Setting the Manner of Appearance of Parties and Witnesses at Hearings, 32145-32154 [2023-10564]
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For the Nuclear Regulatory Commission.
Wesley W. Held,
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[FR Doc. 2023–10538 Filed 5–18–23; 8:45 am]
BILLING CODE 7590–01–P
SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404 and 416
[Docket No. SSA–2022–0013]
RIN 0960–AI71
Setting the Manner of Appearance of
Parties and Witnesses at Hearings
Social Security Administration.
Notice of proposed rulemaking.
AGENCY:
ACTION:
We propose to update our
hearing regulations by changing the
terms ‘‘video teleconference’’ to
‘‘video’’; changing ‘‘telephone’’ to
‘‘audio’’; and permitting ‘‘video’’ and
‘‘audio’’ to be used as standard manners
of appearance. These changes would
clarify that claimants may appear for
hearings remotely, using private
electronic devices that we do not own,
operate, or approve. The proposed
changes would also make clear that a
claimant may appear for a hearing using
approved online video conferencing
applications, rather than conferencing
options using equipment that we own or
approve. Additionally, while our
current regulations permit us to
schedule claimants to appear by
telephone in limited circumstances
SUMMARY:
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32145
only, we propose to schedule claimants
to appear by audio without similar
restrictions, if the claimant does not
object to appearing in that manner. We
expect that these changes would
provide us and claimants with
additional flexibility, which would
allow us to manage our hearing process
more efficiently.
DATES: To ensure that your comments
are considered, we must receive them
no later than July 18, 2023.
ADDRESSES: You may submit comments
by any one of three methods—internet,
fax, or mail. Do not submit the same
comments multiple times or by more
than one method. Regardless of which
method you choose, please state that
your comments refer to Docket No.
SSA–2022–0013 so that we may
associate your comments with the
correct regulation.
Caution: You should be careful to
include in your comments only
information that you wish to make
publicly available. We strongly urge you
not to include in your comments any
personal information, such as Social
Security numbers or medical
information.
1. Internet: We strongly recommend
that you submit your comments via the
internet. Please visit the Federal
eRulemaking portal at https://
www.regulations.gov. Use the Search
function to find docket number SSA–
2022–0013. The system will issue a
tracking number to confirm your
submission. You will not be able to
view your comment immediately
because we must post each comment
manually. It may take up to a week for
your comment to be viewable.
2. Fax: Fax comments to 1–833–410–
1631.
3. Mail: Mail your comments to the
Office of Regulations, Social Security
Administration, 3rd Floor (East),
Altmeyer Building, 6401 Security
Boulevard, Baltimore, Maryland 21235–
6401.
Comments are available for public
viewing on the Federal portal at https://
www.regulations.gov or in person,
during regular business hours, by
arranging with the contact person
identified below.
FOR FURTHER INFORMATION CONTACT:
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.ssa.gov.
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Federal Register / Vol. 88, No. 97 / Friday, May 19, 2023 / Proposed Rules
SUPPLEMENTARY INFORMATION:
Background
When we determine whether a
claimant is disabled under title II or title
XVI of the Social Security Act (Act), we
generally follow an administrative
review process that consists of the
following steps: an initial
determination, a reconsideration, a
hearing, which is held by an
administrative law judge (ALJ), and
Appeals Council review.1 After
completing these steps, claimants may
request judicial review of our final
decision by filing a civil action in a
Federal district court.
As is noted above, the third step in
the administrative review process is a
hearing, which is held by an ALJ. Our
current regulations allow us to set the
time and place for a hearing, and allow
us to schedule a claimant to appear in
one of three ways: by video
teleconferencing (VTC), in person, or by
telephone.2 We generally schedule
claimants to appear in person or by
VTC, based on a consideration of several
factors.3 We have traditionally used the
term VTC to refer to an appearance by
video using our equipment or
equipment that we approve. We
schedule claimants to appear by
telephone in certain limited
circumstances only, such as when we
find an appearance by VTC or in person
is not possible, or if other extraordinary
circumstances prevent the claimant
from appearing by VTC or in person.4
Under our current regulations,
claimants can object to appearing by
VTC. To object to appearing by VTC,
claimants must notify us in writing
within 30 days after the date they
receive a notice advising that we may
schedule them to appear by VTC. If they
notify us within that period, and their
1 20
CFR 404.900(a) and 416.1400(a).
CFR 404.929, 404.936, 416.1429, and
416.1436.
3 20 CFR 404.936(c)(1) and 416.1436(c)(1).
4 20 CFR 404.936(c)(2) and 416.1436(c)(2). Our
regulations also explain that if claimants are
incarcerated and VTC is not available, we will
schedule their appearance by telephone, unless we
find that there are facts in the particular case that
provide a good reason to schedule the appearance
in person, if allowed by the place of confinement,
or by VTC or in person upon release. 20 CFR
404.936(c)(3) and 416.1436(c)(3). Our regulations
also permit us, in limited circumstances, to
schedule the claimant’s appearance by telephone to
protect the safety of the public and our employees.
Specifically, we may schedule the claimant to
appear by telephone or VTC if the Hearing Office
Chief Administrative Law Judge determines that the
claimant or another individual poses a reasonable
threat to the safety of our employees or other
participants in the hearing. 20 CFR 404.937(b)(2)
and 416.1437(b)(2). We will also schedule a
claimant to appear by telephone if we have banned
the claimant from any of our facilities. 20 CFR
404.937(c) and 416.1437(c).
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2 20
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residence does not change while the
request for hearing is pending, we
schedule them to appear at a hearing in
person.5 Our current regulations also
allow us to evaluate good cause for late
objections to appearing by VTC.6
In March 2020, we closed our offices
to walk-in traffic, suspended in-person
and VTC appearances, and began
offering claimants an option to appear at
hearings by telephone in response to the
Coronavirus Disease 2019 (COVID–19)
national public health emergency. We
later offered claimants the additional
option to appear by online video.7 Our
use of online video appearances in
response to COVID–19 was the first time
we allowed claimants to appear using:
(1) private electronic devices (rather
than our equipment or agency-approved
equipment); and (2) third-party software
designated by us, rather than the
proprietary software approved for use
on our equipment or agency-approved
equipment.8 Because of the sudden and
unique circumstances of the COVID–19
national public health emergency, we
would not conduct a hearing by
telephone or online video unless the
claimant consented to appear in that
manner.
To obtain consent, we sent claimants
informational notices about telephone
and online video appearances as well as
a written agreement form.9 This
agreement form allows claimants to
indicate whether or not they agree to
appear by telephone or online video.10
As of December 2022, we have
completed over 65,000 hearings by
5 20
CFR 404.936(d) and 416.1436(d).
CFR 404.936(d)(2) and 416.1436(d)(2).
7 We began offering appearances at hearings by
telephone in March 2020 and by online video in
December 2020. Currently, we conduct online video
appearances using a software application called
‘‘Microsoft (MS) Teams.’’ For more information, see
https://www.ssa.gov/appeals/hearing_video.html.
8 While we had already been allowing
representatives to purchase and use agencyapproved video equipment for Representative Video
Hearing Project hearings, it was only in response to
the COVID–19 public health emergency that we first
allowed representatives to use their own equipment
for video hearings, regardless of whether that
equipment was agency-approved. For more
information on the Representative Video Project,
see Chief Judge Bulletin (CJB) 11–04 and https://
www.ssa.gov/appeals/documents/Representative_
Video_Project_RVP-508.pdf.
9 An example of the form is available here:
https://www.ssa.gov/appeals/documents/21-158_
COVID-19_HearingAgreementForm_
RepresentedClaimantandRepresentative.pdf. The
original form from July 2020 provided the
telephone option only. In December 2020, we
updated the form to also include the online video
option.
10 Claimants can make separate selections for
telephone and online video options. For example,
claimants can indicate that they agree to appear by
telephone but not by online video.
6 20
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online video and 900,000 hearings by
telephone.11
In July 2021, we began sending
surveys to claimants who appeared at
hearings by online video, to gauge their
satisfaction with the process. We asked
them to rate four statements regarding
their online video experience on a scale
from 1 to 5, where 1 meant ‘‘strongly
disagree’’ and 5 meant ‘‘strongly agree.’’
The four statements were: (1) the
instructions sent in advance were
helpful; (2) it was easy to connect to my
online video hearing; (3) I was satisfied
with the audio quality of my online
video hearing; and (4) I was satisfied
with the video quality of my online
video hearing. Since August 2021, the
overall satisfaction score has been 4.2 or
higher, and 83 percent or more of
respondents in each month since then
have reported an overall satisfaction rate
of a 4 or 5.12
The changes we implemented starting
in March 2020 were a direct response to
the sudden and unique circumstances of
the COVID–19 national public health
emergency, and for that reason we set
them up as temporary changes. Based
on our positive experience with remote
appearances during the COVID–19
national public health emergency, and
in an effort to incorporate greater
flexibility into our rules, we propose to
make audio and video standard manners
of appearance in our hearing process.
Proposed Changes and Justification
We propose to update our hearing
regulations in the following ways: (1)
replace the term ‘‘video teleconference’’
with ‘‘video’’; (2) replace ‘‘telephone’’
with ‘‘audio’’; and (3) make ‘‘video’’ and
‘‘audio’’ standard manners of
11 See ‘‘Number of Telephone and Online Video
Hearings,’’ in the Manner of Appearance Notice of
Proposed Rulemaking Supporting Data Document,
available at www.regulations.gov as a supporting
document for Docket SSA–2022–0013.
12 July 2021 did not represent a full month of data
and covered only July 16–31. For that partial
month, the overall satisfaction score was 4.2 and
77.7% of people reported an overall satisfaction
score of a 4 or 5. The overall satisfaction scores and
percentage of people who reported an overall
satisfaction score of a 4 or 5 for other months are
as follows: August 2021, 4.3, 83 percent; September
2021, 4.5, 88.2 percent; October 2021, 4.4, 84
percent; November 2021, 4.4, 87 percent; December
2021, 4.5, 89.5 percent; January 2022, 4.4, 85.3
percent; February 2022, 4.4, 85.7 percent; March
2022, 4.4, 85 percent; April 2022, 4.4, 86.7 percent;
May 2022, 4.5, 87.7 percent; June 2022, 4.5, 88.5
percent; July 2022, 4.4, 86.1 percent; August 2022,
4.4, 85.3 percent; and September 2022, 4.3, 83.8
percent. Note: We did not send surveys in February
2022. The data reported for that month represented
surveys we sent in previous months that were
submitted to us in February 2022. See Table 5,
‘‘Claimant Satisfaction Survey Report,’’ in the
Manner of Appearance Notice of Proposed
Rulemaking Supporting Data Document available at
https://www.regulations.gov as a supporting
document for Docket SSA–2022–0013.
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appearance in our hearing process. With
these changes, we could schedule
claimants to appear for hearings using
private electronic devices that we do not
own, operate, or approve and using
third-party software designated by us,
rather than the proprietary software
approved for use on our equipment or
agency-approved equipment.
Additionally, these changes would
allow us to schedule claimants to
appear by audio without the same
limitations that currently restrict our
ability to schedule claimants to appear
by telephone.
These proposed changes would also
affect how we schedule a witness’s
(including a medical or vocational
expert’s) manner of appearance at a
hearing.13 Under our current policy, we
generally direct anyone we call as a
witness to appear by telephone or VTC.
Under the proposed policy, we would
generally direct anyone we call as a
witness to appear by audio or video. As
under our current policy, a witness
called by the claimant would generally
appear in the same manner as the
claimant, unless the witness is unable to
do so.14 If the witness is unable to
appear in the same manner as the
claimant, we would generally direct the
witness to appear by video or audio.15
We also propose to revise our
regulations regarding scheduling the
manner of appearance for individuals
who appear before the Appeals Council
for oral argument. Our current
regulations state that the Appeals
Council will determine whether an
individual will appear by VTC, in
person, or in certain circumstances, by
telephone.16 Similar to the changes we
proposed above, we would change
‘‘video teleconference’’ to ‘‘video’’ and
‘‘telephone’’ to ‘‘audio’’ and allow video
and audio as standard manners of
appearance. These changes would keep
the manners of appearance for oral
arguments before the Appeals Council
aligned with the manners of appearance
for hearings before an ALJ.
Finally, we would add language to 20
CFR 404.944 and 416.1444 to clarify
that an ALJ could stop a hearing
temporarily and continue it at a later
date if the ALJ found that one or more
variables outside of our control, such as
audio quality or video quality,
13 See
20 CFR 404.936(c)(4) and 416.1436(c)(4).
14 See 20 CFR 404.950(e) and 416.1450(e).
15 As examples, if a claimant were scheduled to
appear by video and a witness disagreed with the
third-party terms of service associated with a video
appearance, or if the witness did not have the
resources to appear by video (e.g., internet service
was unavailable), we would consider the witness
unable to appear by video.
