I-2-0-21.Objection to Appearing at Hearing by Audio or Agency Video

A. General

As explained in 20 CFR 404.936(d) and 416.1436(d)(1), a claimant has the right to object, in writing, to appearing at a hearing by audio, by agency video, or both, within 30 days of receiving the Notice of Ways to Attend a Hearing. However, if a claimant changes residence while the request for hearing is pending, Office of Hearings Operations (OHO) management, through designated staff, will determine how the claimant will appear, regardless of whether the claimant previously objected to appearing by audio, by agency video, or both. Generally, OHO management, through designated staff, will honor the claimant's request not to appear by audio, by agency video, or both, even when a claimant changes residences if their appearance by other available manners of appearance causes no additional delay and there is no other reason to refuse the request.

B. Establishing Timeliness

In evaluating the timeliness of an objection, OHO management, through designated staff, will follow the guidance in HALLEX I-2-0-80.

C. Timely Objections

If a claimant objects in writing only to an appearance by audio, OHO management, through designated staff, may schedule the claimant to appear in person, by agency video, or, if the claimant agrees, by online video. If a claimant objects only to an appearance by agency video, designated staff may schedule the claimant to appear in person, by audio, or, if the claimant agrees, by online video. If a claimant objects to an appearance by both audio and agency video within the 30-day timeframe and does not change residences while the request for hearing is pending, the hearing will be set for a time and place at which the claimant may appear before the administrative law judge (ALJ) in person or, if the claimant agrees, by online video.

If the claimant has submitted a timely objection to an appearance by audio, agency, or both but changes residences while the request for hearing is pending, OHO management, through designated staff, may in certain circumstances schedule the claimant to appear by audio or agency video, despite the objection (HALLEX I-2-3-11).

If the claimant changes residences while the request for hearing is pending, the Hearing Office Chief Administrative Law Judge (HOCALJ) will determine whether to transfer the case to another hearing office (HO) by considering whether:

• The claimant submitted evidence establishing a change in residence, such as a utility bill, notification from the post office, or other documentation establishing a change in residence. (A change in mailing address is not sufficient to establish a change of residence, e.g., a change of address to a P.O. Box does not establish a change of residence);

  NOTE 1:

  OHO management, through designated staff, is not required to develop a change in address (i.e., the burden is on the claimant), but may contact the claimant or representative for more information if a change in residence or mailing address suggests a claimant may need to travel more than 75 miles to the hearing site. Additionally, if the information does not clearly establish a change in residence (i.e., there is still some indication of a different residence), OHO management, through designated staff, may solicit more information.

• The claimant now lives in the jurisdiction of another HO;

• The facts in the case provide a good reason to schedule the claimant to appear by agency video or in person;

• The change in residence requires the claimant to travel more than 75 miles to a hearing site in the first HO's jurisdiction; and

• The claimant has not agreed to appear by online video.

If all these criteria are met, the HOCALJ will determine and coordinate any appropriate transfer of the case.

If a case transfer is appropriate, see HALLEX I-2-1-57. If no case transfer occurs, no notice to the claimant is required.

D. Untimely Objections

If the claimant submits an objection to appearing by audio, by agency video, or both, after the 30-day timeframe, the ALJ will evaluate whether the claimant has good cause for the late submission. If there is no evidence in the file indicating the reason for the late objection, the ALJ will send the claimant and representative, if any, a letter requesting an explanation for the untimely objection. The ALJ will add the letter and any response to the claim(s) file as exhibits. In evaluating good cause, the ALJ will use the standards set forth in 20 CFR 404.911 and 416.1411.

If the ALJ does not find good cause for the untimely objection, the HO will notify the claimant and representative, if any, before the hearing is scheduled. The ALJ's finding must be in a writing that is associated with the record and added as an exhibit.

If there is insufficient time to develop the record prior to the scheduled hearing, for example, if there is no reason stated for the late objection and there is not sufficient time to send a letter and receive a response, then the ALJ may elicit responses and rule on the objection on the record at the hearing. If the claimant does not appear at the scheduled hearing, the ALJ will follow the usual procedures in HALLEX I-2-4-25.