Social Security

Identification Number:	CJB 22-02 REV
Intended Audience:	All Office of Hearings Operations (OHO) Personnel
Originating Office:	Office of Hearings Operations
Title:	Processing Failure to Appear and Untimely Filed Hearing Request Dismissals during the Coronavirus Disease 2019 (COVID-19) Pandemic
Type:	Chief Judge Bulletins
Program:	Disability
Link To Reference:	See References at the end of this CJB.

Retention Date: July 30, 2023


Descriptive Summary: This CJB updates CJB 22-02 published on March 21, 2022. The following bullets summarize the updates:

· Explained in the “Notice of Hearing Requirements” section that, for telephone and online video hearings, an administrative law judge (ALJ) may issue a failure to appear dismissal where there is a waiver of the right to a timely notice of hearing documented in the file using Form SSA-5002 (Report of Contact (ROC)), if certain conditions exist.
· Removed from the “Notice of Hearing Requirements” section the notice requirements for the resumptions of in-person and video teleconferencing (VTC) hearings because we resumed such hearings several months ago.
· Revised the “In-Line Quality Review” section to explain that with the implementation of Hearings and Appeals Case Processing System (HACPS) In-Line Quality Review (ILQR) dismissal review functionality, we are incorporating failure to appear (ABDI) and untimely filed (UTDI) dismissals into standard case processing procedures.

This CJB sets forth temporary procedures for issuing failure to appear and untimely filing dismissals during the COVID-19 pandemic. This CJB applies to all hearings, regardless of the claimant’s manner of appearance. Thus, except as otherwise indicated, the requirements and procedures for issuing failure to appear and untimely filing dismissals are the same for all manners of appearance.

While in effect, the guidance in this CJB supersedes specified instructions in Hearings, Appeals and Litigation Law (HALLEX) manual sections I-2-3-15, I-2-3-25, I-2-4-15,and I-2-4-25. The guidance in this CJB also supersedes any other instructions that conflict with it.


Notice of Hearing Requirements

Per HALLEX I-2-3-15 A, staff must send a notice of the hearing (NOH) to the claimant and appointed representative, if any, at least 75 days before the date set for a hearing, unless the claimant waives the right to advance notice in writing. Staff must send any amended notice of hearing or notice of supplemental hearing at least 20 days before the date of the hearing unless the claimant waives the right to advance notice in writing.

For telephone and online video appearances: If the claimant waived the right to a timely NOH and staff memorialized the waiver in an ROC, the ALJ will ask the claimant to confirm the waiver on the record during the hearing (CJB 22-04). The ALJ may then issue a decision, if the waiver is memorialized in an ROC and on the record during the hearing, or if there is a written waiver in the file.

An ALJ may issue a dismissal order in cases where there is a waiver of the right to a timely NOH memorialized in an ROC if all the following conditions exist: (1) the claimant was originally scheduled to appear in person or by VTC; (2) the claimant subsequently requested a change in the manner of appearance to telephone or online video; (3) staff specifically asked whether claimant waived the right to a timely NOH; (4) staff memorialized in an ROC both the request to change the manner of appearance and the claimant’s waiver of the right to a timely NOH; (5) based on the timing of the claimant’s request, there was inadequate time to send an amended NOH at least 20 days before the hearing; (6) neither the claimant nor the appointed representative, if any, appeared for the hearing; and (7) the case meets all of this CJB’s other requirements for dismissal.

Reminder: If we issued an initial 75-day NOH, an amended NOH or notice of supplemental hearing, must be sent at least 20 days before the hearing date, absent a waiver. Additionally, any new hearing date must be at least 75 days from the date of the initial NOH, absent a waiver (20 CFR 404.938(d) and 416.1438(d); HALLEX I-2-3-15 A). However, sending a 20-day notice will not cure a failure to send an initial NOH at least 75 days before the hearing date. For example, if we change the date of a hearing to a date that is 60 days after the date on the initial NOH, then sending an amended notice at least 20 days before the hearing will not satisfy the notice requirement. The hearing must be scheduled for a date that is at least 75 days from the date of the initial NOH, absent a waiver.

Reminder: If the claimant did not receive proper notice of the hearing and both the claimant and appointed representative, if any, fail to appear at the hearing, sending a Form HA-L90 (Request to Show Cause for Failure to Appear) cannot cure the improper notification.

Consent to Telephone Hearing or Online Video Hearing (OVH)

Do not dismiss the claimant’s hearing request if we scheduled the claimant to appear by telephone or online video but did not obtain the claimant’s agreement to appear in that manner.

The claimant can agree to appear by telephone or online video in writing or by calling us (CJB 22-04).

If the claimant provides verbal agreement to appear at a hearing by telephone or by online video, staff must create an ROC and document the conversation during the call or as soon thereafter as practical. The ROC must be explicit about what transpired during the call; for example, “The claimant was aware (or advised) of the available hearing options and consented to appear at the hearing by telephone.” Staff must exhibit the ROC in the file, in the “B” section. Unless the claimant’s verbal agreement for a telephone hearing or OVH has been documented in a ROC and exhibited in the file or stated on the record during the hearing, it is not considered part of the record.

