Setting the Manner for the Appearance of Parties and Witnesses at a Hearing, 69298-69308 [2019-27172]
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§ 24.2
Federal Register / Vol. 84, No. 243 / Wednesday, December 18, 2019 / Rules and Regulations
[Corrected]
6. a. On page 61795, in the first
column, in amendment 17, in § 24.2,
paragraph (b)(1)(ii), ‘‘allowances for
loan and lease losses or allowance for
credit losses, as applicable, as reported
in the national bank’s Call Report’’ is
corrected to read ‘‘allowance for loan
and lease losses or adjusted allowances
for credit losses, as applicable, as
reported in the Consolidated Reports of
Condition and Income (Call Report)’’;
■ b. On page 61795, in the second
column, in amendment 17, in § 24.2,
paragraph (b)(2)(i), ‘‘the bank’s
Consolidated Reports of Condition and
Income (Call Report) filed under 12
U.S.C. 161’’ is corrected to read ‘‘the
Call Report’’;
■ c. On page 61795, in the second
column, in amendment 17, in § 24.2,
paragraph (b)(2)(ii), ‘‘allowances for
loan and lease losses’’ is corrected to
read ‘‘allowance for loan and lease
losses or adjusted allowances for credit
losses, as applicable,’’; and ‘‘the bank’s
Call Report as filed under 12 U.S.C.
161’’ is corrected to read ‘‘the Call
Report’’.
■
§ 32.2
[Corrected]
7. a. On page 61795, in the second
column, in amendment 19, in § 32.2,
paragraph (c)(1)(ii), ‘‘allowances for loan
and lease losses or allowance for credit
losses, as applicable, as reported in the
■
national bank’s or Federal savings
association’s Call Report’’ is corrected to
read ‘‘allowance for loan and lease
losses or adjusted allowances for credit
losses, as applicable, as reported in the
Consolidated Reports of Condition and
Income (Call Report)’’;
■ b. On page 61795, in the second
column, in amendment 19, in § 32.2,
paragraph (c)(2)(i), ‘‘the bank’s or
savings association’s Consolidated
Reports of Condition and Income (Call
Report)’’ is corrected to read ‘‘the Call
Report’’; and
■ c. On page 61795, in the second
column, in amendment 19, in § 32.2,
paragraph (c)(2)(ii), ‘‘allowances for loan
and lease losses’’ is corrected to read
‘‘allowance for loan and lease losses or
adjusted allowances for credit losses, as
applicable,’’.
§ 34.81
NATIONAL CREDIT UNION
ADMINISTRATION
12 CFR Part 703
Investment and Deposit Activities
CFR Correction
In Title 12 of the Code of Federal
Regulations, Parts 600 to 899, revised as
of January 1, 2019, on page 700, in
§ 703.114, remove paragraph (3) that
appears below paragraph (d).
■
[FR Doc. 2019–27403 Filed 12–17–19; 8:45 am]
BILLING CODE 1301–00–D
DEPARTMENT OF COMMERCE
Bureau of Industry and Security
[Corrected]
8. On page 61795, in the second and
third columns, remove heading ‘‘PART
34—REAL ESTATE LENDING AND
APPRAISALS,’’ remove amendments 20
and 21, and renumber the subsequent
amendments to reflect the removal.
15 CFR Part 744
Dated: November 27, 2019.
Jonathan V. Gould,
Senior Deputy Comptroller and Chief
Counsel, Office of the Comptroller of the
Currency.
