[Federal Register Volume 60, Number 177 (Wednesday, September 13, 1995)]
[Rules and Regulations]
[Pages 47469-47477]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-22579]
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SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404 and 416
RIN 0960-AE06
Administrative Review Process, Testing Modifications to
Prehearing Procedures and Decisions by Adjudication Officers
AGENCY: Social Security Administration (SSA).
ACTION: Final rules.
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SUMMARY: We are amending our rules to establish authority to test use
of an adjudication officer who, under the Plan for a New Disability
Claim Process approved by the Commissioner of Social Security in
September 1994 (the disability redesign plan), would be the focal point
for all prehearing activities when a request for a hearing before an
administrative law judge (ALJ) is filed. The adjudication officer
position is an integral part of the disability redesign plan. We expect
that our tests of this position will provide us with sufficient
information to determine the effect of the position on the hearing
process. These final rules add two new sections setting out, for
purposes of the tests we will conduct, the responsibilities of the
adjudication officer in connection with a claim for Social Security or
Supplemental Security Income (SSI) benefits based on disability. Unless
specified, all other regulations related to our administrative review
process and the disability determination process remain unchanged.
EFFECTIVE DATE: September 13, 1995.
FOR FURTHER INFORMATION CONTACT: Harry J. Short, Legal Assistant,
Division of Regulations and Rulings, Social Security Administration,
6401 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 held 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--
2.55 million. Requests for an ALJ hearing also have increased
dramatically. In FY 1994, our hearing offices had almost 540,000
hearing receipts, and the overwhelming majority of these receipts 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. We expect hearing receipts to increase to more than 590,000 by
the close of FY 1995.
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 650 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 and more than 554,000 at the end of
July 1995.
In order to process this workload, the disability redesign plan
contains other changes to the disability determination process by which
SSA plans to decrease processing times while providing world-class
service. For example, the disability redesign plan envisions a
streamlined initial disability determination process which will result
in more timely determinations and the elimination of the
reconsideration step in the administrative review process for
disability claims. We expect that one consequence of these initiatives
will be an increase in the number of requests for hearings filed over
the next several years. In light of these growing workload
expectations, and to process more efficiently the hearing requests now
pending at our hearing offices, we are issuing these final rules
establishing the authority to test having an adjudication officer
conduct prehearing development and, if appropriate, issue a decision
wholly favorable to the claimant.
We expect that use of an adjudication officer, as described in our
disability redesign plan, will enable us to ensure development of a
more complete record and to issue decisions in a more efficient manner
when a request for a hearing has been filed. We anticipate that our
tests of the adjudication officer position will provide us with
information regarding the effect use of an adjudication officer has on
the current hearing process, and how to best use an adjudication
officer under the redesigned disability process. We will do this by
testing the adjudication officer position alone and in combination with
one or more of the tests we are conducting pursuant to the final rules
``Testing Modifications to the Disability Determination Procedures,''
which were published in the Federal Register on April 24, 1995 (60 FR
20023) (to be codified at 20 CFR 404.906 and 416.1406).
We consider testing and subsequently implementing use of an
adjudication officer to be a high agency priority. It is a
complementary approach to the short-term disability initiatives we
currently are undertaking. Our short-term initiatives are designed to
process more efficiently pending requests for hearings and reduce the
number of pending hearings to 375,000 at the end of calendar year 1996.
One key short-term initiative is set out in the final regulations we
published in the Federal Register on June 30, 1995 (60 FR 34126), which
temporarily authorize attorney advisors in our Office of Hearings and
Appeals (OHA) to conduct certain prehearing proceedings and, where
appropriate, issue decisions which are wholly favorable to the claimant
and any other party to the hearing. Our attorney advisor rules will no
longer be effective on June 30, 1997, unless they are extended by the
Commissioner of Social Security by publication of a final rule in the
Federal Register. The principal aim of the final rules authorizing
attorney advisors to conduct certain proceedings and issue wholly
favorable decisions is to expedite decisions on pending requests for
hearings. The use of an adjudication officer is focused on making
better use
[[Page 47470]]
of existing resources, so that ongoing cases are processed more timely
and in a more efficient manner. These final rules authorizing us to
test use of an adjudication officer will allow us to test the effect of
a process that we expect will allow us to better manage the hearing
process in the years to come.
We find good cause for dispensing in this case with the 30-day
delay in the effective date of a substantive rule provided for by 5
U.S.C. 553(d). As explained above and in the notice of proposed
rulemaking (NPRM), the number of hearing requests pending at OHA has
reached unprecedented levels, and the number of requests for hearings
filed over the next several years is expected to continue to increase.
In view of the number of pending and expected hearing requests, the
beneficial effect we expect this rule 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 find that it is in the
public interest to make these final rules effective upon publication.
Prehearing Procedures Under the Disability Redesign Plan
On April 15, 1994, SSA published a notice in the Federal Register
(59 FR 18188), setting out a proposal to reengineer the initial and
administrative review process we use to determine an individual's
entitlement to Social Security and SSI benefits based on disability.
Comments on this comprehensive and far-reaching proposal were
requested, and during the comment period that began on April 1, 1994,
and ended on June 14, 1994, SSA received, from a broad spectrum of
respondents, over 6,000 written responses and extensive oral comments.
The commenters expressed their belief that improvements were needed to
provide better service and to manage the claims process more
effectively. While some concerns were expressed, the commenters praised
SSA for taking on the task of redesigning the disability claim process.
On September 7, 1994, the Commissioner of Social Security accepted
the revised disability redesign plan that was submitted for her
approval on June 30, 1994, with the full understanding that some
aspects of the proposal would require research and testing. The plan as
approved by the Commissioner was published in the Federal Register on
September 19, 1994 (59 FR 47887).
The plan anticipates a redesigned, two-step process for deciding
Social Security and SSI claims based on disability. Under this process,
the claimant will receive an initial determination, and if the claimant
is not satisfied with this determination he or she may request an ALJ
hearing. When a hearing is requested in the redesigned process, the
focal point for prehearing activities will be an adjudication officer
who will work with, among others, claimants and their representatives.
