[Federal Register Volume 60, Number 72 (Friday, April 14, 1995)]
[Proposed Rules]
[Pages 19008-19011]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-9028]
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SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404 and 416
RIN 0960-AE10
Administrative Review Process, Prehearing Proceedings and
Decisions by Attorney Advisors
AGENCY: Social Security Administration.
ACTION: Proposed rule.
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SUMMARY: We propose to amend our regulations to provide, on a temporary
basis, that in claims for Social Security or Supplemental Security
Income (SSI) benefits based on disability, attorney advisors in our
Office of Hearings and Appeals (OHA) will have authority to conduct
certain prehearing proceedings, and where the record developed as a
result of these proceedings warrants, to [[Page 19009]] issue decisions
that are wholly favorable to the parties to the hearing.
Because requests for an administrative law judge (ALJ) hearing have
increased dramatically in recent years, and cases pending in our
hearing offices have reached unprecedented levels, we have taken a
number of actions designed to help us hear and decide these cases more
efficiently. The rules we are proposing in this notice of proposed
rulemaking are an important part of our efforts in this regard.
DATES: To be sure that your comments are considered, we must receive
them no later than May 15, 1995.
ADDRESSES: Comments should be submitted in writing to the Commissioner
of Social Security, P.O. Box 1585, Baltimore, Maryland 21235, sent by
telefax to (410) 966-2830, sent by E-mail to ``[email protected]'',
or delivered to the Division of Regulations and Rulings, Social
Security Administration, 3-A-3 Operations Building, 6401 Security
Boulevard, Baltimore, Maryland 21235, between 8:00 a.m. and 4:30 p.m.
on regular business days. Comments received may be inspected during
these same hours by making arrangements with the contact person shown
below. The electronic file of this document is available on the Federal
Bulletin Board (FBB) at 9:00 a.m. on the date of publication in the
Federal Register. To download the file, modem dial (202) 512-1387. The
FBB instructions will explain how to download the file and the fee.
This file is in Wordperfect and will remain on the FBB during the
comment period.
FOR FURTHER INFORMATION CONTACT: Harry J. Short, Legal Assistant,
Division of Regulations and Rulings, Social Security Administration,
Social Security Boulevard, Baltimore, Maryland 21235, (410) 965-6243.
SUPPLEMENTARY INFORMATION:
Background
The Social Security Administration (SSA) decides claims for Social
Security benefits under title II of the Social Security Act (the Act)
and for SSI benefits under title XVI of the Act in an administrative
review process that generally consists of four steps. Claimants who are
not satisfied with the initial determination we make on a claim may
request reconsideration. Claimants who are not satisfied with our
reconsidered determination may request a hearing before an ALJ, and
claimants who are dissatisfied with an ALJ's decision may request
review by the Appeals Council. Claimants who have completed these
steps, and who are not satisfied with our final decision, may request
judicial review of the decision in the Federal courts.
Generally, when a claim is filed for Social Security or SSI
benefits based on disability, a State agency makes the initial and
reconsideration disability determination for us. A hearing requested
after we have made a reconsideration determination is conducted by an
ALJ in one of the 132 hearing offices we have nationwide.
Applications for Social Security and SSI benefits based on
disability have risen dramatically in recent years. The number of new
disability claims SSA received in Fiscal Year (FY) 1994--3.56 million--
represented a 40 percent increase over the number received in FY 1990.
Requests for an ALJ hearing also have increased dramatically. In FY
1994, our hearing offices had almost 540,000 hearing receipts and most
of these were related to requests for a hearing filed by persons
claiming disability benefits. In that year, the number of hearing
receipts we received exceeded the number of receipts we received in FY
1990 by more than 70 percent.
Despite management initiatives that resulted in a record increase
in ALJ productivity in FY 1994, and the hiring of more than 200 new
ALJs and more than 800 new support staff in that year, the number of
cases pending in our hearing offices has reached unprecedented levels--
more than 480,000 at the end of FY 1994.
