy at Attachment 2 to this TI). Each FO should provide the pamphlet to claimants and representatives who live in the area of a VTC equipped site when the request for hearing is filed. A copy of the pamphlet should also be sent to the claimant and representative when you acknowledge receipt of the request for hearing. In addition to the pamphlet, current information about VTC for hearings is available on the intranet at: http://ohaweb.ba.ssa.gov/ohanet/video_hearings/index.asp
As discussed in the preamble to the final rules with request for comments published on February 3, 2003, HO staff should make it their practice in pre-hearing contacts with claimants and their representatives to ensure that they have received information about VTC procedures. Staff should also ensure that claimants and representatives have an opportunity to ask questions about the use of those procedures.
Where a case is to be transferred to an ALJ in another HO (see I-2-1-57), and it is anticipated that the assisting ALJ would schedule the hearing by VTC, the servicing office should provide the claimant and/or the representative an opportunity to review the claim file or parts thereof before it is transferred and ensure that the claimant and representative are informed that the use of VTC during the hearing is anticipated. Although it is not necessary to obtain the claimant's permission in advance, if the claimant or representative has a strong objection to the claimant appearing by VTC, the servicing HO may decide not to transfer the case. In order to ensure that hearings on transferred cases can be scheduled timely, the servicing hearing office must also work closely with the assisting office during the transfer process to ensure that VTC equipped hearing rooms can be scheduled at both sites within reasonable time frames.
As noted in the preamble to the final rules with request for comment, ALJs will be expected to routinely schedule appearances by VTC in areas in which the Associate Commissioner for Hearings and Appeals has determined that appearances at hearings can be conducted more efficiently by VTC than in person. Sections 404.936(c) and 416.1436(c) of the regulations state: “The administrative law judge will direct that the appearance of an individual be conducted by video teleconferencing if video teleconferencing technology is available to conduct the appearance, use of video teleconferencing to conduct the appearance would be more efficient than conducting the appearance in person, and the administrative law judge does not determine that there is a circumstance in the particular case preventing use of video teleconferencing to conduct the appearance.”
Under the provisions of §§ 404.936(c) and 416.1436(c), which apply to all types of cases and to all the individuals who are to appear at the hearing, an in-person appearance should be scheduled in an area that has been declared VTC-ready only if the ALJ determines that there is a circumstance in the particular case that would make it inappropriate to use VTC for the appearance of the claimant or a witness. Situations in which the ALJ might exercise his or her discretion not to schedule a VTC appearance could include, but are not limited to, situations where:
It would be more efficient to conduct the claimant's appearance in the HO because his or her residence is closer to the HO than any VTC-equipped remote site;
An ALJ is available at the remote site for another reason or lives in the area of the remote site, so it would not be more efficient for the judge to conduct the hearing from the HO;
An ALJ would have to travel to another office to access the VTC equipment and such travel would be at a greater expense than traveling to the remote site;
The claimant presents a threat of violence, and there is insufficient security at the remote site for the hearing monitor;
The claimant or the claimant's representative has a visual or auditory impairment of a type that could adversely affect his or her ability to appear and participate in the hearing through VTC, with respect to interacting with either the ALJ or a witness;
The claimant alleges bias on the part of an expert witness and the ALJ determines that the claimant should have the opportunity to cross examine the witness in person because of the greater immediacy of an in-person confrontation; or
The existing evidence indicates that in-person observation of the claimant is required to evaluate the claim properly. An example would be cyanosis or skin tones associated with certain medical conditions that might indicate the need for additional medical documentation.
Another situation in which the ALJ might determine that there is a circumstance preventing use of VTC for an appearance is that in which the claimant or his or her representative have made it clear, in the pre-scheduling process, that he or she is not willing to appear by VTC. Under the authority to conduct VTC appearances established in the revised regulations, the claimant's right to object to appearing by VTC arises only after the notice of hearing is issued (see C. below); However, under the revised regulations (as the preamble to the final rules with request for comment notes), it will be our practice to give claimants an opportunity to state a preference about appearing by VTC, and the “ALJ will consider any stated preference of the claimant or the representative for or against appearing by VTC” in setting the time and place of the hearing.
