[Federal Register Volume 68, Number 22 (Monday, February 3, 2003)]
[Rules and Regulations]
[Pages 5210-5221]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-2402]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Regulations Nos. 4 and 16]
RIN 0960-AE97


Federal Old-Age, Survivors and Disability Insurance and 
Supplemental Security Income for the Aged, Blind, and Disabled; 
Administrative Review Process; Video Teleconferencing Appearances 
Before Administrative Law Judges of the Social Security Administration

AGENCY: Social Security Administration (SSA).

ACTION: Final rules with request for comment.

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SUMMARY: We are revising our rules to allow us to conduct hearings 
before administrative law judges (ALJs) at which a party or parties to 
the hearing and/or a witness or witnesses may appear before the ALJ by 
video teleconferencing (VTC). The revised rules provide that if we 
schedule your hearing as one at which you would appear by VTC, rather 
than in person, and you object to use of that procedure, we will 
reschedule your hearing as one at which you may appear in person before 
the ALJ. These revisions will provide us with greater flexibility in 
scheduling and holding hearings, improve hearing process efficiency, 
and extend another service delivery option to individuals requesting a 
hearing. Although we are issuing these rules as final rules, we are 
also requesting comments on a provision of the rules that involves a 
significant change from the proposed rules we previously published 
concerning our use of VTC.

DATES: These rules are effective March 5, 2003. To be sure your 
comments are considered, we must receive them by April 4, 2003.

ADDRESSES: You may give us your comments by using our Internet site 
facility (i.e., Social Security Online) at http://www.ssa.gov/regulations; by e-mail to http://[email protected]; by telefax to 
(410) 966-2830; or by letter to the Commissioner of Social Security, PO 
Box 17703, Baltimore, MD 21235-7703. You may also deliver them to the 
Office of Process and Innovation Management, Social Security 
Administration, L2109 West Low Rise Building, 6401 Security Boulevard, 
Baltimore, MD 21235-6401 between 8 a.m. and 4:30 p.m. on regular 
business days. Comments are posted on our internet site, or you may 
inspect them physically on regular business days by making arrangements 
with the contact person shown below.

FOR FURTHER INFORMATION CONTACT: Martin Sussman, Regulations Officer, 
Social Security Administration, Office of Regulations, 100 Altmeyer 
Building, 6401 Security Boulevard, Baltimore, MD 21235-6401, (410) 965-
1767 or TTY 1-800-966-5906, for information about this notice. 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.ssa.gov.

SUPPLEMENTARY INFORMATION:

Background

    Nationally, over 500,000 requests for a hearing before an ALJ are 
filed with us each year. Hearings have traditionally been held with all 
participants (the party(ies) to the hearing, the ALJ, any 
representative(s) appointed by the party(ies), any witness(es), any 
translator(s), and any other persons whom the ALJ considers necessary 
or proper to the hearing) present at the same location: either a 
hearing office or a remote hearing site. ALJs hold

[[Page 5211]]

