Setting the Manner for the Appearance of Parties and Witnesses at a Hearing
| Published date | 18 December 2019 |
| Citation | 84 FR 69298 |
| Record Number | 2019-27172 |
| Section | Rules and Regulations |
| Court | Social Security Administration |
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.
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\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.
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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.
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\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.
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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.
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\21\ The ACUS Handbook is available at: https://www.acus.gov/report/handbook-best-practices-using-video-teleconferencing-adjudicatory-hearings.
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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.
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\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.
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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
