Last Update: 5/24/11 (Transmittal I-2-82)
Citations:
20 CFR 404.936,.416.1436, 404.999a-d, and 416.1495-416.1499
Unless the agency exercises its authority under the 3-year pilot program in 20 CFR 404.936 or 416.1436 (68 FR 5218, Feb. 3, 2003, as amended at 75 FR 39160, July 8, 2010) that began on August 9, 2010, the Administrative Law Judge (ALJ) sets the time and place for the hearing. The ALJ may change the time and place, if necessary. The objective is to hold a hearing as soon as possible after the request for hearing (RH) is filed, at a site convenient to the claimant. The HO staff should telephone hearing participants to ascertain availability before scheduling the hearing.
NOTE:
If a claimant threatens violence against the general public or hearing office personnel, or has been banned from entering a federal or Social Security facility, please refer to the instructions for scheduling a hearing in 20 CFR 404.937 and 416.1437 (see 76 FR 13508, Mar. 14, 2011), and HALLEX I-2-1-37, Claimant Threatens Violence.
When an ALJ sets the time and place for a hearing, the ALJ will consider the number and types of cases to be set for hearings during the period under consideration, the proximity of the hearing site to the claimant's residence, and the availability of the claimant, representative and witnesses on the proposed hearing date. To the extent possible, the location of the hearing site will be within 75 miles of the claimant's residence. The ALJ should also give consideration to conducting the hearing through the use of video teleconferencing technology.
A claimant should not be required to travel a significant distance to the hearing office (HO) or another hearing site if a closer hearing site exists and there are no other circumstances that prevent an ALJ from conducting the hearing at the closer hearing site.
A claimant should not be required to appear at the HO or another hearing site if personal circumstances prevent the claimant from doing so. For example, a claimant's confinement in a prison or other institution may require an ALJ to schedule the hearing at the place of confinement, unless other arrangements can be made. Some institutions have video teleconferencing technology that can be used to conduct hearings. An ALJ is encouraged to pursue this avenue for security reasons, as well to reduce delays in the hearing that may otherwise occur. Telephone hearings may be held for a claimant held in a place of confinement if all of the requirements below are met:
There would otherwise be significant delay in adjudicating the case (based on an evaluation of the circumstances of the case, including when the claimant will be released from the confinement facility and how long the claimant has been waiting for a hearing);
No other means of conducting a hearing is immediately available, including video teleconferencing;
Telephone hearings are permitted by the confinement facility;
The claimant has been informed of the right to an in-person hearing as well as other available options including:
a decision based on the information in the case file,
waiting for an in-person hearing or hearing by video teleconferencing,
designating a representative to appear on the claimant's behalf at an in-person hearing or hearing by video teleconferencing at a location other than the place of confinement, or
withdrawing the request for hearing;
The claimant is informed that although he or she will have the same rights to present evidence, testify, and question any witnesses, he or she is waiving the opportunity to see or be seen by the ALJ in person; and
The claimant, or appointed representative on behalf of the claimant, affirmatively agrees in writing that he or she has been notified of the available options and affirmatively elects to proceed with a telephone hearing, and this writing is associated with the file as an exhibit.
NOTE:
There are circumstances in which the only alternative for scheduling a hearing for a confined claimant is waiting until the period of confinement ends.
A claimant or other party to the hearing should not be denied the right to a hearing because of geographic considerations. For example, if a person whose rights may be adversely affected by the decision resides in a different HO service area than the claimant, the ALJ may conduct a primary hearing for the claimant that filed the RH, and arrange for the other person to attend the hearing or a supplemental hearing by video teleconferencing.
When an ALJ schedules several hearings in succession, the ALJ should estimate the time that will be required for each hearing to ensure that sufficient time is allotted.
An ALJ may postpone a hearing before the time set for the hearing or adjourn a hearing in progress to continue it at a later date. The ALJ will give the claimant reasonable notice of postponement or continuance of a hearing. See I-2-3-35, Adjournment and Continuance of Hearing.
A claimant may object to the time or place of a hearing by notifying the ALJ of the reasons for the objection at the earliest possible opportunity, and the time and place he or she would prefer the hearing to be held. When the hearing is scheduled by video teleconferencing, the claimant has an absolute right to request the hearing be postponed and re-scheduled in favor of an in-person hearing. See 20 CFR 404.936(e) and 416.1436(e) (68 FR 5218, Feb. 3, 2003, as amended at 75 FR 39160, July 8, 2010); I-5-1-16 III.C., Claimant's Right to Object to VTC Hearing. As explained in section A., a hearing by telephone for a confined claimant may not be held if he or she objects in any manner.
Whenever possible, the claimant or the claimant's representative should submit the objection in writing. However, if necessary, the claimant may object by telephone. If a claimant notifies the HO of an objection by telephone, the HO staff must prepare a report of contact and associate it with the claim folder. When a proposed exhibit list is created, the report of contact should be made an exhibit to the claim folder.
The ALJ must find good cause for changing the time or place of a scheduled hearing if:
the claimant or the claimant's representative is unable to attend or travel to the scheduled hearing because of a serious physical or mental condition, incapacitating injury, or death in the family;
severe weather conditions make it impossible to travel to the hearing; or
the claimant objects to the hearing being held by video teleconferencing technology. See I-5-1-16 III.C., Claimant's Right to Object to VTC Hearing.