On September 19, 1994, the Commissioner of Social Security
published a Plan for a New Disability Claim Process in the Federal
Register (59 FR 47887). That document sets forth our long term plans
for redesigning and fundamentally improving the overall disability
claim process. On a separate track from that longer term plan, we have
developed short term initiatives to reduce the number of cases pending
in our hearing offices. As part of our short term disability process
improvements, we are issuing this notice of proposed rulemaking (NPRM)
regarding a temporary change in our administrative review procedures.
Under the proposed rule, attorney advisors would conduct certain
prehearing proceedings and, where appropriate, issue decisions that are
wholly favorable to the claimant and any other party to the hearing. We
are proposing that this procedure remain in effect for a period of time
not to exceed two years from the effective date of a final rule
authorizing the procedure unless the rule is extended by the
Commissioner of Social Security by publication of a final rule in the
Federal Register.
Regulatory Provisions
We propose to add new Secs. 404.942 and 416.1442 to our regulations
to authorize attorney advisors in OHA to conduct certain prehearing
proceedings and, where appropriate, make decisions based on the
documentary record that are wholly favorable to the parties. Our
purpose in proposing these regulations is to expedite the processing of
cases pending at OHA without infringing on the right of a claimant to a
hearing before an ALJ.
The authority of an attorney advisor to conduct prehearing
proceedings and to make decisions would be temporary, and it would
apply only in the limited circumstances described below. Also, the
attorney advisor's conduct of certain prehearing proceedings would not
delay the scheduling of a hearing before an ALJ. If the prehearing
proceedings were not concluded before the hearing date, the case would
be sent to the ALJ unless a decision wholly favorable to the claimant
and all other parties was in process, or the claimant and all other
parties to the hearing agreed in writing to delay the hearing until the
prehearing proceedings are completed.
Prehearing proceedings could be conducted by the attorney advisor
under the proposed rule if new and material evidence is submitted;
there is an indication that additional evidence is available; there is
a change in the law or regulations; or there is an error in the file or
some other indication that a wholly favorable decision could be issued.
A decision by an attorney advisor would be mailed to all parties. The
notice of decision would state the basis for the decision and advise
the parties that an ALJ will dismiss the hearing request unless a
request to proceed with the hearing was made by a party within 30 days
after the date the notice of the decision was mailed.
We believe that these temporary procedures will enable us to manage
our pending hearing requests in a more timely manner. They also may
provide information that can help us better identify cases that can be
decided without a hearing before an ALJ and improve our ability to
narrow the issues that must be resolved before a decision can be made.
In view of the salutary effect we expect the rules to have on our
ability to improve our service to claimants, and the importance we
place on ensuring that we adjudicate claims timely and accurately, we
are providing a 30-day comment period for these rules rather than the
60-day comment period we usually provide. We believe that in this
instance a 30-day period is sufficiently [[Page 19010]] long to allow
the public a meaningful opportunity to comment on the proposed rules,
in accordance with Executive Order 12866.
Regulatory Procedures
Executive Order No. 12866
We have consulted with the Office of Management and Budget (OMB)
and determined that this rule does not meet the criteria for a
significant regulatory action under Executive Order 12866. Thus, the
rule is not subject to OMB review.
Regulatory Flexibility Act
We certify that these regulations will not have a significant
economic impact on a substantial number of small entities because they
affect only individuals. Therefore, a regulatory flexibility analysis
as provided in Pub. L. 96-354, the Regulatory Flexibility Act, is not
required.
Paperwork Reduction Act
These regulations impose no new reporting or recordkeeping
requirements requiring OMB clearance.
(Catalog of Federal Domestic Assistance Program Nos. 93.802, Social
Security-Disability Insurance; 93.807, Supplemental Security Income)
List of Subjects
20 CFR Part 404
Administrative practice and procedure, Death benefits, 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, Supplemental Security Income
(SSI), Reporting and recordkeeping requirements.
Dated: April 5, 1995.
Shirley S. Chater,
Commissioner of Social Security.