Adjudication officers will have authority to make decisions wholly
favorable to the claimant after the hearing is requested but before it
is held where such decisions are warranted by the evidence.
The adjudication officer, together with the claimant and his or her
representative, will have responsibility for ensuring that claims
coming before ALJs are fully developed. The procedures outlined in the
disability redesign plan make the best use of the services of
representatives by more clearly defining the responsibility of
claimants and their representatives to submit evidence. In addition, we
anticipate that the hearing process will function more efficiently
under the disability redesign plan because the adjudication officer
will conduct an informal conference with a claimant's representative to
identify the issues in dispute and to prepare proposed written
agreements for the approval of the ALJ regarding those issues which are
not in dispute and those issues proposed for hearing. We would not ask
a claimant who does not have a representative to limit issues prior to
the hearing. However, if the claimant obtains representation after the
adjudication officer concludes that the case is ready for a hearing,
the ALJ will return the case to the adjudication officer who will
conduct an informal conference with the claimant and his
representative.
In these final rules we are adding new Secs. 404.943 and 416.1443.
These sections set out, for purposes of the tests we will conduct, the
responsibilities of the adjudication officer when a request for an ALJ
hearing is filed.
For many years, our hearing offices have productively used various
forms of prehearing development. We have conducted tests of a standard
prehearing development process under our existing regulatory authority.
This experience has given us some information about the effect the
establishment of an adjudication officer position may have on the
administrative review process. However, as we believe that further
information will allow us to better evaluate the effect the position
may have on the administrative review process, we will begin testing
use of the adjudication officer as soon as possible. The tests are
intended to assess whether the position meets the goals of the
disability redesign process and whether it will have an effect on
administrative and program expenditures. We also will manage closely
the tests of the adjudication officer position to ensure that the
procedures are consistently and effectively applied at all locations.
In accordance with the goals and directives of the National
Performance Review's Reinventing Government Programs I and II, and our
disability redesign plan, the role of the adjudication officer must be
flexible to make the best use of our available program resources and
also be consistent with providing world-class service to our customers.
Accordingly, under these final rules, the adjudication officer may
either be a qualified employee of SSA or an employee of a State agency
that makes disability determinations for us. The adjudication officer
may be located in our field offices or program service centers, in
State agencies that make disability determinations for us, in OHA, or
in our Regional Office of Program and Integrity Reviews.
Adjudication Officer Qualifications
The adjudication officer will be expected to bring relevant
experience to the position, with additional training provided as may be
necessary to complete the preparation of the individual to assume the
full range of duties. The adjudication officer must have a thorough
knowledge of the disability provisions, and be able to communicate
effectively in informal conferences and in writing. The adjudication
officer must be able to manage a substantial caseload, review
independently the information in the claims file, determine the need
for additional evidence, and evaluate the evidence under the applicable
provisions of the Act, our regulations and rulings. In addition, the
adjudication officer must be able to write factually and legally
correct decisions that can be readily understood by the claimant.
Evaluation of Tests of Prehearing Procedures and Decisions by
Adjudication Officers
These final rules establish the authority to test new prehearing
procedures involving use of an adjudication officer. We plan to test
the procedures in multiple sites, including our field offices and
program service centers, State agencies that make disability
determination for us, OHA, and our other regional offices to provide a
means of determining the effect of the procedures in those sites. Each
test will
[[Page 47471]]
involve a representative mix of geographic areas and caseloads. Before
we commence each test, we will publish a notice in the Federal Register
designating the test site(s) and duration of the test. The notice will
also describe when the test will be conducted alone or in combination
with one or more of the tests we are conducting pursuant to the final
rules ``Testing Modifications to the Disability Determination
Procedures'' which we published in the Federal Register on April 24,
1995 (60 FR 20023) (to be codified at 20 CFR 404.906 and 416.1406). We
will evaluate test outcomes against the objectives of the disability
redesign:
Is the process user friendly?
Does the process maintain a high level of payment quality?
Does the process take less time?
Is the process efficient?
Does the process result in satisfying work for employees?
One of the most important aspects of our evaluation plan is to
measure the effect the procedures used by the adjudication officer has
on overall disability allowance rates. The responsibilities of an
adjudication officer are not designed to change the overall allowance
rates. In order to determine whether the actions taken by adjudication
officers result in processing improvements consistent with expected
outcomes, we will review evaluation results on a quarterly basis. If
our evaluation shows that overall allowance rates increase or decrease
unacceptably, we will cease use of, or make appropriate adjustments to
the prehearing procedures, consistent with this regulatory authority.
In the preamble to the final rules on ``Testing Modifications to
the Disability Determination Procedures,'' we indicated that we plan to
test the adjudication officer prehearing procedures, as well as other
aspects of the disability redesign which do not require regulatory
changes, in combination with one or more of the four models described
in those final rules at some test sites. This continues to be our
intention. Such tests will provide us with a body of information about
each individual part of the redesign, as well as whether the combined
effect of the redesign meets our goals of making the disability process
user friendly, more timely and more accurate and efficient. It will
also provide us with information about program expenditures in
connection with the overall redesign.
Public Comments
These regulatory provisions were published in the Federal Register
as an NPRM on June 9, 1995 (60 FR 30482). We provided the public with a
30-day comment period. We received 21 letters in response to this
notice from a variety of sources, including individuals employed by SSA
as attorney advisors or ALJs, State agencies which make disability
determinations for us, representatives of legal services organizations,
union representatives, and a private attorney.
In general, the comments expressed concerns regarding several
aspects of the proposed rule and requested that we not promulgate the
rule as proposed. Some comments suggested changes to the rules, or
identified provisions in the rule that the commenters believed required
clarification. Some of the comments we received were outside the scope
of the proposed rule, and therefore have not been addressed. The
substantive comments made by the commenters and our responses are set
out below. Because some of the comments were detailed, we condensed,
summarized or paraphrased them. We have, however, tried to summarize
the commenters's views accurately and respond to all of the significant
issues raised by the commenters.