Claimants and appointed representatives may also use the “COVID-19 Remote Hearing Agreement Form” (Agreement Form) to tell us whether they agree to appear at a hearing by telephone, by online video, or by either manner. Although this form has signature boxes, a signature is not required to provide agreement, unless other information in the record reflects that the claimant has not truly consented (offices should obtain clarification from the claimant if this is the situation). Hearing office (HO) staff will send the NOH and Agreement Form to all claimants and appointed representatives in pending claims with timely hearing requests. Representatives may not give blanket consent for telephone or online video hearings. Consent is required for each individual case.

Reminder: Before we can conduct a hearing by online video, both the claimant and appointed representative, if any, must agree to appear in that manner.

A completed Acknowledgement of Receipt (Notice of Hearing) (HA-504) indicating the claimant’s “availability” for a telephone hearing or OVH is not sufficient to establish agreement for a telephone hearing or OVH, in part because it does not explain that the claimant has the option to decline a telephone hearing or OVH.


Required Contact Procedures

According to the regulations at 20 CFR 404.938(c) and 416.1438(c), if the claimant or representative, if any, does not acknowledge receipt of the NOH, we will attempt to contact the claimant for an explanation. For cases in which we have not received the HA-504, HALLEX I-2-3-20 B requires attempted contact with the claimant or representative, if any, asking for an explanation and whether they plan to attend the hearing.

a. Staff will attempt contact by sending a written Reminder to Return Acknowledgement Form (NOH Reminder), or by attempting to call the claimant or the representative’s telephone number(s) listed in the file at least twice. If staff leaves a message with an answering machine, voice mail service, or someone other than the claimant, staff must use the script in HALLEX I-2-3-20 B and make one more attempt to contact the claimant. Staff must ensure the number used to contact the claimant or representative is the current or most up-to-date number by checking the file, queries, and systems referenced in HALLEX I-2-3-20 B. Any attempted contact by telephone must be documented in a ROC and associated with the claimant’s file (note: the ROC should be exhibited in the “B” section). The ROC should include information on whether staff made contact with an individual and, if so, the identity of the person with whom staff spoke and the date and content of the conversation.

b. The NOH Reminder is automated for all electronic cases where the Scheduling Event Type is “regular," “continuance," “supplemental," or “rocket-docket.” HOs must still manually issue the NOH Reminder for Electronic Non-Medical (ENM) cases, paper cases, and Special Notice Option (SNO) cases. HOs must also issue the revised NOH Reminder manually for any notice issued less than 28 days prior to the scheduled hearing (for example, for Amended or Supplemental NOHs issued less than 28 days prior to the hearing). Staff must manually issue the revised NOH Reminder at least 10 days prior to the scheduled hearing for such cases. HOs can use the DART M21 report to locate cases for which manual reminder notices need to be mailed.

Before issuing a dismissal based on a claimant's failure to appear at a scheduled hearing, staff must review the file to evaluate whether the HO followed the contact procedures in HALLEX I-2-3-20.

If the file does not include a Form HA-504 from the claimant or representative, if any, or an NOH Reminder, staff will look for ROCs that reflect attempted telephone contacts with the claimant or representative, if any, to remind them of the upcoming hearing. If we did not satisfy the HALLEX notification requirement applicable at the time of the contact, dismissal is not appropriate. Sending a Form HA-L90 (Request to Show Cause for Failure to Appear) will not cure failure to make the required contact attempts.


Requests to Show Cause

Except as otherwise noted below, HO staff must send a Form HA-L90 each time a claimant does not appear at a scheduled hearing, even if required pre-hearing contact attempts were successful. However, if staff did not make the required contact attempts, dismissal is not appropriate. Therefore, it is unnecessary to send a Form HA-L90 if staff did not make the required contact attempts prior to the hearing. Instead, the case should immediately be rescheduled for another hearing.

Staff must also send a Form HA-L61 (Request to Show Cause for Late Filing) if the claimant does not timely file a Request for Hearing. See HALLEX I-2-4-15.

Process all Requests to Show Cause in the Case Management Processing System (CPMS) and HACPS by following instructions in the HACPS Dismissals Desk Guide.

Although Form HA-L90 and Form HA-L61 identify a shorter timeframe for a response, we will provide 30 days from the date on the request before we will issue a dismissal, to account for potential mail delivery and processing delays. While we will provide the claimant 30 days to respond, staff should not manually edit the HA-L90 and HA-L61 to reflect this timeframe.

Before drafting a dismissal, staff must confirm that all applicable policy requirements are met and documented in the record, including consent to a telephone hearing or OVH, contact and notice requirements, and requests to show cause.

Reminder: The COVID-19 pandemic may give rise to circumstances that constitute good cause for missing the deadline to request a hearing or failing to appear for a scheduled hearing. ALJs must continue to exercise broad flexibility in determining whether good cause exists for missing the deadline to request a hearing or failing to appear at a hearing.

