VB 02503.020: Requests for SVB Hearing

changes
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~~Effective Dates: 07/07/2014 - Present~~
Effective Dates: 04/25/2018 - Present
BASIC (01-01)
VB 02503.020 Requests for SVB Hearing
A. Policy
1. How to Request a Hearing
a. Written Request
An individual may request a hearing by filing a written request, either a Form HA-501 (Request for Hearing) or any other written statement, that contains at least the following:
* The individual's name and Social Security number (SSN) (if the individual does not have an SSN, enter “none” in the space provided for the SSN, see VB 00201.055 on processing “alpha” SVB claims);
* The individual's reasons for disagreeing with the previous determination or decision;
* A statement of any additional evidence to be submitted and the date it will be submitted; and
* The name and address of any designated representative.
Until the HA-501 is revised to include title VIII, ensure that the completed form shows either “SVB” or “title VIII”.
b. When to File
A request for hearing must be filed in writing within 60 days after the date the individual received notice of the previous determination or decision, or within the extended time period as provided for in VB 02503.020A.1.c. SSA presumes that a notice is received within 5 days of the date of the notice unless shown otherwise. For individuals living abroad, however, it is SSA policy to extend the 5-day mail period on a case-by-case basis.
In a request for hearing on an initial application, when the notice of qualification to SVB and notice of entitlement for SVB payments are sent separately, the 60-day period applies to each determination.
c. Extension of Time to Request a Hearing
An ALJ may extend the time limit for filing a request for hearing if the individual or his representative makes a request in writing and establishes good cause for not filing within the time limit. To determine whether good cause exists, the ALJ will use the same standards used to determine good cause for failure to request reconsideration timely. (See VB 02501.010). Only an ALJ (or the AC on review) has authority to find good cause for an untimely filed request for hearing.
d. Where to File a Request for Hearing
A request for hearing may be filed at any of the following places:
* An SSA office;
* The Foreign Service Post (FSP);
* A U.S. Embassy or Consulate abroad;
* The Federal Benefits Unit (FBU);
* A proper authority of a country with which the U.S. has a Totalization agreement (see VB 02501.005B.); or
* A Railroad Retirement Board office if the individual has 10 or more years of service in the railroad industry.
2. Deciding a Case Without an Oral Hearing
a. Decision Wholly Favorable to the Individual
If the evidence in the hearing record supports a finding in favor of the individual on every issue, the ALJ may issue a decision without holding an oral hearing.
b. Individual Resides Outside the U.S.
When an individual resides outside the U.S. (which title VIII defines as the 50 States, the District of Columbia, and the Northern Mariana Islands), the ALJ will issue a decision without conducting a hearing if the individual does not inform us that he or she wishes to appear at a hearing.
c. Parties do Not Wish to Appear
When an individual resides within the U.S. and states in writing that he or she does not wish to appear at a hearing, the ALJ will issue a decision on the written record. (See VB 02503.020).
3. Withdrawal of Hearing Request
At any time before the notice of hearing decision is mailed, the individual may withdraw his or her request for hearing. The withdrawal request may be submitted to the ALJ in writing or made orally at a hearing.
a. Contents of the Withdrawal Request
The withdrawal request must include the following information:
* The individual's name and SSN (or “none” if the individual does not have an SSN);
* A statement of the reasons for requesting withdrawal;
* A statement that he or she understands the effect of the request (see VB 02503.020A.3.b.);
* The individual's signature.
b. Effect of Withdrawal Request
* Withdrawal of a request for hearing results in a dismissal of the request for hearing and that the prior determination or revised determination becomes the final decision on the claim for SVB;
* Only the ALJ or AC can vacate the dismissal of a request for hearing; and
* The individual may be lose benefits if he or she is qualified for and would be entitled to SVB.
c. Action By an ALJ on a Withdrawal Request
The ALJ may approve the withdrawal. If so, the findings of initial, revised, or reconsidered determination become final. If an individual withdraws the hearing request, the ALJ will not issue a hearing decision and the prior determination will become the final determination on the claim for SVB.
The ALJ may refuse to approve the withdrawal request if:
* The record shows that the individual did not understand the consequences of a withdrawal; or
* Withdrawal of the request for hearing would harm the individual's interest.
In these circumstances, the hearing process will proceed as if the individual had not requested to withdraw the request for hearing.
4. Dismissal of Hearing Requests
a. Who Can Dismiss a Hearing Request
An ALJ or the Appeals Council (AC) can dismiss a hearing request. (The AC may grant an individual's request for review of a hearing decision and dismiss the request for hearing for any reason the ALJ could have dismissed. The AC also may review a case on its own motion and dismiss the request for hearing for any reason the ALJ could have dismissed.)
b. Notice of Dismissal
The ALJ (or AC) will mail the notice of dismissal to the individual at his or her last known address and to the representative, if any. The notice of dismissal will contain the reason(s) for the dismissal. If an ALJ issued the dismissal, the notice will also explain that the individual has the right to ask the AC to vacate the action.
c. Effect of Dismissal
A dismissal is binding unless an ALJ or the AC vacates it.
d. Vacating a Dismissal
An ALJ or the AC may vacate a dismissal of the hearing request if, within 60 days after the date the individual receives the dismissal notice, he or she requests that the dismissal be vacated and shows good cause why the hearing request should not have been dismissed.
The AC may also vacate a dismissal on its own motion within 60 days after the date of the dismissal notice. The AC will advise the individual in writing of its action.
e. Grounds for Dismissing Hearing Requests -- Request by the Individual
