Changes to Scheduling and Appearing at Hearings, 38610-38617 [2013-14894]

Agencies

• Social Security Administration

[Federal Register Volume 78, Number 124 (Thursday, June 27, 2013)]
[Proposed Rules]
[Pages 38610-38617]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-14894]


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SOCIAL SECURITY ADMINISTRATION

[Docket No. 2011-0056]

20 CFR Parts 404, 405, and 416

RIN 0960-AH37


Changes to Scheduling and Appearing at Hearings

AGENCY: Social Security Administration.

ACTION: Notice of proposed rulemaking.

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SUMMARY: We propose to revise our rules to protect the integrity of our 
programs and preserve limited resources. Prior to scheduling a hearing, 
we will notify the claimant that his or her hearing may be held by 
video teleconferencing. The claimant will have an opportunity to object 
to appearing by video teleconferencing within 30 days after the date he 
or she receives the notice. We also propose changes that allow us to 
determine that a claimant will appear via video teleconferencing if he 
or she changes residences while his or her request for hearing is 
pending, regardless of whether or not the claimant previously declined 
a hearing by video teleconferencing.
    Additionally, we propose changes that require a claimant to notify 
us, in writing, of an objection to the time and place of hearing at the 
earliest opportunity, but not later than 5 days before the date set for 
the hearing, or, if

[[Page 38611]]

earlier, 30 days after receiving the notice of the hearing. We also 
propose to revise our rules so that an administrative law judge (ALJ) 
can direct a claimant and any other party to a hearing to appear by 
telephone in extraordinary circumstances.
    We anticipate that these proposed changes will have a minimal 
impact on the public, and will help ensure the integrity of our 
programs and allow us to administer our programs more efficiently.

DATES: To ensure that your comments are considered, we must receive 
them no later than August 26, 2013.

ADDRESSES: You may submit comments by any one of three methods--
Internet, fax, or mail. Do not submit the same comments multiple times 
or by more than one method. Regardless of which method you choose, 
please state that your comments refer to Docket No. SSA-2011-0056 so 
that we may associate your comments with the correct rule.
    CAUTION: You should be careful to include in your comments only 
information that you wish to make publicly available. We strongly urge 
you not to include in your comments any personal information, such as 
Social Security numbers or medical information.
    1. Internet: We strongly recommend that you submit your comments 
via the Internet. Please visit the Federal eRulemaking portal at https://www.regulations.gov. Use the Search function to find docket number 
SSA-2011-0056. The system will issue a tracking number to confirm your 
submission. You will not be able to view your comment immediately 
because we must post each comment manually. It may take up to a week 
for your comment to be viewable.
    2. Fax: Fax comments to (410) 966-2830.
    3. Mail: Mail your comments to the Office of Regulations and 
Reports Clearance, Social Security Administration, 107 Altmeyer 
Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401.
    Comments are available for public viewing on the Federal 
eRulemaking portal at https://www.regulations.gov or in person, during 
regular business hours, by arranging with the contact person identified 
below.

FOR FURTHER INFORMATION CONTACT: Brian J. Rudick, Office of Regulations 
and Reports Clearance, Social Security Administration, 6401 Security 
Boulevard, Baltimore, MD 21235-6401, (410) 965-7102. 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 https://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION:

Background

    As part of our ongoing commitment to improve the way we process 
claims for benefits under the old-age, survivors, and disability 
insurance programs under title II of the Social Security Act (Act) and 
the supplemental security income (SSI) program under title XVI of the 
Act, we are proposing revisions to some of the procedures we follow at 
the ALJ hearing level. Our workloads at the ALJ hearing level have 
continued to grow, and we expect the number of requests for hearing 
will remain high over the next several years. Along with our continued 
developments and improvements in our electronic service delivery 
process, we anticipate that the proposed changes will help us provide 
better service by allowing us to conduct hearings and issue decisions 
more expeditiously.

