Identification Number:
CJB 11-02
Intended Audience:All ODAR Hearing Level Personnel
Originating Office:Office of Disability Adjudication and Review
Title:Processing Cases under 20 CFR Part 405 after June 13, 2011
Type:Chief Judge Bulletins
Program:All Programs
Link To Reference:
 
Retention Date: Indefinite

Pursuant to a memo issued by former Chief Administrative Law Judge (CALJ) Cristaudo, on November 29, 2010, hearing offices implemented new procedures for processing Part 405 cases when a claimant moved from a Disability Service Improvement (DSI) jurisdiction to a non-DSI jurisdiction. In those cases, a non-DSI hearing office could hear a case if the claimant refused a hearing via video. However, primarily due to system’s limitations, Region 1 hearing office staff worked up the case and performed all decision writing tasks.

On June 13, 2011, the agency published final rules for cases processed under Part 405, formerly referred to as DSI cases. The rules eliminate review by the Decision Review Board (DRB) in claims processed under Part 405, and allow any claimant who disagrees with a hearing level decision or dismissal to appeal directly to the Appeals Council. While some changes occurred at the hearing level, such as the adoption of a provision allowing certain attorney advisors to issue fully favorable decisions on the record, the final rules had minimal impact on processing hearing level cases under Part 405.

Due to the elimination of the DRB and minor changes to hearing office processing, the November 29, 2010 CALJ memorandum is rescinded. Instead, any hearing office may now process a Part 405 case, using Part 405 procedures, when a claimant initially filed in Region 1, but has now moved into the hearing office’s area of jurisdiction. Likewise, should a claimant who filed under Part 404 and/or Part 416 move to a location within the jurisdiction of a Region 1 hearing office, the Region 1 hearing office will process the claim under Part 404 and/or Part 416.

All hearing office personnel should be aware of the following:

Identifying cases

DSI indicators no longer appear in eView. While the agency works on an automated solution to identify Part 405 cases, all hearing offices should be vigilant about observing where a claim was filed. If the record suggests the case was initiated in Region 1, the hearing office must determine whether Part 405 procedures must be used. In some cases, this may be accomplished by using the DOORS code associated with the initial filing of the application (i.e., if the field office DOORS code indicates a Region 1 field office, the Part 405 regulations apply in that particular case).

When a claim is identified as a Part 405 case, the hearing office will need to add a “405R” case characteristic code in CPMS. This code is located in the characteristic type “Special Case Processing.”

For cases in a Region 1 hearing office when a claimant moves outside Region 1, the Region 1 hearing office will input the case characteristic on the case (as appropriate) prior to transferring the case to the hearing office with jurisdiction.

Prior to hearing

Under 20 CFR 405.315, Part 405 cases have a 75-day advance notice requirement for scheduling a hearing, unless a claimant or representative waives the requirement. The appropriate notice may be generated through DGS by selecting the appropriate 405 option. However, since DGS cannot determine if a case is a Part 405 case, users must generate notices individually (i.e., batch processing may not be used).

Under Part 405, 20 CFR 405.317(a), a claimant is required to object to the time and place of a hearing no later than 30 days after he or she receives a notice of hearing.

Evidence must be submitted no later than five business days before the date of the scheduled hearing, unless the ALJ waives the requirement or otherwise determines under 20 CFR 405.331 that the evidence should be admitted. An ALJ must explain in the decision why he or she did or did not accept evidence that was presented less than five business days before the hearing.

If subpoenas are requested in a Part 405 case, the request must be submitted at least 10 days before the hearing date under 20 CFR 405.332.

Decisions

To access the correct regulatory citations in the Findings Integrated Template (FIT), be sure to select the DGS-Part 405 option. This option is available on all of the FIT decisional templates.

Direct all program–related and technical questions to your RO support staff. RO support staff may refer questions or unresolved issues to their Headquarters’ contacts in OCALJ.


CJB 11-02 - Processing Cases under 20 CFR Part 405 after June 13, 2011 - 06/13/2011