16 See 20 CFR 404.976(c) and 416.1476(c).
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materially affected a hearing. This
option would ensure that improperly
functioning technology does not
preclude a claimant from receiving a
full and fair hearing.
We propose these changes because
our experience with almost a million
telephone and online video appearances
during the COVID–19 national public
health emergency has shown us that
additional flexibilities in setting
manners of appearance are appropriate
and could benefit us as well as
claimants.
Because the term ‘‘video
teleconference’’ or ‘‘VTC’’ in our current
regulations has traditionally referred to
hearings where claimants use our video
equipment in a location that we assign,
we propose to replace it with the
broader term ‘‘video,’’ which would also
include appearances by online video as
well as appearances by other video
technologies that may be available now
or become available in the future.17
Similarly, the term ‘‘telephone’’ in our
current regulations does not necessarily
include audio appearances over the
internet using software applications.
The proposed definition of ‘‘audio’’
would include telephone appearances,
appearances over the internet where
video is not used, and appearances by
other similar technologies that may be
available now or become available in
the future.18 Thus, the term ‘‘audio’’ is
broader than ‘‘telephone’’ because it
would include telephone appearances,
audio appearances over the internet
where video is not used, and other
similar technologies as options. For
audio appearances over the internet, we
would call a claimant’s telephone
number.
Lastly, under our current regulations,
we cannot schedule claimants to appear
by telephone except under certain
limited circumstances, such as when we
find an appearance by video
teleconference or in person is not
possible or other extraordinary
circumstances prevent the claimant
from appearing by video teleconference
or in person.19 We propose to schedule
audio appearances (which include
telephone appearances) without those
limitations, if the claimant does not
object to appearing by audio.20
17 Any application used to conduct hearings
would comply with applicable Federal laws,
regulations, and policies. We would provide notice
of any new applications that we add in the future
by publishing a notice, for instance in the Federal
Register or on our website.
18 See footnote 17.
19 See footnote 4.
20 As with our current rules, we would require a
claimant to appear by audio in certain limited
circumstances.
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Advantages of Video or Audio as
Standard Manners of Appearance
Our proposal would benefit claimants
and us in several ways: (1) there would
be more ways to appear at a hearing; (2)
we could balance our hearing workloads
more efficiently among hearing offices;
and (3) we would be prepared for future
emergency events, like the COVID–19
national public health emergency, that
could require us to temporarily suspend
in-person or VTC hearings.
(1) More Ways To Appear at a Hearing
Would Be Available
Before the COVID–19 national public
health emergency, we generally
scheduled claimants to appear by VTC
or in person. In certain limited
circumstances, we would require a
claimant to appear by telephone. Our
proposed regulations would allow us to
schedule a claimant to appear in person,
by video (which would include
traditional VTC as well as online video),
or by audio. Having these additional
flexibilities may make it easier for many
claimants to attend their hearings.
If we scheduled claimants to appear
by audio or video, they could attend the
hearing in their home or at another
convenient location of their choice. If a
claimant objected to appearing by video
and also objected to appearing by audio,
we would schedule that claimant to
appear in person, unless we need to
schedule the claimant to appear by
audio in one of the limited
circumstances discussed below and set
forth in our proposed rule.
(2) We Could Balance Our Hearings
More Efficiently Among Hearing Offices
As is discussed above, before the
COVID–19 national public health
emergency, we generally scheduled
claimants to appear at hearings in
person or by VTC in one of our
facilities, using our equipment. With
these proposed changes, we expect to
schedule proportionally fewer in-person
appearances and more appearances by
audio and video than we did before the
national public health emergency.
Claimants may appear by audio and
video when they are located anywhere
within the United States or its
territories, rather than just when they
are located within a hearing office’s
service area. Therefore, we could
schedule audio and video appearances
with any hearing office in the country.
We expect that this added flexibility,
which would allow us to schedule
hearings for claimants with ALJs outside
of the hearing office’s service area,
would help reduce overall wait and
processing times across the country and
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reduce the wait and processing time
disparities that exist from region to
region and office to office. Specifically,
we could transfer cases where the
claimant does not object to appearing by
video or audio from offices or regions
with larger caseloads to offices or
regions with smaller caseloads, to help
balance our processing times. To
provide some perspective, in fiscal year
2021, under our temporary emergency
procedures that permitted audio and
video appearances, we transferred 16.6
percent of new hearing requests to
different hearing offices, which resulted
in faster dispositions and reduced wait
time for claimants.21 Similarly, in fiscal
year 2022, we transferred 17.0 percent
of new hearing requests to different
hearing offices.22
We also note that, under the proposed
changes, we would not have to secure
a physical space for most audio and
video appearances, which would
simplify the scheduling process. We
currently have a fixed number of
hearing rooms, which we must
coordinate the scheduling of among our
ALJs and claimants. Under this
proposed rule, we would not need to
secure a physical space for many audio
and video appearances because the
claimants would generally appear from
private locations of their choice, and
ALJs would generally conduct hearings
from a private location.
21 In fiscal year 2021, we received 383,650 cases
at the hearing level, and we transferred 63,702 cases
to different offices to help balance workloads. See
Table 1, ‘‘Fiscal Year 2021, Summary of Permanent
Transfer Cases for Workload Assistance’’ and Table
3, ‘‘Fiscal Year 2021, Caseload Analysis Report,’’ in
the Manner of Appearance Notice of Proposed
Rulemaking Supporting Data Document, available
at https://www.regulations.gov as a supporting
document for Docket SSA–2022–0013.
Additionally, our average case processing time
decreased from 506 days in fiscal year 2019, which
was before the COVID–19 national public health
emergency, to 326 days in fiscal year 2021. See
Table 6, ‘‘Average Processing Time,’’ available at
https://www.regulations.gov as a supporting
document for Docket SSA–2022–0013.
22 In fiscal year 2022, we received 349,892 cases
at the hearing level, and we transferred 59,418 cases
to different offices to help balance workloads. See
Table 2, ‘‘Fiscal Year 2022, Summary of Permanent
Transfer Cases for Workload Assistance’’ and Table
4, ‘‘Fiscal Year 2022, Caseload Analysis Report,’’ in
the Manner of Appearance Notice of Proposed
Rulemaking Supporting Data Document, available
at https://www.regulations.gov as a supporting
document for Docket SSA–2022–0013.
Additionally, our average case processing time
decreased from 506 days in fiscal year 2019, which
was before the COVID–19 national public health
emergency, to 333 days in fiscal year 2022. See
Table 6, ‘‘Average Processing Time,’’ available at
https://www.regulations.gov as a supporting
document for Docket SSA–2022–0013.
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(3) We Would Be Prepared for Future
Emergency Events That Could Require
Temporary Suspension of In-Person or
VTC Hearings
The COVID–19 national public health
emergency and our experience with
more localized emergencies, such as
hurricanes, tornadoes, and floods, have
shown that we must be prepared for
unexpected circumstances. This
proposed regulation would allow us to
continue conducting hearings
remotely—by audio or video—if we
need to close any of our facilities to the
public due to an emergency
circumstance. That flexibility would
limit disruptions to our hearing
processes that might otherwise occur.
Objection to Manner of Appearance
Our current regulations allow
claimants to object to appearing by VTC
within 30 days after they receive the
notice that we may schedule them to
appear by VTC (20 CFR 404.936(d) and
416.1436(d)). If they object within that
30-day period, and their residence does
not change while the request for hearing
is pending, we set the hearing for a time
and place at which the claimant may
appear before the ALJ in person.23
As we do in our current VTC policy,
we propose to allow claimants to object
to appearing by audio, video, or both
within 30 days after they receive a
notice from us informing them that we
may schedule them to appear by audio
or video. Though this proposal mirrors
our current VTC policy, it is different
from the temporary process we adopted
during the COVID–19 national public
health emergency. Under that temporary
process, we required that a claimant
consent to appear at a hearing by online
video or telephone. We adopted that
process in response to the unique
exigencies that existed during the
COVID–19 national public health
emergency.
Under this proposal, claimants could
object to appearing at a hearing by
video, audio, or both. If a claimant
objected to appearing by video and also
objected to appearing by audio, we
would schedule that claimant to appear
at a hearing in person. However, in
certain limited circumstances discussed
below, we would mandate an audio
appearance.24
In our notice to claimants, we would
include information about the possible
manners of appearance so claimants
would be able to make informed
23 20
CFR 404.936(d) and 416.1436(d).
proposed 20 CFR 404.936(c)(2) and (3),
404.937, 416.1436(c)(2) and (3), and 416.1437 for
the very limited circumstances when we could
mandate an audio appearance.
24 See
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decisions about whether to object to
appearing by video, audio, or both. We
would also provide information about
objecting to an appearance by video,
audio, or both. For example, we would
inform claimants that there are three
types of ‘‘video’’ appearances: (1)
appearing by online video with nonagency supplied electronic devices and
internet connection, (2) appearing by
online video in a hearing office with
agency-supplied electronic devices and
internet connection, and (3) appearing
by traditional VTC. For the first
appearance type, claimants participate
by video over the internet using a thirdparty application from any private
location they prefer within the United
States or its territories if they have a
compatible device, such as a computer,
tablet, or smartphone, and internet
connection. For the second appearance
type, claimants participate by video
over the internet using a third-party
application from one of our hearing
offices using our devices and internet
connection. For the third appearance
type, claimants participate in a
traditional VTC hearing from a hearing
office, a field office, or an appointed
representative’s office, if a claimant is
represented, using our proprietary
software approved for use on our video
equipment.
We would explain in our notice that
a claimant would have the ability to
object to each of these ways of
appearing by video. Our notice would
also explain what a claimant would
need in order to appear in each manner,
as applicable. For example, our notice
would explain that to appear by online
video, a claimant would need to have
access to: (1) a desktop computer, laptop
computer, tablet, or phone with a
camera, microphone, and speakers; (2) a
secure internet connection; (3) email;
and (4) a quiet, private location.
Importantly, we propose to keep the
current regulatory provisions for
evaluating good cause for late
submission of an objection, though
those provisions would apply to both
audio and video appearances.25 Thus, if,
after the deadline for submitting
objections, a claimant objected to
appearing by video, audio, or both, the
ALJ would evaluate whether good cause
existed for the late objection. Examples
of good cause would include
circumstances where the claimant
disagrees with the terms of service for
a third-party application or lacks the
resources to appear by video.
We considered proposing a
requirement that claimants specifically
25 See proposed 20 CFR 404.936(d)(2) and
416.1436(d)(2).
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ddrumheller on DSK120RN23PROD with PROPOSALS1
consent to appear by video or audio
before we would schedule one of those
manners of appearance. However, our
experience during the COVID–19
national public health emergency
indicates that it would be problematic to
adopt that type of requirement. Under
our temporary COVID–19 business
process, we required claimants to
consent before we would schedule them
to appear by telephone or online video.
To obtain the claimant’s consent, we
contacted them or their appointed
representative by telephone, or we
mailed an informational notice and
agreement form. However, we were
unable to reach or did not receive
completed forms from approximately 30
percent of claimants.26 If a claimant did
not consent to appear by telephone or
online video, we had to delay
scheduling a hearing until our offices
reopened to the public and we resumed
conducting in-person and VTC hearings.
Because we did not know when we
would be able to reopen our offices, we
had to delay scheduling many hearings
for an indefinite period. That
circumstance caused delays in our
hearing process. We expect that when a
future emergency situation arises,
whether nationally or locally, a
requirement for claimant consent would
similarly hinder our ability to ensure
necessary continuity of service.
Moreover, even absent an emergency,
our experience over many years has
been that it is often difficult to receive
timely responses from some claimants
when we ask them to contact us. Under
our proposed rule, which would
provide a set timeframe within which
claimants could opt out of appearing by
video, audio, or both, we anticipate we
would be better able to limit the number
of cases that we need to hold while
waiting for claimants to take action.
Moreover, as we discussed previously,
we would also consider a good cause
exception if a claimant submitted a late
objection to appearing by audio, video,
or both.
