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Post by gary on Oct 13, 2015 23:06:38 GMT -5
I am a NODAR, so this question is not meant to be rhetorical since I don't know the answer: Is there any rule, regulation, or statute that requires that a claimant who wants an in-person hearing live within a particular distance of the hearing site?
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Post by saaao on Oct 14, 2015 5:00:58 GMT -5
I am a NODAR, so this question is not meant to be rhetorical since I don't know the answer: Is there any rule, regulation, or statute that requires that a claimant who wants an in-person hearing live within a particular distance of the hearing site? Hearing offices all have a coverage area. If a claimant wants an in person hearing they will be assigned to the hearing office that covers their area. I don't know that there is any particular regulation that covers it. I believe it is an administrative decision made at the regional or HQ level. I do now in more spread out states it is not unusual for claimants to have to drive many hours to get to a HO. That was the reason for travel dockets, but I believe VTC has mostly replaced those. If it comes time to consolidate offices I am sure that ODAR will be able to push through compulsory VTC.
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Post by gary on Oct 14, 2015 6:59:04 GMT -5
Thanks for the info saaao.
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Post by Deleted on Oct 14, 2015 7:52:30 GMT -5
Redryder: "There may be ODAR offices where there is no need, but the likelihood of closing them is slim and none. And it is not the location. It is what to do with the staff. They are not laid off but have to be folded into another office"
I completely overlooked this most obvious problem, excellent point Redryder. But for the inability of the SSA to know what to do with the staff, I agree, the bloat ODARs will likely never close. And so the journey continues.
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Post by Deleted on Oct 14, 2015 8:03:31 GMT -5
In my neck of the woods, well over 90% of claimants object to video hearings. Maybe we are outliers, but unless SSA mandates video hearings, I don't foresee office closures/consolidations. Very interesting comparison, as in our neck of the woods here, the complete opposite holds true. We rarely see objections to video hearings, as waiting on live hearings will extend wait times for several months. The vast majority (all of mine through from today through 03/2016) of my hearings are video. Our little office covers any one time at least 3 states and +6 other ODARs offices (who are severely backlogged: e.g. I understand we just received a incoming transfer of 3000 claims) so having live hearings is the exception rather than the rule. I think it would be very interesting to see a video opt in/out study per region and/or ODAR: do inner-metro ODARs see a larger percentage of live hearings whereas rural ODARs see videos? What is the disposition time and cost comparisons of live vs. video, etc. Very interesting.
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Post by Deleted on Oct 14, 2015 20:00:06 GMT -5
I am a NODAR, so this question is not meant to be rhetorical since I don't know the answer: Is there any rule, regulation, or statute that requires that a claimant who wants an in-person hearing live within a particular distance of the hearing site? Hearing offices all have a coverage area. If a claimant wants an in person hearing they will be assigned to the hearing office that covers their area. I don't know that there is any particular regulation that covers it. I believe it is an administrative decision made at the regional or HQ level. I do now in more spread out states it is not unusual for claimants to have to drive many hours to get to a HO. That was the reason for travel dockets, but I believe VTC has mostly replaced those. If it comes time to consolidate offices I am sure that ODAR will be able to push through compulsory VTC. I agree that ODAR might be able to push through VTC by the rule making authority, but if challenged in Court, not so sure that it will stand up to judicial analysis. I don't think that (VTC hearings) is what was intented by the "due process" of the APA. Absent a compelling reason to the contrary, "due process" should mean that you have a due process right to your day in Court in front of a Judge, not a TV screen, hundreds of miles away.. Could be wrong, it would not be the first time, nor the last time, but IMHO.
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Post by bowser on Oct 15, 2015 9:06:35 GMT -5
I completely overlooked this most obvious problem, excellent point Redryder. But for the inability of the SSA to know what to do with the staff, I agree, the bloat ODARs will likely never close. And so the journey continues. Don't see why this should be an insurmountable problem. I would imagine ALJs/mgrs could be reassigned. Relocation expenses might be possible to encourage transfers. In any event, staff need not be replaced following attrition. Office space could be reduced with renegotiation or when leases expire. With telework and portable work, any staff refusing to relocate could be assigned duties. Judges could be given desktop DVRs and hold only fully video hrgs. Writers could be treated the same as teleworkers or NCAC/RCAC writers. SCTs could do workup. ...