The purpose of scheduling an appearance by VTC without seeking the claimant's permission in advance, and of timing the claimant's right to opt out of a VTC appearance to occur after the notice of hearing is issued, is to increase participation in VTC procedures while preserving the claimant's option not to appear by VTC. It is anticipated that claimants and their representatives will carefully consider whether they should exercise this option (which, if timely exercised, is absolute once it arises), since doing so could delay their hearings (even under the scheduling and site-usage practices we are undertaking, as explained in D. below, to expedite the rescheduling of hearings to allow in-person appearances). The refusal of a scheduled appearance by video teleconference on the part of a claimant or representative should not normally require that the case be reassigned to another ALJ. We anticipate that the ALJ to whom the case is assigned will usually retain jurisdiction over the case and will reschedule it for an in-person hearing. This will prevent representatives from using the withdrawal process as a means of rejecting the assigned judge. There are circumstances, such as the inability of the assigned judge to travel, which may require reassignment, but in general, reassignment is not contemplated.
While the claimant and his or her representative have an absolute right to refuse to appear at a scheduled hearing by VTC, they do not have the right to veto the scheduled appearance of any witness by VTC. A claimant may state objections to the appearance of an expert witness by VTC just as he or she may state objections to any other aspect of the hearing. Pursuant to 20 CFR §§ 404.936(d) and 416.1436(d), the ALJ must be notified of these objections at the earliest possible time before the time set for the hearing. The ALJ will then rule on these objections.
We reserve the right not to schedule VTC appearances for individuals (claimants or witnesses) who ask to appear by VTC. In some areas we may not have the capability to accommodate the request. Furthermore, in areas that have been declared VTC ready, the ALJ may determine that an appearance must be conducted in person even though VTC capability is available.
When sending out the notice of hearing for a hearing at which the claimant or a witness will appear by VTC, HOs must use a standardized notice that includes appropriate language as shown in the “Sample Notice” at Attachment 3. The necessary language may be generated through DGS for the standardized notices of hearing we use in all case types, as well as for our standardized amended notices of hearing and notices of continued hearing. Appropriate language options are available in DGS for a variety of situations involving VTC use, including those in which the claimant only appears before the ALJ by VTC, only a witness or witnesses appear by VTC, the claimant and one expert witness appear by VTC (from the same or a different site), or the claimant and all witnesses appear by VTC (from the same or different sites).
The notice of hearing sent to a claimant who is to appear by VTC includes two headings (each with accompanying text) that are not included in other standardized notices. The first heading, “I Plan To Use Video Teleconferencing At Your Hearing”, notifies the claimant that his or her appearance has been scheduled to be by VTC and explains the VTC process. The second, “What To Do If You Do Not Want To Appear At Your Hearing By Video Teleconference”, tells the claimant how to use the acknowledgment form (HA-504) to notify the ALJ if he or she wants to appear in person. The text under this heading also explains that the claimant must tell the ALJ at the earliest possible opportunity of an objection to appearing by VTC; that the claimant can assure timely submission of the objection by returning the acknowledgment card within 5 days of receipt of the notice; and that if the claimant does not timely notify the ALJ of such an objection, the ALJ will consider whether the claimant had a good reason for not promptly notifying the ALJ.
Under the heading “If You Cannot Come To Your Scheduled [Rescheduled/Continued] Hearing”, the Sample Notice includes the DGS notice of hearing language to advise claimants who have been scheduled to appear by VTC that they do not need to state a reason for not wanting to participate by VTC. The preamble to the final rules with request for comment states that a claimant's timely objection to appearing by VTC or of a desire to appear in person will constitute good cause for rescheduling the claimant's appearance (68 FR at 5213 (February 3, 2003). This is reflected in sections 404.936(e) and 416.1436(e) of the final rules which provide that, if the claimant has notified the ALJ of the objection as required by §§ 404.936(d) and 416.1436(d) (i.e., at the “earliest possible opportunity before the time set for the hearing”), the ALJ will find that a claimant's wish not to appear by VTC constitutes a good reason for changing the time and place of hearing so that the claimant may appear in person.
The “Remarks” section of the Sample Notice also contains standardized DGS language to advise the claimant that an expert witness or witnesses will appear by VTC and that the claimant will see, hear and speak with the expert through the VTC equipment. Language is also available through DGS to advise the claimant that his or her communication with an expert witness will be by VTC in situations in which the witness is appearing in person before the ALJ and the claimant is appearing by VTC.
If an individual will participate in the hearing through VTC from a site other than that at which the claimant will appear, and if standardized language is not available to advise the claimant of this circumstance, the Sample Notice calls for the addition through DGS of personalized remarks to advise the claimant of this use of VTC. Personalized remarks to notify would be added, for example, where an interpreter will participate by VTC from a site other than that at which the claimant is located, or where a witness produced by the claimant will appear by VTC from a different site than the claimant's.