When We Would Require Audio
Appearances
Under our current regulations, we
require a claimant to appear at a hearing
by telephone only in certain limited
circumstances. Those circumstances
exist when: (1) we find an appearance
by VTC or in person is not possible; 27
(2) other extraordinary circumstances
prevent the claimant from appearing by
VTC or in person; 28 (3) the claimant is
incarcerated and VTC is not available,
unless we find that facts in the case
provide a good reason to schedule an
appearance in person, if allowed, or by
VTC or in person upon the claimant’s
release; 29 or (4) when we have banned
the claimant from any of our facilities.30
Additionally, under our current
regulations, we may schedule a claimant
to appear by VTC or telephone when the
Hearing Office Chief Administrative
Law Judge (HOCALJ) determines that
the claimant poses a reasonable threat to
the safety of our employees or other
participants in the hearing.31
Historically, we have seldom required a
claimant to appear at a hearing by
telephone. When we do require a
claimant to appear by telephone,
because of the special circumstances
that exist, we do not accept objections
to that manner of appearance. We
propose to keep all these current
regulatory provisions, except that we
would replace the word ‘‘telephone’’
with ‘‘audio,’’ and we would replace
‘‘VTC’’ with video. For audio
appearances over the internet, we would
call a claimant’s telephone number. We
would also specify that when the
HOCALJ determines that a claimant
poses a reasonable threat to the safety of
our employees or other participants in
the hearing, the HOCALJ will require
the claimant to appear by audio.
Table 1: Manners of Appearance
Available
The table below compares the manner
of appearance options that were
available before the COVID–19 national
public health emergency, those that
were available during the COVID–19
national public health emergency, and
what would be available under our
proposed regulations. It also notes
whether a claimant may object to a
manner of appearance or must consent
to a manner of appearance.
Manner of
appearance
Available before the COVID–19
national public health emergency
Available during the COVID–19
national public health emergency
In-person .................
Yes (claimant cannot object) ...............
VTC .........................
Yes (claimant can object) ....................
Online video ............
No .........................................................
Audio (formerly
‘‘telephone’’).
Yes, but only in very limited circumstances. (claimant cannot object
when required).
Postponed from March 2020 through
March 2022, when we began incrementally reopening our hearing offices to the public. (claimant cannot
object).
Postponed from March 2020 through
March 2022, when we began incrementally reopening our hearing offices to the public. (claimant can object).
Available as of December 2020 (claimant must consent before we will
schedule that manner of appearance).
Available as of March 2020 (claimant
must consent before we will schedule that manner of appearance, but
we will require a claimant to appear
by telephone in very limited circumstances).
26 See ‘‘Percentage of Nonresponses,’’ in the
Manner of Appearance Notice of Proposed
Rulemaking Supporting Data Document available at
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www.regulations.gov as a supporting document for
Docket SSA–2022–0013.
27 20 CFR 404.936(c)(2) and 416.1436(c)(2).
28 Id.
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32149
Would be available under our
proposed regulations
Yes (claimant cannot object).
Yes (under video option) (claimant can
object).
Yes (under video option) (claimant can
object).
Yes (claimant can object, unless we
require the claimant to appear by
audio, (called via telephone number)
in very limited circumstances).
29 20
CFR 404.936(c)(3) and 416.1436(c)(3).
CFR 404.937(c) and 416.1437(c).
31 20 CFR 404.937(b)(2) and 416.1437(b)(2).
30 20
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Rulemaking Analyses and Notices
We will consider all comments we
receive on or before the close of
business on the comment closing date
indicated above. The comments will be
available for examination in the
rulemaking docket for these rules at the
above address. We will file comments
received after the comment closing date
in the docket and may consider those
comments to the extent practicable.
However, we will not respond
specifically to untimely comments. We
may publish a final rule at any time
after close of the comment period.
Clarity of This Rule
Executive Order 12866, as
supplemented by Executive Orders
13563 and 14094, requires each agency
to write all rules in plain language. In
addition to your substantive comments
on this proposed rule, we invite your
comments on how to make the rule
easier to understand.
For example:
• Would more, but shorter, sections
be better?
• Are the requirements in the rule
clearly stated?
• Have we organized the material to
suit your needs?
• Could we improve clarity by adding
tables, lists, or diagrams?
• What else could we do to make the
rule easier to understand?
• Does the rule contain technical
language or jargon that is not clear?
• Would a different format make the
rule easier to understand, e.g., grouping
and ordering of sections, use of
headings, paragraphing?
When will we start to use this rule?
We will not use this rule unless we
publish a final rule in the Federal
Register after evaluating the public
comments. All final rules we issue
include an effective date. We will
continue to use our current rules until
that date. If we publish a final rule, we
will include a summary of those
relevant comments we received along
with responses and an explanation of
how we will apply the new rule.
ddrumheller on DSK120RN23PROD with PROPOSALS1
Regulatory Procedures
Executive Order 12866, as
Supplemented by Executive Orders
13563 and 14094
We consulted with the Office of
Management and Budget (OMB) and
determined that this rule does not meet
the criteria for a significant regulatory
action under Executive Order 12866, as
supplemented by Executive Orders
13563 and 14094. Therefore, OMB did
not review it.
VerDate Sep<11>2014
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Jkt 259001
Anticipated Costs/Transfers to Our
Program
The Office of the Chief Actuary
estimates that there will be no
significant changes in allowance rates
for disability cases under the Old-Age,
Survivors, and Disability Insurance
(OASDI) and Federal SSI programs due
to implementation of the proposed
regulation. The primary effects from
implementing this proposed rule would
be small cash flow effects due to
conducting hearings and issuing
decisions more timely. These changes
would therefore be expected to result in
negligible effects on scheduled OASDI
benefit payments and Federal SSI
payments over the period from fiscal
year 2023 through fiscal year 2033.
Anticipated Administrative Cost/
Savings
The Office of Budget, Finance, and
Management estimates net
administrative savings of less than 15
work years and $2 million annually. We
anticipate a small savings for lower
administrative law judge, claimant, and
representative travel costs, offset some
by slightly higher costs for an increase
in forms returned to us by claimants.
Anticipated Qualitative Benefits
We expect that the flexibility
provided by this proposal would benefit
claimants and our agency in several
ways. First, except when claimants
object, we would be able to continue
scheduling claimants to appear at
hearings remotely, by video or audio.
Our experience, as well as that of
claimants, during the COVID–19
national public health emergency
showed that remote appearances are
acceptable and beneficial to our hearing
process. If claimants do not object, and
we schedule them to appear by video or
audio, they may not incur
inconveniences and could save on costs
associated with transportation (e.g., gas,
maintenance of vehicle, bus fare), and
they may save time that they would
otherwise have spent traveling.
Likewise, they may not need to secure
a replacement caregiver if they
supervise family members or others,
such as children, who cannot be left
alone. In addition, if claimants have
difficulty leaving the house because of
limited mobility or other reasons, a
video or audio appearance would allow
them to appear from a private location
of their choice, such as their home.
This proposal would also allow us to
balance our workloads more efficiently
among hearing offices because we could
more easily transfer cases where the
claimant would be scheduled to appear
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Fmt 4702
Sfmt 4702
by video or audio from one hearing
office to another. We expect that this
proposal would help us to reduce
overall wait and processing times across
the country and reduce the disparities
that exist from region to region and
office to office.
Finally, the changes proposed in these
rules would allow us to be prepared for
future emergency events, including
localized events such as hurricanes,
tornadoes, and floods, and national
public health emergencies similar to
COVID–19 that could require us to
temporarily suspend in-person or VTC
hearings.
Executive Order 13132 (Federalism)
We analyzed this proposed rule in
accordance with the principles and
criteria established by Executive Order
13132 and determined that the proposed
rule will not have sufficient federalism
implications to warrant the preparation
of a federalism assessment. We also
determined that this proposed rule will
not preempt any State law or State
regulation or affect the States’ abilities
to discharge traditional State
governmental functions.
Regulatory Flexibility Act
We certify that this proposed rule will
not have a significant economic impact
on a substantial number of small entities
because it affects individuals only.
Therefore, a regulatory flexibility
analysis is not required under the
Regulatory Flexibility Act, as amended.
Paperwork Reduction Act (PRA)
SSA already has existing OMB PRAapproved information collection tools
relating to this proposed rule under
OMB Control No. 0960–0671 which
include: Form HA–504,
Acknowledgement of Receipt (Notice of
Hearing); Form HA–L83,
Acknowledgement of Receipt (Notice of
Hearing) Cover Letter; Form HA–55,
Objection to Appearing by Video
Teleconferencing; Form HA–L2,
Objection to Appearing by Video
Teleconferencing Cover Letter (HA–L2);
and Forms HA–510 and HA–510–OP1,
Waiver of Written Notice of Hearing.
The proposed rules would require
revisions to Form HA–55, Objection to
Appearing by Video Teleconferencing
and the accompanying HA–L2,
Objection to Appearing by Video
Teleconferencing Cover Letter. Due to
the proposed rules, we expect to revise
the HA–L2 to remove the discussion of
the manners of appearance, and we
intend to create a new notice to address
those in accordance with any final rules.
The new notice would briefly explain
audio and video appearances and all the
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Federal Register / Vol. 88, No. 97 / Friday, May 19, 2023 / Proposed Rules
modalities encompassed by audio only
and video hearings. Similarly, we
expect to revise Form HA–55 to provide
the option to object to each of the
modalities encompassed by audio and
video appearances. We will also
Modality of completion
HA–504+ HA–504–OP1 HA–504–
OP2 ..........................................
HA–L83—404.936(e);
416.1436(e) ..............................
HA–L83—Good cause for missing
deadline—404.936(e)(1);
416.1436(e)(1) ..........................
HA–L83—Objection
stating
issues in notice are incorrect—
sent 5 days prior to hearing;
404.939; 416.1439 ...................
HA–L2—Acknowledgement Letter
New
notice
and
HA–55—
404.936; 404.938; 416.1436;
416.1438 ...................................
HA–L2—Verification of New Residence—404.936(c)(1);
416.1436(d)(1) ..........................
New Notice: Notification of objection to telephone, video teleconference, or online video
more than 30-days after receipt
of notice showing good cause;
404.936(c)(2); 416.1436(d)(2) ..
HA–510;
HA–510–OP1—
404.938(a); 416.1438(a) ...........
Totals ....................................
OMB Clearance Package 0960–0671
concurrently with these final rules. The
chart below shows the revised burden
estimates, to be effective when we
finalize the rule:
eliminate the COVID–19 Remote
Hearing Options notice and the
accompanying COVID–19 Remote
Hearing Agreement form.
We will obtain OMB approval for
these new modalities and revisions to
Number of
respondents
Average
burden per
response
(minutes)
Frequency of
response
32151
Average
theoretical
hourly cost
amount
(dollars) *
Total annual
burden
(hours)
Total annual
opportunity
cost
(dollars) **
900,000
1
30
450,000
* $12.81
** $5,764,500
900,000
1
30
450,000
* 12.81
** 5,764,500
5,000
1
5
417
* 12.81
** 5,342
45,000
500,000
1
1
5
5
3,750
41,667
* 12.81
* 12.81
** 48,038
** 533,754
500,000
1
5
41,667
* 12.81
** 533,754
45,000
1
5
3,750
* 12.81
** 48,038
13,500
1
10
2,250
* 12.81
** 28,823
4,000
1
2
133
** 12.81
** 1,704
2,912,500
..........................
..........................
993,634
..........................
** 12,728,453
ddrumheller on DSK120RN23PROD with PROPOSALS1
* We based this figure on the average DI payments based on SSA’s current FY 2022 data (https://www.ssa.gov/legislation/2023factsheet.pdf).
** This figure does not represent actual costs that SSA is imposing on recipients of Social Security payments to complete this application; rather, these are theoretical opportunity costs for the additional time respondents will spend to complete the application. There is no actual charge to
respondents to complete the application.
SSA submitted an Information
Collection Request for clearance to
OMB. We are soliciting comments on
the burden estimates above; the need for
the information; its practical utility;
ways to enhance its quality, utility, and
clarity; and ways to minimize the
burden on respondents, including the
use of automated techniques or other
forms of information technology. If you
would like to submit comments, please
send them to the following locations:
Office of Management and Budget, Attn:
Desk Officer for SSA, Fax Number:
202–395–6974, Email address: OIRA_
Submission@omb.eop.gov
Social Security Administration, OLCA,
Attn: Reports Clearance Director, 3100
West High Rise, 6401 Security Blvd.,
Baltimore, MD 21235, Fax: 410–966–
2830, Email address:
OR.Reports.Clearance@ssa.gov
You can submit comments until July
18, 2023, which is 60 days after the
publication of this document. However,
VerDate Sep<11>2014
16:53 May 18, 2023
Jkt 259001
your comments will be most useful if
you send them to SSA by June 20, 2023,
which is 30 days after publication. To
receive a copy of the OMB clearance
package, contact the SSA Reports
Clearance Officer using any of the above
contact methods. We prefer to receive
comments by email or fax.
List of Subjects
20 CFR Part 404
Administrative practice and
procedure, Aged, Blind, Disability
benefits, Individuals with disabilities,
Social security.
