Effective Dates: 05/12/2023 - Present
Identification Number:
| CJB 23-01
|
| Intended Audience: | All Office of Hearings Operations (OHO) Personnel |
| Originating Office: | Office of Hearings Operations |
| Title: | Hearing Appearances by Telephone and Online Video |
| Type: | Chief Judge Bulletins |
| Program: | Disability |
| Link To Reference: | See References at the end of this CJB |
|
Retention Date: May 12, 2024
Descriptive Summary: This Chief Judge Bulletin (CJB) supersedes and rescinds the instructions in CJB 22-04 published on June 24, 2022. Below is a summary of the changes from CJB 22-04:
· Revised the “Hearing Appearances by Telephone and by Online Video” section to clarify that OHO will continue to schedule appearances by telephone and online video after the expiration of the Coronavirus Disease 2019 (COVID-19) National Public Health Emergency (PHE) on May 11, 2023.
This CJB sets forth procedures for hearing appearances by telephone and online video and other business process changes in hearings operations. While in effect, to the extent that the guidance in this CJB differs from the Hearings, Appeals and Litigation Law Manual (HALLEX), follow the guidance in this CJB.
Hearing Appearances by Telephone and by Online Video
We will continue to schedule appearances by telephone and online video, in addition to in-person and video teleconferencing (VTC), after the expiration of the national Coronavirus Disease 19 (COVID-19) Public Health Emergency on May 11, 2023. We generally will not schedule a party to a hearing to appear by telephone unless the party agrees to appear in that manner. We may schedule a party to a hearing to appear by telephone without the party’s agreement in the limited circumstances set forth in our regulations (20 CFR 404.936(c)(2)-(3); 404.937(b)(2), (c); 416.1436(c)(2)-(3); 416.1437(b)(2), (c)). For online video appearances, the claimant and appointed representative, if any, must both agree to that manner of appearance.
If we are unable to reach a party to a hearing, a party does not agree to appear by telephone or by online video, or a party revokes their previous agreement to appear by telephone or online video, we will ordinarily schedule an in-person or VTC appearance. A party to the hearing does not have a right to object to appearing at a hearing in-person (20 CFR 404.936 and 416.1436; HALLEX I-2-3-12 A.1.). However, a party to a hearing may object to appearing by VTC, as set forth in 20 CFR 404.936(d) and 416.1436(d) and HALLEX I-2-3-11. When we acknowledge a request for hearing, we inform the parties that we may schedule them to appear by VTC unless they submit a written objection to appearing in that manner within 30 days after receiving the acknowledgment notice. If a party to a hearing establishes a change in residence while the request for hearing is pending, we will determine how the party will appear, regardless of whether the party previously objected to appearing by VTC (20 CFR 404.936(d) and 416.1436(d); HALLEX I-2-0-21, I-2-3-10 B.1., and I-2-3-11),
Reminder: Under the regulations, if we need to mail an amended notice of hearing (e.g., to change the claimant’s manner of appearance), we must mail the notice at least 20 days before the date of the hearing unless the claimant waived the right to advance notice of the hearing by indicating that they did not wish to receive the notice (20 CFR 404.938(d) and 416.1438(d); HALLEX I-2-3-25). If the claimant will appear in person or by VTC, the waiver must be in writing (20 CFR 404.938(a) and 416.1438(a); HALLEX I-2-3-25). If the claimant will appear by telephone or online video, the ALJ may accept an oral waiver if staff memorialized the waiver in a Form SSA-5002 (Report of Contact) and the ALJ confirmed the waiver on the record during the hearing.
Consent to Appear by Telephone or Online Video
Hearing participants may indicate their agreement to appear by telephone or online video in writing or orally. The notice titled “COVID-19 Remote Hearing Options” or “Remote Hearing Options” (available May 20, 2023) (Notice) informs claimants and representatives about the changes we made to some of our business processes. The Notice informs claimants and representatives about the option of appearing at a hearing by telephone or online video and informs them about options for reviewing the evidence before a hearing (e.g., by viewing the evidence in my Social Security or by receiving a copy of the evidence by encrypted email attachment). The Notice also describes the available electronic options for representatives to submit documents to us. Claimants and appointed representatives need to be given notice that appearing by online video requires agreement to third-party terms of service and should be given the opportunity to review those terms prior to appearing in that manner.
We are renaming the “COVID-19 Remote Hearing Agreement Form” the “Remote Hearing Agreement Form,” but the renamed form will not be available in our systems until late May. Claimants and appointed representatives may use the “COVID-19 Remote Hearing Agreement Form” or “Remote Hearing Agreement Form” (Agreement Form) or other writing to tell us whether they agree to appear at a hearing by telephone, by online video, or both. Although the Agreement Form has signature boxes, a signature is not required to provide agreement to appear by telephone or online video, unless other information in the record reflects that the claimant has not truly consented. Hearing offices (HOs) should obtain clarification from the claimant if it is unclear whether the claimant has consented. The claimant’s representative may also sign the Agreement Form for the claimant if the claimant is unable to sign. Representatives may not give blanket consent for telephone or online video appearances. Consent is required for each individual case and must be documented in each case.