Objecting to Appearing by Video Teleconferencing

    Nearly a decade ago, we adopted rules that allow us to hold 
hearings by video teleconferencing, and we have continued to expand the 
use of video teleconferencing technology for hearings since that time. 
The addition of video teleconferencing capabilities has allowed us to 
open five National Hearing Centers (NHC). The NHCs allow us to manage 
our workloads more effectively and help us to reduce the hearing office 
backlog. NHCs are uniquely positioned to assist hearing offices with 
electronic cases that are scheduled for a hearing by video 
teleconferencing. ALJs in traditional hearing offices also hold 
hearings by video teleconferencing. In these cases, a claimant may 
attend the hearing by video teleconferencing at a hearing office closer 
to his or her residence, or, in some cases, at his or her local field 
office. Hearings held by video teleconferencing help reduce our average 
processing time, reduce travel expenses, and allow us to better serve 
the public.
    At the same time that we have increased our video teleconference 
capacity, our commitment to transparency has made significantly more 
detailed information about our ALJs available to claimants and their 
representatives. We make available on our Internet site information 
about the performance of each of our ALJs, including information about 
the number of decisions each ALJ has made, and the breakdown of those 
decisions by outcome. Our increased use of the NHCs, the expansion of 
our video teleconferencing capacity, and the public availability of 
detailed information about the performance of each of our ALJs, 
including each ALJ's allowance rate, have had unintended consequences 
that can undermine the efficiency and integrity of our hearings 
process, as described below.
    Under our current business processes, we notify claimants whether 
they will appear by video teleconferencing at the same time that we 
schedule the hearing. Our current regulations also provide that a 
claimant, or a representative on a claimant's behalf, may object to 
appearing by video teleconferencing at the earliest possible 
opportunity before the time set for the hearing. If the claimant files 
such an objection, the ALJ assigned to the case will find the objection 
is good cause to reschedule the hearing, so that the claimant can 
appear in person. In addition, a claimant may notify us at any time 
prior to appearing in person or via video teleconferencing at the 
hearing that he or she has a new residence, which could result in the 
case being transferred to, and rescheduled in, a new hearing office or 
region.
    Because our regulations do not contain a specific time limit for 
objecting to appearing by video teleconferencing, we have experienced 
an increase in declinations to participate in hearings by video 
teleconferencing.\1\ Similarly, a change in residence could result in a 
re-assignment to a different ALJ. We have become concerned that some 
claimants or their representatives may be using the ability to decline 
to appear by video teleconferencing or to request a case transfer due 
to a change in residence to undermine the random assignment of cases to 
our ALJs.
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    \1\ We took steps to address this issue beginning in December 
2011 by changing the prehearing notices that we sent to claimants 
and their representatives. Those prehearing notices no longer 
included the name of the ALJ assigned to the case. We ended the 
policy we adopted in December 2011 effective April 20, 2013. 
Currently, we disclose the name of the ALJ assigned to a hearing 
when we send out a Notice of Hearing.
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    When claimants decline a hearing scheduled by video 
teleconferencing or request to reschedule an in-person hearing, the 
decision has a ripple effect throughout the hearing process. We must 
use limited administrative resources to reschedule a hearing at a time 
and place amenable to all hearing participants. Rescheduling hearings 
has an adverse effect on other claimants, some of whom must wait longer 
for a

[[Page 38612]]

hearing while we accommodate the rescheduled hearing.
    To better utilize our limited resources and make our hearing 
process more efficient for all claimants, we propose to modify our 
rules so that we would notify a claimant earlier in the process, before 
an ALJ is assigned or a hearing is scheduled, that he or she has the 
right to object to appearing at the hearing by video teleconferencing. 
If the claimant does not want to appear at the hearing in this manner, 
the claimant must object in writing within 30 days after the date he or 
she receives this notice. If we receive a timely objection, we will 
schedule the claimant for an in person hearing, with one limited 
exception.
    The limited exception to this rule would apply when the claimant 
moves to a different residence while his or her request for a hearing 
is pending. If a claimant moves from one residence to another while his 
or her request for hearing is pending, we will determine whether a 
claimant will appear in person or by video teleconferencing, even if 
the claimant previously objected to appearing by video 
teleconferencing. In addition, the proposed rules explain that in order 
for us to consider a change in residence when scheduling a hearing, the 
claimant must submit evidence verifying a new residence. After we 
receive evidence regarding the claimant's new residence, we will decide 
how the claimant's appearance will be made. This limited exception to 
the rule would allow us to protect the integrity of our programs while 
providing us with the flexibility to transfer cases when there is a 
legitimate change in residence and such a transfer would allow us to 
process the case more efficiently.
    Although a claimant retains the right to object to the time and 
place of the hearing once it is scheduled, as described below, we will 
not consider an objection based solely on appearing at the hearing by 
video teleconferencing if the claimant did not object within the 
required time period.