20 CFR Part 416
Administrative practice and
procedure, Aged, Blind, Disability
benefits, Social security, Supplemental
Security Income (SSI).
The Acting Commissioner of Social
Security, Kilolo Kijakazi, Ph.D., M.S.W.,
having reviewed and approved this
document, is delegating the authority to
PO 00000
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Fmt 4702
Sfmt 4702
electronically sign this document to
Faye I. Lipsky, who is the primary
Federal Register Liaison for SSA, for
purposes of publication in the Federal
Register.
Faye I. Lipsky,
Federal Register Liaison, Office of Legislation
and Congressional Affairs, Social Security
Administration.
For the reasons set out in the
preamble, we propose to amend 20 CFR
chapter III, parts 404, subpart J, and 416,
subpart N, 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:
■
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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. In § 404.929, revise the fourth
sentence to read as follows:
■
§ 404.929 Hearing before an administrative
law judge-general.
* * * We will schedule you to appear
by audio, video, or in person as set forth
in § 404.936. * * *
■ 3. In § 404.936, revise paragraphs (b)
through (d) to read as follows:
§ 404.936 Time and place for a hearing
before an administrative law judge.
ddrumheller on DSK120RN23PROD with PROPOSALS1
*
*
*
*
*
(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 audio, video, or in person.
A party to a hearing may only appear
from the geographic areas, noted in this
subsection, in which we hold hearings.
(c) Determining manner of hearing to
schedule. We will schedule you or any
other party to the hearing to appear by
audio, video, or in person.
(1) When we determine your manner
of appearance at the hearing, we
consider the following factors:
(i) Which manner of appearance
would be the most efficient for
conducting the hearing; and
(ii) Any facts in your particular case
that provide a good reason to schedule
your appearance by audio, video, 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
audio when we cannot schedule you to
appear by video and extraordinary
circumstances prevent you from
appearing in person.
(3) If you are incarcerated and a video
appearance is not available, we will
schedule you to appear by audio, unless
we find that there are facts in your
particular case that provide a good
reason to schedule you to appear in
person, if allowed by the place of
confinement, or by video or in person
upon your release.
(4) We will generally direct any
person we call as a witness, other than
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you or any other party to the hearing,
including a medical expert or a
vocational expert, to appear by audio or
by video. 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
or by audio. We will consider directing
witnesses to appear in person only
when:
(i) A witness is unable to appear by
audio or video;
(ii) We determine that an audio or
video appearance 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.
(5) We follow the procedures set forth
in § 404.937 to ensure the safety of the
public and our employees in our
hearing process.
(d) Objecting to appearing by audio,
video, or both. Prior to scheduling your
hearing, we will notify you that we may
schedule you to appear by audio or
video. If you object to appearing by
audio, video, or both, you must notify
us in writing within 30 days after the
date you receive the notice. If you only
object to appearing by audio, we may
schedule you to appear by video.
Similarly, if you only object to
appearing by video, we may schedule
you to appear by audio. If you object to
appearing by both audio and video, 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 audio, if
you object to appearing by both audio
and video and you change your
residence while your request for hearing
is pending, we may determine how you
will appear, including by audio, as
provided in paragraph (c) of this
section. For us to consider your change
of residence when we schedule your
hearing, you must submit evidence
verifying your new residence. For audio
appearances under this subsection, we
will call you or any other party to the
hearing using your or their telephone
number(s).
(2) If you notify us that you object to
appearing by audio, video, or both, 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
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Sfmt 4702
explained in § 404.911. Examples of
good cause include circumstances when
you disagree with the terms of service
for a third-party application or lack the
resources to appear by video.
(3) Notwithstanding any objections
you may have to appearing by audio, we
will schedule you or any other party to
the hearing to appear by audio in the
circumstances provided in paragraphs
(c)(2) and (3) of this section and in
§ 404.937(b)(2)(ii) and (c). For audio
appearances under this subsection, we
will call you or any other party to the
hearing using your or their telephone
number(s).
*
*
*
*
*
■ 4. In § 404.937, revise paragraphs
(b)(2)(ii) and (c), and add paragraph (e)
to read as follows:
§ 404.937 Protecting the safety of the
public and our employees in our hearing
process.
*
*
*
*
*
(b) * * *
(2) * * *
(ii) Require that the hearing be
conducted by audio, notwithstanding
any objection to appearing by audio.
(c) If we have banned a claimant from
any of our facilities, we will provide the
claimant with the opportunity for a
hearing that will be conducted by audio,
notwithstanding any objection to
appearing by audio.
*
*
*
*
*
(e) For audio appearances under this
section, we will call you or any other
party to the hearing using your or their
telephone number(s).
*
*
*
*
*
■ 5. In § 404.944, revise the second
sentence to read as follows:
§ 404.944 Administrative law judge hearing
procedures-general.
* * * At the hearing, the
administrative law judge looks fully into
the issues, questions you and the other
witnesses, and, subject to the provisions
of § 404.935, accepts as evidence any
documents that are material to the
issues; may stop the hearing temporarily
and continue it at a later date if the
administrative law judge finds that there
is material evidence missing at the
hearing or one or more variables outside
of our control, such as audio quality or
video quality, materially affects the
hearing; and may reopen the hearing at
any time before the administrative law
judge mails a notice of the decision in
order to receive new and material
evidence. * * *
■ 6. In § 404.976, revise paragraph (c) to
read as follows:
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§ 404.976
Council.
Procedures before the Appeals
*
*
*
*
*
(c) Oral argument. You may request to
appear before the Appeals Council to
present oral argument in support of your
request for review. 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. The Appeals Council will
determine whether your appearance
will be by audio, video, or in person, as
set forth in § 404.936. The Appeals
Council will determine whether any
other person relevant to the proceeding
will appear by audio, video, or in
person as set forth 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. In § 416.1429, revise the fourth
sentence to read as follows:
■
§ 416.1429 Hearing before an
administrative law judge-general.
* * * We will schedule you to appear
by audio, video, or in person as set forth
in § 416.1436. * * *
■ 9. In § 416.1436, revise paragraphs (b)
through (d) to read as follows:
§ 416.1436 Time and place for a hearing
before an administrative law judge.
ddrumheller on DSK120RN23PROD with PROPOSALS1
*
*
*
*
*
(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 audio, video, or in person.
A party to a hearing may only appear
from the geographic areas, noted in this
subsection, in which we hold hearings.
(c) Determining manner of hearing to
schedule. We will schedule you or any
VerDate Sep<11>2014
16:53 May 18, 2023
Jkt 259001
other party to the hearing to appear by
audio, video, or in person.
(1) When we determine your manner
of appearance at the hearing, we
consider the following factors:
(i) Which manner of appearance
would be the most efficient for
conducting the hearing; and
(ii) Any facts in your particular case
that provide a good reason to schedule
your appearance by audio, video, 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
audio when we cannot schedule you to
appear by video and extraordinary
circumstances prevent you from
appearing in person.
(3) If you are incarcerated and a video
appearance is not available, we will
schedule you to appear by audio, unless
we find that there are facts in your
particular case that provide a good
reason to schedule you to appear in
person, if allowed by the place of
confinement, or by video 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 audio or
by video. 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
or by audio. We will consider directing
witnesses to appear in person only
when:
(i) A witness is unable to appear by
audio or video;
(ii) We determine that an audio or
video appearance 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.
(5) We follow the procedures set forth
in § 416.1437 to ensure the safety of the
public and our employees in our
hearing process.
(d) Objecting to appearing by audio,
video, or both. Prior to scheduling your
hearing, we will notify you that we may
schedule you to appear by audio or
video. If you object to appearing by
audio, video, or both, you must notify
us in writing within 30 days after the
date you receive the notice. If you only
object to appearing by audio, we may
schedule you to appear by video.
Similarly, if you only object to
appearing by video, we may schedule
you to appear by audio. If you object to
appearing by both audio and video, and
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Frm 00010
Fmt 4702
Sfmt 4702
32153
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 audio, if
you object to appearing by both audio
and video and you change your
residence while your request for hearing
is pending, we may determine how you
will appear, including by audio, as
provided in paragraph (c) of this
section. For us to consider your change
of residence when we schedule your
hearing, you must submit evidence
verifying your new residence. For audio
appearances under this subsection, we
will call you or any other party to the
hearing using your or their telephone
number(s).
(2) If you notify us that you object to
appearing by audio, video, or both, 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. Examples of
good cause include circumstances when
you disagree with the terms of service
for a third-party application or lack the
resources to appear by video.
(3) Notwithstanding any objections
you may have to appearing by audio, we
will schedule you or any other party to
the hearing to appear by audio in the
circumstances provided in paragraphs
(c)(2) and (3) of this section and in
§ 416.1437(b)(2)(ii) and (c). For audio
appearances under this subsection, we
will call you or any other party to the
hearing using your or their telephone
number(s).
*
*
*
*
*
■ 10. In § 416.1437, revise paragraphs
(b)(2)(ii) and (c), and add paragraph (e)
to read as follows:
§ 416.1437 Protecting the safety of the
public and our employees in our hearing
process.
*
*
*
*
*
(b) * * *
(2) * * *
(ii) Require that the hearing be
conducted by audio, notwithstanding
any objection to appearing by audio.
(c) If we have banned a claimant from
any of our facilities, we will provide the
claimant with the opportunity for a
hearing that will be conducted by audio,
notwithstanding any objection to
appearing by audio.
*
*
*
*
*
(e) For audio appearances under this
section, we will call you or any other
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Federal Register / Vol. 88, No. 97 / Friday, May 19, 2023 / Proposed Rules
party to the hearing using your or their
telephone number(s).
■ 11. In § 416.1444, revise the second
sentence of to read as follows:
* * * At the hearing, the
administrative law judge looks fully into
the issues, questions you and the other
witnesses, and, subject to the provisions
of § 416.1435, accepts as evidence any
documents that are material to the
issues; may stop the hearing temporarily
and continue it at a later date if the
administrative law judge finds that there
is material evidence missing at the
hearing or one or more variables outside
of our control, such as audio quality or
video quality, materially affects the
hearing; and may reopen the hearing at
any time before the administrative law
judge mails a notice of the decision in
order to receive new and material
evidence. * * *
■ 12. In § 416.1476, revise paragraph (c)
to read as follows:
Procedures before the Appeals
*
*
*
*
*
(c) Oral argument. You may request to
appear before the Appeals Council to
present oral argument in support of your
request for review. 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. The Appeals Council will
determine whether your appearance
will be by audio, video, or in person as
set forth in § 416.1436. The Appeals
Council will determine whether any
other person relevant to the proceeding
will appear by audio, video, or in
person as set forth in § 416.1436(c)(4).
[FR Doc. 2023–10564 Filed 5–18–23; 8:45 am]
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BILLING CODE 4191–02–P
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29 CFR Part 1603
RIN 3046–AB09
§ 416.1444 Administrative law judge
hearing procedures-general.
§ 416.1476
Council.
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
Procedures for Previously Exempt
State and Local Government Employee
Complaints of Employment
Discrimination Under Section 304 of
the Government Employee Rights Act
of 1991
Equal Employment
Opportunity Commission.
ACTION: Notice of proposed rulemaking.
AGENCY:
The Equal Employment
Opportunity Commission (EEOC or
Commission) is proposing to amend its
existing regulations by which state and
local government employees who were
previously exempt from coverage under
Title VII of the Civil Rights Act of 1964
may bring claims of employment
discrimination pursuant to the
Government Employee Rights Act of
1991. The EEOC proposes to amend the
regulations to explicitly provide for
digital transmission of documents, to
update the regulation based upon the
text of other regulations or statutes, and
to make a number of editorial revisions
to improve clarity and correct errors.
DATES: Comments on the notice of
proposed rulemaking must be received
on or before July 18, 2023.
ADDRESSES: You may submit comments,
identified by RIN Number 3046–AB09,
by any of the following methods—
please use only one method:
• Federal eRulemaking Portal:
https://www.regulations.gov. Follow the
instructions on the website for
submitting comments.
• Fax: Comments totaling six or fewer
pages may be sent by fax machine to
(202) 663–4114. Receipt of fax
transmittals will not be acknowledged,
except that the sender may request
confirmation of receipt by calling the
Executive Secretariat staff at (202) 921–
2815 (voice), (800) 669–6820 (TTY), or
(844) 234–5122 (ASL Video Phone).
• Mail: Comments may be submitted
by mail to Raymond Windmiller,
Executive Officer, Executive Secretariat,
Equal Employment Opportunity
Commission, 131 M Street NE,
Washington, DC 20507.
• Hand Delivery/Courier: Raymond
Windmiller, Executive Officer,
Executive Secretariat, U.S. Equal
Employment Opportunity Commission,
131 M Street NE, Washington, DC
20507.
