I-2-0-21.Objection to Appearing at Hearing by Video Teleconferencing
Last Update: 1/21/20 (Transmittal I-2-229)
As explained in 20 CFR 404.936(d)(1) and 416.1436(d)(1), a claimant has the right to object to appearing at a hearing by video teleconferencing (VTC) within 30 days of receiving the acknowledgement letter. However, if a claimant changes residence while the request for hearing is pending, Office of Hearings Operations (OHO) management, through designated staff, will determine how the claimant appears, regardless of whether the claimant previously objected to appearing by VTC. Generally, OHO management, through designated staff, will honor the claimant's request not to appear by VTC even when a claimant changes residences if there is no additional delay or other reason not to schedule the claimant to appear in person.
If the claimant changes residence, and he or she did not object to appearing by VTC, see the instructions in HALLEX I-2-0-70 C.
B. Establishing Timeliness
In evaluating the timeliness of an objection, OHO management, through designated staff, presumes that a claimant receives the acknowledgement letter 5 days after the date of the letter, unless the claimant shows that he or she did not receive it within the 5-day period. OHO management, through designated staff, presumes that the claimant mailed a response to us no more than 5 days before we received it, unless there is evidence to the contrary.
C. Timely Objections
If a claimant objects in writing to a VTC hearing within the 30-day timeframe and does not change residences while the request for hearing is pending, the hearing will be set for a time and place at which the claimant may appear in person before the administrative law judge (ALJ).
However, if the claimant changes residences while the request for hearing is pending, OHO management, through designated staff, may still schedule the claimant to appear by VTC, despite the objection. The Hearing Office Chief Administrative Law Judge (HOCALJ) will determine whether to transfer the case to another hearing office (HO) by considering whether:
The claimant submitted evidence establishing a change in residence, such as a utility bill, notification from the post office, or other documentation establishing a change in residence. (A change in mailing address is not sufficient to establish a change of residence, e.g., a change of address to a P.O. Box does not establish a change of residence);
OHO management, through designated staff, is not required to develop a change in address (i.e., the burden is on the claimant), but may contact the claimant or representative for more information if a change in residence or mailing address suggests a claimant may need to travel more than 75 miles to the hearing site. Additionally, if the information does not clearly establish a change in residence (i.e., there is still some indication of a different residence), OHO management, through designated staff, may solicit more information.
The claimant now lives in the jurisdiction of another HO; and
The change in residence requires the claimant to travel more than 75 miles to a hearing site in the first HO's jurisdiction.
If all these criteria are met, the HOCALJ will determine and coordinate any appropriate transfer of the case. For example, if the processing times in the initial HO are significantly less than the processing times at the HO where the case would be transferred, the HOCALJ may not transfer the case to the HO in the claimant's service area.
The HOCALJ need not review a change in address if it does not result in a change in service area or the claimant did not object to appearing by VTC (see HALLEX I-2-0-70).
If a case transfer is appropriate, see HALLEX I-2-1-57. If no case transfer occurs, no notice to the claimant is required.
D. Untimely Objections
If the claimant submits an objection to appearing by VTC after the 30-day timeframe, the ALJ will evaluate whether the claimant has good cause for the late submission. If there is no evidence in the file indicating the reason for the late objection, the ALJ will send the claimant and representative, if any, a letter requesting an explanation for the untimely objection. The ALJ will add the letter and any response to the claim(s) file as exhibits. In evaluating good cause, the ALJ will use the standards set forth in 20 CFR 404.911 and 416.1411.
If the ALJ does not find good cause for the untimely objection, the HO will notify the claimant and representative, if any, before the hearing is scheduled. The ALJ's finding must be in a writing that is associated with the record and added as an exhibit.