Setting the Manner of Appearance of Parties and Witnesses at Hearings, 68341-68364 [2024-18591]
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Federal Register / Vol. 89, No. 165 / Monday, August 26, 2024 / Rules and Regulations
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Issued in Washington, DC, on August 19,
2024.
Frank Lias,
Manager, Rules and Regulations Group.
[FR Doc. 2024–18879 Filed 8–23–24; 8:45 am]
BILLING CODE 4910–13–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.
Final rule.
AGENCY:
ACTION:
We are revising our hearing
regulations to provide that claimants
may appear at hearings in one of four
ways: by agency video, by online video,
by audio, or in person. Those four
manners will all be standard manners of
appearance in our hearing process. For
online video and audio appearances,
claimants may appear for hearings
remotely, using private electronic
devices that we do not own, operate, or
approve. For online video appearances,
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, this final rule will allow us to
schedule claimants to appear by audio
without similar restrictions, if the
claimant does not object to appearing in
that manner. We expect that this final
rule will provide us and claimants with
additional flexibility, allowing us to
manage our hearing process more
efficiently.
SUMMARY:
This final rule is effective
November 23, 2024.
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DATES:
Susan Swansiger, Office of Hearings
Operations, Social Security
Administration, 250 E Street SW,
Washington DC 20024, (703) 605–8500.
For information on eligibility or filing
for benefits, call our national toll-free
16:05 Aug 23, 2024
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number, 1–800–772–1213 or TTY 1–
800–325–0778, or visit our internet site,
Social Security Online, at https://
www.ssa.gov/.
SUPPLEMENTARY INFORMATION: On May
19, 2023, we published a notice of
proposed rulemaking (NPRM), Setting
the Manner of Appearance of Parties
and Witnesses at Hearings,1 which
proposed to update our hearing
regulations by changing the term ‘‘video
teleconference’’ to ‘‘video’’; changing
‘‘telephone’’ to ‘‘audio’’; and permitting
‘‘video’’ and ‘‘audio’’ to be used as
standard manners of appearance. We
proposed these changes to clarify that
claimants may appear for hearings
remotely using private electronic
devices that we do not own, operate, or
approve, and to make clear that a
claimant may appear for a hearing using
approved online video conferencing
applications, rather than only
conferencing options using equipment
that we own or approve. We are making
final the changes that we proposed in
the NPRM, with certain modifications.
The preamble to the NPRM provides the
background for these changes, and we
explain our reasons for modifications to
the original proposal below.2
Background
When we determine your rights under
title II or title XVI of the Social Security
Act, we generally follow an
administrative review process that
consists of the following steps: an initial
determination, and, as necessary, a
reconsideration, a hearing with an
administrative law judge (ALJ), and
review by the Appeals Council.3 After
completing these steps, a claimant may
request judicial review of our final
decision by filing a civil action in
Federal district court.
As noted above, the third step in the
administrative review process is a
hearing held by an ALJ.4 Before the
Coronavirus Disease 2019 (COVID–19)
1 88
FR 32145.
preamble to the NPRM is available for
public viewing at https://www.regulations.gov and
searching for document ‘‘SSA–2022–0013’’ or
https://www.federalregister.gov/documents/2023/
05/19/2023-10564/setting-the-manner-ofappearance-of-parties-and-witnesses-at-hearings.
3 20 CFR 404.900(a) and 416.1400(a).
4 Under 20 CFR 404.956(a) and 416.1456(a), the
Appeals Council may assume responsibility for a
hearing request(s) pending at the hearing level of
our administrative review process.
2 The
FOR FURTHER INFORMATION CONTACT:
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national public health emergency, we
generally scheduled a claimant to
appear at a hearing in one of three ways:
by video teleconferencing (VTC),5 in
person, or by telephone. Further, we
scheduled claimants to appear by
telephone in certain limited
circumstances only, such as when we
found an appearance by VTC or in
person was not possible, or if other
extraordinary circumstances prevented
the claimant from appearing by VTC or
in person.6
As explained in the NPRM in more
detail, in March 2020, we began offering
claimants the option to appear at
hearings by telephone and later offered
claimants the additional option to
appear by online video in response to
the COVID–19 national public health
emergency.7 Based on our positive
experience with these manners of
appearance during the COVID–19
national health emergency and beyond,8
and in an effort to incorporate greater
flexibility into our rules for claimants,
we are adopting audio and online video
as standard manners of appearance in
our hearing process.9
Under this final rule, there will be
four standard manners of appearance:
agency video (i.e., what we previously
had defined as VTC), online video,
audio, and in person. In the NPRM, we
proposed to use the broader term
‘‘video’’ to capture appearances by
agency video (where a person attends a
hearing at one of our offices using our
video equipment) as well as by online
video (where a person attends a hearing
from a private location using private
equipment). As we explain in greater
5 We have traditionally used the term VTC to refer
to an appearance by video using our equipment or
equipment that we approve in a Field Office or
other pre-approved site.
6 20 CFR 404.936(c)(2)–(3); 404.937(b)(2), (c);
416.1436(c)(2)–(3); and 416.1437(b)(2), (c).
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 Teams.’’ For more information, see
https://www.ssa.gov/appeals/hearing_video.html.
8 88 FR at 32146.
9 We will generally direct anyone we call as a
witness to appear by audio, agency video, or online
video. A witness called by the claimant, like our
previous policy, will generally appear in the same
manner as the claimant, unless the witness is
unable to do so. If the witness is unable to appear
in the same manner as the claimant, we will
generally direct the witness to appear by audio or
agency video.
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detail below, this final rule
distinguishes between agency video and
online video appearances.
We are also revising our regulations
regarding scheduling the manner of
appearance for individuals who appear
before the Appeals Council for oral
argument to keep them aligned with the
ALJ hearing process. Similar to the
changes above, we are making agency
video, online video, audio, and in
person standard manners of appearance
for oral arguments before the Appeals
Council.
In addition, as proposed in the NPRM,
we added language to 20 CFR 404.944
and 416.1444 to clarify that an ALJ may
stop a hearing temporarily and continue
it at a later date if the ALJ finds that one
or more variables outside of our control
materially affected a hearing.
Claimants may object to appearing by
audio or agency video, and a claimant
must agree to appear by online video
before we will schedule that manner of
appearance. If a claimant objects to
audio and agency video and does not
agree to online video, we will schedule
that claimant to appear at a hearing in
person. However, in certain limited
circumstances, we will mandate an
audio appearance notwithstanding a
claimant’s objection to appearing in that
manner.10 If a claimant submits an
untimely objection to appearing by
audio or agency video, or if the claimant
submits an untimely agreement to
appear by online video, we will evaluate
whether good cause exists for the late
submission under the standards in
sections 404.911 and 416.1411.11
How This Final Rule Differs From the
NPRM
In a number of places, this final rule
differs from our proposed rule. We list
the changes below and further explain
the substantive changes in the section
titled ‘‘Comments and Responses.’’
• We modified §§ 404.929 and
416.1429 to make clear that there are
two ways to appear by ‘‘video’’: ‘‘agency
video’’ and ‘‘online video.’’ In the
NPRM, we used the term ‘‘video’’ to
refer to both types of video appearances.
Commenters, however, expressed
concerns about potential confusion
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10 See 20 CFR 404.936(d)(2) through (5);
404.937(b)(2), (c); 416.1436(d)(2) through (5);
416.1437(b)(2), (c).
11 See 404.936(d)(1), (e) and 416.1436(d)(1), (e).
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stemming from the general term
‘‘video.’’ By identifying and defining
these two types of video in the
regulations, we anticipate alleviating
these concerns and confusion. We
defined ‘‘agency video’’ as ‘‘video, with
audio functionality, using our
equipment in one of our offices.’’ 12 We
defined ‘‘online video’’ as ‘‘video, with
audio functionality, using a personal
electronic device in a private location
the claimant chooses.’’
• We made several revisions to
§§ 404.936 and 416.1436. First, in
paragraph (a), we clarified that we set
the manner(s) of appearance for all
hearings, and we set the place of a
hearing only when we schedule a
claimant to appear in person or by
agency video. Thus, we do not set the
place of the hearing when we schedule
the claimant to appear by online video
or audio. Second, in paragraphs (b), (c),
and (d), we removed the general term
‘‘video’’ and instead used the more
specific terms ‘‘online video’’ and
‘‘agency video,’’ as appropriate. Third,
in paragraph (c), we explained that we
will only schedule a claimant to appear
by online video if they agree to appear
in that manner. This agreement
requirement is a change from the NPRM,
where we proposed to give claimants an
opportunity to object to appearing by
online video. Fourth, we relocated some
information from paragraph (c) to
paragraph (d) to clarify that in limited
circumstances only, we will schedule an
audio appearance notwithstanding a
claimant’s objection to an audio
appearance. Fifth, we explained that for
audio appearances under paragraph (d),
we will call the individual using the
individual’s telephone number(s). Sixth,
in paragraph (e), we explained that prior
to scheduling a claimant’s hearing, we
will notify them that we may schedule
them to appear by online video if they
agree to appear in that manner. To agree
to appear by online video, a claimant
must notify us of their agreement in
writing within 30 days of the date they
receive that notice. If a claimant notifies
us after the 30-day deadline, we will
12 Agency video includes agency-approved sites
and video equipment under the Representative
Video Project (RVP). 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.
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extend the time period if they show
good cause for missing the deadline.
Paragraph (e) also explains that a
claimant may withdraw their agreement
to appear by online video at any time
before the start of the hearing, which
should provide additional flexibility for
claimants.
• In §§ 404.937 and 416.1437, we
added the option for claimants to agree
to appear by online video (instead of
allowing audio as the only option) when
the Hearing Office Chief ALJ determines
that the claimant or other individual
poses a reasonable threat to the safety of
our employees or other participants in
the hearing, or we have banned the
claimant from any of our facilities.
• In §§ 404.938 and 416.1438, we
explained in paragraph (b)(5) that the
notice of hearing will tell the claimant
the time and manner of appearance and,
for in person and agency video
appearances, the place of the hearing.
• In §§ 404.944 and 416.1444, we
defined the term ‘‘materially affects’’ to
mean prevents the hearing from
proceeding.
• In §§ 404.950 and 416.1450, we
made two revisions. First, in paragraph
(a), we explained that a party to the
hearing or their designated
representative may appear before an ALJ
in the manner described in §§ 404.936
and 416.1436. Second, in paragraph (e),
we corrected cross references by
replacing §§ 404.936(c)(4) and
416.1436(c)(4) with §§ 404.936(c)(2) and
416.1436(c)(2).
• In §§ 404.976 and 416.1476, we
distinguished between ‘‘agency video’’
and ‘‘online video.’’
• We made other minor conforming
changes throughout the final rule.
Comparison of Manners of Appearance
Available at Different Times
Table 1 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 to the
effective date of this final rule, and
those that will be available under this
final rule when it becomes effective. It
also notes whether a claimant may
object to a manner of appearance or
must consent to a manner of
appearance.
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68343
TABLE 1—COMPARISON OF MANNERS OF APPEARANCE AVAILABLE AT DIFFERENT TIMES
Manner of
appearance
Available before the COVID–19
national public health emergency
Available during the COVID–19 national public health
emergency to the effective date of the final rule
Available when our final rule becomes
effective
In-person ................
Yes (claimant cannot object) ................
Agency Video (formerly ‘‘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 agree before we schedule that manner of appearance).
Available as of March 2020 (claimant must agree before
we schedule that manner of appearance, but we can require a claimant to appear by telephone in very limited
circumstances).
Yes (claimant cannot object).
Yes (claimant can object).
Yes (claimant must agree before we
will schedule).
Yes (claimant can object, unless we require the claimant to appear by
audio, (called via telephone number)
in very limited circumstances).
TABLE 2—SUMMARY OF MANNERS OF APPEARANCE AND POTENTIAL CLAIMANT ACTIONS UNDER THIS FINAL RULE
Manner of
appearance
Can a claimant object to this manner of appearance?
Audio .................
Agency Video ...
Yes, though we may still require the claimant to appear by audio in
very limited circumstances.
Not Applicable. We will not schedule an online video appearance
unless a claimant tells us they agree to appear in that manner.
Yes .......................................................................................................
In-Person ..........
No .........................................................................................................
Online Video .....
Comments Summary
We received 44 public comments on
our NPRM during the comment period.
Of the total comments, 42 are available
for public viewing at https://
www.regulations.gov/docket/SSA-20220013. We excluded a comment that was
an exact duplicate submitted by the
same commenter, and we excluded a
comment submitted by one of our
employees posted in an official
capacity. The publicly available
comments were from:
• Individual citizens;
• Advocacy groups comprising
claimant representatives;
• Other advocacy groups;
• Organizations and firms that
represent claimants; and
• Other organizations with an interest
in our proceedings.
We carefully considered the public
comments we received, and we
responded to them below.
Comments and Responses
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Support for Proposal
Comment: A majority of commenters
supported our proposal to update our
hearing regulations to permit ‘‘video’’
and ‘‘audio’’ as standard manners of
appearance. Commenters said
permanently adopting remote
appearances as standard manners of
appearance will result in greater
flexibility for claimants and witnesses.
They stated that both video and audio
appearances can be advantageous for
claimants who have limited
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Does a claimant need to agree to this manner before
we schedule it?
No, but claimants may object to this manner of appearance.
Yes.
No, but claimants may object to this manner of appearance.
No.
transportation options, live far from
hearing offices, or have circumstances
like limited mobility or severe anxiety.
One commenter expressed that our
proposal may reduce cost, stress, and
scheduling conflicts experienced by
claimants and representatives.
In addition, many commenters
supported multiple manners of
appearance being available to claimants,
and supported the NPRM because it
maintains the option of in-person
appearances and permits objection to
appearing by other means. Other
commenters expressed that preserving
the option of in-person appearances will
continue to serve those who are most
comfortable with this method, for
reasons like unreliable access to
technology or private, quiet spaces.
Several commenters also agreed that
audio and video appearances will allow
us to balance hearings across offices to
help reduce administrative delays.
Commenters said that the ability to
schedule hearings remotely by audio or
online video without requiring ‘‘extreme
circumstances’’ will reduce delays and
allow for more hearings to be held in a
timely manner. One commenter stated
they have experienced numerous
occasions where claimants failed to
make an in-person appearance due to
unexpected traffic, having their
transportation canceled at the last
minute and being unable to find
alternate transportation, having the
physical inability to sit in the car long
enough to travel to the hearing office,
having a panic attack from being around
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others due to a mental impairment, or
being unable to be around others due to
a compromised immune system.
Response: We acknowledge the
general support received from many
commenters.
Recommendations for Amendments to
the Proposal
Expanding Audio and Video
Appearances Further
Comment: Several commenters
expressed that we should expand the
use of video and audio beyond what we
proposed. A commenter stated that
‘‘unrestricted use’’ of video and audio
should be allowed during any Social
Security proceeding. Commenters
provided examples of when expanded
use of video should be allowed,
including all stages of the disability
determination process in which
claimants have the opportunity to
appear (e.g., age 18 redeterminations
and benefits termination following a
continuing disability review). Other
commenters expressed that we need to
‘‘eliminate barriers to the public’’ and
always make remote hearings available,
and that ‘‘safety and convenience
mandate’’ the option of a video
appearance for any official Social
Security matter requiring face to face
communication, including
communication with any Social
Security field office or Disability
Determination Services (DDS) office.
Response: We acknowledge and
appreciate the desire for greater
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flexibility in all communications with
us. While we may consider additional
options in the future, for this final rule,
we continue to focus on manners of
appearance at ALJ hearings and before
the Appeals Council.
Comment: One commenter suggested
eliminating in-person appearances to
mitigate climate change and practice
fiscal responsibility. The commenter
said that a cost-benefit analysis would
show the costs of in-person appearances
are ‘‘enormous,’’ and the benefits are
minimal. The commenter also expressed
that offering in-person appearances
requires the agency to buy and maintain
office space throughout the country and
requires ALJs, hearing office staff,
claimants, representatives, and hearing
reporters to travel to hearing offices.
According to the commenter,
maintaining a large office presence and
requiring hearing participants to travel
generates carbon emissions and other
pollution, and costs taxpayer money. In
addition, the commenter said that
eliminating in-person appearances
would provide the agency with an
advantage in recruiting and retaining
personnel, and balancing workloads, by
removing the need for personnel to be
tied to a particular geographic location.
Further, the commenter expressed that
the agency’s experience over the past
three years shows the number of
claimants who want to appear in-person
is ‘‘vanishingly small.’’ According to the
commenter, in the relatively rare
instances in which claimants have
objected to telephone and video
appearances, most of these objections
have been ‘‘raised at the eleventh hour
for the apparent strategic advantage of
postponing hearings without showing
good cause.’’ The commenter expressed
that for the small number of claimants
who want to be seen as well as heard,
the availability of video appearances
satisfies that need.
Response: We appreciate the
commenter’s preference for audio and
video appearances. This final rule,
however, does not eliminate in-person
appearances because some claimants
value appearing in person for various
reasons. For example, some commenters
expressed that in-person appearances
allow claimants to have meaningful
interaction with decision-makers and
allow decision-makers to fully observe a
claimant’s condition. While our
experiences demonstrate that audio and
video appearances also allow
meaningful interaction and provide a
sufficient basis for an ALJ to reach a
policy compliant decision, it is
important to retain in-person
appearances at this time to
accommodate those claimants who
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would object to or would have difficulty
appearing by the other manners of
appearance this final rule makes
available. We also understand that some
claimants feel more comfortable
appearing in person. Depending on the
facts of the case, we may find it
necessary to schedule an appearance in
person.13
Comment: A commenter said if the
agency is to retain in-person
appearances and provide an order of
preference, audio appearances should
be first, video appearances should be
second, and in-person appearances
should be last. The commenter
expressed that the current phrasing of
§§ 404.936(c)(2) and 416.1436(c)(2)
appears to place video and in-person
appearances in the highest order of
preference, with audio appearances as a
last resort. According to the commenter,
this seems contrary to our explanation
at the beginning of the NPRM, which
suggests we wish to eliminate a showing
of extraordinary circumstances as a
requirement for audio hearings. The
commenter said experiences during the
COVID–19 pandemic have shown that
the vast majority of claimants want to
appear by audio, and audio appearances
are also the simplest type to schedule,
coordinate, and conduct. In addition,
the commenter said that video
appearances have been reasonably
successful, but they involve greater
technological complexity than audio
appearances and require high internet
bandwidth, and interruptions to
hearings occur because deficiencies in
these areas remain common. According
to the commenter, if our rule specifies
an order of preference, it should state
that we will schedule a video
appearance only if a claimant timely
objects to an audio appearance, and an
in-person appearance (if offered at all)
will be scheduled only if the claimant
timely objects to both audio and video.
The commenter suggested that,
alternatively, the rule could be written
permissively to provide broad flexibility
to hearing offices, without any
particular hierarchy specified or
implied among the options for manner
of appearance. That is, the rule could
simply state that the agency may
schedule an audio or video appearance
in any case in which the claimant does
not timely opt out, without specifying
an order of preference or requiring
13 Under 20 CFR 404.936(c)(1)(ii) and
416.1436(c)(1)(ii) of this final rule, we consider two
factors in deciding which manner of appearance to
schedule: (1) which manner would be most efficient
for conducting the hearing, and (2) any facts in the
particular case that provide a good reason to
schedule a certain manner of appearance.
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extraordinary circumstances for any
manner of appearance.
Response: We did not propose to
establish any hierarchy for setting the
manner of appearance, and we have
made revisions to this final rule to
clarify that. This final rule neither
prioritizes a certain manner of
appearance nor provides a hierarchy of
scheduling preference. As the comments
show, there is support for all manners
of appearance: audio, both versions of
video, and in person. When two or more
manners are available to schedule,14 we
will consider efficiency and the facts of
a particular case when determining a
claimant’s manner of appearance. In
order to prevent any implication of an
order of preference, under this final
rule, we reorganized some of the
regulatory text mentioned by the
commenter to clarify that we may
schedule an audio appearance in certain
limited circumstances notwithstanding
a claimant’s objection to an audio
appearance, and that our regulations do
not otherwise set a priority of
scheduling.15 This flexibility will allow
us to schedule more timely hearings for
claimants.
Additionally, some commenters
appear to have used the terms ‘‘opt out’’
and ‘‘object to’’ interchangeably in
discussing our proposed rule. However,
both our proposed rule and this final
rule give claimants an opportunity to
object to certain manners of appearance,
not opt out of them. Furthermore, our
current rules allow claimants to object
to appearing by VTC, not opt out. An
opt out process would allow a claimant
to unilaterally eliminate a manner of
appearance, whereas an objection
process allows a claimant to tell us that
they do not want to appear in a certain
manner. Under this final rule, when a
claimant objects to appearing by audio
or agency video, there are limited
circumstances when, despite the
objection, we may still schedule that
manner of appearance, such as when we
have banned a claimant from our
facilities to ensure the safety of the
public and our employees, or when we
cannot schedule a claimant to appear by
agency video or by online video and
extraordinary circumstances prevent
them from appearing in person.16
14 If a claimant objects to an appearance by audio
or agency video and does not agree to appear by
online video, we will generally schedule the
claimant to appear in person. Otherwise, we will
determine the manner of appearance from among in
person and the options to which the claimant
agreed and/or did not object.
15 See 20 CFR 404.936(d)(2)–(5) and
416.1436(d)(2)–(5).
16 See 20 CFR 404.936(d)(2) through (5),
404.937(b)(2), 404.937(c), 416.1436(d)(2) through
(5), 416.1437(b)(2), and 416.1437(c).
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Comment: One commenter suggested
that we should automatically schedule
hearings with audio as the default
method, and if there is a ‘‘legitimate and
valid reason’’ why we should conduct a
hearing in another manner (video or in
person), the claimant should
specifically request it, and all parties
should consent. Similarly, a commenter
recommended that we confirm directly
with the claimant in writing their wish
for an in-person appearance rather than
make an in-person appearance the
default format. The commenter asserted
that this approach would ‘‘further
support efficiency and overall fairness
of the hearing process.’’ A commenter
expressed that representatives should
not be required to ‘‘submit so much
supplemental documentation the
minute a claim is at the hearing level or
even before that’’ to ensure the hearing
gets scheduled by audio. The
commenter stated hearing offices
currently create unnecessary barriers for
claimants and their representatives to
ensure a hearing is scheduled by phone.
The commenter expressed there are
substantial delays and hurdles to
overcome to correct an inadvertently
scheduled in-person appearance.
Response: We understand the
commenters’ preference for audio
appearances. However, we did not
adopt the recommendation to make
audio the default manner of appearance,
nor did we adopt the recommendation
to require claimants to confirm a
preference for an in-person appearance.
The comments we received in response
to our proposed rule show that different
claimants benefit from and prefer
different manners of appearance for
different reasons. Thus, to account for
those different needs and preferences,
we did not select any particular manner
of appearance to be the default manner.
The scheduling provisions in this final
rule provide flexibility for claimants
and us.
We will, however, (1) implement a
new publication and notice explaining
the manners of appearance: Notice of
Ways to Attend a Hearing (Form HA–
L54); (2) revise an existing form for
objecting to appearing by agency video
or by audio: Objection to Appearing by
Video Teleconferencing (Form HA–55);
and (3) implement a new form
providing the ability to agree to appear
by online video: Agreement to
Appearing by Online Video (Form HA–
56).
The new notice, Notice of Ways to
Attend a Hearing (Form HA–L54), will
explain in detail how an appearance by
audio, by agency video, by online video,
and in person would work. It will also
explain how and when to object to an
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appearance by audio or agency video
and agree to an appearance by online
video. We are making this notice
separate from our Request for Hearing
Acknowledgement Letter (Form HA–L2)
to ensure that the manner of appearance
information stands out to claimants and
does not get lost among the other
information in the HA–L2.
The revised objection form, Objection
to Appearing by Video Teleconferencing
(Form HA–55), will allow claimants to
object to appearing by audio, by agency
video, or both. We explain on the form
that claimants only need to complete
the form if they object to appearing by
audio or agency video. The objection
form also summarizes the appearance
options again so that claimants can
make an informed decision even if they
do not read the new notice.
The new online video agreement
form, Agreement to Appearing by
Online Video, (Form HA–56) will allow
claimants to agree to appearing by
online video. It will explain that
claimants only need to complete the
form if they agree to appearing in that
manner. We made Form HA–56 separate
from Form HA–55 to clearly distinguish
an agreement to appear by online video
from an objection to appear by audio or
agency video. We anticipate that these
new communications and information
collection requests will enhance
claimant modality options, streamline
the scheduling process, and minimize
scheduling errors.
Additionally, this final rule does not
require a claimant, or representative, to
submit any supplemental
documentation before, or as soon as, a
claim reaches the hearing level. Rather,
a claimant, or representative, has a 30day period to object or agree to a
manner of appearance.
VTC
Comment: Some commenters
expressed concerns that we proposed to
use the broader term ‘‘video’’ to
reference two different manners of
appearance: 1. online video through an
application like Microsoft Teams
(Teams) and 2. more traditional VTC.
Commenters said that our regulations
should use different terminology to
distinguish between the two because
they have meaningful differences.
One commenter stated that providing
the option of accepting or rejecting a
‘‘video’’ appearance without specifying
whether it is by VTC or online video is
misleading to the claimant. The
commenter noted that there are
distinctions between the two types. For
example, an online video appearance
does not necessarily require any travel
by the claimant, whereas a VTC
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68345
appearance does require some travel.
Another commenter said that VTC
appearances are ‘‘in person’’ from the
perspective of the claimant because the
claimant must usually travel to one of
our offices along with a representative,
when applicable, and the judge
participates by ‘‘video.’’ The commenter
also said that too often the VTC
locations are more difficult in terms of
travel, expense, and the stress of
security or long lines for entrance.
According to the commenter, a video
appearance using an online video ‘‘app’’
such as Teams is ‘‘entirely different’’ for
both the claimant and representative
because online video appearances allow
participants to avoid travel—reducing
cost, stress, and conflicts. One
commenter stated they routinely object
to VTC appearances but have ‘‘no
problem’’ with online video
appearances. The commenter said
claimants usually prefer video to inperson appearances because they can
appear from home, yet still see the ALJ
and be seen clearly, with very few
technological problems.
Another commenter expressed not
being comfortable advising claimants to
accept a video option if that option
includes VTC. The commenter
recommended more precise wording so
claimants can make informed decisions
about their manner of appearance for a
hearing. One commenter recommended
making it clear and easy for claimants
to object separately to audio, video, and
VTC appearances because limiting an
objection to video appearances alone
would be insufficient.
Response: We generally agree with
these recommendations. As we
explained in the NPRM, we originally
intended to use the general term
‘‘video’’ because it allowed for greater
flexibility. We planned to further
explain the two video manners of
appearance in our subregulatory
policies. However, because there are
significant differences between the two,
we will distinguish them in the
regulatory text. Therefore, this final rule
distinguishes agency video from online
video. ‘‘Agency video’’ means video,
with audio functionality, using our
equipment in one of our offices. In other
words, agency video means a claimant
travels to one of our offices for a hearing
and attends the hearing using our video
equipment. ‘‘Online video’’ means
video, with audio functionality, using a
personal electronic device in a private
location the claimant chooses. In other
words, online video means a claimant
attends a hearing from a private location
of the claimant’s choice using the
claimant’s own smartphone, tablet, or
computer and internet connection. We
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will also highlight this distinction in
our subregulatory policies; new notice,
new publication, and new agreement
form; and revised objection form related
to this final rule.
Comment: One commenter expressed
the opinion that VTC appearances are
‘‘inferior’’ to both in-person and online
video appearances, and with the
addition of online video appearances,
they should be obsolete. The commenter
said that VTC appearances are often
held in a ‘‘small, cramped conference
room’’ at a hearing or field office, which
is often not sound-proofed. According to
the commenter, in some hearing offices,
the video equipment is located on the
wall behind the desks where the
representative and claimant sit, making
it difficult for both the claimant and
representative to be seen, to see the ALJ,
and to review the file and notes at the
same time. The commenter also stated
that VTC appearances require additional
SSA staff, as they require a hearing
monitor with the ALJ, as well as a
monitor or other staff member with the
claimant to ensure the equipment is
working. The commenter noted that
VTC appearances require travel to the
hearing office and do not have the same
effect as in-person appearances because
the video is often of lower quality and
does not allow the ALJ to see the
claimant in detail. They also expressed
that VTC appearances are inferior to
online video appearances because with
online video, each party can be in a
position most comfortable to them and
adjust the viewing angle of the camera
so that they can be seen well. For VTC
appearances, the representative and
claimant are limited to the design of the
room in which the hearing is held and
cannot adjust the camera.
The commenter noted that we
previously introduced VTC appearances
to allow us to schedule hearings quicker
and to transfer workloads among offices
to lighten the load at certain hearing
offices. According to the commenter,
because the same can be provided by
both telephone (audio) and online video
appearances, the need for VTC
appearances becomes obsolete. The
commenter said the proposed
regulations did not provide any
explanation as to why VTC appearances
would remain necessary once audio and
online video are offered as standard
manners of appearance.
Response: This final rule provides for
an appearance by agency video to
enhance the overall flexibility in our
hearing process. We agree that many
claimants are likely to prefer to appear
by online video instead of by agency
video. Nonetheless, we expect there will
be some claimants who cannot appear
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by online video or do not want to
appear by online video, but who do not
object to appearing by agency video.17
Agency video helps ensure that all
claimants are afforded the same options
for virtual hearings, regardless of their
ability to pay for or otherwise obtain a
suitable device or internet connection
on their own. It also allows us to retain
the ability to transfer workloads to
facilitate earlier scheduling when
possible. Our new notice, new
publication, new agreement form, and
revised objection form related to this
final rule will clearly explain the
differences between the two video
manners of appearance. Finally, we
disagree that VTC appearances have
inferior audio and video quality.18
Administrative Conference of the United
States (ACUS) Recommendations
Comment: The Office of the Chair of
ACUS repeated in their comments
recommendations they previously
issued related to audio and online
hearings at Federal agencies. They said
they have long encouraged agencies,
particularly those with high-volume
caseloads, to consider ‘‘whether the use
of VTC [hearings] would be beneficial as
a way to improve efficiency and/or
reduce costs while also preserving the
fairness and participant satisfaction of
proceedings.’’ They noted that they have
set forth best practices and practical
guidelines for conducting traditional
VTC hearings and, more recently,
‘‘virtual hearings’’ in which participants
appear remotely from a location of their
choosing using internet-based
videoconferencing software.
According to ACUS, our proposed
rules addressed several of their
recommended guidelines for conducting
virtual hearings, such as the
circumstances in which an individual’s
virtual participation may be
inappropriate; the process by which
claimants can object to participating
virtually; and the technological
requirements for virtual hearings. They
also said that our plan to permit
17 While a small percentage, we have continued
to schedule claimants to appear by VTC even after
the implementation of online video appearances.
Since we began reopening our offices to the public
in March 2022 following an initial closure during
the COVID–19 national public health emergency,
we have held approximately 1.5 percent of our
hearings by VTC. See the Setting the Manner of
Appearance of Parties and Witnesses at Hearings,
Final Rule, Supporting Data Document, available at
https://www.regulations.gov as a supporting
document for Docket SSA–2022–0013.
18 VTC appearances allow the claimant to see and
hear the ALJ on a television screen over our secure
network. For example, with our current systems, we
transmit in Standard Definition on 50 to 65 inch
monitors in hearing rooms or 27 inch monitors in
VTC locations using desktop video units.
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claimants to appear virtually by online
video in a hearing office with agencysupplied electronic devices and internet
connection (instead of only allowing
this option for claimants using personal
or borrowed devices in private
locations) helps ensure that all
claimants are afforded the same options
for virtual hearings, regardless of their
ability to pay for or otherwise obtain a
suitable device or internet connection
on their own.
