Background

This transmittal amends chapter I-2-7 of the Hearings, Appeals and Litigation Law (HALLEX) manual to clarify when proffer and a supplemental hearing are required based on posthearing evidence.

Explanation of Content and Changes

Chapter I-2-7 is amended as follows:

I-2-7-1 – We added subsection A titled “Definition of Proffer” to better explain that proffering evidence is distinct from offering the opportunity for a supplemental hearing on certain posthearing evidence. We added subsection B titled “When Proffer Is Required” to clarify that an administrative law judge (ALJ) must proffer any additional evidence that the claimant or appointed representative, if any, has not seen and that the ALJ proposes to admit into the record. We also explained when proffer is not required, incorporating information previously in HALLEX I-2-7-1. We added subsection C titled “When Offering a Supplemental Hearing With Proffered Evidence Is Required,” and clarified when an ALJ is required to offer the opportunity for a supplemental hearing based on proffered posthearing evidence.

I-2-7-15 – We changed the title of the section to “Waiver of the Right to Examine Posthearing Evidence and Opportunity for a Supplemental Hearing” for consistency with terminology used in other HALLEX sections. We made minor editorial changes to clarify that an ALJ will usually offer a supplemental hearing when proffering posthearing evidence, but is not always required to do so. We also clarified that an ALJ will proffer evidence despite a waiver of the right to examine posthearing evidence if there is reason to question whether the claimant knowingly submitted the waiver.

I-2-7-30 – We added a helpful reference for HALLEX instructions on proffering prehearing evidence. We made minor editorial changes in subsection A to clarify that an ALJ will usually offer a supplemental hearing when proffering posthearing evidence, but is not always required to do so. Consistent with current practices, in subsection B, we added updated instructions to clarify that while hearing office staff will always send an appointed representative a copy of the proffer letter, staff will only send a copy of the evidence with the letter if the appointed representative does not have online access to the claim(s) file (or the claim(s) file is paper). In subsection C, we clarified that if a claimant requests a supplemental hearing when the opportunity was appropriately not offered, the ALJ has discretion in determining whether to grant the request.

I-2-7-35 – We added a NOTE to clarify that hearing office staff must not exhibit posthearing evidence that is submitted after the ALJ has issued a decision. Rather, hearing office staff will associate the information with the claim(s) file when possible or forward it to the appropriate component.

I-2-7-93 – We made minor editorial changes to indicate optional language when the claimant is not offered the opportunity for a supplemental hearing.

Date: April 1, 2016