HO staff will send the Notice and Agreement Form to all claimants and their appointed representatives in pending claims with timely hearing requests. HO staff will send the Notice and Agreement Form at the same time that they send the acknowledgment of the request for hearing, or closely thereafter.
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 possible manners of appearance 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 to appear by telephone or online video has been documented in an ROC and exhibited in the file or stated on the record during the hearing, it is not considered part of the record.
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.
Additionally, decision writers (DWs) will attempt to conduct Claimant Enhanced Outreach (CEO) calls with all unrepresented claimants. Under the CEO process, if claimants have not returned a completed Agreement Form or otherwise indicated whether they agree to appear at a hearing by telephone or by online video, DWs will ask whether they agree to appear by telephone, by online video, or by either manner. Claimants should also be given notice that appearing by online video requires agreement to third-party terms of service and should be given the opportunity to review those terms prior to appearing in that manner. The DW must memorialize the claimant’s agreement, or non-agreement, in an ROC. Additional instructions on the CEO process are available on the Office of the Chief Administrative Law Judge’s (OCALJ) Chief Judge’s Library intranet site under the “Claimant Enhanced Outreach (CEO) Resources” tab.
Unless a telephone appearance is mandated under the regulations (see 20 CFR 404.936(c)(2)-(3); 404.937(b)(2), (c); 416.1436(c)(2)-(3); 416.1437(b)(2), (c), the ALJ assigned to the case will ask the claimant at the beginning of a hearing to confirm, on the record, that the claimant agrees to appear by telephone or online video, as applicable. Additionally, if the claimant waived the right to a timely written notice of a hearing or amended notice of hearing and staff memorialized the waiver in an ROC, the ALJ will ask the claimant to confirm the waiver on the record during the hearing. 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, the ALJ may then issue a decision. Desk Guides for ALJs to use when holding hearings by telephone and online video are available on the OCALJ Chief Judge’s Library intranet site.
If a claimant who has agreed to appear by telephone or online video changes residence to a location outside of the HO’s service area, do not permanently transfer the case to the HO in the jurisdiction of the new residence. The case will remain in the original HO, and an ALJ from that HO will conduct a hearing where the claimant appears by telephone or online video. If the claimant has not agreed to a telephone or online video appearance, or withdraws their agreement to appear by telephone or online video, determine whether to permanently transfer the case to accommodate an in-person or VTC appearance (HALLEX I-2-0-70 C).
A completed Acknowledgement of Receipt (Notice of Hearing) (HA-504) indicating the claimant’s “availability” to appear by telephone or online video is not sufficient to establish agreement to appear by telephone or online video, in part because it does not explain that claimants may indicate that they do not agree to appear by telephone or online video.
COVID Related Decision Language – Procedural History and Manner of Appearance
When writing decisions in cases where the hearing was held on or before May 11, 2023, ALJs and DWs will continue to ensure that such decisions address any objections, notice issues, or deadline extensions related to the COVID PHE in the Procedural History section of the decision (see COVID-19 Decision Writer Guide). For example, in cases where the hearing was held on or before May 11, 2023, DWs will continue to include language in the decision that notes that the parties appeared at the hearing by telephone due to COVID related circumstances.
For cases where the hearing was held on or after May 12, 2023, COVID PHE related procedural language does not need to be included in the decision.
Appointment of Representation
If a signed, written notice of appointment (e.g., a form SSA-1696, Claimant’s Appointment of a Representative, electronic 1696 (POMS GN 03910.040 A.1.b; HALLEX I-1-1-11 A), or any other valid written notice of appointment that meets the requirements in HALLEX I-1-1-10 A) is not in the record at the time of a hearing when the claimant appears by telephone or online video and the claimant agrees to the appointment of the representative who is attending the hearing, ALJs should, until further notice, proceed with the hearing, but must address this issue on the record by obtaining verbal confirmation of the claimant’s and representative’s intent to establish an appointment and later submit a valid written notice of appointment, in accordance with the temporary procedure described in EM-20022 REV 3. ALJs must advise the claimant and the representative, on the record during the hearing, that they must submit a signed, written notice of appointment of the representative who is attending the hearing, otherwise issuance of a decision in the claim may be delayed pending receipt of the written appointment document (EM-20022 REV 3).
HO staff will advise representatives who are registered for Appointed Representative Services (ARS) to send a secure message, including a written notice of appointment and other related documents (e.g., fee agreement), to a designated HO mailbox by using the “Contact OHO Office” function in Electronic Records Express (ERE). To view the electronic messaging functions available through ERE, the representative may visit the ERE demonstration site. HO staff will monitor the control mailbox assigned to their HO daily (Standard Hearings Operations and Procedures (SHOP) section 1.3.6) and follow the steps in SHOP sections 1.1.4, 1.4.2.9, 4.5.3, and 4.6.9 and EM-21070 to process representative appointments, revocations, withdrawals, and fee-related documents submitted to OHO in hearing-level cases.
