Federal Register, Volume 83 Issue 221 (Thursday, November 15, 2018)

[Federal Register Volume 83, Number 221 (Thursday, November 15, 2018)]
[Proposed Rules]
[Pages 57368-57378]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-24711]

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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Docket No. 2017-0015]
RIN 0960-AI09

Setting the Manner for the Appearance of Parties and Witnesses at
a Hearing

AGENCY: Social Security Administration.

ACTION: Notice of proposed rule making.

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SUMMARY: We propose to revise our rules to explain that the agency
retains the right to determine how parties and witnesses will appear at
a hearing before an administrative law judge (ALJ) at the hearing level
of our administrative review process, and we will set the time and
place for the hearing accordingly. We also propose to revise our rules
to explain the State agency or the Associate Commissioner for
Disability Determinations, or his or her delegate, will determine how
parties and witnesses will appear, and will set the time and place for
a hearing, before a disability hearing officer (DHO) at the
reconsideration level in continuing disability review (CDR) cases. At
both levels, we propose to schedule the parties to a hearing to appear
by video teleconference (VTC), in person, or, in limited circumstances,
by telephone. We propose that parties to a hearing will not have the
option to opt out of appearing by the manner of hearing we choose. We
also propose rules that explain how we will determine the manner of a
party's or a witness's appearance. We expect these proposed changes
would improve our service to the public by increasing the efficiency of
our hearings processes and reducing the amount of time it takes us to
schedule and hold hearings.

DATES: To ensure that your comments are considered, we must receive
them no later than January 14, 2019.

ADDRESSES: You may submit comments by any one of three methods--
internet, fax, or mail. Do not submit the same comments multiple times
or by more than one method. Regardless of which method you choose,
please state that your comments refer to Docket No. SSA-2017-0015 so
that we may associate your comments with the correct rule.
CAUTION: You should be careful to include in your comments only
information that you wish to make publicly available. We strongly urge
you not to include in your comments any personal information, such as
Social Security numbers or medical information.
1. Internet: We strongly recommend that you submit your comments
via the internet. Please visit the Federal eRulemaking portal at http://www.regulations.gov. Use the Search function to find docket number
SSA-2017-0015. The system will issue a tracking number to confirm your
submission. You will not be able to view your comment immediately
because we must post each comment manually. It may take up to a week
for your comment to be viewable.
2. Fax: Fax comments to (410) 966-2830.
3. Mail: Mail your comments to the Office of Regulations and
Reports Clearance, Social Security Administration, 3100 West High Rise
Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401.
Comments are available for public viewing on the Federal
eRulemaking portal at http://www.regulations.gov or in person, during
regular business hours, by arranging with the contact person identified
below.

FOR FURTHER INFORMATION CONTACT: Susan Swansiger, Office of Hearings
Operations, Social Security Administration, 5107 Leesburg Pike, Falls
Church, VA 22041, (703) 605-8500. For information on eligibility or
filing for benefits, call our national toll-free number, 1-800-772-1213
or TTY 1-800-325-0778, or visit our internet site, Social Security
Online, at http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION:

Background

When we determine whether you are disabled under the old-age,
survivors, and disability insurance program under title II of the
Social Security Act (Act) or the Supplemental Security Income (SSI)
program under title XVI of the Act, we follow an administrative review
process that usually consists of the following steps: \1\ An initial
determination, a reconsideration,\2\ a hearing before an ALJ, and
Appeals Council review. If you are dissatisfied with the initial
determination of your disability claim(s), you may request
reconsideration. In most cases, the reconsideration step of the
administrative review process, which is technically the first level of
appeal in the administrative review process for Social Security
disability claims in most States,\3\ consists of a case review by
Disability Determination Services (DDS) personnel who were not involved
in the initial determination. If you are dissatisfied with your
reconsidered determination, you may request a hearing, which is held by
an ALJ.\4\ If you are dissatisfied with an ALJ's decision, you may ask
the Appeals Council to review that decision. After you have completed
these steps of the administrative review process, you may request
judicial review of our final decision by filing a civil action in a
Federal district court.
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\1\ 20 CFR 404.902, 416.1402; 20 CFR 404.909, 416.1409; 20 CFR
404.933, 416.1433; 20 CFR 404.968, 416.1468.
\2\ In certain States, which we refer to as ``prototype
States,'' we modified the disability determination process by
eliminating the reconsideration step of the administrative review
process. If an individual in a prototype State is dissatisfied with
the initial determination on his or her disability claim(s), he or
she may request a hearing before an ALJ. 20 CFR 404.906(b)(4),
416.1406(b)(4). Beginning January of 2019, this prototype process is
being phased out, and the reconsideration step reinstated in ten
states. Reconsideration reinstatement will be complete by mid Fiscal
Year 2020.
\3\ The exception would be the prototype States.
\4\ 20 CFR 404.930, 416.1430.
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Once you are receiving benefits under title II or XVI of the Act,
we are required to conduct CDRs periodically to determine whether your
disability continues.\5\ When we make a medical cessation determination
that you are no longer disabled because your medical impairment(s) has
ceased, did not exist,

[[Page 57369]]

