Setting the Manner for the Appearance of Parties and Witnesses at a Hearing

CourtSocial Security Administration
Citation84 FR 69298
Record Number2019-27172
SectionRules and Regulations
Published date18 December 2019
Federal Register, Volume 84 Issue 243 (Wednesday, December 18, 2019)
[Federal Register Volume 84, Number 243 (Wednesday, December 18, 2019)]
                [Rules and Regulations]
                [Pages 69298-69308]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2019-27172]
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                SOCIAL SECURITY ADMINISTRATION
                20 CFR Parts 404 and 416
                [Docket No. SSA-2017-0015]
                RIN 0960-AI09
                Setting the Manner for the Appearance of Parties and Witnesses at
                a Hearing
                AGENCY: Social Security Administration.
                ACTION: Final rule.
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                SUMMARY: We are publishing a final rule we proposed in November 2018
                regarding setting the time, place, and manner of appearance for
                hearings at the administrative law judge (ALJ) level of our
                administrative review process, with modifications. Our final rule
                states that we (the agency) will determine how parties and witnesses
                will appear at a hearing before an ALJ, and that we will set the time
                and place for the hearing accordingly. We will schedule the parties to
                a hearing to appear by video teleconference (VTC), in person, or, in
                limited circumstances, by telephone. Under this final rule, we will
                decide how parties and witnesses will appear at a hearing based on
                several factors, but the parties to a hearing will continue to have the
                ability to opt out of appearing by VTC at the ALJ hearings level.
                Finally, we are revising our rule to state that, at the ALJ hearing
                level, if we need to send an amended notice of hearing, or if we need
                to schedule a supplemental hearing, we will send the amended notice or
                notice of supplemental hearing at least 20 days
                [[Page 69299]]
                before the date of the hearing. The date of hearing indicated in the
                amended notice or notice of supplemental hearing will be at least 75
                days from the date we first sent the claimant a notice of hearing,
                unless the claimant has waived his or her right to advance notice.
                DATES: This rule is effective January 17, 2020.
                FOR FURTHER INFORMATION CONTACT: Susan Swansiger, Office of Hearings
                Operations, Social Security Administration, 5107 Leesburg Pike, Falls
                Church, VA 22041, (703) 605-8500. For information on eligibility or
                filing for benefits, call our national toll-free number, 1-800-772-1213
                or TTY 1-800-325-0778, or visit our internet site, Social Security
                Online, at http://www.socialsecurity.gov.
                SUPPLEMENTARY INFORMATION:
                Background
                 To provide better customer service and most efficiently manage our
                workloads, while maintaining accuracy and fundamental fairness in our
                hearing process, we seek to maximize the case processing efficiencies
                and flexibility allowed by all appropriate manners of appearance at
                hearings. Available manners of appearance for hearings include in
                person, by VTC, and in limited circumstances, by telephone. In support
                of these goals, our Office of the Inspector General and the
                Administrative Conference of the United States (ACUS) have repeatedly
                recommended that we increase use of VTC technology to conduct
                administrative hearings. As well, the Social Security Advisory Board
                (SSAB) has commented that the use of VTC ``obviously meets the
                requirements of due process and it is in widespread use in other types
                of adjudications.'' \1\
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                 \1\ SSAB, Improving the Social Security Administration's Hearing
                Process, at 21 (Sep. 2006), available at: http://www.ssab.gov/Portals/0/OUR_WORK/REPORTS/HearingProcess_2006.pdf.
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                 To achieve the increased efficiency and reduced processing delays
                of hearings referenced by ACUS and the SSAB, we published a notice of
                proposed rulemaking (NPRM) in the Federal Register on November 15,
                2018.\2\ In the NPRM, we proposed clarifications and revisions to our
                rule for setting the manner of appearance for parties and witnesses at
                a hearing. To the extent that we already discussed at length the
                reasons for and details of the proposed changes, we will not repeat
                that information here.
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                 \2\ 83 FR 57368, available at https://www.federalregister.gov/documents/2018/11/15/2018-24711/setting-the-manner-for-the-appearance-of-parties-and-witnesses-at-a-hearing.
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                 The changes that we proposed and are now adopting will provide us
                with the flexibility we need to address service challenges by allowing
                us to balance our hearing workloads in a way that we expect will reduce
                overall wait and processing times across the country, and the
                processing time disparities among offices. However, in response to the
                overwhelming preference expressed by public commenters in response to
                the NPRM, we are retaining the existing option for a party to a hearing
                to opt out of appearing by VTC at the ALJ hearing level. If the AC
                exercises removal authority for a case, it will continue to follow all
                the rules that apply to the ALJ level of adjudication.\3\
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                 \3\ 20 CFR 404.956, 416.1456.
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                 Besides the changes we proposed for setting the time, place, and
                manner of appearance for hearings, we also proposed one clarification
                to our rule regarding the notice of hearing at the ALJ hearing level.
                Under our current rule, we send a notice of hearing at least 75 days
                prior to the date of the scheduled hearing to all parties and their
                representative, if any.\4\ In addition to the time and place of a
                hearing, the notice has other information, including the issues to be
                decided, the right to representation, how to request a change in the
                time of the hearing, and how appearances will be made. We proposed to
                clarify that when we send an amended notice of hearing or notice of
                supplemental hearing, we would send the amended notice or notice of
                supplemental hearing at least 20 days prior to the hearing. If we need
                to change the date of a hearing, the date we choose will always be at
                least 75 days from the date we first sent the claimant a notice of
                hearing, unless the claimant has waived his or her right to advance
                notice.
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                 \4\ 20 CFR 404.938(a), 416.1438(a).
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                 Finally, we also proposed in the NPRM to make changes to our rule
                about scheduling hearings before disability hearing officers (DHO) in
                Sec. Sec. 404.914 and 416.1414. Our proposed changes to those sections
                generally tracked our proposed changes to the regulations that regard
                scheduling hearings before ALJs, including our proposal to not allow a
                party to a hearing to opt out of appearing by VTC. We are not pursuing
                changes to Sec. Sec. 404.914 and 416.1414 at this time.
                 We made changes from the proposed rule in the final rule.
                 We removed the proposed revisions to Sec. Sec. 404.914
                and 416.1414.
                 We changed ``them'' to ``witnesses'' for clarity in final
                Sec. Sec. 404.936(c)(4) and 416.1436(c)(4).
                 We retained existing Sec. Sec. 404.936(d) and
                416.1436(d), which allow a party to a hearing before an ALJ to object
                to appearing by VTC, and we moved and re-ordered the proposed text from
                the NPRM paragraphs (d) and (e) to (e) and (f) respectively.
                 We added ``or notice of supplemental hearing'' to the
                paragraph heading in final Sec. Sec. 404.938(d) and 416.1438(d) to
                ensure readers understand the breadth of the paragraphs.
                 In response to the NPRM, we received and posted 244 public comments
                that addressed issues within the scope of our proposed rule, and we
                received one comment that we did not post because an individual made it
                in his or her official capacity as a Social Security Administration
                (SSA) employee. Below we respond to the significant concerns that
                public commenters raised that are within the scope of the final rule.
                Public Comments and Discussion
                Authorizing the Agency To Set the Time, Place, and Manner of Appearance
                for Hearings
                 Comment: Some commenters opposed our proposal to allow the agency,
                rather than an ALJ, to set the time, place, and manner of appearance
                for the hearing. They maintained that our proposed changes are
                inconsistent with longstanding rule providing that ALJs set the time,
                place, and manner of appearance at hearings, and that ALJs should
                continue to do so as a fundamental function of their authority.
                 Response: Because the agency, rather than any individual
                adjudicator, is responsible for managing our nationwide hearing
                process, we are best placed to appropriately balance the overriding
                concerns that have animated our hearing process since it began in 1940:
                Our hearing process provides due process for each claimant and works
                efficiently and uniformly across the country.\5\ We intend to balance
                concerns about due process, efficiency, and uniformity under this final
                rule and implement a standard, uniform scheduling process nationwide,
                while keeping maximum flexibility. By managing the process of
                scheduling hearings, maximizing our ability to transfer workloads, and
                exercising flexibility to determine the manner of appearance, we intend
                to promote a more timely hearing process that
                [[Page 69300]]
                provides greater consistency between the length of time a claimant
                requests a hearing and the date a hearing can be held. We expect that
                shifting the administrative task of scheduling hearings from individual
                ALJs to the agency will allow us to increase the overall efficiency of
                our hearing process and provide more consistent service to the public.