As discussed in our responses to the comments we received, we have
made some changes to the proposed rule to clarify certain aspects of
the rule. However, as most of the comments we received related to
issues that we had considered previously in the development of the
disability redesign plan, we are issuing these final rules with no
substantive changes.
Comment: A number of commenters expressed concern that the proposed
rule would change the responsibilities of claimants and their
representatives for obtaining and submitting evidence.
Response: This is not our intent. Under the provisions of titles II
and XVI of the Act and our existing regulations, a claimant will not be
found disabled unless he or she submits evidence to support his or her
claim for disability benefits or SSI payments based on disability. (See
sections 223(d)(5)(A) and 1614(a)(3)(G) of the Act, and 20 CFR 404.704-
404.705, 404.935, 404.1512, 404.1514, 416.912(c), and 416.1435). The
claimant's responsibility regarding the submission of evidence to
support the claim for benefits is equally the responsibility of a
representative appointed by the claimant. (See 20 CFR 404.1710,
404.1715, 416.1510 and 416.1515).
The disability redesign plan reflects the principle of claimant and
claimant representative responsibility in the submission of evidence
while defining new procedures to promote effective cooperation between
SSA and claimants and their representatives in ensuring the development
of complete evidentiary records. The plan makes the best use of a
representative's services early in the process, and these final rules
do not impose on claimants or their representatives significant
responsibilities that they do not currently have.
Testing use of an adjudication officer as part of the prehearing
procedures we follow will allow us to assess the extent to which having
an adjudication officer work with claimants and representatives in
developing complete evidentiary records will contribute to improved and
more expeditious claims development and, thereby, a more effective
adjudication process.
Comment: Several commenters stated that the proposed rule would
result in different treatment of represented and unrepresented
claimants and encourage representation. Other commenters thought the
proposed rule would discourage representation.
Response: Like the proposed rule, these final rules contain
slightly different procedures in two areas--the development of
additional evidence and the holding of prehearing conferences. These
differences in procedures result from a claimant's decision to proceed
without representation. We believe that the differences in procedures
are warranted in both instances and that these final rules will not
result in unfair treatment of any claimants. The procedures reflected
in these final rules also involve a continuance of existing practices
in our hearing offices.
Our intent is neither to encourage nor discourage representation.
Rather, under these final rules, and as contemplated by the disability
redesign plan, we will remind the claimant of his or her right to
representation. The information regarding the right to representation
provided by the adjudication officer is designed to prevent delays
caused by a lack of understanding of that right and to encourage the
claimant to decide about the need for representation and choice of
representative as soon as practicable. In all cases, however, the
adjudication officer retains his responsibility to ensure complete
evidentiary development with the claimant and any appointed
representative and will work with the claimant and/or the
representative in developing evidence. The adjudication officer will
assist unrepresented claimants and, if necessary, claimant
representatives in securing evidence. Generally, unrepresented
claimants will more frequently need assistance than represented
claimants. However, all
[[Page 47472]]
claimants will be treated fairly and will be assisted if necessary in
meeting their obligations to produce evidence. That approach continues
current practices under which ALJs exercise a heightened responsibility
in assisting unrepresented claimants.
The adjudication officer and the claimant's representative will
participate in an informal conference. One of the purposes of this
informal conference is to attempt to reach proposed agreements for the
approval of the ALJ regarding the issues which are not in dispute and
those issues proposed for the hearing. However, the adjudication
officer may conduct an informal conference with an unrepresented
claimant, the main purpose of which will be to explain to the claimant
the issues which may arise at the hearing. In addition, if a claimant
obtains representation after the adjudication officer has concluded
that the case is ready for a hearing, the ALJ will return the case for
an informal conference with the adjudication officer. Under current
practice, personnel in our OHA hearing offices generally do not request
unrepresented claimants to participate in prehearing conferences, and
prehearing conferences are sometimes scheduled after a claimant who was
unrepresented obtains representation. The final rules do not contain
specific criteria regarding when an adjudication officer will hold an
informal conference with an unrepresented claimant so that the
adjudication officer will have some discretion in this area.
An essential function of the adjudication officer is to provide a
point of contact for unrepresented claimants in order to explain the
hearing process and the right to representation. The adjudication
officer also will give unrepresented claimants referral sources for
obtaining representation and copies of documents needed in appointing a
representative. Under current practice, personnel in our OHA hearing
offices remind claimants about their right to representation and
provide information about referral sources in acknowledging requests
for a hearing. The purpose of those actions, like the similar actions
to be taken by the adjudication officers, is to encourage prompt and
fully informed decisions about securing representation. There is no
attempt on our part to encourage or discourage representation. Under
the redesigned process, as under the current process, the decision to
proceed with or without representation will continue to be a decision
for the claimant to make.
Comment: Some commenters thought that the proposed rule would
create a new step in the administrative review process, would reduce
claimant access to an ALJ, and delay the adjudication of claims.
Response: An overriding purpose of the disability redesign plan is
to shorten and expedite the administrative process. To reach that goal,
the plan contemplates eventual elimination of the reconsideration step
and the creation of the adjudication officer position. Use of an
adjudication officer is not intended to serve as a replacement for
reconsideration, as some commenters thought. Instead, the disability
redesign plan contemplates the elimination of reconsideration because
the initial determination will be the result of a process that ensures
a more fully developed evidentiary record and provides an opportunity
for the claimant to present additional evidence at a predecision
interview. When a claimant is dissatisfied with the initial
determination and requests an ALJ hearing, the adjudication officer's
role will be to expedite the completion of any necessary prehearing
activities and to issue, where warranted by the evidence, a decision
which is wholly favorable to the claimant without the need for a
hearing.
