I-2-3-11.Claimant Timely Objected to Appearing at Hearing by Video Teleconferencing but Has Changed Residences
Last Update: 8/29/14 (Transmittal I-2-117)
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, the hearing will usually 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 established a change in residence while the request for hearing is pending, and the case has been assigned to an ALJ, the 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.
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, the ALJ must first determine whether an in-person hearing is appropriate. To do so, the ALJ 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, an ALJ 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), the ALJ may, but does not need to solicit more information. 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, an ALJ will then consider whether:
The claimant now resides 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 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, the ALJ 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, the ALJ 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 the ALJ schedules the hearing by VTC, the ALJ will send the claimant written notice indicating that the change in residence address was considered but that he or she determined the case would not be transferred.
If the ALJ determines a case transfer may be appropriate so that the claimant can appear in-person at the hearing, the ALJ will discuss the issue with the Hearing Office Chief Administrative Law Judge (HOCALJ). If the ALJ's 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 may transfer the case under HALLEX I-2-1-55 F and I-2-1-57. If the HOCALJ 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, the newly assigned ALJ 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.