Social Security

Descriptive Summary: This Chief Judge Bulletin (CJB) supersedes and rescinds the instructions in CJB 23-01 published on May 12, 2023.

This CJB applies to cases where we scheduled a hearing and sent a Notice of Hearing (HA-83) before the November 23, 2024 effective date for the Final Rule, “Setting the Manner of Appearance of Parties and Witnesses at Hearings.” For those cases, this CJB sets forth procedures for hearing appearances by audio/telephone and online video. To the extent that these instructions differ from the Hearings, Appeals and Litigation Law Manual (HALLEX), follow the instructions in this CJB for cases that we sent the Notice of Hearing prior to November 23, 2024.

If we sent the claimant a Notice of Ways to Attend a Hearing (HA-L54), this CJB is not applicable. We will use “audio/telephone” throughout this CJB to indicate that these rules pertain to cases with hearings that were scheduled prior to November 23, 2024.

Consent to Appear by Audio/Telephone or Online Video

For cases that did not have a Notice of Hearing issued prior to November 23, 2024, or was scheduled and then postponed, or needed an additional hearing, this CJB would not be applicable and a Notice of Ways to Attend a Hearing (HA-L54) would be needed.

For cases that were in scheduled status and have a Notice of Hearing (HA-83) dated before November 23, 2024, hearing participants may indicate their agreement to appear by audio/telephone or online video in writing or orally. Before November 23, 2024, we sent an initial notice titled “Remote Hearing Options” (Notice), informing claimants and representatives about their options of appearing at a hearing by audio/telephone or online video and 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 described the available electronic options for representatives to submit documents to us.

For this specific set of cases, claimants and appointed representatives could use the associated “Remote Hearing Agreement Form” (Agreement Form) or other writing to tell us whether they agreed to appear at a hearing by audio/telephone, by online video, or both. Although the Agreement Form had signature boxes, a signature was not required to provide agreement to appear by audio/telephone or online video, unless other information in the record reflects that the claimant has not truly consented. This Notice and agreement Form was sent on all cases docketed (cases that moved forward from Master Docket (MDKT) status and have been sent an Acknowledgement of Request for Hearing Package (HA-L2)), prior to November 23, 2024.

Before November 23, 2024, if the claimant provided verbal agreement to appear at a hearing by audio/telephone or by online video, the file must contain a Report of Contact (ROC), form SSA-5002, documenting the consent and conversation. 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 audio/telephone.” Staff must exhibit the ROC in the B section of the file. Unless the claimant’s verbal agreement to appear by audio/telephone or online video was documented in a ROC and is exhibited in the file or stated on the record during the hearing, it is not considered part of the record.

For cases that were in scheduled status and have a Notice of Hearing (HA-83) dated before November, 23, 2024, unless we have mandated an audio/telephone appearance, e.g., based on incarceration (see 20 CFR 404.936(d)(3), (5); 404.937(b)(2), (c); 416.1436(d)(3), (5)); 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 audio/telephone or online video, as applicable. Additionally, if the claimant waived the right to a timely written notice of hearing or amended notice of hearing and staff memorialized the waiver in a ROC, the ALJ will ask the claimant to confirm the waiver on the record during the hearing. 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, the ALJ may then issue a decision. If the waiver is not documented in the record, the ALJ may issue a decision if the claimant confirms the waiver on the record during the hearing. Desk Guides for ALJs to use when holding hearings by audio/telephone and online video are available on the OCALJ Chief Judge’s Library intranet site, under the “Remote Hearing Resources” header.

Reminder: Claimants who did not receive the new Notice of Ways to Attend a Hearing may withdraw their agreement to appear by audio/telephone and online video at any time before the start of the hearing, except in the limited circumstances where we have mandated an audio/telephone appearance, e.g., based on incarceration (see 20 CFR 404.936(d)(3), (5); 404.937(b)(2), (c); 416.1436(d)(3), (5); 416.1437(b)(2), (c)).

Direct all program-related and technical questions to your local management team. Hearing Office 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, place, and manner of appearance for a hearing before an administrative law judge
HALLEX I-2-0-21 - Objection to Appearing at Hearing by Audio or Agency Video
HALLEX I-2-3-10 - Scheduling Hearings
HALLEX I-2-3-11 - Claimant Timely Objected to Appearing at Hearing by Audio, Agency Video, or Both, but Has Changed Residences
HALLEX I-2-3-12 - Objections to Manner of Appearance or Time and Place Set for Hearing