or is no longer disabling, you may appeal that determination. The steps
in the CDR administrative review process parallel those in the initial
disability determination administrative appeals cycle in that both
contain some type of: An initial determination, a reconsideration, a
hearing before an ALJ, and Appeals Council review. In the CDR
administrative review process, however, an evidentiary hearing before a
DHO is held at the reconsideration step for a CDR. Specifically, when
we make an initial CDR determination and you want to contest our
determination that you are no longer disabled, you may request an
evidentiary hearing before a DHO \6\ on reconsideration; if you are
dissatisfied with your reconsidered determination, you may request a
hearing before an ALJ; and if you are dissatisfied with the ALJ's
decision, you may ask the Appeals Council to review that decision. When
you have completed the administrative review process, you may request
judicial review of our final decision by filing a civil action in a
Federal district court.
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\5\ Section 221(i) of the Act, 42 U.S.C. 421(i) and 1614(a)(4)
of the Act, 42 U.S.C. 1382c.
\6\ 20 CFR 404.913(b), 404.914 and 416.1413(d), 416.1414.
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Since Congress established Social Security in 1935, the size and
scope of the programs we administer have grown tremendously. During the
1940s and 1950s, Congress extended coverage under title II to nearly
the entire American workforce. In the 1950s, Congress revised the Act
and created the disability insurance program, and in the 1970s,
Congress created the Supplemental Security Income (SSI) program, both
of which greatly expanded the size and scope of our programs. The aging
of the baby boomers and the changing demographics of our nation have
also significantly affected the size and scope of our workloads. The
Supreme Court has aptly observed that we are ``probably the largest
adjudicative agency in the western world,'' where ``[t]he need for
efficiency is self-evident.'' \7\
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\7\ Barnhart v. Thomas, 540 U.S. 20, 28-29 (2003) (internal
quotation marks omitted).
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When we began our hearings process in 1940, we handled a
comparatively small number of claims involving retirement and survivors
insurance, and received only about 16,000 hearing requests in our first
decade.\8\ At present, we continue to face an unprecedented service
challenge with nearly 860,000 individuals waiting an average of 19
months for a hearing before an ALJ.\9\ We currently process several
hundred thousand hearing requests before an ALJ each year through an
extensive network of 164 hearing offices, 5 National Hearing Centers
(NHCs) and several hundred remote sites. Due to factors inherent to
managing a nationwide program, including differences in the number of
hearing requests received and the availability of administrative
resources in a hearing office service area, we have a significant
disparity in wait times for a hearing across the nation. For example,
in fiscal year (FY) 2018, the average wait time for a hearing before an
ALJ was 595 days. However, 76% of our hearing offices had average wait
times between 500 and 700 days, 10% of our offices had average wait
times over 700 days, and 14% of our offices had wait times below 500
days.\10\
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\8\ ``Appeals Under Old-Age and Survivors Insurance,'' Social
Security Bulletin, vol. 15, no. 1, p. 15 (January 1952) (https://www.ssa.gov/policy/docs/ssb/v15n1/v15n1p15.pdf).
\9\ Hearings and Appeals Homepage, Public Data files, http://www.ssa.gov/appeals/; See: Age distribution of pending hearings FY
2014-FYTD 2018 Quarter 2.
\10\ Hearing Office Average Processing Time Ranking Report FY
2017 (For reporting purposes: 10/01/2016 through 09/29/2017),
available at: https://www.ssa.gov/appeals/DataSets/archive/05_FY2018/05_September_Average_Processing_Time_Report.html.
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We face the same workload challenges with regard to the
reconsideration disability hearings before a DHO for CDRs. According to
our internal data sources, from 2007 to 2018 the number of requests for
a disability hearing at the reconsideration level increased from 19,898
to 82,604.\11\ With this tremendous increase in the number of pending
disability hearing requests, the length of time it takes us to conduct
a disability hearing has increased as well. Our internal data shows
that, nationally, the average processing time from the date we receive
a request for disability hearing before a DHO to the date the DHO
issues a reconsidered determination was 194 days.\12\ Additionally,
nearly 10.5% of disability hearings at the reconsideration level have
been pending for 240 to 359 days, and 14.9% have been pending for 360
or more days.\13\ Increased processing times for disability hearings at
the reconsideration level correlate to increased overpayments due to
the individual's right to continue to receive disability benefits under
title II, or disability or blindness payments under title XVI, while
their claims are pending at the reconsideration or ALJ hearing
level.\14\
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\11\ Source: Disability Operational Data Store (DIODS), an SSA
internal data storage system. The supporting documentation
describing DIODS is available at www.regulations.gov, under
``supporting and related material'' for this docket, SSA-2017-0015.
\12\ Source: Executive Management Information System (EMIS) MI
Central, an SSA internal data storage system. The supporting
documentation describing EMIS is available at www.regulations.gov,
under ``supporting and related material'' for this docket, SSA-2017-
0015.
\13\ Source: Disability Operational Data Store (DIODS), an SSA
internal data storage system. The supporting documentation
describing DIODS is available at www.regulations.gov, under
``supporting and related material'' for this docket, SSA-2017-0015.
\14\ 20 CFR 404.1597a, 416.996.
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Our Office of the Inspector General (OIG) evaluated the financial
impact of individuals continuing to receive benefit payments during CDR
appeals. In 2006, OIG found that individuals waited an average of 648
days (in title II cases) and 694 days (in title XVI cases) from the
time they requested reconsideration of an initial medical cessation
determination and the time they received an ALJ decision.\15\ By May
2017, the average processing time for medical cessation appeals had
increased to 766 days (title II) and 831 days (title XVI) for sampled
recipients.\16\ To reduce or avoid overpayments resulting from
continued benefit payments, OIG recommended that we enhance our
business process to allow more timely determinations and decisions on
medical cessation appeals.\17\
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\15\ SSA, OIG, Statutory Benefit Continuation During the Appeals
Process for Medical Cessations, A-07-17-50127 (May 2017), at 6,
available https://oig.ssa.gov/sites/default/files/audit/full/pdf/A-07-17-50127.pdf.
\16\ Id. at 3.
\17\ Id.
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Efficiently managing these workloads while preserving the accuracy
and fundamental fairness of our hearings has required, and continues to
require, creative thinking and strategic planning. Since the mid-1990s,
we have recognized that electronic service delivery, based on proven
secure technology, can provide our customers with new ways to conduct
business with us. These new ways of conducting business with us are
both convenient for claimants and efficient for claimants and us. We
have continuously explored expanding the service options available to
our customers in new and innovative ways as technological advances
allow.\18\
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\18\ See Social Security Ruling 96-10p.
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For about 20 years we have explored the use of VTC to conduct fair
and accurate hearings more efficiently. In the late 1990s, we tested
our capacity to conduct ALJ hearings by VTC in Iowa. We received
positive feedback from participants, and test data showed that
processing times for VTC hearings were substantially lower than the
processing time for in-person hearings held by ALJs at remote locations
during the same

[[Page 57370]]

