Aaron Morgan, the Chief Administration Law Judge for Region 2, recently met with advocates at various locations throughout the region. Region 2 encompasses New York, New Jersey, Puerto Rico, and the U.S. Virgin Islands. According to advocates who attended the meetings, ALJ Morgan discussed the new Rules of Conduct and Standards of Responsibility for Appointed Representatives. One component of the rules limits the ability of a representative to withdraw from a case once the time and place of the hearing has been set, absent “extraordinary circumstances.” 20 C.F.R. §§ 404.1740(b)(3)(iv) and 416.1540(b)(3)(iv). According to ALJ Morgan, however, this rule does not mean that an ALJ can refuse a representative’s request. And a generic request based on “attorney/client communications” should be sufficient. If a representative frequently or repeatedly requests to withdraw after the hearing has been scheduled, however, such a pattern of conduct could lead to sanctions. ALJ Morgan was not able to specify what would constitute frequent or repeated.
The new regulations also require representatives to disclose whether they “participated” in the drafting, preparation, or issuing of medical or vocational opinions. 20 C.F.R. §§ 404.1740(b)(5) and 416.1540(b)(5). Participation includes provision of a template or questionnaire for the provider to complete. ALJ Morgan reassured advocates that this new duty to disclose will be met by a simple statement on the bottom of any form provided to medical or vocational sources that the form was prepared by the advocate.
Another section of the new rules now requires a representative to provide, when requested, potential dates and times the representative is available for a hearing. 20 C.F.R. §§ 404.1740(b)(3)(iii) and 416.1540(b)(3)(iii). According to ALJ Morgan, hearing offices will soon stop calling representatives in advance of scheduling hearings. Each office will have a designated email address where representatives will send information on their availability, likely around 90 days in advance. For example, the Rochester OHO is requesting availability for February through April 2019. Hearings will be scheduled based on this availability. Representatives will be responsible for sending updates on their availability as it changes. Any personally identifying information (PII), including Social Security numbers or claimant names, should not be sent to these email addresses. SSA is using CPMS and other software to avoid double booking. It hopes to eventually have a centralized scheduling unit for the area. But it remains unclear how or if this centralized scheduling will include hearings at the National Hearing Centers (NHCs). SSA is also trying to reach the point where it will provide 120 days’ notice for hearings.
ALJ Morgan also announced the Voluntary Standby pilot program, beginning in the Jersey City and Bronx OHOs. This pilot will apply only to claimants with appointed representatives. Representatives will receive notices in all pending cases in the Jersey City and Bronx OHOs with opportunity to opt into the pilot. Pro se claimants will not receive notices about the pilot program. Representatives who opt in will then be put on “standby,” and can be called if a hearing slot opens up. It could be very last minute, with just a few days’ notice. Representatives, however, will still be obligated to comply with the 5 day evidence rule in these cases. A representative can decline the timeslot offered, but if a representative declines three timeslots, the case will be returned to regular queue. Cases will remain at the same hearing office, and will not be transferred to NHCs because of opting in to pilot.
Judge Morgan and his assistant, Jaimie Hanlon, answered questions from advocates and indicated a willingness to address other issues. For example, in Buffalo, they suggested advocates contact them with examples of some of the various interpretations ALJs in the region have for the “5 day Rule,” including counting the five days from the date the evidence was exhibited by the OHO instead of the date of submission.
Thanks to Mika Aoyama of NYLAG and Jenna Karr and Keana Williams of the Empire Justice Center for sharing their insights from these meetings.