Retention Date: December 22, 2022
|Intended Audience:||All Office of Hearings Operations (OHO) Personnel|
|Originating Office:||Office of the Chief Administrative Law Judge|
|Title:||Hearings by Telephone and Online Video Due to the Coronavirus Disease 2019 (COVID-19) Pandemic|
|Type:||Chief Judge Bulletins|
|Link To Reference:||See References at the end of this CJB.|
Descriptive Summary: This Chief Judge Bulletin (CJB) supersedes and rescinds the instructions in CJB 19-04 SEN REV 6, published on May 25, 2022. Below is a summary of the changes from CJB 19-04 SEN REV 6:
The purpose of this CJB is to inform you of hearings by telephone and online video and other changes in service in hearings operations due to the COVID-19 pandemic. While in effect, to the extent that the guidance in this CJB differs from the HALLEX, follow the guidance in this CJB.
· Revised the “Hearings by Telephone and by Online Video” section to explain that we will schedule a hearing in person or video teleconferencing (VTC) if a party to a hearing does not agree to appear by telephone or by online video.
· Revised the “Appointment of Representation” section to add guidance regarding completion of online electronic forms SSA-1696 and SSA-1693, and for processing of representative appointments, revocations, withdrawals, and fee-related documents.
· Removed the “Extension of Good Cause Provisions” section because that information is included and revised in new CJB 22-03 - Extension of Good Cause Provisions Due to the Coronavirus Disease 2019 (COVID-19) Pandemic and CJB 22-02 – Processing Failure to Appear and Untimely Filed Hearing Request Dismissals during the Coronavirus Disease 2019 (COVID-19) Pandemic.
· Removed the “Resumed Workloads” section because those instructions were incorporated into CJB 21-01 REV 3 - Updated Business Process for the Electronic Non Medical (ENM) and the Standard Hearings Operations Procedure (SHOP) section 3.3.5.
· Revised the “Hearings by Telephone or Online Video for Claimants who are Deaf or Hard of Hearing” section to include instructions for reading a Privacy Act statement when contacting claimants about scheduling an American Sign Language (ASL) interpreter.
Hearings by Telephone and by Online Video
Due to COVID-19, we are offering telephone hearings and online video hearings (OVHs), in addition to in-person and VTC hearings. We will not hold a telephone hearing (due solely to COVID-19) or an OVH unless all the parties to the hearing and their appointed representative(s), if any, agree to appear in that manner. However, we may conduct a hearing by telephone without the agreement of the parties to the hearing or the representative(s), if any, if extraordinary circumstances prevent a party to the hearing from appearing by VTC or in person or if a party to a hearing is incarcerated and VTC is not available (20 CFR 404.936(c)(2)-(3); 416.1436(c)(2)-(3)).
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 hearing. A party to the hearing does not have a right to object to appearing at a hearing in person (20 CFR 404.936; 416.1436; HALLEX I-2-3-12 A.1.). In addition, we may schedule a VTC hearing unless a party to a hearing objects to appearing by VTC. The acknowledgement of the request for hearing informs the claimant that we may schedule a VTC hearing unless the claimant objects to appearing by VTC in writing within 30 days after receiving the 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 appears, regardless of whether the party previously objected to appearing by VTC (20 CFR 404.936(d); 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); 416.1438(d); HALLEX I-2-3-25). If an administrative law judge (ALJ) is holding an in-person or VTC hearing, the waiver must be in writing (20 CFR 404.938(a); 416.1438(a); HALLEX I-2-3-25). If an ALJ is holding a telephone or online video hearing, 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.
Hearing participants may indicate their agreement to a telephone hearing or OVH in writing or orally. The notice titled “COVID-19 Remote Hearing Options” (Notice) informs claimants and representatives about the changes we made to some of our business processes due to COVID-19. The Notice informs claimants and representatives about the option of appearing at a telephone hearing or OVH 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 may 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 both. If a represented claimant is unable to sign the Agreement Form, the claimant’s representative may sign for the claimant. 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.