Where the claimant will appear by VTC, DGS will also delete the first bullet under “What Happens At The Hearing” and add the following language under “Remarks” —
You have a right to review the claim file. If you have not already reviewed the file or made arrangements to do so, please call this office at the number shown on the first page of this notice. You will also have an opportunity at the hearing to view documents in the file using a special document camera.
The Sample Notice also includes the HA-504 acknowledgment form that is to be issued with notices of hearing sent to claimants who have been scheduled to appear by VTC. The form issued in these instances includes a block the claimant may check to indicate that: “I do not want to appear at my hearing by video teleconference. Please reschedule my hearing so that I may appear before you in person.” DGS will generate the acknowledgment form with this language when the claimant is scheduled to appear by VTC.
The Sample Notice and the DGS notice language also reflect five changes that we have made in all of our standardized notices of hearing that are not directly related to VTC procedures. One change is to refer to the acknowledgement “form,” rather than the acknowledgment “card.” Under DGS, we have not used an actual card in some time, so this change reflects current practices. This language is also now reflected in the regulations (see §§ 404.938(c) and 416.1438(c)).
The second change to our standardized notices of hearing nationwide is the addition of language to explain that we assume that the notice of hearing is received five days after the date on the notice unless the claimant shows us that the notice was not received within the 5-day period. The added language is derived from the definition of “Date you receive notice” in §§ 404.901 and 416.1401.
The third change made in all relevant standardized notices was to include in the notices, under the heading “If You Cannot Come To Your Scheduled [Rescheduled/Continued] Hearing”, a statement explaining that if the claimant does not request a change in the time and place at the earliest possible opportunity, the ALJ will decide, using applicable standards, whether the claimant had a good reason for not timely objecting. See Sample Notice at Attachment 3. These standards apply in determining good cause in all instances in which claimants fail to timely request a change in the time and place, including those in which claimants fail to timely request a change in the scheduled time and place because they want the hearing set for a place at which they may appear in person.
The fourth change involved several modifications to the heading and the text in standardized notices that pertain to objections to issues. These modifications were as follows —
Changing the heading from “If You Object To The Issues” to “If You Have Objections”;
Specifying in the text that claimants may object not only to “issues” but “to any other aspect of the scheduled [rescheduled/continued] hearing”; and
Modifying the language of the text to advise claimants that they must submit any objections “at the earliest possible opportunity before the hearing”, rather than “as soon as possible before the hearing.”
In promulgating regulations that do not grant claimants authority to veto the appearance of expert witnesses by VTC, SSA considered a public comment that noted, among other things, that claimants may state objections to the appearance of an expert by VTC just as they may state objections to any other aspect of the hearing (see preamble to the final rules). We made changes to the notice section dealing with objections in the standardized notices of hearing to make it clearer that, as has always been our intent, claimants may object to any aspect of the scheduled hearing (including the appearance of a witness by VTC). We are using “at the earliest possible opportunity” rather than “as soon as possible” to avoid any suggestion that the standard for timely objecting to varied aspects of the hearing differs from the standard for timely objecting to the time and place set for the hearing. The regulations use the “at the earliest possible opportunity” phrasing to describe the time in which claimants may timely submit objections to the scheduled time and place for a hearing, to the issues, or to any other aspect of the scheduled hearing.
In the fifth change made to our notices nationwide, we updated the Privacy Act, Computer Matching and Paperwork Reduction Act statements shown on the form HA-504, which is included with all notices of hearing.
If a claimant who has been scheduled to appear by VTC timely requests a change to a hearing at which he or she may appear in person, or requests such a change on a delayed basis and has a good reason for the delay, the ALJ will reschedule the hearing to one at which the claimant may appear in person. The hearing will be rescheduled at the earliest possible time based on the date the claimant filed the request for hearing. Election of the option to appear in person will not cause the claimant to lose his or her place in the queue of individuals awaiting entry into the process for scheduling hearings. In addition, as the preamble to the final rules with request for comment explains, it will be our practice in rescheduling a claimant to appear in person to give the individual an opportunity to appear in person either in the servicing HO or at any remote site in the HO's service area (including, but not limited to, the designated remote site for the claimant's place of residence). In following these practices, we will apply our normal rules for reimbursing the travel expenses that claimants, their representatives, and any witnesses who have not been subpoenaed incur in traveling to the HO or to any remote site in the service areas (see §§ 404.999a-404.999d and 416.1495-416.1499). A claimant's decision not to accept a scheduled appearance by VTC will not prevent reimbursement of travel expenses under §§ 404.999c and 416.1498(d)(4).
