SSR 79-19


PURPOSE: To establish requirements necessary for a valid waiver of an individual's right to appear, in person or through a representative, and present evidence or information at a hearing before the Office of Hearings and Appeals; or before a presiding officer of a Medicare carrier in the case of hearings under the Supplementary Medical Insurance Program. The intent of this policy modification is to ensure that such waivers are made voluntarily and knowingly; i.e., with knowledge of the advantage of personal appearance and the consequences of a waiver of the right to appear at the hearing.

CITATIONS (AUTHORITY): Sections 205(b), 1631(c)(1), 1842(b)(3)(C), and 1869(b), and 1876(f) of the Social Security Act, and Section 413(b) of the Federal Coal Mine Health and Safety Act; Regulations No. 4, Subpart J, Section 404.934, Regulations No. 5, Subpart G, Section 405.701, Subpart H, Section 405.831 and Subpart T, Section 405.2060, Regulations No. 10, Subpart F, Section 410.647(a), Regulations No. 16, Subpart N, Section 416.1446(b).

PERTINENT HISTORY: The acts cited above provide each claimant shall have an "opportunity for a hearing." Social Security regulations further provide that any party to a hearing has a right to appear, personally or by representative, and to present evidence or information directly regarding the hearing issue. The regulations also provide that these rights may be waived. The only current requirement for a valid waiver is that it be filed in writing. For administrative convenience, Form HA-501, "Request for Hearing," has a check-block for this purpose worded as follows: "I waive my right to appear and give evidence, and hereby request a decision on the evidence on file." Even when such waiver of appearance if filed, current regulations provide the waiver may be withdrawn by a part prior to the mailing of notice of the decision rendered in the case. Moreover, the regulations provide that the presiding officer may notify the individual or the individual's representative that a hearing will be conducted and then hold the hearing if the officer believes that the personal appearance and testimony would help in deciding the issue in question. However, at recent meetings with representatives of legal-aid groups a recommendation has been made that the Social Security Administration (SSA) should take additional steps to insure that an individual's waiver of the right to appear at a hearing is made entirely voluntarily and is based on a full understanding of the results of such a decision. Adequate protection of this right is important because, by waiving attendance at a hearing, the appellant gives up an opportunity to present additional oral testimony himself or herself, or through a representative, directly to the decision-maker, even though this could affect the decision.

Review of recent SSA experience indicates that some appellants, particularly disadvantaged appellants, may indeed have jeopardized their benefit rights by waiving personal appearance at hearings; in fact, in several pending SSA litigation cases, contentions have been made that personal appearances at a hearing were waived without full knowledge of the consequences. Particularly in borderline cases, experience shows that a disability issue may best be resolved on the basis of detailed testimony as to the individual's activities, background, experience, etc., presented at the hearing. The presiding officer's personal observations of the appellant can also add additional weight to the medical evidence or other information of record. In view of the importance of the hearing appearance rights of appellants, modification of current policies is warranted.

POLICY DIRECTIVE STATEMENT: An individual who files a request for hearing must be given a thorough explanation of the hearing procedure. The individual should fully understand his or her rights to appear personally before the presiding officer and present evidence, to introduce witnesses and oral or written arguments, and to be represented by an attorney or other person of his or her choice. The individual must also be advised of the value of personal appearance at a hearing. It should be made clear that, in some cases, additional evidence obtained at the hearing, particularly through personal appearance and/or oral testimony, may be essential to the proper evaluation of the factors at issue.

If, after such explanation, the individual or the individual's authorized representative wishes to waive the right to personal appearance, he/she must sign a statement to that effect in accordance with the evidence requirements described below. If such a statement has not been obtained although required, the presiding officer will request it. Notwithstanding the fact that a waiver of personal appearance meeting these requirements has been filed, the presiding officer may schedule and conduct a hearing in accordance with existing regulations when deemed necessary to making a proper decision on the issue in question. The right to withdraw a waive of personal appearance before a notice of hearing decision is mailed remains unchanged. Also unchanged are the current regulatory provisions which apply to appeals filed by Medicare providers and suppliers.

DOCUMENTATION: An individual or the individual's authorized representative may waive the right to personal appearance at a hearing only by a writing signed by the individual or the authorized representative which shows:

1. a thorough explanation of the hearing procedure has been given;
2. the right to personal appearance at the hearing to testify and present evidence has been explained;
3. an explanation has been given of the right to representation at the hearing by an attorney or other person of the individual's choice;
4. it has been explained that, in some cases, additional evidence obtained through oral testimony and personal presence before the presiding officer may be of value in evaluating the issues;
5. the individual has been advised that, if he or she does not appear, the claim will be decided solely on the written evidence then in file plus any additional evidence submitted by the individual or the representative or obtained by the hearing officer;
6. the individual has been advised that he or she may withdraw the waiver of the right to appear at the hearing at any time prior to mailing of the notice of the decision.

CROSS-REFERENCES: Claims Manual sections 7109.4; 7192, Exhibit 2; 13612 and 13685.

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