Two proposed changes to 16 VAC 5-80-20, in this regulatory action, are of potential concern.

First, one proposed change, at subsection (B), makes split or in-person hearings available only at the VEC’s discretion, versus a historical right to in-person participation for the requesting party.  This change is suboptimal, as in-person hearings are often better, e.g. for parties who present better in person, for cases involving a lot of documents (where it may be helpful to sit at the same table as the AE, so as to follow along during the marking of exhibits and during any reference to documents during testimony), for people who have unreliable phone access, for claimants with certain disabilities or needing translation, etc.  In short, narrowing the accessibility of in-person hearings may implicate equity considerations, at least in some situations.  If this proposed change is maintained, it would be helpful to indicate (in the revised regulatory language) 1) that notices to the parties will indicate the possibility of in-person hearings, including following a request for same, and 2) that in-person hearings will be liberally granted particularly when a requesting party cites a basis (for an in-person hearing) rooted in equity or access considerations, either in making the request, or (if no such basis is cited in making the request), in reply to a First Level Appeals representative then inquiring (as a matter of required process, under the terms of revised regulatory language) as to the reason for the request for an in-person hearing.     

Second, another proposed change, at (I)(i), says that a reopening request may get a hearing.  This likely will put a greater onus on a party seeking reopening to be clearer in writing on a reopening request, if that will become the determining factor as to whether a hearing on reopening then occurs.  (If this understanding of the proposed change is correct, this change could implicate equity considerations based, e.g., on literacy [parties who have difficulty in writing], language access, etc.)  It is also not immediately clear how this change (that a reopening request "may" get a hearing) reconciles with the unchanged language in the same section that says that a reopening request can be granted “after the hearing.”  Presumably the VEC will grant hearings if there may be a cognizable basis for reopening.  That said, as currently worded, a clear and persuasive case for reopening in writing, that does not get a hearing for whatever reason, seemingly per se cannot result in reopening under the revised language of 5-80-20(I)(i).  This cannot be right.  Any proposed change to this section both should resolve equity/access concerns and also resolve the relationship between a hearing only potentially being granted ("may") and the unchanged language suggesting that a reopening can be granted [only] “after the hearing.”

Thank you for considering these comments in revising and finalizing any changes to this regulation.