Instructions: The Commission invites
comments from all interested parties.
SUMMARY:
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All comment submissions must include
the Regulatory Information Number
(RIN) for this rulemaking. All comments
received will be posted without change
to https://www.regulations.gov, including
any personal information you provide.
Docket: For access to comments
received, go to https://
www.regulations.gov. Copies of the
received comments also will be
available for review at the Commission’s
library, 131 M Street NE, Suite
4NW08R, Washington, DC 20507,
between the hours of 9:30 a.m. and 5
p.m., from July 18, 2023 until the
Commission publishes the rule in final
form. You must make an appointment
with library staff to review the
comments in the Commission’s library.
FOR FURTHER INFORMATION CONTACT:
Kathleen Oram, Assistant Legal
Counsel, at (202) 921–2665 or
kathleen.oram@eeoc.gov, or Erin Norris,
Senior Attorney, Office of Legal
Counsel, at (980) 296–1286 or
erin.norris@eeoc.gov. Requests for this
notice in an alternative format should be
made to the Office of Communications
and Legislative Affairs at (202) 921–
3191 (voice), (800) 669–6820 (TTY), or
(844) 234–5122 (ASL Video Phone).
Title III of
the Civil Rights Act of 1991, entitled the
Government Employee Rights Act of
1991 (GERA), extends protections
against employment discrimination
based on race, color, religion, sex,
national origin, age and disability to
previously exempt state and local
government employees. 42 U.S.C.
2000e–16c. In addition to providing
these protections against discrimination,
section 304 of GERA empowered the
Equal Employment Opportunity
Commission to address complaints filed
by GERA-covered employees. GERA
afforded previously exempt individuals
new equal employment opportunity
protections, and it introduced an
administrative enforcement mechanism
that was different from EEOC’s preexisting charge resolution procedures.
Consequently, EEOC created procedures
in 29 CFR part 1603 for handling
complaints brought by individuals
covered by GERA. The interim rule
setting out these procedures was
published at 62 FR 17542 (April 10,
1997) and the final rule was published
at 64 FR 28743 (May 27, 1999). Pursuant
to its authority under 42 U.S.C. 2000e–
12 to ‘‘amend . . . suitable procedural
regulations to carry out the provisions of
this subchapter,’’ the EEOC now
proposes to revise those regulations as
described in this document.
SUPPLEMENTARY INFORMATION:
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]]>Agencies
[Federal Register Volume 88, Number 97 (Friday, May 19, 2023)]
[Proposed Rules]
[Pages 32145-32154]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10564]
=======================================================================
-----------------------------------------------------------------------
SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404 and 416
[Docket No. SSA-2022-0013]
RIN 0960-AI71
Setting the Manner of Appearance of Parties and Witnesses at
Hearings
AGENCY: Social Security Administration.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: We propose to update our hearing regulations by changing the
terms ``video teleconference'' to ``video''; changing ``telephone'' to
``audio''; and permitting ``video'' and ``audio'' to be used as
standard manners of appearance. These changes would clarify that
claimants may appear for hearings remotely, using private electronic
devices that we do not own, operate, or approve. The proposed changes
would also make clear that a claimant may appear for a hearing using
approved online video conferencing applications, rather than
conferencing options using equipment that we own or approve.
Additionally, while our current regulations permit us to schedule
claimants to appear by telephone in limited circumstances only, we
propose to schedule claimants to appear by audio without similar
restrictions, if the claimant does not object to appearing in that
manner. We expect that these changes would provide us and claimants
with additional flexibility, which would allow us to manage our hearing
process more efficiently.
DATES: To ensure that your comments are considered, we must receive
them no later than July 18, 2023.
ADDRESSES: You may submit comments by any one of three methods--
internet, fax, or mail. Do not submit the same comments multiple times
or by more than one method. Regardless of which method you choose,
please state that your comments refer to Docket No. SSA-2022-0013 so
that we may associate your comments with the correct regulation.
Caution: You should be careful to include in your comments only
information that you wish to make publicly available. We strongly urge
you not to include in your comments any personal information, such as
Social Security numbers or medical information.
1. Internet: We strongly recommend that you submit your comments
via the internet. Please visit the Federal eRulemaking portal at
https://www.regulations.gov. Use the Search function to find docket
number SSA-2022-0013. The system will issue a tracking number to
confirm your submission. You will not be able to view your comment
immediately because we must post each comment manually. It may take up
to a week for your comment to be viewable.
2. Fax: Fax comments to 1-833-410-1631.
3. Mail: Mail your comments to the Office of Regulations, Social
Security Administration, 3rd Floor (East), Altmeyer Building, 6401
Security Boulevard, Baltimore, Maryland 21235-6401.
Comments are available for public viewing on the Federal portal at
https://www.regulations.gov or in person, during regular business
hours, by arranging with the contact person identified below.
FOR FURTHER INFORMATION CONTACT: 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.ssa.gov.
[[Page 32146]]
SUPPLEMENTARY INFORMATION:
Background
When we determine whether a claimant is disabled under title II or
title XVI of the Social Security Act (Act), we generally follow an
administrative review process that consists of the following steps: an
initial determination, a reconsideration, a hearing, which is held by
an administrative law judge (ALJ), and Appeals Council review.\1\ After
completing these steps, claimants may request judicial review of our
final decision by filing a civil action in a Federal district court.
---------------------------------------------------------------------------
\1\ 20 CFR 404.900(a) and 416.1400(a).
---------------------------------------------------------------------------
As is noted above, the third step in the administrative review
process is a hearing, which is held by an ALJ. Our current regulations
allow us to set the time and place for a hearing, and allow us to
schedule a claimant to appear in one of three ways: by video
teleconferencing (VTC), in person, or by telephone.\2\ We generally
schedule claimants to appear in person or by VTC, based on a
consideration of several factors.\3\ We have traditionally used the
term VTC to refer to an appearance by video using our equipment or
equipment that we approve. We schedule claimants to appear by telephone
in certain limited circumstances only, such as when we find an
appearance by VTC or in person is not possible, or if other
extraordinary circumstances prevent the claimant from appearing by VTC
or in person.\4\
---------------------------------------------------------------------------
\2\ 20 CFR 404.929, 404.936, 416.1429, and 416.1436.
\3\ 20 CFR 404.936(c)(1) and 416.1436(c)(1).
\4\ 20 CFR 404.936(c)(2) and 416.1436(c)(2). Our regulations
also explain that if claimants are incarcerated and VTC is not
available, we will schedule their appearance by telephone, unless we
find that there are facts in the particular case that provide a good
reason to schedule the appearance in person, if allowed by the place
of confinement, or by VTC or in person upon release. 20 CFR
404.936(c)(3) and 416.1436(c)(3). Our regulations also permit us, in
limited circumstances, to schedule the claimant's appearance by
telephone to protect the safety of the public and our employees.
Specifically, we may schedule the claimant to appear by telephone or
VTC if the Hearing Office Chief Administrative Law Judge determines
that the claimant or another individual poses a reasonable threat to
the safety of our employees or other participants in the hearing. 20
CFR 404.937(b)(2) and 416.1437(b)(2). We will also schedule a
claimant to appear by telephone if we have banned the claimant from
any of our facilities. 20 CFR 404.937(c) and 416.1437(c).
---------------------------------------------------------------------------
Under our current regulations, claimants can object to appearing by
VTC. To object to appearing by VTC, claimants must notify us in writing
within 30 days after the date they receive a notice advising that we
may schedule them to appear by VTC. If they notify us within that
period, and their residence does not change while the request for
hearing is pending, we schedule them to appear at a hearing in
person.\5\ Our current regulations also allow us to evaluate good cause
for late objections to appearing by VTC.\6\
---------------------------------------------------------------------------
\5\ 20 CFR 404.936(d) and 416.1436(d).
\6\ 20 CFR 404.936(d)(2) and 416.1436(d)(2).
---------------------------------------------------------------------------
In March 2020, we closed our offices to walk-in traffic, suspended
in-person and VTC appearances, and began offering claimants an option
to appear at hearings by telephone in response to the Coronavirus
Disease 2019 (COVID-19) national public health emergency. We later
offered claimants the additional option to appear by online video.\7\
Our use of online video appearances in response to COVID-19 was the
first time we allowed claimants to appear using: (1) private electronic
devices (rather than our equipment or agency-approved equipment); and
(2) third-party software designated by us, rather than the proprietary
software approved for use on our equipment or agency-approved
equipment.\8\ Because of the sudden and unique circumstances of the
COVID-19 national public health emergency, we would not conduct a
hearing by telephone or online video unless the claimant consented to
appear in that manner.
---------------------------------------------------------------------------
\7\ We began offering appearances at hearings by telephone in
March 2020 and by online video in December 2020. Currently, we
conduct online video appearances using a software application called
``Microsoft (MS) Teams.'' For more information, see https://www.ssa.gov/appeals/hearing_video.html.
\8\ While we had already been allowing representatives to
purchase and use agency-approved video equipment for Representative
Video Hearing Project hearings, it was only in response to the
COVID-19 public health emergency that we first allowed
representatives to use their own equipment for video hearings,
regardless of whether that equipment was agency-approved. For more
information on the Representative Video Project, see Chief Judge
Bulletin (CJB) 11-04 and https://www.ssa.gov/appeals/documents/Representative_Video_Project_RVP-508.pdf.
---------------------------------------------------------------------------
To obtain consent, we sent claimants informational notices about
telephone and online video appearances as well as a written agreement
form.\9\ This agreement form allows claimants to indicate whether or
not they agree to appear by telephone or online video.\10\ As of
December 2022, we have completed over 65,000 hearings by online video
and 900,000 hearings by telephone.\11\
---------------------------------------------------------------------------
\9\ An example of the form is available here: https://www.ssa.gov/appeals/documents/21-158_COVID-19_HearingAgreementForm_RepresentedClaimantandRepresentative.pdf.
The original form from July 2020 provided the telephone option only.
In December 2020, we updated the form to also include the online
video option.
\10\ Claimants can make separate selections for telephone and
online video options. For example, claimants can indicate that they
agree to appear by telephone but not by online video.
\11\ See ``Number of Telephone and Online Video Hearings,'' in
the Manner of Appearance Notice of Proposed Rulemaking Supporting
Data Document, available at www.regulations.gov as a supporting
document for Docket SSA-2022-0013.
---------------------------------------------------------------------------
In July 2021, we began sending surveys to claimants who appeared at
hearings by online video, to gauge their satisfaction with the process.
We asked them to rate four statements regarding their online video
experience on a scale from 1 to 5, where 1 meant ``strongly disagree''
and 5 meant ``strongly agree.'' The four statements were: (1) the
instructions sent in advance were helpful; (2) it was easy to connect
to my online video hearing; (3) I was satisfied with the audio quality
of my online video hearing; and (4) I was satisfied with the video
quality of my online video hearing. Since August 2021, the overall
satisfaction score has been 4.2 or higher, and 83 percent or more of
respondents in each month since then have reported an overall
satisfaction rate of a 4 or 5.\12\
---------------------------------------------------------------------------
\12\ July 2021 did not represent a full month of data and
covered only July 16-31. For that partial month, the overall
satisfaction score was 4.2 and 77.7% of people reported an overall
satisfaction score of a 4 or 5. The overall satisfaction scores and
percentage of people who reported an overall satisfaction score of a
4 or 5 for other months are as follows: August 2021, 4.3, 83
percent; September 2021, 4.5, 88.2 percent; October 2021, 4.4, 84
percent; November 2021, 4.4, 87 percent; December 2021, 4.5, 89.5
percent; January 2022, 4.4, 85.3 percent; February 2022, 4.4, 85.7
percent; March 2022, 4.4, 85 percent; April 2022, 4.4, 86.7 percent;
May 2022, 4.5, 87.7 percent; June 2022, 4.5, 88.5 percent; July
2022, 4.4, 86.1 percent; August 2022, 4.4, 85.3 percent; and
September 2022, 4.3, 83.8 percent. Note: We did not send surveys in
February 2022. The data reported for that month represented surveys
we sent in previous months that were submitted to us in February
2022. See Table 5, ``Claimant Satisfaction Survey Report,'' in the
Manner of Appearance Notice of Proposed Rulemaking Supporting Data
Document available at https://www.regulations.gov as a supporting
document for Docket SSA-2022-0013.
---------------------------------------------------------------------------
The changes we implemented starting in March 2020 were a direct
response to the sudden and unique circumstances of the COVID-19
national public health emergency, and for that reason we set them up as
temporary changes. Based on our positive experience with remote
appearances during the COVID-19 national public health emergency, and
in an effort to incorporate greater flexibility into our rules, we
propose to make audio and video standard manners of appearance in our
hearing process.