Hearings where one or more participants appear by VTC are conducted in the same manner as other remote-site or travel hearings with the following exceptions:
Because ALJ travel is unnecessary when the claimant appears by VTC from a remote location and the ALJ remains in the HO, hearings using VTC can be scheduled and conducted on a flow or daily basis without assembling a travel docket. Use of VTC can also facilitate the scheduling of experts whose testimony is required at the hearing. To ensure that the scheduling of hearings using VTC is not delayed, cases involving such hearings will be identified and coded into the Case Processing and Management System (CPMS) as early in the pre-hearing screening process as possible (see I-5-1-16 IV under Management Information).
In addition to the usual considerations regarding the availability of the hearing participants, the scheduler must consider the availability of the remote VTC hearing site, the video hearing room in the HO (or other network access site), and the availability of a contract monitor, guard or other individual at the remote site.
Even though the ALJ may not be physically present at the remote site, he/she must determine whether a security guard needs to be at the remote site for the contract hearing monitor. This is especially important where the claimant is unrepresented and the monitor will be alone with the claimant.
When using state or commercial networks, the scheduler will be required to reserve time and rooms on the network using whatever procedures the State or commercial network requires.
Single-connection, point-to-point video calls can be made at any time on the SSA data network (“SSA Net”) managed by the Office of Telecommunications and Systems Operations (OTSO) and can be preprogrammed into the equipment. All sites on SSA Net are shown on a drop down menu in the address book. Select the site desired and press the “call” button. This will activate the equipment at the remote end. If the equipment at the remote end is being used, a dialog box will appear telling the user that the equipment they are attempting to connect to is in use. In order to avoid disrupting a meeting or in-person hearing, always ensure that the room at the remote end is reserved for you or not in use prior to placing a call.
Where the remote location is not on the SSA Net or more than two locations are involved (such as an HO, a remote site, and an expert witness at a third location), the scheduler will need to reserve a gateway or dial-in bridge line from OTSO. Gateways are needed for callers outside the SSA Net to reach the network. Bridges are used when the call involves more than two locations. All users (sites) will be connected in the same manner as a conference call by telephone. OTSO provides an automated menu for reserving gateways and bridge lines at 410-597-1000. Additional instructions for scheduling and placing video calls may be found at: http://ohaweb.ba.ssa.gov/ohanet/video_hearings/index.asp
Claimants and representatives appearing by VTC should be strongly encouraged to mail new evidence to the HO well in advance of the hearing date. OHA remote VTC sites and HO VTC hearing rooms are equipped with facsimile capability. Evidence the claimant brings to the hearing may be faxed to the ALJ in the HO in limited quantities. The ALJ may require the claimant or representative to mail larger quantities of evidence.
The ALJ, hearing office staff or monitor should establish the video connection and check the equipment at least 15 minutes prior to the scheduled hearing.
Normally, the video camera should remain powered on and connected to the network at all times. OTSO continuously monitors all video equipment connected to the network to ensure that it is operational. If the video equipment is disconnected or powered off, it cannot be monitored and OTSO cannot ensure operational status. The OTSO Control Center Hotline (phone # (410) 966-9300) should be notified if video equipment is disconnected or there is a problem with the connection or the transmission. In lieu of powering off the video camera, you may mute the sound at your end of the video connection when it is not in use. Never cover the camera as it could overheat and be damaged. Peripheral equipment, such as the document camera and FAX machine may be powered off when not in use. We suggest leaving the TV monitor powered on at all times so incoming calls are readily apparent. The monitor will go into sleep mode when not in use.
When calling the Hotline to report a problem, the caller must always obtain a ticket number from the help desk. Obtaining a ticket number will ensure that the problem is entered into OTSO's tracking system and promptly responded to. In the event follow-up is needed, service calls and ticket numbers should be logged along with other HO service calls by the Hearing Office Systems Administrator or another responsible individual.
Expert witnesses will frequently testify from the HO; however, they may also testify from a remote VTC location.
The hearing may be recorded in audio only either at the remote end or at the hearing office end. Normally, only one hearing monitor will be used and will be located at the remote end which is the best location to make a good quality recording of the claimant's testimony. However, in some network or off-network call-in situations, no contract monitor will be available at the remote end and the recording will be made at the hearing office end.