The ALJ may also find good cause for changing the time or place of a scheduled hearing, based on other circumstances. When determining whether a claimant has good cause for objecting to the time or place of his or her hearing based on other circumstances, the ALJ will consider the claimant's reason(s) for objecting, the facts supporting the reason(s), and the effect of the proposed change on the efficient administration of the hearing process.
Examples of other circumstances a claimant may give for requesting a change in the time or place of a scheduled hearing include, but are not limited to, the following:
the claimant has attempted to obtain a representative, but needs additional time;
the representative was appointed within 30 days of the scheduled hearing and needs additional time to prepare for the hearing;
the representative has a prior commitment to be in court or at another administrative hearing on the date scheduled for the hearing;
a witness who will testify to facts material to the case would be unavailable to attend the scheduled hearing and the evidence cannot be otherwise obtained;
transportation is not readily available for the claimant to travel to the hearing;
the claimant lives closer to another hearing site; or
the claimant is unrepresented and illiterate and, as a result, unable to respond to the notice of hearing.
When determining the impact that changing the time or place of the hearing would have on the efficient administration of the hearing process, factors the ALJ should consider include, but are not limited to: the impact on other cases awaiting hearing, the cost of implementing the change (e.g., higher expert witness fees or travel expenses), whether the ALJ granted the claimant an earlier change, and whether a change would unnecessarily delay the hearing.
When the ALJ finds that there is good cause to change the time or place of the hearing, the ALJ will reschedule the hearing. The ALJ or the HO staff will notify the claimant and representative of the finding by issuing a new notice of hearing at least 20 days before the hearing. See I-2-3-15, Notice of Hearing.
When the ALJ does not find that there is good cause to change the time or place of the hearing, the ALJ will not reschedule the hearing. The ALJ or the HO staff will notify the claimant and representative of the finding and rationale for the finding before the hearing. The notification could be either by written notice or via telephone by HO staff, documented in a Report of Contact. Such notice documentation should be made an exhibit to the administrative record.
NOTE:
The place of a hearing may not be changed simply because another site would be more convenient to the representative. See I-2-0-70, Hearing Office Service Area.
In addition to the cited regulatory references, additional directives concerning the payment of travel expenses can be found in the Administrative Instructions Manual System, Financial Management Manual, Chapter 07, Instruction No. 26 (AIMS. FMM 07.26).
The designated hearing office personnel may authorize reimbursement for the travel expenses of a claimant or unsubpoenaed lay or medical witness whose appearance the ALJ determines is "reasonably necessary" for a fair hearing, when such person must travel more than 75 miles one way to attend the hearing. Reimbursable expenses typically include the ordinary expenses of public or private transportation as well as unusual costs due to special circumstances. See 20 CFR 404.999c and 416.1498.
NOTE:
When a change in the location of the hearing is made at the claimant's or representative's request, and the new hearing site is farther from the claimant's residence than the initial location, any additional travel expenses will not be reimbursed (i.e., eligibility and the amount of reimbursement will be based on the initial location of the hearing).
For claimants traveling from a foreign destination, see I-2-0-72, Assigning and Processing Requests for Hearing Filed by Claimants Who Do Not Reside in the United States.
A subpoenaed witness is reimbursed the same fees and allowances paid to witnesses in U. S. District Court, including:
a fee for each day's attendance (including a fee for the necessary time to travel to and from the place of attendance);
the actual cost of transportation by the most economical and expeditious mode; and
a subsistence allowance on the same basis that Social Security Administration employees are currently authorized.
These expenses must be recorded on a Public Voucher for Fees and Mileage of Witnesses, SF-1156, and Claim for Fees and Mileage of Witness, SF-1157, which must be signed by the subpoenaed witness and a certifying officer. The certifying officer may not be the ALJ at whose hearing the witness testified. The regional office will process these vouchers and forward them to the appropriate servicing fiscal office for payment.
3. Representatives
A representative may request reimbursement if travel from the representative's office to the place where the hearing is held exceeds 75 miles one way.
The amount of reimbursement a representative receives cannot exceed the maximum amount allowable for travel to the place where a hearing is held. The maximum amount allowable for travel to each individual hearing site is calculated by completing attachment B in Chapter 7, Instruction No. 26 in AIMS. This information should be maintained by each hearing office for each hearing site in its jurisdiction (including the hearing office and all remote sites). As this information is established or updated by the hearing office, the hearing office should forward a copy of this information to the Office of Disability Adjudication and Review (ODAR) regional office.
NOTE 1:
If the distance between the place where a hearing is held and the farthest point in the entire hearing office geographic service area does not exceed 75 miles, representative travel expenses are not reimbursed.
NOTE 2:
Do not take into consideration whether the representative traveled from outside the service area of the hearing office. As a representative cannot receive more than the maximum amount allowable for a particular hearing site, it is irrelevant whether the travel occurred in or out of the service area.
NOTE 3:
When a change in the location of the hearing is made at the claimant's or representative's request, and the new hearing site is further from the representative's office than the initial location, any additional travel expenses will not be reimbursed (i.e., eligibility and the amount of reimbursement will be based on the initial location of the hearing).
Subject to the maximum amount allowable, ordinary expenses of public or private transportation are typically reimbursable. As appropriate, designated personnel may also consider unusual costs due to special circumstances. See 20 CFR 404.999c and 416.1498. However, the combined reimbursement of ordinary and unusual costs cannot exceed the maximum amount allowable for the site where the hearing is held.
If actual reimbursement for a representative's travel is less than the maximum amount allowable for travel to a hearing site, reimbursement is based on actual travel expenses and not the maximum amount allowable.