■
■
Control Policy: End-User and End-Use
Based; Correction
CFR Correction
In Title 15 of the Code of Federal
Regulations, Parts 300 to 799, revised as
of January 1, 2019, on page 412, in part
744, supplement no. 4, in the table
under ‘‘AFGHANISTAN’’, the entry for
Ibrahim Haqqani is correctly revised to
read as follows:
[FR Doc. 2019–27168 Filed 12–17–19; 8:45 am]
BILLING CODE 4810–33–P
SUPPLEMENT NO. 4 TO PART 744—ENTITY LIST
Country
Entity
License
requirement
License
review policy
*
AFGHANISTAN
*
*
*
*
Ibrahim Haqqani, a.k.a., the following
two aliases:
—Hajji Sahib; and
—Maulawi Haji Ibrahim Haqqani
Afghanistan
*
*
For all items subject to
the EAR. (See § 744.11
of the EAR)
*
*
*
*
Presumption of denial ......
*
*
*
*
ACTION:
[FR Doc. 2019–27402 Filed 12–17–19; 8:45 am]
*
Final rule.
BILLING CODE 1301–00–D
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
SUMMARY:
SOCIAL SECURITY ADMINISTRATION
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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.
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citation
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77 FR 25057, 4/27/12.
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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
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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 tollfree 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
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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
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
1 SSAB, Improving the Social Security
Administration’s Hearing Process, at 21 (Sep. 2006),
available at: https://www.ssab.gov/Portals/0/OUR_
WORK/REPORTS/HearingProcess_2006.pdf.
2 83 FR 57368, available at https://
www.federalregister.gov/documents/2018/11/15/
2018–24711/setting-the-manner-for-theappearance-of-parties-and-witnesses-at-a-hearing.
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proposed changes, we will not repeat
that information here.
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
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.
Finally, we also proposed in the
NPRM to make changes to our rule
about scheduling hearings before
disability hearing officers (DHO) in
§§ 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
§§ 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 §§ 404.914 and 416.1414.
3 20
CFR 404.956, 416.1456.
4 20 CFR 404.938(a), 416.1438(a).
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• We changed ‘‘them’’ to ‘‘witnesses’’
for clarity in final §§ 404.936(c)(4) and
416.1436(c)(4).
• We retained existing §§ 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 §§ 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
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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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.
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
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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
§§ 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.
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
6 20
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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.
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
7 29 U.S.C. 794, Public Law 93–112, title V, Sec.
504, Sept. 26, 1973, 87 Stat. 394.
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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 27inch 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
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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with on a case-by-case basis by support
personnel.
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.
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
9 Social
Security Ruling 16–3p.
10 Id.
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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
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.
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
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.
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).
13 Hearings, Appeals, and Litigation Law
(HALLEX) Manual I–2–6–15.
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who do not attend the entire hearing.14
We do not plan to modify those existing
procedures under the final rule.
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 policycompliant 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
14 HALLEX
I–2–6–70 and I–2–6–74.
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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
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 5day 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.
VTC as a Tool To Improve Efficiency
Comment: Some commenters
expressed that we failed to demonstrate
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).
17 See 20 CFR 404.1740(b)(3)(iii) and
416.1540(b)(3)(iii).
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VTC hearings are more efficient than inperson 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 inperson 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
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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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.
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.
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
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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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.
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
21 The ACUS Handbook is available at: https://
www.acus.gov/report/handbook-best-practicesusing-video-teleconferencing-adjudicatory-hearings.
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-usevideo-hearings-best-practices-and-possibilitiesexpansion.
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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.
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
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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 nonsubstantive 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
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15:51 Dec 17, 2019
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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 PRAapproved 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,
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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
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).
■
2. Revise § 404.929 to read as follows:
§ 404.929 Hearing before an administrative
law judge-general.
If you are dissatisfied with one of the
determinations or decisions listed in
§ 404.930, you may request a hearing.
The Deputy Commissioner for Hearings
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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 § 404.936(c)(1)(i) through
(iii), and in the limited circumstances
described in § 404.936(c)(2), we will
schedule you to appear by telephone.
You may submit new evidence (subject
to the provisions of § 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 § 404.935,
any new evidence that may have been
submitted for consideration.
■ 3. Revise § 404.936 to read as follows:
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§ 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
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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 § 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
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69305
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 § 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
§ 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.
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(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.