For the reasons set out in the preamble, subpart J of part 404 and
subpart N of part 416 of chapter III of title 20 of the Code of Federal
Regulations are amended as set forth below:
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950- )
1. The authority citation for subpart J of part 404 continues to
read as follows:
Authority: Secs. 201(j), 205 (a), (b), and (d)-(h), 221(d), 225
and 1102 of the Social Security Act; 31 U.S.C. 3720A; 42 U.S.C.
401(j), 405 (a), (b), and (d)-(h), 421(d), 425 and 1302; sec. 5 of
Pub. L. 97-455, 96 Stat. 2500; sec. 6 of Pub. L. 98-460, 98 Stat.
1802.
2. New Sec. 404.942 is added under the undesignated center heading
``Hearing Before an Administrative Law Judge'' to read as follows:
Sec. 404.942 Prehearing proceedings and decisions by attorney
advisors.
(a) General. After a hearing is requested but before it is held, an
attorney advisor in our Office of Hearings and Appeals may conduct
prehearing proceedings as set out in paragraph (c) of this section. If
upon the completion of these proceedings, a decision that is wholly
favorable to you and all other parties may be made, an attorney
advisor, instead of an administrative law judge, may issue such a
decision. The conduct of the prehearing proceedings by the attorney
advisor will not delay the scheduling of a hearing. If the prehearing
proceedings are not completed before the date of the hearing, the case
will be sent to the administrative law judge unless a wholly favorable
decision is in process or you and all other parties to the hearing
agree in writing to delay the hearing until the proceedings are
completed.
(b) When prehearing proceedings may be conducted by an attorney
advisor. An attorney advisor may conduct prehearing proceedings if you
have filed a claim for benefits based on disability and--
(1) New and material evidence is submitted;
(2) There is an indication that additional evidence is available;
(3) There is a change in the law or regulations; or
(4) There is an error in the file or some other indication that a
wholly favorable decision may be issued.
(c) Nature of the prehearing proceedings that may be conducted by
an attorney advisor. As part of the prehearing proceedings, the
attorney advisor, in addition to reviewing the existing record, may--
(1) Request additional evidence that may be relevant to the claim,
including medical evidence; and
(2) If necessary to clarify the record for the purpose of
determining if a wholly favorable decision is warranted, schedule a
conference with the parties.
(d) Notice of a decision by an attorney advisor. If the attorney
advisor issues a wholly favorable decision under this section, we shall
mail a written notice of the decision to all parties at their last
known address. We shall state the basis for the decision and advise all
parties that an administrative law judge will dismiss the hearing
request unless a party requests that the hearing proceed. A request to
proceed with the hearing must be made in writing within 30 days after
the date the notice of the decision of the attorney advisor is mailed.
(e) Effect of actions under this section. If under this section, an
administrative law judge dismisses a request for a hearing, the
dismissal is binding in accordance with Sec. 404.959 unless it is
vacated by an administrative law judge or the Appeals Council pursuant
to Sec. 404.960. A decision made by an attorney advisor under this
section is binding unless--
(1) A party files a request to proceed with the hearing pursuant to
paragraph (d) of this section and an administrative law judge makes a
decision;
(2) The Appeals Council reviews the decision on its own motion
pursuant to Sec. 404.969 as explained in paragraph (f)(3) of this
section; or
(3) The decision of the attorney advisor is revised under the
procedures explained in Sec. 404.987.
(f) Ancillary provisions. For the purposes of the procedures
authorized by this section, the regulations of part 404 shall apply
to--
(1) Authorize an attorney advisor to exercise the functions
performed by an administrative law judge under Secs. 404.1520a and
404.1546;
(2) Define the term ``decision'' to include a decision made by an
attorney advisor, as well as the decisions identified in Sec. 404.901;
and
(3) Make the decision of an attorney advisor subject to review by
the Appeals Council under Sec. 404.969 if an administrative law judge
dismisses the request for a hearing following issuance of the decision,
and the Appeals Council decides to review the decision of the attorney
advisor anytime within 60 days after the date of the dismissal.
(g) Sunset provision. The provisions of this section will no longer
be effective on (insert date two years after the date the final rule is
published in the Federal Register) unless they are extended by the
Commissioner of Social Security by publication of a final rule in the
Federal Register.