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                 \5\ See, e.g., Barnhart v. Thomas, 540 U.S. 20, 28-29 (2003);
                Richardson v. Perales, 402 U.S. 389, 399 (1971).
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                 Further, allowing the agency to set the claimant's manner of
                appearance is an administrative, logistical function that does not
                affect an ALJ's qualified decisional independence or significantly
                alter the functioning of our hearing process. Under this final rule,
                our current policy of generally assigning cases to ALJs on a rotational
                basis with the earliest hearing requests receiving priority will remain
                the same. We will also continue to make scheduling decisions in
                conjunction and consultation with our ALJs. Our ALJs will continue to
                provide their availability for hearings, decide necessary participants
                to the hearing, and evaluate the sufficiency of a record in determining
                when a hearing should be held. As part of this evaluation, the ALJ will
                have the opportunity to raise any factors in a particular case that
                would assist us in choosing the most appropriate time, place, and
                manner of appearance for the parties and witnesses.
                 Comment: Some commenters expressed concern that the rule does not
                define any standards to determine whether a VTC hearing is less
                efficient than conducting a hearing in-person, nor does the rule
                include any standards for determining if there is good reason to
                conduct a hearing by VTC or in person.
                 Response: When we consider whether it would be less efficient to
                schedule a party to appear by VTC, we will consider the overall
                efficiency of our hearing process. As we explained above and in our
                NPRM, we expect the final rule to help us reduce imbalances in the wait
                time among hearing offices by making it easier for us to shift cases
                from overburdened hearing offices to hearing offices with fewer
                requests for hearing pending per ALJ. Leveraging VTC technology to
                better balance our workloads is key to addressing our oldest pending
                cases, and it also allows us to act quickly when service needs arise
                from unanticipated emergencies, e.g., by transferring cases to a
                hearing office not in close geographical proximity to the claimant. All
                of these efficiencies will promote our ultimate goal of decreasing the
                total number of cases pending at the hearing level, and giving each
                claimant a more timely hearing and hearing decision.
                 Moreover, due to advances in video technology and our investments
                in VTC technology, our adjudicators are able to hear, see, and interact
                with the parties to a hearing as effectively through VTC as they would
                during an in-person appearance. Accordingly, we do not believe there
                are categorical circumstances that will always provide a good reason to
                schedule an individual to appear by VTC or in person. The overall
                efficiency of the hearing process and the need to provide fair, timely
                hearings to each claimant will continue to guide our decisions on how
                we schedule the manner of appearance under the final rule.
                Not Allowing the Parties to a Hearing To Opt Out of or Object To
                Appearing by VTC
                 Comment: Multiple commenters stated that claimants should continue
                to have the option to opt out of or object to appearing by VTC in favor
                of appearing in person. Some commenters noted that when we revised our
                rule related to VTC hearings in the past, we specifically declined to
                require claimants to appear by VTC. The commenters maintained that our
                current policy works well and should not be changed.
                 Response: We acknowledge the commenters' near-universal preference
                for our current policy, which allows a party to a hearing before an ALJ
                to opt out of appearing by VTC. In response to this expressed
                preference, in the final rule we retained the regulatory provision
                allowing a party to a hearing before an ALJ to opt out of appearing by
                VTC, as it currently appears in Sec. Sec. 404.936(d) and 416.1436(d).
                The AC will continue to follow all the rules that apply to ALJs when
                they remove a case.\6\ However, we maintain our position, which we
                stated in the NPRM, that an individual's decision to decline appearing
                by VTC can adversely affect the efficiency of our hearing process, and
                may result in a longer wait time for the individual's in-person
                hearing.
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                 \6\ 20 CFR 404.956, 416.1456.
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                 While we are retaining the opt out provision, we note that VTC
                technology is expected to help us reduce imbalances in the wait time
                among hearing offices. As well, the use of VTC technology allows us to
                shift cases in which the claimant did not object to appearing by VTC
                from overburdened hearing offices to hearing offices with fewer
                requests for hearing pending per ALJ. We anticipate that the effect of
                these process improvements will be to improve the balance across the
                country and decrease the total number of cases pending at the ALJ
                hearing level, thereby providing claimants with more timely hearing
                decisions and benefit payments to individuals whom we find entitled to
                disability benefits.
                 Comment: A commenter also expressed that we should retain the
                ability to opt out of appearing by VTC based on the commenter's
                assertion that not all individuals with disabilities have access, nor
                can they arrange access, to the internet to appear by VTC.
                 Response: As previously mentioned, under this final rule, a party
                to a hearing before an ALJ will still have an opportunity to opt out of
                appearing by VTC. Nevertheless, we note that this comment appears to
                reflect a misunderstanding of our intent and how we conduct VTC
                hearings. We conduct VTC hearings in our facilities or at those
                representative's offices that are suitably equipped. We do not require
                any individual to have internet access at their home when we conduct a
                VTC hearing.
                Section 504 of the Rehabilitation Act of 1973
                 Comment: Many commenters said that our proposed rule would violate
                section 504 of the Rehabilitation Act of 1973 (section 504).\7\ These
                comments primarily regarded our proposal to remove the option for
                parties to opt out of or object to appearing at a hearing by VTC.
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                 \7\ 29 U.S.C. 794, Public Law 93-112, title V, Sec. 504, Sept.
                26, 1973, 87 Stat. 394.
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                 Response: As noted above, we are not proceeding with our proposal
                to remove the option for parties to opt out of or object to appearing
                at a hearing by VTC. Moreover, we have pre-existing procedures for
                handling section 504 accommodation requests that we will continue to
                follow after the effective date of this final rule.
                Evaluating Subjective Complaints and Activities of Daily Living When
                the Parties to a Hearing Appear by VTC
                 Comment: Some commenters alleged that there are substantive
                differences between VTC hearings and in-person hearings when the
                adjudicator has to make findings about the intensity, persistence, and
                limiting effects of the individual's symptoms. The commenters opined
                that when an individual appears by VTC, the adjudicator may not be able
                to evaluate the intensity, persistence, and limiting effects of his or
                her symptoms in a policy compliant manner. Other commenters also
                asserted that only an
                [[Page 69301]]
                in-person appearance can adequately convey some aspects of a claimant's
                presence, such as odor. These commenters noted that grooming and
                hygiene are among the activities of daily living that an adjudicator
                considers when deciding some claims such that a claimant may reasonably
                prefer to appear in person to permit the adjudicator to smell him or
                her. Several commenters also expressed concerns about technological
                issues and variability in the quality of VTC hearings.
                 Response: We are committed to ensuring all hearings are conducted
                in a consistent and fair manner using modern technology, and because of
                the efforts we have made to ensure this happens, we disagree that an
                appearance by VTC may adversely affect the adjudicator's ability to
                evaluate the intensity, persistence, and limiting effects of an
                individual's symptoms. Due to advances in video technology and our
                investment in VTC technology, our adjudicators are able to hear, see,
                and interact with the parties to a hearing as effectively through VTC
                as they would during an in-person appearance. Our video network
                infrastructure allows us to conduct daily business in a reliable and
                stable manner, including holding over 1.7 million video hearings since
                we began conducting video hearings \8\ and opened five National Hearing
                Centers that exclusively use video technology in their business
                process. Moreover, as we explained in the NPRM, over the past three
                years we have refreshed all VTC equipment and infrastructure, resulting
                in better technological quality and experience for users. All SSA-owned
                video units on our network use the Real Presence Group platform, which
                is designed for large enterprise-wide usage necessary for a national
                network of our size. Our video platform provides clear picture and
                audio for all participants. Desktop video units have been replaced with
                new larger Convene desktops with a 27-inch flat panel monitor and Eagle
                Eye camera, ideal for smaller spaces. Hearing rooms are also equipped
                with a 65-inch monitor and Eagle Eye camera. We will continue to
                refresh our video inventory to keep pace with new technology and
                industry standards, including consulting ACUS's recommendations. Our
                ALJs and staff are properly trained to operate the VTC equipment and to
                alert management of any technical issues, which can be dealt with on a
                case-by-case basis by support personnel.
