(1) Proposed changes to 16 VAC 5-80-10(B) retain the possibility of a telephonic fact-finding interview with a claims deputy, but eliminate the requirement that notice of the telephonic fact-finding interview be mailed at least five days in advance.  This requirement should be restored, and improved to require that notice of the telephonic fact-finding interview be mailed at least 14 days in advance. 

Increasingly, however, claims deputies use written fact-finding statement forms (which typically are mailed to the parties for them to fill out) to resolve eligibility and qualification disputes, rather than conducting telephonic fact-finding interviews.  Due to the current slowness of the mail, frequently these fact-finding statements arrive only a few days before their return is due, and occasionally arrive after their return is due.  This is hugely problematic.  Eliminating the requirement that the VEC mail at least five days in advance will only make this problem worse.  Instead, at least fourteen days’ advance mailing – and, better, 30 days’ advance mailing – should be required.

(2) Proposed changes to 16 VAC 5-80-20(B) eliminate the requirement that an in-person First Level Appeals hearing be set for the regional adjudication center most convenient for the party appearing in person, and replaces it with language providing that the hearing be set for a location administratively convenient for the VEC.  The VEC’s ability to make proper, accurate, and complete findings of fact and conclusions of law is significantly lower during a telephone conference call (where, e.g., the parties cannot be observed, and there may be greater challenges with confronting witnesses with documents in the record) than during an in-person hearing.  Moreover, this effectively reduces access for parties who wish to appear in person – with disproportionate effects on underserved Virginians who may not be able to participate successfully (or as successfully) via phone.  At a minimum, in addition to in-person hearings at VEC-designated locations, the VEC also should adopt what other administrative agencies – such as the Social Security Administration, Virginia Housing, and the Department of Social Services - have done to facilitate better decision-making, by offering hearings by Zoom or Microsoft Teams.  However, the VEC should make in-person hearings available at locations across the state.

(3) Proposed 16 VAC 5-80-20(B) retains the requirement that a notice of a First Level Appeals hearing be mailed to the parties at least ten days in advance of the hearing.  As noted above, due to the current slowness of the mail, frequently these hearing notices arrive only a few days before the hearing, and occasionally arrive after the hearing.   For that reason, at least fourteen days’ advance mailing – and, better, 30 days’ advance mailing – should be required.

(4) Proposed 16 VAC 5-80-30(B)(3) retains the current requirement that Second Level Appeals be conducted in-person at the administrative office for the agency’s Administrative Law Division.  The proposed regulation also allows oral argument by telephone conference call at the VEC’s discretion. 

This should be changed, such that the parties are given a choice between appearing in-person or by telephone, as with First Level Appeals hearings.