Under these final rules, adjudication officers will not have
authority to deny claims or to dismiss requests for an ALJ hearing. The
intent of the redesign plan, and these final rules, is to increase
claimant access to the ALJ by reducing the time required to receive an
ALJ hearing in cases in which a hearing is necessary. Moreover, these
final rules preserve a claimant's right to a hearing which will be
conducted by an ALJ, if he or she is dissatisfied with the adjudication
officer's decision.
Comment: Other commenters expressed concern that the proposed rule
would force ALJs to hear cases that are improperly developed. These
commenters stated that the ALJ's authority to consider additional
evidence or issues should be clarified.
Response: We do not agree with the commenters' concerns that these
rules would force ALJs to hear and decide improperly developed cases.
Sections 404.943(b)(4) and 416.1443(b)(4) of the proposed rule stated
that at the point at which a case is referred for a hearing, ``the
administrative law judge conducts all further hearing proceedings,
including scheduling and holding a hearing and issuing a decision or
dismissal of your request for a hearing.'' New Secs. 404.943 and
416.1443 do not deny to an ALJ any authority he or she may exercise
under existing regulations. In order to make this point clearer,
however, we have clarified in these final rules that the proceeding an
ALJ may conduct can include the development of additional evidence.
Comment: Several commenters stated that the provision of the
proposed rule providing that the case would be returned to the
adjudication officer if the claimant obtained representation after the
AO concluded that the case was ready for a hearing, would create delays
and discourage representation.
Response: We do not agree with the commenters, and it is certainly
not our intent to create delays or to discourage representation. We
believe that this procedure will enable us to interact with the
claimant's representative in a better and more timely manner and that
the AO, working with the claimant's representative, will be able to
ensure that the evidentiary record is as complete as possible prior to
the hearing. By ensuring the development of a complete record before
the hearing, we intend that this procedure will expedite both the
hearing and the issuance of a hearing decision.
Comment: A number of commenters thought that the proposed rule was
purposely vague or unclear on how certain issues will be handled in the
process, e.g., the return of cases by an ALJ to an adjudication officer
and whether and how new evidence and issues could be considered by an
ALJ.
Response: As noted above and in the NPRM (60 FR 30482, 30483), new
Secs. 404.943 and 416.1443 establish authority to test having an
adjudication officer be the focal point of prehearing activities, as
described in the disability redesign plan. The redesign plan set forth
a broad description of a new disability process and of the adjudication
officer position and left operational, organizational and other details
of the process to be developed (59 FR 18188). Our intent is not to be
vague or unclear; rather, our intent is to authorize testing in which
detailed operating procedures may be addressed and developed
incrementally. As noted above, however, we have clarified in these
final rules that the ALJ may consider additional evidence, and is not
limited to the record developed by the claimant, his or her
representative and the adjudication officer. We also have clarified
that the written agreements prepared by the adjudication officer with
the claimant's representative are only proposed agreements for the
approval of the ALJ. These agreements are subject to acceptance by and/
or further development by the ALJ at the hearing. In addition, we have
clarified that the ALJ may return the case to the adjudication officer
for further development or to obtain additional
[[Page 47473]]
evidence at any point on or before the date of the hearing.
Comment: Several commenters objected to a perceived acceleration of
the implementation of the adjudication officer, particularly before
other parts of the disability redesign were in place, including the
disability claims manager position called for in the disability
redesign plan.
Response: These final rules establish authority to test the use of
an adjudication officer; they do not establish the authority to
implement the use of the adjudication officer position on a nationwide
basis. The purpose of the rules is to test the use of an adjudication
officer position and its procedures in a variety of sites and
circumstances. We will test the position alone and in combination with
one or more of the tests we are conducting pursuant to the final rules
we recently published on ``Testing Modifications to the Disability
Determination Procedures'' (60 FR 20023). The modifications to be
tested under those rules include the position of disability claims
manager and elimination of the reconsideration level of the existing
disability claims process.
Comment: Two commenters expressed the view that DDS employees are
best suited for the adjudication officer position; five other
commenters stated that the adjudication officer should be an attorney
or have legal training.
Response: Comments regarding the qualifications of the adjudication
officer, throughout the planning process as well as in response to the
NPRM, essentially have fallen into the two categories reflected above.
The Commissioner has made a decision that for testing purposes the
adjudication officer may be an employee of SSA or a State agency that
makes disability determinations for us. The adjudication officer will
be expected to bring relevant experience to the position. While legal
experience is deemed desirable, it is not required, provided the
individual is qualified to communicate effectively in informal
conferences and in writing. The issues regarding whether the
adjudication officer must have the qualifications for an attorney
position are issues upon which testing information is required.
Comment: Two commenters expressed the view that the adjudication
officer should be located in OHA offices only.
Response: We have not adopted this comment. We believe the testing
of the adjudication officer position should not be limited to OHA
sites. Testing the position in a variety of sites will provide
information on the most effective location(s) for the adjudication
officers. We also wish to assess the feasibility of increasing
accessibility to claimants and their representatives by locating the
adjudication officers in community based sites.
Comment: Some of the commenters thought the proposed rule would
violate a claimant's right to due process under the Constitution and a
full and fair hearing under the Act if the rule precluded the ALJ from
considering new evidence or issues at the hearing.
Response: We do not agree that these rules violate a claimant's
right to due process under the Constitution or a full and fair hearing
under the Act in any way. These final rules do not preclude or
interfere with a claimant's right to a full and fair hearing before an
ALJ. Rather, the claimant's right to a hearing conducted by an ALJ is
explicitly preserved even in instances in which the adjudication
officer makes a wholly favorable decision. The preservation of the
claimant's right to an ALJ hearing is consistent with due process and
equal protection under the Constitution. Moreover, the due process
concerns expressed by the commenters were premised on the commenters'
belief that the proposed rule limited the ALJ's ability to consider
additional evidence or issues at the hearing. As we have discussed
above and clarified in these final rules, the ALJ's ability to consider
additional evidence or issues under these final rules remains the same
as it is under our current regulations.
