Identification Number:
CJB 22-02
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: March 21, 2023

Descriptive Summary: This CJB consolidates our COVID-19 pandemic policy updates on issuing failure to appear and untimely filing dismissals and specifies that the guidance applies to all manners of appearance, including in-person hearings, video teleconferencing (VTC) hearings, online video hearings (OVH), and telephone hearings.

As we resume in-office hearings, we are extending our dismissal procedures to all types of hearing modalities. Unless 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, 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 his or her representative, if any, at least 75 days before the date set for a hearing, unless the claimant waives his or her right to advance notice in writing.

As a temporary measure due to the COVID-19 pandemic, if the claimant waived timely NOH and staff memorialized the waiver in a Report of Contact (ROC), the ALJ will ask the claimant to confirm the waiver on the record during the hearing. The ALJ may then issue a decision, if the waiver is memorialized in a ROC and on the record during the hearing, or if there is a written waiver in the file. While this instruction permits ALJs to issue a decision, it remains inappropriate to issue a dismissal absent a signed written waiver of advance notice.

For newly scheduled in-person and VTC hearings, a new 75-day NOH is required the first time such a hearing is noticed after resumption of in-person hearings.

      Reminder: If we issued an initial 75-day NOH, most subsequent notices, including, but not limited to an amended NOH or notice of supplemental hearing, must be sent at least 20 days before a new hearing date, and at least 75 days from the date a claimant was first sent a NOH (certain minor changes, such as changing the hearing room, do not require a new 20-day notice). However, sending a 20-day notice will not cure a failure to send an initial NOH at least 75 days before the hearing date.

      Reminder: A Form HA-L90 (Request to Show Cause for Failure to Appear) cannot cure improper notification of a hearing.

Consent to Telephone Hearing or OVH

Do not dismiss the claimant’s hearing request if we scheduled a telephone hearing or OVH but did not obtain the claimant’s agreement for a telephone hearing or OVH.

As stated in the publication, “Online Video Hearings at the Social Security Administration,” the claimant may notify us of his or her agreement to appear at an OVH in writing or by calling us. The same principle applies for telephone hearings.

If the claimant provides verbal agreement to appear at a hearing by telephone or by online video, staff must create a 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 his or her hearing by telephone or online video.” Unless the claimant’s verbal agreement for a telephone hearing or OVH has been documented in a ROC and exhibited in the file (in the “B” section) 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 Public Health Emergency Hearing Agreement Form” (Agreement Form) to tell us whether they agree to appear at a hearing by telephone, by OVH, or both. If a represented claimant is unable to sign the Agreement Form, the claimant’s representative may sign for the claimant. 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 hearings. Consent is required for each individual case.
      Reminder: Before we can conduct a hearing by OVH, 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 he or she plans 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 (in the “B” section).

      b. The NOH Reminder is automated for all electronic cases where the Scheduling Event Type is “regular," “continuance," “supplemental," “rocket-docket,” or “pre-hearing conference." 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 that need manual reminder notices 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 a NOH Reminder, staff will look for ROCs that reflect attempted telephone contacts with the claimant or representative, if any, to remind him or her 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

Unless 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 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 Hearings and Appeals Case Processing System (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 hearing, following the guidance in HALLEX I-2-4-25.

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 his or her 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.

    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. An alternative to PUPS is JusticeXchange. See HALLEX I-2-3-15.
    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.

    Cases scheduled for an OVH/telephone hearing cannot be dismissed for whereabouts unknown unless the record reflects consent to that hearing modality.

    File Contains Explanation for Untimely Filing

    We recognize that HALLEX does not ordinarily require sending a Form HA-L61 if there is already an explanation for 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, all failure to appear and untimely filing dismissals will be subject to In-Line Quality Review (ILQR).
      a. Managers must ensure that all failure to appear and untimely filing dismissals are placed in DISM status when assigned to staff for drafting. If an ALJ elects to draft a dismissal, managers, unless the ALJ elects to do so, will place the case in DISM under the ALJ’s name.
      b. After internal HO drafting/review is complete, a manager, or an employee designated by a manager, must move the case in CPMS directly from DISM to FINL (Final Revision by Decision Writer). This ensures that the ILQR Portal (Portal) selects the dismissal for review.
      c. Do not place draft dismissals in EDIT, SIGN, or MAIL until the ILQR has been completed.
      d. After ILQR staff completes the review in the Portal, managers will access the review using an automatically generated link to the Portal and will process the case as detailed in SHOP 6.2.5. Managers must ensure that the ILQR process was completed and that the concerns, if any, have been addressed before assigning the case to MAIL (Awaiting or In Progress) status.
      e. Before case closure, staff must confirm that the CPMS status code previously went directly from DISM to FINL. If that required CPMS code change did not occur, staff must report the issue to a manager. The manager must take any necessary steps to ensure that an ILQR was completed before a dismissal is issued.

    Direct all program–related and technical questions to your Regional Office (RO) support staff. RO support staff may refer questions or unresolved issues to their Headquarters’ contacts in my office.


    References:
    20 CFR §§ 404.938(c) and 416.1438(c)
    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
    SHOP 6.2.5
    Publication No. 70-10284: Online Video Hearings at the Social Security Administration



    CJB 22-02 - Processing Failure to Appear and Untimely Filed Hearing Request Dismissals during the Coronavirus Disease 2019 (COVID-19) Pandemic - 03/21/2022