Time Period for Objecting to a Hearing

    We also propose specifying the time period for objecting to the 
time and place of a hearing. To ensure that we have adequate time to 
prepare for the hearing, we propose to revise these rules to require 
that a claimant notify us of an objection in writing at the earliest 
possible opportunity, but not later than 5 days before the date set for 
the hearing or, if earlier, 30 days after receiving notice of the 
hearing.
    If the claimant objects to the time and place of the hearing 
outside of the specified time period and fails to attend the hearing, 
the administrative law judge will follow existing sub-regulatory 
authority to develop good cause for failure to appear. For example, our 
current procedures require that when the claimant fails to appear at 
the hearing because of severe weather or a death in the family, the ALJ 
will find good cause for failure to appear and reschedule the hearing.
    We also made other minor revisions to the proposed rules to clarify 
when we will reschedule a hearing for good cause. For instance, we 
removed the example that a claimant might offer living closer to 
another hearing site as a good cause reason to object to the time and 
place of the hearing. Additionally, in the proposed rules where we 
address rescheduling a hearing, we added editorial changes for internal 
consistency.

Appearing at the Hearing by Telephone

    To further reduce the need to reschedule hearings and improve 
efficiency, we also propose to provide that the ALJ may determine that 
the claimant who requested the hearing, or any other party to the 
hearing, will appear at the hearing by telephone under extraordinary 
circumstances. For example, an ALJ will direct a claimant or other 
party to the hearing to appear by telephone when the person's 
appearance in person is not possible, such as when the person is 
incarcerated, and the correctional facility will not allow a hearing to 
be held at the facility, and video teleconferencing is not available. 
The flexibility in the proposed rule will also allow us to continue the 
practice of scheduling a hearing by telephone when the claimant 
specifically requests a hearing in this manner, and the ALJ determines 
that extraordinary circumstances prevent the claimant or other party 
who makes the request from appearing at the hearing in person or by 
video teleconferencing.
    We anticipate that this proposed rule will benefit both us and the 
public. We spend significant administrative resources trying to arrange 
an in person hearing with the officials of the correctional facility. 
We also lose significant productivity if an ALJ is required to travel 
to a confinement facility to hold one or two hearings, because the 
travel to the facility prevents the ALJ from scheduling a full hearing 
docket for that day. Permitting us to schedule telephone appearances 
when extraordinary circumstances such as these exist would allow us to 
save limited administrative resources and allow us to provide more 
timely hearings to all claimants because the ALJ would be present in 
the hearing office to conduct a full hearing docket.

Part 405

    We are proposing several changes to Part 405 for consistency with 
these proposed rules. We propose changes relating to video 
teleconferencing and hearing appearances by telephone in extraordinary 
circumstances, as described above.
    Additionally, we are proposing other minor changes for consistency 
with other rules in Parts 404 and 416. Most significantly, for 
consistency with our pilot program in place in all regions except 
Boston, we are proposing changes in setting the time and place for 
hearing. Currently in the Boston region, the ALJ sets the time and 
place of hearing. In every other region the regulations state that we 
have the authority to set the time and place of hearing. We propose 
expanding that authority to Part 405.

Clarity of These Rules

    Executive Order 12866 as supplemented by Executive Order 13563 
requires each agency to write all rules in plain language. In addition 
to your substantive comments on this NPRM, we invite your comments on 
how to make rules easier to understand. For example:
     Would more, but shorter, sections be better?
     Are the requirements in the rule clearly stated?
     Have we organized the material to suit your needs?
     Could we improve clarity by adding tables, lists, or 
diagrams?
     What else could we do to make the rule easier to 
understand?
     Does the rule contain technical language or jargon that is 
not clear?
     Would a different format make the rule easier to 
understand, e.g. grouping and order of sections, use of headings, 
paragraphing?

When will we start to use these rules?

    We will not use these rules until we evaluate public comments and 
publish final rules in the Federal Register. All final rules we issue 
include an effective date. We will continue to use our current rules 
until that date. If we publish final rules, we will include a summary 
of those relevant comments we received along with responses and an 
explanation of how we will apply the new rules.

[[Page 38613]]

Regulatory Procedures

Executive Order 12866 as Supplemented by Executive Order 13563

    We consulted with the Office of Management and Budget (OMB) and 
determined that these proposed rules meet the criteria for a 
significant regulatory action under Executive Order 12866, as 
supplemented by Executive Order 13563 and are subject to OMB review.