In addition, ACUS recommended that
we consider addressing whether to
make available or require attendance at
‘‘a general training session or prehearing conference to discuss
technological requirements, procedural
rules, and standards of conduct for
virtual hearings.’’ According to ACUS,
such proactive measures may help to
reduce or eliminate delays before or
during hearings caused by participants’
unfamiliarity with the technology or
videoconferencing software and prevent
disruptions caused by a lack of
understanding of applicable procedural
rules or behavioral standards for virtual
hearings.
Further, ACUS referred to our
proposed revisions to 20 CFR 404.944
and 416.1444, which clarified that an
ALJ could stop a hearing temporarily
and continue it at a later date if they
found that one or more variables outside
of the agency’s control materially
affected a hearing. They expressed that
we may want to explain when a hearing
is ‘‘materially affected’’ and provide
examples. ACUS recommended that we
clarify the actions that the ALJ or
hearing office staff will take to attempt
to remedy any technical problems
before or after stopping the hearing
when variables outside the agency’s
control materially affect the hearing.
ACUS also suggested that, in our prehearing notices, we include information
about the possible manners of
appearance; explain the claimant’s
ability to object to virtual hearings; and
explain what the claimant would need
to appear in each manner. They advised
we should include any other
information that would help claimants
make informed decisions about their
preferred manner of appearance, and
that we should ensure this information
stays up to date.
In addition, ACUS recommended that
we continue to survey claimants who
appear at virtual hearings to gauge their
satisfaction with the process, and that
we should ‘‘maintain open lines of
communication with representatives in
order to receive [their] feedback about
the use of virtual hearing.’’ They
suggested tracking and publishing
disposition data for different hearing
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modalities to measure how virtual
hearings compare to in-person hearings
in terms of procedural fairness and
substantive outcomes.
Finally, ACUS stated that virtual
hearings should be utilized and
conducted in a manner that promotes
the principles of fairness, efficiency,
and participant satisfaction, which form
the cornerstones of adjudicative
legitimacy. Accordingly, when revising
regulations and issuing subregulatory
guidance, ACUS said we should ensure
that virtual hearings provide a claimant
experience that meets or exceeds the inperson hearing experience.
Response: Consistent with ACUS’s
recommendation, this final rule
recognizes that it may not be
appropriate in every circumstance for an
individual to appear at a hearing
virtually. Thus, claimants will have an
opportunity to object to appearing by
agency video or audio, and we will not
schedule an online video appearance
unless the claimant agrees to appear in
that manner. Additionally, consistent
with ACUS’s recommendation, this final
rule sets forth the process by which
claimants can object to appearing by
agency video or audio, and it explains
how a claimant can tell us that they
agree to appear by online video. Further,
our new publication, which will explain
the possible manners of appearance,
will reflect ACUS’s recommendation to
explain the technological requirements
for virtual hearings.
We also adopted ACUS’s suggestion
that we explain when audio quality or
video quality ‘‘materially affects’’ a
hearing under 20 CFR 404.944 and
416.1444. Under this final rule,
‘‘materially affects’’ means it prevents
the hearing from proceeding. Examples
include termination of the audio or
video connection or poor audio or video
quality that prevents the efficient
administration of the hearing. If an ALJ
determines that audio or video quality
‘‘materially affects’’ the hearing, the ALJ
will stop the hearing and continue it at
a later date. We will schedule the
continued hearing no earlier than 20
days after the stoppage unless the
claimant waives in writing the advanced
hearing notice requirement.19 While we
will try to reschedule the hearing as
quickly as possible, the time to
reschedule will depend on multiple
factors, including representative, expert
witness and ALJ availability, as well as
available hearing slots. If necessary, we
may schedule the claimant to appear by
another available manner of appearance.
We also plan to post a publicly
available video explaining the technical
19 20
CFR 404.938 and 416.1438.
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requirements of online video and audio
appearances. However, we did not
adopt the recommendation to have a
prehearing conference for the purpose of
discussing technological requirements,
procedural rules, and standards of
conduct for online video and audio
hearings, because doing so would be
overly burdensome, given the hundreds
of thousands of hearings we schedule
per year. The public informational
video, along with our new notice, new
publication, new agreement form, and
revised objection form, will
appropriately explain the manners of
appearance and their requirements. The
notice of hearing will include contact
information for use if technical
difficulties arise during an audio or
online video hearing. In terms of
feedback from participants, we
conducted feedback surveys for our
online video appearances during the
COVID–19 national public health
emergency. Our survey data at that time
showed that 83 percent of claimants
were satisfied with their online video
hearing.20 When implementing this
final rule, we plan to investigate further
opportunities to gather feedback from
claimants on their experience with the
various manners of appearance.
Regarding communications with
representatives, we regularly meet with
representative organizations, including
the National Organization of Social
Security Claimants’ Representatives
(NOSSCR) and the National Association
of Disability Representatives (NADR).
We also have quarterly roundtable
discussions with the advocacy
community. During our meetings with
these organizations, we solicit and
receive feedback from representatives
about our use of remote appearances.
As for the recommendation for a
quality assurance system that tracks and
publishes disposition data for each
manner of appearance, we are working
to develop this type of data, though it
is not available at this time due to
systems reporting limitations. We do,
however, have a number of quality
assurance measures, including routine
quality reviews of decisions, in place.
Considerations of Equity and
Supporting Underserved Communities
Comment: Some commenters asked us
to consider how the proposed rule will
impact underserved communities.
Commenters cited E.O. 13985,
Advancing Racial Equity and Support
for Underserved Communities Through
20 See Setting the Manner of Appearance of
Parties and Witnesses at Hearings, NPRM,
Supporting Data Document, available at https://
www.regulations.gov as a supporting document for
Docket SSA–2022–0013.
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68347
the Federal Government, which
prioritizes advancing equity throughout
the Federal Government. The E.O.
addresses removing barriers and
increasing access to Federal programs
by pursuing a comprehensive approach
to advancing equity for people of color
and others who have been historically
underserved, marginalized, and
adversely affected by persistent poverty
and inequality. A commenter suggested
that we implement changes to the rules
regarding manners of appearance
‘‘through the lens of advancing equity
and removing barriers to access.’’
Another commenter said ‘‘the harm
[of defaulting to audio or video] that
could come to claimants is not merely
conjectural. Many lower income
claimants do not have sufficiently
regular access to technology to make
audio and video hearings convenient.’’
Several commenters cited research
about limited broadband internet access
in the United States and stated that
people most impacted by the
technological divide are those who have
‘‘less education and lower incomes;
communities of color, such as Black and
Latino; older adults; rural residents (and
most acutely in Native communities);
the physically disabled; the LGBTQ
community; and those falling in the
intersections of these groups.’’
Response: As our equity plan
indicates,21 equity is a highly important
priority for SSA. We strive to support
underserved communities, including
those identified by the commenters. To
that end, we anticipate that appearances
by audio and video will actually help
underserved communities because those
manners of appearance will often allow
claimants the flexibility to attend their
hearings more easily. For example, as
other commenters have pointed out,
both online video and audio
appearances can be advantageous for
claimants who have limited
transportation options, who live far
from hearing offices, or who have
circumstances like limited mobility or
severe anxiety. Additionally, as noted
above, this final rule does not eliminate
in-person appearances or agency video
(for those who do not have equipment
necessary for online video) or prioritize
audio or video appearances. It merely
provides a variety of ways for claimants
to appear at their hearings. Moreover,
under this final rule, we will not
schedule a claimant to appear by online
video unless the claimant agrees to
appear in that manner.
21 Our Equity Plan is available at: https://
www.ssa.gov/open/materials/SSA-E.O.-13985Equity-Action-Plan.pdf.
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Reasonable Accommodations,
Consideration of Functional DisabilityRelated Limitations, and Claimant
Preferences
Comment: One commenter said
claimants should always determine the
manner of appearance for their hearing.
According to the commenter, some
claimants are ‘‘terrified’’ to appear in
the ‘‘court-like atmosphere’’ of an inperson hearing, and others have
physical, transportation, or financial
difficulties associated with traveling to
the hearing sites. Other commenters
said we should provide a form that
allows claimants to select their
preferred manner of appearance.
Response: We did not adopt these
recommendations because doing so
would impede our ability to schedule
timely hearings. First, we anticipate that
some claimants would not provide us
their preferred manner of appearance in
a timely manner. Our experience over
many years has been that it is often
difficult to receive responses from some
claimants when we ask them to contact
us. Second, allowing claimants to select
their preferred manner of appearance is
not administratively feasible because it
would significantly impede our ability
to timely process the hundreds of
thousands of hearings we schedule per
year. When developing this final rule,
we carefully balanced the two guiding
principles that undergird our hearing
process: that it be fair and that it works
efficiently.22 This final rule is fair
because it allows claimants to have
input on their manner of appearance. At
the same time, this final rule helps our
hearing process to work efficiently by
giving us additional scheduling
flexibility, which will allow us to use
our available resources to schedule
more timely hearings.
Comment: Several commenters said
we should ask claimants to identify
their hearing format preferences at the
earliest stage possible and suggested this
could be done on the hearing request
form (e.g., SSA HA–501). The
commenters suggested this may help
claimants who have difficulty
corresponding by mail and may also
allow people to provide feedback when
they are in our field offices, where they
may have assistance of field office staff
who can answer questions, or when
they may have help from community
assisters (e.g., social workers) who may
be assisting them with an appeal but
may not be present when they receive
the hearing election notice. Further,
some commenters said we should
22 See Richardson v. Perales, 402 U.S. 389, 399
(1971).
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provide more than one opportunity to
select the preferred hearing format.
Response: We did not adopt these
recommendations because they would
require an overhaul of our existing
operational processes and systems of
such magnitude that it would delay our
ability to implement the flexibilities in
this final rule for several years. For
example, adopting these
recommendations would require us to
overhaul our iAppeals online internet
service, which allows claimants to
electronically file a reconsideration or
hearing request.23 In addition, we
anticipate that the process set forth in
this final rule will allow claimants
sufficient opportunity to indicate
whether they agree to appear by online
video and whether they object to
appearing by audio or agency video. We
will provide a separate notice
explaining the manners of appearance; a
revised form for claimants to let us
know whether they object to appearing
by audio, agency video, or both; and a
new form for claimants to let us know
whether they agree to appear by online
video. If a claimant misses the 30-day
deadline to agree to appear by online
video or to object to appearing by audio,
agency video, or both, they have the
opportunity to show us that they had
good cause for missing the deadline.24
In summary, our new notice, new
agreement form, revised objection form,
and the good cause provisions in this
final rule will provide claimants with a
reasonable opportunity to share their
manner of appearance preferences with
us.
Comment: One commenter said that
some claimants will not be able to
meaningfully participate when they
appear at a hearing by video or audio,
which will impede our ability to make
accurate disability determinations and
violate section 504 of the Rehabilitation
Act (section 504). The commenter noted
that Federal agencies have an
affirmative duty to make ‘‘reasonable
modifications for qualified individuals.’’
According to the commenter, some
individuals require an in-person
appearance to meaningfully participate.
Several other commenters provided
examples of individuals who may
require an in-person appearance to
meaningfully participate. Examples
provided include claimants: with
hearing or visual impairments; requiring
an interpreter; who need to frequently
shift between sitting and standing due
23 For more information on iAppeals, see our
Program Operations Manual System (POMS) GN
03101.125 available at https://secure.ssa.gov/
poms.nsf/lnx/0203101125.
24 See 404.936(d)(1) and 416.1436(d)(1).
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to pain; who speak softly or have speech
impairments; with auditory or visual
hallucinations; with seizure disorders;
who distrust technology or fear being
recorded; with intellectual disabilities;
with developmental disorders; and who
may be less familiar with VTC.
In addition, commenters said the
difficulties faced by persons with
disabilities may be exacerbated if they
have limited English proficiency. They
expressed that interpreter services do
not adequately address the challenges
faced by individuals with limited
English proficiency who are deaf or
hard of hearing. The commenters
indicated that such individuals must be
allowed to appear in a manner that
accommodates their disabilities and that
keeping the right to appear in person is
required for procedural fairness.
Response: We are not eliminating the
in-person manner of appearance. Under
this final rule, a claimant may object to
appearing by agency video and audio
and may decide not to agree to appear
by online video. In that circumstance,
barring an exceptional circumstance, we
would schedule the claimant to appear
in person.25 Additionally, this final rule
does not preclude an individual from
requesting an accommodation. Instead,
this final rule adds flexibility to our
hearing process, and we expect that it
will make it easier for many claimants
to appear at their hearings. Even when
a claimant does not object to appearing
by agency video or audio, we will not
default to scheduling one of those
manners of appearance. Rather, under
20 CFR 404.936(c)(1)(ii) and
416.1436(c)(1)(ii) of this final rule, we
will consider which manner would be
the most efficient and any facts that
provide good reason for a specific
manner of appearance.
Furthermore, this final rule does not
affect or modify our existing
responsibilities under section 504 of the
Rehabilitation Act of 1973, or the
procedures we follow in considering
requests for reasonable accommodations
under that statute. Separate and distinct
from this final rule, we will continue to
use our established procedures for
handling section 504 accommodation
requests.26 We are not revising our
obligations under section 504 or our
25 We may schedule a claimant to appear in
another manner when the claimant changes their
residence, extraordinary circumstances prevent the
claimant from appearing in person, the claimant is
incarcerated, or it is necessary to ensure the safety
of the public and our employees in our hearing
process. See 20 CFR 404.936(d)(2) through (5);
404.937(b)(2), (c), 416.1436(d)(2) through (5); and
416.1437(b)(2), (c).
26 HALLEX I–2–0–8 available at https://
www.ssa.gov/OP_Home/hallex/I-02/I-2-0-8.html.
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reasonable accommodation process as
part of this final rule.
Comment: One commenter said that
the proposed regulatory language does
not provide guidance on what may be
considered a ‘‘good reason’’ for
scheduling a hearing in person, by
video, or by audio. The commenter
recommended that we incorporate into
our regulations the language
referencing, at a minimum, the
standards in 20 CFR 404.911 and
416.1411 to ensure that an individual’s
physical, mental, educational, or
linguistic limitations (including lack of
facility with the English language) are
considered when we choose the
appropriate manner for an ALJ hearing.
The commenter referred to section 504
of the Rehabilitation Act of 1973 and
noted that section 504 requires Federal
agencies to ensure that qualified
individuals with disabilities are not,
solely by reason of their disabilities,
excluded from participation in, denied
the benefits of, or subjected to
discrimination under the programs and
activities they conduct. The commenter
said there is a ‘‘pronounced lack of
emphasis on [our] legal obligation to
ensure equal access to a transparent and
fair adjudicative process for all
individuals with disabilities, including
those who may require access to inperson hearings for disability related
reasons.’’ According to the commenter,
clear regulatory instructions obligating
our staff and ALJs to consider claimants’
functional limitations as they pertain to
the claimants’ ability to effectively
communicate and participate in the
hearing process should be part of the
evaluation of ‘‘good reasons’’ for
scheduling a hearing in any manner.
The commenter expressed that
individuals with a wide range of
disabilities, and those in the deaf and
hard of hearing community specifically,
face ‘‘failed communication’’ when
dealing with our field offices and
hearing offices, which may not provide
methods of effective communication to
deaf and hard of hearing individuals.
The commenter states that such
individuals will be adversely affected if
they are unable to access onsite
American Sign Language (ASL)
interpretation when presenting
testimony and interacting with
adjudicators or witnesses.
Further, the commenter expressed
that our staff must be able to recognize
the need for an effective communication
assessment. The commenter said that, if
any technology is used for interpreting
during video or audio hearings, staff
must be able to use the required
equipment and have sufficient
understanding of different modes of
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communication to recognize and
remedy communication failures. The
commenter expressed that, without
these items addressed, a video or audio
hearing will not provide effective
communication and equal access to the
administrative process.
Another commenter said hearing
notices should include clear guidelines
on the use of effective assistive
technology during video or audio
hearings, beyond the explanation that
one needs ‘‘a desktop computer, laptop
computer, tablet or phone with a
camera, microphone, and speakers.’’
The commenter said, to ensure effective
communication for deaf and hard of
hearing claimants, remote technology
should offer real-time, full motion
synchronized video and audio. The
commenter further stated that the
technology should operate over
dedicated lines or wireless networks
offering high-speed, wide-bandwidth
video connection that delivers highquality video images that do not
produce lags, choppy, blurry, or grainy
images, or irregular pauses in
communication, and a clear, audible
transmission of voices to support
listening to and lipreading the hearing
participants by the deaf or hard of
hearing claimant.
Response: We understand the
commenters’ concerns, and we expect
that, overall, the audio and video
manners of appearance will make it
easier for claimants, especially those
with functional limitations, to appear at
their hearings. We did not adopt the
recommendation to provide guidance on
what constitutes a ‘‘good reason’’ for
scheduling a certain manner of
appearance because the broad ‘‘good
reason’’ language in this final rule
accounts for a wide latitude of possible
considerations. These considerations
may include, for example, the physical,
mental, educational, or linguistic
limitations contemplated in 20 CFR
404.911 and 416.1411. As other
commenters suggested, we will provide
more details on the requirements for
each manner of appearance in our
subregulatory policies, new notice and
publication, and new and revised forms
related to this final rule. Claimants may
state their reasons for objecting or
agreeing to a manner of appearance in
the comment sections of our forms or in
separate communications, including by
telephone or writing. Additionally, if
there are technical difficulties during a
hearing, the ALJ may stop the hearing
and continue it at a later date.27 When
rescheduling the continued hearing, we
will reconsider which manner of
27 See
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68349
appearance to schedule using the factors
in 20 CFR 404.936(c)(1) and
416.1436(c)(1).
Furthermore, as discussed above, this
final rule does not affect or modify our
existing responsibilities under section
504 of the Rehabilitation Act of 1973 or
the procedures we follow in considering
requests for reasonable
accommodations. Separate and distinct
from this final rule, we will continue to
follow our long-standing procedures for
handling section 504 accommodation
requests when an individual requests an
accommodation under this law. We are
not revising our obligations under
section 504 or our reasonable
accommodation process as part of this
final rule.
Comment: One commenter stated that
the provision of full and fair hearings
for persons with disabilities requires
that we have a public-facing process for
determining the need for reasonable
accommodations and providing them at
hearings. According to the commenter,
it may be impossible to provide
disability access effectively, including
ASL and other language access, in many
of the current VTC hearing sites, and for
that reason, possible reasonable
accommodations must include
providing an in-person hearing, and this
reasonable accommodation must be
available even where the claimant has
not timely opted out of a video or audio
hearing.
The commenter cited the Hearings,
Appeals, and Litigation Law Manual
(HALLEX) I–2–0–8 and asserted that it
does not describe who is responsible for
receiving and processing
accommodation requests for hearings or
who is responsible for making sure
accommodations are provided at the
various types of hearing sites and how
long that process would take. The
commenter stated that the reasonable
accommodation information is ‘‘buried
among the hundreds of web pages on
the SSA’s website’’ and is not connected
to the Hearings and Appeals portal. The
commenter also stated that the SSA
Hearing Agreement Form and other
written information related to our
hearing and appeals process do not
provide information on how to request
a reasonable accommodation. The
commenter asserted that it is not clear
how an individual pursuing an
administrative appeal would be aware
of the process to request a reasonable
accommodation, or even know whether
they would need an accommodation
during the hearing process. According
to the commenter, individuals needing
‘‘nonstandard’’ accommodations would
require a significant amount of lead time
to make and document their
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accommodation requests. The
commenter expressed that it is
important that such individuals are able
to change their preferred method of
hearing outside the 30-day period.
Response: This final rule does not
affect or modify the procedures we
follow in considering requests for
reasonable accommodations under
current law. Rather, it simply provides
additional manners of appearance,
which will make it easier for claimants
to appear at their hearings. While we
understand that some commenters have
expressed concerns with our existing
reasonable accommodation process,
including under HALLEX I–2–0–8,
these comments are outside the scope of
this regulation change because we are
not revising our reasonable
accommodation procedures. We will,
however, take these comments under
advisement and review our existing
reasonable accommodation process,
including how to find information about
the process, for possible updates.
Technical, Communication, and Other
Considerations
Comment: One commenter cited
‘‘poor communication between [Office
of Hearings Operations] staff and
representatives when a hearing is
delayed due to scheduling or technical
issues’’ for telephone and video
appearances. The commenter also said
judges and hearing reporters are not
notified when representatives submit a
phone number or email address change
in advance, which may cause hearing
office staff to dial incorrect phone
numbers or use incorrect email
addresses, potentially resulting in
claimants or representatives being
designated as ‘‘no-shows’’ at hearings.
The commenter requested that we take
additional steps to assist claimants with
technical and other same-day problems
that arise, and suggested a portal where
the representative and claimant could
check the real-time status of the hearing
and update their contact information.
Other commenters reported difficulty
reaching a hearing office to address
similar same-day problems. For
example, one commenter said that when
there is a significant delay with the start
time of a hearing, it is difficult to reach
the hearing office to confirm the hearing
is going forward and address any
miscommunication. The commenter
urged us to make available a telephone
contact for claimants and
representatives when facing such
problems during or prior to the start of
a scheduled hearing and to ensure staff
is available and responsive by
telephone. Another commenter stated it
is difficult to communicate specifically
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with National Hearing Centers, in
particular Baltimore or Chicago, causing
unnecessary delays and continuances
through no fault of the claimant or their
office. They also said it is difficult to
have accurate scheduling, causing
delays due to conflicts.
Another commenter said it takes ‘‘too
long to even get a phone hearing.’’ The
commenter asserted that local hearing
offices may need assistance from other
States because of the ‘‘enormous
backlog,’’ especially related to Federal
remand hearings. The commenter asked
us to ‘‘focus on speeding up the
process.’’ Another commenter expressed
that many claimants are experiencing
long delays in having their hearings
scheduled, partly because of the
COVID–19 national public health
emergency, but also due to employee
shortages at their locations.
Response: We acknowledge the
concerns raised by the commenters and
are working diligently to implement
procedural and efficiency improvements
in our hearing process. The
commenters’ recommendations relate to
our internal practices and procedures,
not the policy in this final rule.
However, we appreciate the comments
and plan to consider them as we
continue evaluating and updating, as
necessary, our internal practices and
procedures to ensure appropriate
support during audio and video
appearances.
Comment: A commenter expressed
that, for online video appearances,
claimants are ‘‘overwhelmingly unable’’
to operate the Teams application
without assistance, and even with
assistance, there are often technical
difficulties. Additionally, the
commenter stated that ALJs ‘‘pushed’’
claimants to appear by telephone if
there were technical difficulties during
an online video appearance. The
commenter asserted that these situations
created concern that the ‘‘use of the
Teams app allowed for inconsistent
policies among ALJs.’’
Response: The commenter’s reported
experience does not match our data. Our
survey data showed that 83 percent of
claimants were satisfied with their
online video hearing.28 However, given
the unique factors related to online
video appearances, this final rule differs
from our proposed rule in that it
requires a claimant to agree to appear by
online video before we will schedule
that manner of appearance. Depending
on the logistics of any given case, it
28 See the Manner of Appearance, NPRM,
Supporting Data Document, available at https://
www.regulations.gov as a supporting document for
Docket SSA–2022–0013.
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might be possible to schedule a hearing
more quickly using one manner of
appearance over another, but we will
not pressure a claimant regarding their
choice to agree to online video or to
object to audio or agency video.
Regarding the commenter’s concern
about difficulties that arise during
online video appearances, this final
rule, §§ 404.944 and 416.1444, provide
that an ALJ may stop a hearing
temporarily and continue it at a later
date if one or more variables outside of
our control, such as audio quality or
video quality, materially affects the
hearing. We will then determine the
manner of appearance for a continued
hearing like we would any other
hearing. This determination involves
considering which manner would be
most efficient and any facts of the case
that provide a good reason to schedule
the claimant to appear in a certain
manner. We plan to provide additional
training to our ALJs to ensure consistent
application of this rule.
Comment: One commenter said it is
crucial to acknowledge explicitly the
need for audio in video-based
appearances, since otherwise people
might think the video option did not
include audio. The commenter stated
that we must recognize the insufficiency
of video alone for effective
communication during hearings.
According to the commenter, ignoring
the audio aspect introduces an
incomplete scenario that could lead to
potential issues.
Response: We agree with the
commenter that some individuals might
not understand our presumption that
video includes audio. Accordingly, this
final rule explains that agency video
and online video include the element of
audio.
Comment: One commenter suggested
that, in the event of an irresolvable
technical disruption, an adjourned
hearing be rescheduled expeditiously.
Response: We plan to schedule
continued hearings following
adjournments for technical difficulties
as quickly as our available resources
will allow. However, our regulations
require us to send a notice of continued
hearing at least 20 days in advance,
unless a claimant waives the 20-day
advance notice requirement.29
Objection Period and Good Cause
Comment: Some commenters
disagreed with the 30-day timeframe to
allow claimants to object to a particular
manner of appearance. One commenter
said that confining the period to 30 days
after the date the claimant receives the
29 20
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notice is more restrictive than current
practice and would ‘‘fail to recognize
the rapidly changing circumstances’’ of
claimants. Another commenter said we
should remove any deadline to object to
the manner of appearance. Others
suggested longer deadlines such as 60
days, five business days before a
hearing, and the date the hearing is
scheduled. Commenters expressed that
additional time is necessary to locate
unhoused or very low-income
claimants, especially those who lack
consistent access to communication
resources like working phones or
mailing addresses. Another commenter
stated that claimants should be entitled
to change the manner of hearing from
audio to video, or video to audio, at any
point up to five business days before a
scheduled hearing because, in the view
of the commenter, that could be
accomplished without disruption to the
hearing schedule.
Response: Although we acknowledge
commenters’ concerns about the
potential for missed opportunities to
object to a particular manner of
appearance, we did not change the 30day time period for objecting to
appearances by agency video or by
audio. Thirty days offers an appropriate
balance between allocating enough time
for claimants or their representatives to
object, while also allowing us sufficient
time to determine the manner of
appearance and schedule the hearing. It
is critical for us to know the available
manners of appearance to schedule
timely hearings because we schedule
hundreds of thousands of hearings per
year.30 A longer or indefinite time
period would delay scheduling and,
therefore, lead to longer hearing wait
times. Some of the longer time periods
suggested by the commenters, and
certainly those that approach the actual
day of the hearing, do not take into
account the disruption or delay such
last-minute changes would cause. We
schedule each hearing based on
considerations for that particular case
and the overall resources available.
We do not agree that this 30-day
period is ‘‘more restrictive than current
practice.’’ The 30-day time period to
object to an appearance by agency video
or by audio is consistent with the
current VTC objection policy in our
regulations. Even so, some commenters
may still perceive this rule as ‘‘more
restrictive’’ because under our current
business process, we generally require a
claimant’s agreement before we
schedule them to appear by telephone,
whereas this final rule gives claimants
an opportunity to object to appearing by
audio. However, we expect that the
overall flexibilities provided by this
final rule will offset any seemingly
greater restriction.
As discussed earlier, it is often
difficult to receive responses from some
claimants when we ask them to contact
us. For example, during the period from
December 2020, when we began offering
appearances by online video, until the
end of the COVID–19 national public
health emergency in May 2023, 25
percent of claimants did not respond to
our form asking if they would like to
appear by telephone or online video.31
By not requiring an ‘‘opt in’’ for audio,
we will be able to efficiently schedule
audio hearings for claimants who do not
respond. This efficient scheduling of
audio hearings will allow us to provide
more timely hearings to all claimants.
For appearances by audio, we do not
need to coordinate hearing room space
because the claimants appear from
private locations of their choice, and
ALJs generally conduct hearings from a
private location other than a hearing
room. We can also transfer cases with
audio appearances to offices and regions
with more capacity, which reduces
hearing wait times.
When we implement this final rule,
we will create a new notice and
publication explaining the different
manners of appearance and the various
requirements. We will also revise our
existing objection form so that claimants
can easily object to appearances by
agency video or by audio, and we will
create a new form on which claimants
can agree, if they would like, to appear
by online video.
Finally, as in our current rule, we will
extend the time period if a claimant
shows they had good cause for missing
the deadline. We expect that this good
cause provision will effectively
accommodate those who lack consistent
access to communication resources.
30 See the Setting the Manner of Appearance of
Parties and Witnesses at Hearings, Final Rule,
Supporting Data Document, available at https://
www.regulations.gov as a supporting document for
Docket SSA–2022–0013.
31 See the Setting the Manner of Appearance of
Parties and Witnesses at Hearings, Final Rule,
Supporting Data Document, available at https://
www.regulations.gov as a supporting document for
Docket SSA–2022–0013.
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Unique Considerations for Online Video
Appearances
Comment: Commenters stated that
many claimants have limited or
unreliable access to electronic devices
or high-speed broadband access. One
commenter said that many of the same
claimants who could successfully use
online hearing options are those best
positioned to elect an alternative form of
appearance.
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68351
Response: We understand from these
comments that we need to consider
appearances by online video differently
than other manners of appearance. This
difference is needed because
appearances by online video require
using private electronic devices that we
do not own, operate, or specifically
approve and also using third-party
software. Therefore, in this final rule,
we created two categories of video
appearances: (1) agency video and (2)
online video. Agency video means
video, with audio functionality, using
our equipment in one of our offices.
Online video means video, with audio
functionality, using a personal
electronic device in a private location
the claimant chooses.
Furthermore, because of the unique
circumstances involved in appearances
by online video, we will only schedule
appearances by that manner if the
claimant agrees. Thus, there will be no
need for claimants to object to appearing
by online video. We are not requiring
claimants’ agreement for audio or
agency video appearances because those
manners of appearance do not involve
the same unique circumstances as
online video. Particularly significant is
the fact that audio and agency video
appearances do not require using thirdparty software.
We will send claimants a notice
informing them that we may schedule
them to appear by online video if they
agree to appear in that manner. To agree
to appear by online video, claimants
must notify us in writing within 30 days
of receiving that notice. We are adopting
a 30-day deadline because we need to
know early in the process whether a
claimant agrees to appear by online
video in order to help schedule timely
hearings for all claimants. Moreover,
changing the manner of appearance after
we schedule a hearing requires us to
send an amended notice of hearing at
least 20 days before the hearing, which
may require us to reschedule the
hearing for a later date unless we are
able to obtain a written waiver from the
claimant.32 We will extend the 30-day
time period for agreeing to online video
if the claimant shows that they had good
cause for missing the deadline. We will
evaluate good cause using the standards
in 20 CFR 404.911 and 416.1411. Within
our discretion and where possible, even
without a showing of good cause, we
will still consider a request to change
the manner of appearance to online
video after the 30-day time period if it
would be efficient to conduct the
hearing in that manner and the
circumstances in the case provide a
32 20
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good reason to schedule the claimant’s
appearance by online video.
Good Cause for Missing the 30-Day
Objection Period
Comment: According to one
commenter, the examples of good cause
for untimely objections identified in
proposed 20 CFR 404.936(d)(2) and
416.1436(d)(2) are problematic, creating
a loophole in the rule that would
effectively eliminate the deadline for
objecting to audio and video
appearances. One example of good
cause for an untimely objection that we
provided in the NPRM was
disagreement with the terms of service
for a third-party application. The
commenter said if that were enough to
show good cause for an untimely
objection, any claimant would be able to
successfully raise an objection at any
time simply by claiming to disagree
with the terms of service of the thirdparty application we use. Thus, we
would be required to schedule the
claimant to appear in another manner
whenever a claimant scheduled for an
online video appearance stated
disagreement with the terms of service,
even if that claimant waited until a day
before the originally scheduled hearing.