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Post by keepsake on Oct 15, 2015 17:29:40 GMT -5
I don't think this little tidbit has been discussed. But the following comes from the 10/12/15 AALJ Newsletter and President's Report at p. 10:
"Jack Allen stated that the agency is thinking about taking popular cities and making new hearing office locations there, to be managed by the local HO closest to new location. With regard to the recent agency solicitation for volunteers (with paid relocation expenses) for less-desirable locations where we have trouble holding judges, this was not really much of a success. 10-12 volunteered, but many were from other, equally non-desirable locations."
This would be an interesting approach. If you can't get the judges to the cities, bring the cities to where the judges want to be. Can't say that I find this a very real possibility but SSA seems to be thinking how to get this "problem" solved.
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Post by keepsake on Oct 15, 2015 17:38:11 GMT -5
Of course not sure how this would solve any problems if the "more desirable" locations are not the areas where judges needed generally in terms of backlog of hearings, etc
And with that - I apparently become an "Elder" - how rewarding.
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Post by 71stretch on Oct 15, 2015 19:15:08 GMT -5
Hearing offices all have a coverage area. If a claimant wants an in person hearing they will be assigned to the hearing office that covers their area. I don't know that there is any particular regulation that covers it. I believe it is an administrative decision made at the regional or HQ level. I do now in more spread out states it is not unusual for claimants to have to drive many hours to get to a HO. That was the reason for travel dockets, but I believe VTC has mostly replaced those. If it comes time to consolidate offices I am sure that ODAR will be able to push through compulsory VTC. I agree that ODAR might be able to push through VTC by the rule making authority, but if challenged in Court, not so sure that it will stand up to judicial analysis. I don't think that (VTC hearings) is what was intented by the "due process" of the APA. Absent a compelling reason to the contrary, "due process" should mean that you have a due process right to your day in Court in front of a Judge, not a TV screen, hundreds of miles away.. Could be wrong, it would not be the first time, nor the last time, but IMHO. Actually, I disagree. I think a video hearing generally meets due process requirements. A meaningful opportunity to be heard. Government agency hearings at state level are often by phone-- for unemployment, public assistance, etc. At least with video the judge and the claimant can see one another.
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Post by sallyseeker on Oct 18, 2015 0:59:11 GMT -5
There may be ODAR offices where there is no need, but the likelihood of closing them is slim and none. And it is not the location. It is what to do with the staff. They are not laid off but have to be folded into another office. When the ODAR office in Covington, GA was closed, there was no problem. It located within 35 miles of Atlanta. Reassign them at no cost. But require them to move more than 75 miles and the agency has to pay for relocation. The only places that have offices close together are major metro areas like Houston, Dallas, LA, Atlanta. Out here in Crapland, there are no nearby ODARs to consolidate. Just a note - the 2025? SSA plan (published) is exactly that - to shut down ODARs/consolidate with field offices/reduce the leasing footprint of SSA. It would be cheaper to relocate some staff and a few judges versus continue to pay on a lease for a small office in crapville. (which is outlined in the plan which was released about a year or so ago)
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Post by sallyseeker on Oct 18, 2015 1:03:36 GMT -5
Also - I'm not completely familiar with the details/regs on these things - but a claimant is entitled or can apply for travel expenses to an in-person hearing, which may apply when they decline a video hearing.
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Post by privateatty on Oct 18, 2015 8:04:23 GMT -5
I agree that ODAR might be able to push through VTC by the rule making authority, but if challenged in Court, not so sure that it will stand up to judicial analysis. I don't think that (VTC hearings) is what was intented by the "due process" of the APA. Absent a compelling reason to the contrary, "due process" should mean that you have a due process right to your day in Court in front of a Judge, not a TV screen, hundreds of miles away.. Could be wrong, it would not be the first time, nor the last time, but IMHO. Actually, I disagree. I think a video hearing generally meets due process requirements. A meaningful opportunity to be heard. Government agency hearings at state level are often by phone-- for unemployment, public assistance, etc. At least with video the judge and the claimant can see one another. Completely correct and any one who gets around and meets federal ALJs from other Agencies would agree--given that what 71stretch talks about is routine practice at some Agencies.
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Post by luvgov on Oct 18, 2015 17:19:53 GMT -5
Sorry, I disagree. There are already statistics showing that the NHC have a higher denial rate and I believe if the agency polled the ALJ corps the majority would agree that the credibility analysis is much better in person. However, there are positive aspects of video hearings and the Agency is always under pressure to "improve" and this seems to be the most recent tactic. In the same recent ALJ newsletter mentioned above it was noted that a recent review of the National Hearing Center dispositions (all by video) showed a higher affirmation rate but that the Agency had completed a review and the ALJ's in the NHC were found to be "policy compliant". So we can all rest well at night. I suspect some type of class action lawsuit by the claimant's bar in the future but only time will tell.