Comment: A number of commenters expressed the view that the
adjudication officer is unnecessary because of the availability of
preferable alternatives, specifically the short-term disability
initiatives we are currently undertaking. Other commenters requested
that we clarify the relationship between the adjudication officer and
the attorney advisors in OHA who have been temporarily authorized to
make fully favorable decisions in certain instances pursuant to the
short-term disability initiatives.
Response: The adjudication officer is part of SSA's long term plans
for redesigning and fundamentally improving the disability claim
process. Our short-term initiatives are designed to process pending
workloads more efficiently, not to bring about the kind of changes that
will fundamentally improve the disability claim process.
The short-term disability initiatives include final rules issued on
June 30, 1995 (60 FR 34126) which temporarily authorize attorney
advisors in OHA to conduct certain prehearing proceedings and, where
appropriate based on the documentary record developed as a result of
these proceedings, to issue decisions that are wholly favorable to the
parties to the hearing. Although there are similarities in functions
under this short-term initiative and the adjudication officer process,
there are substantial differences as well. The primary focus of the
attorney advisor process is on the rapid identification of pending
cases in which a wholly favorable decision can be made without a
hearing. The adjudication officer also will identify claims in which a
wholly favorable decision may be made, but the adjudication officer's
functions are more broadly concerned with the full range of prehearing
activities, particularly development of the record.
Comment: A few commenters expressed concern that the proposed rule
provided no study protocol.
Response: We will have a study and evaluation plan in place to
assure a valid and accurate assessment of the degree to which use of an
adjudication officer attains the goals we wish to achieve before any
national implementation of the process. The approach we are following
in this regard is similar to the approach we are following in the
related testing to be conducted under final rules on ``Testing
Modifications to the Disability Determination Procedures'' (60 FR
20023, 20025).
Comment: Some commenters expressed concern that the proposed rule
provided no clearly defined decision-making standard.
Response: Adjudication officers will be bound by the Social
Security Act, the regulations, and Social Security Rulings, including
Social Security Acquiescence Rulings. They will also rely on other
guidance published by the agency. This is consistent with established
standards of decision making in SSA.
Comment: Other commenters expressed concern that the proposed rule
provided no specific quality assurance review procedures.
Response: We are establishing an intensive quality assurance review
program that will provide us with information regarding the quality of
the adjudication officer work process, as well as the procedures, sites
and the assumptions set out in detail in the disability redesign plan.
In addition, the final rules authorize the Appeals Council to review
the adjudication officer's decision on its own motion. No additional
changes in these final rules or existing regulations are required to
allow us to subject the decisions made by adjudication officers to
quality assurance review procedures.
[[Page 47474]]
Comment: Several commenters expressed concerns that the
adjudication officer position as proposed for testing violated Federal/
State principles applicable in the administration of the Social
Security disability programs, including the principle that States
cannot make decisions.
Response: We are of the opinion that sections 205(b)(1) and
221(a)(1) of the Act give the Commissioner, or her agents, broad
authority to determine rights to benefits under the Act. These sections
contain no language specifically excluding State DDS employees who
adjudicate disability claims for us from acting as agents of the
Commissioner in this regard. Moreover, having DDS employees as
adjudication officers is consistent with SSA's current regulations at
20 CFR 404.1613 and 416.1013 governing Federal and State jurisdiction
with respect to disability determination workloads and adding new
classes of cases and decision-makers.
Comment: Some commenters also expressed concern that the
adjudication officer process would require Federal oversight of
decisions made by employees of State agencies.
Response: The Social Security disability programs under titles II
and XVI of the Act establish a Federal program which includes a role
for the States in the adjudication process. As in all other areas of
the disability programs, the adjudication officer will be subject to
SSA oversight, both in effectuating the adjudication officer's wholly
favorable decisions and in quality assurance functions.
Comment: Several commenters expressed the view that the
adjudication officer process will increase administrative and program
costs, particularly on the basis that the process will not decrease OHA
workloads unless it results in the allowance of many cases.
Response: We are conducting these tests to determine whether use of
an adjudication officer will have an effect on program and
administrative expenditures. The adjudication officer's function is to
provide a focal point for all prehearing activities. While adjudication
officers may issue wholly favorable decisions where warranted, they can
contribute to the improvement of the disability process in other ways
as well. Use of an adjudication officer is not designed to change the
overall allowance rates. Moreover, as set out in the NPRM and above, in
order to determine whether the prehearing procedures result in
processing improvements consistent with expected outcomes, we will
review evaluation results on a quarterly basis and make appropriate
adjustments to, or cease use of, the prehearing procedures consistent
with this regulatory authority if there is evidence that overall
allowance rates increase or decrease unacceptably.
Comment: One commenter suggested changes to the proposed rules to
clarify in several places in the regulations that adjudication officers
may only issue wholly favorable decisions.
Response: We believe these final rules clearly limit the
adjudication officers to making wholly favorable decisions, and do not
require further clarification as suggested by the commenter.
Comment: Two commenters expressed the view that the 30-day comment
period was too short.
Response: We do not agree that a longer comment period was
warranted. We provided a shorter comment period than the 60-day period
we usually provide because of the salutary effect we expect these 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 also believe that the 30-day period is appropriate in
this instance because we previously provided the public an extended
opportunity to comment on all aspects of the disability redesign plan,
including the establishment of the adjudication officer position.
Comment: One commenter suggested that we add a sentence in
Sec. 404.943(b)(1) to clarify that a claimant's representative will be
allowed to participate in the interview with the claimant.
Response: We have not adopted this comment because the final rules
we are issuing provide authority for us to test the use of an
adjudication officer. They do not change in any way the rules we follow
regarding representation. Our existing regulations at 20 CFR 404.1705
and 416.1505 provide that claimants may obtain representation at any
time. We notify the claimant's representative of any administrative
actions we take, and we also afford the representative the opportunity
to participate in any meetings or interviews which we conduct with the
claimant he or she represents.