The commenter expressed this would be
disruptive to hearing operations,
requiring last-minute postponement of
hearings and loss of productivity, which
has been a ‘‘major undesirable feature of
the current opt-in, object-at-any-time
hearing process.’’ The commenter
suggested that if we think the rule needs
to specify examples of good cause for
untimely objections, the examples
should involve much more compelling
circumstances, such as those currently
required for untimely objections to
VTC.33 The commenter expressed it
may be better not to provide examples,
and rather leave it to ALJs to exercise
their judgment in determining whether
good cause for untimely objections has
been shown.
Another commenter stated that the
two examples of good cause from the
NPRM (disagreement with the terms of
service of the third-party application or
lack of resources to appear by video) do
not establish good cause because both
scenarios can be ascertained within the
30-day timeframe for objection.
Response: We did not adopt the two
examples of good cause provided in the
NPRM because they pertained to
objections to appearing by online video
only. Under this final rule, a claimant
does not need to object to appearing by
online video. Rather, this final rule
provides that we will not schedule a
33 The
commenter cited 20 CFR 404.911.
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claimant to appear by online video
unless the claimant agrees to appear in
that manner, and it provides that a
claimant may withdraw their agreement
to appear by online video at any time
before the start of the hearing. If the
claimant withdraws their agreement, we
will reschedule the claimant to appear
by one of the other available manners of
appearance. While we will try to
reschedule the hearing as quickly as
possible, the time to reschedule will
depend on multiple factors, including
representative, expert witness and ALJ
availability, as well as available hearing
slots. Additionally, we can reschedule
the hearing no earlier than 20 days after
the withdrawal unless the claimant
waives in writing the advanced written
hearing notice requirement.34 Although
we did not adopt the two examples of
good cause provided in the NPRM, a
claimant may still submit a late
objection to appearing by audio or
agency video. If we receive a late
objection, we will use the standards in
20 CFR 404.911 and 416.1411 to
evaluate whether good cause exists for
missing the deadline.
Comment: According to some
commenters, we should expand upon
the circumstances in which claimants
can opt out of manners of appearance
beyond the 30-day objection period.
Some commenters said we should do
this by adding more examples of what
would constitute good cause to change
the manner of appearance.35 Other
commenters said we should specify
circumstances that would not require a
good cause determination but would
still permit us to change the manner of
appearance beyond the objection period.
According to one commenter, while
retaining ‘‘good cause’’ exceptions for
claimants with extenuating
circumstances is important, it is not
sufficient because good cause
exceptions are individualized
determinations based on judgment.
Instead, according to the commenter, in
certain situations, claimants should be
able to automatically modify the manner
of appearance. Some commenters stated
that such requests should be processed
by hearings staff, without involvement
of the ALJ. Commenters provided
34 20
CFR 404.938 and 416.1438.
regulations provide examples of good
cause for missing a deadline in 20 CFR 404.911 and
416.1411. Also, in the NPRM, we proposed to
include examples of some circumstances that
would apply specifically to online video
appearances: ‘‘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.’’ See 88 FR 32148, 32152, and 32153 (May
19, 2023). We removed the NPRM examples from
this final rule.
35 Our
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examples of circumstances they asserted
should allow claimants to change their
manner of appearance beyond the
proposed objection period without
requiring a good cause determination.
Some of the suggested circumstances
include:
• If the claimant obtains counsel for
their disability hearing.
• If claimants change or obtain new
counsel.
• If there is a change of address.
• If there is a change in medical
condition, including hospitalization,
because some of these changes may
impact accessibility to certain hearing
formats.
• If the custody or guardianship of a
child changes.
• If the claimant is homeless.
• If the claimant lacks necessary
equipment, such as a personal
electronic device with internet access.
• If the claimant never received the
notice to object due to mailing
problems, homelessness, illiteracy, or
inability to read English.
• Lack of proper identification (for
hearings in government buildings).
One commenter expressed that
because claimants may have ‘‘long wait
times of multiple years before getting to
appear at a hearing before an ALJ, this
process ought to account for changes in
circumstances with flexibility and
lenient consideration.’’ Another
commenter said that claimants
unfamiliar with hearing modalities
offered will not likely know whether
they need to request an accommodation
or may assume that accommodations
will be easily provided. Additional
commenters said that a claimant who
elects or defaults to a video or audio
appearance may not understand the
nature of the appearance, and allowing
changes in manner of appearance until
a hearing is scheduled promotes
informed decisions.
According to a commenter, the lack of
clarity regarding what constitutes good
cause to object to appearing by VTC
(under current regulations) has resulted
in ALJs denying late objections for
circumstances that would likely have
been granted if detailed with further
clarity.
Finally, a commenter expressed that,
in addition to the reasons we would
allow a change, the rule should clarify
whether, how, when, and how often a
claimant can change their manner of
appearance preference.
Response: We did not adopt these
comments. This final rule does not
include the two examples of good cause
from the NPRM because, as discussed
above, those examples are unnecessary
based on changes to the final rule.
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We retained the policy in our current
regulations for evaluating good cause for
an untimely objection. Under that
policy, we use the standards in 20 CFR
404.911 and 416.1411 to evaluate good
cause. We have been using those
standards to evaluate good cause for
missing the deadline to object to a VTC
appearance for nearly a decade.36 Those
standards are broad and effective, and
they are appropriate for considering a
wide range of reasons for missing a
deadline, including those identified by
the commenters.
Expanding the standards for
evaluating good cause too broadly,
including by adding more across-theboard examples that would require a
change at any time, would disrupt the
efficiency of our hearing process.
Therefore, it is important to retain our
current standards, which have worked
well for a long time, and which allow
us to make case-specific good cause
determinations based on individual
circumstances.
Our ALJs are well positioned to
evaluate good cause and have extensive
experience doing so. While a
commenter suggested that ALJs do not
evaluate good cause appropriately, the
commenter did not provide examples,
and the commenter’s suggestion does
not match our experience.
Comment: Some commenters
expressed concerns that the proposal
may cause a surge in discretionary good
cause determinations. One commenter
said many claimants will object after the
30-day period, and that requiring ALJ
decisions on an ‘‘influx’’ of requests to
change the manner of appearance for
good cause will likely weigh the agency
down with administrative burdens and
erode uniformity and equity of claim
outcomes. The commenter said that the
addition of a new discretionary
procedure will most likely hurt the
least-resourced and furthest
marginalized claimants.
A different commenter stated that
there may be an increase in claimants
unable to attend hearings by audio or
video because they either did not know
of those manners of appearance or are
unable to attend in the manner
scheduled, which ‘‘will further increase
the administrative courts issuing Orders
to Show Cause (OSC) for failure to
appear.’’ The commenter stated that
ALJs will be required to rule on OSC
responses, requiring subsequent
administrative action that would be
otherwise unnecessary.
36 In 2014, we added the provision that we would
evaluate good cause for untimely VTC objections
using the standards in 20 CFR 404.911 and
416.1411. 79 FR 35926.
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Response: We disagree with these
commenters. We do not anticipate an
influx of untimely objections, and we do
not anticipate delays or lack of
uniformity in our good cause
determinations. As we noted in our
other responses, our ALJs have
extensive experience evaluating good
cause under the standards in 20 CFR
404.911 and 416.1411. Our ALJs have
been doing so regarding VTC objections
since 2014 37 and regarding other
deadlines for nearly three decades.38
There is nothing unique about
appearances by agency video or by
audio that would necessitate a change.
Moreover, we expect that the manners
of appearance in this final rule will
make it easier for many claimants,
especially those facing barriers to
service, to attend their hearings. As
such, we anticipate that fewer—not
more—claimants will fail to appear at
their hearings, which will result in the
need to issue fewer Requests to Show
Cause for Failure to Appear (Form SSAHA–L90s).
In-Person Appearances
Comment: Multiple commenters
expressed support for retaining inperson hearings as the default manner of
appearance. One commenter asserted
that changing the default manner of
appearance will ‘‘adversely affect
vulnerable claimants.’’ They expressed
that many claimants, particularly those
who are unhoused or lack reliable
access to mail, are not always able to
respond to notices regarding the manner
of appearance. Some commenters said
that mail service remains ‘‘spotty at
best’’ in many low-income
neighborhoods and claimants facing the
most significant barriers, including
homelessness, poverty, and housing
instability, move frequently. According
to some commenters, our inability to
reach approximately 30 percent of
claimants (data we reported in the
NPRM) should not be ‘‘interpreted as
endorsement of, or acquiescence to, the
change in platforms.’’ The commenter
expressed that a change in the default
manner of appearance could create a
group of claimants who would have
elected an in-person hearing, but
because of housing insecurity, physical
or behavioral deficits in their ability to
read and understand, or other reasons,
are forced into a manner of appearance
which they did not choose.
Another commenter said the ‘‘onus
should not be on the claimant to
37 See
79 FR 35926.
set forth good cause provisions in 20 CFR
404.911 and 416.1411 in 1980, and we amended
them to their current form in 1994.
38 We
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affirmatively pursue and protect their
right to appear at their hearing in
person.’’ According to the commenter,
the proposed regulations ‘‘unfairly shift
the burden of preserving the right to
appear in person on the claimant by
requiring them to object, but also
require the claimant to navigate a
duplicative, cumbersome process to do
so.’’ According to a different
commenter, audio hearings are a ‘‘true
disservice to the disabled individuals
seeking benefits,’’ and unless claimants
specifically request audio, it ‘‘deprives
them of a full and fair hearing,
particularly if they are not represented.’’
Another commenter asserted that
telephone hearings do not provide
claimants with an opportunity to fully
present their case, which causes cases to
be ‘‘decided unfavorably due to an error
by the ALJ that would have been
avoided in an in-person hearing.’’ The
commenter said that the denial rate for
telephone hearings didn’t reflect what
they expected based on their experience
with the ALJs in their region, and they
found many decisions were ‘‘so
deficient as to require appeal.’’ The
commenter expressed that in-person,
local hearings should be the preferred
manner of appearance.
Another commenter said that, unless
a particular claimant has indicated a
preference for an audio or video
appearance, they should be scheduled
for an in-person appearance to enable
the ‘‘fullest evaluation of their claim.’’
According to some commenters, inperson appearances are often necessary
for an adjudicator to fully observe the
physical manifestations of a claimant’s
disabilities (such as their physical
functioning, scars, mannerisms, and
hygiene) and accurately assess a
claimant’s credibility. A commenter
stated that confused or anxious looks
can be visual evidence of confusion or
anxiety. Another commenter said that
claimants often must testify to highly
personal, emotional, traumatic
symptoms and events, and that
requiring them to testify in a manner
contrary to their choice may lead to less
claimant disclosure and decisions based
on incomplete information.
One commenter said that scheduling
audio or video appearances without
providing a meaningful opportunity to
opt out effectively removes a claimant’s
one chance to engage in an in-person
interaction with a decision-maker for
the entire disability determination
process (since we usually rely on
document review for the initial and
reconsideration determinations, and the
Appeals Council and District Court
appellate processes). According to the
commenter, allowing in-person
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appearances for all who choose it
‘‘demonstrates respect’’ and ‘‘promotes
dignity and transparency in what may
appear to be a largely invisible and
impersonal process.’’ Further, the
commenter said defaulting to audio or
video appearances demotes this process
to one that may feel ‘‘less legitimate,
presenting a significant disruption to
the human element of disability
adjudication.’’ Another commenter
stated this is the first interaction that
some claimants have with the American
legal system and the right to be heard in
person. They expressed that this is a
core value in our justice system and any
changes we make should not erode this
right.
Response: We are not eliminating inperson appearances, nor are we making
in-person appearances the default.
Under this final rule, we will generally
schedule a claimant to appear in person
if the claimant timely objects to
appearing by audio and agency video
and if the claimant does not timely
agree to appear by online video.39
Absent an objection, we will not default
to scheduling claimants by agency video
or by audio. Rather, under 20 CFR
404.936(c)(1)(ii) and 416.1436(c)(1)(ii) of
this final rule, we will consider which
manner would be the most efficient and
any facts that provide a good reason for
a specific manner of appearance. Thus,
we may schedule an in-person
appearance if we determine it is
necessary.
This final rule adds flexibility to our
policy on manners of appearance and
gives claimants an opportunity to have
input on their own manner of
appearance. Many other commenters
highlighted the benefits of, and indeed
a preference for, appearances by audio
and video. For example, commenters
noted that audio and video appearances
will result in greater overall flexibility
for claimants. Commenters also stated
that both video and audio appearances
can be advantageous for claimants who
have limited transportation options,
who live far from hearing offices, or
who have circumstances like limited
mobility or severe anxiety. Furthermore,
our experience stemming from the
COVID–19 national public health
emergency shows that many claimants
desire to appear by audio or video.40
Since we began reopening our offices to
39 In limited circumstances, we may not schedule
the claimant to appear in person, see 20 CFR
404.936(d)(2)–(5); 404.937(b)(2), (c); 416.1436(d)(2)–
(5); and 416.1437(b)(2), (c).
40 See the Setting the Manner of Appearance of
Parties and Witnesses at Hearings, NPRM,
Supporting Data Document, available at https://
www.regulations.gov as a supporting document for
Docket SSA–2022–0013.
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the public in March 2022, many
claimants continue to choose a
telephone or online video appearance.
Since March 2022, approximately 70.5
percent of hearing appearances have
occurred by telephone, 14.4 percent by
online video, 13.6 percent in person,
and 1.5 percent by VTC.41 Our survey
data also showed that 83 percent of
claimants were satisfied with their
online video hearing.42 The audio,
agency video, and online video manners
of appearance in this final rule will help
us to balance workloads and reduce
wait and processing times, thereby
providing more timely hearings for
claimants.
We disagree with one commenter’s
assertion that audio appearances result
in more denials to claimants. The
commenter did not provide any data to
support the assertion. Furthermore,
comments about assessing a claimant’s
credibility are an inaccurate description
of our rules because our ALJs do not
evaluate a claimant’s credibility.
Instead, our ALJs evaluate the intensity,
persistence, and limiting effects of an
individual’s symptoms based on all the
evidence of record. We do not assess a
claimant’s overall character or
truthfulness in the manner typically
used during adversarial litigation.43
In conclusion, it would be as
inappropriate for us to automatically
assume that a claimant prefers to appear
at a hearing in-person as it would be for
us to assume the claimant wants to
appear by online video. Indeed, we
designed this final rule to allow
claimants to have input into the manner
in which they will appear at hearings.
Comment: One commenter said the
proposed rule has the potential to
improve on our current practice,
primarily because it creates an opt-out
41 See the Setting the Manner of Appearance of
Parties and Witnesses at Hearings, Final Rule,
Supporting Data Document, available at https://
www.regulations.gov as a supporting document for
Docket SSA–2022–0013.
42 From July 2021 through July 2022, we sent
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.
The overall satisfaction score was 4.2 or higher, and
83 percent or more of respondents in each month
reported an overall satisfaction rate of a 4 or 5. See
the Setting the Manner of Appearance of Parties
and Witnesses at Hearings, NPRM, Supporting Data
Document, available at https://www.regulations.gov
as a supporting document for Docket SSA–2022–
0013.
43 See 20 CFR 404.1529(c)(3) and 416.929(c)(3)
and Social Security Ruling (SSR) 16–3p.
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process for audio and video appearances
and provides a deadline for opting out.
This opt out process is in contrast to the
current process, which requires opting
in for audio and video appearances and
allows claimants and representatives to
‘‘disrupt’’ hearing schedules by raising
objections to audio and video
appearances at any time. Another
commenter stated that ‘‘in-person
hearings should not be the automatic
default for claimants’’ and that
claimants usually prefer video to inperson hearings, as they can appear
from home yet ‘‘still see the ALJ and be
seen clearly, with very few cases of tech
problems.’’
Response: We agree that appearances
by audio, agency video, and online
video provide significant benefits to
claimants, representatives, and us.
However, as discussed above, under this
final rule, we will only schedule an
online video appearance if the claimant
agrees because of the unique
circumstances of that manner of
appearance.
Comment: One commenter expressed
concerns that our proposed regulations
would lead to local hearing offices
staffed with only a few ALJs willing to
hold hearings with in-person
appearances, and that there would be
pressure on claimants to choose an
alternative option to have their case
heard ‘‘earlier’’ by a remote ALJ by
video or audio. The commenter
recommended that we continue to staff
local hearing offices with sufficient ALJs
to hold hearings with in-person
appearances. Another commenter
requested that we update our policy to
describe the ‘‘need to conduct hearings
using multiple formats during an [ALJ’s]
day.’’ According to the commenter, too
often, the convenience of our employees
outweighs the needs of claimants to
have their hearings held using first-in
first-out scheduling.
Response: We will continue to staff
our hearing offices, budgets permitting,
with sufficient personnel, including
ALJs, to accommodate in-person and
agency video appearances. For an inperson appearance, we have a fixed
number of hearing rooms, which we
must coordinate the scheduling of
among our ALJs and claimants. We also
do not have the ability to transfer a case
with an in-person appearance to a nonlocal hearing office with more capacity.
For appearances by audio and online
video, we do not need to coordinate
hearing room space because the
claimants appear from private locations
of their choice, and ALJs generally
conduct hearings from a private location
other than a hearing room. We can also
transfer cases with audio, agency video,
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and online video appearances to offices
and regions with more capacity, which
reduces hearing wait times. An
advantage of this final rule is that it
allows us to transfer cases to fill hearing
office capacity without the geographic
limitations of the current rules.
Although we strive wherever possible to
process cases in order, the flexibilities
and efficiencies this final rule provides
may result in a slight deviation from the
first in, first out order to optimize our
hearing process overall. Depending on
the logistics of a particular case, it might
be possible to schedule appearances by
audio or video more quickly than in
person, but we will not pressure a
claimant regarding their choice to agree
to online video or to object to audio or
agency video. This final rule does not
prioritize the convenience of our
employees over our claimants. Finally,
because we temporarily closed our
offices for a period during the COVID–
19 national public health emergency
and we reopened our offices gradually,
we communicated to claimants that
scheduling would be delayed for
individuals who did not agree to appear
by telephone or online video. Now that
the emergency has ended, we no longer
communicate that scheduling in-person
appearances will be delayed.
Due Process
Comment: One commenter said our
proposal would limit claimants’ rights
to request in-person hearings and
thereby affect their right to due process.
The commenter stated that the Supreme
Court has held that, in a case involving
welfare, a recipient has a due process
right to a hearing before they can be
deprived of benefits, and that due
process requires the opportunity to be
heard ‘‘at a meaningful time and in a
meaningful manner.’’ The commenter
referred to a study that, according to the
commenter, found a deprivation of an
in-person hearing for people seeking
asylum resulted in an increased risk of
negative outcomes.44 The commenter
stated that a court today would find that
due process requires the right to an inperson hearing, particularly in claims
for Supplemental Security Income (SSI).
As such, the commenter asserted that
the rule, as proposed, would potentially
violate the procedural due process
rights of Social Security claimants.
Another commenter expressed that
‘‘procedural Due Process serves two
basic goals: (1) preventing the wrongful
deprivation of interests, and (2)
44 The commenter cited Frank M. Walsh; Edward
M. Walsh, Effective Processing or Assembly-Line
Justice—The Use of Teleconferencing in Asylum
Removal Hearings, 22 Geo. Immigr. L.J. 259, 275
(2008).
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promoting fairness by providing a
meaningful opportunity for individuals
to share their side of the story with the
government.’’ According to the
commenter, ‘‘imposed’’ audio or video
appearances that conflict with a
claimant’s preferred manner of
appearance militate against both goals.
The commenter said a ‘‘sizeable
number’’ of claimants will lack the
capacity to respond in 30 days.
According to the commenter, if these
claimants are scheduled for an audio or
video appearance and are unable to
appear at the remote hearing because
they lack notice and the necessary tools
to appear, such as a phone or computer,
their claims will likely be dismissed for
failure to appear. The commenter stated,
for this reason, this change in policy
will increase procedural dismissals in
substantively valid disability claims,
significantly violating claimants’ due
process rights.
Response: This final rule will help to
safeguard a claimant’s right to a full and
fair hearing. Barring limited
circumstances, no provisions in this
final rule limit a claimant’s ability to
appear at a hearing in person, if the
claimant wants to appear in that
manner. Moreover, the procedures set
forth in this final rule are similar to the
procedures in our current rules,
procedures that have operated well for
many years.
Under our current rules, if a claimant
wants to appear at a hearing in person,
instead of by VTC, the claimant can
object to appearing by VTC within a 30day period. Claimants who have good
cause for missing the 30-day deadline
can submit a late objection. If the
claimant objects timely to appearing by
VTC (or objects after the 30-day period
and we find good cause for late filing),
and the claimant’s residence does not
change, we will schedule the claimant
to appear at a hearing in person.
Similarly, under this final rule, if a
claimant wants to appear at a hearing in
person, instead of by audio, agency
video, or online video, the claimant can
object to appearing by audio and agency
video within the same 30-day period, or
can submit a late objection based on a
showing of good cause for missing the
deadline. We will not schedule an
appearance by online video unless the
claimant agrees. If the claimant objects
timely to appearing by audio and agency
video (or objects after the 30-day period
and we find good cause for the late
filing), the claimant’s residence does not
change, and the claimant has not agreed
to appear by online video, we will
schedule the claimant to appear at a
hearing in person. Thus, a claimant has
the same opportunity to appear at a
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68355
hearing in person under this final rule
as under our current rules.
Under this final rule as well as under
our current rules, there are very limited
circumstances where we will schedule a
claimant to appear at a hearing by audio
despite the claimant’s objection to
appearing in that manner. For example,
under this final rule, we will schedule
a claimant to appear by audio when we
cannot schedule the claimant to appear
by video, e.g., because the claimant
objected to appearing by agency video
and did not agree to appear by online
video, and extraordinary circumstances
prevent the claimant from appearing in
person.45
We take seriously our responsibility
to ensure that claimants receive full and
fair hearings as well as accurate hearing
decisions. Our experience with VTC
appearances over the last 20 years, and
our more recent experience with online
video and telephone appearances during
the COVID–19 national public health
emergency shows that claimants do not
have to appear in person to be heard
meaningfully. Our ALJs look fully into
the issues and follow the same policies
and procedures, regardless of the
claimant’s manner of appearance. If a
variable outside an ALJ’s control, such
as audio or video quality, were to
materially affect a hearing, this final
rule, §§ 404.944 and 416.1444, provide
that the ALJ may stop the hearing
temporarily and continue it at a later
date.
While a commenter opined that due
process requires an in-person
appearance, particularly for claimants
seeking SSI, the commenter did not
explain why. Instead, the commenter
referenced a study that, according to the
commenter, concluded that VTC
hearings for people seeking asylum
resulted in an increased risk of negative
outcomes.46 Notably though, an asylum
removal hearing differs significantly
from a Social Security hearing. An
asylum removal hearing is an
adversarial proceeding, whereas a
hearing on a claim for benefits under the
Social Security Act is informal and nonadversarial.47
45 See 20 CFR 404.936(d)(2) and 416.1436(d)(2).
Under this final rule, we may also schedule a
claimant to appear by audio, despite a timely
objection to appearing in that manner, as set forth
in 20 CFR 404.936(d)(3)–(d)(5), 404.937(b)(2),
404.937(c), 416.1436(d)(3)–(d)(5), 416.1437(b)(2),
and 416.1437(c).
46 The article the commenter cited regards the use
of video conferencing in asylum removal hearings.
See Walsh & Walsh, supra note 43.
47 See Johanna Selberg, Truth and Trauma:
Exploring the Merits of Non-Adversarial Asylum
Hearings, 35 Geo. Immigr. L.J. 929, 932 (2021)
(describing defensive, adversarial asylum
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Our ALJs are neutral decision-makers
who develop all of the facts regarding a
benefit claim. An immigration judge
does not perform that same fact-finding
function. Rather, an immigration judge
rules on the evidence presented by the
parties, one of whom is the United
States, represented by an Immigration
and Customs Enforcement attorney.
Additionally, the study the commenter
referenced notes that the testimony of
an asylum applicant at an asylum
hearing is especially important because,
in order to meet the definition of
‘‘refugees,’’ they must have fled their
country and may have little to no
documentation to support their
allegations of persecution.48 Thus, an
asylum removal hearing is not
comparable to a Social Security hearing.
As previously explained, our experience
shows that claimants receive full and
fair hearings regardless of whether they
appear in person or by VTC, online
video, or audio.
Furthermore, even in relation to the
asylum example cited by the
commenter, courts have upheld the use
of video conferencing for asylum
hearings. Those courts have examined
whether the asylum petitioner received
a full and fair hearing based on the facts
of the individual case, including the use
of video conferencing.49
As noted elsewhere, this final rule
recognizes that some claimants may not
want to appear at a hearing by agency
video or by audio, but, due to personal
circumstances, may be unable to meet
the deadline to object to those manners
of appearance. In those circumstances,
and others, we will extend the deadline
for submitting an objection if the
claimant shows good cause for missing
it. And, again, this final rule specifies
that we will only schedule a claimant to
appear by online video if they agree to
an appearance in that manner.
Ultimately, we expect this final rule
will make it easier, not more difficult,
proceedings before an immigration judge); 20 CFR
404.900(b), 416.1400(b) (explaining that we conduct
our administrative review process in an informal,
non-adversarial manner).
48 Walsh & Walsh, supra note 43, at 273.
49 See, e.g., Miller v. Att’y Gen. of U.S., 397 F.
App’x 780, 783 (3d Cir. 2010) (finding that the
petitioner did not show that use of video
conferencing prevented the immigration judge from
properly considering the record or testimony, and
noting there was no basis to conclude that the
immigration judge’s ruling would have been
different if the petitioner had appeared in person);
Rapheal v. Mukasey, 533 F.3d 521, 531 (7th Cir.
2008) (‘‘No court has ever held that Congress has
violated the due process clause by authorizing
removal hearings to proceed via video
conference.’’); Rusu v. U.S. I.N.S., 296 F.3d 316,
322–24 (4th Cir. 2002) (noting the potential negative
impacts of video conferencing, but finding that the
petitioner appeared to have a meaningful
opportunity to be heard).
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for claimants to attend hearings. As
multiple commenters recognized,
making audio and video appearances
available helps claimants who, for a
variety of reasons, have difficulty
traveling to, or participating from, our
offices.
Additionally, under our longstanding
procedures, if neither the claimant nor
the appointed representative, if any,
appears for a scheduled hearing, we will
not dismiss the request for hearing if the
claimant shows good cause for failing to
appear.50
Comment: Another commenter said
the proposed regulation’s shift of
burden (modifying the requirement that
a claimant ‘‘consent to appear at a
hearing’’ to requiring claimants to
‘‘object to appearing at a hearing by
video, audio, or both’’) conflicts with
the ‘‘individual’s right to appear, in
person or through a representative.’’
According to the commenter, ‘‘absent
direct expression by U.S. Congress to
depart from this enacted right, the
Administration cannot implement
regulations to change it.’’ The
commenter asserted that pursuant to
Social Security Ruling (SSR) 79–19,51 an
individual’s waiver of the right to
personal appearance at a hearing needs
to be ‘‘made voluntarily and
knowingly.’’ The commenter said that a
claimant who has not objected to appear
remotely has neither ‘‘voluntarily nor
knowingly’’ waived the right to appear
in person. The commenter asserted that
it follows that claimants also have the
option to rescind an election for remote
appearance at any time.
Response: The commenter has
misconstrued SSR 79–19. That SSR
provides guidance about waiver of a
claimant’s statutory right to appear at a
hearing, either personally or through a
representative. Under our regulations,
an ALJ may decide a case without a
hearing if all the parties to the hearing
indicate in writing that they do not wish
to appear at a hearing.52 SSR 79–19
requires the agency to give a claimant
who files a request for hearing a
thorough explanation of the hearing
procedures to help convey the
importance of those procedures, and it
sets forth the requirements for a valid
waiver of the right to appear at a
hearing. Contrary to the commenter’s
statement, SSR 79–19 does not relate to
manners of appearance, and neither SSR
79–19 nor any other authority requires
a claimant to voluntarily and knowingly
CFR 404.957(b) and 416.1457(b).
SSR 79–19, available at https://
www.ssa.gov/OP_Home/rulings/oasi/33/SSR79-19oasi-33.html.
52 20 CFR 404.948(b)(1)(i) and 416.1448(b)(1)(i).
waive the opportunity to appear in
person before we can schedule another
manner of appearance. Moreover, under
our current rules, we routinely schedule
claimants to appear at hearings by VTC,
without requiring any waiver of the
opportunity to appear in person.53
Other
Comment: Multiple commenters said
a claimant should have the right to a
hearing before an ALJ who is local to the
claimant’s residence. According to
commenters, local healthcare options,
cultural and other barriers to evidence,
language, and other regional differences
contribute to a claimant receiving a
higher quality hearing before a local
ALJ. Some commenters said that the
proposed regulations ‘‘continue to
encourage a problematic slide within
our agency toward scheduling hearings
with ALJs who lack knowledge of the
claimant’s region.’’ Other commenters
expressed that local ALJs are familiar
with unique vocational factors and
know the specific circuit’s case law. In
addition, a commenter said local
attorneys have sufficient experience and
knowledge of local ALJs’ preferences,
ranging from supplying evidence, to
brief formatting and content, to how
hearings are conducted. The commenter
stated that familiarity with an ALJ’s
preferences allows the entire hearing
process to run more efficiently, and the
consequential increased need to appear
before non-local ALJs will result in
longer hearings and more supplemental
hearings, costing more in the end. The
commenter said, in some cases, remote
ALJs have seemed ‘‘disparaging and
unreasonably disbelieving’’ of claimants
from the commenter’s region, which has
a ‘‘distinct cultural identity and racial
and ethnic demography.’’
Another commenter stated that the
proposed notices do not inform
claimants that choosing a remote
appearance may result in their case
being transferred to ‘‘any hearing office
in the country,’’ and took issue with the
lack of notice regarding the potential for
cases to be transferred outside one’s
local hearing office.
Response: We did not adopt these
recommendations because claimants do
not have a statutory right to a hearing
in their region or locally. We administer
a national program, and, unless a
relevant acquiescence ruling applies,
our ALJs apply our national policies to
50 20
51 See
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53 Under our current rules, we generally will not
schedule a claimant to appear by VTC if the
claimant timely objected to appearing in that
manner. 20 CFR 404.936(d) and 416.1436(d).
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lotter on DSK11XQN23PROD with RULES1
all cases.54 We also have extensive
experience conducting hearings with
ALJs who are in different locations than
our claimants. For example, ALJs at our
National Hearing Centers conduct
hearings with claimants located
throughout the nation. In addition, we
transfer cases to other offices and
regions to help balance our processing
times. As we explained in our NPRM,
we transferred approximately 17 percent
of our cases in fiscal year 2022.55
Our policy requires ALJs to conduct
fair and impartial hearings 56 and we
have processes and procedures in place
to address any issues that arise.57
Indeed, as previously explained in this
rule, one of the driving factors behind
this regulation is the desire to achieve
greater equity for all claimants,
including those from historically
underserved racial or ethnic groups.
Comment: One commenter said
claimants and their representatives
should be allowed to opt for video
appearances in every case, and they
should never be required to appear by
audio if they seek a video appearance
(where the ALJ can observe the
claimant).
Response: As we stated in an earlier
response, it is not administratively
feasible to allow claimants to select
their preferred manner of appearance.
However, this final rule provides for
claimant input by allowing claimants to
object to appearing by audio or agency
video and by requiring a claimant’s
agreement to an appearance by online
video. We must have flexibility in our
scheduling process because we schedule
hundreds of thousands of hearings per
year, and flexibility enhances our
efficiency.
If a claimant does not want to appear
by audio, they can object to appearing
in that manner. Under this final rule, we
will generally not schedule an
appearance by audio if the claimant
timely objects to appearing in that
manner. Generally, we will only
schedule an appearance by audio,
54 20 CFR 404.985 and 416.1485 and SSR 96–1p,
available at https://www.ssa.gov/OP_Home/rulings/
di/10/SSR96-01-di-10.html.
