Monthly Archives: October 2014
As often happens when SSA changes its procedures, especially on a mass basis, implementation of the final rules [79 Fed. Reg. 35926 (June 25, 2014)] on objecting to video hearings has been rather bumpy. Claimants are confused when they receive the notices, sometimes with envelopes, sometimes without. This results in more calls and visits to their representatives. Representatives are confused when they receive the forms and hearings have already been scheduled, sometimes even for video hearings.
Articles in the July and August 2014 issues of the NOSSCR Social Security Forum described the final regulations and how SSA intended to implement them. However, at a recent meeting with ODAR Deputy Commissioner Glenn Sklar and his top management staff, including Chief Administrative Law Judge Debra Bice, NOSSCR representatives raised many of the questions and concerns experienced by claimants and their representatives. This article will try to answer some of the questions. Also, the SSA website has a brief summary, http://www.ssa.gov/representation/appearingathearings.htm. The regulations provide that prior to scheduling a hearing, SSA will notify the claimant that it may schedule the appearance by video teleconferencing. If the claimant objects to appearing by video teleconferencing, the claimant or his/her representative must notify SSA in writing within
30 days after receiving this notice, although the time can be extended for “good cause” as provided in 20 C.F.R. §§ 404.936(d)(2) and 416.1436(d)(2). To determine whether good cause exists to extend the 30-day deadline, SSA will use the factors in 20 C.F.R. §§ 404.911 and 416.1411.
• New request for hearing: For a hearing request received after September 6, 2014, the hearing request acknowledgement will include language that the hearing may be a video hearing. A form will be provided, with a barcode on the form. As provided in the instructions, the form is to be returned either by mail in the envelope provided to the representative or by fax to the dedicated number provided. The fax number is provided with these notices and forms. Using this fax number directly uploads the form to the electronic folder.
• Pending request for hearing but hearing not yet scheduled. For a pending hearing request for which the acknowledgement has already been sent, but the hearing has not yet been scheduled, SSA will send a notice that the hearing may be either in person or by video and an “opt-out” form will be included. SSA began to mail out these notices on a staggered basis over a 6-week period beginning September 19, 2014. These forms will have no barcode. They are to be mailed back in the envelope provided to the representative. They will be scanned into the electronic folder (although there may be a delay) and will appear in the “Case Documents” section. We know that the notices and forms have been sent in cases already scheduled for hearing, in some cases, even video hearings. We were told that a cut-off date was selected that was apparently overly broad. It is possible that at the time of the cut-off date, the case was not scheduled but by the time the notice was sent and received, the case was scheduled. What should you do? We were told that ODAR will not change already scheduled hearings. But just to be safe, you may want to send back the opt-out form if the claimant wants an in-person hearing. It is important to note that these are “onetime” notices and any confusion regarding pending cases will eventually disappear.
Answers to questions and practice tips:
• Representatives can sign the forms. Consistent with the regulation, an authorized representatives can sign the opt-out form on behalf of the claimant. See 20 C.F.R. § 404.1710. However, be sure to discuss this with your client as the choice to opt-out or not is the claimant’s decision. Some practitioners address this with their clients at the initial interview, which
is a good time to discuss the pros and cons of video hearings vs. in-person hearings.
• Submit the form after the acknowledgment notice is sent, not before. Some members have asked if the form, HA-55, is available online and can be submitted with the request for hearing. The answer is “no.” The regulation provides that the claimant respond after receipt of the hearing request acknowledgment and the notice and form to opt out of a video hearing. From a systems perspective, it was explained at our meeting with ODAR that there would be problems associating the form if sent before the case is logged in to the ODAR case management system, e.g., if the form is sent with the request for hearing. The process is set up, so that the form be submitted after the case is logged in and thus will be associated with the case. It will appear in the Case Docs section of the electronic file.
SSA also is uploading copies of the initial notice to the claimant’s electronic file. The notice date reflected in the file is the same date the notice was mailed. SSA also is including the actual mailing date on all of the notices as well.