period.\19\ In 2003, we published rules that directed ALJs to schedule
hearings by VTC in any case where VTC technology was available, it was
more efficient to do so, and no circumstance in the case prevented the
use of VTC technology.\20\ Under these rules, the claimant could opt
out of a VTC hearing at any time, including the day of the hearing.\21\
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\19\ 68 FR 5210, 5211 (2003). At approximately the same time, we
also tested our capacity to conduct ALJ hearings by VTC between the
Huntington, West Virginia hearing office and its Prestonburg,
Kentucky remote location and between the Albuquerque, New Mexico
hearing office and its El Paso, Texas remote location. 66 FR 1059,
1060 (2001). However, participation rates at these other test sites
were too low for us to draw inferences about customer service or
satisfaction. Id.
\20\ 68 FR 5210 (2003), 68 FR 69003 (2003).
\21\ If a party objected to appearing by VTC, he or she was
required only to notify the ALJ at the earliest possible opportunity
before the time set for the hearing. 68 FR 69003, 69006 (2003).
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As we gained experience with VTC for hearings before an ALJ, we and
others have studied the efficacy of these hearings; those studies have
found that the use of VTC provides us a number of benefits, including
additional flexibility, especially with respect to aged and backlogged
hearing requests, improved case processing times, and reduced ALJ
travel.\22\ For example, in 2011, our OIG found that the most important
capability provided by the use of VTC hearings is the ease with which
pending cases can be reassigned from heavily backlogged offices to
virtually any video-equipped ALJ anywhere in the country who has excess
hearing capacity.\23\ OIG identified several concrete instances in
which VTC improved the functioning of our hearings process. We have
also observed that VTC technologies offer expanded service options for
parties, especially for geographically and otherwise isolated
claimants.
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\22\ OIG, Congressional Response Report: Current and Expanded
Use of Video Hearings, A-05-12-21287, at 3 (June 18, 2012),
available at: https://oig.ssa.gov/sites/default/files/audit/full/pdf/A-05-12-21287.pdf; OIG, Use of Video Hearings to Reduce the
Hearing Case Backlog, A-05-08018079, at 3 (April 22, 2011),
available at: https://oig.ssa.gov/sites/default/files/audit/full/pdf/A-05-08-18070.pdf.
\23\ SSA, OIG, Use of Video Hearings to Reduce the Hearing Case
Backlog, A-05-08-18070, at 12-13 (April 2011), available at: https://oig.ssa.gov/sites/default/files/audit/full/pdf/A-05-08-18070.pdf.
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The Administrative Conference of the United States (ACUS), an
independent, nonpartisan Federal agency that studies and recommends
improvements to administrative process and procedures, also has noted a
number of advantages to the use of VTC hearings before an ALJ.\24\ In
2011, ACUS adopted its Recommendation 2011-4,\25\ which noted that
agencies with high volume caseloads were likely to receive the most
benefit or cost savings (or both) from the use of VTC. ACUS therefore
encouraged all agencies (including those with lower volume caseloads)
to consider whether the use of VTC would be beneficial as a way to
improve efficiency and reduce costs, while also preserving the fairness
and participant satisfaction. In 2015, ACUS also published a Handbook
on Best Practices for Using Video Teleconferencing in Adjudicatory
Hearings. This handbook provides many recommendations regarding
physical space, lighting, and technology. We will consult ACUS's
recommendations as we continue to modernize our infrastructure, and
ensure we are up to date on the latest technology available.\26\
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\24\ ACUS, Memorandum on the History of Agency Video
Teleconferencing Adjudications, at 20-21 (November 26, 2014),
available at: https://www.acus.gov/sites/default/files/documents/VTC%20Hearing%20History_FINAL.pdf (noting that agencies use VTC
hearings for a number of reasons, including lowering direct and
indirect costs, improving efficiency, decreasing processing time,
and providing greater flexibility in scheduling hearings).
\25\ ACUS Recommendation 2011-4, Agency Use of Video Hearings:
Best Practices and Possibilities for Expansion, 76 FR 48789, 48795
(2011), available at: https://www.acus.gov/recommendation/agency-use-video-hearings-best-practices-and-possibilities-expansion.
\26\ ACUS, Handbook on Best Practices for Using Video
Teleconferencing in Adjudicatory Hearings (Dec. 22, 2015), available
at https://www.acus.gov/sites/default/files/documents/handbook-on-best-practices-for-using-VTC-in-adjudicatory-hearings.pdf.
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As we continue to seek ways to improve the efficiency of our
hearings process, we also are mindful of recommendations from our
Inspector General. For example, in 2012, our OIG studied the operation
of our National Hearing Centers (NHC), which primarily use VTC to
conduct hearings, and raised concerns that claimants were opting out of
VTC hearings after they had already been scheduled, sometimes even on
the day of the hearing, and that representatives were opting out to
avoid appearing before certain ALJs.\27\ In response, we revised our
regulations in 2014 to provide that claimants, or their
representatives, must object to appearing by VTC within 30 days after
receiving a notice acknowledging receipt of their hearing request,
unless they had good cause for failing to meet that deadline.\28\ While
this regulatory change allowed us to forestall last-minute cancellation
of VTC hearings, the percentage of claimants who choose an in person
hearing over the VTC option remains high. In FY 2015, approximately 30%
of claimants who requested an ALJ hearing that year objected to
appearing by VTC \29\. In FY 2017, approximately 32% of claimants who
requested an ALJ hearing that year objected to appearing by VTC.\30\
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\27\ OIG, The Role of National Hearing Centers in Reducing the
Hearings Backlog, A-12-11-111147, at 11 (Apr. 3, 2012), available
at: http://oig.ssa.gov/sites/default/files/audit/full/pdf/A-12-11-11147_0.pdf.
\28\ 79 FR 35926 (June 25, 2014).
\29\ Video Hearing (VH) Opt-Out Numbers and Rates for Hearing
Requests Received FY 2015, available at: http://www.ssa.gov/appeals/DataSets/archive/00_FY2015/00_September_A01_VH_Opt-Out.html.
\30\ Video Hearing (VH) Opt-Out Numbers and Rates for Hearing
Requests Received FY 2017, available at: http://www.ssa.gov/appeals/DataSets/A01_VH_Opt-Out.html.
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At the reconsideration level at CDR, our rules state we will set
the time and place of a disability hearing,\31\ but do not specifically
set out the manner in which parties and witnesses will appear. We
currently conduct disability hearings at the reconsideration level
before a DHO in person, by VTC, and, in limited circumstances, by
telephone.\32\ Similar to the ALJ hearing level, we have used VTC to
conduct disability hearings at the reconsideration level for
approximately 20 years. However, before a DHO may conduct a disability
hearing by VTC, we currently require a beneficiary or recipient sign
and return a statement to the DHO stating that he or she voluntarily
elects to appear by VTC.\33\ This policy causes delays in scheduling
disability hearings and results in increased case processing times.
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\31\ See 20 CFR 404.914, 416.1414.
\32\ Program Operations Manual System (POMS) DI 33025.080
available at: https://secure.ssa.gov/poms.nsf/lnx/0433025080; DI
33025.085 available at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0433025085.
\33\ POMS DI 33025.080 available at: https://secure.ssa.gov/poms.nsf/lnx/0433025080.
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When an individual objects to appearing by VTC at an ALJ hearing or
does not elect to appear by VTC at a reconsideration hearing before a
DHO at CDR, the efficiency of our hearings process is set back without
any corresponding increase in the fairness of the process, and the
individual may wait longer for an in person hearing. At the ALJ hearing
level, the number of ALJs available to conduct an in person hearing is
generally limited to those ALJs stationed at, or geographically close
to, the assigned hearing office or within travel distance to one of our
permanent remote sites. Requiring an ALJ to travel to a remote hearing
site for an in person hearing reduces the amount of time the ALJ can
devote to holding other hearings and issuing decisions from his or her
assigned hearing office. We expect the ten-year savings due to
decreased reimbursements for all ALJ hearings

[[Page 57371]]

participants, including ALJs, representatives, claimants, and
contractors, to be $67.2M. At the reconsideration level for CDRs,
scheduling an in person hearing may require significant travel by the
DHO and the beneficiary or recipient, along with the time and costs
associated with such travel. An in person reconsideration hearing
requires additional time for the DHO and reduces the time available for
the DHO to hold other hearings and issue determinations.
We expect that expanding our use of VTC technology will help us in
two ways. First, increased use of VTC technology will reduce these
discrepancies in the wait time among the hearing offices. Second,
increased use of VTC will allow us to decrease the total number of
cases pending at the ALJ hearing level by allowing us to shift cases
from overburdened hearing offices to hearing offices with fewer
requests for hearing pending per ALJ. Balancing our workloads by using
VTC has been key to addressing our oldest pending cases, and it has
allowed us to act quickly as service needs arise from unanticipated
emergencies, e.g., by transferring cases to another part of the
country.
As documented in ACUS's studies and in feedback from multiple other
sources, our use of VTC has been widely accepted as an important tool
that increases our ability to hold hearings and improve public service.
For example, in 2006, the Social Security Advisory Board (SSAB), a
bipartisan, independent body that advises the President, Congress, and
the Commissioner of Social Security on matters of policy and
administration of the disability insurance and Supplemental Security
Income programs,\34\ reported receiving overwhelmingly positive
comments on the use of VTC hearings.\35\ In 2011, OIG received mostly
positive comments about the role of VTC in the hearings process from
representatives from the National Organization of Social Security
Claimants' Representatives and the National Association of Disability
Representatives.\36\ In 2012, in a report estimating the cost savings
of VTC hearings in the Social Security context, OIG estimated annual
cost savings of $5.2 to 10.9 million.\37\
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\34\ Section 703 of the Act, 42 U.S.C. 903.
\35\ SSAB, Improving the Social Security Administration's
Hearing Process, at 21 (2006), available at: http://www.ssab.gov/Portals/0/OUR_WORK/REPORTS/HearingProcess_2006.pdf.
\36\ SSA, OIG, Use of Video Hearings to Reduce the Hearing Case
Backlog, A-05-08-18070, at 10 (April 2011), available at: https://oig.ssa.gov/sites/default/files/audit/full/pdf/A-05-08-18070.pdf.
\37\ SSA, OIG, Current and Expanded Use of Video Hearings, A-05-
12-21287, at 3 (June 2012), available at: http://oig.ssa.gov/sites/default/files/audit/full/pdf/A-05-12-21287.pdf.
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Moreover, there is no evidence that the use of VTC technology
adversely affects the outcome of the decision making process. An
internal report prepared in FY 2017 by our Office of Quality Review
(OQR) showed there was not a significant difference in outcome or
policy compliance for VTC and in person hearings. OQR found a high
degree of policy compliance and quality for both types of hearings. We
included this report as part of the rulemaking docket, which is
publicly available at www.regulations.gov, and we invite comments on
it.
We also have made great strides in increasing our video
capabilities in order to improve our business processes. Since 2016, we
have refreshed all VTC equipment and infrastructure, which has resulted
in better technological quality of video hearings. Additionally, the
dramatic reduction in the number of cases that involve paper claims
folders over the past ten years has allowed for smoother workload
balancing, ensuring consistent service on a national level. With the
infrastructure and equipment we have in place, the use of VTC
technology ensures that we can deliver service in a modern, seamless,
and flexible manner. All video hearings rooms are section 504 compliant
based on the capacity for individuals attending a hearing, providing
equal access to hearings for claimants with disabilities.
We expect that this proposed rule will ensure that as we expand our
ability to conduct appearances by VTC, we are able to schedule hearings
more fairly and efficiently. The preferred methods for conducting
hearings are by VTC and in person. However, an ALJ or DHO may conduct a
hearing by telephone under two circumstances: (1) When it is physically
impossible to conduct the hearing by VTC or in person, such as
incarceration in a facility without VTC ability; and (2) extraordinary
circumstances, such as when a natural disaster occurs and our VTC
facilities are unavailable.\38\ When using a telephone to conduct a
hearing, the telephone technology used must allow for the beneficiary
or recipient and his or her representative to hear and respond to all
testimony presented at the hearing.\39\
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\38\ 20 CFR 404.936(c)(1).
\39\ 20 CFR 404.936(c)(1), 416.1436(c)(1); POMS DI 33025.085
available at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0433025085.
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Changes

