I-2-0-21.Objection to Appearing at Hearing by Video Teleconferencing
Last Update: 8/29/14 (Transmittal I-2-115)
As explained in the Hearings, Appeals and Litigation Law (HALLEX) manual I-2-0-20, 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, under 20 CFR 404.936(d)(1) and 416.1436(d)(1), if a claimant established a change in residence while the request for hearing is pending, an administrative law judge (ALJ) will determine how the claimant appears, regardless of whether the claimant previously objected to appearing at the hearing by VTC. Generally, the ALJ 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 for an in person hearing.
If the claimant did not object to appearing at hearing by VTC and changes residences, see the instructions in HALLEX I-2-0-70 C.
B. Establishing Timeliness
In evaluating the timeliness of an objection, an ALJ 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. The ALJ presumes that the claimant mailed a response to the hearing office (HO) no more than 5 days before the HO received it, unless there is evidence to the contrary.
C. Timely Objections
If a claimant objects in writing 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 ALJ.
However, if the claimant changes residences while the request for hearing is pending, the claimant may still be scheduled for a hearing by VTC, despite the objection. If an ALJ has not yet been assigned to the case, the Hearing Office Chief Administrative Law Judge (HOCALJ) will determine whether to transfer the case to another 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);
The HO is not required to develop a change in address (i.e., the burden is on the claimant), but the HOCALJ will usually ask staff to 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), the HO may, but does not need to, 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 use his or her best judgment in determining whether to transfer the case. For example, if the processing times in the HO are significantly less than the processing times at the HO where the case would be transferred, the HOCALJ may consider not transferring the case at that time.
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 at hearing by VTC (see HALLEX I-2-0-70).
If an ALJ has already been assigned to the case, see HALLEX I-2-3-11.
If the HOCALJ finds that a case transfer is appropriate, see HALLEX I-2-1-57. If the HOCALJ determines that a case transfer may not be appropriate, no notice to the claimant is required at that time. Rather, the ALJ assigned to the case will reconsider the issue under the procedures in HALLEX I-2-3-11.
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.