I-5-1-21.Impact of Changes to Video Teleconferencing Procedures on the Appeals Council

Table of Contents
I Purpose
II Background
III Appeals Council Adjudication
IV Helpful Hearing Level Provisions

Issued: August 29, 2014

I. Purpose

This temporary instruction (TI) provides the Appeals Council with information for adjudicating claims affected by a final rule effective July 25, 2014. See “Changes to Scheduling and Appearing at Hearings,” Federal Register 79 FR 35926 (June 25, 2014) (codified in 20 CFR 404.929, 404.936, 405.315, 405.317, 405.350, 416.1429, 416.1436, and 416.1438). In the final rule, the Social Security Administration (SSA) changes certain rules about hearings by video teleconferencing (VTC).

NOTE:

Due to a necessary systems change, SSA did not implement the rule until September 8, 2014.

In the final rule, SSA changed the point in time when a claimant may object to appearing at an administrative law judge (ALJ) hearing by VTC, and imposed a timeframe in which the claimant must submit the objection. SSA also clarified that different rules apply if the claimant timely objects to appearing at the hearing by VTC and then changes his or her residence.

II. Background

Prior to September 8, 2014, SSA notified claimants of the right to object to a hearing by VTC in the notice of hearing, sent after an ALJ was assigned to the case and after the hearing was scheduled. Under those procedures, the claimant could submit an objection to appearing at the hearing by VTC any time before or at the hearing. Because a claimant could submit an objection on short notice, hearing offices frequently lost hearing time slots, as well as other resources used to schedule and conduct the hearing. Additionally, some claimants and appointed representatives were misusing the procedures to forum shop for ALJs with higher allowance rates.

To address these types of issues, SSA changed its procedures for offering the claimant the right to object to appearing at a hearing by VTC. Most importantly, on or after September 8, 2014, the hearing office provides a claimant 30 days to object to appearing at a hearing by VTC in the acknowledgement of hearing. The hearing office sends this notice before an ALJ is assigned to the case and before a hearing is scheduled.

NOTE:

If the claimant had already received the acknowledgement of hearing at the time the final rule was implemented (September 8, 2014) and had not already been scheduled for a hearing, the hearing office sent a one-time notice offering the claimant 30 days to object to being scheduled to appear at the hearing by VTC. For more information about the one-time notice, see Hearings, Appeals and Litigation Law (HALLEX) manual TI I-5-1-20.

The chart below describes common situations and the ALJ's responsibilities under the new final rule. An overview of the new process can also be found in HALLEX I-2-0-15, with additional detail provided in HALLEX I-2-0-20 and I-2-0-21.

If the claimant:

Then:

Does not respond to the notice,

The claimant is deemed not to object to being scheduled to appear at a hearing by VTC.

Objects within the 30-day timeframe and does not change residences while the request for hearing is pending,

The ALJ will honor the objection.

Objects but changes residences while the request for hearing is pending,

The ALJ will determine how the claimant appears at a hearing using the instructions in HALLEX I-2-3-10 A.1.

Does not object within 30 days, but later submits an objection,

The ALJ will evaluate whether the claimant has good cause for the late submission using the factors in 20 CFR 404.911 and 416.1411. (In Region 1, the ALJ will use the factors in 20 CFR 405.20).

III. Appeals Council Adjudication

When the opportunity to object to a hearing by VTC is an issue in the case (including timeliness issues), the Appeals Council will first determine whether the claimant was offered the right to object to appearing by VTC in the notice of hearing, the one-time notice, or the acknowledgement of hearing.

NOTE:

Failure to offer the claimant an opportunity to object to appearing by VTC remains a basis for granting review.

A. Right to Object Offered in the Notice of Hearing

If the right to object was offered in the notice of hearing:

  • The claimant can submit an objection to appearing at a hearing by VTC at any time before or at the hearing; and

  • An ALJ did not have discretion to deny an objection to appearing at a hearing by VTC. If the claimant objected, the ALJ was required to reschedule the claimant for an in person hearing.

B. Right to Object Offered in a One-time Notice or the Acknowledgement of Hearing

If the right to object to appearing at the hearing by VTC was offered in a one-time notice (dated on or after September 8, 2014) or in the acknowledgement of hearing, the Appeals Council may encounter other issues relating to objections to appearing at hearing by VTC, including the following:

1. The ALJ Held a VTC Hearing Despite an Objection

Though fact dependent, there are circumstances in which an ALJ can conduct a hearing by VTC despite an objection submitted by the claimant. Generally, an ALJ can conduct a VTC hearing in the following circumstances:

  • The claimant timely objected, the claimant changed residences while the request for hearing was pending, and the ALJ finds that conducting the hearing by VTC would be more efficient (see HALLEX I-2-3-11 B); or

  • The claimant did not timely object to appearing at the hearing by VTC and did not establish good cause for the late submission (see HALLEX I-2-0-21 D).

2. Change in Residence

The regulations place the burden on the claimant to submit evidence showing a change of residence if he or she wants the issue considered for a possible transfer of the case to another hearing office. However, even when the claimant submits such evidence, there are circumstances when the hearing office may not transfer the case or hold an in person hearing. See HALLEX I-2-0-21 C and I-2-3-11 B.

3. Good Cause Issues

The final rule provides for three separate good cause findings:

IV. Helpful Hearing Level Provisions

When the Appeals Council evaluates issues relating to objections to appearing at hearing by VTC, the following hearing level instructions may be useful:

  • HALLEX I-2-0-15 (Hearing by Video Teleconferencing or Telephone - Overview);

  • HALLEX I-2-0-20 (Acknowledgement of Request for Hearing);

  • HALLEX I-2-0-21 (Objection to Appearing at Hearing by Video Teleconferencing);

  • HALLEX I-2-3-10 (Scheduling Hearings);

  • HALLEX I-2-3-11 (Claimant Timely Objected to Appearing at Hearing by Video Teleconferencing but Has Changed Residences); and

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