Constructive Waiver of Right to Appear

If an appointed representative appears at the scheduled hearing without the claimant and continues to represent the claimant during the hearing, dismissal is never appropriate, even if no substantive testimony is taken, and even if the representative indicates that they intend to withdraw as a representative later. In this circumstance, the ALJ must determine whether the claimant constructively waived the right to appear at the hearing, following the guidance in HALLEX I-2-4-25 D.2.

We recognize that under HALLEX I-2-4-25 D.2.a, if the ALJ finds a claimant constructively waived the right to appear at the hearing, the ALJ ordinarily will advise the appointed representative on the record or in writing that the ALJ will not send a Request to Show Cause for Failure to Appear. However, due to the COVID-19 pandemic, as we continue to be flexible in applying the agency’s good cause provisions, ALJs may not find constructive waiver without first developing the record for good cause by sending a Form HA-L90. ALJs must give claimants 30 days to respond from the date staff sends the Form HA-L90 before determining whether the claimant has constructively waived the right to appear at the hearing.

If an unappointed representative appears at the hearing without the claimant, this constitutes failure to appear by the claimant, and HO staff must issue the claimant a Form HA-L90.

Whereabouts Unknown

Issuing a Form HA-L90 for failure to appear is not necessary if the postal service returned the NOH to the HO as undeliverable, all attempts to contact the claimant by other means were unsuccessful, and the ALJ concludes that the claimant's whereabouts are unknown. HALLEX I-2-4-25 C.3.c.

If mail is returned as undeliverable, OHO staff will check the Personal Communications (PCOM) system queries for new address information, including:

· The Full Master Beneficiary Record (FACT) for title II cases;
· The Supplemental Security Income Display (SSID) for title XVI cases;
· The Modernized Development Worksheet (MDW) for either title;
· The Customer Service Record (CSR) for either title; and
· The Prisoner Update Processing System (PUPS) for either title. See HALLEX I-2-3-15 and HALLEX I-2-4-25 C.3.c.

Staff must document in ROCs (in the “B” section) all attempts to obtain a new address, in order to support a dismissal, if appropriate, and to act on any future inquiries or appeals.

Refer to HALLEX I-2-4-25 C.3.c. for the steps to take before dismissing a request for hearing when the claimant’s whereabouts are unknown.

Where the claimant’s whereabouts are unknown and the case is scheduled for an OVH/telephone hearing, the provisions in HALLEX I-2-4-25 C.3.c. do not apply unless the record reflects consent to that manner of appearance.

File Contains Explanation for Untimely Filing

We recognize that the HALLEX does not ordinarily require sending a Form HA-L61 if there is already an explanation for an untimely filing in the record. See HALLEX I-2-4-15 B. However, due to the COVID-19 pandemic, as we continue to be flexible in applying the agency’s good cause provisions, staff must issue Form HA-L61 to the claimant and representative, if any, to develop for good cause, unless the ALJ finds good cause for the untimely filing based on the written explanation or other information in the record.


In-Line Quality Review

Prior to issuance, failure to appear (ABDI) and untimely filing (UTDI) dismissals will be subject to In-Line Quality Review (ILQR).

HACPS functionality updated by the January 2023 release incorporates all dismissals, including ABDI and UTDI dismissals. Until now, ILQR has been reviewing ABDI and UTDI draft dismissal in the ILQR “portal” after staff updated cases from DISM to FINL in the CPMS. However, HACPS now allows random sampling for review of decisional and dismissal drafts by disposition code. As such, staff, beginning on January 30, 2023, must now process ABDI and UTDI dismissal drafts in HACPS (along with entering appropriate entries in CPMS), and must move cases with completed drafts from DISM to EDIT, as that will allow the case to be eligible for sampling by ILQR.

Thus, effective January 30, 2023, all quality reviews, including dismissals, will occur within HACPS.

Accordingly, we are incorporating ABDI and UTDI dismissals into the Standard Hearings Operations Procedure, SHOP section 6.2.5.

As a reminder, appropriate DISM hearing disposition codes must be added to the Case Closure Screen in HACPS, before the case can be moved directly from DISM to EDIT in HACPS (SHOP section 6.2.5 Step 4). In addition, if a case is selected for ILQR, a hearing office manager or designee must create a development item in CPMS for “Other” and move the case to POST. See SHOP section 6.2.5.

Direct all program–related and technical questions to your local management team. Hearing Office managers may seek guidance from the Regional Office (RO) support staff. RO support staff may refer questions or unresolved issues to their Headquarters’ contacts in the Division of Field Procedures in the Office of the Chief Administrative Law Judge.


References:
20 CFR §§ 404.938 and 416.1438
HALLEX I-2-3-15.Notice of Hearing
HALLEX I-2-3-25.Waiver of Advance Notice of Hearing
HALLEX I-2-4-15.Request for Hearing Not Timely Filed
HALLEX I-2-3-20.Acknowledgement of Notice of Hearing
HALLEX I-2-4-25.Dismissal Due to Claimant’s Failure to Appear
HALLEX I-2-0-60.Good Cause for Late Filing
CJB 22-04.Hearings by Telephone and Online Video Due to the Coronavirus Disease 2019 (COVID-19) Pandemic
SHOP section 6.2.5
Publication No. 70-10284: Online Video Hearings at the Social Security Administration

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