55 See the Manner of Appearance, NPRM,
Supporting Data Document, available at https://
www.regulations.gov as a supporting document for
Docket SSA–2022–0013.
56 See HALLEX I–2–3–10 B.1 available at https://
www.ssa.gov/OP_Home/hallex/I-02/I-2-3-10.html
(‘‘Regardless of a claimant’s manner of appearance
at the hearing, the [ALJ] must inquire fully into all
matters at issue and conduct the hearing in a fair
and impartial manner.’’).
57 See SSR 13–1p available at https://
www.ssa.gov/OP_Home/rulings/oasi/33/SSR201301-oasi-33.html and HALLEX I–1–8–4 available at
https://www.ssa.gov/OP_Home/hallex/I-01/I-1-84.html and I–3–3–2 available at https://
www.ssa.gov/OP_Home/hallex/I-03/I-3-3-2.html.
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16:05 Aug 23, 2024
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notwithstanding an objection to
appearing in that manner in very
limited circumstances, when an
appearance by video or in person is not
available.58 This is consistent with our
current rules, which allow us to require
an appearance by telephone in certain
limited circumstances. Despite the
current provisions, we have historically
required a telephone appearance in very
few cases. Even during the COVID–19
national public health emergency, we
asked claimants if they agreed to appear
by telephone before holding a hearing in
that manner. Similarly, under this final
rule, we expect that we will require a
claimant to appear by audio
notwithstanding their objection in few
cases.
Comment: Multiple commenters
indicated that the current election
form 59 should be more user friendly.
One commenter said that many
claimants are confused by the current
form, which has led those who would
have preferred an audio or video
appearance to wait years for an inperson appearance because they did not
understand how to communicate their
agreement to audio or video to us. The
commenter provided a sample form and
suggested we designate it as the
‘‘Manner of Appearance Election For
Social Security Administrative Law
Judge Hearings.’’ They also suggested
that we include the form with the letter
that informs the claimant of the hearing
process. Commenters said the letter
should make clear that the claimant has
30 days to respond, or the hearing will
be scheduled in person. According to
the commenter, the proposed form
could also be used to indicate a
claimant’s request to change the manner
of appearance and the reason for the
requested change.
Another commenter said the notice
should explain how effectively ASL and
other language access can be provided
with each manner of appearance,
including how all participants will be
shown on the screen, when applicable,
and whether there will be a number to
call on the day of the hearing if they run
into trouble accessing the hearing. An
additional commenter expressed that
there should be a more accessible
method for claimants and
representatives to state a preference for
an in-person, audio, or video
appearance.
58 See 20 CFR 404.936(d)(2)–(5); 404.937(b)(2),
(c); 416.1436(d)(2)–(5); and 416.1437(b)(2), (c).
59 Commenters likely referred to Remote Hearing
Agreement Form (OMB control no. 0960–0671),
available at: https://www.ssa.gov/appeals/
documents/RemoteHearingAgreementForm_
RepresentedClaimantandRepresentative.pdf.
PO 00000
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68357
One commenter stated the new form
should provide a check box near the top
of the proposed form that states, ‘‘I wish
to have an in-person hearing.’’
According to the commenter, this would
make this option a meaningful choice,
and it would help claimants understand
that in-person appearances are still an
option. Multiple commenters advised
the new form should remove the
language that states, ‘‘I understand that
by selecting this option my hearing may
be delayed.’’
Finally, commenters expressed that it
is important that the rule provides clear
instructions for objecting to a remote
appearance, opting for an in-person
appearance, and for providing good
cause for the late submission of an
objection.
Response: We will provide a new
notice and publication explaining the
manners of appearance, a revised form
(Form HA–55) allowing claimants to
object to appearances by audio and
agency video, and a new form allowing
claimants to agree to appearances by
online video. These documents will
clearly explain the various manners of
appearance, the requirements for each,
and the time period for objecting to
appearances by audio and by agency
video and for agreeing to appearances
by online video.
Our Request for Hearing
Acknowledgment Letter (Form HA–L2)
explains how claimants with limited
English proficiency, or those who are
deaf or hard of hearing, may request an
interpreter, including for ASL. As we
did throughout the COVID–19 national
public health emergency, where
requested, we will provide interpreters
for all our manners of appearance. We
also plan to revise our subregulatory
policies to explain how we will offer
interpreters for audio, agency video, and
online video appearances. Based on our
experience during the COVID–19
national public health emergency, we
find that each manner of appearances is
equally effective for all interpretation
needs.
We also do not plan to adopt the
suggestion to add a special checkbox for
in-person appearances, because doing so
would make it seem like in-person is the
preferred or default manner. We will,
though, seek approval from the Office of
Management and Budget (OMB) for our
revised objection form and new
agreement form. As explained earlier,
one of the goals of this regulation is to
provide claimants with an opportunity
to have input about their manner of
appearance, based on what is best for
them. As some of the public comments
cited in this final rule indicate, an in-
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person appearance is not necessarily
what is best for every claimant.
Regulatory Procedures
Executive Order (E.O.) 12866, as
Supplemented by E.O. 13563 and
Amended by E.O. 14094
We have consulted with OMB and
determined that this final rule meets the
criteria for a significant regulatory
action under E.O. 12866, as
supplemented by E.O. 13563 and
amended by 14094, and is subject to
OMB review.
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 this final rule. The
primary effects from implementing this
final rule will be small cash flow effects
due to conducting hearings and issuing
decisions more timely. These changes
are therefore expected to result in small
changes of less than $500,000 in
scheduled OASDI benefit payments and
Federal SSI payments over the period
from fiscal year 2024 through fiscal year
2033.
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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 from lower
ALJ, claimant, and representative travel
costs, offset some by slightly higher
costs from an increase in forms returned
to us by claimants.
Anticipated Qualitative Benefits
As discussed in the NPRM, we expect
that the flexibility provided by this rule
will benefit claimants and our agency in
several ways. First, we will be able to
continue scheduling claimants to appear
at hearings remotely, by audio (except
when claimants object) and by online
video (when claimants agree to this
manner). 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 agree to appear by
online video or do not object to
appearing by audio, and we schedule
them in one of those manners, they may
save on costs associated with
transportation (e.g., gas, maintenance of
vehicle, bus fare), and they may save
time that they would otherwise have
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16:05 Aug 23, 2024
Jkt 262001
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, an
online video or audio appearance will
allow them to appear from a private
location of their choice, such as their
home.
This rule will also allow us to balance
our workloads more efficiently among
hearing offices because we can more
easily transfer cases where the claimant
is scheduled to appear by agency video,
online video, or audio from one hearing
office to another. We expect that this
rule will 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 in this rule will
allow us to be prepared for future
emergency events, including localized
events such as natural disasters and
national public health emergencies
similar to COVID–19 that could require
us to temporarily suspend in-person or
agency video appearances.
Congressional Review Act
This final rule is not a major rule as
defined by the Congressional Review
Act.60
Executive Order 13132 (Federalism)
We analyzed this final rule in
accordance with the principles and
criteria established by Executive Order
13132 and determined that the final rule
will not have sufficient federalism
implications to warrant the preparation
of a federalism assessment. We also
determined that this final 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 final rule will not
have a significant economic impact on
a substantial number of small entities,
as it affects individuals only. Therefore,
a regulatory flexibility analysis is not
required under the Regulatory
Flexibility Act, as amended.
Paperwork Reduction Act
SSA already has existing OMB PRAapproved information collection tools
relating to this proposed rule under
OMB Control No. 0960–0671: Form HA–
504, Acknowledgement of Receipt
(Notice of Hearing); Form HA–L83,
60 5
PO 00000
U.S.C. 801 et seq.
Frm 00038
Fmt 4700
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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; and
Form HA–510, Waiver of Written Notice
of Hearing. This final rule changes the
ways in which the Social Security
Administration conducts hearings, by
expanding and clarifying our manner of
appearance options. In addition, this
rule clarifies that claimants may appear
for hearings remotely using a telephone
in the absence of extraordinary
circumstances; and that claimants may
also appear remotely by video using
private electronic devices with
approved online video conferencing
applications, rather than only using SSA
owned video equipment. We will need
to revise the associated forms to reflect
these changes. Overall, we do not
anticipate significant burden changes
due to this regulation. The burden chart
below reflects our current burden
estimates for the associated information
collection tools, as well as the projected
burden savings for the few Information
Collections where we think the burden
will change. We will obtain OMB
approval for the revisions to the
collection instruments concurrently
with the effective date of this final rule.
In addition, due to the final rule, we
are also creating a new notice, the HA–
L54, Notice of Ways to Attend a
Hearing, and a new Form, the HA–56,
Agreement to Appearing by Online
Video. The new notice, HA–L54, will
explain in more detail the various ways
to attend a hearing, the requirements for
each appearance type, the ability to
object to attending by audio or agency
video, and the ability to agree to
attending by online video. The HA–L54
will serve as a cover letter for Form HA–
55 and new Form HA–56. The new
form, HA–56, will allow claimants to
agree to an appearance via online video
(using MS Teams). Respondents will
only use this form if they agree to an
online video appearance. The
instructions on both the HA–L54 and
Form HA–56 will make this use of the
Form HA–56 clear to the respondent.
Claimants who wish to object to an
appearance by audio or agency video
will use the HA–55 to object.
The sections for the HA–56 and HA–
L54 below report our anticipated public
reporting burdens for these new forms.
Finally, as we created the new notice,
HA–L54, we will no longer need to use
the Claimant Enhanced Outreach
Notices, since the new Notice replaces
them. In addition, we also expect to
replace the current Claimant Enhanced
Outreach calls with one combined call,
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since we will use the new HA–L54 to
collect the necessary information prior
to a hearing but may still need an
Outreach call to initiate the hearing
process. Since we are removing these
information collections, we anticipate a
significant overall burden reduction for
the public of about 168,366 hours. The
chart below shows the overall burden
reduction for this final rule.
We will obtain OMB approval both for
the modifications to the existing
collection instruments and the new
Number of
respondents
OMB #; form #; CFR citations
HA–504+ HA–504–OP1 HA–504–OP2 404.938(c)
413.1438(c) ......................................................................
HA–L83—404.936(f); 404.938; 416.1436(f); 416.1438 ......
HA–L83—Good cause for missing deadline—
404.936(f)(2); 416.1436(f)(2) ...........................................
HA–L83—Objection stating issues in notice are incorrect—sent 5 days prior to hearing 404.939; 416.1439 ...
HA–L2 Acknowledgement Letter 404.936 416.1436 ..........
HA–L54, HA–56, and HA–55—404.936; 404.938;
416.1436; 416.1438 .........................................................
HA–L2—Verification of New Residence 404.936(d)(4);
416.1436(d)(1) .................................................................
HA–L54—Notification of objection to audio and agency
video and agreement to online video more than 30-days
after receipt of notice showing good cause
404.936(d)(1) and (e)(1); 416.1436(d)(1) and (e)(1) .......
HA–510—404.938(a); 416.1438(a) .....................................
Claimant Enhanced Outreach—Initial Call No Representative (Unrepresented Claimant/ProSe) .............................
Claimant Enhanced Outreach—Initial Call with Representative .................................................................................
Claimant Enhanced Outreach—Follow Up Call—No Representative (Unrepresented Claimant/ProSe) .................
Claimant Enhanced Outreach—Follow Up Call—With
Representative .................................................................
Claimant Enhanced Outreach Call .....................................
Remote Hearing Options Letter and Form Mailed to Representative .......................................................................
Microsoft Teams Video Hearing Call Script—Representative Payee Outreach ........................................................
Microsoft Teams Hearing Call Script—Claimant Outreach
Totals ...........................................................................
Frequency of
response
Average
burden per
response
(minutes)
collection instruments discussed above
concurrently with the effective date of
this final rule.
The following chart shows the time
burden information associated with this
final rule:
Current
estimated
total
burden
(hours)
Anticipated
new number
of responses
under
regulation
Anticipated
estimated
total
burden
under
regulation
(hours)
Estimated
burden
savings
(hours)
700,000
700,000
1
1
30
30
350,000
350,000
700,000
700,000
350,000
350,000
0
0
5,000
1
5
417
5,000
417
0
35,000
500,000
1
1
5
5
2,917
41,667
35,000
500,000
2,917
41,667
0
0
500,000
1
10
83,333
500,000
83,333
0
35,000
1
5
2,917
35,000
2,917
0
13,500
4,000
1
1
10
2
2,250
133
13,500
4,000
2,250
133
0
0
75,190
1
10
12,532
0
0
12,532
201,400
1
10
33,567
0
0
33,567
37,500
1
60
37,500
0
0
37,500
120,800
0
1
1
30
30
60,400
0
0
75,190
0
37,500
60,400
37,500
280,000
1
10
46,667
0
0
46,667
50
50
1
1
20
20
17
17
0
0
0
0
17
17
3,557,490
......................
....................
1,039,500
2,492,500
833,634
168,366
The following chart shows the
theoretical cost burdens associated with
this final rule:
Anticipated
number of
respondents
lotter on DSK11XQN23PROD with RULES1
OMB #; form #; CFR citations
HA–504+ HA–504–OP1 HA–504–OP2 404.938(c) 413.1438(c) ........
HA–L83—404.936(f); 404.938; 416.1436(f); 416.1438 ......................
HA–L83—Good cause for missing deadline—404.936(f)(2);
416.1436(f)(2) ..................................................................................
HA–L83—Objection stating issues in notice are incorrect—sent 5
days prior to hearing 404.939; 416.1439 ........................................
HA–L2 Acknowledgement Letter 404.936 416.1436 ..........................
HA–L54, HA–56, and HA–55—404.936; 404.938; 416.1436;
416.1438 ..........................................................................................
HA–L2—Verification of New Residence 404.936(d)(4);
416.1436(d)(1) .................................................................................
HA–L54—Notification of objection to audio and agency video and
agreement to online video more than 30-days after receipt of notice showing good cause 404.936(d)(1) and (e)(1); 416.1436(d)(1)
and (e)(1) .........................................................................................
HA–510—404.938(a); 416.1438(a) .....................................................
Clamant Enhanced Outreach—Initial Call No Representative (Unrepresented Claimant/ProSe) ..........................................................
Clamant Enhanced Outreach—Initial Call with Representative .........
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16:05 Aug 23, 2024
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PO 00000
Frm 00039
Frequency
of response
Average
burden per
response
(minutes)
Anticipated
estimated
total
burden
under
regulation
(hours)
Average
theoretical
hourly cost
amount
(dollars) *
Total
annual
opportunity
cost
(dollars) **
700,000
700,000
1
1
30
30
350,000
350,000
* $22.39
* 22.39
** $7,836,500
** 7,836,500
5,000
1
5
417
* 22.39
** 9,337
35,000
500,000
1
1
5
5
2,917
41,667
* 22.39
* 22.39
** 65,312
** 932,924
500,000
1
10
83,333
* 22.39
** 1,865,826
35,000
1
5
2,917
* 22.39
** 65,312
13,500
4,000
1
1
10
2
2,250
133
* 22.39
* 22.39
** 50,378
** 2,978
0
0
1
1
10
10
0
0
*0
*0
** 0
** 0
Fmt 4700
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Federal Register / Vol. 89, No. 165 / Monday, August 26, 2024 / Rules and Regulations
Anticipated
number of
respondents
OMB #; form #; CFR citations
Frequency
of response
Average
burden per
response
(minutes)
Anticipated
estimated
total
burden
under
regulation
(hours)
Average
theoretical
hourly cost
amount
(dollars) *
Total
annual
opportunity
cost
(dollars) **
Clamant Enhanced Outreach—Follow Up Call—No Representative
(Unrepresented Claimant/ProSe) ....................................................
Clamant Enhanced Outreach—Follow Up Call—With Representative ...................................................................................................
Claimant Enhanced Outreach Call .....................................................
Remote Hearing Options Letter and Form Mailed to Representative
Microsoft Teams Video Hearing Call Script—Representative Payee
Outreach ..........................................................................................
Microsoft Teams Hearing Call Script—Claimant Outreach ................
0
1
60
0
*0
** 0
0
75,190
0
1
1
1
30
30
10
0
37,500
0
*0
* 22.39
*0
** 0
839,625
** 0
0
0
1
1
20
20
0
0
*0
*0
** 0
** 0
Totals ...........................................................................................
2,492,500
......................
....................
833,634
......................
** 19,504,692
* We based these figures on average DI hourly wages based on SSA’s current FY 2024 SSI data (https://www.ssa.gov/legislation/2024FactSheet.pdf); and on average U.S. citizen’s hourly salary, as reported by Bureau of Labor Statistics data (https://www.bls.gov/oes/current/oes_stru.htm).
** 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 under OMB No.
0960–0671 to OMB for the approval of
the changes due to the final rule, which
encompasses the revisions to these
information collections.
As we have revised the associated
burdens for the above-mentioned forms,
and since we made revisions to the final
rule which were not included at the
NPRM stage, we are currently soliciting
comment on the burden for the forms as
shown in the charts above. If you would
like to submit comments, please send
them to:
Currently under Review—Open for
Public Comments (https://
www.reginfo.gov/public/do/PRAMain) 61
and choosing to click on one of SSA’s
published items. Please reference
Docket ID Number [SSA–2022–0013] in
your submitted response.
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
September 25, 2024, which is 30 days
after the publication of this notice. 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
lotter on DSK11XQN23PROD with RULES1
20 CFR Part 404
Administrative practice and
procedure, Aged, Blind, Disability
benefits, Individuals with disabilities,
and Social Security.
16:05 Aug 23, 2024
Jkt 262001
Faye I. Lipsky,
Federal Register Liaison, Office of Legislation
and Congressional Affairs, Social Security
Administration.
For the reasons set out in the
preamble, we amend 20 CFR chapter III,
parts 404 and 416, as set forth below:
PART 404—FEDERAL OLD-AGE,
SURVIVORS AND DISABILITY
INSURANCE (1950– )
Subpart J—Determinations,
Administrative Review Process, and
Reopening of Determinations and
Decisions
1. The authority citation for subpart J
of part 404 continues to read as follows:
■
Authority: Secs. 201(j), 204(f), 205(a)–(b),
(d)–(h), and (j), 221, 223(i), 225, and 702(a)(5)
of the Social Security Act (42 U.S.C. 401(j),
404(f), 405(a)–(b), (d)–(h), and (j), 421, 423(i),
425, and 902(a)(5)); sec. 5, Pub. L. 97–455, 96
Stat. 2500 (42 U.S.C. 405 note); secs. 5, 6(c)–
(e), and 15, Pub. L. 98–460, 98 Stat. 1802 (42
U.S.C. 421 note); sec. 202, Pub. L. 108–203,
118 Stat. 509 (42 U.S.C. 902 note).
■
2. Revise § 404.929 to read as follows:
§ 404.929 Hearing before an administrative
law judge—general.
61 Please note that the link to the specific ICR
connected to this regulation will only become
active the day after the final rule publishes in the
Federal Register.
VerDate Sep<11>2014
20 CFR Part 416
Administrative practice and
procedure, Aged, Blind, Disability
benefits, Social Security, and
Supplemental Security Income (SSI).
The Commissioner of Social Security,
Martin O’Malley, 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.
If you are dissatisfied with one of the
determinations or decisions listed in
§ 404.930, you may request a hearing.
PO 00000
Frm 00040
Fmt 4700
Sfmt 4700
Subject to § 404.956, the Deputy
Commissioner for Hearings Operations,
or their delegate, will appoint an
administrative law judge to conduct the
hearing. If circumstances warrant, the
Deputy Commissioner for Hearings
Operations, or their delegate, may assign
your case to another administrative law
judge. We will schedule you to appear
by audio, agency video, online video, or
in person as set forth in § 404.936.
Audio means telephone or similar
audio-based technology in a private
location you choose. Agency video
means video, with audio functionality,
using our equipment in one of our
offices. Online video means video, with
audio functionality, using a personal
electronic device in a private location
you choose. When we determine your
manner of appearance, we consider the
factors described in § 404.936(c)(1)(i)
through (ii). You may submit new
evidence (subject to the provisions of
§ 404.935), examine the evidence used
in making the determination or decision
under review, and present and question
witnesses. The administrative law judge
who conducts the hearing may ask you
questions. The administrative law judge
will issue a decision based on the
preponderance of the evidence in the
hearing record. If you waive your right
to appear at the hearing, the
administrative law judge will make a
decision based on the preponderance of
the evidence that is in the file and,
subject to the provisions of § 404.935,
any new evidence that may have been
submitted for consideration.
3. In § 404.936, revise the section
heading and paragraphs (a) through (d),
redesignate paragraphs (e) and (f) as
paragraphs (f) and (g), and add a new
paragraph (e).
The revisions and addition read as
follows:
■
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lotter on DSK11XQN23PROD with RULES1
§ 404.936 Time, place, and manner of
appearance for a hearing before an
administrative law judge.
(a) General. We set the time and
manner(s) of appearance for any
hearing. We will set the place of a
hearing when we schedule you and any
other parties to the hearing to appear in
person or by agency video. We may
change the time, manner(s) of
appearance, or place, if it is necessary.
After sending you reasonable notice of
the proposed action, the administrative
law judge may adjourn or postpone the
hearing or reopen it to receive
additional evidence any time before the
administrative law judge notifies you of
a hearing decision.
(b) Place of hearing. If we set the
place of the hearing, it can be 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 agency
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
appearance to schedule. We will
schedule you or any other party to the
hearing to appear by audio, agency
video, online video, or in person. We
may schedule you to appear by online
video only if you agree to appear in that
manner.
(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, agency
video, online video, or in person.
(2) We will generally direct any
person we call as a witness, other than
you or any other party to the hearing, to
appear by audio, by agency video, or by
online video. Witnesses include medical
experts and vocational experts.
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 agency video
or by audio. We will consider directing
witnesses to appear in person only
when:
(i) A witness is unable to appear by
other available manners of appearance;
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(ii) We determine that an alternate
manner of 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.
(3) 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,
by agency video, or both. Prior to
scheduling your hearing, we will notify
you that we may schedule you to appear
by audio or by agency video, or, if you
agree, by online video. If you object to
appearing by audio, by agency 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 in person, by agency
video, or, if you agree, by online video.
Similarly, if you only object to
appearing by agency video, we may
schedule you to appear in person, by
audio, or, if you agree, by online video.
If you object to appearing by both audio
and agency video, and your residence
does not change while your request for
hearing is pending, we will schedule
you to appear before the administrative
law judge in person or, if you agree, by
online video.
(1) If you notify us that you object to
appearing by audio, by agency 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 § 404.911.
(2) Notwithstanding any objections
you may have to appearing by audio and
subject to paragraph (d)(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 agency video or by online
video and extraordinary circumstances
prevent you from appearing in person.
For audio appearances under this
subsection, we will call you or any other
party to the hearing using your or their
telephone number(s).
(3) Notwithstanding any objections
you may have to appearing by audio, if
you are incarcerated and an appearance
by agency video and online video 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 agency
video, online video, or in person upon
PO 00000
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68361
your release. 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) Notwithstanding any objections
you may have to appearing by audio, by
agency video, or both, if you change
your residence while your request for
hearing is pending, we will determine
how you will appear, including by
audio or by agency video, 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).
(5) Notwithstanding any objection 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
§ 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).
(e) Time period to agree to an
appearance by online video. Prior to
scheduling your hearing, we will notify
you that we may schedule you to appear
by online video if you agree to appear
in that manner. To agree to appear by
online video, you must notify us in
writing within 30 days after the date
you receive the notice. If you notify us
that you agree to appearing by online
video more than 30 days after the date
you receive our notice, we will extend
the time period if you show you had
good cause for missing the deadline. To
determine whether good cause exists for
extending the deadline, we use the
standards explained in § 404.911. You
may withdraw your agreement any time
before the start of your hearing.
*
*
*
*
*
■ 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, or,
if the claimant agrees, by online video.
(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
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Federal Register / Vol. 89, No. 165 / Monday, August 26, 2024 / Rules and Regulations
appearing by audio, or, if the claimant
agrees, by online video.
*
*
*
*
*
(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 § 404.938, revise paragraph (b)(5)
to read as follows:
§ 404.938 Notice of a hearing before an
administrative law judge.
*
*
*
*
*
(b) * * *
(5) The time and manner(s) in which
you, or any other party or witness, will
appear. If we schedule you to appear in
person or by agency video, as set forth
in § 404.936, the notice of hearing will
tell you the place of the hearing.
*
*
*
*
*
■ 6. Revise § 404.944 to read as follows:
§ 404.944 Administrative law judge hearing
procedures—general.
A hearing is open to the parties and
to other persons the administrative law
judge considers necessary and proper.
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. For purposes of this section,
materially affects means prevents the
hearing from proceeding. The
administrative law judge may decide
when the evidence will be presented
and when the issues will be discussed.
■ 7. In § 404.950, revise paragraph (a)
and the second and third sentences in
paragraph (e) to read as follows:
lotter on DSK11XQN23PROD with RULES1
§ 404.950 Presenting evidence at a hearing
before an administrative law judge.
(a) The right to appear and present
evidence. Any party to a hearing has a
right to appear before the administrative
law judge, in the manner set forth in
§ 404.936, to present evidence and to
state their position. A party may also
make their appearance by means of a
designated representative, who may
make their appearance in the manner set
forth in § 404.936.
*
*
*
*
*
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16:05 Aug 23, 2024
Jkt 262001
(e) * * * If they are unable to appear
with you in the same manner as you,
they may appear as prescribed in
§ 404.936(c)(2). Witnesses called by the
administrative law judge will appear in
the manner prescribed in
§ 404.936(c)(2). * * *
*
*
*
*
*
■ 8. In § 404.976, revise paragraph (c) to
read as follows:
§ 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, agency video, online
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, agency video, online video, or
in person as set forth in § 404.936(c)(2).
PART 416—SUPPLEMENTAL
SECURITY INCOME FOR THE AGED,
BLIND, AND DISABLED
Subpart N—Determinations,
Administrative Review Process, and
Reopening of Determinations and
Decisions
9. 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).
10. Revise § 416.1429 to read as
follows:
■
§ 416.1429 Hearing before an
administrative law judge—general.
If you are dissatisfied with one of the
determinations or decisions listed in
§ 416.1430, you may request a hearing.
Subject to § 416.1456, the Deputy
Commissioner for Hearings Operations,
or their delegate, will appoint an
administrative law judge to conduct the
hearing. If circumstances warrant, the
Deputy Commissioner for Hearings
Operations, or their delegate, may assign
your case to another administrative law
judge. We will schedule you to appear
by audio, agency video, online video, or
PO 00000
Frm 00042
Fmt 4700
Sfmt 4700
in person as set forth in § 416.1436.
Audio means telephone or similar
audio-based technology in a private
location you choose. Agency video
means video, with audio functionality,
using our equipment in one of our
offices. Online video means video, with
audio functionality, using a personal
electronic device in a private location
you choose. When we determine your
manner of appearance, we consider the
factors described in § 416.1436 (c)(1)(i)
through (ii). You may submit new
evidence (subject to the provisions of
§ 416.1435), examine the evidence used
in making the determination or decision
under review, and present and question
witnesses. The administrative law judge
who conducts the hearing may ask you
questions. The administrative law judge
will issue a decision based on the
preponderance of the evidence in the
hearing record. If you waive your right
to appear at the hearing, the
administrative law judge will make a
decision based on the preponderance of
the evidence that is in the file and,
subject to the provisions of § 416.1435,
any new evidence that may have been
submitted for consideration.
■ 11. In § 416.1436, revise the section
heading and paragraphs (a) through (d),
redesignate paragraphs (e) and (f) as
paragraphs (f) and (g), and add a new
paragraph (e).
The revisions and addition read as
follows:
§ 416.1436 Time, place, and manner of
appearance for a hearing before an
administrative law judge.
(a) General. We set the time and
manner(s) of appearance for any
hearing. We will set the place of a
hearing when we schedule you and any
other parties to the hearing to appear in
person or by agency video. We may
change the time, manner(s) of
appearance, or place, if it is necessary.
After sending you reasonable notice of
the proposed action, the administrative
law judge may adjourn or postpone the
hearing or reopen it to receive
additional evidence any time before the
administrative law judge notifies you of
a hearing decision.
(b) Place of hearing. If we set the
place of the hearing, it can be 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 agency
video or in person. A party to a hearing
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may only appear from the geographic
areas, noted in this subsection, in which
we hold hearings.
(c) Determining manner of
appearance to schedule. We will
schedule you or any other party to the
hearing to appear by audio, agency
video, online video, or in person. We
may schedule you to appear by online
video only if you agree to appear in that
manner.
(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, agency
video, online video, or in person.
(2) We will generally direct any
person we call as a witness, other than
you or any other party to the hearing, to
appear by audio, by agency video, or by
online video. Witnesses include medical
experts and vocational experts.
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
agency video or by audio. We will
consider directing witnesses to appear
in person only when:
(i) A witness is unable to appear by
other available manners of appearance;
(ii) We determine that an alternate
manner of 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.
(3) 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,
by agency video, or both. Prior to
scheduling your hearing, we will notify
you that we may schedule you to appear
by audio or by agency video, or, if you
agree, by online video. If you object to
appearing by audio, by agency 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 in person, by agency
video, or, if you agree, by online video.
Similarly, if you only object to
appearing by agency video, we may
schedule you to appear in person, by
audio, or, if you agree, by online video.
If you object to appearing by both audio
and agency video, and your residence
does not change while your request for
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16:05 Aug 23, 2024
Jkt 262001
hearing is pending, we will schedule
you to appear before the administrative
law judge in person or, if you agree, by
online video.
(1) If you notify us that you object to
appearing by audio, by agency 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.
(2) Notwithstanding any objections
you may have to appearing by audio and
subject to paragraph (d)(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 agency video or by online
video and extraordinary circumstances
prevent you from appearing in person.
For audio appearances under this
subsection, we will call you or any other
party to the hearing using your or their
telephone number(s).
(3) Notwithstanding any objections
you may have to appearing by audio, if
you are incarcerated and an appearance
by agency video and online video 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 agency
video, online video, or in person upon
your release. 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) Notwithstanding any objections
you may have to appearing by audio, by
agency video, or both, if you change
your residence while your request for
hearing is pending, we will determine
how you will appear, including by
audio or by agency video, 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).
(5) Notwithstanding any objection 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
§ 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).
(e) Time period to agree to an
appearance by online video. Prior to
scheduling your hearing, we will notify
PO 00000
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68363
you that we may schedule you to appear
by online video if you agree to appear
in that manner. To agree to appear by
online video, you must notify us in
writing within 30 days after the date
you receive the notice. If you notify us
that you agree to appearing by online
video 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. You
may withdraw your agreement any time
before the start of your hearing.
*
*
*
*
*
■ 12. 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, or,
if the claimant agrees, by online video.
(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, or, if the claimant
agrees, by online video.
*
*
*
*
*
(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).
■ 13. In § 416.1438, revise paragraph
(b)(5) to read as follows:
§ 416.1438 Notice of a hearing before an
administrative law judge.
*
*
*
*
*
(b) * * *
(5) The time and manner(s) in which
you, or any other party or witness, will
appear. If we schedule you to appear in
person or by agency video, as set forth
in § 416.1436, the notice of hearing will
tell you the place of the hearing.
*
*
*
*
*
■ 14. Revise § 416.1444 to read as
follows:
§ 416.1444 Administrative law judge
hearing procedures—general.
A hearing is open to the parties and
to other persons the administrative law
judge considers necessary and proper.