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                 \8\ See the Supporting Document ``Number of administrative law
                judge hearings held by video teleconferencing since 2005,'' under
                Docket No. SSA-2017-0015 at: www.regulations.gov.
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                 The high quality of our VTC hearings, and the essential parity in
                quality between VTC and in-person hearings, is further evidenced by a
                study conducted by our Office of Quality Review (OQR) in 2017 (which we
                included in the rulemaking docket when we published the NPRM). This
                study found that there was no statistically significant difference in
                the quality rates of fully favorable or unfavorable decisions,
                regardless of whether the hearings were conducted in person or by VTC.
                 We also disagree with the comments that claimants must be in the
                same room as adjudicators to detect aspects of the claimant's presence
                that can only be discerned in person, such as odor. We note that when
                an adjudicator evaluates an individual's symptoms, he or she is
                required to limit the evaluation to the individual's statements about
                symptoms and the evidence in the record that is relevant to the
                individual's impairments and activities of daily living.\9\ An
                adjudicator does not assess the individual's overall character or
                truthfulness in the manner typically used during an adversarial
                proceeding.\10\ Instead, when relevant, the adjudicator receives
                testimony from the claimant about his or her activities of daily
                living, and evaluates whether the claimant's statements are consistent
                with the objective and other evidence of record. Moreover, although an
                adjudicator cannot make firsthand observations about an individual's
                body odor when the individual appears by VTC, the distance between the
                adjudicator and the individual during an in-person appearance may
                similarly render the adjudicator unable to make firsthand observations
                about body odor.
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                 \9\ Social Security Ruling 16-3p.
                 \10\ Id.
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                 Objection To Scheduling Expert Witnesses To Appear by Telephone
                 Comment: Some commenters also objected to our proposal to schedule
                expert witnesses to appear by telephone, stating that we should remove
                this option (which already exists). These commenters cited concerns
                regarding assumed technical difficulties with telephone connections,
                concerns that expert witnesses appearing via telephone would not
                adequately pay attention to the hearing proceedings, and concerns about
                the security of personally identifiable information (PII) if the expert
                witness is not in a private location. Commenters also stated that
                experts appearing via telephone may not be able to view the electronic
                file during the hearing to review evidence submitted at or shortly
                after the hearing.
                 Response: We disagree with these comments, and note that under our
                existing procedures, we already use telephone hearings for expert
                witnesses without experiencing the projected technical difficulties
                cited by the commenters. Under our current rule, expert witnesses
                frequently appear at hearings by telephone. Experts conducted 21
                percent of hearing testimony via telephone in FY 2018 and 37 percent
                thus far in 2019.\11\
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                 \11\ See the Supporting Document ``Telephone Appearances by
                Vocational Expert (VE) Witnesses and Medical Expert (ME)
                Witnesses,'' under Docket No. SSA-2017-0015 at: www.regulations.gov.
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                 In the past, we have encountered some complications when a hearing
                office did not place calls to expert witnesses through the video units,
                but instead used desk phones or teleconference lines. In such
                situations, the participants at the other video site may have had
                difficulty hearing the expert witness. To avoid this problem, we issued
                reminder instructions to all hearing office managers to place calls to
                experts using the video equipment. Additionally, we require expert
                witnesses to have a landline telephone connection, which should
                minimize any connection issues that may be associated with wireless
                calls. If an expert witness did not comply with our expectations and
                requirements for hearings testimony, we would address those compliance
                issues as we do now, in a manner separate and apart from this final
                rule. Similarly, we already require expert witnesses to properly
                protect PII,\12\ and any issues related to this concern would not be
                affected by this final rule.
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                 \12\ https://www.ssa.gov/appeals/public_experts/Medical_Experts_(ME)_Handbook-508.pdf; https://www.ssa.gov/appeals/public_experts/Vocational_Experts_(VE)_Handbook-508.pdf; https://www.fedconnect.net/FedConnect/PublicPages/PublicSearch/Public_Opportunities.aspx (Reference number SSA-RFQ-15-0214); and
                https://www.fedconnect.net/FedConnect/PublicPages/PublicSearch/Public_Opportunities.aspx (Reference number SSA-RFQ-15-0182).
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                 Moreover, our subregulatory guidance provides procedures for ALJs
                to follow to ensure all participants are able to hear the ALJ and other
                participants, if multiple participants appear by different means.\13\
                Our subregulatory guidance also provides procedures for ALJs to ensure
                that expert witnesses review any additional evidence received between
                the time the expert reviewed the file and the time of the hearing and
                to summarize on the record any pertinent testimony for expert witnesses
                [[Page 69302]]
                who do not attend the entire hearing.\14\ We do not plan to modify
                those existing procedures under the final rule.
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                 \13\ Hearings, Appeals, and Litigation Law (HALLEX) Manual I-2-
                6-15.
                 \14\ HALLEX I-2-6-70 and I-2-6-74.
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                 Sending an Amended Notice of Hearing or Notice of Supplemental
                Hearing 20 days Before the Date of the Hearing
                 Comment: A number of commenters opposed our proposal to clarify
                that when we need to update the information in a notice of hearing at
                the ALJ hearing level, we will send an amended notice of hearing or
                notice of supplemental hearing at least 20 days, rather than 75 days,
                in advance of the date of the scheduled hearing. Noting that we
                generally allow 5 days mailing time for notices to arrive, these
                commenters stated that claimants and appointed representatives may
                receive the amended notice fewer than 20 days, and possibly only 15
                days, before the hearing. Observing that claimants often need to
                arrange transportation (e.g., paratransit, a ride from a friend or
                relative, etc.), arrange childcare, reschedule medical appointments, or
                meet other needs, these commenters further stated that it would be
                inappropriate and insufficient for us to provide only 20 or fewer days'
                notice about a change to the date or time of a hearing. The commenters
                additionally stated that if claimants receive an amended notice only 15
                calendar days before the scheduled hearing, these claimants may be
                unable to meet other requirements that apply at the ALJ hearing level,
                such as: (1) Requesting a subpoena at least 10 business days in advance
                of a scheduled hearing, or (2) informing the ALJ about or submitting
                written evidence at least 5 business days before the date of the
                scheduled hearing.
                 Another commenter stated that our proposal to reduce the amount of
                advance notice that we must provide when updating ``critical facts''
                about a scheduled hearing is problematic. This commenter stated that
                our current practice, which allows a party to a hearing to waive the
                right to advance notice of the hearing, is sufficient, and that the
                proposed changes will lead to inefficiencies and fewer policy-compliant
                decisions.
                 Response: We disagree with the commenters. As we explained in our
                NPRM, if we need to change the date of a scheduled hearing, the new
                date will always be at least 75 days from the date we first sent the
                claimant a notice of hearing, unless the claimant has waived the right
                to advance notice. With this safeguard in place, we expect that the
                vast majority of claimants will be able to meet other requirements that
                apply at the ALJ hearing level.\15\ However, if a claimant is unable to
                comply with relevant timeframes based on his or her receipt of an
                amended notice of hearing, the claimant can inform us of that
                difficulty and request an exception based on an unusual, unexpected, or
                unavoidable circumstance beyond the claimant's control that prevented
                him or her from complying with the applicable timeframe.\16\
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                 \15\ See, e.g., 20 CFR 404.935(a), 404.939, 404.949,
                404.950(d)(2), 416.1435(a), 416.1439, 416.1449, 416.1450(d)(2).
                 \16\ See 20 CFR 404.935(b)(3), 404.939, 404.949, 404.950(d)(2),
                416.1435(b)(3), 416.1439, 146.1449, 416.1450(d)(2).
