TN 12 (09-19)

DI 33015.032 Continuance of Disability Hearing

A. Policy concerning a disability hearing continuance

  • Continuances occur when either the beneficiary (or recipient) or representative or one or more witnesses have good cause (see 20 CFR 404.914(c)(2) and 416.1414(c)(2)) for failing to appear at the scheduled hearing.

  • Continuances may be granted at the request of whoever appears at the hearing. If no one appears at the hearing (or asks for postponement) and special handling considerations are followed, the determination is based on the record.

  • The disability hearing officer (DHO) is responsible for deciding whether to grant a continuance.

  • Continuances may also be initiated by the DHO, e.g., when it appears at the hearing that an interpreter is unqualified to serve.

B. Definitions related to a continuance

1. Continuance

The adjourning and reconvening of the disability hearing at a later date.

2. Expert witnesses

Individuals who can offer professional testimony with regard to the beneficiary's or recipient's impairment(s) or ability to work, e.g., physicians, recognized vocational experts, etc.

C. Procedure for continuance request

1. Beneficiary (or recipient) or representative fails to appear

  1. a. 

    Ask the individual who has appeared to explain why the beneficiary (or recipient) or representative failed to appear and why the person's presence is necessary.

  2. b. 

    Explore the possibility of holding the hearing with the individual who has appeared. Make it clear that you will continue the hearing at a later date if the person appearing does not wish to proceed or if you believe the non-appearing person is crucial to that hearing.

    Example: A beneficiary's (or recipient's) attorney does not appear—beneficiary (or recipient) agrees to begin the hearing without the attorney; however, during the hearing, the beneficiary (or recipient) states he or she does not wish to continue without the attorney. Adjourn and reconvene the hearing so the attorney can be present.

  3. c. 

    Use judgment in deciding whether good cause exists to grant another continuance if more than one has already been granted.

2. Witness fails to appear

  1. a. 

    Explain that the hearing is the necessary first step in determining if witness testimony is needed if the beneficiary (or recipient) or appointed representative refuses to proceed with the hearing. Also, explain that if the hearing is not held, the case will be decided on the record. Ensure that everyone understands the consequences of refusing to proceed.

  2. b. 

    Hold the hearing as scheduled.

  3. c. 

    Decide at the conclusion of the hearing whether a continuance is warranted to obtain testimony from the absent witness(es).

  4. d. 

    Consider the following factors in deciding whether to grant a continuance for all witnesses. Use these factors as a balancing test and use discretion and judgment in making the decision.

    • Whether there is good cause for why the witness did not attend the hearing (emergency, surgery, etc.). Determine when the beneficiary (or recipient) or appointed representative was aware that the witness could not attend and whether an attempt was made to postpone the hearing.

    • Whether the testimony of the non-appearing witness(es) is material to the disability determination based on a review of the entire record, including the evidence provided at the hearing. This factor may be especially important in the case of expert witnesses, e.g., the DHO may find that a continuance is warranted to obtain a physician’s testimony on particular points in the adjudication process that may not be reflected in medical reports previously submitted.

3. If continuance not granted

  1. a. 

    Annotate the hearing report form to reflect that a continuance was requested, who requested it, and the reason the continuance was not granted.

  2. b. 

    Proceed with the determination as appropriate.

4. If continuance granted

  1. a. 

    Document the claims folder to reflect that the case was continued, who requested the continuance, and the reason the continuance was granted,

  2. b. 

    Schedule another hearing for the earliest date possible, and

  3. c. 

    Assign the case to the same DHO if a substantive action was taken.

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DI 33015.032 - Continuance of Disability Hearing - 09/05/2019
Batch run: 09/05/2019