At the hearing, the administrative law
judge looks fully into the issues,
questions you and the other witnesses,
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Federal Register / Vol. 89, No. 165 / Monday, August 26, 2024 / Rules and Regulations
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. For purposes of this section,
materially affects means prevents the
hearing from proceeding. The
administrative law judge may decide
when the evidence will be presented
and when the issues will be discussed.
■ 15. In § 416.1450, revise paragraph (a)
and the second and third sentences in
paragraph (e) to read as follows:
[FR Doc. 2024–18591 Filed 8–23–24; 8:45 am]
BILLING CODE 4191–02–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Food and Drug Administration
21 CFR Part 900
[Docket No. FDA–2013–N–0134]
Mammography Quality Standards Act
and Regulation Amendments: Small
Entity Compliance Guide; Guidance for
Industry and Food and Drug
Administration Staff; Availability
AGENCY:
Food and Drug Administration,
HHS.
§ 416.1450 Presenting evidence at a
hearing before an administrative law judge.
ACTION:
(a) The right to appear and present
evidence. Any party to a hearing has a
right to appear before the administrative
law judge, in the manner set forth in
§ 416.1436, to present evidence and to
state their position. A party may also
make their appearance by means of a
designated representative, who may
make their appearance in the manner set
forth in § 416.1436.
*
*
*
*
*
(e) * * * If they are unable to appear
with you in the same manner as you,
they may appear as prescribed in
§ 416.1436(c)(2). Witnesses called by the
administrative law judge will appear in
the manner prescribed in
§ 416.1436(c)(2). * * *
*
*
*
*
*
■ 16. In § 416.1476, revise paragraph (c)
to read as follows:
SUMMARY:
§ 416.1476
Council.
Procedures before the Appeals
*
lotter on DSK11XQN23PROD with RULES1
determine whether any other person
relevant to the proceeding will appear
by audio, agency video, online video, or
in person as set forth in § 416.1436(c)(2).
*
*
*
*
(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, agency video, online
video, or in person as set forth in
§ 416.1436. The Appeals Council will
VerDate Sep<11>2014
16:05 Aug 23, 2024
Jkt 262001
Notification of availability.
The Food and Drug
Administration (FDA or the Agency) is
announcing the availability of a
guidance for industry entitled
‘‘Mammography Quality Standards Act
and Regulation Amendments: Small
Entity Compliance Guide.’’ The
Mammography Quality Standards Act of
1992 (MQSA) final rule amended FDA’s
regulations to address, among other
things, standards for accreditation
bodies, certifying agencies,
mammography equipment, quality
assurance testing, and clinical image
quality, as well as to require certain
breast density information be provided
by mammography facilities to patients
and their healthcare providers. The
small entity compliance guide (SECG) is
intended to help small entities comply
with the MQSA final rule.
DATES: August 26, 2024.
ADDRESSES: You may submit either
electronic or written comments on
Agency guidances at any time as
follows:
Electronic Submissions
Submit electronic comments in the
following way:
• Federal eRulemaking Portal:
https://www.regulations.gov. Follow the
instructions for submitting comments.
Comments submitted electronically,
including attachments, to https://
www.regulations.gov will be posted to
the docket unchanged. Because your
comment will be made public, you are
solely responsible for ensuring that your
comment does not include any
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E:\FR\FM\26AUR1.SGM
26AUR1
Agencies
[Federal Register Volume 89, Number 165 (Monday, August 26, 2024)]
[Rules and Regulations]
[Pages 68341-68364]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18591]
=======================================================================
-----------------------------------------------------------------------
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: Final rule.
-----------------------------------------------------------------------
SUMMARY: We are revising our hearing regulations to provide that
claimants may appear at hearings in one of four ways: by agency video,
by online video, by audio, or in person. Those four manners will all be
standard manners of appearance in our hearing process. For online video
and audio appearances, claimants may appear for hearings remotely,
using private electronic devices that we do not own, operate, or
approve. For online video appearances, 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, this
final rule will allow us to schedule claimants to appear by audio
without similar restrictions, if the claimant does not object to
appearing in that manner. We expect that this final rule will provide
us and claimants with additional flexibility, allowing us to manage our
hearing process more efficiently.
DATES: This final rule is effective November 23, 2024.
FOR FURTHER INFORMATION CONTACT: Susan Swansiger, Office of Hearings
Operations, Social Security Administration, 250 E Street SW, Washington
DC 20024, (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/.
SUPPLEMENTARY INFORMATION: On May 19, 2023, we published a notice of
proposed rulemaking (NPRM), Setting the Manner of Appearance of Parties
and Witnesses at Hearings,\1\ which proposed to update our hearing
regulations by changing the term ``video teleconference'' to ``video'';
changing ``telephone'' to ``audio''; and permitting ``video'' and
``audio'' to be used as standard manners of appearance. We proposed
these changes to clarify that claimants may appear for hearings
remotely using private electronic devices that we do not own, operate,
or approve, and to make clear that a claimant may appear for a hearing
using approved online video conferencing applications, rather than only
conferencing options using equipment that we own or approve. We are
making final the changes that we proposed in the NPRM, with certain
modifications. The preamble to the NPRM provides the background for
these changes, and we explain our reasons for modifications to the
original proposal below.\2\
---------------------------------------------------------------------------
\1\ 88 FR 32145.
\2\ The preamble to the NPRM is available for public viewing at
https://www.regulations.gov and searching for document ``SSA-2022-
0013'' or https://www.federalregister.gov/documents/2023/05/19/2023-10564/setting-the-manner-of-appearance-of-parties-and-witnesses-at-hearings.
---------------------------------------------------------------------------
Background
When we determine your rights under title II or title XVI of the
Social Security Act, we generally follow an administrative review
process that consists of the following steps: an initial determination,
and, as necessary, a reconsideration, a hearing with an administrative
law judge (ALJ), and review by the Appeals Council.\3\ After completing
these steps, a claimant may request judicial review of our final
decision by filing a civil action in Federal district court.
---------------------------------------------------------------------------
\3\ 20 CFR 404.900(a) and 416.1400(a).
---------------------------------------------------------------------------
As noted above, the third step in the administrative review process
is a hearing held by an ALJ.\4\ Before the Coronavirus Disease 2019
(COVID-19) national public health emergency, we generally scheduled a
claimant to appear at a hearing in one of three ways: by video
teleconferencing (VTC),\5\ in person, or by telephone. Further, we
scheduled claimants to appear by telephone in certain limited
circumstances only, such as when we found an appearance by VTC or in
person was not possible, or if other extraordinary circumstances
prevented the claimant from appearing by VTC or in person.\6\
---------------------------------------------------------------------------
\4\ Under 20 CFR 404.956(a) and 416.1456(a), the Appeals Council
may assume responsibility for a hearing request(s) pending at the
hearing level of our administrative review process.
\5\ We have traditionally used the term VTC to refer to an
appearance by video using our equipment or equipment that we approve
in a Field Office or other pre-approved site.
\6\ 20 CFR 404.936(c)(2)-(3); 404.937(b)(2), (c);
416.1436(c)(2)-(3); and 416.1437(b)(2), (c).
---------------------------------------------------------------------------
As explained in the NPRM in more detail, in March 2020, we began
offering claimants the option to appear at hearings by telephone and
later offered claimants the additional option to appear by online video
in response to the COVID-19 national public health emergency.\7\ Based
on our positive experience with these manners of appearance during the
COVID-19 national health emergency and beyond,\8\ and in an effort to
incorporate greater flexibility into our rules for claimants, we are
adopting audio and online video as standard manners of appearance in
our hearing process.\9\
---------------------------------------------------------------------------
\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 Teams.'' For more information, see https://www.ssa.gov/appeals/hearing_video.html.
\8\ 88 FR at 32146.
\9\ We will generally direct anyone we call as a witness to
appear by audio, agency video, or online video. A witness called by
the claimant, like our previous policy, will generally appear in the
same manner as the claimant, unless the witness is unable to do so.
If the witness is unable to appear in the same manner as the
claimant, we will generally direct the witness to appear by audio or
agency video.
---------------------------------------------------------------------------
Under this final rule, there will be four standard manners of
appearance: agency video (i.e., what we previously had defined as VTC),
online video, audio, and in person. In the NPRM, we proposed to use the
broader term ``video'' to capture appearances by agency video (where a
person attends a hearing at one of our offices using our video
equipment) as well as by online video (where a person attends a hearing
from a private location using private equipment). As we explain in
greater
[[Page 68342]]
detail below, this final rule distinguishes between agency video and
online video appearances.
We are also revising our regulations regarding scheduling the
manner of appearance for individuals who appear before the Appeals
Council for oral argument to keep them aligned with the ALJ hearing
process. Similar to the changes above, we are making agency video,
online video, audio, and in person standard manners of appearance for
oral arguments before the Appeals Council.
In addition, as proposed in the NPRM, we added language to 20 CFR
404.944 and 416.1444 to clarify that an ALJ may stop a hearing
temporarily and continue it at a later date if the ALJ finds that one
or more variables outside of our control materially affected a hearing.
Claimants may object to appearing by audio or agency video, and a
claimant must agree to appear by online video before we will schedule
that manner of appearance. If a claimant objects to audio and agency
video and does not agree to online video, we will schedule that
claimant to appear at a hearing in person. However, in certain limited
circumstances, we will mandate an audio appearance notwithstanding a
claimant's objection to appearing in that manner.\10\ If a claimant
submits an untimely objection to appearing by audio or agency video, or
if the claimant submits an untimely agreement to appear by online
video, we will evaluate whether good cause exists for the late
submission under the standards in sections 404.911 and 416.1411.\11\
---------------------------------------------------------------------------
\10\ See 20 CFR 404.936(d)(2) through (5); 404.937(b)(2), (c);
416.1436(d)(2) through (5); 416.1437(b)(2), (c).
\11\ See 404.936(d)(1), (e) and 416.1436(d)(1), (e).
---------------------------------------------------------------------------
How This Final Rule Differs From the NPRM
In a number of places, this final rule differs from our proposed
rule. We list the changes below and further explain the substantive
changes in the section titled ``Comments and Responses.''
We modified Sec. Sec. 404.929 and 416.1429 to make clear
that there are two ways to appear by ``video'': ``agency video'' and
``online video.'' In the NPRM, we used the term ``video'' to refer to
both types of video appearances. Commenters, however, expressed
concerns about potential confusion stemming from the general term
``video.'' By identifying and defining these two types of video in the
regulations, we anticipate alleviating these concerns and confusion. We
defined ``agency video'' as ``video, with audio functionality, using
our equipment in one of our offices.'' \12\ We defined ``online video''
as ``video, with audio functionality, using a personal electronic
device in a private location the claimant chooses.''
---------------------------------------------------------------------------
\12\ Agency video includes agency-approved sites and video
equipment under the Representative Video Project (RVP). 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.
---------------------------------------------------------------------------
We made several revisions to Sec. Sec. 404.936 and
416.1436. First, in paragraph (a), we clarified that we set the
manner(s) of appearance for all hearings, and we set the place of a
hearing only when we schedule a claimant to appear in person or by
agency video. Thus, we do not set the place of the hearing when we
schedule the claimant to appear by online video or audio. Second, in
paragraphs (b), (c), and (d), we removed the general term ``video'' and
instead used the more specific terms ``online video'' and ``agency
video,'' as appropriate. Third, in paragraph (c), we explained that we
will only schedule a claimant to appear by online video if they agree
to appear in that manner. This agreement requirement is a change from
the NPRM, where we proposed to give claimants an opportunity to object
to appearing by online video. Fourth, we relocated some information
from paragraph (c) to paragraph (d) to clarify that in limited
circumstances only, we will schedule an audio appearance
notwithstanding a claimant's objection to an audio appearance. Fifth,
we explained that for audio appearances under paragraph (d), we will
call the individual using the individual's telephone number(s). Sixth,
in paragraph (e), we explained that prior to scheduling a claimant's
hearing, we will notify them that we may schedule them to appear by
online video if they agree to appear in that manner. To agree to appear
by online video, a claimant must notify us of their agreement in
writing within 30 days of the date they receive that notice. If a
claimant notifies us after the 30-day deadline, we will extend the time
period if they show good cause for missing the deadline. Paragraph (e)
also explains that a claimant may withdraw their agreement to appear by
online video at any time before the start of the hearing, which should
provide additional flexibility for claimants.
In Sec. Sec. 404.937 and 416.1437, we added the option
for claimants to agree to appear by online video (instead of allowing
audio as the only option) when the Hearing Office Chief ALJ determines
that the claimant or other individual poses a reasonable threat to the
safety of our employees or other participants in the hearing, or we
have banned the claimant from any of our facilities.
In Sec. Sec. 404.938 and 416.1438, we explained in
paragraph (b)(5) that the notice of hearing will tell the claimant the
time and manner of appearance and, for in person and agency video
appearances, the place of the hearing.
In Sec. Sec. 404.944 and 416.1444, we defined the term
``materially affects'' to mean prevents the hearing from proceeding.
In Sec. Sec. 404.950 and 416.1450, we made two revisions.
First, in paragraph (a), we explained that a party to the hearing or
their designated representative may appear before an ALJ in the manner
described in Sec. Sec. 404.936 and 416.1436. Second, in paragraph (e),
we corrected cross references by replacing Sec. Sec. 404.936(c)(4) and
416.1436(c)(4) with Sec. Sec. 404.936(c)(2) and 416.1436(c)(2).
In Sec. Sec. 404.976 and 416.1476, we distinguished
between ``agency video'' and ``online video.''
We made other minor conforming changes throughout the
final rule.
Comparison of Manners of Appearance Available at Different Times
Table 1 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 to the effective date of this final rule, and those that will
be available under this final rule when it becomes effective. It also
notes whether a claimant may object to a manner of appearance or must
consent to a manner of appearance.
[[Page 68343]]
Table 1--Comparison of Manners of Appearance Available at Different Times
----------------------------------------------------------------------------------------------------------------
Available during the
Available before the COVID-19 national Available when our
Manner of appearance COVID-19 national public health emergency final rule becomes
public health emergency to the effective date effective
of the final rule
----------------------------------------------------------------------------------------------------------------
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).
Agency Video (formerly ``VTC'')...... Yes (claimant can Postponed from March Yes (claimant can
object). 2020 through March object).
2022, when we began
incrementally
reopening our hearing
offices to the public.
(claimant can object).
Online video......................... No..................... Available as of Yes (claimant must
December 2020 agree before we will
(claimant must agree schedule).
before we 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 agree before we require the claimant
object when required). schedule that manner to appear by audio,
of appearance, but we (called via telephone
can require a claimant number) in very
to appear by telephone limited
in very limited circumstances).
circumstances).
----------------------------------------------------------------------------------------------------------------
Table 2--Summary of Manners of Appearance and Potential Claimant Actions
Under This Final Rule
------------------------------------------------------------------------
Does a claimant need
Can a claimant object to agree to this
Manner of appearance to this manner of manner before we
appearance? schedule it?
------------------------------------------------------------------------
Audio..................... Yes, though we may No, but claimants may
still require the object to this
claimant to appear manner of
by audio in very appearance.
limited
circumstances.
Online Video.............. Not Applicable. We Yes.
will not schedule an
online video
appearance unless a
claimant tells us
they agree to appear
in that manner.
Agency Video.............. Yes.................. No, but claimants may
object to this
manner of
appearance.
In-Person................. No................... No.
------------------------------------------------------------------------
Comments Summary
We received 44 public comments on our NPRM during the comment
period. Of the total comments, 42 are available for public viewing at
https://www.regulations.gov/docket/SSA-2022-0013. We excluded a comment
that was an exact duplicate submitted by the same commenter, and we
excluded a comment submitted by one of our employees posted in an
official capacity. The publicly available comments were from:
Individual citizens;
Advocacy groups comprising claimant representatives;
Other advocacy groups;
Organizations and firms that represent claimants; and
Other organizations with an interest in our proceedings.
We carefully considered the public comments we received, and we
responded to them below.
Comments and Responses
Support for Proposal
Comment: A majority of commenters supported our proposal to update
our hearing regulations to permit ``video'' and ``audio'' as standard
manners of appearance. Commenters said permanently adopting remote
appearances as standard manners of appearance will result in greater
flexibility for claimants and witnesses. They stated that both video
and audio appearances can be advantageous for claimants who have
limited transportation options, live far from hearing offices, or have
circumstances like limited mobility or severe anxiety. One commenter
expressed that our proposal may reduce cost, stress, and scheduling
conflicts experienced by claimants and representatives.
In addition, many commenters supported multiple manners of
appearance being available to claimants, and supported the NPRM because
it maintains the option of in-person appearances and permits objection
to appearing by other means. Other commenters expressed that preserving
the option of in-person appearances will continue to serve those who
are most comfortable with this method, for reasons like unreliable
access to technology or private, quiet spaces.
Several commenters also agreed that audio and video appearances
will allow us to balance hearings across offices to help reduce
administrative delays. Commenters said that the ability to schedule
hearings remotely by audio or online video without requiring ``extreme
circumstances'' will reduce delays and allow for more hearings to be
held in a timely manner. One commenter stated they have experienced
numerous occasions where claimants failed to make an in-person
appearance due to unexpected traffic, having their transportation
canceled at the last minute and being unable to find alternate
transportation, having the physical inability to sit in the car long
enough to travel to the hearing office, having a panic attack from
being around others due to a mental impairment, or being unable to be
around others due to a compromised immune system.
Response: We acknowledge the general support received from many
commenters.
Recommendations for Amendments to the Proposal
Expanding Audio and Video Appearances Further
Comment: Several commenters expressed that we should expand the use
of video and audio beyond what we proposed. A commenter stated that
``unrestricted use'' of video and audio should be allowed during any
Social Security proceeding. Commenters provided examples of when
expanded use of video should be allowed, including all stages of the
disability determination process in which claimants have the
opportunity to appear (e.g., age 18 redeterminations and benefits
termination following a continuing disability review). Other commenters
expressed that we need to ``eliminate barriers to the public'' and
always make remote hearings available, and that ``safety and
convenience mandate'' the option of a video appearance for any official
Social Security matter requiring face to face communication, including
communication with any Social Security field office or Disability
Determination Services (DDS) office.
Response: We acknowledge and appreciate the desire for greater
[[Page 68344]]
flexibility in all communications with us. While we may consider
additional options in the future, for this final rule, we continue to
focus on manners of appearance at ALJ hearings and before the Appeals
Council.
Comment: One commenter suggested eliminating in-person appearances
to mitigate climate change and practice fiscal responsibility. The
commenter said that a cost-benefit analysis would show the costs of in-
person appearances are ``enormous,'' and the benefits are minimal. The
commenter also expressed that offering in-person appearances requires
the agency to buy and maintain office space throughout the country and
requires ALJs, hearing office staff, claimants, representatives, and
hearing reporters to travel to hearing offices. According to the
commenter, maintaining a large office presence and requiring hearing
participants to travel generates carbon emissions and other pollution,
and costs taxpayer money. In addition, the commenter said that
eliminating in-person appearances would provide the agency with an
advantage in recruiting and retaining personnel, and balancing
workloads, by removing the need for personnel to be tied to a
particular geographic location. Further, the commenter expressed that
the agency's experience over the past three years shows the number of
claimants who want to appear in-person is ``vanishingly small.''
According to the commenter, in the relatively rare instances in which
claimants have objected to telephone and video appearances, most of
these objections have been ``raised at the eleventh hour for the
apparent strategic advantage of postponing hearings without showing
good cause.'' The commenter expressed that for the small number of
claimants who want to be seen as well as heard, the availability of
video appearances satisfies that need.
Response: We appreciate the commenter's preference for audio and
video appearances. This final rule, however, does not eliminate in-
person appearances because some claimants value appearing in person for
various reasons. For example, some commenters expressed that in-person
appearances allow claimants to have meaningful interaction with
decision-makers and allow decision-makers to fully observe a claimant's
condition. While our experiences demonstrate that audio and video
appearances also allow meaningful interaction and provide a sufficient
basis for an ALJ to reach a policy compliant decision, it is important
to retain in-person appearances at this time to accommodate those
claimants who would object to or would have difficulty appearing by the
other manners of appearance this final rule makes available. We also
understand that some claimants feel more comfortable appearing in
person. Depending on the facts of the case, we may find it necessary to
schedule an appearance in person.\13\
---------------------------------------------------------------------------
\13\ Under 20 CFR 404.936(c)(1)(ii) and 416.1436(c)(1)(ii) of
this final rule, we consider two factors in deciding which manner of
appearance to schedule: (1) which manner would be most efficient for
conducting the hearing, and (2) any facts in the particular case
that provide a good reason to schedule a certain manner of
appearance.
---------------------------------------------------------------------------
Comment: A commenter said if the agency is to retain in-person
appearances and provide an order of preference, audio appearances
should be first, video appearances should be second, and in-person
appearances should be last. The commenter expressed that the current
phrasing of Sec. Sec. 404.936(c)(2) and 416.1436(c)(2) appears to
place video and in-person appearances in the highest order of
preference, with audio appearances as a last resort. According to the
commenter, this seems contrary to our explanation at the beginning of
the NPRM, which suggests we wish to eliminate a showing of
extraordinary circumstances as a requirement for audio hearings. The
commenter said experiences during the COVID-19 pandemic have shown that
the vast majority of claimants want to appear by audio, and audio
appearances are also the simplest type to schedule, coordinate, and
conduct. In addition, the commenter said that video appearances have
been reasonably successful, but they involve greater technological
complexity than audio appearances and require high internet bandwidth,
and interruptions to hearings occur because deficiencies in these areas
remain common. According to the commenter, if our rule specifies an
order of preference, it should state that we will schedule a video
appearance only if a claimant timely objects to an audio appearance,
and an in-person appearance (if offered at all) will be scheduled only
if the claimant timely objects to both audio and video. The commenter
suggested that, alternatively, the rule could be written permissively
to provide broad flexibility to hearing offices, without any particular
hierarchy specified or implied among the options for manner of
appearance. That is, the rule could simply state that the agency may
schedule an audio or video appearance in any case in which the claimant
does not timely opt out, without specifying an order of preference or
requiring extraordinary circumstances for any manner of appearance.
Response: We did not propose to establish any hierarchy for setting
the manner of appearance, and we have made revisions to this final rule
to clarify that. This final rule neither prioritizes a certain manner
of appearance nor provides a hierarchy of scheduling preference. As the
comments show, there is support for all manners of appearance: audio,
both versions of video, and in person. When two or more manners are
available to schedule,\14\ we will consider efficiency and the facts of
a particular case when determining a claimant's manner of appearance.
In order to prevent any implication of an order of preference, under
this final rule, we reorganized some of the regulatory text mentioned
by the commenter to clarify that we may schedule an audio appearance in
certain limited circumstances notwithstanding a claimant's objection to
an audio appearance, and that our regulations do not otherwise set a
priority of scheduling.\15\ This flexibility will allow us to schedule
more timely hearings for claimants.
---------------------------------------------------------------------------
\14\ If a claimant objects to an appearance by audio or agency
video and does not agree to appear by online video, we will
generally schedule the claimant to appear in person. Otherwise, we
will determine the manner of appearance from among in person and the
options to which the claimant agreed and/or did not object.
\15\ See 20 CFR 404.936(d)(2)-(5) and 416.1436(d)(2)-(5).
---------------------------------------------------------------------------
Additionally, some commenters appear to have used the terms ``opt
out'' and ``object to'' interchangeably in discussing our proposed
rule. However, both our proposed rule and this final rule give
claimants an opportunity to object to certain manners of appearance,
not opt out of them. Furthermore, our current rules allow claimants to
object to appearing by VTC, not opt out. An opt out process would allow
a claimant to unilaterally eliminate a manner of appearance, whereas an
objection process allows a claimant to tell us that they do not want to
appear in a certain manner. Under this final rule, when a claimant
objects to appearing by audio or agency video, there are limited
circumstances when, despite the objection, we may still schedule that
manner of appearance, such as when we have banned a claimant from our
facilities to ensure the safety of the public and our employees, or
when we cannot schedule a claimant to appear by agency video or by
online video and extraordinary circumstances prevent them from
appearing in person.\16\
---------------------------------------------------------------------------
\16\ See 20 CFR 404.936(d)(2) through (5), 404.937(b)(2),
404.937(c), 416.1436(d)(2) through (5), 416.1437(b)(2), and
416.1437(c).
---------------------------------------------------------------------------
[[Page 68345]]
Comment: One commenter suggested that we should automatically
schedule hearings with audio as the default method, and if there is a
``legitimate and valid reason'' why we should conduct a hearing in
another manner (video or in person), the claimant should specifically
request it, and all parties should consent. Similarly, a commenter
recommended that we confirm directly with the claimant in writing their
wish for an in-person appearance rather than make an in-person
appearance the default format. The commenter asserted that this
approach would ``further support efficiency and overall fairness of the
hearing process.'' A commenter expressed that representatives should
not be required to ``submit so much supplemental documentation the
minute a claim is at the hearing level or even before that'' to ensure
the hearing gets scheduled by audio. The commenter stated hearing
offices currently create unnecessary barriers for claimants and their
representatives to ensure a hearing is scheduled by phone. The
commenter expressed there are substantial delays and hurdles to
overcome to correct an inadvertently scheduled in-person appearance.
Response: We understand the commenters' preference for audio
appearances. However, we did not adopt the recommendation to make audio
the default manner of appearance, nor did we adopt the recommendation
to require claimants to confirm a preference for an in-person
appearance. The comments we received in response to our proposed rule
show that different claimants benefit from and prefer different manners
of appearance for different reasons. Thus, to account for those
different needs and preferences, we did not select any particular
manner of appearance to be the default manner. The scheduling
provisions in this final rule provide flexibility for claimants and us.
We will, however, (1) implement a new publication and notice
explaining the manners of appearance: Notice of Ways to Attend a
Hearing (Form HA-L54); (2) revise an existing form for objecting to
appearing by agency video or by audio: Objection to Appearing by Video
Teleconferencing (Form HA-55); and (3) implement a new form providing
the ability to agree to appear by online video: Agreement to Appearing
by Online Video (Form HA-56).
The new notice, Notice of Ways to Attend a Hearing (Form HA-L54),
will explain in detail how an appearance by audio, by agency video, by
online video, and in person would work. It will also explain how and
when to object to an appearance by audio or agency video and agree to
an appearance by online video. We are making this notice separate from
our Request for Hearing Acknowledgement Letter (Form HA-L2) to ensure
that the manner of appearance information stands out to claimants and
does not get lost among the other information in the HA-L2.
The revised objection form, Objection to Appearing by Video
Teleconferencing (Form HA-55), will allow claimants to object to
appearing by audio, by agency video, or both. We explain on the form
that claimants only need to complete the form if they object to
appearing by audio or agency video. The objection form also summarizes
the appearance options again so that claimants can make an informed
decision even if they do not read the new notice.
The new online video agreement form, Agreement to Appearing by
Online Video, (Form HA-56) will allow claimants to agree to appearing
by online video. It will explain that claimants only need to complete
the form if they agree to appearing in that manner. We made Form HA-56
separate from Form HA-55 to clearly distinguish an agreement to appear
by online video from an objection to appear by audio or agency video.
We anticipate that these new communications and information collection
requests will enhance claimant modality options, streamline the
scheduling process, and minimize scheduling errors.
Additionally, this final rule does not require a claimant, or
representative, to submit any supplemental documentation before, or as
soon as, a claim reaches the hearing level. Rather, a claimant, or
representative, has a 30-day period to object or agree to a manner of
appearance.
VTC
Comment: Some commenters expressed concerns that we proposed to use
the broader term ``video'' to reference two different manners of
appearance: 1. online video through an application like Microsoft Teams
(Teams) and 2. more traditional VTC. Commenters said that our
regulations should use different terminology to distinguish between the
two because they have meaningful differences.
One commenter stated that providing the option of accepting or
rejecting a ``video'' appearance without specifying whether it is by
VTC or online video is misleading to the claimant. The commenter noted
that there are distinctions between the two types. For example, an
online video appearance does not necessarily require any travel by the
claimant, whereas a VTC appearance does require some travel. Another
commenter said that VTC appearances are ``in person'' from the
perspective of the claimant because the claimant must usually travel to
one of our offices along with a representative, when applicable, and
the judge participates by ``video.'' The commenter also said that too
often the VTC locations are more difficult in terms of travel, expense,
and the stress of security or long lines for entrance. According to the
commenter, a video appearance using an online video ``app'' such as
Teams is ``entirely different'' for both the claimant and
representative because online video appearances allow participants to
avoid travel--reducing cost, stress, and conflicts. One commenter
stated they routinely object to VTC appearances but have ``no problem''
with online video appearances. The commenter said claimants usually
prefer video to in-person appearances because they can appear from
home, yet still see the ALJ and be seen clearly, with very few
technological problems.
Another commenter expressed not being comfortable advising
claimants to accept a video option if that option includes VTC. The
commenter recommended more precise wording so claimants can make
informed decisions about their manner of appearance for a hearing. One
commenter recommended making it clear and easy for claimants to object
separately to audio, video, and VTC appearances because limiting an
objection to video appearances alone would be insufficient.
Response: We generally agree with these recommendations. As we
explained in the NPRM, we originally intended to use the general term
``video'' because it allowed for greater flexibility. We planned to
further explain the two video manners of appearance in our
subregulatory policies. However, because there are significant
differences between the two, we will distinguish them in the regulatory
text. Therefore, this final rule distinguishes agency video from online
video. ``Agency video'' means video, with audio functionality, using
our equipment in one of our offices. In other words, agency video means
a claimant travels to one of our offices for a hearing and attends the
hearing using our video equipment. ``Online video'' means video, with
audio functionality, using a personal electronic device in a private
location the claimant chooses. In other words, online video means a
claimant attends a hearing from a private location of the claimant's
choice using the claimant's own smartphone, tablet, or computer and
internet connection. We
[[Page 68346]]
will also highlight this distinction in our subregulatory policies; new
notice, new publication, and new agreement form; and revised objection
form related to this final rule.
Comment: One commenter expressed the opinion that VTC appearances
are ``inferior'' to both in-person and online video appearances, and
with the addition of online video appearances, they should be obsolete.
The commenter said that VTC appearances are often held in a ``small,
cramped conference room'' at a hearing or field office, which is often
not sound-proofed. According to the commenter, in some hearing offices,
the video equipment is located on the wall behind the desks where the
representative and claimant sit, making it difficult for both the
claimant and representative to be seen, to see the ALJ, and to review
the file and notes at the same time. The commenter also stated that VTC
appearances require additional SSA staff, as they require a hearing
monitor with the ALJ, as well as a monitor or other staff member with
the claimant to ensure the equipment is working. The commenter noted
that VTC appearances require travel to the hearing office and do not
have the same effect as in-person appearances because the video is
often of lower quality and does not allow the ALJ to see the claimant
in detail. They also expressed that VTC appearances are inferior to
online video appearances because with online video, each party can be
in a position most comfortable to them and adjust the viewing angle of
the camera so that they can be seen well. For VTC appearances, the
representative and claimant are limited to the design of the room in
which the hearing is held and cannot adjust the camera.
The commenter noted that we previously introduced VTC appearances
to allow us to schedule hearings quicker and to transfer workloads
among offices to lighten the load at certain hearing offices. According
to the commenter, because the same can be provided by both telephone
(audio) and online video appearances, the need for VTC appearances
becomes obsolete. The commenter said the proposed regulations did not
provide any explanation as to why VTC appearances would remain
necessary once audio and online video are offered as standard manners
of appearance.