To increase our ability to schedule hearings more fairly, flexibly,
and efficiently and address the unprecedented service challenges we
face at the reconsideration and ALJ hearing levels of our
administrative review process, we propose the following changes to our
rules:
We propose to revise and unify some of the rules that
govern how, where, and when individuals appear for hearings before an
ALJ at the hearings level and before a DHO at the reconsideration level
of our administrative review process.
At the hearings level, we will determine the time and
place of a hearing before an ALJ and determine how parties and
witnesses will appear at the hearing.
At the reconsideration level for CDRs, the State agency or
the Associate Commissioner for Disability Determinations, or his or her
delegate, will determine the time and place of a hearing before a DHO
and determine how parties and witnesses will appear at the hearing.
Under the proposed rules, while we will evaluate the specific
circumstances of each claimant's or beneficiary's case to determine
what is the most efficient and appropriate manner of hearing, we would
not permit individuals to object to appearing by the manner of hearing
we choose.
At both the CDR reconsideration and ALJ levels of our
administrative review process, when we schedule a hearing, we propose
that we will determine the manner in which the parties to the hearing
will appear: By VTC, in person, or, under the limited circumstances
specified here, by telephone. In determining whether a party will
appear by VTC or in person, we would consider whether VTC technology is
available; whether it would be more efficient for an individual to
appear by VTC or in person; and whether there are circumstances in the
case that provide a good reason to schedule an individual to appear by
VTC or in person. Under the proposed rules, we would not permit
individuals to opt out of or objecting to appearing by the manner of
hearing we chose.
We also propose that we would determine the manner in
which witnesses to a hearing will appear. In general, we would schedule
witnesses to appear at hearings by VTC or telephone, unless VTC or
telephone equipment are not available; we determine that it would be
more efficient for a witness to appear in

[[Page 57372]]

person; or there are circumstances in the case that provide a good
reason to schedule a witness to appear in person.
We also propose that an ALJ may continue to identify case-
specific facts that affect which manner of appearance is most
efficient. However, the agency will have the final responsibility to
determine in which manner the individual must appear.
At the Appeals Council level, if the Appeals Council
grants an individual's request to appear to present oral argument, the
individual will appear before the Appeals Council by VTC or in person,
or, when the circumstances described in Sec. 404.936(c)(2) exist, by
telephone.
We believe that we can best serve individuals involved in our
disability program by maximizing the case processing efficiencies and
flexibility allowed by VTC hearings. Supporting this, OIG and ACUS have
repeatedly recommended that we increase use of VTC hearings for greater
efficiency. The SSAB has also recommended we eliminate the ability to
object to appearing by VTC.\40\ The SSAB has stated that allowing a
claimant to opt out of a VTC hearing reduces the hearing process's
productivity and delays processing of not only that individual's case,
but also others who are waiting for their opportunity for a
hearing.\41\
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\40\ SSAB, Improving the Social Security Administration's
Hearing Process, at 21 (Sep. 2006), available at: http://www.ssab.gov/Portals/0/OUR_WORK/REPORTS/HearingProcess_2006.pdf.
\41\ Id.
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The changes we propose will provide us with the flexibility we need
to address the ongoing service challenges we face by balancing our
hearing workloads in a way that we expect will reduce overall wait and
processing times across the country and reduce the processing time
disparities that exist from region to region.
In addition to the changes we propose for setting the manner for
appearing at a hearing, we also propose to make one clarification to
our rules regarding the notice of hearing at the ALJ hearings level.
Under our current rules, we send a notice of hearing at least 75 days
prior to the date of the scheduled hearing to all parties and their
representatives, if any.\42\ In addition to setting the time and place
of a hearing, the notice has additional information, including the
issues to be decided, the right to representation, how to request a
change in the time of the hearing, and who will be present at the
hearing, such as any expert witnesses we call. We propose to clarify
that when we send an amended notice of hearing updating any
information, we will send the amended notice at least 20 days prior to
the hearing.
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\42\ 20 CFR 404.938(a), 416.1438(a).
---------------------------------------------------------------------------

If we need to change the date of a hearing, the date we choose will
always be at least 75 days from the date we first sent the claimant a
notice of hearing, unless the claimant has waived his or her right to
advance notice. We believe sending an amended notice of hearing at
least 20 days prior to the hearing would give the individual ample time
to fully prepare for the hearing because the individual would have
already received the initial notice of hearing, sent at least 75 days
before the hearing. In many cases, sending an amended notice of hearing
at least 75 days before the date of the hearing would require us to
reschedule and unnecessarily delay the hearing, which would inhibit us
from providing better public service by having a hearing as soon as we
can do so. Therefore, we propose to send an amended notice of hearing
at least 20 days prior to the hearing, which is the same amount of
advance notice we used to provide most claimants before we implemented
the 75-day notice period. Similarly, if we schedule a supplemental
hearing, after the initial hearing was continued by the assigned ALJ,
we will send a notice of hearing at least 20 days before the date of
the hearing.

Regulatory Procedures

Clarity of These Rules

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

Executive Order 12866 as Supplemented by Executive Order 13563

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

Executive Order 13771 and Cost Information

This proposed rule is not subject to the requirements of Executive
Order 13771 because it is administrative in nature.
SSA's Office of the Chief Actuary estimates that the actuarial
impact of the rule will be de minimis.
SSA's Office of Budget estimates that the proposal, if implemented,
will result in administrative savings of $118 million over a 10-year
period. These savings stem from reduced costs of claimant and
representative travel, a reduced number of workyears needed, and fewer
forms processed.

Regulatory Flexibility Act

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

Paperwork Reduction Act

These proposed rules do not create any new or affect any existing
collections and, therefore, do not require Office of Management and
Budget approval under the Paperwork Reduction Act.

(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social
Security--Disability Insurance; 96.002, Social Security--Retirement
Insurance; 96.004, Social Security--Survivors Insurance; and 96.006,
Supplemental Security Income)

List of Subjects

20 CFR Part 404

Administrative practice and procedure, Blind, Disability benefits,
Old-Age, Survivors, and Disability Insurance, Reporting and
recordkeeping requirements, Social Security.

20 CFR Part 416

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

Nancy A. Berryhill,
Acting Commissioner of Social Security.
For the reasons set out in the preamble, we propose to amend 20 CFR

[[Page 57373]]

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. Amend Sec. 404.914 by revising paragraphs (c), (d), and (e) and
adding paragraphs (f), (g), and (h) to read as follows:

Sec. 404.914 Disability hearing-general.