Comment: We were also asked by a commenter to clarify in
Sec. 404.943(a)(2) of the regulations that some persons would be
assigned to a control group for purposes of the tests we will conduct
under these final rules.
Response: Although we will have a control group, cases in this
group will be processed in accordance with our current regulations, and
the control group will be used to provide comparative data when we
evaluate the records of cases that were used in our tests. For these
reasons, a specific reference to the control group procedures is not
needed in these final rules, and the change suggested by the commenter
has not been made.
Comment: Two commenters asked us to clarify whether the
adjudication officer would schedule a date for the hearing with an ALJ.
Response: The answer to this question is no. These final rules do
not change our current procedures under which the ALJ schedules the
hearing. However, we will use two new methods in conjunction with the
tests we will conduct under these final rules to facilitate the ability
of the ALJ to schedule a hearing. Under the first method, before the
prehearing procedures are completed, the adjudication officer will ask
the claimant or the claimant's representative to provide two or three
dates within the following 35-50 days on which the claimant and his or
her representative could be available for a hearing. These dates will
be part of the record the adjudication officer forwards to the hearing
office, where the case will be reviewed and a hearing scheduled for one
of the dates in the file. The second method which we intend to test is
one where the adjudication officer will arrange the time and date for
the hearing by having the adjudication officer match a time acceptable
to the claimant and his or her representative with an available hearing
time out of a block of times for a hearing provided by the hearing
office. The block of times will be the time periods within the
following 2 to 3 months when time is available to hold hearings. The
adjudication officer, however, will not access individual ALJ
scheduling calendars and will not schedule a case with a specific ALJ.
Under either procedure, the hearing office will prepare and send out
the hearing notice 20 days prior to the hearing. The objective of both
methods is to ensure that the hearing is scheduled and held in a timely
and efficient manner following the conclusion of the prehearing
procedures.
Comment: One commenter requested that the provision in
Sec. 404.943(c)(1) be revised to clarify the authority of the
adjudication officer to issue a decision after a claim has been
referred to an ALJ, but before the hearing is held.
Response: We have revised Secs. 404.943(b)(4) and 416.1443(b)(4) to
clarify that an ALJ may return a claim to the adjudication officer for
further development prior to the hearing. Under
[[Page 47475]]
the final rules, the ALJ may return the claim to the adjudication
officer on or before the date of the hearing to complete the
development of the evidence and for such other action as necessary. If
the ALJ exercises this authority, the adjudication officer may make a
decision that is wholly favorable to the claimant if it is warranted by
the evidence, or the adjudication officer may refer the claim to the
ALJ when the additional prehearing procedures are completed.
Comment: One commenter requested us to clarify that, when the
claimant or representative is unable to agree with the adjudication
officer that the development of the evidence is complete, the
adjudication officer will note the disagreement and refer the claim to
the administrative law judge for further proceedings.
Response: We agree with the comment and have clarified
Sec. Sec. 404.943(b)(4) and 416.1443(b)(4).
Regulatory Procedures
Executive Order 12866
We have consulted with the Office of Management and Budget (OMB)
and determined that these final rules meet the criteria for a
significant regulatory action under Executive Order 12866. Thus, they
were subject to OMB review. These rules do not adversely affect State,
local or tribal governments. The administrative costs of the tests will
be covered within budgeted resources. No program costs are expected to
result from processing of the test cases. We have not, therefore,
prepared a cost/benefit analysis under Executive Order 12866.
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 Public Law 96-354, the Regulatory Flexibility Act, is
not required.
Paperwork Reduction Act
These regulations impose no new reporting or record keeping
requirements requiring OMB clearance.
(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social
Security-Disability Insurance; 96.006, 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: August 23, 1995.
Shirley 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- )
Subpart J--[Amended]
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 702(a)(5) of the Social Security Act (42 U.S.C. 401(j), 405 (a),
(b), and (d)-(h), 421(d), 425 and 902(a)(5); 31 U.S.C. 3720A).
2. New Sec. 404.943 is added under the undesignated center heading
``Hearing Before an Administrative Law Judge'' to read as follows:
Sec. 404.943 Responsibilities of the adjudication officer.
(a)(1) General. Under the procedures set out in this section we
will test modifications to the procedures we follow when you file a
request for a hearing before an administrative law judge in connection
with a claim for benefits based on disability where the question of
whether you are under a disability as defined in Sec. 404.1505 is at
issue. These modifications will enable us to test the effect of having
an adjudication officer be your primary point of contact after you file
a hearing request and before you have a hearing with an administrative
law judge. The tests may be conducted alone, or in combination with the
tests of the modifications to the disability determination procedures
which we conduct under Sec. 404.906. The adjudication officer, working
with you and your representative, if any, will identify issues in
dispute, develop evidence, conduct informal conferences, and conduct
any other prehearing proceeding as may be necessary. The adjudication
officer has the authority to make a decision wholly favorable to you if
the evidence so warrants. If the adjudication officer does not make a
decision on your claim, your hearing request will be assigned to an
administrative law judge for further proceedings.
(2) Procedures for cases included in the tests. Prior to commencing
tests of the adjudication officer position in selected site(s), we will
publish a notice in the Federal Register. The notice will describe
where the specific test site(s) will be and the duration of the
test(s). We will also state whether the tests of the adjudication
officer position in each site will be conducted alone, or in
combination with the tests of the modifications to the disability
determination procedures which we conduct under Sec. 404.906. The
individuals who participate in the test(s) will be assigned randomly to
a test group in each site where the tests are conducted.
(b)(1) Prehearing procedures conducted by an Adjudication Officer.