Regulatory Flexibility Act

    We certify that these proposed rules will not have a significant 
economic impact on a substantial number of small entities because they 
affect individuals only. Therefore, a regulatory flexibility analysis 
is not required under the Regulatory Flexibility Act, as amended.

Paperwork Reduction Act

    These proposed rules contain reporting public reporting 
requirements in the regulation sections listed below. We are seeking 
approval for these regulation sections and for new a new SSA form, 
which we will use to collect the information required by these 
sections. Below we provide burden estimates for the public reporting 
requirements.

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                                                                                                                              Average
                                                     Description of public reporting         Number of     Frequency of     burden  per      Estimated
               Regulation section                              requirement                  respondents      response        response     annual burden*
                                                                                            (annually)                       (minutes)
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404.936(c); 405.317(a); 416.1436(c)............  If you object to video teleconferencing         850,000               1               5          70,833
                                                  you must notify us in writing no later
                                                  than 30 days after we send the
                                                  acknowledgement letter.
404.936(e); 416.1436(e)........................  You must notify us if you wish to               900,000               1              30         450,000
                                                  object to the time and place in
                                                  writing no later than 5 days prior to
                                                  hearing or 30 days after receiving
                                                  notice of hearing.
404.938(a); 405.316(a); 416.1438(a)............  Indication in writing that respondent             1,600               1               5             133
                                                  does not wish to receive notice of
                                                  hearing.
                                                --------------------------------------------------------------------------------------------------------
    Total......................................  .......................................       1,751,600  ..............  ..............         520,966
--------------------------------------------------------------------------------------------------------------------------------------------------------

    We submitted an Information Collection Request for clearance to 
OMB. We are soliciting comments on the burden estimate; the need for 
the information; its practical utility; ways to enhance its quality, 
utility, and clarity; and ways to minimize the burden on respondents, 
including the use of automated techniques or other forms of information 
technology. If you would like to submit comments, please send them to 
the following locations:

Office of Management and Budget, Attn: Desk Officer for SSA, Fax 
Number: 202-395-6974, Email address: OIRA_Submission@omb.eop.gov.
Social Security Administration, Attn: Reports Clearance Officer, 
1333 Annex, 6401 Security Blvd., Baltimore, MD 21235-0001, Fax 
Number: 410-965-6400, Email: OR Reports Clearance@ssa.gov.

    You can submit comments until August 26, 2013, which is 60 days 
after the publication of this notice. However, your comments will be 
most useful if you send them to SSA by July 29, 2013, which is 30 days 
after publication. To receive a copy of the OMB clearance package, 
contact the SSA Reports Clearance Officer using any of the above 
contact methods. We prefer to receive comments by email or fax.

(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 405

    Administrative practice and procedure; Blind, Disability benefits; 
Old-Age, Survivors, and Disability Insurance; Public assistance 
programs; Reporting and recordkeeping requirements; Social Security; 
Supplemental Security Income (SSI).

20 CFR Part 416

    Administrative practice and procedure; Aged, Blind, Disability 
benefits, Public Assistance programs; Reporting and recordkeeping 
requirements; Supplemental Security Income (SSI).

    Dated: June 18, 2013.
Carolyn W. Colvin,
Acting Commissioner of Social Security.
    For the reasons set out in the preamble, we propose to amend 20 CFR 
chapter III parts 404, 405, and part 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 Disability Adjudication and Review, or his or her 
delegate, will appoint an administrative law judge to conduct the 
hearing. If circumstances warrant, the Deputy Commissioner, or his or 
her delegate, may assign your case to another administrative law judge. 
At the hearing, you may appear in person, by video teleconferencing, 
or, under certain extraordinary circumstances, by telephone. You may 
submit new evidence, examine the evidence used in

[[Page 38614]]

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, in person, by video 
teleconferencing, or by telephone, the administrative law judge will 
make a decision based on the preponderance of the evidence that is in 
the file and any new evidence that may have been submitted for 
consideration.
0
3. In Sec.  404.936, revise paragraphs (b) and (c), redesignate 
paragraphs (d)-(e) as paragraphs (e)-(f), add a new paragraph (d) and 
revise redesignated paragraphs (e)-(f), to read as follows:


Sec.  404.936  Time and place for a hearing before an administrative 
law judge.