* * * * *
(c) Combined issues. If a disability hearing is available to you
under paragraph (a), and you file a new application for benefits while
your request for reconsideration is still pending, we may combine the
issues on both claims for the purpose of the disability hearing and
issue a combined initial and reconsideration determination which is
binding with respect to the common issues on both claims.
(d) Definition. For purposes of the provisions regarding disability
hearings (Sec. Sec. 404.914 through 404.918) we, us or our means the
Social Security Administration or the State agency.
(e) Notice of disability hearing. We will send you a notice of the
time and place of your disability hearing at least 20 days before the
date of the hearing. The notice of hearing will tell you the scheduled
time and place of the hearing and will notify you whether your
appearance will be by video teleconference, in person, or by telephone.
You may be expected to travel to your disability hearing. (See
Sec. Sec. 404.999a through 404.999d regarding reimbursement for travel
expenses.)
(f) Time and place for a disability hearing. (1) General. Either
the State agency or the Associate Commissioner for Disability
Determinations or his or her delegate, as appropriate, will set the
time and place of your disability hearing. We may change the time and
place of the hearing, if it is necessary and there is good cause for
doing so.
(2) Where we hold hearings. The ``place'' of the hearing is the
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
disability hearing officer by video teleconferencing, in person, or,
when the circumstances described in paragraph (f)(4) of this section
exist, by telephone.
(3) When we will schedule your hearing by video teleconferencing or
in person. We will generally schedule you or any other party to the
hearing to appear either by video teleconferencing or in person. When
we determine whether you will appear by video teleconferencing or in
person, we consider the following factors:
(i) The availability of video teleconferencing equipment to conduct
the appearance;
(ii) Whether use of video teleconferencing to conduct the
appearance would be less efficient than conducting the appearance in
person; and
(iii) Any facts in your particular case that provide a good reason
to schedule your appearance by video teleconferencing or in person.
(4) When we will schedule your appearance by telephone. Subject to
paragraph (f)(5), we will schedule you or any other party to the
hearing to appear by telephone when we find an appearance by video
teleconferencing or in person is not possible or other extraordinary
circumstances prevent you from appearing by video teleconferencing or
in person.
(5) Scheduling a hearing when you or any other party to the hearing
is incarcerated or otherwise confined. If you are incarcerated or
otherwise confined and video teleconferencing is not available, we will
schedule your appearance by telephone, unless we find that there are
facts in your particular case that provide a good reason to schedule
your appearance in person, if allowed by the place of confinement, or
by video teleconferencing or in person upon your release.
(6) How witnesses will appear. Witnesses may appear at a hearing
with you in the same manner in which you are scheduled to appear. If
they are unable to appear with you in the same manner as you, we will
generally direct them to appear by video teleconferencing or by
telephone. We will consider directing them to appear in person only
when:
(i) Telephone or video teleconferencing equipment is not available
to conduct the appearance;
(ii) We determine that use of telephone or video teleconferencing
equipment would be less efficient than conducting the appearance in
person; or
(iii) We find that there are facts in your particular case that
provide a good reason to schedule this individual's appearance in
person.
(g) Objecting to the time of the hearing.
(1) General. If you wish to object to the time of the hearing, you
must:
(i) Notify us in writing at the earliest possible opportunity, but
not later than 5 days before the date set for the hearing; and
(ii) State the reason(s) for your objection to the time of the
hearing and state the time you want the hearing to be held.
(2) If you notify us that you object to the time of the hearing
less than 5 days before the date set for the hearing, we will consider
this objection only if you show you had good cause for missing the
deadline. To determine whether good cause exists for missing the
deadline, we use the standards explained in Sec. 404.911.
(h) Whether good cause exists for changing the time of the hearing.
We will determine whether good cause exists for changing the time of
your scheduled hearing. If we find good cause, we will set the time of
the new hearing. A finding that good cause exists to reschedule the
time of your hearing will generally not change the assignment of the
designated adjudicator or how you or any party to the hearing will
appear at the hearing, unless we determine a change will promote more
efficient administration of the hearing process.
(1) Determining good cause for changing the time of the hearing. We
will find good cause to change the time of your hearing if we determine
that, based on the evidence:
(i) A serious physical or mental condition or incapacitating injury
makes it impossible for you or your representative to travel to the
hearing, or a death in the family occurs; or
(ii) Severe weather conditions make it impossible for you or your
representative to travel to the hearing.
(2) Determining good cause in other circumstances. When we
determine whether good cause exists to change the time of your hearing,
in circumstances other than those set out in paragraph (h)(1) of this
section, we will consider your reason(s) for requesting the change, the
facts supporting it, and the impact of the proposed change on the
efficient administration of the hearing process. Factors affecting the
impact of the change include, but are not limited to,

[[Page 57374]]

the effect on processing other scheduled hearings, delays that may
occur in rescheduling your hearing, and whether we previously granted
any changes to the time of the hearing.
(3) Examples of such other circumstances that you might give for
requesting a change in the time of the hearing include, but are not
limited to the following:
(i) You unsuccessfully attempted to obtain a representative and
need additional time to secure representation;
(ii) Your representative was appointed within 20 days of the
scheduled hearing and needs additional time to prepare for the hearing;
(iii) Your representative has a prior commitment to be in court or
at another administrative hearing on the date scheduled for the
hearing;
(iv) A witness who will testify to facts material to your case
would be unavailable to attend the scheduled hearing and the evidence
cannot be otherwise obtained;
(v) Transportation is not readily available for you to travel to
the hearing; or
(vi) You are unrepresented, and you are unable to respond to the
notice of hearing because of any physical, mental, educational, or
linguistic limitations (including any lack of facility with the English
language) which you may have.
0
3. Revise Sec. 404.929 to read as follows:

Sec. 404.929 Hearing before an administrative law judge-general.

If you are dissatisfied with one of the determinations or decisions
listed in Sec. 404.930, you may request a hearing. The Deputy
Commissioner for Hearings Operations, or his or her delegate, will
appoint an administrative law judge to conduct the hearing. If
circumstances warrant, the Deputy Commissioner for Hearings Operations,
or his or her delegate, may assign your case to another administrative
law judge. In general, we will schedule you to appear by video
teleconferencing or in person. When we determine whether you will
appear by video teleconferencing or in person, we consider the factors
described in Sec. 404.936(c)(1)(i) through (iii), and in the limited
circumstances described in Sec. 404.936(c)(2), we will schedule you to
appear by telephone. You may submit new evidence (subject to the
provisions of Sec. 404.935), examine the evidence used in making the
determination or decision under review, and present and question
witnesses. The administrative law judge who conducts the hearing may
ask you questions. He or she will issue a decision based on the
preponderance of the evidence in the hearing record. If you waive your
right to appear at the hearing, the administrative law judge will make
a decision based on the preponderance of the evidence that is in the
file and, subject to the provisions of Sec. 404.935, any new evidence
that may have been submitted for consideration.
0
4. Revise Sec. 404.936 to read as follows:

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

(a) General. We set the time and place for any hearing. We may
change the time and place, if it is necessary. After sending you
reasonable notice of the proposed action, the administrative law judge
may adjourn or postpone the hearing or reopen it to receive additional
evidence any time before he or she notifies you of a hearing decision.
(b) Where we hold hearings. We hold hearings in the 50 States, the
District of Columbia, American Samoa, Guam, the Northern Mariana
Islands, the Commonwealth of Puerto Rico, and the United States Virgin
Islands. The ``place'' of the hearing is the hearing office or other
site(s) at which you and any other parties to the hearing are located
when you make your appearance(s) before the administrative law judge by
video teleconferencing, in person or, when the circumstances described
in paragraph (c)(2) of this section exist, by telephone.
(c) We will generally schedule you or any other party to the
hearing to appear either by video teleconferencing or in person.
(1) When we determine whether you will appear by video
teleconferencing or in person, we consider the following factors:
(i) The availability of video teleconferencing equipment to conduct
the appearance;
(ii) Whether use of video teleconferencing to conduct the
appearance would be less efficient than conducting the appearance in
person; and
(iii) Any facts in your particular case that provide a good reason
to schedule your appearance by video teleconferencing or in person.
(2) Subject to paragraph (c)(3) of this section, we will schedule
you or any other party to the hearing to appear by telephone when we
find an appearance by video teleconferencing or in person is not
possible or other extraordinary circumstances prevent you from
appearing by video teleconferencing or in person.
(3) If you are incarcerated and video teleconferencing is not
available, we will schedule your appearance by telephone, unless we
find that there are facts in your particular case that provide a good
reason to schedule your appearance in person, if allowed by the place
of confinement, or by video teleconferencing or in person upon your
release.
(4) We will generally direct any person we call as a witness, other
than you or any other party to the hearing, including a medical expert
or a vocational expert, to appear by telephone or by video
teleconferencing. Witnesses you call will appear at the hearing
pursuant to Sec. 404.950(e). If they are unable to appear with you in
the same manner as you, we will generally direct them to appear by
video teleconferencing or by telephone. We will consider directing them
to appear in person only when:
(i) Telephone or video teleconferencing equipment is not available
to conduct the appearance;
(ii) We determine that use of telephone or video teleconferencing
equipment would be less efficient than conducting the appearance in
person; or
(iii) We find that there are facts in your particular case that
provide a good reason to schedule this individual's appearance in
person.
(d) Objecting to the time of the hearing. (1) If you wish to object
to the time of the hearing, you must:
(i) Notify us in writing at the earliest possible opportunity, but
not later than 5 days before the date set for the hearing or 30 days
after receiving notice of the hearing, whichever is earlier; and
(ii) State the reason(s) for your objection and state the time you
want the hearing to be held. If the administrative law judge finds you
have good cause, as determined under paragraph (e) of this section, we
will change the time of the hearing.
(2) If you notify us that you object to the time of hearing less
than 5 days before the date set for the hearing or, if earlier, more
than 30 days after receiving notice of the hearing, we will consider
this objection only if you show you had good cause for missing the
deadline. To determine whether good cause exists for missing this
deadline, we use the standards explained in Sec. 404.911.
(e) Good cause for changing the time. The administrative law judge
will determine whether good cause exists for changing the time of your
scheduled hearing. If the administrative law judge finds that good
cause exists, we will set the time of the new hearing. A finding that
good cause exists to reschedule the time of your hearing will generally
not change the assignment of the administrative law judge or how you or
another party will appear at the hearing, unless we determine a change
will

[[Page 57375]]

promote efficiency in our hearing process.
(1) The administrative law judge will find good cause to change the
time of your hearing if he or she determines that, based on the
evidence:
(i) A serious physical or mental condition or incapacitating injury
makes it impossible for you or your representative to travel to the
hearing, or a death in the family occurs; or
(ii) Severe weather conditions make it impossible for you or your
representative to travel to the hearing.
(2) In determining whether good cause exists in circumstances other
than those set out in paragraph (e)(1) of this section, the
administrative law judge will consider your reason(s) for requesting
the change, the facts supporting it, and the impact of the proposed
change on the efficient administration of the hearing process. Factors
affecting the impact of the change include, but are not limited to, the
effect on the processing of other scheduled hearings, delays that might
occur in rescheduling your hearing, and whether we previously granted
you any changes in the time of your hearing. Examples of such other
circumstances that you might give for requesting a change in the time
of the hearing include, but are not limited to, the following:
(i) You unsuccessfully attempted to obtain a representative and
need additional time to secure representation;
(ii) Your representative was appointed within 30 days of the
scheduled hearing and needs additional time to prepare for the hearing;
(iii) Your representative has a prior commitment to be in court or
at another administrative hearing on the date scheduled for the
hearing;
(iv) A witness who will testify to facts material to your case
would be unavailable to attend the scheduled hearing and the evidence
cannot be otherwise obtained;
(v) Transportation is not readily available for you to travel to
the hearing; or
(vi) You are unrepresented, and you are unable to respond to the
notice of hearing because of any physical, mental, educational, or
linguistic limitations (including any lack of facility with the English
language) which you may have.
0
5. Amend Sec. 404.938 by revising paragraphs (b)(3), (b)(5), and (c)
and adding paragraph (d) to read as follows:

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

* * * * *
(b) * * *
(3) How to request that we change the time of your hearing;
* * *
(5) Whether your appearance or that of any other party or witness
is scheduled to be made by video teleconferencing, in person, or, when
the circumstances described in Sec. 404.936(c)(2) exist, by telephone.
If we have scheduled you to appear by video teleconferencing, the
notice of hearing will tell you that the scheduled place for the
hearing is a video teleconferencing site and explain what it means to
appear at your hearing by video teleconferencing;
* * * * *
(c) Acknowledging the notice of hearing. The notice of hearing will
ask you to return a form to let us know that you received the notice.
If you or your representative do not acknowledge receipt of the notice
of hearing, we will attempt to contact you for an explanation. If you
tell us that you did not receive the notice of hearing, an amended
notice will be sent to you by certified mail.
(d) Amended notice of hearing. If we need to send you an amended
notice of hearing, we will mail or serve the notice at least 20 days
before the date of the hearing. Similarly, if we schedule a
supplemental hearing, after the initial hearing was continued by the
assigned administrative law judge, we will mail or serve a notice of
hearing at least 20 days before the date of the hearing.
0
6. Amend Sec. 404.950 by revising paragraphs (a) and (e) to read as
follows:

Sec. 404.950 Presenting evidence at a hearing before an
administrative law judge.

(a) The right to appear and present evidence. Any party to a
hearing has a right to appear before the administrative law judge,
either by video teleconferencing, in person, or, when the conditions in
Sec. 404.936(c)(2) exist, by telephone, to present evidence and to
state his or her position. A party may also make his or her appearance
by means of a designated representative, who may make the appearance by
video teleconferencing, in person, or, when the conditions in Sec.
404.936(c)(2) exist, by telephone.
* * * * *
(e) Witnesses at a hearing. Witnesses you call may appear at a
hearing with you in the same manner in which you are scheduled to
appear. If they are unable to appear with you in the same manner as
you, they may appear as prescribed in Sec. 404.936(c)(4). Witnesses
called by the administrative law judge will appear in the manner
prescribed in Sec. 404.936(c)(4). They will testify under oath or
affirmation unless the administrative law judge finds an important
reason to excuse them from taking an oath or affirmation. The
administrative law judge may ask the witness any questions material to
the issues and will allow the parties or their designated
representatives to do so.
* * * * *
0
7. Amend Sec. 404.976 by revising paragraph (b) to read as follows:

Sec. 404.976 Procedures before the Appeals Council on review.

* * * * *
(b) Oral argument. You may request to appear before the Appeals
Council to present oral argument. The Appeals Council will grant your
request if it decides that your case raises an important question of
law or policy or that oral argument would help to reach a proper
decision. If your request to appear is granted, the Appeals Council
will tell you the time and place of the oral argument at least 10
business days before the scheduled date. You will appear before the
Appeals Council by video teleconferencing or in person, or, when the
circumstances described in Sec. 404.936(c)(2) exist, we may schedule
you to appear by telephone. The Appeals Council will determine whether
any other person relevant to the proceeding will appear by video
teleconferencing, telephone, or in person as based on the circumstances
described in Sec. 404.936(c)(4).