Proposed Changes and Justification
We propose to update our hearing regulations in the following ways:
(1) replace the term ``video teleconference'' with ``video''; (2)
replace ``telephone'' with ``audio''; and (3) make ``video'' and
``audio'' standard manners of
[[Page 32147]]
appearance in our hearing process. With these changes, we could
schedule claimants to appear for hearings using private electronic
devices that we do not own, operate, or approve and using third-party
software designated by us, rather than the proprietary software
approved for use on our equipment or agency-approved equipment.
Additionally, these changes would allow us to schedule claimants to
appear by audio without the same limitations that currently restrict
our ability to schedule claimants to appear by telephone.
These proposed changes would also affect how we schedule a
witness's (including a medical or vocational expert's) manner of
appearance at a hearing.\13\ Under our current policy, we generally
direct anyone we call as a witness to appear by telephone or VTC. Under
the proposed policy, we would generally direct anyone we call as a
witness to appear by audio or video. As under our current policy, a
witness called by the claimant would generally appear in the same
manner as the claimant, unless the witness is unable to do so.\14\ If
the witness is unable to appear in the same manner as the claimant, we
would generally direct the witness to appear by video or audio.\15\
---------------------------------------------------------------------------
\13\ See 20 CFR 404.936(c)(4) and 416.1436(c)(4).
\14\ See 20 CFR 404.950(e) and 416.1450(e).
\15\ As examples, if a claimant were scheduled to appear by
video and a witness disagreed with the third-party terms of service
associated with a video appearance, or if the witness did not have
the resources to appear by video (e.g., internet service was
unavailable), we would consider the witness unable to appear by
video.
---------------------------------------------------------------------------
We also propose to revise our regulations regarding scheduling the
manner of appearance for individuals who appear before the Appeals
Council for oral argument. Our current regulations state that the
Appeals Council will determine whether an individual will appear by
VTC, in person, or in certain circumstances, by telephone.\16\ Similar
to the changes we proposed above, we would change ``video
teleconference'' to ``video'' and ``telephone'' to ``audio'' and allow
video and audio as standard manners of appearance. These changes would
keep the manners of appearance for oral arguments before the Appeals
Council aligned with the manners of appearance for hearings before an
ALJ.
---------------------------------------------------------------------------
\16\ See 20 CFR 404.976(c) and 416.1476(c).
---------------------------------------------------------------------------
Finally, we would add language to 20 CFR 404.944 and 416.1444 to
clarify that an ALJ could stop a hearing temporarily and continue it at
a later date if the ALJ found that one or more variables outside of our
control, such as audio quality or video quality, materially affected a
hearing. This option would ensure that improperly functioning
technology does not preclude a claimant from receiving a full and fair
hearing.
We propose these changes because our experience with almost a
million telephone and online video appearances during the COVID-19
national public health emergency has shown us that additional
flexibilities in setting manners of appearance are appropriate and
could benefit us as well as claimants.
Because the term ``video teleconference'' or ``VTC'' in our current
regulations has traditionally referred to hearings where claimants use
our video equipment in a location that we assign, we propose to replace
it with the broader term ``video,'' which would also include
appearances by online video as well as appearances by other video
technologies that may be available now or become available in the
future.\17\
---------------------------------------------------------------------------
\17\ Any application used to conduct hearings would comply with
applicable Federal laws, regulations, and policies. We would provide
notice of any new applications that we add in the future by
publishing a notice, for instance in the Federal Register or on our
website.
---------------------------------------------------------------------------
Similarly, the term ``telephone'' in our current regulations does
not necessarily include audio appearances over the internet using
software applications. The proposed definition of ``audio'' would
include telephone appearances, appearances over the internet where
video is not used, and appearances by other similar technologies that
may be available now or become available in the future.\18\ Thus, the
term ``audio'' is broader than ``telephone'' because it would include
telephone appearances, audio appearances over the internet where video
is not used, and other similar technologies as options. For audio
appearances over the internet, we would call a claimant's telephone
number.
---------------------------------------------------------------------------
\18\ See footnote 17.
---------------------------------------------------------------------------
Lastly, under our current regulations, we cannot schedule claimants
to appear by telephone except under certain limited circumstances, such
as when we find an appearance by video teleconference or in person is
not possible or other extraordinary circumstances prevent the claimant
from appearing by video teleconference or in person.\19\ We propose to
schedule audio appearances (which include telephone appearances)
without those limitations, if the claimant does not object to appearing
by audio.\20\
---------------------------------------------------------------------------
\19\ See footnote 4.
\20\ As with our current rules, we would require a claimant to
appear by audio in certain limited circumstances.
---------------------------------------------------------------------------
Advantages of Video or Audio as Standard Manners of Appearance
Our proposal would benefit claimants and us in several ways: (1)
there would be more ways to appear at a hearing; (2) we could balance
our hearing workloads more efficiently among hearing offices; and (3)
we would be prepared for future emergency events, like the COVID-19
national public health emergency, that could require us to temporarily
suspend in-person or VTC hearings.
(1) More Ways To Appear at a Hearing Would Be Available
Before the COVID-19 national public health emergency, we generally
scheduled claimants to appear by VTC or in person. In certain limited
circumstances, we would require a claimant to appear by telephone. Our
proposed regulations would allow us to schedule a claimant to appear in
person, by video (which would include traditional VTC as well as online
video), or by audio. Having these additional flexibilities may make it
easier for many claimants to attend their hearings.
If we scheduled claimants to appear by audio or video, they could
attend the hearing in their home or at another convenient location of
their choice. If a claimant objected to appearing by video and also
objected to appearing by audio, we would schedule that claimant to
appear in person, unless we need to schedule the claimant to appear by
audio in one of the limited circumstances discussed below and set forth
in our proposed rule.
(2) We Could Balance Our Hearings More Efficiently Among Hearing
Offices
As is discussed above, before the COVID-19 national public health
emergency, we generally scheduled claimants to appear at hearings in
person or by VTC in one of our facilities, using our equipment. With
these proposed changes, we expect to schedule proportionally fewer in-
person appearances and more appearances by audio and video than we did
before the national public health emergency.
Claimants may appear by audio and video when they are located
anywhere within the United States or its territories, rather than just
when they are located within a hearing office's service area.
Therefore, we could schedule audio and video appearances with any
hearing office in the country. We expect that this added flexibility,
which would allow us to schedule hearings for claimants with ALJs
outside of the hearing office's service area, would help reduce overall
wait and processing times across the country and
[[Page 32148]]
reduce the wait and processing time disparities that exist from region
to region and office to office. Specifically, we could transfer cases
where the claimant does not object to appearing by video or audio from
offices or regions with larger caseloads to offices or regions with
smaller caseloads, to help balance our processing times. To provide
some perspective, in fiscal year 2021, under our temporary emergency
procedures that permitted audio and video appearances, we transferred
16.6 percent of new hearing requests to different hearing offices,
which resulted in faster dispositions and reduced wait time for
claimants.\21\ Similarly, in fiscal year 2022, we transferred 17.0
percent of new hearing requests to different hearing offices.\22\
---------------------------------------------------------------------------
\21\ In fiscal year 2021, we received 383,650 cases at the
hearing level, and we transferred 63,702 cases to different offices
to help balance workloads. See Table 1, ``Fiscal Year 2021, Summary
of Permanent Transfer Cases for Workload Assistance'' and Table 3,
``Fiscal Year 2021, Caseload Analysis Report,'' in the Manner of
Appearance Notice of Proposed Rulemaking Supporting Data Document,
available at https://www.regulations.gov as a supporting document
for Docket SSA-2022-0013. Additionally, our average case processing
time decreased from 506 days in fiscal year 2019, which was before
the COVID-19 national public health emergency, to 326 days in fiscal
year 2021. See Table 6, ``Average Processing Time,'' available at
https://www.regulations.gov as a supporting document for Docket SSA-
2022-0013.
\22\ In fiscal year 2022, we received 349,892 cases at the
hearing level, and we transferred 59,418 cases to different offices
to help balance workloads. See Table 2, ``Fiscal Year 2022, Summary
of Permanent Transfer Cases for Workload Assistance'' and Table 4,
``Fiscal Year 2022, Caseload Analysis Report,'' in the Manner of
Appearance Notice of Proposed Rulemaking Supporting Data Document,
available at https://www.regulations.gov as a supporting document
for Docket SSA-2022-0013. Additionally, our average case processing
time decreased from 506 days in fiscal year 2019, which was before
the COVID-19 national public health emergency, to 333 days in fiscal
year 2022. See Table 6, ``Average Processing Time,'' available at
https://www.regulations.gov as a supporting document for Docket SSA-
2022-0013.
---------------------------------------------------------------------------
We also note that, under the proposed changes, we would not have to
secure a physical space for most audio and video appearances, which
would simplify the scheduling process. We currently have a fixed number
of hearing rooms, which we must coordinate the scheduling of among our
ALJs and claimants. Under this proposed rule, we would not need to
secure a physical space for many audio and video appearances because
the claimants would generally appear from private locations of their
choice, and ALJs would generally conduct hearings from a private
location.
(3) We Would Be Prepared for Future Emergency Events That Could Require
Temporary Suspension of In-Person or VTC Hearings
The COVID-19 national public health emergency and our experience
with more localized emergencies, such as hurricanes, tornadoes, and
floods, have shown that we must be prepared for unexpected
circumstances. This proposed regulation would allow us to continue
conducting hearings remotely--by audio or video--if we need to close
any of our facilities to the public due to an emergency circumstance.
That flexibility would limit disruptions to our hearing processes that
might otherwise occur.
Objection to Manner of Appearance
Our current regulations allow claimants to object to appearing by
VTC within 30 days after they receive the notice that we may schedule
them to appear by VTC (20 CFR 404.936(d) and 416.1436(d)). If they
object within that 30-day period, and their residence does not change
while the request for hearing is pending, we set the hearing for a time
and place at which the claimant may appear before the ALJ in
person.\23\
---------------------------------------------------------------------------
\23\ 20 CFR 404.936(d) and 416.1436(d).
---------------------------------------------------------------------------
As we do in our current VTC policy, we propose to allow claimants
to object to appearing by audio, video, or both within 30 days after
they receive a notice from us informing them that we may schedule them
to appear by audio or video. Though this proposal mirrors our current
VTC policy, it is different from the temporary process we adopted
during the COVID-19 national public health emergency. Under that
temporary process, we required that a claimant consent to appear at a
hearing by online video or telephone. We adopted that process in
response to the unique exigencies that existed during the COVID-19
national public health emergency.
Under this proposal, claimants could object to appearing at a
hearing by video, audio, or both. If a claimant objected to appearing
by video and also objected to appearing by audio, we would schedule
that claimant to appear at a hearing in person. However, in certain
limited circumstances discussed below, we would mandate an audio
appearance.\24\
---------------------------------------------------------------------------
\24\ See proposed 20 CFR 404.936(c)(2) and (3), 404.937,
416.1436(c)(2) and (3), and 416.1437 for the very limited
circumstances when we could mandate an audio appearance.
---------------------------------------------------------------------------
In our notice to claimants, we would include information about the
possible manners of appearance so claimants would be able to make
informed decisions about whether to object to appearing by video,
audio, or both. We would also provide information about objecting to an
appearance by video, audio, or both. For example, we would inform
claimants that there are three types of ``video'' appearances: (1)
appearing by online video with non-agency supplied electronic devices
and internet connection, (2) appearing by online video in a hearing
office with agency-supplied electronic devices and internet connection,
and (3) appearing by traditional VTC. For the first appearance type,
claimants participate by video over the internet using a third-party
application from any private location they prefer within the United
States or its territories if they have a compatible device, such as a
computer, tablet, or smartphone, and internet connection. For the
second appearance type, claimants participate by video over the
internet using a third-party application from one of our hearing
offices using our devices and internet connection. For the third
appearance type, claimants participate in a traditional VTC hearing
from a hearing office, a field office, or an appointed representative's
office, if a claimant is represented, using our proprietary software
approved for use on our video equipment.
We would explain in our notice that a claimant would have the
ability to object to each of these ways of appearing by video. Our
notice would also explain what a claimant would need in order to appear
in each manner, as applicable. For example, our notice would explain
that to appear by online video, a claimant would need to have access
to: (1) a desktop computer, laptop computer, tablet, or phone with a
camera, microphone, and speakers; (2) a secure internet connection; (3)
email; and (4) a quiet, private location.
