I-5-1-20.Interim Procedures for Scheduling Hearings (September 8, 2014 Implementation of Final Rules Effective July 25, 2014)

Table of Contents
I Purpose
II Background
III Applicability of TI
IV Procedures
V Inquiries
VI Attachment (Notice regarding the use of VTC)

Issued: August 29, 2014

I. Purpose

This Temporary Instruction (TI) provides interim procedures for scheduling and appearing at hearings in light of the recent changes to 20 CFR 404.929, 404.936, 404.938, 405.315, 405.316, 405.317, 405.350, 416.1429, 416.1436, and 416.1438. The changes were made in final rules that became effective on July 25, 2014 (hereinafter “effective date”). However, to coordinate with a necessary systems release, implementation of the final rule was delayed until September 8, 2014 (hereinafter “implementation date”).

NOTE:

Delay of the regulation has no negative impact on the public as we will continue using our prior procedures during the time period between the effective date and implementation date. Prior procedures afford any impacted individual a full opportunity to object to being scheduled to appear at hearing by video-teleconferencing (VTC).

To implement the changes, we now include the right to object to a hearing by VTC in the acknowledgement of request for hearing, rather than in the notice of hearing. See Hearings, Appeals and Litigation Law (HALLEX) manual I-2-0-15. This TI provides instructions for providing the right to object to appearing at a hearing via VTC under certain circumstances when a hearing office (HO) has already sent the acknowledgment of the request for hearing to the claimant.

II. Background

SSA announced through a final rule published in the Federal Register, effective July 25, 2014, that there are changes in the Social Security Regulations relating to scheduling and appearing at hearings. The final rule revises the procedures at the administrative law judge (ALJ) hearing level in order to improve the adjudication process. In relevant part, the final rule changes the timeframe in which a claimant may object to appearing at a hearing via VTC.

Prior to these changes, the agency notified a claimant of his or her right to object to a hearing by VTC when the hearing was scheduled (i.e., in the notice of hearing) and that we would reschedule a hearing if the claimant objected at any time before or at the hearing. This practice was problematic for several reasons. It encouraged forum shopping by allowing a claimant to decline a VTC hearing before an ALJ with a lower allowance rate. The practice was also inefficient and wasted valuable resources because objections were often submitted less than 20 days before the date of hearing, which made it difficult for HOs to fill the hearing slot.

To address these types of issues, the final rule explains that before we assign an ALJ to the case or schedule a hearing, we notify the claimant that he or she has the right to object to appearing at a hearing by VTC within a certain timeframe.

III. Applicability of TI

This TI applies to requests for hearing that are already pending prior to the implementation date of the final rule, where the HO has acknowledged the request for hearing and:

  • The hearing has not been scheduled; or

  • The hearing has been scheduled but the HO has not sent a notice of hearing to the claimant.

This TI does not apply to:

  • Requests for hearing received on or after September 8, 2014 (the implementation date of the final rule);

  • Requests for hearing that are pending where the HO has not yet acknowledged the request for hearing; or

  • Requests for hearing when the hearing has already been scheduled and the HO has sent a notice of hearing to the claimant.

NOTE:

The TI does not apply in the first two circumstances because the HO will offer the right to object to appearing at hearing via VTC in the acknowledgment of the request for hearing, as set forth in HALLEX I-2-0-15. If the hearing has already been scheduled and the claimant has been notified of the scheduled hearing, the HO will proceed with the hearing as usual, using the applicable provisions in HALLEX.

IV. Procedures

A. Notice of the Right to Object to Appearing by VTC

When this TI applies (see section III above), we will provide the claimant the opportunity to object to appearing at a hearing via VTC by sending the claimant and his or her representative, if any, a one-time notice that:

  • Explains the change in our rules regarding the use of VTC;

  • Gives the claimant 30 days to provide a written response to the HO if he or she does not want to appear at the hearing by VTC;

  • Informs the claimant that we may decide how he or she will appear if he or she changes residences before we hold the hearing; and

  • Includes a response form for the claimant to use if he or she objects to appearing at the hearing by VTC.

See subsection VI for a copy of this notice.

B. Scheduling Hearings During the Objection Period

1. In-person

HOs will continue to schedule in-person hearings regardless of whether the opportunity to object to appearing via VTC has expired.

2. VTC

If an ALJ intends to schedule an appearance by VTC (using the criteria in HALLEX I-2-3-10), the HO will not schedule the hearing for at least 45 days after we send the notice described in subsection IV.A. This time provides 5 days for processing the notice, 5 days for mailing the notice, 30 days for the claimant to object to appearing at the hearing by VTC, and 5 days for the mailing of the claimant's response.

Prior to implementation of the final rule, HOs will be asked (in a separate instruction) to minimize the number of cases pending to which these instructions apply by scheduling hearings further in advance. If HOs do not minimize the number of affected cases, there may be a significant period of time (approximately 60-90 days) during which HOs cannot schedule VTC hearings.

NOTE:

This may present a unique scheduling challenge in a National Hearing Center (NHC). If needed, each NHC's resources may be shifted to decision-writing assistance or other appropriate tasks if an NHC cannot be scheduled for a full hearing docket during this time.

C. Receipt of Objection to Appearing by VTC

As noted above, a claimant or his or her appointed representative, if any, must submit written objections within 30 days after receiving the notice. On receipt of an objection, the HO must scan (if the case is electronic) or add (if the case is paper) the claimant's written objection or other response to the case file. The objection or other response to appearing at a hearing by VTC will be evaluated using the instructions in HALLEX I-2-0-21, or, if an ALJ is already assigned, HALLEX I-2-3-11.

Once the case is properly documented, the HO will proceed as usual using the applicable provisions in the main body of HALLEX.

V. Inquiries

Hearing office personnel will direct any questions to their Regional Office. Regional Office personnel may direct questions to the appropriate contact in the Division of Field Procedures in the Office of the Chief Administrative Law Judge.

VI. Attachment (Notice regarding the use of VTC)

Dear __________:

On July 25, 2014, we changed our rules regarding the use of video teleconferencing (VTC). Please read the notice closely.

Use of VTC At Your Hearing

In certain situations, we may hold your hearing by VTC rather than in person.

If we schedule your appearance by VTC, you and the Administrative Law Judge (ALJ) will be at different locations during the hearing. A large, color monitor will enable you and the ALJ to see, hear, and speak to each other. The ALJ will also be able to see, hear, and speak to anyone who comes with you to the hearing. This may include your representative (if you have one), a friend, or a family member. We will provide someone at your location to run the equipment and provide any other help you may need.

You must let us know within 30 days after the date you receive this notice if you do not want to appear at your hearing by VTC. (We may extend this 30-day period if you show you had good cause for missing the deadline.) Please let us know by completing and returning the attached form in the envelope we sent [if representative] your representative [else] you[endif]. We will arrange for you to appear in person.

If you move before we hold your hearing, we retain the right to decide how you will appear at your hearing, even if you objected to appearing by VTC. For us to consider your change of residence when we schedule your hearing, you must submit evidence proving your new residence.

If You Have Any Questions

If you have any questions, please call, (XXX)XXX-XXXX, or write this office. For your convenience, our address is on the first page of this notice.

Sincerely yours,

Administrative Law Judge