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
1. The authority citation for subpart N of part 416 continues to
read as follows:
Authority: Sec. 1102, 1631, and 1633 of the Social Security Act;
42 U.S.C. 1302, 1383, and 1383b.
2. New Sec. 416.1442 is added under the undesignated center heading
``Hearing [[Page 19011]] Before an Administrative Law Judge'' to read
as follows:
Sec. 416.1442 Prehearing proceedings and decisions by attorney
advisors.
(a) General. After a hearing is requested but before it is held, an
attorney advisor in our Office of Hearings and Appeals may conduct
prehearing proceedings as set out in paragraph (c) of this section. If
upon the completion of these proceedings, a decision that is wholly
favorable to you and all other parties may be made, an attorney
advisor, instead of an administrative law judge, may issue such a
decision. The conduct of the prehearing proceedings by the attorney
advisor will not delay the scheduling of a hearing. If the prehearing
proceedings are not completed before the date of the hearing, the case
will be sent to the administrative law judge unless a wholly favorable
decision is in process or you and all other parties to the hearing
agree in writing to delay the hearing until the proceedings are
completed.
(b) When prehearing proceedings may be conducted by an attorney
advisor. An attorney advisor may conduct prehearing proceedings if you
have filed a claim for SSI benefits based on disability and--
(1) New and material evidence is submitted;
(2) There is an indication that additional evidence is available;
(3) There is a change in the law or regulations; or
(4) There is an error in the file or some other indication that a
wholly favorable decision may be issued.
(c) Nature of the prehearing proceedings that may be conducted by
an attorney advisor. As part of the prehearing proceedings, the
attorney advisor, in addition to reviewing the existing record, may--
(1) Request additional evidence that may be relevant to the claim,
including medical evidence; and
(2) If necessary to clarify the record for the purpose of
determining if a wholly favorable decision is warranted, schedule a
conference with the parties.
(d) Notice of a decision by an attorney advisor. If the attorney
advisor issues a wholly favorable decision under this section, we shall
mail a written notice of the decision to all parties at their last
known address. We shall state the basis for the decision and advise all
parties that an administrative law judge will dismiss the hearing
request unless a party requests that the hearing proceed. A request to
proceed with the hearing must be made in writing within 30 days after
the date the notice of the decision of the attorney advisor is mailed.
(e) Effect of actions under this section. If under this section, an
administrative law judge dismisses a request for a hearing, the
dismissal is binding in accordance with Sec. 416.1459 unless it is
vacated by an administrative law judge or the Appeals Council pursuant
to Sec. 416.1460. A decision made by an attorney advisor under this
section is binding unless--
(1) A party files a request to proceed with the hearing pursuant to
paragraph (d) of this section and an administrative law judge makes a
decision;
(2) The Appeals Council reviews the decision on its own motion
pursuant to Sec. 416.1469 as explained in paragraph (f)(3) of this
section; or
(3) The decision of the attorney advisor is revised under the
procedures explained in Sec. 416.1487.
(f) Ancillary provisions. For the purposes of the procedures
authorized by this section, the regulations of part 416 shall apply
to--
(1) Authorize an attorney advisor to exercise the functions
performed by an administrative law judge under Secs. 416.920a,
416.924d(b), and 416.946;
(2) Define the term ``decision'' to include a decision made by an
attorney advisor, as well as the decisions identified in Sec. 416.1401;
and
(3) Make the decision of an attorney advisor subject to review by
the Appeals Council under Sec. 416.1469 if an administrative law judge
dismisses the request for a hearing following issuance of the decision,
and the Appeals Council decides to review the decision of the attorney
advisor anytime within 60 days after the date of the dismissal.
(g) Sunset provision. The provisions of this section will no longer
be effective on (insert date 2 years after the date the final rule is
published in the Federal Register) unless they are extended by the
Commissioner of Social Security by publication of a final rule in the
Federal Register.
[FR Doc. 95-9028 Filed 4-13-95; 8:45 am]
BILLING CODE 4190-29-P