Importantly, we propose to keep the current regulatory provisions
for evaluating good cause for late submission of an objection, though
those provisions would apply to both audio and video appearances.\25\
Thus, if, after the deadline for submitting objections, a claimant
objected to appearing by video, audio, or both, the ALJ would evaluate
whether good cause existed for the late objection. Examples of good
cause would include circumstances where the claimant disagrees with the
terms of service for a third-party application or lacks the resources
to appear by video.
---------------------------------------------------------------------------
\25\ See proposed 20 CFR 404.936(d)(2) and 416.1436(d)(2).
---------------------------------------------------------------------------
We considered proposing a requirement that claimants specifically
[[Page 32149]]
consent to appear by video or audio before we would schedule one of
those manners of appearance. However, our experience during the COVID-
19 national public health emergency indicates that it would be
problematic to adopt that type of requirement. Under our temporary
COVID-19 business process, we required claimants to consent before we
would schedule them to appear by telephone or online video. To obtain
the claimant's consent, we contacted them or their appointed
representative by telephone, or we mailed an informational notice and
agreement form. However, we were unable to reach or did not receive
completed forms from approximately 30 percent of claimants.\26\ If a
claimant did not consent to appear by telephone or online video, we had
to delay scheduling a hearing until our offices reopened to the public
and we resumed conducting in-person and VTC hearings. Because we did
not know when we would be able to reopen our offices, we had to delay
scheduling many hearings for an indefinite period. That circumstance
caused delays in our hearing process. We expect that when a future
emergency situation arises, whether nationally or locally, a
requirement for claimant consent would similarly hinder our ability to
ensure necessary continuity of service. Moreover, even absent an
emergency, our experience over many years has been that it is often
difficult to receive timely responses from some claimants when we ask
them to contact us. Under our proposed rule, which would provide a set
timeframe within which claimants could opt out of appearing by video,
audio, or both, we anticipate we would be better able to limit the
number of cases that we need to hold while waiting for claimants to
take action. Moreover, as we discussed previously, we would also
consider a good cause exception if a claimant submitted a late
objection to appearing by audio, video, or both.
---------------------------------------------------------------------------
\26\ See ``Percentage of Nonresponses,'' in the Manner of
Appearance Notice of Proposed Rulemaking Supporting Data Document
available at www.regulations.gov as a supporting document for Docket
SSA-2022-0013.
---------------------------------------------------------------------------
When We Would Require Audio Appearances
Under our current regulations, we require a claimant to appear at a
hearing by telephone only in certain limited circumstances. Those
circumstances exist when: (1) we find an appearance by VTC or in person
is not possible; \27\ (2) other extraordinary circumstances prevent the
claimant from appearing by VTC or in person; \28\ (3) the claimant is
incarcerated and VTC is not available, unless we find that facts in the
case provide a good reason to schedule an appearance in person, if
allowed, or by VTC or in person upon the claimant's release; \29\ or
(4) when we have banned the claimant from any of our facilities.\30\
Additionally, under our current regulations, we may schedule a claimant
to appear by VTC or telephone when the Hearing Office Chief
Administrative Law Judge (HOCALJ) determines that the claimant poses a
reasonable threat to the safety of our employees or other participants
in the hearing.\31\ Historically, we have seldom required a claimant to
appear at a hearing by telephone. When we do require a claimant to
appear by telephone, because of the special circumstances that exist,
we do not accept objections to that manner of appearance. We propose to
keep all these current regulatory provisions, except that we would
replace the word ``telephone'' with ``audio,'' and we would replace
``VTC'' with video. For audio appearances over the internet, we would
call a claimant's telephone number. We would also specify that when the
HOCALJ determines that a claimant poses a reasonable threat to the
safety of our employees or other participants in the hearing, the
HOCALJ will require the claimant to appear by audio.
---------------------------------------------------------------------------
\27\ 20 CFR 404.936(c)(2) and 416.1436(c)(2).
\28\ Id.
\29\ 20 CFR 404.936(c)(3) and 416.1436(c)(3).
\30\ 20 CFR 404.937(c) and 416.1437(c).
\31\ 20 CFR 404.937(b)(2) and 416.1437(b)(2).
---------------------------------------------------------------------------
Table 1: Manners of Appearance Available
The table below compares the manner of appearance options that were
available before the COVID-19 national public health emergency, those
that were available during the COVID-19 national public health
emergency, and what would be available under our proposed regulations.
It also notes whether a claimant may object to a manner of appearance
or must consent to a manner of appearance.
----------------------------------------------------------------------------------------------------------------
Available before the Available during the Would be available under
Manner of appearance COVID-19 national public COVID-19 national our proposed
health emergency public health emergency regulations
----------------------------------------------------------------------------------------------------------------
In-person........................ Yes (claimant cannot Postponed from March Yes (claimant cannot
object). 2020 through March object).
2022, when we began
incrementally reopening
our hearing offices to
the public. (claimant
cannot object).
VTC.............................. Yes (claimant can object) Postponed from March Yes (under video option)
2020 through March (claimant can object).
2022, when we began
incrementally reopening
our hearing offices to
the public. (claimant
can object).
Online video..................... No....................... Available as of December Yes (under video option)
2020 (claimant must (claimant can object).
consent before we will
schedule that manner of
appearance).
Audio (formerly ``telephone'')... Yes, but only in very Available as of March Yes (claimant can
limited circumstances. 2020 (claimant must object, unless we
(claimant cannot object consent before we will require the claimant to
when required). schedule that manner of appear by audio,
appearance, but we will (called via telephone
require a claimant to number) in very limited
appear by telephone in circumstances).
very limited
circumstances).
----------------------------------------------------------------------------------------------------------------
[[Page 32150]]
Rulemaking Analyses and Notices
We will consider all comments we receive on or before the close of
business on the comment closing date indicated above. The comments will
be available for examination in the rulemaking docket for these rules
at the above address. We will file comments received after the comment
closing date in the docket and may consider those comments to the
extent practicable. However, we will not respond specifically to
untimely comments. We may publish a final rule at any time after close
of the comment period.
Clarity of This Rule
Executive Order 12866, as supplemented by Executive Orders 13563
and 14094, requires each agency to write all rules in plain language.
In addition to your substantive comments on this proposed rule, we
invite your comments on how to make the rule easier to understand.
For example:
Would more, but shorter, sections be better?
Are the requirements in the rule clearly stated?
Have we organized the material to suit your needs?
Could we improve clarity by adding tables, lists, or
diagrams?
What else could we do to make the rule easier to
understand?
Does the rule contain technical language or jargon that is
not clear?
Would a different format make the rule easier to
understand, e.g., grouping and ordering of sections, use of headings,
paragraphing?
When will we start to use this rule?
We will not use this rule unless we publish a final rule in the
Federal Register after evaluating the public comments. All final rules
we issue include an effective date. We will continue to use our current
rules until that date. If we publish a final rule, we will include a
summary of those relevant comments we received along with responses and
an explanation of how we will apply the new rule.
Regulatory Procedures
Executive Order 12866, as Supplemented by Executive Orders 13563 and
14094
We consulted with the Office of Management and Budget (OMB) and
determined that this rule does not meet the criteria for a significant
regulatory action under Executive Order 12866, as supplemented by
Executive Orders 13563 and 14094. Therefore, OMB did not review it.
Anticipated Costs/Transfers to Our Program
The Office of the Chief Actuary estimates that there will be no
significant changes in allowance rates for disability cases under the
Old-Age, Survivors, and Disability Insurance (OASDI) and Federal SSI
programs due to implementation of the proposed regulation. The primary
effects from implementing this proposed rule would be small cash flow
effects due to conducting hearings and issuing decisions more timely.
These changes would therefore be expected to result in negligible
effects on scheduled OASDI benefit payments and Federal SSI payments
over the period from fiscal year 2023 through fiscal year 2033.
Anticipated Administrative Cost/Savings
The Office of Budget, Finance, and Management estimates net
administrative savings of less than 15 work years and $2 million
annually. We anticipate a small savings for lower administrative law
judge, claimant, and representative travel costs, offset some by
slightly higher costs for an increase in forms returned to us by
claimants.
Anticipated Qualitative Benefits
We expect that the flexibility provided by this proposal would
benefit claimants and our agency in several ways. First, except when
claimants object, we would be able to continue scheduling claimants to
appear at hearings remotely, by video or audio. Our experience, as well
as that of claimants, during the COVID-19 national public health
emergency showed that remote appearances are acceptable and beneficial
to our hearing process. If claimants do not object, and we schedule
them to appear by video or audio, they may not incur inconveniences and
could save on costs associated with transportation (e.g., gas,
maintenance of vehicle, bus fare), and they may save time that they
would otherwise have spent traveling. Likewise, they may not need to
secure a replacement caregiver if they supervise family members or
others, such as children, who cannot be left alone. In addition, if
claimants have difficulty leaving the house because of limited mobility
or other reasons, a video or audio appearance would allow them to
appear from a private location of their choice, such as their home.
This proposal would also allow us to balance our workloads more
efficiently among hearing offices because we could more easily transfer
cases where the claimant would be scheduled to appear by video or audio
from one hearing office to another. We expect that this proposal would
help us to reduce overall wait and processing times across the country
and reduce the disparities that exist from region to region and office
to office.
Finally, the changes proposed in these rules would allow us to be
prepared for future emergency events, including localized events such
as hurricanes, tornadoes, and floods, and national public health
emergencies similar to COVID-19 that could require us to temporarily
suspend in-person or VTC hearings.
Executive Order 13132 (Federalism)
We analyzed this proposed rule in accordance with the principles
and criteria established by Executive Order 13132 and determined that
the proposed rule will not have sufficient federalism implications to
warrant the preparation of a federalism assessment. We also determined
that this proposed rule will not preempt any State law or State
regulation or affect the States' abilities to discharge traditional
State governmental functions.
Regulatory Flexibility Act
We certify that this proposed rule will not have a significant
economic impact on a substantial number of small entities because it
affects individuals only. Therefore, a regulatory flexibility analysis
is not required under the Regulatory Flexibility Act, as amended.
Paperwork Reduction Act (PRA)
SSA already has existing OMB PRA-approved information collection
tools relating to this proposed rule under OMB Control No. 0960-0671
which include: Form HA-504, Acknowledgement of Receipt (Notice of
Hearing); Form HA-L83, Acknowledgement of Receipt (Notice of Hearing)
Cover Letter; Form HA-55, Objection to Appearing by Video
Teleconferencing; Form HA-L2, Objection to Appearing by Video
Teleconferencing Cover Letter (HA-L2); and Forms HA-510 and HA-510-OP1,
Waiver of Written Notice of Hearing.
The proposed rules would require revisions to Form HA-55, Objection
to Appearing by Video Teleconferencing and the accompanying HA-L2,
Objection to Appearing by Video Teleconferencing Cover Letter. Due to
the proposed rules, we expect to revise the HA-L2 to remove the
discussion of the manners of appearance, and we intend to create a new
notice to address those in accordance with any final rules. The new
notice would briefly explain audio and video appearances and all the
[[Page 32151]]
modalities encompassed by audio only and video hearings. Similarly, we
expect to revise Form HA-55 to provide the option to object to each of
the modalities encompassed by audio and video appearances. We will also
eliminate the COVID-19 Remote Hearing Options notice and the
accompanying COVID-19 Remote Hearing Agreement form.
We will obtain OMB approval for these new modalities and revisions
to OMB Clearance Package 0960-0671 concurrently with these final rules.
The chart below shows the revised burden estimates, to be effective
when we finalize the rule:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Average
Average burden theoretical Total annual
Modality of completion Number of Frequency of per response Total annual hourly cost opportunity
respondents response (minutes) burden (hours) amount cost (dollars)
(dollars) * **
--------------------------------------------------------------------------------------------------------------------------------------------------------
HA-504\+\ HA-504-OP1 HA-504-OP2................... 900,000 1 30 450,000 * $12.81 ** $5,764,500
HA-L83--404.936(e); 416.1436(e)................... 900,000 1 30 450,000 * 12.81 ** 5,764,500
HA-L83--Good cause for missing deadline-- 5,000 1 5 417 * 12.81 ** 5,342
404.936(e)(1); 416.1436(e)(1)....................
HA-L83--Objection stating issues in notice are 45,000 1 5 3,750 * 12.81 ** 48,038
incorrect--sent 5 days prior to hearing; 404.939;
416.1439.........................................
HA-L2--Acknowledgement Letter..................... 500,000 1 5 41,667 * 12.81 ** 533,754
New notice and HA-55--404.936; 404.938; 416.1436; 500,000 1 5 41,667 * 12.81 ** 533,754
416.1438.........................................
HA-L2--Verification of New Residence-- 45,000 1 5 3,750 * 12.81 ** 48,038
404.936(c)(1); 416.1436(d)(1)....................