Appearances by Telephone or Online Video for Claimants who are Deaf or Hard of Hearing
We will schedule a telephone or online video appearance for a claimant who is deaf or hard of hearing (DHOH) if the claimant agrees to that manner of appearance. If the claimant does not agree to appear by telephone or online video, we will ordinarily schedule an in-person or VTC appearance. If the claimant agrees to a telephone or online video appearance, HO staff must follow the procedures outlined below. This guidance supersedes HALLEX I-2-1-72 and is limited to appearances by telephone or online video.
· HO staff will identify whether the claimant is hearing-impaired in the parties of interest or scheduling event worksheet in the Case Processing and Management System (CPMS) or in schedule tracking in the Hearings and Appeals Case Processing System (HACPS) (SHOP sections 1.4.2.4 and 3.2.11). Some claimants who are DHOH may not be identified in CPMS or HACPS as hearing-impaired but may have alleged severe hearing loss as an impairment. Contact the appointed representative or the claimant, as appropriate, and obtain additional information about their preferred communication method. If the claimant is represented, call their representative to obtain this information. During the call, read the following Privacy Act statement to the claimant or the representative:
· “The Social Security Act allows us to collect this information, which we will use to schedule an interpreter, if needed. Providing this information is voluntary, but not providing the information may prevent us from arranging an interpreter. As law permits, we may disclose your information per routine uses in our Claims Folders System and Electronic Disability Claim File System of Records Notices, available at www.ssa.gov/privacy. Your information may also be used in computer matching programs to establish or verify eligibility for Federal benefit programs and to recoup debts under these programs. You may locate the full Privacy Act statement on the “Request for Hearing by Administrative Law Judge,” form which was used to request the hearing, and which is located online at https://www.ssa.gov/forms/ha-501.pdf. We can also mail you a copy if you would like.”
Telephone Appearances
· If the claimant or the claimant’s appointed representative indicates that the claimant prefers to use an American Sign Language (ASL) interpreter on the day of the hearing, the claimant may connect to the hearing via the Video Relay Service (VRS), which allows communication with an ASL interpreter using video conferencing equipment. SSA does not provide a video connection to the claimant or HO staff for this service. The claimant will connect with an ASL interpreter who provides interpretation on behalf of the claimant for the hearing through the telephone.
· If the claimant or the claimant’s appointed representative indicates that the claimant prefers speech to text or another form of Telecommunications Relay Services (TRS), the claimant can join the hearing by their TRS of choice. TRS provides several options for communication assistance, depending on the needs of the claimant, including Text-to-Voice TTY-based TRS, Voice Carry Over, Hearing Carry Over, Speech-to-Speech Relay Service, Shared Non-English Language Relay Services, Captioned Telephone Service, IP Captioned Telephone Service, and Internet Protocol Relay Service.
· As these will be telephone appearances, the agency will not provide hardware, software, internet access, or any other technical items that claimants may require to use these services.
Online Video Appearances
· Staff may schedule ASL interpreters for claimants who are DHOH to appear by online video using Microsoft Teams (see HALLEX I-2-1-72 for scheduling ASL interpreters).
Direct all program-related and technical questions to your local management team. HO managers may seek guidance from the regional office (RO). RO staff may refer questions or unresolved issues to OCALJ’s Division of Field Procedures.
References:
20 CFR 404.936 and 416.1436 -Time and place for a hearing before an administrative law judge
HALLEX I-1-1-10 - Appointing a Representative
HALLEX I-1-1-11 - Processing the Appointment of Representative
HALLEX I-2-0-21 - Objection to Appearing at Hearing by Video Teleconferencing
HALLEX I-2-0-70 - Hearing Office Service Area
HALLEX I-2-1-72 - Interpreters — Hearing-impaired Claimant
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
HALLEX I-2-3-12 - Objections to Manner of Appearance or Time and Place Set for Hearing
EM-20022 REV 3 – Temporary Instructions for the Bundled Receipt and Processing of an Electronically Signed SSA-1696 and Certain Other Forms
EM-21021 REV – Online Forms SSA-1696 Claimant’s Appointment of Representative and SSA-1693 Fee Agreement for Representation before SSA
EM-21070 – Office of Hearings Operations (OHO) and Office of Appellate Operations (OAO) instructions for processing representative appointments, revocations, withdrawals, and fee related documents in the Registration Appointment and Services for Representatives (RASR) application
SHOP section 1.1.4 - Provide Barcodes to Representatives Upon Request
SHOP section 1.3.6 - Monitoring Hearing Office Email Inboxes
SHOP section 1.4.2.4 - Update the CPMS Record as Necessary
SHOP section 1.4.2.9 - Ensure an Appointment of Representative on Hearing Request is in the File
SHOP section 3.2.11 CPMS Scheduling Event Worksheet or HACPS Scheduling Tracking
SHOP section 4.5.3 - Obtain Information/Document(s)
SHOP section 4.6.9 – Verify Representative Information
CJB 23-01 - Hearing Appearances by Telephone and Online Video - 05/12/2023