Response: This final rule provides for an appearance by agency
video to enhance the overall flexibility in our hearing process. We
agree that many claimants are likely to prefer to appear by online
video instead of by agency video. Nonetheless, we expect there will be
some claimants who cannot appear by online video or do not want to
appear by online video, but who do not object to appearing by agency
video.\17\ Agency video helps ensure that all claimants are afforded
the same options for virtual hearings, regardless of their ability to
pay for or otherwise obtain a suitable device or internet connection on
their own. It also allows us to retain the ability to transfer
workloads to facilitate earlier scheduling when possible. Our new
notice, new publication, new agreement form, and revised objection form
related to this final rule will clearly explain the differences between
the two video manners of appearance. Finally, we disagree that VTC
appearances have inferior audio and video quality.\18\
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\17\ While a small percentage, we have continued to schedule
claimants to appear by VTC even after the implementation of online
video appearances. Since we began reopening our offices to the
public in March 2022 following an initial closure during the COVID-
19 national public health emergency, we have held approximately 1.5
percent of our hearings by VTC. See the Setting the Manner of
Appearance of Parties and Witnesses at Hearings, Final Rule,
Supporting Data Document, available at https://www.regulations.gov
as a supporting document for Docket SSA-2022-0013.
\18\ VTC appearances allow the claimant to see and hear the ALJ
on a television screen over our secure network. For example, with
our current systems, we transmit in Standard Definition on 50 to 65
inch monitors in hearing rooms or 27 inch monitors in VTC locations
using desktop video units.
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Administrative Conference of the United States (ACUS) Recommendations
Comment: The Office of the Chair of ACUS repeated in their comments
recommendations they previously issued related to audio and online
hearings at Federal agencies. They said they have long encouraged
agencies, particularly those with high-volume caseloads, to consider
``whether the use of VTC [hearings] would be beneficial as a way to
improve efficiency and/or reduce costs while also preserving the
fairness and participant satisfaction of proceedings.'' They noted that
they have set forth best practices and practical guidelines for
conducting traditional VTC hearings and, more recently, ``virtual
hearings'' in which participants appear remotely from a location of
their choosing using internet-based videoconferencing software.
According to ACUS, our proposed rules addressed several of their
recommended guidelines for conducting virtual hearings, such as the
circumstances in which an individual's virtual participation may be
inappropriate; the process by which claimants can object to
participating virtually; and the technological requirements for virtual
hearings. They also said that our plan to permit claimants to appear
virtually by online video in a hearing office with agency-supplied
electronic devices and internet connection (instead of only allowing
this option for claimants using personal or borrowed devices in private
locations) helps ensure that all claimants are afforded the same
options for virtual hearings, regardless of their ability to pay for or
otherwise obtain a suitable device or internet connection on their own.
In addition, ACUS recommended that we consider addressing whether
to make available or require attendance at ``a general training session
or pre-hearing conference to discuss technological requirements,
procedural rules, and standards of conduct for virtual hearings.''
According to ACUS, such proactive measures may help to reduce or
eliminate delays before or during hearings caused by participants'
unfamiliarity with the technology or videoconferencing software and
prevent disruptions caused by a lack of understanding of applicable
procedural rules or behavioral standards for virtual hearings.
Further, ACUS referred to our proposed revisions to 20 CFR 404.944
and 416.1444, which clarified that an ALJ could stop a hearing
temporarily and continue it at a later date if they found that one or
more variables outside of the agency's control materially affected a
hearing. They expressed that we may want to explain when a hearing is
``materially affected'' and provide examples. ACUS recommended that we
clarify the actions that the ALJ or hearing office staff will take to
attempt to remedy any technical problems before or after stopping the
hearing when variables outside the agency's control materially affect
the hearing.
ACUS also suggested that, in our pre-hearing notices, we include
information about the possible manners of appearance; explain the
claimant's ability to object to virtual hearings; and explain what the
claimant would need to appear in each manner. They advised we should
include any other information that would help claimants make informed
decisions about their preferred manner of appearance, and that we
should ensure this information stays up to date.
In addition, ACUS recommended that we continue to survey claimants
who appear at virtual hearings to gauge their satisfaction with the
process, and that we should ``maintain open lines of communication with
representatives in order to receive [their] feedback about the use of
virtual hearing.'' They suggested tracking and publishing disposition
data for different hearing
[[Page 68347]]
modalities to measure how virtual hearings compare to in-person
hearings in terms of procedural fairness and substantive outcomes.
Finally, ACUS stated that virtual hearings should be utilized and
conducted in a manner that promotes the principles of fairness,
efficiency, and participant satisfaction, which form the cornerstones
of adjudicative legitimacy. Accordingly, when revising regulations and
issuing subregulatory guidance, ACUS said we should ensure that virtual
hearings provide a claimant experience that meets or exceeds the in-
person hearing experience.
Response: Consistent with ACUS's recommendation, this final rule
recognizes that it may not be appropriate in every circumstance for an
individual to appear at a hearing virtually. Thus, claimants will have
an opportunity to object to appearing by agency video or audio, and we
will not schedule an online video appearance unless the claimant agrees
to appear in that manner. Additionally, consistent with ACUS's
recommendation, this final rule sets forth the process by which
claimants can object to appearing by agency video or audio, and it
explains how a claimant can tell us that they agree to appear by online
video. Further, our new publication, which will explain the possible
manners of appearance, will reflect ACUS's recommendation to explain
the technological requirements for virtual hearings.
We also adopted ACUS's suggestion that we explain when audio
quality or video quality ``materially affects'' a hearing under 20 CFR
404.944 and 416.1444. Under this final rule, ``materially affects''
means it prevents the hearing from proceeding. Examples include
termination of the audio or video connection or poor audio or video
quality that prevents the efficient administration of the hearing. If
an ALJ determines that audio or video quality ``materially affects''
the hearing, the ALJ will stop the hearing and continue it at a later
date. We will schedule the continued hearing no earlier than 20 days
after the stoppage unless the claimant waives in writing the advanced
hearing notice requirement.\19\ While we will try to reschedule the
hearing as quickly as possible, the time to reschedule will depend on
multiple factors, including representative, expert witness and ALJ
availability, as well as available hearing slots. If necessary, we may
schedule the claimant to appear by another available manner of
appearance.
---------------------------------------------------------------------------
\19\ 20 CFR 404.938 and 416.1438.
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We also plan to post a publicly available video explaining the
technical requirements of online video and audio appearances. However,
we did not adopt the recommendation to have a prehearing conference for
the purpose of discussing technological requirements, procedural rules,
and standards of conduct for online video and audio hearings, because
doing so would be overly burdensome, given the hundreds of thousands of
hearings we schedule per year. The public informational video, along
with our new notice, new publication, new agreement form, and revised
objection form, will appropriately explain the manners of appearance
and their requirements. The notice of hearing will include contact
information for use if technical difficulties arise during an audio or
online video hearing. In terms of feedback from participants, we
conducted feedback surveys for our online video appearances during the
COVID-19 national public health emergency. Our survey data at that time
showed that 83 percent of claimants were satisfied with their online
video hearing.\20\ When implementing this final rule, we plan to
investigate further opportunities to gather feedback from claimants on
their experience with the various manners of appearance.
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\20\ See Setting the Manner of Appearance of Parties and
Witnesses at Hearings, NPRM, Supporting Data Document, available at
https://www.regulations.gov as a supporting document for Docket SSA-
2022-0013.
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Regarding communications with representatives, we regularly meet
with representative organizations, including the National Organization
of Social Security Claimants' Representatives (NOSSCR) and the National
Association of Disability Representatives (NADR). We also have
quarterly roundtable discussions with the advocacy community. During
our meetings with these organizations, we solicit and receive feedback
from representatives about our use of remote appearances.
As for the recommendation for a quality assurance system that
tracks and publishes disposition data for each manner of appearance, we
are working to develop this type of data, though it is not available at
this time due to systems reporting limitations. We do, however, have a
number of quality assurance measures, including routine quality reviews
of decisions, in place.
Considerations of Equity and Supporting Underserved Communities
Comment: Some commenters asked us to consider how the proposed rule
will impact underserved communities. Commenters cited E.O. 13985,
Advancing Racial Equity and Support for Underserved Communities Through
the Federal Government, which prioritizes advancing equity throughout
the Federal Government. The E.O. addresses removing barriers and
increasing access to Federal programs by pursuing a comprehensive
approach to advancing equity for people of color and others who have
been historically underserved, marginalized, and adversely affected by
persistent poverty and inequality. A commenter suggested that we
implement changes to the rules regarding manners of appearance
``through the lens of advancing equity and removing barriers to
access.''
Another commenter said ``the harm [of defaulting to audio or video]
that could come to claimants is not merely conjectural. Many lower
income claimants do not have sufficiently regular access to technology
to make audio and video hearings convenient.'' Several commenters cited
research about limited broadband internet access in the United States
and stated that people most impacted by the technological divide are
those who have ``less education and lower incomes; communities of
color, such as Black and Latino; older adults; rural residents (and
most acutely in Native communities); the physically disabled; the LGBTQ
community; and those falling in the intersections of these groups.''
Response: As our equity plan indicates,\21\ equity is a highly
important priority for SSA. We strive to support underserved
communities, including those identified by the commenters. To that end,
we anticipate that appearances by audio and video will actually help
underserved communities because those manners of appearance will often
allow claimants the flexibility to attend their hearings more easily.
For example, as other commenters have pointed out, both online video
and audio appearances can be advantageous for claimants who have
limited transportation options, who live far from hearing offices, or
who have circumstances like limited mobility or severe anxiety.
Additionally, as noted above, this final rule does not eliminate in-
person appearances or agency video (for those who do not have equipment
necessary for online video) or prioritize audio or video appearances.
It merely provides a variety of ways for claimants to appear at their
hearings. Moreover, under this final rule, we will not schedule a
claimant to appear by online video unless the claimant agrees to appear
in that manner.
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\21\ Our Equity Plan is available at: https://www.ssa.gov/open/materials/SSA-E.O.-13985-Equity-Action-Plan.pdf.
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[[Page 68348]]
Reasonable Accommodations, Consideration of Functional Disability-
Related Limitations, and Claimant Preferences
Comment: One commenter said claimants should always determine the
manner of appearance for their hearing. According to the commenter,
some claimants are ``terrified'' to appear in the ``court-like
atmosphere'' of an in-person hearing, and others have physical,
transportation, or financial difficulties associated with traveling to
the hearing sites. Other commenters said we should provide a form that
allows claimants to select their preferred manner of appearance.
Response: We did not adopt these recommendations because doing so
would impede our ability to schedule timely hearings. First, we
anticipate that some claimants would not provide us their preferred
manner of appearance in a timely manner. Our experience over many years
has been that it is often difficult to receive responses from some
claimants when we ask them to contact us. Second, allowing claimants to
select their preferred manner of appearance is not administratively
feasible because it would significantly impede our ability to timely
process the hundreds of thousands of hearings we schedule per year.
When developing this final rule, we carefully balanced the two guiding
principles that undergird our hearing process: that it be fair and that
it works efficiently.\22\ This final rule is fair because it allows
claimants to have input on their manner of appearance. At the same
time, this final rule helps our hearing process to work efficiently by
giving us additional scheduling flexibility, which will allow us to use
our available resources to schedule more timely hearings.
---------------------------------------------------------------------------
\22\ See Richardson v. Perales, 402 U.S. 389, 399 (1971).
---------------------------------------------------------------------------
Comment: Several commenters said we should ask claimants to
identify their hearing format preferences at the earliest stage
possible and suggested this could be done on the hearing request form
(e.g., SSA HA-501). The commenters suggested this may help claimants
who have difficulty corresponding by mail and may also allow people to
provide feedback when they are in our field offices, where they may
have assistance of field office staff who can answer questions, or when
they may have help from community assisters (e.g., social workers) who
may be assisting them with an appeal but may not be present when they
receive the hearing election notice. Further, some commenters said we
should provide more than one opportunity to select the preferred
hearing format.
Response: We did not adopt these recommendations because they would
require an overhaul of our existing operational processes and systems
of such magnitude that it would delay our ability to implement the
flexibilities in this final rule for several years. For example,
adopting these recommendations would require us to overhaul our
iAppeals online internet service, which allows claimants to
electronically file a reconsideration or hearing request.\23\ In
addition, we anticipate that the process set forth in this final rule
will allow claimants sufficient opportunity to indicate whether they
agree to appear by online video and whether they object to appearing by
audio or agency video. We will provide a separate notice explaining the
manners of appearance; a revised form for claimants to let us know
whether they object to appearing by audio, agency video, or both; and a
new form for claimants to let us know whether they agree to appear by
online video. If a claimant misses the 30-day deadline to agree to
appear by online video or to object to appearing by audio, agency
video, or both, they have the opportunity to show us that they had good
cause for missing the deadline.\24\ In summary, our new notice, new
agreement form, revised objection form, and the good cause provisions
in this final rule will provide claimants with a reasonable opportunity
to share their manner of appearance preferences with us.
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\23\ For more information on iAppeals, see our Program
Operations Manual System (POMS) GN 03101.125 available at https://secure.ssa.gov/poms.nsf/lnx/0203101125.
\24\ See 404.936(d)(1) and 416.1436(d)(1).
---------------------------------------------------------------------------
Comment: One commenter said that some claimants will not be able to
meaningfully participate when they appear at a hearing by video or
audio, which will impede our ability to make accurate disability
determinations and violate section 504 of the Rehabilitation Act
(section 504). The commenter noted that Federal agencies have an
affirmative duty to make ``reasonable modifications for qualified
individuals.'' According to the commenter, some individuals require an
in-person appearance to meaningfully participate. Several other
commenters provided examples of individuals who may require an in-
person appearance to meaningfully participate. Examples provided
include claimants: with hearing or visual impairments; requiring an
interpreter; who need to frequently shift between sitting and standing
due to pain; who speak softly or have speech impairments; with auditory
or visual hallucinations; with seizure disorders; who distrust
technology or fear being recorded; with intellectual disabilities; with
developmental disorders; and who may be less familiar with VTC.
In addition, commenters said the difficulties faced by persons with
disabilities may be exacerbated if they have limited English
proficiency. They expressed that interpreter services do not adequately
address the challenges faced by individuals with limited English
proficiency who are deaf or hard of hearing. The commenters indicated
that such individuals must be allowed to appear in a manner that
accommodates their disabilities and that keeping the right to appear in
person is required for procedural fairness.
Response: We are not eliminating the in-person manner of
appearance. Under this final rule, a claimant may object to appearing
by agency video and audio and may decide not to agree to appear by
online video. In that circumstance, barring an exceptional
circumstance, we would schedule the claimant to appear in person.\25\
Additionally, this final rule does not preclude an individual from
requesting an accommodation. Instead, this final rule adds flexibility
to our hearing process, and we expect that it will make it easier for
many claimants to appear at their hearings. Even when a claimant does
not object to appearing by agency video or audio, we will not default
to scheduling one of those manners of appearance. Rather, under 20 CFR
404.936(c)(1)(ii) and 416.1436(c)(1)(ii) of this final rule, we will
consider which manner would be the most efficient and any facts that
provide good reason for a specific manner of appearance.
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\25\ We may schedule a claimant to appear in another manner when
the claimant changes their residence, extraordinary circumstances
prevent the claimant from appearing in person, the claimant is
incarcerated, or it is necessary to ensure the safety of the public
and our employees in our hearing process. See 20 CFR 404.936(d)(2)
through (5); 404.937(b)(2), (c), 416.1436(d)(2) through (5); and
416.1437(b)(2), (c).
---------------------------------------------------------------------------
Furthermore, this final rule does not affect or modify our existing
responsibilities under section 504 of the Rehabilitation Act of 1973,
or the procedures we follow in considering requests for reasonable
accommodations under that statute. Separate and distinct from this
final rule, we will continue to use our established procedures for
handling section 504 accommodation requests.\26\ We are not revising
our obligations under section 504 or our
[[Page 68349]]
reasonable accommodation process as part of this final rule.
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\26\ HALLEX I-2-0-8 available at https://www.ssa.gov/OP_Home/hallex/I-02/I-2-0-8.html.
---------------------------------------------------------------------------
Comment: One commenter said that the proposed regulatory language
does not provide guidance on what may be considered a ``good reason''
for scheduling a hearing in person, by video, or by audio. The
commenter recommended that we incorporate into our regulations the
language referencing, at a minimum, the standards in 20 CFR 404.911 and
416.1411 to ensure that an individual's physical, mental, educational,
or linguistic limitations (including lack of facility with the English
language) are considered when we choose the appropriate manner for an
ALJ hearing. The commenter referred to section 504 of the
Rehabilitation Act of 1973 and noted that section 504 requires Federal
agencies to ensure that qualified individuals with disabilities are
not, solely by reason of their disabilities, excluded from
participation in, denied the benefits of, or subjected to
discrimination under the programs and activities they conduct. The
commenter said there is a ``pronounced lack of emphasis on [our] legal
obligation to ensure equal access to a transparent and fair
adjudicative process for all individuals with disabilities, including
those who may require access to in-person hearings for disability
related reasons.'' According to the commenter, clear regulatory
instructions obligating our staff and ALJs to consider claimants'
functional limitations as they pertain to the claimants' ability to
effectively communicate and participate in the hearing process should
be part of the evaluation of ``good reasons'' for scheduling a hearing
in any manner. The commenter expressed that individuals with a wide
range of disabilities, and those in the deaf and hard of hearing
community specifically, face ``failed communication'' when dealing with
our field offices and hearing offices, which may not provide methods of
effective communication to deaf and hard of hearing individuals. The
commenter states that such individuals will be adversely affected if
they are unable to access onsite American Sign Language (ASL)
interpretation when presenting testimony and interacting with
adjudicators or witnesses.
Further, the commenter expressed that our staff must be able to
recognize the need for an effective communication assessment. The
commenter said that, if any technology is used for interpreting during
video or audio hearings, staff must be able to use the required
equipment and have sufficient understanding of different modes of
communication to recognize and remedy communication failures. The
commenter expressed that, without these items addressed, a video or
audio hearing will not provide effective communication and equal access
to the administrative process.
Another commenter said hearing notices should include clear
guidelines on the use of effective assistive technology during video or
audio hearings, beyond the explanation that one needs ``a desktop
computer, laptop computer, tablet or phone with a camera, microphone,
and speakers.'' The commenter said, to ensure effective communication
for deaf and hard of hearing claimants, remote technology should offer
real-time, full motion synchronized video and audio. The commenter
further stated that the technology should operate over dedicated lines
or wireless networks offering high-speed, wide-bandwidth video
connection that delivers high-quality video images that do not produce
lags, choppy, blurry, or grainy images, or irregular pauses in
communication, and a clear, audible transmission of voices to support
listening to and lipreading the hearing participants by the deaf or
hard of hearing claimant.
Response: We understand the commenters' concerns, and we expect
that, overall, the audio and video manners of appearance will make it
easier for claimants, especially those with functional limitations, to
appear at their hearings. We did not adopt the recommendation to
provide guidance on what constitutes a ``good reason'' for scheduling a
certain manner of appearance because the broad ``good reason'' language
in this final rule accounts for a wide latitude of possible
considerations. These considerations may include, for example, the
physical, mental, educational, or linguistic limitations contemplated
in 20 CFR 404.911 and 416.1411. As other commenters suggested, we will
provide more details on the requirements for each manner of appearance
in our subregulatory policies, new notice and publication, and new and
revised forms related to this final rule. Claimants may state their
reasons for objecting or agreeing to a manner of appearance in the
comment sections of our forms or in separate communications, including
by telephone or writing. Additionally, if there are technical
difficulties during a hearing, the ALJ may stop the hearing and
continue it at a later date.\27\ When rescheduling the continued
hearing, we will reconsider which manner of appearance to schedule
using the factors in 20 CFR 404.936(c)(1) and 416.1436(c)(1).
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\27\ See 20 CFR 404.944 and 416.1444.
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Furthermore, as discussed above, this final rule does not affect or
modify our existing responsibilities under section 504 of the
Rehabilitation Act of 1973 or the procedures we follow in considering
requests for reasonable accommodations. Separate and distinct from this
final rule, we will continue to follow our long-standing procedures for
handling section 504 accommodation requests when an individual requests
an accommodation under this law. We are not revising our obligations
under section 504 or our reasonable accommodation process as part of
this final rule.
Comment: One commenter stated that the provision of full and fair
hearings for persons with disabilities requires that we have a public-
facing process for determining the need for reasonable accommodations
and providing them at hearings. According to the commenter, it may be
impossible to provide disability access effectively, including ASL and
other language access, in many of the current VTC hearing sites, and
for that reason, possible reasonable accommodations must include
providing an in-person hearing, and this reasonable accommodation must
be available even where the claimant has not timely opted out of a
video or audio hearing.
The commenter cited the Hearings, Appeals, and Litigation Law
Manual (HALLEX) I-2-0-8 and asserted that it does not describe who is
responsible for receiving and processing accommodation requests for
hearings or who is responsible for making sure accommodations are
provided at the various types of hearing sites and how long that
process would take. The commenter stated that the reasonable
accommodation information is ``buried among the hundreds of web pages
on the SSA's website'' and is not connected to the Hearings and Appeals
portal. The commenter also stated that the SSA Hearing Agreement Form
and other written information related to our hearing and appeals
process do not provide information on how to request a reasonable
accommodation. The commenter asserted that it is not clear how an
individual pursuing an administrative appeal would be aware of the
process to request a reasonable accommodation, or even know whether
they would need an accommodation during the hearing process. According
to the commenter, individuals needing ``nonstandard'' accommodations
would require a significant amount of lead time to make and document
their
[[Page 68350]]
accommodation requests. The commenter expressed that it is important
that such individuals are able to change their preferred method of
hearing outside the 30-day period.
Response: This final rule does not affect or modify the procedures
we follow in considering requests for reasonable accommodations under
current law. Rather, it simply provides additional manners of
appearance, which will make it easier for claimants to appear at their
hearings. While we understand that some commenters have expressed
concerns with our existing reasonable accommodation process, including
under HALLEX I-2-0-8, these comments are outside the scope of this
regulation change because we are not revising our reasonable
accommodation procedures. We will, however, take these comments under
advisement and review our existing reasonable accommodation process,
including how to find information about the process, for possible
updates.
Technical, Communication, and Other Considerations
Comment: One commenter cited ``poor communication between [Office
of Hearings Operations] staff and representatives when a hearing is
delayed due to scheduling or technical issues'' for telephone and video
appearances. The commenter also said judges and hearing reporters are
not notified when representatives submit a phone number or email
address change in advance, which may cause hearing office staff to dial
incorrect phone numbers or use incorrect email addresses, potentially
resulting in claimants or representatives being designated as ``no-
shows'' at hearings. The commenter requested that we take additional
steps to assist claimants with technical and other same-day problems
that arise, and suggested a portal where the representative and
claimant could check the real-time status of the hearing and update
their contact information. Other commenters reported difficulty
reaching a hearing office to address similar same-day problems. For
example, one commenter said that when there is a significant delay with
the start time of a hearing, it is difficult to reach the hearing
office to confirm the hearing is going forward and address any
miscommunication. The commenter urged us to make available a telephone
contact for claimants and representatives when facing such problems
during or prior to the start of a scheduled hearing and to ensure staff
is available and responsive by telephone. Another commenter stated it
is difficult to communicate specifically with National Hearing Centers,
in particular Baltimore or Chicago, causing unnecessary delays and
continuances through no fault of the claimant or their office. They
also said it is difficult to have accurate scheduling, causing delays
due to conflicts.
Another commenter said it takes ``too long to even get a phone
hearing.'' The commenter asserted that local hearing offices may need
assistance from other States because of the ``enormous backlog,''
especially related to Federal remand hearings. The commenter asked us
to ``focus on speeding up the process.'' Another commenter expressed
that many claimants are experiencing long delays in having their
hearings scheduled, partly because of the COVID-19 national public
health emergency, but also due to employee shortages at their
locations.
Response: We acknowledge the concerns raised by the commenters and
are working diligently to implement procedural and efficiency
improvements in our hearing process. The commenters' recommendations
relate to our internal practices and procedures, not the policy in this
final rule. However, we appreciate the comments and plan to consider
them as we continue evaluating and updating, as necessary, our internal
practices and procedures to ensure appropriate support during audio and
video appearances.
Comment: A commenter expressed that, for online video appearances,
claimants are ``overwhelmingly unable'' to operate the Teams
application without assistance, and even with assistance, there are
often technical difficulties. Additionally, the commenter stated that
ALJs ``pushed'' claimants to appear by telephone if there were
technical difficulties during an online video appearance. The commenter
asserted that these situations created concern that the ``use of the
Teams app allowed for inconsistent policies among ALJs.''
Response: The commenter's reported experience does not match our
data. Our survey data showed that 83 percent of claimants were
satisfied with their online video hearing.\28\ However, given the
unique factors related to online video appearances, this final rule
differs from our proposed rule in that it requires a claimant to agree
to appear by online video before we will schedule that manner of
appearance. Depending on the logistics of any given case, it might be
possible to schedule a hearing more quickly using one manner of
appearance over another, but we will not pressure a claimant regarding
their choice to agree to online video or to object to audio or agency
video.
---------------------------------------------------------------------------
\28\ See the Manner of Appearance, NPRM, Supporting Data
Document, available at https://www.regulations.gov as a supporting
document for Docket SSA-2022-0013.
---------------------------------------------------------------------------
Regarding the commenter's concern about difficulties that arise
during online video appearances, this final rule, Sec. Sec. 404.944
and 416.1444, provide that an ALJ may stop a hearing temporarily and
continue it at a later date if one or more variables outside of our
control, such as audio quality or video quality, materially affects the
hearing. We will then determine the manner of appearance for a
continued hearing like we would any other hearing. This determination
involves considering which manner would be most efficient and any facts
of the case that provide a good reason to schedule the claimant to
appear in a certain manner. We plan to provide additional training to
our ALJs to ensure consistent application of this rule.
Comment: One commenter said it is crucial to acknowledge explicitly
the need for audio in video-based appearances, since otherwise people
might think the video option did not include audio. The commenter
stated that we must recognize the insufficiency of video alone for
effective communication during hearings. According to the commenter,
ignoring the audio aspect introduces an incomplete scenario that could
lead to potential issues.
Response: We agree with the commenter that some individuals might
not understand our presumption that video includes audio. Accordingly,
this final rule explains that agency video and online video include the
element of audio.
Comment: One commenter suggested that, in the event of an
irresolvable technical disruption, an adjourned hearing be rescheduled
expeditiously.
Response: We plan to schedule continued hearings following
adjournments for technical difficulties as quickly as our available
resources will allow. However, our regulations require us to send a
notice of continued hearing at least 20 days in advance, unless a
claimant waives the 20-day advance notice requirement.\29\
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\29\ 20 CFR 404.938(d) and 416.1438(d).
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Objection Period and Good Cause
Comment: Some commenters disagreed with the 30-day timeframe to
allow claimants to object to a particular manner of appearance. One
commenter said that confining the period to 30 days after the date the
claimant receives the
[[Page 68351]]
notice is more restrictive than current practice and would ``fail to
recognize the rapidly changing circumstances'' of claimants. Another
commenter said we should remove any deadline to object to the manner of
appearance. Others suggested longer deadlines such as 60 days, five
business days before a hearing, and the date the hearing is scheduled.
Commenters expressed that additional time is necessary to locate
unhoused or very low-income claimants, especially those who lack
consistent access to communication resources like working phones or
mailing addresses. Another commenter stated that claimants should be
entitled to change the manner of hearing from audio to video, or video
to audio, at any point up to five business days before a scheduled
hearing because, in the view of the commenter, that could be
accomplished without disruption to the hearing schedule.
Response: Although we acknowledge commenters' concerns about the
potential for missed opportunities to object to a particular manner of
appearance, we did not change the 30-day time period for objecting to
appearances by agency video or by audio. Thirty days offers an
appropriate balance between allocating enough time for claimants or
their representatives to object, while also allowing us sufficient time
to determine the manner of appearance and schedule the hearing. It is
critical for us to know the available manners of appearance to schedule
timely hearings because we schedule hundreds of thousands of hearings
per year.\30\ A longer or indefinite time period would delay scheduling
and, therefore, lead to longer hearing wait times. Some of the longer
time periods suggested by the commenters, and certainly those that
approach the actual day of the hearing, do not take into account the
disruption or delay such last-minute changes would cause. We schedule
each hearing based on considerations for that particular case and the
overall resources available.
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\30\ See the Setting the Manner of Appearance of Parties and
Witnesses at Hearings, Final Rule, Supporting Data Document,
available at https://www.regulations.gov as a supporting document
for Docket SSA-2022-0013.
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We do not agree that this 30-day period is ``more restrictive than
current practice.'' The 30-day time period to object to an appearance
by agency video or by audio is consistent with the current VTC
objection policy in our regulations. Even so, some commenters may still
perceive this rule as ``more restrictive'' because under our current
business process, we generally require a claimant's agreement before we
schedule them to appear by telephone, whereas this final rule gives
claimants an opportunity to object to appearing by audio. However, we
expect that the overall flexibilities provided by this final rule will
offset any seemingly greater restriction.
As discussed earlier, it is often difficult to receive responses
from some claimants when we ask them to contact us. For example, during
the period from December 2020, when we began offering appearances by
online video, until the end of the COVID-19 national public health
emergency in May 2023, 25 percent of claimants did not respond to our
form asking if they would like to appear by telephone or online
video.\31\ By not requiring an ``opt in'' for audio, we will be able to
efficiently schedule audio hearings for claimants who do not respond.
This efficient scheduling of audio hearings will allow us to provide
more timely hearings to all claimants. For appearances by audio, we do
not need to coordinate hearing room space because the claimants appear
from private locations of their choice, and ALJs generally conduct
hearings from a private location other than a hearing room. We can also
transfer cases with audio appearances to offices and regions with more
capacity, which reduces hearing wait times.
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\31\ See the Setting the Manner of Appearance of Parties and
Witnesses at Hearings, Final Rule, Supporting Data Document,
available at https://www.regulations.gov as a supporting document
for Docket SSA-2022-0013.
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When we implement this final rule, we will create a new notice and
publication explaining the different manners of appearance and the
various requirements. We will also revise our existing objection form
so that claimants can easily object to appearances by agency video or
by audio, and we will create a new form on which claimants can agree,
if they would like, to appear by online video.
Finally, as in our current rule, we will extend the time period if
a claimant shows they had good cause for missing the deadline. We
expect that this good cause provision will effectively accommodate
those who lack consistent access to communication resources.
Unique Considerations for Online Video Appearances
Comment: Commenters stated that many claimants have limited or
unreliable access to electronic devices or high-speed broadband access.
One commenter said that many of the same claimants who could
successfully use online hearing options are those best positioned to
elect an alternative form of appearance.
Response: We understand from these comments that we need to
consider appearances by online video differently than other manners of
appearance. This difference is needed because appearances by online
video require using private electronic devices that we do not own,
operate, or specifically approve and also using third-party software.
Therefore, in this final rule, we created two categories of video
appearances: (1) agency video and (2) online video. Agency video means
video, with audio functionality, using our equipment in one of our
offices. Online video means video, with audio functionality, using a
personal electronic device in a private location the claimant chooses.
Furthermore, because of the unique circumstances involved in
appearances by online video, we will only schedule appearances by that
manner if the claimant agrees. Thus, there will be no need for
claimants to object to appearing by online video. We are not requiring
claimants' agreement for audio or agency video appearances because
those manners of appearance do not involve the same unique
circumstances as online video. Particularly significant is the fact
that audio and agency video appearances do not require using third-
party software.
We will send claimants a notice informing them that we may schedule
them to appear by online video if they agree to appear in that manner.
To agree to appear by online video, claimants must notify us in writing
within 30 days of receiving that notice. We are adopting a 30-day
deadline because we need to know early in the process whether a
claimant agrees to appear by online video in order to help schedule
timely hearings for all claimants. Moreover, changing the manner of
appearance after we schedule a hearing requires us to send an amended
notice of hearing at least 20 days before the hearing, which may
require us to reschedule the hearing for a later date unless we are
able to obtain a written waiver from the claimant.\32\ We will extend
the 30-day time period for agreeing to online video if the claimant
shows that they had good cause for missing the deadline. We will
evaluate good cause using the standards in 20 CFR 404.911 and 416.1411.