■ 4. Amend § 404.938 by revising
paragraphs (b)(3) and (5) and (c) and
adding paragraph (d) to read as follows:
§ 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; * * *
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(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
§ 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.
■ 5. Amend § 404.950 by revising
paragraphs (a) and (e) to read as follows:
§ 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 § 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 § 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 § 404.936(c)(4). Witnesses
called by the administrative law judge
will appear in the manner prescribed in
§ 404.936(c)(4). They will testify under
oath or affirmation unless the
administrative law judge finds an
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Fmt 4700
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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.
*
*
*
*
*
■ 6. Amend § 404.976 by revising
paragraph (b) to read as follows:
§ 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
§ 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 § 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
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).
8. Revise § 416.1429 to read as
follows:
■
§ 416.1429 Hearing before an
administrative law judge-general.
If you are dissatisfied with one of the
determinations or decisions listed in
§ 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
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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 § 416.1436(c)(1)(i) through
(iii), and in the limited circumstances
described in § 416.1436(c)(2), we will
schedule you to appear by telephone.
You may submit new evidence (subject
to the provisions of § 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
§ 416.1435, any new evidence that may
have been submitted for consideration.
■ 9. Revise § 416.1436 to read as
follows:
khammond on DSKJM1Z7X2PROD with RULES
§ 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
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15:51 Dec 17, 2019
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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 § 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
PO 00000
Frm 00013
Fmt 4700
Sfmt 4700
69307
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 § 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
§ 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
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Federal Register / Vol. 84, No. 243 / Wednesday, December 18, 2019 / Rules and Regulations
(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.
■ 10. Amend § 416.1438 by revising
paragraphs (b)(3) and (5) and (c) and
adding paragraph (d) to read as follows:
§ 416.1438 Notice of a hearing before an
administrative law judge.
khammond on DSKJM1Z7X2PROD with RULES
*
*
*
*
*
(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
§ 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
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15:51 Dec 17, 2019
Jkt 250001
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.
■ 11. Amend § 416.1450 by revising
paragraphs (a) and (e) to read as follows:
§ 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 § 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 § 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 § 416.1436(c)(4).
Witnesses called by the administrative
law judge will appear in the manner
prescribed in § 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.
*
*
*
*
*
■ 12. Amend § 416.1476 by revising
paragraph (b) to read as follows:
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Fmt 4700
Sfmt 4700
§ 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
§ 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 § 416.1436(c)(4).
[FR Doc. 2019–27172 Filed 12–17–19; 8:45 am]
BILLING CODE 4191–02–P
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[TD 9888]
RIN 1545–BN18
Guidance Under Section 355(e)
Regarding Predecessors, Successors,
and Limitation on Gain Recognition;
Guidance Under Section 355(f)
Internal Revenue Service (IRS),
Treasury.
ACTION: Final regulations and removal of
temporary regulations.
AGENCY:
This document contains final
regulations that provide guidance
regarding the distribution by a
distributing corporation of stock or
securities of a controlled corporation
without the recognition of income, gain,
or loss. In particular, the final
regulations provide guidance in
determining whether a corporation is a
predecessor or successor of a
distributing or controlled corporation
for purposes of the exception under
section 355(e) of the Internal Revenue
Code (Code) to the nonrecognition
treatment afforded qualifying
distributions. In addition, the final
regulations provide certain limitations
on the recognition of gain in certain
cases involving a predecessor of a
distributing corporation. The final
SUMMARY:
E:\FR\FM\18DER1.SGM
18DER1
]]>Agencies
[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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 https://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\
---------------------------------------------------------------------------
\1\ SSAB, Improving the Social Security Administration's Hearing
Process, at 21 (Sep. 2006), available at: https://www.ssab.gov/Portals/0/OUR_WORK/REPORTS/HearingProcess_2006.pdf.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\3\ 20 CFR 404.956, 416.1456.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\4\ 20 CFR 404.938(a), 416.1438(a).
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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