Additionally, decision writers (DWs) will conduct COVID-19 Enhanced Outreach (CEO) calls with unrepresented claimants. Under the CEO process, if claimants have not returned a completed the 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 both. The DW must memorialize the claimant’s agreement, or non-agreement, in a Report of Contact. Additional instructions on the CEO process are available on the Office of the Chief Administrative Law Judge’s (OCALJ) COVID-19 Guidance and Resources intranet site under the “CEO Resources” drop-down box.
Unless a telephone hearing is mandated per 20 CFR 404.936(c)(2)-(3) and 416.1436(c)(2)-(3), the ALJ assigned to the case will ask the claimant at the beginning of a telephone hearing or OVH to confirm, on the record, that the claimant agrees to appear by telephone or online video. Additionally, if the claimant waived timely written notice of a hearing or amended notice of hearing and staff memorialized the waiver in a Report of Contact, the ALJ will ask the claimant to confirm the waiver on the record during the hearing. If the waiver is memorialized in a Report of Contact and on the record during the hearing, or if there is the claimant’s 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 COVID-19 Guidance and Resources intranet site.
If a claimant has agreed to a telephone hearing or OVH and 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 must conduct a telephone hearing or OVH. If the claimant has not agreed to a telephone hearing or OVH, determine whether to permanently transfer the case for scheduling of an in-person or VTC hearing (HALLEX I-2-0-70 C).
ALJs and DWs will ensure that decisions affected by the COVID-19 pandemic address any objections, notice issues, or deadline extensions in the Procedural History section of the decision (see COVID-19 Decision Writer Guide).
Appointment of Representation
If a signed, written notice of appointment (e.g., a form SSA-1696, Claimant’s Appointment of a Representative, electronic 1696 (EM-21021 REV), 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 the telephone hearing or OVH and the claimant agrees to the appointment, 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 state on the record to the claimant and the representative 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).
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, you may visit the ERE demonstration site. HO staff will monitor the control mailbox assigned to their HO daily (SHOP section 1.3.6) and follow the steps in EM-21070 to process representative appointments, revocations, withdrawals, and fee-related documents submitted to OHO in hearing-level cases.
Hearings by Telephone or Online Video for Claimants who are Deaf or Hard of Hearing
We will schedule a telephone hearing or OVH for a claimant who is deaf or hard of hearing (DHOH) if the claimant agrees to the 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 hearing. If the claimant agrees to a telephone hearing or OVH, HO staff must follow the procedures outlined below. This guidance supersedes HALLEX I-2-1-72 and is limited to cases scheduled for a telephone hearing or OVH during the COVID-19 pandemic.
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.
· 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 188.8.131.52 and 3.2.11). Some DHOH claimants may not be identified in CPMS or HACPS as hearing-impaired but may have alleged severe hearing loss as a severe 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:
o “The Social Security Act allows us to collect the information you provide, which we will use to schedule an interpreter, if needed. Providing this information is voluntary. However, failing to provide all or part of 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. We may also use it in computer matching programs to establish or verify eligibility for Federal benefit programs and debts under these programs. You may locate the full Privacy Act statement on the “Request for Hearing by Administrative Law Judge,” 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 Hearings
o If the claimant or the claimant’s appointed representative indicates that the claimant prefers to use an 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 to communicate to the claimant via ASL about the telephone hearing’s proceedings. 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.
o 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.
o As these will be telephone hearings, the agency will not provide hardware, software, internet access, or any other technical items that claimants may require to use these services.
o Staff may schedule ASL interpreters for DHOH claimants to appear at an OVH using Microsoft Teams (see HALLEX I-2-1-72 for scheduling ASL interpreters).
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-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
CJB 22-03 – Extension of Good Cause Provisions Due to the Coronavirus Disease 2019 (COVID-19) Pandemic
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) instructions for processing representative appointments, revocations, withdrawals, and fee related documents in the Registration Appointment and Services for Representatives (RASR) application
SHOP section 184.108.40.206 – Update the CPMS Record as Necessary
SHOP section 3.2.11 – Update CPMS Scheduling Event Worksheet or HACPS Scheduling Tracking
COVID-19 Decision Writer Guide
COVID-19 Guidance and Resources
CJB 22-04 - Hearings by Telephone and Online Video Due to the Coronavirus Disease 2019 (COVID-19) Pandemic - 06/24/2022