I-2-7-15.Waiver of the Right to Examine Posthearing Evidence and Opportunity for a Supplemental Hearing
Last Update: 4/1/16 (Transmittal I-2-171)
The circumstances in which an administrative law judge (ALJ) must proffer posthearing evidence are set forth in Hearings, Appeals and Litigation Law (HALLEX) manual I-2-7-1. Except in limited circumstances, when an ALJ proffers posthearing evidence, the ALJ will also offer the claimant the opportunity to request a supplemental hearing. See HALLEX I-2-7-30. In some situations, a claimant may choose to waive both the right to examine the proffered evidence and the opportunity to request a supplemental hearing.
An ALJ must not encourage or discourage a waiver of either action.
When a claimant waives the right to examine posthearing evidence or the opportunity to request a supplemental hearing, the claimant must do so either on the record at the hearing or in a writing that the ALJ enters into the record as an exhibit. Regardless of the form of the waiver, the ALJ must ensure that the claimant, especially if he or she is unrepresented, is fully informed of and understands the effects of the waiver.
If the claimant is fully informed of and understands the effects of the waiver, the ALJ may enter the posthearing evidence into the record without proffering it. However, if the ALJ finds the claimant should have the opportunity to examine the posthearing evidence despite a waiver, or there is reason to question whether the claimant knowingly submitted a waiver, the ALJ will proffer the evidence to the claimant and appointed representative, if any.