* * * * *
    (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, 
whether in person, by video teleconferencing, or by telephone.
    (c) Determining how appearances will be made. In setting the time 
and place of the hearing, we will consider the following:
    (1) We will consult with the administrative law judge to determine 
the status of case preparation and to determine whether your 
appearance, or the appearance of any other party to the hearing, will 
be made in person, by video teleconferencing or, under extraordinary 
circumstances, by telephone. The administrative law judge will 
determine that your appearance, or the appearance of any other party to 
the hearing, be conducted by video teleconferencing if video 
teleconferencing equipment is available to conduct the appearance, use 
of video teleconferencing to conduct the appearance would be more 
efficient than conducting the appearance in person, and the 
administrative law judge determines that there is no circumstance in 
the particular case that prevents the use of video teleconferencing to 
conduct the appearance. The administrative law judge will direct you or 
another party to the hearing to appear by telephone when:
    (i) An appearance in person is not possible, such as if you are 
incarcerated and the facility will not allow a hearing to be held at 
the facility, and video teleconferencing is not available; or
    (ii) The administrative law judge determines, either on his own, or 
at your request or the request of any other party to the hearing, that 
extraordinary circumstances prevent you or another party to the hearing 
from appearing at the hearing in person or by video teleconferencing.
    (2) [Reserved]
    (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. However, 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.
    (e) Objecting to the time or place of the hearing. If you object to 
the time or place of your hearing, you must notify us in writing at the 
earliest possible opportunity, but not later than 5 days before the 
date set for the hearing or, if earlier, 30 days after receiving notice 
of the hearing. You must state the reason for your objection and state 
the time and place you want the hearing to be held. We will change the 
time or place of the hearing if the administrative law judge finds you 
have good cause, as determined under paragraph (f) of this section. 
Section 404.938 provides procedures we will follow when you do not 
respond to a notice of hearing.
    (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. However, a finding that good 
cause exists to reschedule the time or place of your hearing will not 
change the assignment of the administrative law judge for your case, 
unless we determine reassignment will promote more efficient 
administration of the hearing process.
    (1) We will reschedule your hearing, if your reason is one of the 
following circumstances and is supported by 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 subparagraph (1) of this section, the 
administrative law judge will consider your reason 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 which 
might occur in rescheduling your hearing, and whether we granted you 
any prior changes. 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. In Sec.  404.938, revise paragraph (b) to read as follows:


Sec.  404.938  Notice of a hearing before an administrative law judge.

* * * * *
    (b) Notice information. The notice of hearing will contain a 
statement of the specific issues to be decided and tell

[[Page 38615]]

you that you may designate a person to represent you during the 
proceedings. The notice will also contain an explanation of the 
procedures for requesting a change in the time or place of your 
hearing, a reminder that if you fail to appear at your scheduled 
hearing without good cause the administrative law judge may dismiss 
your hearing request, and other information about the scheduling and 
conduct of your hearing. You will also be told if your appearance or 
that of any other party or witness is scheduled to be made in person, 
by video teleconferencing, or by telephone. If we have scheduled you to 
appear at the hearing 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.
* * * * *

PART 405--ADMINISTRATIVE REVIEW PROCESS FOR ADJUDICATING INITIAL 
DISABILITY CLAIMS

0
5. The authority citation for part 405 continues to read as follows:

    Authority:  Secs. 201(j), 205(a)-(b), (d)-(h), and (s), 221, 
223(a)-(b), 702(a)(5), 1601, 1602, 1631, and 1633 of the Social 
Security Act (42 U.S.C. 401(j), 405(a)-(b), (d)-(h), and (s), 421, 
423(a)-(b), 902(a)(5), 1381, 1381a, 1383, and 1383b).

0
6. In Sec.  405.315, revise paragraphs (a)-(c), and add new paragraphs 
(d)-(e), to read as follows:


Sec.  405.315  Time and place for a hearing before an administrative 
law judge.