Within our discretion and where possible, even without a showing of
good cause, we will still consider a request to change the manner of
appearance to online video after the 30-day time period if it would be
efficient to conduct the hearing in that manner and the circumstances
in the case provide a
[[Page 68352]]
good reason to schedule the claimant's appearance by online video.
---------------------------------------------------------------------------
\32\ 20 CFR 404.938 and 416.1438.
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Good Cause for Missing the 30-Day Objection Period
Comment: According to one commenter, the examples of good cause for
untimely objections identified in proposed 20 CFR 404.936(d)(2) and
416.1436(d)(2) are problematic, creating a loophole in the rule that
would effectively eliminate the deadline for objecting to audio and
video appearances. One example of good cause for an untimely objection
that we provided in the NPRM was disagreement with the terms of service
for a third-party application. The commenter said if that were enough
to show good cause for an untimely objection, any claimant would be
able to successfully raise an objection at any time simply by claiming
to disagree with the terms of service of the third-party application we
use. Thus, we would be required to schedule the claimant to appear in
another manner whenever a claimant scheduled for an online video
appearance stated disagreement with the terms of service, even if that
claimant waited until a day before the originally scheduled hearing.
The commenter expressed this would be disruptive to hearing operations,
requiring last-minute postponement of hearings and loss of
productivity, which has been a ``major undesirable feature of the
current opt-in, object-at-any-time hearing process.'' The commenter
suggested that if we think the rule needs to specify examples of good
cause for untimely objections, the examples should involve much more
compelling circumstances, such as those currently required for untimely
objections to VTC.\33\ The commenter expressed it may be better not to
provide examples, and rather leave it to ALJs to exercise their
judgment in determining whether good cause for untimely objections has
been shown.
---------------------------------------------------------------------------
\33\ The commenter cited 20 CFR 404.911.
---------------------------------------------------------------------------
Another commenter stated that the two examples of good cause from
the NPRM (disagreement with the terms of service of the third-party
application or lack of resources to appear by video) do not establish
good cause because both scenarios can be ascertained within the 30-day
timeframe for objection.
Response: We did not adopt the two examples of good cause provided
in the NPRM because they pertained to objections to appearing by online
video only. Under this final rule, a claimant does not need to object
to appearing by online video. Rather, this final rule provides that we
will not schedule a claimant to appear by online video unless the
claimant agrees to appear in that manner, and it provides that a
claimant may withdraw their agreement to appear by online video at any
time before the start of the hearing. If the claimant withdraws their
agreement, we will reschedule the claimant to appear by one of the
other available manners of appearance. While we will try to reschedule
the hearing as quickly as possible, the time to reschedule will depend
on multiple factors, including representative, expert witness and ALJ
availability, as well as available hearing slots. Additionally, we can
reschedule the hearing no earlier than 20 days after the withdrawal
unless the claimant waives in writing the advanced written hearing
notice requirement.\34\ Although we did not adopt the two examples of
good cause provided in the NPRM, a claimant may still submit a late
objection to appearing by audio or agency video. If we receive a late
objection, we will use the standards in 20 CFR 404.911 and 416.1411 to
evaluate whether good cause exists for missing the deadline.
---------------------------------------------------------------------------
\34\ 20 CFR 404.938 and 416.1438.
---------------------------------------------------------------------------
Comment: According to some commenters, we should expand upon the
circumstances in which claimants can opt out of manners of appearance
beyond the 30-day objection period. Some commenters said we should do
this by adding more examples of what would constitute good cause to
change the manner of appearance.\35\ Other commenters said we should
specify circumstances that would not require a good cause determination
but would still permit us to change the manner of appearance beyond the
objection period. According to one commenter, while retaining ``good
cause'' exceptions for claimants with extenuating circumstances is
important, it is not sufficient because good cause exceptions are
individualized determinations based on judgment. Instead, according to
the commenter, in certain situations, claimants should be able to
automatically modify the manner of appearance. Some commenters stated
that such requests should be processed by hearings staff, without
involvement of the ALJ. Commenters provided examples of circumstances
they asserted should allow claimants to change their manner of
appearance beyond the proposed objection period without requiring a
good cause determination. Some of the suggested circumstances include:
---------------------------------------------------------------------------
\35\ Our regulations provide examples of good cause for missing
a deadline in 20 CFR 404.911 and 416.1411. Also, in the NPRM, we
proposed to include examples of some circumstances that would apply
specifically to online video appearances: ``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.'' See 88 FR 32148, 32152, and 32153
(May 19, 2023). We removed the NPRM examples from this final rule.
---------------------------------------------------------------------------
If the claimant obtains counsel for their disability
hearing.
If claimants change or obtain new counsel.
If there is a change of address.
If there is a change in medical condition, including
hospitalization, because some of these changes may impact accessibility
to certain hearing formats.
If the custody or guardianship of a child changes.
If the claimant is homeless.
If the claimant lacks necessary equipment, such as a
personal electronic device with internet access.
If the claimant never received the notice to object due to
mailing problems, homelessness, illiteracy, or inability to read
English.
Lack of proper identification (for hearings in government
buildings).
One commenter expressed that because claimants may have ``long wait
times of multiple years before getting to appear at a hearing before an
ALJ, this process ought to account for changes in circumstances with
flexibility and lenient consideration.'' Another commenter said that
claimants unfamiliar with hearing modalities offered will not likely
know whether they need to request an accommodation or may assume that
accommodations will be easily provided. Additional commenters said that
a claimant who elects or defaults to a video or audio appearance may
not understand the nature of the appearance, and allowing changes in
manner of appearance until a hearing is scheduled promotes informed
decisions.
According to a commenter, the lack of clarity regarding what
constitutes good cause to object to appearing by VTC (under current
regulations) has resulted in ALJs denying late objections for
circumstances that would likely have been granted if detailed with
further clarity.
Finally, a commenter expressed that, in addition to the reasons we
would allow a change, the rule should clarify whether, how, when, and
how often a claimant can change their manner of appearance preference.
Response: We did not adopt these comments. This final rule does not
include the two examples of good cause from the NPRM because, as
discussed above, those examples are unnecessary based on changes to the
final rule.
[[Page 68353]]
We retained the policy in our current regulations for evaluating
good cause for an untimely objection. Under that policy, we use the
standards in 20 CFR 404.911 and 416.1411 to evaluate good cause. We
have been using those standards to evaluate good cause for missing the
deadline to object to a VTC appearance for nearly a decade.\36\ Those
standards are broad and effective, and they are appropriate for
considering a wide range of reasons for missing a deadline, including
those identified by the commenters.
---------------------------------------------------------------------------
\36\ In 2014, we added the provision that we would evaluate good
cause for untimely VTC objections using the standards in 20 CFR
404.911 and 416.1411. 79 FR 35926.
---------------------------------------------------------------------------
Expanding the standards for evaluating good cause too broadly,
including by adding more across-the-board examples that would require a
change at any time, would disrupt the efficiency of our hearing
process. Therefore, it is important to retain our current standards,
which have worked well for a long time, and which allow us to make
case-specific good cause determinations based on individual
circumstances.
Our ALJs are well positioned to evaluate good cause and have
extensive experience doing so. While a commenter suggested that ALJs do
not evaluate good cause appropriately, the commenter did not provide
examples, and the commenter's suggestion does not match our experience.
Comment: Some commenters expressed concerns that the proposal may
cause a surge in discretionary good cause determinations. One commenter
said many claimants will object after the 30-day period, and that
requiring ALJ decisions on an ``influx'' of requests to change the
manner of appearance for good cause will likely weigh the agency down
with administrative burdens and erode uniformity and equity of claim
outcomes. The commenter said that the addition of a new discretionary
procedure will most likely hurt the least-resourced and furthest
marginalized claimants.
A different commenter stated that there may be an increase in
claimants unable to attend hearings by audio or video because they
either did not know of those manners of appearance or are unable to
attend in the manner scheduled, which ``will further increase the
administrative courts issuing Orders to Show Cause (OSC) for failure to
appear.'' The commenter stated that ALJs will be required to rule on
OSC responses, requiring subsequent administrative action that would be
otherwise unnecessary.
Response: We disagree with these commenters. We do not anticipate
an influx of untimely objections, and we do not anticipate delays or
lack of uniformity in our good cause determinations. As we noted in our
other responses, our ALJs have extensive experience evaluating good
cause under the standards in 20 CFR 404.911 and 416.1411. Our ALJs have
been doing so regarding VTC objections since 2014 \37\ and regarding
other deadlines for nearly three decades.\38\ There is nothing unique
about appearances by agency video or by audio that would necessitate a
change.
---------------------------------------------------------------------------
\37\ See 79 FR 35926.
\38\ We set forth good cause provisions in 20 CFR 404.911 and
416.1411 in 1980, and we amended them to their current form in 1994.
---------------------------------------------------------------------------
Moreover, we expect that the manners of appearance in this final
rule will make it easier for many claimants, especially those facing
barriers to service, to attend their hearings. As such, we anticipate
that fewer--not more--claimants will fail to appear at their hearings,
which will result in the need to issue fewer Requests to Show Cause for
Failure to Appear (Form SSA- HA-L90s).
In-Person Appearances
Comment: Multiple commenters expressed support for retaining in-
person hearings as the default manner of appearance. One commenter
asserted that changing the default manner of appearance will
``adversely affect vulnerable claimants.'' They expressed that many
claimants, particularly those who are unhoused or lack reliable access
to mail, are not always able to respond to notices regarding the manner
of appearance. Some commenters said that mail service remains ``spotty
at best'' in many low-income neighborhoods and claimants facing the
most significant barriers, including homelessness, poverty, and housing
instability, move frequently. According to some commenters, our
inability to reach approximately 30 percent of claimants (data we
reported in the NPRM) should not be ``interpreted as endorsement of, or
acquiescence to, the change in platforms.'' The commenter expressed
that a change in the default manner of appearance could create a group
of claimants who would have elected an in-person hearing, but because
of housing insecurity, physical or behavioral deficits in their ability
to read and understand, or other reasons, are forced into a manner of
appearance which they did not choose.
Another commenter said the ``onus should not be on the claimant to
affirmatively pursue and protect their right to appear at their hearing
in person.'' According to the commenter, the proposed regulations
``unfairly shift the burden of preserving the right to appear in person
on the claimant by requiring them to object, but also require the
claimant to navigate a duplicative, cumbersome process to do so.''
According to a different commenter, audio hearings are a ``true
disservice to the disabled individuals seeking benefits,'' and unless
claimants specifically request audio, it ``deprives them of a full and
fair hearing, particularly if they are not represented.'' Another
commenter asserted that telephone hearings do not provide claimants
with an opportunity to fully present their case, which causes cases to
be ``decided unfavorably due to an error by the ALJ that would have
been avoided in an in-person hearing.'' The commenter said that the
denial rate for telephone hearings didn't reflect what they expected
based on their experience with the ALJs in their region, and they found
many decisions were ``so deficient as to require appeal.'' The
commenter expressed that in-person, local hearings should be the
preferred manner of appearance.
Another commenter said that, unless a particular claimant has
indicated a preference for an audio or video appearance, they should be
scheduled for an in-person appearance to enable the ``fullest
evaluation of their claim.'' According to some commenters, in-person
appearances are often necessary for an adjudicator to fully observe the
physical manifestations of a claimant's disabilities (such as their
physical functioning, scars, mannerisms, and hygiene) and accurately
assess a claimant's credibility. A commenter stated that confused or
anxious looks can be visual evidence of confusion or anxiety. Another
commenter said that claimants often must testify to highly personal,
emotional, traumatic symptoms and events, and that requiring them to
testify in a manner contrary to their choice may lead to less claimant
disclosure and decisions based on incomplete information.
One commenter said that scheduling audio or video appearances
without providing a meaningful opportunity to opt out effectively
removes a claimant's one chance to engage in an in-person interaction
with a decision-maker for the entire disability determination process
(since we usually rely on document review for the initial and
reconsideration determinations, and the Appeals Council and District
Court appellate processes). According to the commenter, allowing in-
person
[[Page 68354]]
appearances for all who choose it ``demonstrates respect'' and
``promotes dignity and transparency in what may appear to be a largely
invisible and impersonal process.'' Further, the commenter said
defaulting to audio or video appearances demotes this process to one
that may feel ``less legitimate, presenting a significant disruption to
the human element of disability adjudication.'' Another commenter
stated this is the first interaction that some claimants have with the
American legal system and the right to be heard in person. They
expressed that this is a core value in our justice system and any
changes we make should not erode this right.
Response: We are not eliminating in-person appearances, nor are we
making in-person appearances the default. Under this final rule, we
will generally schedule a claimant to appear in person if the claimant
timely objects to appearing by audio and agency video and if the
claimant does not timely agree to appear by online video.\39\ Absent an
objection, we will not default to scheduling claimants by agency video
or by audio. Rather, under 20 CFR 404.936(c)(1)(ii) and
416.1436(c)(1)(ii) of this final rule, we will consider which manner
would be the most efficient and any facts that provide a good reason
for a specific manner of appearance. Thus, we may schedule an in-person
appearance if we determine it is necessary.
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\39\ In limited circumstances, we may not schedule the claimant
to appear in person, see 20 CFR 404.936(d)(2)-(5); 404.937(b)(2),
(c); 416.1436(d)(2)-(5); and 416.1437(b)(2), (c).
---------------------------------------------------------------------------
This final rule adds flexibility to our policy on manners of
appearance and gives claimants an opportunity to have input on their
own manner of appearance. Many other commenters highlighted the
benefits of, and indeed a preference for, appearances by audio and
video. For example, commenters noted that audio and video appearances
will result in greater overall flexibility for claimants. Commenters
also stated that both video and audio appearances can be advantageous
for claimants who have limited transportation options, who live far
from hearing offices, or who have circumstances like limited mobility
or severe anxiety. Furthermore, our experience stemming from the COVID-
19 national public health emergency shows that many claimants desire to
appear by audio or video.\40\ Since we began reopening our offices to
the public in March 2022, many claimants continue to choose a telephone
or online video appearance. Since March 2022, approximately 70.5
percent of hearing appearances have occurred by telephone, 14.4 percent
by online video, 13.6 percent in person, and 1.5 percent by VTC.\41\
Our survey data also showed that 83 percent of claimants were satisfied
with their online video hearing.\42\ The audio, agency video, and
online video manners of appearance in this final rule will help us to
balance workloads and reduce wait and processing times, thereby
providing more timely hearings for claimants.
---------------------------------------------------------------------------
\40\ See the Setting the Manner of Appearance of Parties and
Witnesses at Hearings, NPRM, Supporting Data Document, available at
https://www.regulations.gov as a supporting document for Docket SSA-
2022-0013.
\41\ See the Setting the Manner of Appearance of Parties and
Witnesses at Hearings, Final Rule, Supporting Data Document,
available at https://www.regulations.gov as a supporting document
for Docket SSA-2022-0013.
\42\ From July 2021 through July 2022, we sent 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. The overall satisfaction score was 4.2 or higher, and 83
percent or more of respondents in each month reported an overall
satisfaction rate of a 4 or 5. See the Setting the Manner of
Appearance of Parties and Witnesses at Hearings, NPRM, Supporting
Data Document, available at https://www.regulations.gov as a
supporting document for Docket SSA-2022-0013.
---------------------------------------------------------------------------
We disagree with one commenter's assertion that audio appearances
result in more denials to claimants. The commenter did not provide any
data to support the assertion. Furthermore, comments about assessing a
claimant's credibility are an inaccurate description of our rules
because our ALJs do not evaluate a claimant's credibility. Instead, our
ALJs evaluate the intensity, persistence, and limiting effects of an
individual's symptoms based on all the evidence of record. We do not
assess a claimant's overall character or truthfulness in the manner
typically used during adversarial litigation.\43\
---------------------------------------------------------------------------
\43\ See 20 CFR 404.1529(c)(3) and 416.929(c)(3) and Social
Security Ruling (SSR) 16-3p.
---------------------------------------------------------------------------
In conclusion, it would be as inappropriate for us to automatically
assume that a claimant prefers to appear at a hearing in-person as it
would be for us to assume the claimant wants to appear by online video.
Indeed, we designed this final rule to allow claimants to have input
into the manner in which they will appear at hearings.
Comment: One commenter said the proposed rule has the potential to
improve on our current practice, primarily because it creates an opt-
out process for audio and video appearances and provides a deadline for
opting out. This opt out process is in contrast to the current process,
which requires opting in for audio and video appearances and allows
claimants and representatives to ``disrupt'' hearing schedules by
raising objections to audio and video appearances at any time. Another
commenter stated that ``in-person hearings should not be the automatic
default for claimants'' and that claimants usually prefer video to in-
person hearings, as they can appear from home yet ``still see the ALJ
and be seen clearly, with very few cases of tech problems.''
Response: We agree that appearances by audio, agency video, and
online video provide significant benefits to claimants,
representatives, and us. However, as discussed above, under this final
rule, we will only schedule an online video appearance if the claimant
agrees because of the unique circumstances of that manner of
appearance.
Comment: One commenter expressed concerns that our proposed
regulations would lead to local hearing offices staffed with only a few
ALJs willing to hold hearings with in-person appearances, and that
there would be pressure on claimants to choose an alternative option to
have their case heard ``earlier'' by a remote ALJ by video or audio.
The commenter recommended that we continue to staff local hearing
offices with sufficient ALJs to hold hearings with in-person
appearances. Another commenter requested that we update our policy to
describe the ``need to conduct hearings using multiple formats during
an [ALJ's] day.'' According to the commenter, too often, the
convenience of our employees outweighs the needs of claimants to have
their hearings held using first-in first-out scheduling.
Response: We will continue to staff our hearing offices, budgets
permitting, with sufficient personnel, including ALJs, to accommodate
in-person and agency video appearances. For an in-person appearance, we
have a fixed number of hearing rooms, which we must coordinate the
scheduling of among our ALJs and claimants. We also do not have the
ability to transfer a case with an in-person appearance to a non-local
hearing office with more capacity.
For appearances by audio and online video, we do not need to
coordinate hearing room space because the claimants appear from private
locations of their choice, and ALJs generally conduct hearings from a
private location other than a hearing room. We can also transfer cases
with audio, agency video,
[[Page 68355]]
and online video appearances to offices and regions with more capacity,
which reduces hearing wait times. An advantage of this final rule is
that it allows us to transfer cases to fill hearing office capacity
without the geographic limitations of the current rules. Although we
strive wherever possible to process cases in order, the flexibilities
and efficiencies this final rule provides may result in a slight
deviation from the first in, first out order to optimize our hearing
process overall. Depending on the logistics of a particular case, it
might be possible to schedule appearances by audio or video more
quickly than in person, but we will not pressure a claimant regarding
their choice to agree to online video or to object to audio or agency
video. This final rule does not prioritize the convenience of our
employees over our claimants. Finally, because we temporarily closed
our offices for a period during the COVID-19 national public health
emergency and we reopened our offices gradually, we communicated to
claimants that scheduling would be delayed for individuals who did not
agree to appear by telephone or online video. Now that the emergency
has ended, we no longer communicate that scheduling in-person
appearances will be delayed.
Due Process
Comment: One commenter said our proposal would limit claimants'
rights to request in-person hearings and thereby affect their right to
due process. The commenter stated that the Supreme Court has held that,
in a case involving welfare, a recipient has a due process right to a
hearing before they can be deprived of benefits, and that due process
requires the opportunity to be heard ``at a meaningful time and in a
meaningful manner.'' The commenter referred to a study that, according
to the commenter, found a deprivation of an in-person hearing for
people seeking asylum resulted in an increased risk of negative
outcomes.\44\ The commenter stated that a court today would find that
due process requires the right to an in-person hearing, particularly in
claims for Supplemental Security Income (SSI). As such, the commenter
asserted that the rule, as proposed, would potentially violate the
procedural due process rights of Social Security claimants.
---------------------------------------------------------------------------
\44\ The commenter cited Frank M. Walsh; Edward M. Walsh,
Effective Processing or Assembly-Line Justice--The Use of
Teleconferencing in Asylum Removal Hearings, 22 Geo. Immigr. L.J.
259, 275 (2008).
---------------------------------------------------------------------------
Another commenter expressed that ``procedural Due Process serves
two basic goals: (1) preventing the wrongful deprivation of interests,
and (2) promoting fairness by providing a meaningful opportunity for
individuals to share their side of the story with the government.''
According to the commenter, ``imposed'' audio or video appearances that
conflict with a claimant's preferred manner of appearance militate
against both goals. The commenter said a ``sizeable number'' of
claimants will lack the capacity to respond in 30 days. According to
the commenter, if these claimants are scheduled for an audio or video
appearance and are unable to appear at the remote hearing because they
lack notice and the necessary tools to appear, such as a phone or
computer, their claims will likely be dismissed for failure to appear.
The commenter stated, for this reason, this change in policy will
increase procedural dismissals in substantively valid disability
claims, significantly violating claimants' due process rights.
Response: This final rule will help to safeguard a claimant's right
to a full and fair hearing. Barring limited circumstances, no
provisions in this final rule limit a claimant's ability to appear at a
hearing in person, if the claimant wants to appear in that manner.
Moreover, the procedures set forth in this final rule are similar to
the procedures in our current rules, procedures that have operated well
for many years.
Under our current rules, if a claimant wants to appear at a hearing
in person, instead of by VTC, the claimant can object to appearing by
VTC within a 30-day period. Claimants who have good cause for missing
the 30-day deadline can submit a late objection. If the claimant
objects timely to appearing by VTC (or objects after the 30-day period
and we find good cause for late filing), and the claimant's residence
does not change, we will schedule the claimant to appear at a hearing
in person. Similarly, under this final rule, if a claimant wants to
appear at a hearing in person, instead of by audio, agency video, or
online video, the claimant can object to appearing by audio and agency
video within the same 30-day period, or can submit a late objection
based on a showing of good cause for missing the deadline. We will not
schedule an appearance by online video unless the claimant agrees. If
the claimant objects timely to appearing by audio and agency video (or
objects after the 30-day period and we find good cause for the late
filing), the claimant's residence does not change, and the claimant has
not agreed to appear by online video, we will schedule the claimant to
appear at a hearing in person. Thus, a claimant has the same
opportunity to appear at a hearing in person under this final rule as
under our current rules.
Under this final rule as well as under our current rules, there are
very limited circumstances where we will schedule a claimant to appear
at a hearing by audio despite the claimant's objection to appearing in
that manner. For example, under this final rule, we will schedule a
claimant to appear by audio when we cannot schedule the claimant to
appear by video, e.g., because the claimant objected to appearing by
agency video and did not agree to appear by online video, and
extraordinary circumstances prevent the claimant from appearing in
person.\45\
---------------------------------------------------------------------------
\45\ See 20 CFR 404.936(d)(2) and 416.1436(d)(2). Under this
final rule, we may also schedule a claimant to appear by audio,
despite a timely objection to appearing in that manner, as set forth
in 20 CFR 404.936(d)(3)-(d)(5), 404.937(b)(2), 404.937(c),
416.1436(d)(3)-(d)(5), 416.1437(b)(2), and 416.1437(c).
---------------------------------------------------------------------------
We take seriously our responsibility to ensure that claimants
receive full and fair hearings as well as accurate hearing decisions.
Our experience with VTC appearances over the last 20 years, and our
more recent experience with online video and telephone appearances
during the COVID-19 national public health emergency shows that
claimants do not have to appear in person to be heard meaningfully. Our
ALJs look fully into the issues and follow the same policies and
procedures, regardless of the claimant's manner of appearance. If a
variable outside an ALJ's control, such as audio or video quality, were
to materially affect a hearing, this final rule, Sec. Sec. 404.944 and
416.1444, provide that the ALJ may stop the hearing temporarily and
continue it at a later date.
While a commenter opined that due process requires an in-person
appearance, particularly for claimants seeking SSI, the commenter did
not explain why. Instead, the commenter referenced a study that,
according to the commenter, concluded that VTC hearings for people
seeking asylum resulted in an increased risk of negative outcomes.\46\
Notably though, an asylum removal hearing differs significantly from a
Social Security hearing. An asylum removal hearing is an adversarial
proceeding, whereas a hearing on a claim for benefits under the Social
Security Act is informal and non-adversarial.\47\
---------------------------------------------------------------------------
\46\ The article the commenter cited regards the use of video
conferencing in asylum removal hearings. See Walsh & Walsh, supra
note 43.
\47\ See Johanna Selberg, Truth and Trauma: Exploring the Merits
of Non-Adversarial Asylum Hearings, 35 Geo. Immigr. L.J. 929, 932
(2021) (describing defensive, adversarial asylum proceedings before
an immigration judge); 20 CFR 404.900(b), 416.1400(b) (explaining
that we conduct our administrative review process in an informal,
non-adversarial manner).
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[[Page 68356]]
Our ALJs are neutral decision-makers who develop all of the facts
regarding a benefit claim. An immigration judge does not perform that
same fact-finding function. Rather, an immigration judge rules on the
evidence presented by the parties, one of whom is the United States,
represented by an Immigration and Customs Enforcement attorney.
Additionally, the study the commenter referenced notes that the
testimony of an asylum applicant at an asylum hearing is especially
important because, in order to meet the definition of ``refugees,''
they must have fled their country and may have little to no
documentation to support their allegations of persecution.\48\ Thus, an
asylum removal hearing is not comparable to a Social Security hearing.
As previously explained, our experience shows that claimants receive
full and fair hearings regardless of whether they appear in person or
by VTC, online video, or audio.
---------------------------------------------------------------------------
\48\ Walsh & Walsh, supra note 43, at 273.
---------------------------------------------------------------------------
Furthermore, even in relation to the asylum example cited by the
commenter, courts have upheld the use of video conferencing for asylum
hearings. Those courts have examined whether the asylum petitioner
received a full and fair hearing based on the facts of the individual
case, including the use of video conferencing.\49\
---------------------------------------------------------------------------
\49\ See, e.g., Miller v. Att'y Gen. of U.S., 397 F. App'x 780,
783 (3d Cir. 2010) (finding that the petitioner did not show that
use of video conferencing prevented the immigration judge from
properly considering the record or testimony, and noting there was
no basis to conclude that the immigration judge's ruling would have
been different if the petitioner had appeared in person); Rapheal v.
Mukasey, 533 F.3d 521, 531 (7th Cir. 2008) (``No court has ever held
that Congress has violated the due process clause by authorizing
removal hearings to proceed via video conference.''); Rusu v. U.S.
I.N.S., 296 F.3d 316, 322-24 (4th Cir. 2002) (noting the potential
negative impacts of video conferencing, but finding that the
petitioner appeared to have a meaningful opportunity to be heard).
---------------------------------------------------------------------------
As noted elsewhere, this final rule recognizes that some claimants
may not want to appear at a hearing by agency video or by audio, but,
due to personal circumstances, may be unable to meet the deadline to
object to those manners of appearance. In those circumstances, and
others, we will extend the deadline for submitting an objection if the
claimant shows good cause for missing it. And, again, this final rule
specifies that we will only schedule a claimant to appear by online
video if they agree to an appearance in that manner.
Ultimately, we expect this final rule will make it easier, not more
difficult, for claimants to attend hearings. As multiple commenters
recognized, making audio and video appearances available helps
claimants who, for a variety of reasons, have difficulty traveling to,
or participating from, our offices.
Additionally, under our longstanding procedures, if neither the
claimant nor the appointed representative, if any, appears for a
scheduled hearing, we will not dismiss the request for hearing if the
claimant shows good cause for failing to appear.\50\
---------------------------------------------------------------------------
\50\ 20 CFR 404.957(b) and 416.1457(b).
---------------------------------------------------------------------------
Comment: Another commenter said the proposed regulation's shift of
burden (modifying the requirement that a claimant ``consent to appear
at a hearing'' to requiring claimants to ``object to appearing at a
hearing by video, audio, or both'') conflicts with the ``individual's
right to appear, in person or through a representative.'' According to
the commenter, ``absent direct expression by U.S. Congress to depart
from this enacted right, the Administration cannot implement
regulations to change it.'' The commenter asserted that pursuant to
Social Security Ruling (SSR) 79-19,\51\ an individual's waiver of the
right to personal appearance at a hearing needs to be ``made
voluntarily and knowingly.'' The commenter said that a claimant who has
not objected to appear remotely has neither ``voluntarily nor
knowingly'' waived the right to appear in person. The commenter
asserted that it follows that claimants also have the option to rescind
an election for remote appearance at any time.
---------------------------------------------------------------------------
\51\ See SSR 79-19, available at https://www.ssa.gov/OP_Home/rulings/oasi/33/SSR79-19-oasi-33.html.
---------------------------------------------------------------------------
Response: The commenter has misconstrued SSR 79-19. That SSR
provides guidance about waiver of a claimant's statutory right to
appear at a hearing, either personally or through a representative.
Under our regulations, an ALJ may decide a case without a hearing if
all the parties to the hearing indicate in writing that they do not
wish to appear at a hearing.\52\ SSR 79-19 requires the agency to give
a claimant who files a request for hearing a thorough explanation of
the hearing procedures to help convey the importance of those
procedures, and it sets forth the requirements for a valid waiver of
the right to appear at a hearing. Contrary to the commenter's
statement, SSR 79-19 does not relate to manners of appearance, and
neither SSR 79-19 nor any other authority requires a claimant to
voluntarily and knowingly waive the opportunity to appear in person
before we can schedule another manner of appearance. Moreover, under
our current rules, we routinely schedule claimants to appear at
hearings by VTC, without requiring any waiver of the opportunity to
appear in person.\53\
---------------------------------------------------------------------------
\52\ 20 CFR 404.948(b)(1)(i) and 416.1448(b)(1)(i).
\53\ Under our current rules, we generally will not schedule a
claimant to appear by VTC if the claimant timely objected to
appearing in that manner. 20 CFR 404.936(d) and 416.1436(d).
---------------------------------------------------------------------------
Other
Comment: Multiple commenters said a claimant should have the right
to a hearing before an ALJ who is local to the claimant's residence.
According to commenters, local healthcare options, cultural and other
barriers to evidence, language, and other regional differences
contribute to a claimant receiving a higher quality hearing before a
local ALJ. Some commenters said that the proposed regulations
``continue to encourage a problematic slide within our agency toward
scheduling hearings with ALJs who lack knowledge of the claimant's
region.'' Other commenters expressed that local ALJs are familiar with
unique vocational factors and know the specific circuit's case law. In
addition, a commenter said local attorneys have sufficient experience
and knowledge of local ALJs' preferences, ranging from supplying
evidence, to brief formatting and content, to how hearings are
conducted. The commenter stated that familiarity with an ALJ's
preferences allows the entire hearing process to run more efficiently,
and the consequential increased need to appear before non-local ALJs
will result in longer hearings and more supplemental hearings, costing
more in the end. The commenter said, in some cases, remote ALJs have
seemed ``disparaging and unreasonably disbelieving'' of claimants from
the commenter's region, which has a ``distinct cultural identity and
racial and ethnic demography.''
Another commenter stated that the proposed notices do not inform
claimants that choosing a remote appearance may result in their case
being transferred to ``any hearing office in the country,'' and took
issue with the lack of notice regarding the potential for cases to be
transferred outside one's local hearing office.
Response: We did not adopt these recommendations because claimants
do not have a statutory right to a hearing in their region or locally.