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

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

0
8. 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
9. Amend Sec. 416.1414 by revising paragraphs (c), (d), and (e) and
adding paragraphs (f), (g), and (h) to read as follows:

Sec. 416.1414 Disability hearing-general.

[[Page 57376]]

(d) Definition. For purposes of the provisions regarding disability
hearings (Sec. Sec. 416.1414 through 416.1418) we, us or our means the
Social Security Administration or the State agency.
(e) Notice of disability hearing. We will send you a notice of the
time and place of your disability hearing at least 20 days before the
date of the hearing. The notice of hearing will tell you the scheduled
time and place of the hearing and will notify you whether your
appearance will be by video teleconference, in person, or by telephone.
You may be expected to travel to your disability hearing. (See
Sec. Sec. [thinsp]416.1499a through 416.1499d regarding reimbursement
for travel expenses.)
(f) Time and place for a disability hearing. (1) General. Either
the State agency or the Associate Commissioner for Disability
Determinations or his or her delegate, as appropriate, will set the
time and place of your disability hearing. We may change the time and
place of the hearing, if it is necessary and there is good cause for
doing so.
(2) Where we hold hearings. The ``place'' of the hearing is the
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
disability hearing officer by video teleconferencing, in person, or,
when the circumstances described in paragraph (f)(4) of this section
exist, by telephone.
(3) When we will schedule your hearing by video teleconferencing or
in person. We will generally schedule you or any other party to the
hearing to appear either by video teleconferencing or in person. When
we determine whether you will appear by video teleconferencing or in
person, we consider the following factors:
(i) The availability of video teleconferencing equipment to conduct
the appearance;
(ii) Whether use of video teleconferencing to conduct the
appearance would be less efficient than conducting the appearance in
person; and
(iii) Any facts in your particular case that provide a good reason
to schedule your appearance by video teleconferencing or in person.
(4) When we will schedule your appearance by telephone. Subject to
paragraph (f)(5), we will schedule you or any other party to the
hearing to appear by telephone when we find an appearance by video
teleconferencing or in person is not possible or other extraordinary
circumstances prevent you from appearing by video teleconferencing or
in person.
(5) Scheduling a hearing when you or any other party to the hearing
is incarcerated or otherwise confined. If you are incarcerated or
otherwise confined and video teleconferencing is not available, we will
schedule your appearance by telephone, unless we find that there are
facts in your particular case that provide a good reason to schedule
your appearance in person, if allowed by the place of confinement, or
by video teleconferencing or in person upon your release.
(6) How witnesses will appear. Witnesses may appear at a hearing
with you in the same manner in which you are scheduled to appear. If
they are unable to appear with you in the same manner as you, we will
generally direct them to appear by video teleconferencing or by
telephone. We will consider directing them to appear in person only
when:
(i) Telephone or video teleconferencing equipment is not available
to conduct the appearance;
(ii) We determine that use of telephone or video teleconferencing
equipment would be less efficient than conducting the appearance in
person; or
(iii) We find that there are facts in your particular case that
provide a good reason to schedule this individual's appearance in
person.
(g) Objecting to the time of the hearing. (1) General. If you wish
to object to the time of the hearing, you must:
(i) Notify us in writing at the earliest possible opportunity, but
not later than 5 days before the date set for the hearing; and
(ii) State the reason(s) for your objection to the time of the
hearing and state the time you want the hearing to be held.
(2) If you notify us that you object to the time of the hearing
less than 5 days before the date set for the hearing, we will consider
this objection only if you show you had good cause for missing the
deadline. To determine whether good cause exists for missing the
deadline, we use the standards explained in Sec. 416.1411.
(h) Whether good cause exists for changing the time of the hearing.
We will determine whether good cause exists for changing the time of
your scheduled hearing. If we find good cause, we will set the time of
the new hearing. A finding that good cause exists to reschedule the
time of your hearing will generally not change the assignment of the
designated adjudicator or how you or any other party to the hearing
will appear at the hearing, unless we determine a change will promote
more efficient administration of the hearing process.
(1) Determining good cause for changing the time of the hearing. We
will find good cause to change the time of your hearing if we determine
that, based on the evidence:
(i) A serious physical or mental condition or incapacitating injury
makes it impossible for you or your representative to travel to the
hearing, or a death in the family occurs; or
(ii) Severe weather conditions make it impossible for you or your
representative to travel to the hearing.
(2) Determining good cause in other circumstances. When we
determine whether good cause exists to change the time of your hearing,
in circumstances other than those set out in paragraph (h)(1) of this
section, we will consider your reason(s) for requesting the change, the
facts supporting it, and the impact of the proposed change on the
efficient administration of the hearing process. Factors affecting the
impact of the change include, but are not limited to, the effect on
processing other scheduled hearings, delays that may occur in
rescheduling your hearing, and whether we previously granted any
changes to the time of the hearing. Examples of such other
circumstances that you might give for requesting a change in the time
of the hearing include, but are not limited to the following:
(i) You unsuccessfully attempted to obtain a representative and
need additional time to secure representation;
(ii) Your representative was appointed within 20 days of the
scheduled hearing and needs additional time to prepare for the hearing;
(iii) Your representative has a prior commitment to be in court or
at another administrative hearing on the date scheduled for the
hearing;
(iv) A witness who will testify to facts material to your case
would be unavailable to attend the scheduled hearing and the evidence
cannot be otherwise obtained;
(v) Transportation is not readily available for you to travel to
the hearing; or
(vi) You are unrepresented, and you are unable to respond to the
notice of hearing because of any physical, mental, educational, or
linguistic limitations (including any lack of facility with the English
language) which you may have.
0
10. Revise Sec. 416.1429 to read as follows:

Sec. 416.1429 Hearing before an administrative law judge.

If you are dissatisfied with one of the determinations or decisions
listed in Sec. 416.1430, you may request a hearing.

[[Page 57377]]

The Deputy Commissioner for Hearings Operations, or his or her
delegate, will appoint an administrative law judge to conduct the
hearing. If circumstances warrant, the Deputy Commissioner for Hearings
Operations, or his or her delegate, may assign your case to another
administrative law judge. In general, we will schedule you to appear by
video teleconferencing or in person. When we determine whether you will
appear by video teleconferencing or in person, we consider the factors
described in Sec. 416.1436(c)(1)(i) through (iii), and in the limited
circumstances described in Sec. 416.1436(c)(2), we will schedule you
to appear by telephone. You may submit new evidence (subject to the
provisions of Sec. 416.1435), examine the evidence used in making the
determination or decision under review, and present and question
witnesses. The administrative law judge who conducts the hearing may
ask you questions. He or she will issue a decision based on the
preponderance of the evidence in the hearing record. If you waive your
right to appear at the hearing, the administrative law judge will make
a decision based on the preponderance of the evidence that is in the
file and, subject to the provisions of Sec. 416.1435, any new evidence
that may have been submitted for consideration.
0
11. Revise Sec. 416.1436 to read as follows:

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

(a) General. We set the time and place for any hearing. We may
change the time and place, if it is necessary. After sending you
reasonable notice of the proposed action, the administrative law judge
may adjourn or postpone the hearing or reopen it to receive additional
evidence any time before he or she notifies you of a hearing decision.
(b) Where we hold hearings. We hold hearings in the 50 States, the
District of Columbia, American Samoa, Guam, the Northern Mariana
Islands, the Commonwealth of Puerto Rico, and the United States Virgin
Islands. The ``place'' of the hearing is the hearing office or other
site(s) at which you and any other parties to the hearing are located
when you make your appearance(s) before the administrative law judge by
video teleconferencing, in person or, when the circumstances described
in Sec. 416.1436(c)(2) exist, by telephone.
(c) We will generally schedule you or any other party to the
hearing to appear either by video teleconferencing or in person.
(1) When we determine whether you will appear by video
teleconferencing or in person, we consider the following factors:
(i) The availability of video teleconferencing equipment to conduct
the appearance;
(ii) Whether use of video teleconferencing to conduct the
appearance would be less efficient than conducting the appearance in
person; and
(iii) Any facts in your particular case that provide a good reason
to schedule your appearance by video teleconferencing or in person.
(2) Subject to paragraph (c)(3) of this section, we will schedule
you or any other party to the hearing to appear by telephone when we
find an appearance by video teleconferencing or in person is not
possible or other extraordinary circumstances prevent you from
appearing by video teleconferencing or in person.
(3) If you are incarcerated and video teleconferencing is not
available, we will schedule your appearance by telephone, unless we
find that there are facts in your particular case that provide a good
reason to schedule your appearance in person, if allowed by the place
of confinement, or by video teleconferencing or in person upon your
release.
(4) We will generally direct any person we call as a witness, other
than you or any other party to the hearing, including a medical expert
or a vocational expert, to appear by telephone or by video
teleconferencing. Witnesses you call will appear at the hearing
pursuant to Sec. 416.1450(e). If they are unable to appear with you in
the same manner as you, we will generally direct them to appear by
video teleconferencing or by telephone. We will consider directing them
to appear in person only when:
(i) Telephone or video teleconferencing equipment is not available
to conduct the appearance;
(ii) We determine that use of telephone or video teleconferencing
equipment would be less efficient than conducting the appearance in
person; or
(iii) We find that there are facts in your particular case that
provide a good reason to schedule this individual's appearance in
person.
(d) Objecting to the time of the hearing. (1) If you wish to object
to the time of the hearing, you must:
(i) Notify us in writing at the earliest possible opportunity, but
not later than 5 days before the date set for the hearing or 30 days
after receiving notice of the hearing, whichever is earlier; and
(ii) State the reason(s) for your objection and state the time you
want the hearing to be held. If the administrative law judge finds you
have good cause, as determined under paragraph (e) of this section, we
will change the time of the hearing.
(2) If you notify us that you object to the time of hearing less
than 5 days before the date set for the hearing or, if earlier, more
than 30 days after receiving notice of the hearing, we will consider
this objection only if you show you had good cause for missing the
deadline. To determine whether good cause exists for missing this
deadline, we use the standards explained in Sec. 416.1411.
(e) Good cause for changing the time. The administrative law judge
will determine whether good cause exists for changing the time of your
scheduled hearing. If the administrative law judge finds that good
cause exists, we will set the time of the new hearing. A finding that
good cause exists to reschedule the time of your hearing will generally
not change the assignment of the administrative law judge or how you or
another party will appear at the hearing, unless we determine a change
will promote efficiency in our hearing process.
(1) The administrative law judge will find good cause to change the
time of your hearing if he or she determines that, based on the
evidence:
(i) A serious physical or mental condition or incapacitating injury
makes it impossible for you or your representative to travel to the
hearing, or a death in the family occurs; or
(ii) Severe weather conditions make it impossible for you or your
representative to travel to the hearing.
(2) In determining whether good cause exists in circumstances other
than those set out in paragraph (e)(1) of this section, the
administrative law judge will consider your reason(s) for requesting
the change, the facts supporting it, and the impact of the proposed
change on the efficient administration of the hearing process. Factors
affecting the impact of the change include, but are not limited to, the
effect on the processing of other scheduled hearings, delays that might
occur in rescheduling your hearing, and whether we previously granted
you any changes in the time of your hearing. Examples of such other
circumstances that you might give for requesting a change in the time
of the hearing include, but are not limited to, the following:
(i) You unsuccessfully attempted to obtain a representative and
need additional time to secure representation;
(ii) Your representative was appointed within 30 days of the
scheduled hearing

[[Page 57378]]

and needs additional time to prepare for the hearing;
(iii) Your representative has a prior commitment to be in court or
at another administrative hearing on the date scheduled for the
hearing;
(iv) A witness who will testify to facts material to your case
would be unavailable to attend the scheduled hearing and the evidence
cannot be otherwise obtained;
(v) Transportation is not readily available for you to travel to
the hearing; or
(vi) You are unrepresented, and you are unable to respond to the
notice of hearing because of any physical, mental, educational, or
linguistic limitations (including any lack of facility with the English
language) which you may have.
0
12. Amend Sec. 416.1438 by revising paragraphs (b)(3), (b)(5), and (c)
and adding paragraph (d) to read as follows:

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

* * * * *
(b) * * *
(3) How to request that we change the time of your hearing;
* * * * *
(5) Whether your appearance or that of any other party or witness
is scheduled to be made by video teleconferencing, in person, or, when
the circumstances described in Sec. 416.1436(c)(2) exist, by
telephone. If we have scheduled you to appear by video
teleconferencing, the notice of hearing will tell you that the
scheduled place for the hearing is a video teleconferencing site and
explain what it means to appear at your hearing by video
teleconferencing;
* * * * *
(c) Acknowledging the notice of hearing. The notice of hearing will
ask you to return a form to let us know that you received the notice.
If you or your representative do not acknowledge receipt of the notice
of hearing, we will attempt to contact you for an explanation. If you
tell us that you did not receive the notice of hearing, an amended
notice will be sent to you by certified mail.
(d) Amended notice of hearing. If we need to send you an amended
notice of hearing, we will mail or serve the notice at least 20 days
before the date of the hearing. Similarly, if we schedule a
supplemental hearing, after the initial hearing was continued by the
assigned administrative law judge, we will mail or serve a notice of
hearing at least 20 days before the date of the hearing.
0
13. Amend Sec. 416.1450, by revising paragraphs (a) and (e) to read as
follows:

Sec. 416.1450 Presenting evidence at a hearing before an
administrative law judge.

(a) The right to appear and present evidence. Any party to a
hearing has a right to appear before the administrative law judge,
either by video teleconferencing, in person, or, when the conditions in
Sec. 416.1436(c)(2) exist, by telephone, to present evidence and to
state his or her position. A party may also make his or her appearance
by means of a designated representative, who may make the appearance by
video teleconferencing, in person, or, when the conditions in Sec.
416.1436(c)(2) exist, by telephone.
* * * * *
(e) Witnesses at a hearing. Witnesses you call may appear at a
hearing with you in the same manner in which you are scheduled to
appear. If they are unable to appear with you in the same manner as
you, they may appear as prescribed in Sec. 416.1436(c)(4). Witnesses
called by the administrative law judge will appear in the manner
prescribed in Sec. 416.1436(c)(4). They will testify under oath or
affirmation unless the administrative law judge finds an important
reason to excuse them from taking an oath or affirmation. The
administrative law judge may ask the witness any questions material to
the issues and will allow the parties or their designated
representatives to do so.
* * * * *
0
15. Amend Sec. 416.1476, by revising paragraph (b) to read as follows:

Sec. 416.1476 Procedures before the Appeals Council on review.

* * * * *
(b) Oral argument. You may request to appear before the Appeals
Council to present oral argument. The Appeals Council will grant your
request if it decides that your case raises an important question of
law or policy or that oral argument would help to reach a proper
decision. If your request to appear is granted, the Appeals Council
will tell you the time and place of the oral argument at least 10
business days before the scheduled date. You will appear before the
Appeals Council by video teleconferencing or in person, or, when the
circumstances described in Sec. 416.1436(c)(2) exist, we may schedule
you to appear by telephone. The Appeals Council will determine whether
any other person relevant to the proceeding will appear by video
teleconferencing, telephone, or in person as based on the circumstances
described in Sec. 416.1436(c)(4).

[FR Doc. 2018-24711 Filed 11-14-18; 8:45 am]
BILLING CODE 4191-02-P