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                 Further, we frequently send amended hearing notices to update
                information other than the time or date of the hearing. For example, we
                send an amended notice of hearing when we change the name of the
                medical or vocational expert who will testify, add a new witness,
                change the manner of appearance, or change the ALJ assigned to the
                case. As explained in the NPRM, under our current rule, these changes
                required us to send a notice 75 days in advance, resulting in
                rescheduled hearings and unnecessary delays in many cases. By changing
                the timeframe to 20 days, we are able to make these types of changes
                with less impact to our hearings workload and without unnecessarily
                delaying the hearing.
                 If we need to change the time or date of a scheduled hearing, we
                will continue to work with both claimants and representatives to
                accommodate schedules, including following our standard business
                process of requesting potential dates and times that the representative
                will be available for hearing.\17\ In this regard, we understand that a
                representative's schedule of availability, once provided to a hearing
                office, may change. We remain committed to working with both claimants
                and representatives when we need to reschedule a hearing and will make
                every effort to provide adequate advance notice that will not impede
                the claimant's ability to comply with deadlines like the 10-day
                deadline for submitting subpoena requests and the 5-day deadline for
                submitting or informing us of written evidence. Additionally, we will
                continue to consider good cause for changing the time of the hearing
                due to issues including, but not limited to, the availability of
                transportation.
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                 \17\ See 20 CFR 404.1740(b)(3)(iii) and 416.1540(b)(3)(iii).
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                VTC as a Tool To Improve Efficiency
                 Comment: Some commenters expressed that we failed to demonstrate
                VTC hearings are more efficient than in-person hearings, or that they
                reduce processing times. These commenters further stated that we did
                not provide adequate data to justify the proposed changes, and that we
                relied on outdated data to support our rationale that more VTC
                appearances will result in more timely hearings. Some commenters
                criticized the quality of the data we relied on, and provided studies
                they asserted refute our conclusions.
                 Response: We disagree with these commenters. In the preamble to our
                NPRM, we provided an extensive discussion about our historical and
                ongoing experience using VTC technology and the flexibility it provides
                to manage our hearing workloads. We also explained that the number of
                ALJs available to conduct in-person hearings is generally limited to
                those ALJs stationed at, or geographically close to, the assigned
                hearing office or within travel distance to one of our permanent remote
                sites. As we explained, requiring an ALJ to travel to a remote hearing
                site for an in-person hearing reduces the amount of time the ALJ can
                devote to holding other hearings and issuing decisions from his or her
                assigned hearing office.
                 We further explained that prior studies, both internal and
                external, have found that utilizing VTC technology to conduct
                administrative hearings provides multiple benefits, including improved
                processing times and additional flexibility with respect to aged and
                backlogged hearing requests.
                 We stand by the quality of the data we relied on in the 2017 study
                by our OQR, which found there was no statistically significant
                difference in the quality rates of fully favorable or unfavorable
                decisions, regardless of whether the hearings were held in person or
                via VTC. The data used in the study represented a national random
                sample of recent cases. The data sample also fully accounts for
                improved technological changes that we implemented in the past three
                years.
                 Several commenters said that a 2018 Government Accountability
                Office (GAO) study refutes our findings, and supports the conclusion
                that individuals who had in-person hearings received favorable
                decisions at a higher rate than claimants who had VTC hearings.\18\
                However, unlike our studies, the GAO study was not designed to study
                the effects of VTC on allowance rates, and it did not account for all
                factors that
                [[Page 69303]]
                could affect this relationship. Further, GAO's study covered cases from
                2007 to 2015, the earlier of which did not benefit from technological
                enhancements that we fully accounted for in the more recent OQR study.
                GAO studied variances in allowance rates, but not the accuracy of the
                decisions. Notably, the GAO study found there was no meaningful
                difference in allowance rates between similar claims decided by
                adjudicators at our National Hearing Centers, which exclusively conduct
                VTC hearings, and traditional hearing offices.
                ---------------------------------------------------------------------------
                 \18\ GAO, Social Security Disability, Additional Measures and
                Evaluation Needed to Enhance Accuracy and Consistency of Hearings
                Decisions, GAO-18-37 (December 2017), available at: https://www.gao.gov/assets/690/688824.pdf.
                ---------------------------------------------------------------------------
                 Many of the studies and articles cited by commenters in support of
                their statements that VTC will impact the fairness of hearings do not
                account for technological enhancements that occurred after the
                respective studies were conducted, or the non-adversarial nature of our
                proceedings. For example, one commenter relied on a study from the
                1970s that found differences between video testimony and live
                testimony, particularly with regard to the perception of honesty.\19\
                However, that study does not reflect the significant technological
                advancements that have occurred since the 1970s; these advancements
                enable the fact finder to see, hear, and interact with individuals as
                easily by VTC as in person. A 2007 article, also cited by commenters,
                that examined eviction hearings held by VTC, and that analyzed the
                impact of the conclusions in the criminal proceedings, is also not
                directly relevant to our VTC hearings.\20\ SSA hearings are non-
                adversarial and have the benefit of technological enhancements over the
                past 12 years. Another commenter cited the Advisory Committee Notes to
                Rule 43 of the Federal Rules of Civil Procedure regarding testimony at
                trial, which is distinguishable because our hearings are not trials,
                and adjudicators are not bound by the procedures set forth in the
                Federal Rules of Evidence.
                ---------------------------------------------------------------------------
                 \19\ Gerald R. Williams, et al., Juror Perceptions of Trial
                Testimony as a Function of the Method of Presentation: A comparison
                of Live, Color Video, Black-and-White Video, Audio, and Transcript
                Presentations, 1975 BYU L. Rev. (1975).
                 \20\ Sossin, Lorne and Yetnikoff, Zimra, I Can See Clearly Now:
                Videoteleconference Hearings and the Legal Limit on How Tribunals
                Allocate Resources. Windsor Yearbook of Access to Justice, 2007
                (August 5, 2007), available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1205123.
                ---------------------------------------------------------------------------
                 As we previously explained, we expect that we will be able to
                better balance our workloads by increasing our use of VTC technology.
                Specifically, we expect that we will be able to decrease the total
                number of cases pending at the ALJ hearing level by shifting cases from
                overburdened hearing offices to hearing offices with fewer requests for
                hearing pending per ALJ. In addition, as we discussed earlier, we are
                retaining the existing option allowing a claimant to decline a video
                hearing, which already exists at the ALJ hearing level, and the AC will
                continue to apply ALJ hearing rules for cases they remove for a
                hearing.
                 Discussion of Our Use of the ACUS and SSAB Studies
                 Comment: Some commenters stated that we mischaracterized the
                findings of a study from ACUS to justify our proposed changes.
                Specifically, commenters stated that we implied that ACUS's report
                endorses mandatory appearances by VTC.
                 Response: We disagree that we mischaracterized ACUS's study, as
                evidenced by the fact that when ACUS submitted a comment on our
                proposed rule, ACUS merely stated that its views were already reflected
                in its reports and recommendations, and ACUS thanked us for considering
                its views and drawing upon its research studies. Moreover, in the NPRM,
                we explained that ACUS: Has identified a number of advantages to using
                VTC at administrative hearings; has noted that agencies with high
                volume caseloads are likely to receive the most benefit, cost savings,
                or both from using VTC; published a Handbook on Best Practices for
                Using Video Teleconferencing in Adjudicatory Hearings; \21\ documented
                that VTC has been widely accepted as an important tool that increases
                our ability to hold hearings and improve public service; and has
                repeatedly recommended that we increase our use of VTC hearings to
                achieve greater efficiency. Thus, we did not state or imply that ACUS
                supported our specific proposal to disallow the parties to a hearing to
                opt out of or object to appearing by VTC.
                ---------------------------------------------------------------------------
                 \21\ The ACUS Handbook is available at: https://www.acus.gov/report/handbook-best-practices-using-video-teleconferencing-adjudicatory-hearings.