• Use the envelope or fax number sent with the acknowledgment letter and form. If you are mailing back the form, use the envelope sent with the form. If you are faxing back the form (only for cases with a new acknowledgment letter), use the fax number provided with the letter since this is a dedicated fax number. Do not submit by ERE!
• For already scheduled hearings, no need to respond. If you receive one of the one-time notices (for cases where acknowledgment letter previously sent) by mistake for cases are already scheduled, you do not need to respond. The scheduled hearing (whether in-person or video) will not be changed. However, as mentioned above, if the claimant is scheduled for an in-person hearing, you may want to go ahead and send the opt-out form back, just to be safe.
• Claimant obtains representation more than 30 days after the opt-out form was received. We know that a common occurrence is that claimants often retain representation after a hearing has been scheduled and the hearing notice has been received. This will undoubtedly occur more than 30 days after the opt-out form was sent earlier with the request for hearing acknowledgment.
The new regulation requires the objection to be made within 30 days of receipt of the new notice that the hearing could be held by video and receipt of the opt-out form. 20 C.F.R. §§ 404.936(d) and 416.1436(d). The prior regulations provided that an objection to a video hearing be made “at the earliest possible opportunity” (with no time limit) and would automatically result in scheduling of an in-person hearing. If the objection was not “timely,” then the ALJ would determine if “good cause” existed under the other factors in the regulations. 20 C.F.R. §§ 404.936 and 416.1436.
Based on comments to the 2013 proposed rule, including those from NOSSCR, the final rule added a “good cause” provision for extending the 30 days to object and send back the opt-out form if the objection is made beyond that period. 20 C.F.R. §§ 404.936(d) (2) and 416.1436(d)(2). To determine whether good cause exists to extend the 30-day deadline, SSA will use the factors in 20 C.F.R. §§ 404.911 and 416.1411.
At the ODAR meeting, we specifically asked what a claimant and representative should do if the claimant retains representation more than 30 days after the opt-out form is received and has not been sent back to ODAR and, after consulting with the representative, the claimant decides she/he wants an in-person hearing. The response was that the form should be returned with a request for good cause to extend the 30-day limit, with an explanation why the time should be extended. While not directly addressed, the request should be sent to the ALJ, if already assigned. If no ALJ has yet been assigned, send the request to the Hearing Office Chief ALJ.
Attorney Byron P. David Asked to Speak at the South Carolina Association for Justice Auto Torts Advanced Trial Lawyers College
Attorney Byron P. David of Conway, has been asked to speak at the South Carolina Association for Justice’s (SCAJ) Advanced Trial Lawyer College this December in Atlanta. David will be on the panel with esteemed colleagues, Attorneys John S. Nichols, Allison P. Sullivan and Bert G. “Skip” Utsey. David’s segment is noted under the Expert College – Learning from the Experts and is titled “The Devil is in the Details: Settlement Agreements, Indemnity Liens”.
“I am truly humbled to be speaking at the conference with such respected and accomplished attorneys. The Auto Torts conference is always informative and insightful; I look forward to being on the other side this year,” says David.
The Auto Torts Advanced Trial Lawyer College will be at the Ritz-Carlton, Buckhead, Atlanta the first weekend in December. Often described as “the best seminar in the region, if not the country,” the SCAJ Auto Torts seminar is enjoyed by trial lawyers from across the south. It will include a variety of presentations on subjects ranging from technology and toxicology to neuropsychology and ethics. Speakers will include well-known AAJ members and experts in their fields.
Check out Attorney Byron David in this week’s Horry Independent! Attorney David was awarded the “Kiwanian of the Year” award and passed the gavel to Chief of Police, Reggie Gosnell.
Attorney Byron David, President of the Kiwanis Club of Conway, presented a $2,000 check to South Conway Elementary School on behalf of the Kiwanis Club. The money will be used to help meet the needs of students. Pictured are, left to right, Denise Williams, SCES family school coordinator; Leon Hayes, SCES principal; Byron David, Kiwanis Club president; and Kiwanians Betty Moore, Larry Moore and Gail Anderson.