Rule2024-18591
Setting the Manner of Appearance of Parties and Witnesses at Hearings
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 26, 2024
Effective
November 23, 2024
Issuing agencies
Social Security Administration
Abstract
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.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 165 (Monday, August 26, 2024)</title>
</head>
<body><pre>
[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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
<a href="https://www.ssa.gov/">https://www.ssa.gov/</a>.
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
<a href="https://www.regulations.gov">https://www.regulations.gov</a> and searching for document ``SSA-2022-
0013'' or <a href="https://www.federalregister.gov/documents/2023/05/19/2023-10564/setting-the-manner-of-appearance-of-parties-and-witnesses-at-hearings">https://www.federalregister.gov/documents/2023/05/19/2023-10564/setting-the-manner-of-appearance-of-parties-and-witnesses-at-hearings</a>.
---------------------------------------------------------------------------
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 <a href="https://www.ssa.gov/appeals/hearing_video.html">https://www.ssa.gov/appeals/hearing_video.html</a>.
\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.''
<bullet> 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 <a href="https://www.ssa.gov/appeals/documents/Representative_Video_Project_RVP-508.pdf">https://www.ssa.gov/appeals/documents/Representative_Video_Project_RVP-508.pdf</a>.
---------------------------------------------------------------------------
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> In Sec. Sec. 404.944 and 416.1444, we defined the term
``materially affects'' to mean prevents the hearing from proceeding.
<bullet> 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).
<bullet> In Sec. Sec. 404.976 and 416.1476, we distinguished
between ``agency video'' and ``online video.''
<bullet> 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
<a href="https://www.regulations.gov/docket/SSA-2022-0013">https://www.regulations.gov/docket/SSA-2022-0013</a>. 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:
<bullet> Individual citizens;
<bullet> Advocacy groups comprising claimant representatives;
<bullet> Other advocacy groups;
<bullet> Organizations and firms that represent claimants; and
<bullet> 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\
---------------------------------------------------------------------------
\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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>
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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\20\ See Setting the Manner of Appearance of Parties and
Witnesses at Hearings, NPRM, Supporting Data Document, available at
<a href="https://www.regulations.gov">https://www.regulations.gov</a> as a supporting document for Docket SSA-
2022-0013.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\21\ Our Equity Plan is available at: <a href="https://www.ssa.gov/open/materials/SSA-E.O.-13985-Equity-Action-Plan.pdf">https://www.ssa.gov/open/materials/SSA-E.O.-13985-Equity-Action-Plan.pdf</a>.
---------------------------------------------------------------------------
[[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.
---------------------------------------------------------------------------
\23\ For more information on iAppeals, see our Program
Operations Manual System (POMS) GN 03101.125 available at <a href="https://secure.ssa.gov/poms.nsf/lnx/0203101125">https://secure.ssa.gov/poms.nsf/lnx/0203101125</a>.
\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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
\26\ HALLEX I-2-0-8 available at <a href="https://www.ssa.gov/OP_Home/hallex/I-02/I-2-0-8.html">https://www.ssa.gov/OP_Home/hallex/I-02/I-2-0-8.html</a>.
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
\27\ See 20 CFR 404.944 and 416.1444.
---------------------------------------------------------------------------
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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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\
---------------------------------------------------------------------------
\29\ 20 CFR 404.938(d) and 416.1438(d).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\30\ See the Setting the Manner of Appearance of Parties and
Witnesses at Hearings, Final Rule, Supporting Data Document,
available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> as a supporting document
for Docket SSA-2022-0013.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\31\ See the Setting the Manner of Appearance of Parties and
Witnesses at Hearings, Final Rule, Supporting Data Document,
available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> as a supporting document
for Docket SSA-2022-0013.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
<bullet> If the claimant obtains counsel for their disability
hearing.
<bullet> If claimants change or obtain new counsel.
<bullet> If there is a change of address.
<bullet> If there is a change in medical condition, including
hospitalization, because some of these changes may impact accessibility
to certain hearing formats.
<bullet> If the custody or guardianship of a child changes.
<bullet> If the claimant is homeless.
<bullet> If the claimant lacks necessary equipment, such as a
personal electronic device with internet access.
<bullet> If the claimant never received the notice to object due to
mailing problems, homelessness, illiteracy, or inability to read
English.
<bullet> 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.
---------------------------------------------------------------------------
\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
<a href="https://www.regulations.gov">https://www.regulations.gov</a> 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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).
---------------------------------------------------------------------------
[[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 <a href="https://www.ssa.gov/OP_Home/rulings/oasi/33/SSR79-19-oasi-33.html">https://www.ssa.gov/OP_Home/rulings/oasi/33/SSR79-19-oasi-33.html</a>.
---------------------------------------------------------------------------
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
<a href="https://www.ssa.gov/OP_Home/rulings/di/10/SSR96-01-di-10.html">https://www.ssa.gov/OP_Home/rulings/di/10/SSR96-01-di-10.html</a>.
\55\ See the Manner of Appearance, NPRM, Supporting Data
Document, available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> as a supporting
document for Docket SSA-2022-0013.
---------------------------------------------------------------------------
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 <a href="https://www.ssa.gov/OP_Home/hallex/I-02/I-2-3-10.html">https://www.ssa.gov/OP_Home/hallex/I-02/I-2-3-10.html</a> (``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 <a href="https://www.ssa.gov/OP_Home/rulings/oasi/33/SSR2013-01-oasi-33.html">https://www.ssa.gov/OP_Home/rulings/oasi/33/SSR2013-01-oasi-33.html</a> and HALLEX I-1-8-4 available
at <a href="https://www.ssa.gov/OP_Home/hallex/I-01/I-1-8-4.html">https://www.ssa.gov/OP_Home/hallex/I-01/I-1-8-4.html</a> and I-3-3-2
available at <a href="https://www.ssa.gov/OP_Home/hallex/I-03/I-3-3-2.html">https://www.ssa.gov/OP_Home/hallex/I-03/I-3-3-2.html</a>.
---------------------------------------------------------------------------
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: <a href="https://www.ssa.gov/appeals/documents/RemoteHearingAgreementForm_RepresentedClaimantandRepresentative.pdf">https://www.ssa.gov/appeals/documents/RemoteHearingAgreementForm_RepresentedClaimantandRepresentative.pdf</a>.
---------------------------------------------------------------------------
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 (<a href="https://www.ssa.gov/legislation/2024FactSheet.pdf">https://www.ssa.gov/legislation/2024FactSheet.pdf</a>); and on
average U.S. citizen's hourly salary, as reported by Bureau of Labor Statistics data (<a href="https://www.bls.gov/oes/current/oes_stru.htm">https://www.bls.gov/oes/current/oes_stru.htm</a>).
** 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 (<a href="https://www.reginfo.gov/public/do/PRAMain">https://www.reginfo.gov/public/do/PRAMain</a>) \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: <a href="/cdn-cgi/l/email-protection#9dd2cfb3cff8edf2efe9eeb3def1f8fceffcf3fef8ddeeeefcb3faf2eb"><span class="__cf_email__" data-cfemail="abe4f985f9cedbc4d9dfd885e8c7cecad9cac5c8ceebd8d8ca85ccc4dd">[email protected]</span></a>.
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
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on August 26, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.