                ---------------------------------------------------------------------------
                 We recognize that ACUS specifically recommended expansion of VTC on
                a voluntary basis, while allowing a party to have an in-person hearing
                or proceeding if he or she selected that option.\22\ However, as set
                forth in our NPRM, we based our proposed rule not solely on the ACUS
                study, but also on: Our own extensive experience with VTC hearings;
                multiple internal and external studies that have documented the
                benefits of VTC hearings; technological advances that enable an
                adjudicator to see, hear, and interact with individuals as easily by
                VTC as in person; our need to balance workloads and address service
                challenges while maintaining fairness and participant satisfaction; and
                SSAB's specific recommendation that we eliminate the ability to opt-out
                of VTC hearings. Regardless, we reiterate that we are retaining the
                existing option for a party to a hearing to opt out of appearing by VTC
                at the ALJ hearing level and AC hearing removal.
                ---------------------------------------------------------------------------
                 \22\ ACUS Recommendation 2011-4, Agency Use of Video Hearings:
                Best Practices and Possibilities for Expansion, 76 FR 48789, 48796
                (2011), available at: https://www.acus.gov/recommendation/agency-use-video-hearings-best-practices-and-possibilities-expansion.
                ---------------------------------------------------------------------------
                Objections to the Rule Based on the Regulatory Flexibility Act and
                Paperwork Reduction Act
                 Comment: One commenter objected to the NPRM based on the assertion
                that the NPRM, and thus this final rule, require a Regulatory
                Flexibility Act (RFA) analysis. The commenter made several claims to
                support this view, including, ``[s]ome claimants will withdraw hearing
                requests rather than go through with a VTC hearing'' which, the
                commenter contends, will affect experts and representatives. The
                commenter also contended ``[r]epresentatives with disabilities that
                require the reasonable modification of an in-person hearing will have
                to stop or curtail their work on Social Security cases if they can no
                longer choose to represent only claimants who have opted out of video
                hearings.'' Finally, the commenter stated, ``The proposed changes to
                notice rules may also require additional travel costs or hiring of
                supplemental staff for representatives if hearings are changed with
                only 20 days' notice.''
                 Response: We disagree with this commenter. In our NPRM, we
                explained that our proposed rule would not have a significant economic
                impact on a substantial number of small entities because they would
                affect individuals only. Accordingly, we certified that an analysis as
                provided in the RFA, as amended, was not required. We certify the same
                with respect to this final rule.
                 We note that the commenter's assertion that an RFA analysis is
                required is predicated, in part, on our proposal to disallow a party to
                a hearing to opt out of, or object to, appearing by VTC. As previously
                mentioned, in this final rule, we are retaining the existing option for
                a party to a hearing before an ALJ to object to appearing by VTC.
                Additionally, at this time, we are not pursuing changes to our rule
                about scheduling hearings before DHOs.
                 While the commenter also asserted that our proposal to send an
                amended notice of hearing or notice of supplemental hearing at least 20
                days before the date of the hearing would
                [[Page 69304]]
                require additional travel or supplemental staff costs, the commenter
                did not explain why. Furthermore, as explained above, if we need to
                change the date of a hearing, the date we choose will always will be at
                least 75 days from the date we first sent the claimant a notice of
                hearing, unless the claimant has waived his or her right to advance
                notice. Additionally, if we need to change the date or time of a
                hearing, or schedule a supplemental hearing, we will continue to work
                with claimants and representatives to accommodate schedules.
                 Comment: The same commenter stated our NPRM was invalid because we
                stated in the preamble that the proposed rule did not impose any new or
                significantly revise existing public reporting requirements under the
                Paperwork Reduction Act (PRA), and the commenter did not believe this
                to be correct.
                 Response: The rationale the commenter provided to support this
                assertion reflected a misunderstanding of the PRA. When we published
                the NPRM, our PRA characterization was accurate: We were not creating,
                nor were we revising, any public information collection tools. The
                public already uses existing form HA-55 (Objection to Appearing by
                Video Teleconferencing (OMB No. 0960-0671)) to request a change in
                time, place, or manner of hearing. We will not be substantively
                changing this form, particularly since we are retaining the opt-out
                provision. We will be adding very minor language changes in the
                supplemental explanation section of this form; this language will
                clarify that if one declines the VTC option, there is a chance a delay
                in hearing will result. This change is considered non-substantive under
                the PRA because it does not add or remove any questions, nor does it
                provide new information that is needed to complete the form.
                Accordingly, although we are submitting a non-substantive change
                request for this modification, we do not need to undergo full PRA
                approval, nor do we need to seek public comment on the change.
                 As well, we are making a minor change to form HA-510 (Waiver of
                Written Notice of Hearing (Form HA-510, OMB No. 0960-0671)) to reflect
                that we will now be providing a notice of amended or supplemental
                hearing 20, not 75 days, in advance of the hearing. Because we already
                solicited comment on this change through the proposed rule (i.e., the
                form language change is simply a reflection of the policy change), we
                do not need to seek additional comment under the PRA. We are thus
                clearing this change as well through the non-substantive change request
                process.
                Regulatory Procedures
                Executive Order 12866 as Supplemented by Executive Order 13563
                 We consulted with the Office of Management and Budget (OMB) and
                determined that this final rule did not meet the requirements for a
                significant regulatory action under Executive Order 12866 as
                supplemented by Executive Order 13563. Thus, OMB did not conduct formal
                review of this final rule.
                Executive Order 13771 and Cost Information
                 This rule is not subject to the requirements of Executive Order
                13771 because it is administrative in nature, and it will result in no
                more than de minimis, if any, costs in any one year after
                implementation.
                 At this time, the Office of the Chief Actuary estimates that this
                final rule will have a negligible effect on scheduled old-age,
                survivors, and disability insurance benefits and Federal Supplemental
                Security Income payments.
                 The Office of Budget, Finance, and Management estimates
                administrative savings of less than 15 work years and $2 million
                annually.
                Regulatory Flexibility Act
                 We certify that this final rule will not have a significant
                economic impact on a substantial number of small entities because it
                only affects individuals. Accordingly, a regulatory flexibility
                analysis as provided in the Regulatory Flexibility Act, as amended, is
                not required.
                Paperwork Reduction Act
                 SSA already has existing OMB PRA-approved information collection
                tools relating to this final rule: Objection to Appearing by Video
                Teleconferencing (Form HA-55, OMB No. 0960-0671), and Waiver of Written
                Notice of Hearing (Form HA-510, OMB No. 0960-0671). Because we are
                retaining the opt-out provision for video teleconference (VTC) in this
                final rule, we are only adding minor instructional changes to Form HA-
                55 to caution claimants that by opting out of appearing by VTC, they
                may experience a delay in being scheduled for a hearing. In addition,
                due to the change in timing for amended or continued hearing notices,
                we are also making a minor change to Form HA-510 to show the change in
                timing for requesting the waiver for those affected by this change.
                However, because these modifications are minor in nature, and either
                reflect existing policy (HA-55), or have already been presented for
                public comments through rulemaking (HA-510), we will obtain OMB
                approval for these changes through a non-substantive change request,
                which does not require public notice and comment under the PRA. Thus,
                this final rule does not create or significantly alter any existing
                information collections under the PRA.
                (Catalog of Federal Domestic Assistance Program Nos. 96.001, Social
                Security--Disability Insurance; 96.002, Social Security--Retirement
                Insurance; 96.004, Social Security--Survivors Insurance; and 96.006,
                Supplemental Security Income)
                List of Subjects
                20 CFR Part 404
                 Administrative practice and procedure, Blind, Disability benefits,
                Old-Age, Survivors, and Disability Insurance, Reporting and
                recordkeeping requirements, Social Security.
                20 CFR Part 416
                 Administrative practice and procedure, Aged, blind, disability
                benefits, Public assistance programs, Reporting and recordkeeping
                requirements, Supplemental Security Income (SSI).
                Andrew Saul,
                Commissioner of Social Security.
                 For the reasons set out in the preamble, we are amending 20 CFR
                chapter III, parts 404 and 416, as set forth below:
                PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
                (1950-)
                Subpart J--Determinations, Administrative Review Process, and
                Reopening of Determinations and Decisions
                0
                1. The authority citation for subpart J of part 404 continues to read
                as follows:
                 Authority: Secs. 201(j), 204(f), 205(a)-(b), (d)-(h), and (j),
                221, 223(i), 225, and 702(a)(5) of the Social Security Act (42
                U.S.C. 401(j), 404(f), 405(a)-(b), (d)-(h), and (j), 421, 423(i),
                425, and 902(a)(5)); sec. 5, Pub. L. 97-455, 96 Stat. 2500 (42
                U.S.C. 405 note); secs. 5, 6(c)-(e), and 15, Pub. L. 98-460, 98
                Stat. 1802 (42 U.S.C. 421 note); sec. 202, Pub. L. 108-203, 118
                Stat. 509 (42 U.S.C. 902 note).
