I-2-3-11.Claimant Timely Objected to Appearing at Hearing by Video Teleconferencing but Has Changed Residences
Last Update: 1/21/20 (Transmittal I-2-231)
A claimant has the right to object to appearing at a hearing by video teleconferencing (VTC) within 30 days of receiving the acknowledgement letter. See Hearings, Appeals and Litigation Law (HALLEX) manual I-2-0-20. If the claimant timely submits the objection and his or her residence does not change while the request for hearing is pending, the hearing will be set for a time and place at which the claimant may appear before the administrative law judge (ALJ) in person.
However, under 20 CFR 404.936(d)(1) and 416.1436(d)(1), if a claimant establishes a change in 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 using the instructions in HALLEX I-2-3-11 B. Generally, OHO management, through designated staff, will honor the claimant's objection to appearing by VTC even when the 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 changes residence, and he or she has not objected to appearing by VTC, see the instructions in HALLEX I-2-0-70 C.
B. Determining Claimant's Manner of Appearance at the Hearing
When a claimant objects to appearing at a hearing via VTC and later changes residences, OHO management, through designated staff, must first determine whether an in-person hearing is appropriate. To do so, OHO management, through designated staff, will begin by considering whether the claimant submitted evidence establishing a change in residence. A utility bill, notification from the post office, or other similar documentation is generally sufficient for these purposes.
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).
As the regulations place the burden on the claimant to establish a change of residence, OHO management, through designated staff, is not required to develop the issue of whether a change in residence has occurred. For example, 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 at its discretion. However, it may be helpful to do so if an address change suggests the claimant may need to travel more than 75 miles to the hearing site.
If a change of residence is established, OHO management, through designated staff, will then consider whether:
The claimant now resides in the jurisdiction of another hearing office (HO); and
The change in residence requires the claimant to travel more than 75 miles to a hearing site in the HO's jurisdiction.
If the change of address does not result in a change in the servicing HO area or require the claimant to travel more than 75 miles to a hearing site in the HO's jurisdiction, OHO management, through designated staff, will generally schedule the claimant for an in-person hearing.
If, however, the claimant now resides in the jurisdiction of another HO and would be required to travel more than 75 miles to a hearing site in the HO's jurisdiction, OHO management, through designated staff, will evaluate whether it is more efficient to conduct the hearing by VTC (subject to criteria in HALLEX I-2-3-10), or whether the case needs to be transferred to the HO in the claimant's service area.
If a hearing is scheduled by VTC, OHO management, through designated staff, will send the claimant written notice indicating that the change in residence was considered, but it was determined the case would not be transferred.
If OHO management, through designated staff, determines a case transfer may be appropriate so that the claimant can appear in person at the hearing, the issue will be discussed with the Hearing Office Chief Administrative Law Judge (HOCALJ) or his or her designee. If the reasons for recommending an in-person hearing are reasonable (i.e., the circumstances warrant an in-person hearing or a VTC hearing is not possible), the HOCALJ, or his or her designee, may transfer the case under HALLEX I-2-1-55 F and I-2-1-57. If the HOCALJ or his or her designee does not agree to a case transfer, the ALJ will conduct the hearing by VTC.
A transfer of a case does not mandate an in-person hearing at the receiving hearing office. Though all due considerations must be given to the claimant's request to appear at a hearing in person, OHO management, through designated staff in the receiving HO, will decide the claimant's manner of appearance at the hearing based on the guidance in this section and other applicable HALLEX provisions.