Claimants and representatives participating by VTC must be provided access to the record. This may be done by providing the claimant and the representative a copy of the evidence of record or an opportunity to review the file at the local Social Security FO before the hearing is conducted, and/or through use of document cameras to display documents on the day of the hearing. Alternatively, if the claimant is represented, the hearing office may provide the representative with a copy of the exhibit list to review. The representative may then request copies of any documents he or she does not already have. Compliance with these procedures is necessary to fulfill the commitment the Agency has made, as discussed in the preamble to the final rules, to ensure that claimants who make VTC appearances have access to their records that is sufficient and equal to that of individuals who appear in person.
The claimant and representative, upon arrival at the VTC room, will be provided the following information about participating in a hearing by VTC.
The hearing is conducted in the same way as an in-person hearing except the ALJ will usually be located in the HO and will communicate through the video teleconference monitor.
If an expert witness is scheduled, that person may be participating from the HO or may participate from a third location. Explain where the witness is located. Explain that the claimant will be able to see, hear and speak to the expert witness through the VTC monitor.
Testimony is taken under oath or affirmation administered by the ALJ.
An audio (but not a video) recording will be made of the proceedings by the hearing monitor. Only one person should speak at a time to avoid over-riding any speech.
There is facsimile equipment available that the claimant or representative can use to fax to the ALJ any evidence which the claimant brought to the hearing.
If the SSA network is being used, the ALJ can direct control of the cameras at both the HO and the remote site. Therefore, the ALJ should ensure that each hearing participant can be seen by all other hearing participants, when speaking or testifying. If remote control of the camera is not available, the ALJ and the hearing monitor must coordinate the placement of individuals to ensure that they can be seen.
When scheduling an appearance by VTC in CPMS, the user should select the “VTC” event type and a site which is designated as video equipped. CPMS scheduling screens for VTC events require the user to select a site code for each participant at the hearing. In order to make full use of the CPMS database for scheduling and generating correct notices using DGS, it is essential for the Hearing Office and Regional Office CPMS table administrators to correctly maintain the CPMS tables dealing with expert witnesses and hearing sites. These are nationwide tables which facilitate scheduling sites and experts nationwide. The 4 digit site code in the table will be assigned by the servicing hearing office. The convention is two digits for the hearing office followed by “v” if video-equipped, followed by a number. The site name should also be descriptive for a user in another hearing office. Video-equipped sited should be designated as such. Off-network sites which do not belong to SSA (e.g., schools or prisons) need an assigned site code created by the servicing hearing office. Multiple video units require one site code for each unit. We suggest that you use the instructions field to enter useful information such as the dial-up extension number or room numbers when there are multiple units.
Hearing office personnel should direct any questions to their Regional Office. Regional Office personnel should contact the Special Projects Officer in the Office of the Chief Administrative Law Judge at (703) 605-8537. Headquarters personnel should contact the Office of Policy, Planning and Evaluation at (703) 605-8260.
Attachment 1 — [Link to] Final rules with request for comment (February 3, 2003)
Final rules (December 11, 2003)
Attachment 2 — [Link to] Pamphlet — “Why You Should Have Your Hearing By Video”
Attachment 3 — Sample Notice
 These final rules were effective March 5, 2003.
 As provided in §§ 404.936(b) and 416.1436(b), the “place” of the hearing is the site(s) at which the claimant and any other parties are located when they make their appearances. Whether the appearance of a party or a witness is made in person or by VTC is determined based on how an individual makes his or her appearance before the ALJ. Where the claimant is appearing by VTC and a witness is at the same location as the ALJ, the witness is appearing in person, not by VTC.
 As in deciding issues of whether a claimant who fails to appear at a hearing had good cause for not showing the ALJ before the time set for the hearing why he or she could not appear (see standardized Notice To Show Cause For Failure To Appear), we should consider the standards in §§ 404.911 and 416.1411, as well as the standards in §§ 404.936 and 416.1436, in deciding issues of whether a claimant has good cause for not objecting to the scheduled time and place for a hearing at the earliest possible opportunity.
 The issue of the timeliness of an objection to the set time and place applies to all such objections, including an objection based on a need for additional time to obtain a representative. In most cases, that issue is subsumed within the overall issue of good cause for changing the time and place. However, the issue is not subsumed within other issues in instances in which the claimant's objection is the absolute objection to appearing by VTC, which need not be supported by any factual showing or any statement of reasons.
 As previously discussed, a servicing HO should offer a claimant the opportunity to review his or her file before transferring the case to an ALJ in another HO who would schedule the claimant to appear by VTC.