New Notice: Notification of objection to 13,500 1 10 2,250 * 12.81 ** 28,823
telephone, video teleconference, or online video
more than 30-days after receipt of notice showing
good cause; 404.936(c)(2); 416.1436(d)(2)........
HA-510; HA-510-OP1--404.938(a); 416.1438(a)....... 4,000 1 2 133 ** 12.81 ** 1,704
-----------------------------------------------------------------------------------------------------
Totals........................................ 2,912,500 ............... ............... 993,634 ............... ** 12,728,453
--------------------------------------------------------------------------------------------------------------------------------------------------------
* We based this figure on the average DI payments based on SSA's current FY 2022 data (https://www.ssa.gov/legislation/2023factsheet.pdf).
** This figure does not represent actual costs that SSA is imposing on recipients of Social Security payments to complete this application; rather,
these are theoretical opportunity costs for the additional time respondents will spend to complete the application. There is no actual charge to
respondents to complete the application.
SSA submitted an Information Collection Request for clearance to
OMB. We are soliciting comments on the burden estimates above; the need
for the information; its practical utility; ways to enhance its
quality, utility, and clarity; and ways to minimize the burden on
respondents, including the use of automated techniques or other forms
of information technology. If you would like to submit comments, please
send them to the following locations:
Office of Management and Budget, Attn: Desk Officer for SSA, Fax
Number: 202-395-6974, Email address: [email protected]
Social Security Administration, OLCA, Attn: Reports Clearance Director,
3100 West High Rise, 6401 Security Blvd., Baltimore, MD 21235, Fax:
410-966-2830, Email address: [email protected]
You can submit comments until July 18, 2023, which is 60 days after
the publication of this document. However, your comments will be most
useful if you send them to SSA by June 20, 2023, which is 30 days after
publication. To receive a copy of the OMB clearance package, contact
the SSA Reports Clearance Officer using any of the above contact
methods. We prefer to receive comments by email or fax.
List of Subjects
20 CFR Part 404
Administrative practice and procedure, Aged, Blind, Disability
benefits, Individuals with disabilities, Social security.
20 CFR Part 416
Administrative practice and procedure, Aged, Blind, Disability
benefits, Social security, Supplemental Security Income (SSI).
The Acting Commissioner of Social Security, Kilolo Kijakazi, Ph.D.,
M.S.W., having reviewed and approved this document, is delegating the
authority to electronically sign this document to Faye I. Lipsky, who
is the primary Federal Register Liaison for SSA, for purposes of
publication in the Federal Register.
Faye I. Lipsky,
Federal Register Liaison, Office of Legislation and Congressional
Affairs, Social Security Administration.
For the reasons set out in the preamble, we propose to amend 20 CFR
chapter III, parts 404, subpart J, and 416, subpart N, 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:
[[Page 32152]]
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. In Sec. 404.929, revise the fourth sentence to read as follows:
Sec. 404.929 Hearing before an administrative law judge-general.
* * * We will schedule you to appear by audio, video, or in person
as set forth in Sec. 404.936. * * *
0
3. In Sec. 404.936, revise paragraphs (b) through (d) to read as
follows:
Sec. 404.936 Time and place for a hearing before an administrative
law judge.
* * * * *
(b) Where we hold hearings. We hold hearings in the 50 States, the
District of Columbia, American Samoa, Guam, the Northern Mariana
Islands, the Commonwealth of Puerto Rico, and the United States Virgin
Islands. The ``place'' of the hearing is the hearing office or other
site(s) at which you and any other parties to the hearing are located
when you make your appearance(s) before the administrative law judge by
audio, video, or in person. A party to a hearing may only appear from
the geographic areas, noted in this subsection, in which we hold
hearings.
(c) Determining manner of hearing to schedule. We will schedule you
or any other party to the hearing to appear by audio, video, or in
person.
(1) When we determine your manner of appearance at the hearing, we
consider the following factors:
(i) Which manner of appearance would be the most efficient for
conducting the hearing; and
(ii) Any facts in your particular case that provide a good reason
to schedule your appearance by audio, video, 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 audio when we cannot
schedule you to appear by video and extraordinary circumstances prevent
you from appearing in person.
(3) If you are incarcerated and a video appearance is not
available, we will schedule you to appear by audio, unless we find that
there are facts in your particular case that provide a good reason to
schedule you to appear in person, if allowed by the place of
confinement, or by video 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 audio or by video. 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 or by audio. We will consider
directing witnesses to appear in person only when:
(i) A witness is unable to appear by audio or video;
(ii) We determine that an audio or video appearance 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.
(5) We follow the procedures set forth in Sec. 404.937 to ensure
the safety of the public and our employees in our hearing process.
(d) Objecting to appearing by audio, video, or both. Prior to
scheduling your hearing, we will notify you that we may schedule you to
appear by audio or video. If you object to appearing by audio, video,
or both, you must notify us in writing within 30 days after the date
you receive the notice. If you only object to appearing by audio, we
may schedule you to appear by video. Similarly, if you only object to
appearing by video, we may schedule you to appear by audio. If you
object to appearing by both audio and video, 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
audio, if you object to appearing by both audio and video and you
change your residence while your request for hearing is pending, we may
determine how you will appear, including by audio, as provided in
paragraph (c) of this section. For us to consider your change of
residence when we schedule your hearing, you must submit evidence
verifying your new residence. For audio appearances under this
subsection, we will call you or any other party to the hearing using
your or their telephone number(s).
(2) If you notify us that you object to appearing by audio, video,
or both, 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. Examples of
good cause include circumstances when you disagree with the terms of
service for a third-party application or lack the resources to appear
by video.
(3) Notwithstanding any objections you may have to appearing by
audio, we will schedule you or any other party to the hearing to appear
by audio in the circumstances provided in paragraphs (c)(2) and (3) of
this section and in Sec. 404.937(b)(2)(ii) and (c). For audio
appearances under this subsection, we will call you or any other party
to the hearing using your or their telephone number(s).
* * * * *
0
4. In Sec. 404.937, revise paragraphs (b)(2)(ii) and (c), and add
paragraph (e) to read as follows:
Sec. 404.937 Protecting the safety of the public and our employees in
our hearing process.
* * * * *
(b) * * *
(2) * * *
(ii) Require that the hearing be conducted by audio,
notwithstanding any objection to appearing by audio.
(c) If we have banned a claimant from any of our facilities, we
will provide the claimant with the opportunity for a hearing that will
be conducted by audio, notwithstanding any objection to appearing by
audio.
* * * * *
(e) For audio appearances under this section, we will call you or
any other party to the hearing using your or their telephone number(s).
* * * * *
0
5. In Sec. 404.944, revise the second sentence to read as follows:
Sec. 404.944 Administrative law judge hearing procedures-general.
* * * At the hearing, the administrative law judge looks fully into
the issues, questions you and the other witnesses, and, subject to the
provisions of Sec. 404.935, accepts as evidence any documents that are
material to the issues; may stop the hearing temporarily and continue
it at a later date if the administrative law judge finds that there is
material evidence missing at the hearing or one or more variables
outside of our control, such as audio quality or video quality,
materially affects the hearing; and may reopen the hearing at any time
before the administrative law judge mails a notice of the decision in
order to receive new and material evidence. * * *
0
6. In Sec. 404.976, revise paragraph (c) to read as follows:
[[Page 32153]]
Sec. 404.976 Procedures before the Appeals Council.
* * * * *
(c) Oral argument. You may request to appear before the Appeals
Council to present oral argument in support of your request for review.
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. The Appeals Council will determine whether your appearance will
be by audio, video, or in person, as set forth in Sec. 404.936. The
Appeals Council will determine whether any other person relevant to the
proceeding will appear by audio, video, or in person as set forth 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. In Sec. 416.1429, revise the fourth sentence to read as follows:
Sec. 416.1429 Hearing before an administrative law judge-general.
* * * We will schedule you to appear by audio, video, or in person
as set forth in Sec. 416.1436. * * *
0
9. In Sec. 416.1436, revise paragraphs (b) through (d) to read as
follows:
Sec. 416.1436 Time and place for a hearing before an administrative
law judge.
* * * * *
(b) Where we hold hearings. We hold hearings in the 50 States, the
District of Columbia, American Samoa, Guam, the Northern Mariana
Islands, the Commonwealth of Puerto Rico, and the United States Virgin
Islands. The ``place'' of the hearing is the hearing office or other
site(s) at which you and any other parties to the hearing are located
when you make your appearance(s) before the administrative law judge by
audio, video, or in person. A party to a hearing may only appear from
the geographic areas, noted in this subsection, in which we hold
hearings.
(c) Determining manner of hearing to schedule. We will schedule you
or any other party to the hearing to appear by audio, video, or in
person.
(1) When we determine your manner of appearance at the hearing, we
consider the following factors:
(i) Which manner of appearance would be the most efficient for
conducting the hearing; and
(ii) Any facts in your particular case that provide a good reason
to schedule your appearance by audio, video, 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 audio when we cannot
schedule you to appear by video and extraordinary circumstances prevent
you from appearing in person.
(3) If you are incarcerated and a video appearance is not
available, we will schedule you to appear by audio, unless we find that
there are facts in your particular case that provide a good reason to
schedule you to appear in person, if allowed by the place of
confinement, or by video 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 audio or by video. 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 or by audio. We will consider
directing witnesses to appear in person only when:
(i) A witness is unable to appear by audio or video;
(ii) We determine that an audio or video appearance 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.
(5) We follow the procedures set forth in Sec. 416.1437 to ensure
the safety of the public and our employees in our hearing process.
(d) Objecting to appearing by audio, video, or both. Prior to
scheduling your hearing, we will notify you that we may schedule you to
appear by audio or video. If you object to appearing by audio, video,
or both, you must notify us in writing within 30 days after the date
you receive the notice. If you only object to appearing by audio, we
may schedule you to appear by video. Similarly, if you only object to
appearing by video, we may schedule you to appear by audio. If you
object to appearing by both audio and video, 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
audio, if you object to appearing by both audio and video and you
change your residence while your request for hearing is pending, we may
determine how you will appear, including by audio, as provided in
paragraph (c) of this section. For us to consider your change of
residence when we schedule your hearing, you must submit evidence
verifying your new residence. For audio appearances under this
subsection, we will call you or any other party to the hearing using
your or their telephone number(s).
(2) If you notify us that you object to appearing by audio, video,
or both, 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. Examples of
good cause include circumstances when you disagree with the terms of
service for a third-party application or lack the resources to appear
by video.
(3) Notwithstanding any objections you may have to appearing by
audio, we will schedule you or any other party to the hearing to appear
by audio in the circumstances provided in paragraphs (c)(2) and (3) of
this section and in Sec. 416.1437(b)(2)(ii) and (c). For audio
appearances under this subsection, we will call you or any other party
to the hearing using your or their telephone number(s).
* * * * *
0
10. In Sec. 416.1437, revise paragraphs (b)(2)(ii) and (c), and add
paragraph (e) to read as follows:
Sec. 416.1437 Protecting the safety of the public and our employees
in our hearing process.
* * * * *
(b) * * *
(2) * * *
(ii) Require that the hearing be conducted by audio,
notwithstanding any objection to appearing by audio.
(c) If we have banned a claimant from any of our facilities, we
will provide the claimant with the opportunity for a hearing that will
be conducted by audio, notwithstanding any objection to appearing by
audio.
* * * * *
(e) For audio appearances under this section, we will call you or
any other
[[Page 32154]]
party to the hearing using your or their telephone number(s).
0
11. In Sec. 416.1444, revise the second sentence of to read as
follows:
Sec. 416.1444 Administrative law judge hearing procedures-general.
* * * At the hearing, the administrative law judge looks fully into
the issues, questions you and the other witnesses, and, subject to the
provisions of Sec. 416.1435, accepts as evidence any documents that
are material to the issues; may stop the hearing temporarily and
continue it at a later date if the administrative law judge finds that
there is material evidence missing at the hearing or one or more
variables outside of our control, such as audio quality or video
quality, materially affects the hearing; and may reopen the hearing at
any time before the administrative law judge mails a notice of the
decision in order to receive new and material evidence. * * *
0
12. In Sec. 416.1476, revise paragraph (c) to read as follows:
Sec. 416.1476 Procedures before the Appeals Council.
* * * * *
(c) Oral argument. You may request to appear before the Appeals
Council to present oral argument in support of your request for review.
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. The Appeals Council will determine whether your appearance will
be by audio, video, or in person as set forth in Sec. 416.1436. The
Appeals Council will determine whether any other person relevant to the
proceeding will appear by audio, video, or in person as set forth in
Sec. 416.1436(c)(4).
[FR Doc. 2023-10564 Filed 5-18-23; 8:45 am]
BILLING CODE 4191-02-P