                0
                2. Revise Sec. 404.929 to read as follows:
                Sec. 404.929 Hearing before an administrative law judge-general.
                 If you are dissatisfied with one of the determinations or decisions
                listed in Sec. 404.930, you may request a hearing. The Deputy
                Commissioner for Hearings
                [[Page 69305]]
                Operations, or his or her delegate, will appoint an administrative law
                judge to conduct the hearing. If circumstances warrant, the Deputy
                Commissioner for Hearings Operations, or his or her delegate, may
                assign your case to another administrative law judge. In general, we
                will schedule you to appear by video teleconferencing or in person.
                When we determine whether you will appear by video teleconferencing or
                in person, we consider the factors described in Sec. 404.936(c)(1)(i)
                through (iii), and in the limited circumstances described in Sec.
                404.936(c)(2), we will schedule you to appear by telephone. You may
                submit new evidence (subject to the provisions of Sec. 404.935),
                examine the evidence used in making the determination or decision under
                review, and present and question witnesses. The administrative law
                judge who conducts the hearing may ask you questions. He or she will
                issue a decision based on the preponderance of the evidence in the
                hearing record. If you waive your right to appear at the hearing, the
                administrative law judge will make a decision based on the
                preponderance of the evidence that is in the file and, subject to the
                provisions of Sec. 404.935, any new evidence that may have been
                submitted for consideration.
                0
                 3. Revise Sec. 404.936 to read as follows:
                Sec. 404.936 Time and place for a hearing before an administrative
                law judge.
                 (a) General. We set the time and place for any hearing. We may
                change the time and place, if it is necessary. After sending you
                reasonable notice of the proposed action, the administrative law judge
                may adjourn or postpone the hearing or reopen it to receive additional
                evidence any time before he or she notifies you of a hearing decision.
                 (b) Where we hold hearings. We hold hearings in the 50 States, the
                District of Columbia, American Samoa, Guam, the Northern Mariana
                Islands, the Commonwealth of Puerto Rico, and the United States Virgin
                Islands. The ``place'' of the hearing is the hearing office or other
                site(s) at which you and any other parties to the hearing are located
                when you make your appearance(s) before the administrative law judge by
                video teleconferencing, in person or, when the circumstances described
                in paragraph (c)(2) of this section exist, by telephone.
                 (c) Determining manner of hearing to schedule. We will generally
                schedule you or any other party to the hearing to appear either by
                video teleconferencing or in person.
                 (1) When we determine whether you will appear by video
                teleconferencing or in person, we consider the following factors:
                 (i) The availability of video teleconferencing equipment to conduct
                the appearance;
                 (ii) Whether use of video teleconferencing to conduct the
                appearance would be less efficient than conducting the appearance in
                person; and
                 (iii) Any facts in your particular case that provide a good reason
                to schedule your appearance by video teleconferencing or in person.
                 (2) Subject to paragraph (c)(3) of this section, we will schedule
                you or any other party to the hearing to appear by telephone when we
                find an appearance by video teleconferencing or in person is not
                possible or other extraordinary circumstances prevent you from
                appearing by video teleconferencing or in person.
                 (3) If you are incarcerated and video teleconferencing is not
                available, we will schedule your appearance by telephone, unless we
                find that there are facts in your particular case that provide a good
                reason to schedule your appearance in person, if allowed by the place
                of confinement, or by video teleconferencing or in person upon your
                release.
                 (4) We will generally direct any person we call as a witness, other
                than you or any other party to the hearing, including a medical expert
                or a vocational expert, to appear by telephone or by video
                teleconferencing. Witnesses you call will appear at the hearing
                pursuant to Sec. 404.950(e). If they are unable to appear with you in
                the same manner as you, we will generally direct them to appear by
                video teleconferencing or by telephone. We will consider directing
                witnesses to appear in person only when:
                 (i) Telephone or video teleconferencing equipment is not available
                to conduct the appearance;
                 (ii) We determine that use of telephone or video teleconferencing
                equipment would be less efficient than conducting the appearance in
                person; or
                 (iii) We find that there are facts in your particular case that
                provide a good reason to schedule this individual's appearance in
                person.
                 (d) Objecting to appearing by video teleconferencing. Prior to
                scheduling your hearing, we will notify you that we may schedule you to
                appear by video teleconferencing. If you object to appearing by video
                teleconferencing, you must notify us in writing within 30 days after
                the date you receive the notice. If you notify us within that time
                period and your residence does not change while your request for
                hearing is pending, we will set your hearing for a time and place at
                which you may make your appearance before the administrative law judge
                in person.
                 (1) Notwithstanding any objections you may have to appearing by
                video teleconferencing, if you change your residence while your request
                for hearing is pending, we may determine how you will appear, including
                by video teleconferencing, as provided in paragraph (c)(1) of this
                section. For us to consider your change of residence when we schedule
                your hearing, you must submit evidence verifying your new residence.
                 (2) If you notify us that you object to appearing by video
                teleconferencing more than 30 days after the date you receive our
                notice, we will extend the time period if you show you had good cause
                for missing the deadline. To determine whether good cause exists for
                extending the deadline, we use the standards explained in Sec.
                404.911.
                 (e) Objecting to the time or place of the hearing. (1) If you wish
                to object to the time or place of the hearing, you must:
                 (i) Notify us in writing at the earliest possible opportunity, but
                not later than 5 days before the date set for the hearing or 30 days
                after receiving notice of the hearing, whichever is earlier; and
                 (ii) State the reason(s) for your objection and state the time or
                place you want the hearing to be held. If the administrative law judge
                finds you have good cause, as determined under paragraph (e) of this
                section, we will change the time or place of the hearing.
                 (2) If you notify us that you object to the time or place of
                hearing less than 5 days before the date set for the hearing or, if
                earlier, more than 30 days after receiving notice of the hearing, we
                will consider this objection only if you show you had good cause for
                missing the deadline. To determine whether good cause exists for
                missing this deadline, we use the standards explained in Sec. 404.911.
                 (f) Good cause for changing the time or place. The administrative
                law judge will determine whether good cause exists for changing the
                time or place of your scheduled hearing. If the administrative law
                judge finds that good cause exists, we will set the time or place of
                the new hearing. A finding that good cause exists to reschedule the
                time or place of your hearing will generally not change the assignment
                of the administrative law judge or how you or another party will appear
                at the hearing, unless we determine a change will promote efficiency in
                our hearing process.
                [[Page 69306]]
                 (1) The administrative law judge will find good cause to change the
                time or place of your hearing if he or she determines that, based on
                the evidence:
                 (i) A serious physical or mental condition or incapacitating injury
                makes it impossible for you or your representative to travel to the
                hearing, or a death in the family occurs; or
                 (ii) Severe weather conditions make it impossible for you or your
                representative to travel to the hearing.
                 (2) In determining whether good cause exists in circumstances other
                than those set out in paragraph (f)(1) of this section, the
                administrative law judge will consider your reason(s) for requesting
                the change, the facts supporting it, and the impact of the proposed
                change on the efficient administration of the hearing process. Factors
                affecting the impact of the change include, but are not limited to, the
                effect on the processing of other scheduled hearings, delays that might
                occur in rescheduling your hearing, and whether we previously granted
                you any changes in the time or place of your hearing. Examples of such
                other circumstances that you might give for requesting a change in the
                time or place of the hearing include, but are not limited to, the
                following:
                 (i) You unsuccessfully attempted to obtain a representative and
                need additional time to secure representation;
                 (ii) Your representative was appointed within 30 days of the
                scheduled hearing and needs additional time to prepare for the hearing;
                 (iii) Your representative has a prior commitment to be in court or
                at another administrative hearing on the date scheduled for the
                hearing;
                 (iv) A witness who will testify to facts material to your case
                would be unavailable to attend the scheduled hearing and the evidence
                cannot be otherwise obtained;
                 (v) Transportation is not readily available for you to travel to
                the hearing; or
                 (vi) You are unrepresented, and you are unable to respond to the
                notice of hearing because of any physical, mental, educational, or
                linguistic limitations (including any lack of facility with the English
                language) which you may have.