    (a) General. We may set the time and place for the hearing. We may 
change the time and place, if it is necessary. If we change the time 
and place of the hearing, we will send you reasonable notice of the 
change. We will notify you of the time and place of the hearing at 
least 75 days before the date of the hearing, unless you agree to a 
shorter notice period.
    (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, 
whether in person, by video teleconferencing, or by telephone.
    (c) Determining how appearances will be made. In setting the time 
and place of the hearing, we will consider the following:
    (1) We will consult with the administrative law judge to determine 
the status of case preparation and to determine whether your appearance 
will be made in person or by video teleconferencing or, under 
extraordinary circumstances, by telephone. The administrative law judge 
will determine that your appearance be conducted by video 
teleconferencing if video teleconferencing equipment is available to 
conduct the appearance, use of video teleconferencing to conduct the 
appearance would be more efficient than conducting the appearance in 
person, and the administrative law judge determines that there is no 
circumstance in the particular case that prevents the use of video 
teleconferencing to conduct the appearance. The administrative law 
judge will direct you to appear by telephone when:
    (i) An appearance in person is not possible, such as if you are 
incarcerated and the facility will not allow a hearing to be held at 
the facility, and video teleconferencing is not available; or
    (ii) The administrative law judge determines, either on his own, or 
at your request or the request of any other party to the hearing, that 
extraordinary circumstances prevent you or another party to the hearing 
from appearing at the hearing in person or by video teleconferencing.
    (2) Reserved
    (d) Consultation procedures. Before we exercise the authority to 
set the time and place for an administrative law judge's hearings, we 
will consult with the appropriate hearing office chief administrative 
law judge to determine if there are any reasons why we should not set 
the time and place of the administrative law judge's hearings. If the 
hearing office chief administrative law judge does not state a reason 
that we believe justifies the limited number of hearings scheduled by 
the administrative law judge, we will then consult with the 
administrative law judge before deciding whether to begin to exercise 
our authority to set the time and place for the administrative law 
judge's hearings. If the hearing office chief administrative law judge 
states a reason that we believe justifies the limited number of 
hearings scheduled by the administrative law judge, we will not 
exercise our authority to set the time and place for the administrative 
law judge's hearings. We will work with the hearing office chief 
administrative law judge to identify those circumstances where we can 
assist the administrative law judge and address any impediment that may 
affect the scheduling of hearings.
    (e) Pilot program. The provisions in the first three sentences of 
paragraph (a), the first sentence of paragraph (c)(1), and paragraph 
(d) of this section are a pilot program. These provisions will no 
longer be effective on August 9, 2016, unless we terminate them earlier 
or extend them beyond that date by notice of a final rule in the 
Federal Register.

0
7. In 405.316, revise paragraphs (a) and (b)(5), to read as follows:
    (a) Issuing the notice. After we set the time and place of the 
hearing, we will mail notice of the hearing to you at your last known 
address, or give the notice to you by personal service, unless you have 
indicated in writing that you do not wish to receive this notice. We 
will mail or serve the notice at least 75 days before the date of the 
hearing, unless you agree to a shorter notice period.
    (b) * * *
    (5) Whether your appearance or that of any witness is scheduled to 
be made in person, by video teleconferencing, or by telephone. If we 
have scheduled you to appear at the hearing 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.
* * * * *
0
8. Revise Sec.  405.317 to read as follows:


Sec.  405.317  Objections.

    (a) 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. However, 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 section 
405.315 of this part. For us to consider a change of residence when we 
schedule your hearing, you must submit evidence verifying your new 
residence.
    (b) Objecting to the time and place of the hearing. (1) If you 
object to the time or place of your hearing, you must notify us in 
writing at the earliest possible opportunity before the date set

[[Page 38616]]

for the hearing, but no later than 30 days after receiving notice of 
the hearing. You must state the reason(s) for your objection and state 
the time and place you want the hearing to be held.
    (2) The administrative law judge will consider your reason(s) for 
requesting the change 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 which might occur in 
rescheduling your hearing, and whether we previously granted to you any 
changes in the time or place of your hearing. However, an objection to 
the time or place of your hearing will not change the assignment of the 
administrative law judge for your case, unless we determine 
reassignment will promote more efficient administration of the hearing 
process.
    (c) Issues. If you believe that the issues contained in the hearing 
notice are incorrect, you should notify the administrative law judge in 
writing at the earliest possible opportunity, but must notify him or 
her no later than five business days before the date set for the 
hearing. You must state the reason(s) for your objection. The 
administrative law judge will make a decision on your objection either 
at the hearing or in writing before the hearing.
0
9. In Sec.  405.350, revise the first sentence of paragraph (a) to read 
as follows:


Sec.  405.350  Presenting evidence at a hearing before an 
administrative law judge.