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Post by 71stretch on Oct 18, 2015 18:53:36 GMT -5
Sorry, I disagree. There are already statistics showing that the NHC have a higher denial rate and I believe if the agency polled the ALJ corps the majority would agree that the credibility analysis is much better in person. However, there are positive aspects of video hearings and the Agency is always under pressure to "improve" and this seems to be the most recent tactic. In the same recent ALJ newsletter mentioned above it was noted that a recent review of the National Hearing Center dispositions (all by video) showed a higher affirmation rate but that the Agency had completed a review and the ALJ's in the NHC were found to be "policy compliant". So we can all rest well at night. I suspect some type of class action lawsuit by the claimant's bar in the future but only time will tell. Is an in person hearing "better"? Yes. Does a video hearing violate due process? No.
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Post by carrickfergus on Oct 18, 2015 19:02:55 GMT -5
We shall see soon enough. Odar is currently straddling the fence, denying in person hearings to those who don't "opt out" within an arbitrary time frame. That is bound to be litigated. FtoF hearings are either essential to procedural due process, or not, under the Matthews v Eldridge balancing test; regardless of whether or not one replies to the video notice.
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Post by Deleted on Oct 20, 2015 7:05:13 GMT -5
Due process challenges to video hearings in SSA cases would be a non-starter. Always remember these are non-adversarial claims; the claimant herself is not even afforded the basic due process right to counsel.
Unless and until these hearings become full fledged adversarial hearings and claimants are necessarily afforded right of counsel, then providing the claimant a hearing via video is sufficient.
Remember the due process argument does not extend to the method (video via live) of hearing, but only to the "notice of" and "opportunity for" hearing. The issue was settled long ago in ScT cases; e.g., Mathews v. Eldridge, Richardson v. perales, et al.
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Post by ba on Oct 20, 2015 8:11:56 GMT -5
Due process challenges to video hearings in SSA cases would be a non-starter. Always remember these are non-adversarial claims; the claimant herself is not even afforded the basic due process right to counsel.
Unless and until these hearings become full fledged adversarial hearings and claimants are necessarily afforded right of counsel, then providing the claimant a hearing via video is sufficient.
Remember the due process argument does not extend to the method (video via live) of hearing, but only to the "notice of" and "opportunity for" hearing. The issue was settled long ago in ScT cases; e.g., Mathews v. Eldridge, Richardson v. perales, et al. Um...there is a right to counsel. A claimant that wants to pay for a lawyer to represent them can have a lawyer represent them. That is a right to counsel. Are you talking about the right to appointed counsel? Because that is not a due process right. That is a Sixth Amendment right in criminal proceedings. Or are you suggesting that the right to counsel is provided by regulation rather than by due process? Because, while I don't necessarily think that proposition would be accurate, that doesn't really matter. The fact is the claimant has a right to counsel irrespective of its source.
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Post by bartleby on Oct 20, 2015 10:02:44 GMT -5
Although other Agencies use video hearings that does not make them fantastic. Part of our responsibility is to access the claimant's credibility. That is very hard to do when you have substandard video equipment and can not see the claimant's face clearly. While some may argue that this is not a problem, I feel that it is. I prefer face to face and feel that I am able to do a better hearing with a face to face encounter. Maybe just my opinion, but I am in the Hearing room. During one video hearing I actually caught the rep attempting to coach the claimant during the hearing..
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Post by Deleted on Oct 20, 2015 10:42:06 GMT -5
Yes, appointed counsel. Mea Culpa. The prior attempts to impose the higher scrutiny due process protections via the right to counsel in SSA claims have been tried and failed in courts as those rights arise under the 6th and 14th amendments (e.g., criminal proceedings) and are not applicable to lesser scrutiny administrative proceedings such as SSA.
Once the Congress turns these SSA matters into adversarial hearings (which IMHO Congress should asap) then the higher due process rights would likely attach.
However then again, in light of VTC being std proceedings in criminal processes now, I would think the same argument would fail even there, as criminal proceedings (with attendant matters of loss of liberty and/or life) routinely are processed via video hearings without pause.
All in all the real issue is: Are concerns about video vs. live hearings even a relevant issue to ALJs? Seems to me that is an issue for the claimants/reps to take up. We ALJs show up to do the hearings as told and scheduled video or live.
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