Identification Number:
CJB 23-02
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
Type:Chief Judge Bulletins
Program:Disability
Link To Reference:See References at the end of this CJB
 
Retention Date: 11/23/2024
    · Descriptive Summary: This CJB supersedes and rescinds the instructions in CJB 22-02 REV published on January 30, 2023 and the instructions in CJB 22-03 published on June 24, 2022.
    The Secretary of the Department of Health and Human Services expects to allow the COVID-19 Public Health Emergency (PHE) to expire on May 11, 2023. This CJB sets forth procedures, which are effective on May 12, 2023, related to issuing untimely filed hearing request dismissals and failure to appear dismissals and notes when hearing office (HO) staff should continue to apply modified procedures and when to apply standard procedures.

    While in effect, to the extent that the guidance in this CJB differs from instructions in the Hearings, Appeals and Litigation Law Manual (HALLEX) (e.g., I-2-4-15,and I-2-4-25), follow the guidance in this CJB.

    Consent to Appear by Telephone or Online Video Required

    The claimant can agree to appear for their hearing by telephone or online video in writing or by calling us. See CJB 23-01, Hearing Appearances by Telephone and Online Video for manner of appearance consent procedures. We must have properly documented consent for a telephone or online video appearance, as described in CJB 23-01, before we can issue a failure to appear dismissal in a case where the claimant was scheduled to appear via telephone or online video.

    Notice of Hearing Requirements

    OHO staff will follow all notice of hearing (NOH) requirements outlined in the regulations and HALLEX. See 20 CFR 404.938 and 416.1438 and HALLEX I-2-3-15.

    Required Contact Procedures – Failure to Acknowledge Receipt of NOH

    OHO staff will follow the standard contact procedures outlined in the regulations and HALLEX if the claimant or appointed representative, if any, does not acknowledge receipt of the NOH. See 20 CFR 404.938(c) and 416.1438(c) and HALLEX I-2-3-20 B.

    Requests to Show Cause

    Untimely Filed Requests for HearingReceived on or before May 11, 2023
      · Send Form HA-L61 (Request to Show Cause for Late Filing) in all such cases.
        · If Form HA-L61 was sent on or before May 11, 2023, provide the claimant with 30 days to respond before issuing a dismissal.
          · If Form HA-L61 is sent on or after May 12, 2023, provide the claimant with 15 days (10 days, plus 5 days for mailing time) to respond before issuing a dismissal.
        Received on or after May 12, 2023
          · Follow the procedures in HALLEX I-2-4-15 if no explanation is included with the untimely request or if the ALJ deems it necessary to follow those procedures.
            · Provide the claimant with 15
              days (10 days, plus 5 days for
              mailing time) to respond
              before issuing a dismissal.
          Failure to Appear at a HearingHearings on or before May 11, 2023
            · If required pre-hearing contact attempts were made, send Form HA-L90 (Request to Show Cause for Failure to Appear).
              · If staff did not make the required pre-hearing contact attempts, the case should immediately be rescheduled for a hearing, and it is not necessary to send Form HA-L90.
                · If Form HA-L90 was sent on or before May 11, 2023 provide the claimant with 30 days to respond before issuing a dismissal.
                  · If Form HA-L90 is sent on or after May 12, 2023, provide the claimant with 15 days (10 days, plus 5 days for mailing time) to respond before issuing a dismissal.
                Hearings on or after May 12, 2023
                  · Follow the standard procedures in HALLEX I-2-4-25.
                    · Send Form HA-L90 when it is necessary per HALLEX I-2-4-25 to develop whether there was good cause for the claimant’s failure to appear.
                      · When sending Form HA-L90, provide the claimant with 15 days (10 days, plus 5 days for mailing time) to respond before issuing a dismissal.
                        · It is not necessary to send Form HA-L90 if good cause development is not needed per HALLEX I-2-4-25.
                          · See HALLEX I-2-4-25 C.3 for situations where good cause development is not necessary for dismissal.
                            · If the record shows there was not proper notification of the scheduled hearing, the hearing must be rescheduled. It is not necessary to send Form HA-L90 prior to rescheduling if lack of proper notification is already in the record. See HALLEX I-2-4-25 C.1.a.
                              Reminder: The COVID-19 PHE may have given rise to circumstances that constituted 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 existed for missing the deadline to request a hearing or failing to appear on or before May 11, 2023, the end of the PHE.
                          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 I-2-4-25 C.3.c.
                          In all whereabouts unknown cases, staff must document in ROCs all attempts to obtain a new address and must exhibit the ROCs in the “B” section of the file, 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.

                          In-Line Quality Review (ILQR)

                          Failure to appear and untimely filing dismissals will continue to be subject to ILQR in the Hearings Appeals Case Processing System (HACPS). See Standard Hearings Operations Procedure (SHOP) section 6.2.5 for the appropriate procedures.

                          Extension of Good Cause Provisions

                          This CJB rescinds guidance outlined in CJB 22-03 regarding the flexible application of good cause provisions during the PHE for certain hearing level deadlines, such as the deadline to object to appearing at a hearing by VTC, the five-day deadline for submitting written evidence, or the 10-day deadline for requesting subpoenas.

                          ALJs should follow the good cause provisions as set forth in 20 CFR §§ 404.911, 404.935(b), 404.936(d), 416.1411, 416.1436(d) and 416.1435(b) and HALLEX I-2-3-12, I-2-5-78, and I-2-6-59.


                          Questions Related to this CJB

                          HO staff should direct all program related and technical questions to their local management team. HO managers may seek guidance from their 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 404.911, 404.935(b), 404.936, 416.1411, 416.1435(b), 416.1436; 404.938 and 416.1438
                          HALLEX I-2-3-15. Notice of Hearing
                          HALLEX I-2-4-15. Request for Hearing Not Timely Filed
                          HALLEX I-2-3-12. Objections to Manner of Appearance or Time and Place Set for Hearing
                          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-2-5-78. Use of Subpoenas - General
                          HALLEX I-2-6-59. Admitting Evidence Submitted Less Than Five Business Days Before the Hearing or At or After the Hearing
                          CJB 23-01. Hearing Appearances by Telephone and Online Video
                          SHOP section 6.2.5 Drafting Dismissals



                          CJB 23-02 - Processing Failure to Appear and Untimely Filed Hearing Request Dismissals - 05/12/2023