                0
                4. Amend Sec. 404.938 by revising paragraphs (b)(3) and (5) and (c)
                and adding paragraph (d) to read as follows:
                Sec. 404.938 Notice of a hearing before an administrative law judge.
                * * * * *
                 (b) * * *
                 (3) How to request that we change the time or place of your
                hearing; * * *
                 (5) Whether your appearance or that of any other party or witness
                is scheduled to be made by video teleconferencing, in person, or, when
                the circumstances described in Sec. 404.936(c)(2) exist, by telephone.
                If we have scheduled you to appear by video teleconferencing, the
                notice of hearing will tell you that the scheduled place for the
                hearing is a video teleconferencing site and explain what it means to
                appear at your hearing by video teleconferencing;
                * * * * *
                 (c) Acknowledging the notice of hearing. The notice of hearing will
                ask you to return a form to let us know that you received the notice.
                If you or your representative do not acknowledge receipt of the notice
                of hearing, we will attempt to contact you for an explanation. If you
                tell us that you did not receive the notice of hearing, an amended
                notice will be sent to you by certified mail.
                 (d) Amended notice of hearing or notice of supplemental hearing. If
                we need to send you an amended notice of hearing, we will mail or serve
                the notice at least 20 days before the date of the hearing. Similarly,
                if we schedule a supplemental hearing, after the initial hearing was
                continued by the assigned administrative law judge, we will mail or
                serve a notice of hearing at least 20 days before the date of the
                hearing.
                0
                5. Amend Sec. 404.950 by revising paragraphs (a) and (e) to read as
                follows:
                Sec. 404.950 Presenting evidence at a hearing before an
                administrative law judge.
                 (a) The right to appear and present evidence. Any party to a
                hearing has a right to appear before the administrative law judge,
                either by video teleconferencing, in person, or, when the conditions in
                Sec. 404.936(c)(2) exist, by telephone, to present evidence and to
                state his or her position. A party may also make his or her appearance
                by means of a designated representative, who may make the appearance by
                video teleconferencing, in person, or, when the conditions in Sec.
                404.936(c)(2) exist, by telephone.
                * * * * *
                 (e) Witnesses at a hearing. Witnesses you call may appear at a
                hearing with you in the same manner in which you are scheduled to
                appear. If they are unable to appear with you in the same manner as
                you, they may appear as prescribed in Sec. 404.936(c)(4). Witnesses
                called by the administrative law judge will appear in the manner
                prescribed in Sec. 404.936(c)(4). They will testify under oath or
                affirmation unless the administrative law judge finds an important
                reason to excuse them from taking an oath or affirmation. The
                administrative law judge may ask the witness any questions material to
                the issues and will allow the parties or their designated
                representatives to do so.
                * * * * *
                0
                6. Amend Sec. 404.976 by revising paragraph (b) to read as follows:
                Sec. 404.976 Procedures before the Appeals Council on review.
                * * * * *
                 (b) Oral argument. You may request to appear before the Appeals
                Council to present oral argument. The Appeals Council will grant your
                request if it decides that your case raises an important question of
                law or policy or that oral argument would help to reach a proper
                decision. If your request to appear is granted, the Appeals Council
                will tell you the time and place of the oral argument at least 10
                business days before the scheduled date. You will appear before the
                Appeals Council by video teleconferencing or in person, or, when the
                circumstances described in Sec. 404.936(c)(2) exist, we may schedule
                you to appear by telephone. The Appeals Council will determine whether
                any other person relevant to the proceeding will appear by video
                teleconferencing, telephone, or in person as based on the circumstances
                described in Sec. 404.936(c)(4).
                PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
                DISABLED
                Subpart N--Determinations, Administrative Review Process, and
                Reopening of Determinations and Decisions
                0
                7. The authority citation for subpart N of part 416 continues to read
                as follows:
                 Authority: Secs. 702(a)(5), 1631, and 1633 of the Social
                Security Act (42 U.S.C. 902(a)(5), 1383, and 1383b); sec. 202, Pub.
                L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note).
                0
                8. Revise Sec. 416.1429 to read as follows:
                Sec. 416.1429 Hearing before an administrative law judge-general.
                 If you are dissatisfied with one of the determinations or decisions
                listed in Sec. 416.1430, you may request a hearing. The Deputy
                Commissioner for Hearings Operations, or his or her delegate, will
                appoint an administrative law judge to conduct the hearing. If
                circumstances warrant, the Deputy Commissioner for Hearings Operations,
                or his or her delegate, may assign your case to another administrative
                law judge. In general, we will schedule you to appear
                [[Page 69307]]
                by video teleconferencing or in person. When we determine whether you
                will appear by video teleconferencing or in person, we consider the
                factors described in Sec. 416.1436(c)(1)(i) through (iii), and in the
                limited circumstances described in Sec. 416.1436(c)(2), we will
                schedule you to appear by telephone. You may submit new evidence
                (subject to the provisions of Sec. 416.1435), examine the evidence
                used in making the determination or decision under review, and present
                and question witnesses. The administrative law judge who conducts the
                hearing may ask you questions. He or she will issue a decision based on
                the preponderance of the evidence in the hearing record. If you waive
                your right to appear at the hearing, the administrative law judge will
                make a decision based on the preponderance of the evidence that is in
                the file and, subject to the provisions of Sec. 416.1435, any new
                evidence that may have been submitted for consideration.
                0
                9. Revise Sec. 416.1436 to read as follows:
                Sec. 416.1436 Time and place for a hearing before an administrative
                law judge.
                 (a) General. We set the time and place for any hearing. We may
                change the time and place, if it is necessary. After sending you
                reasonable notice of the proposed action, the administrative law judge
                may adjourn or postpone the hearing or reopen it to receive additional
                evidence any time before he or she notifies you of a hearing decision.
                 (b) Where we hold hearings. We hold hearings in the 50 States, the
                District of Columbia, American Samoa, Guam, the Northern Mariana
                Islands, the Commonwealth of Puerto Rico, and the United States Virgin
                Islands. The ``place'' of the hearing is the hearing office or other
                site(s) at which you and any other parties to the hearing are located
                when you make your appearance(s) before the administrative law judge by
                video teleconferencing, in person or, when the circumstances described
                in paragraph (c)(2) of this section exist, by telephone.
                 (c) Determining manner of hearing to schedule. We will generally
                schedule you or any other party to the hearing to appear either by
                video teleconferencing or in person.
                 (1) When we determine whether you will appear by video
                teleconferencing or in person, we consider the following factors:
                 (i) The availability of video teleconferencing equipment to conduct
                the appearance;
                 (ii) Whether use of video teleconferencing to conduct the
                appearance would be less efficient than conducting the appearance in
                person; and
                 (iii) Any facts in your particular case that provide a good reason
                to schedule your appearance by video teleconferencing or in person.
                 (2) Subject to paragraph (c)(3) of this section, we will schedule
                you or any other party to the hearing to appear by telephone when we
                find an appearance by video teleconferencing or in person is not
                possible or other extraordinary circumstances prevent you from
                appearing by video teleconferencing or in person.
                 (3) If you are incarcerated and video teleconferencing is not
                available, we will schedule your appearance by telephone, unless we
                find that there are facts in your particular case that provide a good
                reason to schedule your appearance in person, if allowed by the place
                of confinement, or by video teleconferencing or in person upon your
                release.
                 (4) We will generally direct any person we call as a witness, other
                than you or any other party to the hearing, including a medical expert
                or a vocational expert, to appear by telephone or by video
                teleconferencing. Witnesses you call will appear at the hearing
                pursuant to Sec. 416.1450(e). If they are unable to appear with you in
                the same manner as you, we will generally direct them to appear by
                video teleconferencing or by telephone. We will consider directing
                witnesses to appear in person only when:
                 (i) Telephone or video teleconferencing equipment is not available
                to conduct the appearance;
                 (ii) We determine that use of telephone or video teleconferencing
                equipment would be less efficient than conducting the appearance in
                person; or
                 (iii) We find that there are facts in your particular case that
                provide a good reason to schedule this individual's appearance in
                person.