When you file a request for a hearing before an administrative law
judge in connection with a claim for benefits based on disability where
the question of whether you are under a disability as defined in
Sec. 404.1505 is at issue, the adjudication officer will conduct an
interview with you. The interview may take place in person, by
telephone, or by videoconference, as the adjudication officer
determines is appropriate under the circumstances of your case. If you
file a request for an extension of time to request a hearing in
accordance with Sec. 404.933(c), the adjudication officer may develop
information on, and may decide where the adjudication officer issues a
wholly favorable decision to you that you had good cause for missing
the deadline for requesting a hearing. To determine whether you had
good cause for missing the deadline, the adjudication officer will use
the standards contained in Sec. 404.911.
(2) Representation. The adjudication officer will provide you with
information regarding the hearing process, including your right to
representation. As may be appropriate, the adjudication officer will
provide you with referral sources for representation, and give you
copies of necessary documents to facilitate the appointment of a
representative. If you have a representative, the adjudication officer
will conduct an informal conference with the representative, in person
or by telephone, to identify the issues in dispute and prepare proposed
written agreements for the approval of the administrative law judge
regarding those issues which are not in dispute and those issues
proposed for the
[[Page 47476]]
hearing. If you decide to proceed without representation, the
adjudication officer may hold an informal conference with you. If you
obtain representation after the adjudication officer has concluded that
your case is ready for a hearing, the administrative law judge will
return your case to the adjudication officer who will conduct an
informal conference with you and your representative.
(3) Evidence. You, or your representative, may submit, or may be
asked to obtain and submit, additional evidence to the adjudication
officer. As the adjudication officer determines is appropriate under
the circumstances of your case, the adjudication officer may refer the
claim for further medical or vocational evidence.
(4) Referral for a hearing. The adjudication officer will refer the
claim to the administrative law judge for further proceedings when the
development of evidence is complete, and you or your representative
agree that a hearing is ready to be held. If you or your representative
are unable to agree with the adjudication officer that the development
of evidence is complete, the adjudication officer will note your
disagreement and refer the claim to the administrative law judge for
further proceedings. At this point, the administrative law judge
conducts all further hearing proceedings, including scheduling and
holding a hearing (Sec. 404.936), considering any additional evidence
or arguments submitted (Secs. 404.935, 404.944, 404.949, 404.950), and
issuing a decision or dismissal of your request for a hearing, as may
be appropriate (Secs. 404.948, 404.953, 404.957). In addition, if the
administrative law judge determines on or before the date of your
hearing that the development of evidence is not complete, the
administrative law judge may return the claim to the adjudication
officer to complete the development of the evidence and for such other
action as necessary.
(c)(1) Wholly favorable decisions issued by an adjudication
officer. If, after a hearing is requested but before it is held, the
adjudication officer decides that the evidence in your case warrants a
decision which is wholly favorable to you, the adjudication officer may
issue such a decision. For purposes of the tests authorized under this
section, the adjudication officer's decision shall be considered to be
a decision as defined in Sec. 404.901. If the adjudication officer
issues a decision under this section, it will be in writing and will
give the findings of fact and the reasons for the decision. The
adjudication officer will evaluate the issues relevant to determining
whether or not you are disabled in accordance with the provisions of
the Social Security Act, the rules in this part and part 422 of this
chapter and applicable Social Security Rulings. For cases in which the
adjudication officer issues a decision, he or she may determine your
residual functional capacity in the same manner that an administrative
law judge is authorized to do so in Sec. 404.1546. The adjudication
officer may also evaluate the severity of your mental impairments in
the same manner that an administrative law judge is authorized to do so
under Sec. 404.1520a. The adjudication officer's decision will be based
on the evidence which is included in the record and, subject to
paragraph (c)(2) of this section, will complete the actions that will
be taken on your request for hearing. A copy of the decision will be
mailed to all parties at their last known address. We will tell you in
the notice that the administrative law judge will not hold a hearing
unless a party to the hearing 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 adjudication
officer is mailed.
(2) Effect of a decision by an adjudication officer. A decision by
an adjudication officer which is wholly favorable to you under this
section, and notification thereof, completes the administrative action
on your request for hearing and is binding on all parties to the
hearing and not subject to further review, unless--
(i) You or another party requests that the hearing continue, as
provided in paragraph (c)(1) of this section;
(ii) The Appeals Council decides to review the decision on its own
motion under the authority provided in Sec. 404.969;
(iii) The decision is revised under the procedures explained in
Secs. 404.987 through 404.989; or
(iv) In a case remanded by a Federal court, the Appeals Council
assumes jurisdiction under the procedures in Sec. 404.984.
(3) Fee for a representative's services. The adjudication officer
may authorize a fee for your representative's services if the
adjudication officer makes a decision on your claim that is wholly
favorable to you, and you are represented. The actions of, and any fee
authorization made by, the adjudication officer with respect to
representation will be made in accordance with the provisions of
subpart R of this part.
(d) Who may be an adjudication officer. The adjudication officer
described in this section may be an employee of the Social Security
Administration or a State agency that makes disability determinations
for us.
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
1. The authority citation for subpart N continues to read as
follows:
Authority: Sec. 702(a)(5), 1631, and 1633 of the Social Security
Act (42 U.S.C. 902(a)(5), 1383, and 1383b).
2. New Sec. 416.1443 is added under the undesignated center heading
``Hearing Before an Administrative Law Judge'' to read as follows:
Sec. 416.1443 Responsibilities of the adjudication officer.
(a)(1) General. Under the procedures set out in this section we
will test modifications to the procedures we follow when you file a
request for a hearing before an administrative law judge in connection
with a claim for benefits based on disability where the question of
whether you are under a disability as defined in Secs. 416.905 and
416.906 is at issue. These modifications will enable us to test the
effect of having an adjudication officer be your primary point of
contact after you file a hearing request and before you have a hearing
with an administrative law judge. The tests may be conducted alone, or
in combination with the tests of the modifications to the disability
determination procedures which we conduct under Sec. 416.1406. The
adjudication officer, working with you and your representative, if any,
will identify issues in dispute, develop evidence, conduct informal
conferences, and conduct any other prehearing proceeding as may be
necessary. The adjudication officer has the authority to make a
decision wholly favorable to you if the evidence so warrants. If the
adjudication officer does not make a decision on your claim, your
hearing request will be assigned to an administrative law judge for
further proceedings.