The ALJ may dismiss the request for hearing at the request of the individual (see VB 02503.020A.3.). Follow the procedures in SI 04030.020A.4. for processing a request to withdraw a request for hearing.
f. Grounds for Dismissing Hearing Requests -- The Individual Abandons the Hearing
The individual is deemed to have abandoned the hearing if:
* Neither he or she nor his or her representative appears at the time and place fixed for the hearing; and
* The individual does not establish good cause for failure to appear within 10 days after the ALJ mails notice to the individual asking why he or she did not appear.
The option to dismiss is at the discretion of the ALJ.
g. Grounds for Dismissing Hearing Requests -- Res Judicata or Collateral Estoppel
The doctrine of res judicata provides that a request for hearing may be dismissed if the same facts and issue or issues were decided in a previous claim under the same title of the Social Security Act and the prior determination or decision has become final.
If the same facts and issues involving the same individual were previously decided under a different title of the Social Security Act, and the prior determination or decision is administratively final, we would apply the rule of collateral estoppel and adopt that prior determination or decision for the title VIII.
NOTE: A hearing request may not be dismissed because under the principle of res judicata if the individual relied on incomplete, incorrect or misleading information. (See SI 04005.020D.)
h. Grounds for Dismissing Hearing Requests -- Request Not Timely and Good Cause Not Shown
If the request for hearing is not filed within 65 days of the date of the reconsideration notice, obtain the veteran's statement explaining the reason(s) why he or she did not file the request timely. Include this statement when you send the request for hearing to the hearing office. The ALJ will determine whether the individual had good cause for not filing a timely request for hearing. If the ALJ finds that the individual did not have good cause, the ALJ will dismiss the request for hearing.
i. Grounds for Dismissing Hearing Requests -- Individual Dies Before the Hearing is Held or the Hearing Record is Complete
In an application for benefits, if the individual dies before the hearing decision is issued, the ALJ will dismiss the request for hearing.
If, however, the issue before the ALJ is the existence or amount of an overpayment or waiver of an overpayment, the ALJ will not dismiss the request for hearing if recovery from the individual's estate may be possible.
5. Consolidation of SVB, SSI and RSDHI Hearing Requests
Where practicable, a request for hearing on SVB, SSI and/or RSDHI claims involving one or more of the same issues may be heard at one hearing. If a claim for SVB, SSI, and/or RSDHI is pending at any level of development and involves the same issues(s), the ALJ may escalate the other claim(s) and resolve all claims at a consolidated hearing. If, when forwarding a claim for a hearing or later, you become aware of a pending hearing request on an claim under another title which appears to involve the same issue(s), notify ODAR so that the ALJ can consider consolidating the claims. In these cases, SSA will reimburse expenses for travel within the U.S. for an individual, his or her representative, and any witnesses the ALJ deems necessary for the proceedings, consistent with the provisions of title II and title XVI.
B. Procedure — Processing Hearing Requests
1. Terminal Illness Cases
Expedite handling of TERI cases and process in accordance with GN 00203.010.
2. Waiver of Personal Appearance
a. Individual Resides Outside the U.S.
Explain to the individual that:
* SSA does not hold hearings outside the U.S.;
* SSA assumes that an individual residing outside the U.S. does not wish to appear at a hearing unless the individual informs us that he or she wishes to appear; and
* SSA does not pay for travel outside the U.S. (nor for travel within the U.S. unless there is a concurrent title II and/or title XVI issue(s).
b. Individual Resides in U.S.
To an individual who resides within the U.S and who indicates he or she does not want to appear at a hearing, fully and carefully explain the effects of waiving the right to a personal appearance. (See SI 04030.020B.2.) Complete Form HA-4608 (Waiver of Your Right to Personal Appearance Before An Administrative Law Judge) if the individual resides in the U.S. and does not wish to appear at a hearing.
NOTE: Waiving the right to appear at a hearing does not affect issuing a decision.
c. Withdrawal of Waiver
An individual may withdraw the request for waiver any time before the ALJ's decision is mailed.
3. Accepting the Premature Hearing Request
Follow the procedures in SI 04030.020B.3. for processing hearing requests when an individual files a request for hearing and SSA has not issued a reconsidered or revised initial determination.
4. Individual Dies While Hearing Request Is Pending
Notify the ALJ and input a death notice to the SVB Intranet site. If the claimant has been receiving SVB payments, input a death notice into the SSR.
5. Good Cause for Failure to Appear
a. Individual Resides in U.S.
If an individual resides in the U.S. did not waive his or her right to appear at a scheduled hearing, but did not appear at the hearing without good cause, the ALJ will dismiss the request for hearing. If such an individual contacts the FO, help him or her prepare a statement about his or her reason(s) for not appearing at the hearing and for not notifying the ALJ that he or she would not appear. Send the statement to the ALJ.
b. Individual Resides Outside U.S.
If the individual informed SSA that he wished to appear at a hearing but did not appear at the hearing, and he or she contacts the FSP to help him prepare a statement about his or her reasons for not appearing at the hearing, and not notifying the ALJ that he or she would not appear. Send the statement to the ALJ.
If the individual informed SSA that he wished to appear at a hearing but did not appear at the hearing, and he or she contacts the FBU to help him prepare a statement about his or her reasons for not appearing at the hearing, and not notifying the ALJ that he or she would not appear. Send the statement to the ALJ.
6. Revision After Dismissal
If the individual submits information pertaining to his or her failure to appear at the hearing, forward it to the ALJ. The ALJ will evaluate the evidence, decide whether good cause exists for not attending the scheduled hearing, and will notify the individual of his or her decision.

POMS Reference

VB 02503.020: Requests for SVB Hearing