                 (d) Objecting to appearing by video teleconferencing. Prior to
                scheduling your hearing, we will notify you that we may schedule you to
                appear by video teleconferencing. If you object to appearing by video
                teleconferencing, you must notify us in writing within 30 days after
                the date you receive the notice. If you notify us within that time
                period and your residence does not change while your request for
                hearing is pending, we will set your hearing for a time and place at
                which you may make your appearance before the administrative law judge
                in person.
                 (1) Notwithstanding any objections you may have to appearing by
                video teleconferencing, if you change your residence while your request
                for hearing is pending, we may determine how you will appear, including
                by video teleconferencing, as provided in paragraph (c)(1) of this
                section. For us to consider your change of residence when we schedule
                your hearing, you must submit evidence verifying your new residence.
                 (2) If you notify us that you object to appearing by video
                teleconferencing more than 30 days after the date you receive our
                notice, we will extend the time period if you show you had good cause
                for missing the deadline. To determine whether good cause exists for
                extending the deadline, we use the standards explained in Sec.
                416.1411.
                 (e) Objecting to the time or place of the hearing. (1) If you wish
                to object to the time or place of the hearing, you must:
                 (i) Notify us in writing at the earliest possible opportunity, but
                not later than 5 days before the date set for the hearing or 30 days
                after receiving notice of the hearing, whichever is earlier; and
                 (ii) State the reason(s) for your objection and state the time or
                place you want the hearing to be held. If the administrative law judge
                finds you have good cause, as determined under paragraph (e) of this
                section, we will change the time or place of the hearing.
                 (2) If you notify us that you object to the time or place of
                hearing less than 5 days before the date set for the hearing or, if
                earlier, more than 30 days after receiving notice of the hearing, we
                will consider this objection only if you show you had good cause for
                missing the deadline. To determine whether good cause exists for
                missing this deadline, we use the standards explained in Sec.
                416.1411.
                 (f) Good cause for changing the time or place. The administrative
                law judge will determine whether good cause exists for changing the
                time or place of your scheduled hearing. If the administrative law
                judge finds that good cause exists, we will set the time or place of
                the new hearing. A finding that good cause exists to reschedule the
                time or place of your hearing will generally not change the assignment
                of the administrative law judge or how you or another party will appear
                at the hearing, unless we determine a change will promote efficiency in
                our hearing process.
                 (1) The administrative law judge will find good cause to change the
                time or place of your hearing if he or she determines that, based on
                the evidence:
                 (i) A serious physical or mental condition or incapacitating injury
                makes it impossible for you or your representative to travel to the
                hearing, or a death in the family occurs; or
                [[Page 69308]]
                 (ii) Severe weather conditions make it impossible for you or your
                representative to travel to the hearing.
                 (2) In determining whether good cause exists in circumstances other
                than those set out in paragraph (f)(1) of this section, the
                administrative law judge will consider your reason(s) for requesting
                the change, the facts supporting it, and the impact of the proposed
                change on the efficient administration of the hearing process. Factors
                affecting the impact of the change include, but are not limited to, the
                effect on the processing of other scheduled hearings, delays that might
                occur in rescheduling your hearing, and whether we previously granted
                you any changes in the time or place of your hearing. Examples of such
                other circumstances that you might give for requesting a change in the
                time or place of the hearing include, but are not limited to, the
                following:
                 (i) You unsuccessfully attempted to obtain a representative and
                need additional time to secure representation;
                 (ii) Your representative was appointed within 30 days of the
                scheduled hearing and needs additional time to prepare for the hearing;
                 (iii) Your representative has a prior commitment to be in court or
                at another administrative hearing on the date scheduled for the
                hearing;
                 (iv) A witness who will testify to facts material to your case
                would be unavailable to attend the scheduled hearing and the evidence
                cannot be otherwise obtained;
                 (v) Transportation is not readily available for you to travel to
                the hearing; or
                 (vi) You are unrepresented, and you are unable to respond to the
                notice of hearing because of any physical, mental, educational, or
                linguistic limitations (including any lack of facility with the English
                language) which you may have.
                0
                10. Amend Sec. 416.1438 by revising paragraphs (b)(3) and (5) and (c)
                and adding paragraph (d) to read as follows:
                Sec. 416.1438 Notice of a hearing before an administrative law judge.
                * * * * *
                 (b) * * *
                 (3) How to request that we change the time or place of your
                hearing;
                * * * * *
                 (5) Whether your appearance or that of any other party or witness
                is scheduled to be made by video teleconferencing, in person, or, when
                the circumstances described in Sec. 416.1436(c)(2) exist, by
                telephone. If we have scheduled you to appear by video
                teleconferencing, the notice of hearing will tell you that the
                scheduled place for the hearing is a video teleconferencing site and
                explain what it means to appear at your hearing by video
                teleconferencing;
                * * * * *
                 (c) Acknowledging the notice of hearing. The notice of hearing will
                ask you to return a form to let us know that you received the notice.
                If you or your representative do not acknowledge receipt of the notice
                of hearing, we will attempt to contact you for an explanation. If you
                tell us that you did not receive the notice of hearing, an amended
                notice will be sent to you by certified mail.
                 (d) Amended notice of hearing or notice of supplemental hearing. If
                we need to send you an amended notice of hearing, we will mail or serve
                the notice at least 20 days before the date of the hearing. Similarly,
                if we schedule a supplemental hearing, after the initial hearing was
                continued by the assigned administrative law judge, we will mail or
                serve a notice of hearing at least 20 days before the date of the
                hearing.
                0
                11. Amend Sec. 416.1450 by revising paragraphs (a) and (e) to read as
                follows:
                Sec. 416.1450 Presenting evidence at a hearing before an
                administrative law judge.
                 (a) The right to appear and present evidence. Any party to a
                hearing has a right to appear before the administrative law judge,
                either by video teleconferencing, in person, or, when the conditions in
                Sec. 416.1436(c)(2) exist, by telephone, to present evidence and to
                state his or her position. A party may also make his or her appearance
                by means of a designated representative, who may make the appearance by
                video teleconferencing, in person, or, when the conditions in Sec.
                416.1436(c)(2) exist, by telephone.
                * * * * *
                 (e) Witnesses at a hearing. Witnesses you call may appear at a
                hearing with you in the same manner in which you are scheduled to
                appear. If they are unable to appear with you in the same manner as
                you, they may appear as prescribed in Sec. 416.1436(c)(4). Witnesses
                called by the administrative law judge will appear in the manner
                prescribed in Sec. 416.1436(c)(4). They will testify under oath or
                affirmation unless the administrative law judge finds an important
                reason to excuse them from taking an oath or affirmation. The
                administrative law judge may ask the witness any questions material to
                the issues and will allow the parties or their designated
                representatives to do so.
                * * * * *
                0
                12. Amend Sec. 416.1476 by revising paragraph (b) to read as follows:
                Sec. 416.1476 Procedures before the Appeals Council on review.
                * * * * *
                 (b) Oral argument. You may request to appear before the Appeals
                Council to present oral argument. The Appeals Council will grant your
                request if it decides that your case raises an important question of
                law or policy or that oral argument would help to reach a proper
                decision. If your request to appear is granted, the Appeals Council
                will tell you the time and place of the oral argument at least 10
                business days before the scheduled date. You will appear before the
                Appeals Council by video teleconferencing or in person, or, when the
                circumstances described in Sec. 416.1436(c)(2) exist, we may schedule
                you to appear by telephone. The Appeals Council will determine whether
                any other person relevant to the proceeding will appear by video
                teleconferencing, telephone, or in person as based on the circumstances
                described in Sec. 416.1436(c)(4).
                [FR Doc. 2019-27172 Filed 12-17-19; 8:45 am]
                 BILLING CODE 4191-02-P
                

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