(2) Procedures for cases included in the tests. Prior to commencing
tests of the adjudication officer position in selected site(s), we will
publish a notice in the Federal Register. The notice will describe
where the specific test site(s) will be and the duration of the
test(s). We will also state whether the tests of the adjudication
officer position in each site will be conducted alone, or in
combination with the tests of the modifications to the disability
determination procedures which we conduct under Sec. 416.1406. The
individuals who participate in the
[[Page 47477]]
test(s) will be assigned randomly to a test group in each site where
the tests are conducted.
(b)(1) Prehearing procedures conducted by an Adjudication Officer.
When you file a request for a hearing before an administrative law
judge in connection with a claim for benefits based on disability where
the question of whether you are under a disability as defined in
Secs. 416.905 and 416.906 is at issue, the adjudication officer will
conduct an interview with you. The interview may take place in person,
by telephone, or by videoconference, as the adjudication officer
determines is appropriate under the circumstances of your case. If you
file a request for an extension of time to request a hearing in
accordance with Sec. 416.1433(c), the adjudication officer may develop
information on, and may decide where the adjudication officer issues a
wholly favorable decision to you that you had good cause for missing
the deadline for requesting a hearing. To determine whether you had
good cause for missing the deadline, the adjudication officer will use
the standards contained in Sec. 416.1411.
(2) Representation. The adjudication officer will provide you with
information regarding the hearing process, including your right to
representation. As may be appropriate, the adjudication officer will
provide you with referral sources for representation, and give you
copies of necessary documents to facilitate the appointment of a
representative. If you have a representative, the adjudication officer
will conduct an informal conference with the representative, in person
or by telephone, to identify the issues in dispute and prepare proposed
written agreements for the approval of the administrative law judge
regarding those issues which are not in dispute and those issues
proposed for the hearing. If you decide to proceed without
representation, the adjudication officer may hold an informal
conference with you. If you obtain representation after the
adjudication officer has concluded that your case is ready for a
hearing, the administrative law judge will return your case to the
adjudication officer who will conduct an informal conference with you
and your representative.
(3) Evidence. You, or your representative, may submit, or may be
asked to obtain and submit, additional evidence to the adjudication
officer. As the adjudication officer determines is appropriate under
the circumstances of your case, the adjudication officer may refer the
claim for further medical or vocational evidence.
(4) Referral for a hearing. The adjudication officer will refer the
claim to the administrative law judge for further proceedings when the
development of evidence is complete, and you or your representative
agree that a hearing is ready to be held. If you or your representative
are unable to agree with the adjudication officer that the development
of evidence is complete, the adjudication officer will note your
disagreement and refer the claim to the administrative law judge for
further proceedings. At this point, the administrative law judge
conducts all further hearing proceedings, including scheduling and
holding a hearing, (Sec. 416.1436), considering any additional evidence
or arguments submitted (Secs. 416.1435, 416.1444, 416.1449, 416.1450),
and issuing a decision or dismissal of your request for a hearing, as
may be appropriate (Secs. 416.1448, 416.1453, 416.1457). In addition,
if the administrative law judge determines on or before the date of
your hearing that the development of evidence is not complete, the
administrative law judge may return the claim to the adjudication
officer to complete the development of the evidence and for such other
action as necessary.
(c)(1) Wholly favorable decisions issued by an adjudication
officer. If, after a hearing is requested but before it is held, the
adjudication officer decides that the evidence in your case warrants a
decision which is wholly favorable to you, the adjudication officer may
issue such a decision. For purposes of the tests authorized under this
section, the adjudication officer's decision shall be considered to be
a decision as defined in Sec. 416.1401. If the adjudication officer
issues a decision under this section, it will be in writing and will
give the findings of fact and the reasons for the decision. The
adjudication officer will evaluate the issues relevant to determining
whether or not you are disabled in accordance with the provisions of
the Social Security Act, the rules in this part and part 422 of this
chapter and applicable Social Security Rulings. For cases in which the
adjudication officer issues a decision, he or she may determine your
residual functional capacity in the same manner that an administrative
law judge is authorized to do so in Sec. 416.946. The adjudication
officer may also evaluate the severity of your mental impairments in
the same manner that an administrative law judge is authorized to do so
under Sec. 416.920a. The adjudication officer's decision will be based
on the evidence which is included in the record and, subject to
paragraph (c)(2) of this section, will complete the actions that will
be taken on your request for hearing. A copy of the decision will be
mailed to all parties at their last known address. We will tell you in
the notice that the administrative law judge will not hold a hearing
unless a party to the hearing 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 adjudication
officer is mailed.
(2) Effect of a decision by an adjudication officer. A decision by
an adjudication officer which is wholly favorable to you under this
section, and notification thereof, completes the administrative action
on your request for hearing and is binding on all parties to the
hearing and not subject to further review, unless--
(i) You or another party requests that the hearing continue, as
provided in paragraph (c)(1) of this section;
(ii) The Appeals Council decides to review the decision on its own
motion under the authority provided in Sec. 416.1469;
(iii) The decision is revised under the procedures explained in
Secs. 416.1487 through 416.1489; or
(iv) In a case remanded by a Federal court, the Appeals Council
assumes jurisdiction under the procedures in Sec. 416.1484.
(3) Fee for a representative's services. The adjudication officer
may authorize a fee for your representative's services if the
adjudication officer makes a decision on your claim that is wholly
favorable to you, and you are represented. The actions of, and any fee
authorization made by, the adjudication officer with respect to
representation will be made in accordance with the provisions of
subpart O of this part.
(d) Who may be an adjudication officer. The adjudication officer
described in this section may be an employee of the Social Security
Administration or a State agency that makes disability determinations
for us.
[FR Doc. 95-22579 Filed 9-12-95; 8:45 am]
BILLING CODE 4190-29-P