We administer a national program, and, unless a relevant acquiescence
ruling applies, our ALJs apply our national policies to
[[Page 68357]]
all cases.\54\ We also have extensive experience conducting hearings
with ALJs who are in different locations than our claimants. For
example, ALJs at our National Hearing Centers conduct hearings with
claimants located throughout the nation. In addition, we transfer cases
to other offices and regions to help balance our processing times. As
we explained in our NPRM, we transferred approximately 17 percent of
our cases in fiscal year 2022.\55\
---------------------------------------------------------------------------
\54\ 20 CFR 404.985 and 416.1485 and SSR 96-1p, available at
https://www.ssa.gov/OP_Home/rulings/di/10/SSR96-01-di-10.html.
\55\ See the Manner of Appearance, NPRM, Supporting Data
Document, available at https://www.regulations.gov as a supporting
document for Docket SSA-2022-0013.
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Our policy requires ALJs to conduct fair and impartial hearings
\56\ and we have processes and procedures in place to address any
issues that arise.\57\ Indeed, as previously explained in this rule,
one of the driving factors behind this regulation is the desire to
achieve greater equity for all claimants, including those from
historically underserved racial or ethnic groups.
---------------------------------------------------------------------------
\56\ See HALLEX I-2-3-10 B.1 available at https://www.ssa.gov/OP_Home/hallex/I-02/I-2-3-10.html (``Regardless of a claimant's
manner of appearance at the hearing, the [ALJ] must inquire fully
into all matters at issue and conduct the hearing in a fair and
impartial manner.'').
\57\ See SSR 13-1p available at https://www.ssa.gov/OP_Home/rulings/oasi/33/SSR2013-01-oasi-33.html and HALLEX I-1-8-4 available
at https://www.ssa.gov/OP_Home/hallex/I-01/I-1-8-4.html and I-3-3-2
available at https://www.ssa.gov/OP_Home/hallex/I-03/I-3-3-2.html.
---------------------------------------------------------------------------
Comment: One commenter said claimants and their representatives
should be allowed to opt for video appearances in every case, and they
should never be required to appear by audio if they seek a video
appearance (where the ALJ can observe the claimant).
Response: As we stated in an earlier response, it is not
administratively feasible to allow claimants to select their preferred
manner of appearance. However, this final rule provides for claimant
input by allowing claimants to object to appearing by audio or agency
video and by requiring a claimant's agreement to an appearance by
online video. We must have flexibility in our scheduling process
because we schedule hundreds of thousands of hearings per year, and
flexibility enhances our efficiency.
If a claimant does not want to appear by audio, they can object to
appearing in that manner. Under this final rule, we will generally not
schedule an appearance by audio if the claimant timely objects to
appearing in that manner. Generally, we will only schedule an
appearance by audio, notwithstanding an objection to appearing in that
manner in very limited circumstances, when an appearance by video or in
person is not available.\58\ This is consistent with our current rules,
which allow us to require an appearance by telephone in certain limited
circumstances. Despite the current provisions, we have historically
required a telephone appearance in very few cases. Even during the
COVID-19 national public health emergency, we asked claimants if they
agreed to appear by telephone before holding a hearing in that manner.
Similarly, under this final rule, we expect that we will require a
claimant to appear by audio notwithstanding their objection in few
cases.
---------------------------------------------------------------------------
\58\ See 20 CFR 404.936(d)(2)-(5); 404.937(b)(2), (c);
416.1436(d)(2)-(5); and 416.1437(b)(2), (c).
---------------------------------------------------------------------------
Comment: Multiple commenters indicated that the current election
form \59\ should be more user friendly. One commenter said that many
claimants are confused by the current form, which has led those who
would have preferred an audio or video appearance to wait years for an
in-person appearance because they did not understand how to communicate
their agreement to audio or video to us. The commenter provided a
sample form and suggested we designate it as the ``Manner of Appearance
Election For Social Security Administrative Law Judge Hearings.'' They
also suggested that we include the form with the letter that informs
the claimant of the hearing process. Commenters said the letter should
make clear that the claimant has 30 days to respond, or the hearing
will be scheduled in person. According to the commenter, the proposed
form could also be used to indicate a claimant's request to change the
manner of appearance and the reason for the requested change.
---------------------------------------------------------------------------
\59\ Commenters likely referred to Remote Hearing Agreement Form
(OMB control no. 0960-0671), available at: https://www.ssa.gov/appeals/documents/RemoteHearingAgreementForm_RepresentedClaimantandRepresentative.pdf.
---------------------------------------------------------------------------
Another commenter said the notice should explain how effectively
ASL and other language access can be provided with each manner of
appearance, including how all participants will be shown on the screen,
when applicable, and whether there will be a number to call on the day
of the hearing if they run into trouble accessing the hearing. An
additional commenter expressed that there should be a more accessible
method for claimants and representatives to state a preference for an
in-person, audio, or video appearance.
One commenter stated the new form should provide a check box near
the top of the proposed form that states, ``I wish to have an in-person
hearing.'' According to the commenter, this would make this option a
meaningful choice, and it would help claimants understand that in-
person appearances are still an option. Multiple commenters advised the
new form should remove the language that states, ``I understand that by
selecting this option my hearing may be delayed.''
Finally, commenters expressed that it is important that the rule
provides clear instructions for objecting to a remote appearance,
opting for an in-person appearance, and for providing good cause for
the late submission of an objection.
Response: We will provide a new notice and publication explaining
the manners of appearance, a revised form (Form HA-55) allowing
claimants to object to appearances by audio and agency video, and a new
form allowing claimants to agree to appearances by online video. These
documents will clearly explain the various manners of appearance, the
requirements for each, and the time period for objecting to appearances
by audio and by agency video and for agreeing to appearances by online
video.
Our Request for Hearing Acknowledgment Letter (Form HA-L2) explains
how claimants with limited English proficiency, or those who are deaf
or hard of hearing, may request an interpreter, including for ASL. As
we did throughout the COVID-19 national public health emergency, where
requested, we will provide interpreters for all our manners of
appearance. We also plan to revise our subregulatory policies to
explain how we will offer interpreters for audio, agency video, and
online video appearances. Based on our experience during the COVID-19
national public health emergency, we find that each manner of
appearances is equally effective for all interpretation needs.
We also do not plan to adopt the suggestion to add a special
checkbox for in-person appearances, because doing so would make it seem
like in-person is the preferred or default manner. We will, though,
seek approval from the Office of Management and Budget (OMB) for our
revised objection form and new agreement form. As explained earlier,
one of the goals of this regulation is to provide claimants with an
opportunity to have input about their manner of appearance, based on
what is best for them. As some of the public comments cited in this
final rule indicate, an in-
[[Page 68358]]
person appearance is not necessarily what is best for every claimant.
Regulatory Procedures
Executive Order (E.O.) 12866, as Supplemented by E.O. 13563 and Amended
by E.O. 14094
We have consulted with OMB and determined that this final rule
meets the criteria for a significant regulatory action under E.O.
12866, as supplemented by E.O. 13563 and amended by 14094, and is
subject to OMB review.
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 this final rule. The primary effects
from implementing this final rule will be small cash flow effects due
to conducting hearings and issuing decisions more timely. These changes
are therefore expected to result in small changes of less than $500,000
in scheduled OASDI benefit payments and Federal SSI payments over the
period from fiscal year 2024 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 from lower ALJ, claimant, and
representative travel costs, offset some by slightly higher costs from
an increase in forms returned to us by claimants.
Anticipated Qualitative Benefits
As discussed in the NPRM, we expect that the flexibility provided
by this rule will benefit claimants and our agency in several ways.
First, we will be able to continue scheduling claimants to appear at
hearings remotely, by audio (except when claimants object) and by
online video (when claimants agree to this manner). 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 agree to appear by online video or
do not object to appearing by audio, and we schedule them in one of
those manners, they may 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, an online video or audio appearance will allow them
to appear from a private location of their choice, such as their home.
This rule will also allow us to balance our workloads more
efficiently among hearing offices because we can more easily transfer
cases where the claimant is scheduled to appear by agency video, online
video, or audio from one hearing office to another. We expect that this
rule will 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 in this rule will allow us to be prepared for
future emergency events, including localized events such as natural
disasters and national public health emergencies similar to COVID-19
that could require us to temporarily suspend in-person or agency video
appearances.
Congressional Review Act
This final rule is not a major rule as defined by the Congressional
Review Act.\60\
---------------------------------------------------------------------------
\60\ 5 U.S.C. 801 et seq.
---------------------------------------------------------------------------
Executive Order 13132 (Federalism)
We analyzed this final rule in accordance with the principles and
criteria established by Executive Order 13132 and determined that the
final rule will not have sufficient federalism implications to warrant
the preparation of a federalism assessment. We also determined that
this final 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 final rule will not have a significant
economic impact on a substantial number of small entities, as it
affects individuals only. Therefore, a regulatory flexibility analysis
is not required under the Regulatory Flexibility Act, as amended.
Paperwork Reduction Act
SSA already has existing OMB PRA-approved information collection
tools relating to this proposed rule under OMB Control No. 0960-0671:
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; and Form
HA-510, Waiver of Written Notice of Hearing. This final rule changes
the ways in which the Social Security Administration conducts hearings,
by expanding and clarifying our manner of appearance options. In
addition, this rule clarifies that claimants may appear for hearings
remotely using a telephone in the absence of extraordinary
circumstances; and that claimants may also appear remotely by video
using private electronic devices with approved online video
conferencing applications, rather than only using SSA owned video
equipment. We will need to revise the associated forms to reflect these
changes. Overall, we do not anticipate significant burden changes due
to this regulation. The burden chart below reflects our current burden
estimates for the associated information collection tools, as well as
the projected burden savings for the few Information Collections where
we think the burden will change. We will obtain OMB approval for the
revisions to the collection instruments concurrently with the effective
date of this final rule.
In addition, due to the final rule, we are also creating a new
notice, the HA-L54, Notice of Ways to Attend a Hearing, and a new Form,
the HA-56, Agreement to Appearing by Online Video. The new notice, HA-
L54, will explain in more detail the various ways to attend a hearing,
the requirements for each appearance type, the ability to object to
attending by audio or agency video, and the ability to agree to
attending by online video. The HA-L54 will serve as a cover letter for
Form HA-55 and new Form HA-56. The new form, HA-56, will allow
claimants to agree to an appearance via online video (using MS Teams).
Respondents will only use this form if they agree to an online video
appearance. The instructions on both the HA-L54 and Form HA-56 will
make this use of the Form HA-56 clear to the respondent. Claimants who
wish to object to an appearance by audio or agency video will use the
HA-55 to object.
The sections for the HA-56 and HA-L54 below report our anticipated
public reporting burdens for these new forms.
Finally, as we created the new notice, HA-L54, we will no longer
need to use the Claimant Enhanced Outreach Notices, since the new
Notice replaces them. In addition, we also expect to replace the
current Claimant Enhanced Outreach calls with one combined call,
[[Page 68359]]
since we will use the new HA-L54 to collect the necessary information
prior to a hearing but may still need an Outreach call to initiate the
hearing process. Since we are removing these information collections,
we anticipate a significant overall burden reduction for the public of
about 168,366 hours. The chart below shows the overall burden reduction
for this final rule.
We will obtain OMB approval both for the modifications to the
existing collection instruments and the new collection instruments
discussed above concurrently with the effective date of this final
rule.
The following chart shows the time burden information associated
with this final rule:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Anticipated
Current Anticipated estimated
Average estimated new number of total Estimated
OMB #; form #; CFR citations Number of Frequency of burden per total responses burden burden
respondents response response burden under under savings
(minutes) (hours) regulation regulation (hours)
(hours)
--------------------------------------------------------------------------------------------------------------------------------------------------------
HA-504\+\ HA-504-OP1 HA-504-OP2 404.938(c) 413.1438(c)... 700,000 1 30 350,000 700,000 350,000 0
HA-L83--404.936(f); 404.938; 416.1436(f); 416.1438....... 700,000 1 30 350,000 700,000 350,000 0
HA-L83--Good cause for missing deadline--404.936(f)(2); 5,000 1 5 417 5,000 417 0
416.1436(f)(2)..........................................
HA-L83--Objection stating issues in notice are incorrect-- 35,000 1 5 2,917 35,000 2,917 0
sent 5 days prior to hearing 404.939; 416.1439..........
HA-L2 Acknowledgement Letter 404.936 416.1436............ 500,000 1 5 41,667 500,000 41,667 0
HA-L54, HA-56, and HA-55--404.936; 404.938; 416.1436; 500,000 1 10 83,333 500,000 83,333 0
416.1438................................................
HA-L2--Verification of New Residence 404.936(d)(4); 35,000 1 5 2,917 35,000 2,917 0
416.1436(d)(1)..........................................
HA-L54--Notification of objection to audio and agency 13,500 1 10 2,250 13,500 2,250 0
video and agreement to online video more than 30-days
after receipt of notice showing good cause 404.936(d)(1)
and (e)(1); 416.1436(d)(1) and (e)(1)...................
HA-510--404.938(a); 416.1438(a).......................... 4,000 1 2 133 4,000 133 0
Claimant Enhanced Outreach--Initial Call No 75,190 1 10 12,532 0 0 12,532
Representative (Unrepresented Claimant/ProSe)...........
Claimant Enhanced Outreach--Initial Call with 201,400 1 10 33,567 0 0 33,567
Representative..........................................
Claimant Enhanced Outreach--Follow Up Call--No 37,500 1 60 37,500 0 0 37,500
Representative (Unrepresented Claimant/ProSe)...........
Claimant Enhanced Outreach--Follow Up Call--With 120,800 1 30 60,400 0 0 60,400
Representative..........................................
Claimant Enhanced Outreach Call.......................... 0 1 30 0 75,190 37,500 37,500
Remote Hearing Options Letter and Form Mailed to 280,000 1 10 46,667 0 0 46,667
Representative..........................................
Microsoft Teams Video Hearing Call Script--Representative 50 1 20 17 0 0 17
Payee Outreach..........................................
Microsoft Teams Hearing Call Script--Claimant Outreach... 50 1 20 17 0 0 17
----------------------------------------------------------------------------------------------
Totals............................................... 3,557,490 ............ ........... 1,039,500 2,492,500 833,634 168,366
--------------------------------------------------------------------------------------------------------------------------------------------------------
The following chart shows the theoretical cost burdens associated
with this final rule:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Anticipated
estimated Average
Anticipated Average total theoretical Total annual
OMB #; form #; CFR citations number of Frequency burden per burden hourly cost opportunity
respondents of response response under amount cost (dollars)
(minutes) regulation (dollars) * **
(hours)
--------------------------------------------------------------------------------------------------------------------------------------------------------
HA-504\+\ HA-504-OP1 HA-504-OP2 404.938(c) 413.1438(c)............ 700,000 1 30 350,000 * $22.39 ** $7,836,500
HA-L83--404.936(f); 404.938; 416.1436(f); 416.1438................ 700,000 1 30 350,000 * 22.39 ** 7,836,500
HA-L83--Good cause for missing deadline--404.936(f)(2); 5,000 1 5 417 * 22.39 ** 9,337
416.1436(f)(2)...................................................
HA-L83--Objection stating issues in notice are incorrect--sent 5 35,000 1 5 2,917 * 22.39 ** 65,312
days prior to hearing 404.939; 416.1439..........................
HA-L2 Acknowledgement Letter 404.936 416.1436..................... 500,000 1 5 41,667 * 22.39 ** 932,924
HA-L54, HA-56, and HA-55--404.936; 404.938; 416.1436; 416.1438.... 500,000 1 10 83,333 * 22.39 ** 1,865,826
HA-L2--Verification of New Residence 404.936(d)(4); 416.1436(d)(1) 35,000 1 5 2,917 * 22.39 ** 65,312
HA-L54--Notification of objection to audio and agency video and 13,500 1 10 2,250 * 22.39 ** 50,378
agreement to online video more than 30-days after receipt of
notice showing good cause 404.936(d)(1) and (e)(1);
416.1436(d)(1) and (e)(1)........................................
HA-510--404.938(a); 416.1438(a)................................... 4,000 1 2 133 * 22.39 ** 2,978
Clamant Enhanced Outreach--Initial Call No Representative 0 1 10 0 * 0 ** 0
(Unrepresented Claimant/ProSe)...................................
Clamant Enhanced Outreach--Initial Call with Representative....... 0 1 10 0 * 0 ** 0
[[Page 68360]]
Clamant Enhanced Outreach--Follow Up Call--No Representative 0 1 60 0 * 0 ** 0
(Unrepresented Claimant/ProSe)...................................
Clamant Enhanced Outreach--Follow Up Call--With Representative.... 0 1 30 0 * 0 ** 0
Claimant Enhanced Outreach Call................................... 75,190 1 30 37,500 * 22.39 839,625
Remote Hearing Options Letter and Form Mailed to Representative... 0 1 10 0 * 0 ** 0
Microsoft Teams Video Hearing Call Script--Representative Payee 0 1 20 0 * 0 ** 0
Outreach.........................................................
Microsoft Teams Hearing Call Script--Claimant Outreach............ 0 1 20 0 * 0 ** 0
-------------------------------------------------------------------------------------
Totals........................................................ 2,492,500 ............ ........... 833,634 ............ ** 19,504,692
--------------------------------------------------------------------------------------------------------------------------------------------------------
* We based these figures on average DI hourly wages based on SSA's current FY 2024 SSI data (https://www.ssa.gov/legislation/2024FactSheet.pdf); and on
average U.S. citizen's hourly salary, as reported by Bureau of Labor Statistics data (https://www.bls.gov/oes/current/oes_stru.htm).
** 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 under OMB No. 0960-
0671 to OMB for the approval of the changes due to the final rule,
which encompasses the revisions to these information collections.
As we have revised the associated burdens for the above-mentioned
forms, and since we made revisions to the final rule which were not
included at the NPRM stage, we are currently soliciting comment on the
burden for the forms as shown in the charts above. If you would like to
submit comments, please send them to:
Currently under Review--Open for Public Comments (https://www.reginfo.gov/public/do/PRAMain) \61\ and choosing to click on one of
SSA's published items. Please reference Docket ID Number [SSA-2022-
0013] in your submitted response.
---------------------------------------------------------------------------
\61\ Please note that the link to the specific ICR connected to
this regulation will only become active the day after the final rule
publishes in the Federal Register.
---------------------------------------------------------------------------
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 September 25, 2024, which is 30 days
after the publication of this notice. 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, and Social Security.
20 CFR Part 416
Administrative practice and procedure, Aged, Blind, Disability
benefits, Social Security, and Supplemental Security Income (SSI).
The Commissioner of Social Security, Martin O'Malley, 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 amend 20 CFR chapter
III, parts 404 and 416, as set forth below:
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950- )
Subpart J--Determinations, Administrative Review Process, and
Reopening of Determinations and Decisions
0
1. The authority citation for subpart J of part 404 continues to read
as follows:
Authority: Secs. 201(j), 204(f), 205(a)-(b), (d)-(h), and (j),
221, 223(i), 225, and 702(a)(5) of the Social Security Act (42
U.S.C. 401(j), 404(f), 405(a)-(b), (d)-(h), and (j), 421, 423(i),
425, and 902(a)(5)); sec. 5, Pub. L. 97-455, 96 Stat. 2500 (42
U.S.C. 405 note); secs. 5, 6(c)-(e), and 15, Pub. L. 98-460, 98
Stat. 1802 (42 U.S.C. 421 note); sec. 202, Pub. L. 108-203, 118
Stat. 509 (42 U.S.C. 902 note).
0
2. Revise Sec. 404.929 to read as follows:
Sec. 404.929 Hearing before an administrative law judge--general.
If you are dissatisfied with one of the determinations or decisions
listed in Sec. 404.930, you may request a hearing. Subject to Sec.
404.956, the Deputy Commissioner for Hearings Operations, or their
delegate, will appoint an administrative law judge to conduct the
hearing. If circumstances warrant, the Deputy Commissioner for Hearings
Operations, or their delegate, may assign your case to another
administrative law judge. We will schedule you to appear by audio,
agency video, online video, or in person as set forth in Sec. 404.936.
Audio means telephone or similar audio-based technology in a private
location you choose. Agency video means video, with audio
functionality, using our equipment in one of our offices. Online video
means video, with audio functionality, using a personal electronic
device in a private location you choose. When we determine your manner
of appearance, we consider the factors described in Sec.
404.936(c)(1)(i) through (ii). You may submit new evidence (subject to
the provisions of Sec. 404.935), examine the evidence used in making
the determination or decision under review, and present and question
witnesses. The administrative law judge who conducts the hearing may
ask you questions. The administrative law judge will issue a decision
based on the preponderance of the evidence in the hearing record. If
you waive your right to appear at the hearing, the administrative law
judge will make a decision based on the preponderance of the evidence
that is in the file and, subject to the provisions of Sec. 404.935,
any new evidence that may have been submitted for consideration.
0
3. In Sec. 404.936, revise the section heading and paragraphs (a)
through (d), redesignate paragraphs (e) and (f) as paragraphs (f) and
(g), and add a new paragraph (e).
The revisions and addition read as follows:
[[Page 68361]]
Sec. 404.936 Time, place, and manner of appearance for a hearing
before an administrative law judge.
(a) General. We set the time and manner(s) of appearance for any
hearing. We will set the place of a hearing when we schedule you and
any other parties to the hearing to appear in person or by agency
video. We may change the time, manner(s) of appearance, or place, if it
is necessary. After sending you reasonable notice of the proposed
action, the administrative law judge may adjourn or postpone the
hearing or reopen it to receive additional evidence any time before the
administrative law judge notifies you of a hearing decision.
(b) Place of hearing. If we set the place of the hearing, it can be
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 agency 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 appearance to schedule. We will schedule
you or any other party to the hearing to appear by audio, agency video,
online video, or in person. We may schedule you to appear by online
video only if you agree to appear in that manner.
(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, agency video, online video, or in
person.
(2) We will generally direct any person we call as a witness, other
than you or any other party to the hearing, to appear by audio, by
agency video, or by online video. Witnesses include medical experts and
vocational experts. 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
agency video or by audio. We will consider directing witnesses to
appear in person only when:
(i) A witness is unable to appear by other available manners of
appearance;
(ii) We determine that an alternate manner of 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.
(3) 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, by agency video, or both.
Prior to scheduling your hearing, we will notify you that we may
schedule you to appear by audio or by agency video, or, if you agree,
by online video. If you object to appearing by audio, by agency 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 in person, by agency video, or, if you
agree, by online video. Similarly, if you only object to appearing by
agency video, we may schedule you to appear in person, by audio, or, if
you agree, by online video. If you object to appearing by both audio
and agency video, and your residence does not change while your request
for hearing is pending, we will schedule you to appear before the
administrative law judge in person or, if you agree, by online video.
(1) If you notify us that you object to appearing by audio, by
agency 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.
(2) Notwithstanding any objections you may have to appearing by
audio and subject to paragraph (d)(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 agency video or by online video and
extraordinary circumstances prevent you from appearing in person. For
audio appearances under this subsection, we will call you or any other
party to the hearing using your or their telephone number(s).
(3) Notwithstanding any objections you may have to appearing by
audio, if you are incarcerated and an appearance by agency video and
online video 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 agency video, online video, or in
person upon your release. 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) Notwithstanding any objections you may have to appearing by
audio, by agency video, or both, if you change your residence while
your request for hearing is pending, we will determine how you will
appear, including by audio or by agency video, 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).
(5) Notwithstanding any objection 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 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).
(e) Time period to agree to an appearance by online video. Prior to
scheduling your hearing, we will notify you that we may schedule you to
appear by online video if you agree to appear in that manner. To agree
to appear by online video, you must notify us in writing within 30 days
after the date you receive the notice. If you notify us that you agree
to appearing by online video 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. You may withdraw your agreement any time before the
start of your hearing.
* * * * *
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, or, if the
claimant agrees, by online video.
(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
[[Page 68362]]
appearing by audio, or, if the claimant agrees, by online video.
* * * * *
(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. 404.938, revise paragraph (b)(5) to read as follows:
Sec. 404.938 Notice of a hearing before an administrative law judge.
* * * * *
(b) * * *
(5) The time and manner(s) in which you, or any other party or
witness, will appear. If we schedule you to appear in person or by
agency video, as set forth in Sec. 404.936, the notice of hearing will
tell you the place of the hearing.
* * * * *
0
6. Revise Sec. 404.944 to read as follows:
Sec. 404.944 Administrative law judge hearing procedures--general.
A hearing is open to the parties and to other persons the
administrative law judge considers necessary and proper. 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. For purposes of this section,
materially affects means prevents the hearing from proceeding. The
administrative law judge may decide when the evidence will be presented
and when the issues will be discussed.
0
7. In Sec. 404.950, revise paragraph (a) and the second and third
sentences in paragraph (e) to read as follows:
Sec. 404.950 Presenting evidence at a hearing before an
administrative law judge.
(a) The right to appear and present evidence. Any party to a
hearing has a right to appear before the administrative law judge, in
the manner set forth in Sec. 404.936, to present evidence and to state
their position. A party may also make their appearance by means of a
designated representative, who may make their appearance in the manner
set forth in Sec. 404.936.
* * * * *
(e) * * * If they are unable to appear with you in the same manner
as you, they may appear as prescribed in Sec. 404.936(c)(2). Witnesses
called by the administrative law judge will appear in the manner
prescribed in Sec. 404.936(c)(2). * * *
* * * * *
0
8. In Sec. 404.976, revise paragraph (c) to read as follows:
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, agency video, online 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, agency video,
online video, or in person as set forth in Sec. 404.936(c)(2).
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
Subpart N--Determinations, Administrative Review Process, and
Reopening of Determinations and Decisions
0
9. 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
10. Revise Sec. 416.1429 to read as follows:
Sec. 416.1429 Hearing before an administrative law judge--general.
If you are dissatisfied with one of the determinations or decisions
listed in Sec. 416.1430, you may request a hearing. Subject to Sec.
416.1456, the Deputy Commissioner for Hearings Operations, or their
delegate, will appoint an administrative law judge to conduct the
hearing. If circumstances warrant, the Deputy Commissioner for Hearings
Operations, or their delegate, may assign your case to another
administrative law judge. We will schedule you to appear by audio,
agency video, online video, or in person as set forth in Sec.
416.1436. Audio means telephone or similar audio-based technology in a
private location you choose. Agency video means video, with audio
functionality, using our equipment in one of our offices. Online video
means video, with audio functionality, using a personal electronic
device in a private location you choose. When we determine your manner
of appearance, we consider the factors described in Sec. 416.1436
(c)(1)(i) through (ii). You may submit new evidence (subject to the
provisions of Sec. 416.1435), examine the evidence used in making the
determination or decision under review, and present and question
witnesses. The administrative law judge who conducts the hearing may
ask you questions. The administrative law judge will issue a decision
based on the preponderance of the evidence in the hearing record. If
you waive your right to appear at the hearing, the administrative law
judge will make a decision based on the preponderance of the evidence
that is in the file and, subject to the provisions of Sec. 416.1435,
any new evidence that may have been submitted for consideration.
0
11. In Sec. 416.1436, revise the section heading and paragraphs (a)
through (d), redesignate paragraphs (e) and (f) as paragraphs (f) and
(g), and add a new paragraph (e).
The revisions and addition read as follows:
Sec. 416.1436 Time, place, and manner of appearance for a hearing
before an administrative law judge.
(a) General. We set the time and manner(s) of appearance for any
hearing. We will set the place of a hearing when we schedule you and
any other parties to the hearing to appear in person or by agency
video. We may change the time, manner(s) of appearance, or place, if it
is necessary. After sending you reasonable notice of the proposed
action, the administrative law judge may adjourn or postpone the
hearing or reopen it to receive additional evidence any time before the
administrative law judge notifies you of a hearing decision.
(b) Place of hearing. If we set the place of the hearing, it can be
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 agency video or in person. A party to a
hearing
[[Page 68363]]
may only appear from the geographic areas, noted in this subsection, in
which we hold hearings.
(c) Determining manner of appearance to schedule. We will schedule
you or any other party to the hearing to appear by audio, agency video,
online video, or in person. We may schedule you to appear by online
video only if you agree to appear in that manner.
(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, agency video, online video, or in
person.
(2) We will generally direct any person we call as a witness, other
than you or any other party to the hearing, to appear by audio, by
agency video, or by online video. Witnesses include medical experts and
vocational experts. 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
agency video or by audio. We will consider directing witnesses to
appear in person only when:
(i) A witness is unable to appear by other available manners of
appearance;
(ii) We determine that an alternate manner of 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.
(3) 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, by agency video, or both.
Prior to scheduling your hearing, we will notify you that we may
schedule you to appear by audio or by agency video, or, if you agree,
by online video. If you object to appearing by audio, by agency 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 in person, by agency video, or, if you
agree, by online video. Similarly, if you only object to appearing by
agency video, we may schedule you to appear in person, by audio, or, if
you agree, by online video. If you object to appearing by both audio
and agency video, and your residence does not change while your request
for hearing is pending, we will schedule you to appear before the
administrative law judge in person or, if you agree, by online video.
(1) If you notify us that you object to appearing by audio, by
agency 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.
(2) Notwithstanding any objections you may have to appearing by
audio and subject to paragraph (d)(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 agency video or by online video and
extraordinary circumstances prevent you from appearing in person. For
audio appearances under this subsection, we will call you or any other
party to the hearing using your or their telephone number(s).
(3) Notwithstanding any objections you may have to appearing by
audio, if you are incarcerated and an appearance by agency video and
online video 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 agency video, online video, or in
person upon your release. 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) Notwithstanding any objections you may have to appearing by
audio, by agency video, or both, if you change your residence while
your request for hearing is pending, we will determine how you will
appear, including by audio or by agency video, 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).
(5) Notwithstanding any objection 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 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).
(e) Time period to agree to an appearance by online video. Prior to
scheduling your hearing, we will notify you that we may schedule you to
appear by online video if you agree to appear in that manner. To agree
to appear by online video, you must notify us in writing within 30 days
after the date you receive the notice. If you notify us that you agree
to appearing by online video 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. You may withdraw your agreement any time before the
start of your hearing.
* * * * *
0
12. 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, or, if the
claimant agrees, by online video.
(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, or, if the claimant agrees, by online video.
* * * * *
(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
13. In Sec. 416.1438, revise paragraph (b)(5) to read as follows:
Sec. 416.1438 Notice of a hearing before an administrative law judge.
* * * * *
(b) * * *
(5) The time and manner(s) in which you, or any other party or
witness, will appear. If we schedule you to appear in person or by
agency video, as set forth in Sec. 416.1436, the notice of hearing
will tell you the place of the hearing.
* * * * *
0
14. Revise Sec. 416.1444 to read as follows:
Sec. 416.1444 Administrative law judge hearing procedures--general.
A hearing is open to the parties and to other persons the
administrative law judge considers necessary and proper. At the
hearing, the administrative law judge looks fully into the issues,
questions you and the other witnesses,
[[Page 68364]]
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. For
purposes of this section, materially affects means prevents the hearing
from proceeding. The administrative law judge may decide when the
evidence will be presented and when the issues will be discussed.
0
15. In Sec. 416.1450, revise paragraph (a) and the second and third
sentences in paragraph (e) to read as follows:
Sec. 416.1450 Presenting evidence at a hearing before an
administrative law judge.
(a) The right to appear and present evidence. Any party to a
hearing has a right to appear before the administrative law judge, in
the manner set forth in Sec. 416.1436, to present evidence and to
state their position. A party may also make their appearance by means
of a designated representative, who may make their appearance in the
manner set forth in Sec. 416.1436.
* * * * *
(e) * * * If they are unable to appear with you in the same manner
as you, they may appear as prescribed in Sec. 416.1436(c)(2).
Witnesses called by the administrative law judge will appear in the
manner prescribed in Sec. 416.1436(c)(2). * * *
* * * * *
0
16. 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, agency video, online 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, agency video,
online video, or in person as set forth in Sec. 416.1436(c)(2).
[FR Doc. 2024-18591 Filed 8-23-24; 8:45 am]
BILLING CODE 4191-02-P