    (a) * * * You have a right to appear before the administrative law 
judge, either in person or, when the administrative law judge 
determines that the conditions in Sec.  405.315(c) exist, by video 
teleconferencing or telephone, to present evidence and to state your 
position. * * *
* * * * *

PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND 
DISABLED

Subpart N--Determinations, Administrative Review Process, and 
Reopening of Determinations and Decisions

0
10. 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
11. 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 Disability Adjudication and Review, or his or her 
delegate, will appoint an administrative law judge to conduct the 
hearing. If circumstances warrant, the Deputy Commissioner, or his or 
her delegate, may assign your case to another administrative law judge. 
At the hearing, you may appear in person, by video teleconferencing, 
or, under certain extraordinary circumstances, by telephone. You may 
submit new evidence, 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, in person, by video teleconferencing, 
or by telephone, the administrative law judge will make a decision 
based on the preponderance of the evidence that is in the file and any 
new evidence that may have been submitted for consideration.

0
12. In Sec.  416.1436, revise paragraphs (b) and (c), redesignate 
paragraphs (d)-(e) as paragraphs (e)-(f), add a new paragraph, (d) and 
revise redesignated paragraphs (e)-(f), to read as follows:


Sec.  416.1436  Time and place for a hearing before an administrative 
law judge.

* * * * *
    (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, 
whether in person, by video teleconferencing, or by telephone.
    (c) Determining how appearances will be made. In setting the time 
and place of the hearing, we will consider the following:
    (1) We will consult with the administrative law judge to determine 
the status of case preparation and to determine whether your 
appearance, or the appearance of any other party to the hearing, will 
be made in person, by video teleconferencing, or, under extraordinary 
circumstances, by telephone. The administrative law judge will 
determine that your appearance, or the appearance of any other party to 
the hearing, be conducted by video teleconferencing if video 
teleconferencing equipment is available to conduct the appearance, use 
of video teleconferencing to conduct the appearance would be more 
efficient than conducting the appearance in person, and the 
administrative law judge determines there is no circumstance in the 
particular case that prevents the use of video teleconferencing to 
conduct the appearance. The administrative law judge will direct you or 
another party to the hearing to appear by telephone when:
    (i) An appearance in person is not possible, such as if you are 
incarcerated and the facility will not allow a hearing to be held at 
the facility, and video teleconferencing is not available; or
    (ii) The administrative law judge determines, either on his own, or 
at your request or the request of any other party to the hearing, that 
extraordinary circumstances prevent you or another party to the hearing 
from appearing at the hearing in person or by video teleconferencing.
    (2) Reserved
    (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. However, 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.
    (e) Objecting to the time or place of the hearing. If you object to 
the time or place of your hearing, you must notify us in writing at the 
earliest possible opportunity, but not later than 5 days before the 
date set for the hearing or, if earlier, 30 days after receiving notice 
of the hearing. You must state the reason for your objection and state 
the time and place you want the hearing to be held. We will change the 
time or place of the

[[Page 38617]]

hearing if the administrative law judge finds you have good cause, as 
determined under paragraph (f) of this section. Section 416.1438 
provides procedures we will follow when you do not respond to a notice 
of hearing.
    (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. However, a finding that good 
cause exists to reschedule the time or place of your hearing will not 
change the assignment of the administrative law judge for your case, 
unless we determine reassignment will promote more efficient 
administration of the hearing process.
    (1) We will reschedule your hearing, if your reason is one of the 
following circumstances and is supported by 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 and your 
representative to travel to the hearing.
    (2) In determining whether good cause exists in circumstances other 
than those set out in subparagraph (1) of this section, the 
administrative law judge will consider your reason 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 which 
might occur in rescheduling your hearing, and whether we granted you 
any prior changes. 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
13. In Sec.  416.1438, revise paragraph (b) to read as follows:


Sec.  416.1438  Notice of a hearing before an administrative law judge.

* * * * *
    (b) Notice information. The notice of hearing will contain a 
statement of the specific issues to be decided and tell you that you 
may designate a person to represent you during the proceedings. The 
notice will also contain an explanation of the procedures for 
requesting a change in the time or place of your hearing, a reminder 
that if you fail to appear at your scheduled hearing without good cause 
the administrative law judge may dismiss your hearing request, and 
other information about the scheduling and conduct of your hearing. You 
will also be told if your appearance or that of any other party or 
witness is scheduled to be made in person, by video teleconferencing, 
or by telephone. If we have scheduled you to appear at the hearing 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.
* * * * *
[FR Doc. 2013-14894 Filed 6-26-13; 8:45 am]
BILLING CODE 4191-02-P