hearings at remote hearing sites, which are generally at least 75 miles 
from a hearing office, to accommodate those individuals who do not live 
near a hearing office.
    Approximately 40 percent of hearings are held at remote hearing 
sites.
    To make travel to remote hearing sites as cost effective as 
possible, hearing offices wait until they have a sufficient number of 
requests for hearing to schedule a full day or, if travel to a remote 
hearing site requires an overnight stay, several days of hearings. 
Because of the need to accrue a docket, ALJs travel to some remote 
hearing sites infrequently. Because many remote hearing sites are in 
less-populous areas, it can be difficult to find a needed medical and/
or vocational expert witness(es) to travel to these sites, and this 
difficulty may further delay scheduling a hearing. ALJs also travel 
from their assigned hearing offices to assist other hearing offices 
when the need arises.
    Whether to conduct hearings at remote sites or assist other hearing 
offices, the time ALJs spend traveling could be used to perform other 
adjudicatory responsibilities.
    In 1996 we published Social Security Ruling (SSR) 96-10p, 
Electronic Service Delivery (61 FR 68808, December 30 1996). In SSR 96-
10p, we explained that we planned to explore ways for claimants to 
interact with us electronically. We also explained that we would not 
require claimants to work with us electronically, but that we would use 
technology to provide options for different service deliveries. VTC was 
one of the technologies we identified as having the potential to 
improve claimant service. VTC provides real-time transmission of audio 
and video between two or more locations and permits individuals to see, 
hear, and speak with each other as though they were at the same 
location.
    As we explained in the Notice of Proposed Rulemaking (NPRM) that we 
published concerning these rules (66 FR 1059, January 5, 2001), we 
decided to propose conducting hearings by VTC based on testing 
conducted in the State of Iowa that demonstrated that VTC procedures 
can be effectively used where large scale, high quality VTC networks 
exist and claimants want to participate in VTC procedures because doing 
so reduces the distances they must travel to their hearings. In 
reaching that decision, we considered and discounted the results at two 
other test sites, Albuquerque-El Paso and Huntington-Prestonburg, 
because the tests at those sites offered no travel benefits to the 
claimants and resulted in low participation rates.
    In the testing of VTC that we have been conducting since 1996 in 
the State of Iowa, which has a large VTC network, no one electing use 
of VTC procedures has had to travel more than about 20 miles from his 
or her home to have a hearing, and the travel typically required of 
claimants currently is only about 5 miles. The rate of claimant 
participation in the Iowa test currently exceeds 95 percent; that is, 
over 95 percent of the claimants offered a hearing using VTC procedures 
agree to the use of those procedures.
    In a survey of participants in the Iowa test, a large percentage of 
the respondents rated hearings using VTC procedures as ``convenient'' 
or ``very convenient,'' and overall service as either ``good'' or 
``very good.'' Test data showed that processing time for these hearings 
was substantially less than for hearings conducted in person at remote 
sites during the same time period, and that the ratio of hearings held 
to hearings scheduled was significantly higher for hearings using VTC 
procedures than for hearings conducted in person. Being able to hold 
hearings as scheduled increases our efficiency because we do not have 
to recontact the individual to determine why he or she did not appear 
at a scheduled hearing nor reschedule the hearing (which can be time 
consuming, especially when an expert witness(es) has been scheduled to 
testify). Further, an ALJ does not spend time waiting for someone who 
does not appear, as would be the case in a hearing conducted in person 
at a remote site.
    Based on all these factors--claimant satisfaction, ability to 
provide more timely hearings, savings in ALJ travel time, faster case 
processing, and higher ratio of hearings held to hearings scheduled--we 
decided that conducting hearings by VTC is an efficient service 
delivery alternative. We also decided that scheduling a hearing for use 
of VTC, rather than asking someone to elect a hearing using VTC, as we 
have been doing in our testing of VTC, would improve hearing office 
efficiency and would permit us to provide faster access to a hearing 
for some individuals.
    We plan to begin using VTC facilities in the servicing area of a 
hearing office when the Associate Commissioner for Hearings and Appeals 
determines that appearances at hearings conducted in the area can be 
conducted more efficiently by VTC than in person. We foresee initially 
scheduling VTC appearances where absent use of VTC:
    [sbull] We would need to accrue a docket for a remote hearing site.
    [sbull] An ALJ would need to travel to assist another hearing 
office.
    [sbull] An expert witness(es) or appropriate medical specialist(s) 
would not be available for a hearing site. (In such a case, all 
participants could be at different locations; for example, the ALJ at a 
hearing office, the individual at a remote hearing site or another 
hearing office, and the expert witness(es) at a third location.)
    At first, we plan to locate most remote sites for using VTC to 
conduct appearances either in space where we have a long-term lease or 
in another federal building. We are investigating sharing VTC 
facilities with other federal agencies and states, and, if we can 
ensure privacy, we may eventually rent commercial space to expand use 
of VTC as a service delivery option. Calling into SSA's VTC network 
from private facilities, such as facilities owned by a law firm, may 
also be possible. Regardless of the type of facility, we will make 
certain that:
    [sbull] The individual has the same access to the hearing record 
when appearing by VTC as he or she would have if appearing in person 
before the ALJ.
    [sbull] There is a means of transmitting and receiving additional 
evidence between all locations and all participants.
    [sbull] An assistant is present at the VTC site to operate the 
equipment and provide other help, as required.
    [sbull] The audio/video transmission is secure and the individual's 
privacy is protected.
    We will follow the same procedures for audiotaping hearings that we 
conduct using VTC that we do for hearings where all the participants 
appear in person. We have no plans to videotape hearings in which a 
party or a witness appears by VTC. Should there be a problem with the 
VTC equipment, before or during a hearing, we will reschedule the 
hearing as we do now when unforeseen circumstances require us to 
reschedule a hearing: at the earliest time possible based on the 
request for hearing filing date.
    We reserve the right not to schedule an appearance by VTC for 
someone who asks to appear by VTC. In many locations, especially in the 
near term, we may not have the capability to accommodate the request, 
and the ALJ may determine that an appearance must be conducted in 
person even where VTC capability exists. As access to VTC expands, we 
will generally accommodate requests to appear by VTC as space and time 
permit.
    Despite the fact that conducting hearings by VTC has the potential 
to improve service, we will not require any

[[Page 5212]]

individual to appear at his or her hearing by VTC if the individual 
objects to that procedure at the earliest possible opportunity before 
the time scheduled for the hearing. Under these final rules, if a party 
so objects to making his or her appearance by VTC, we will reschedule 
the hearing as one at which the individual may appear in person.
    When we reschedule a hearing because a party objects to making his 
or her appearance by VTC, we will reschedule the hearing at the 
earliest time possible based on the request for hearing filing date. 
Where necessary, to expedite the rescheduling, we will give the party 
the opportunity to appear in person at the hearing office or any other 
hearing site within the service area of the hearing office at which we 
are first able to schedule a hearing. The party's travel expenses to 
the remote site or to the hearing office, and the travel expenses of 
his or her appointed representative, if any, and the travel expenses of 
any unsubpoenaed witnesses we determine to be reasonably necessary, 
will be reimbursed in accordance with the provisions of 20 CFR 
404.999a-404.999d and 416.1495-416.1499.
    To ensure that a party fully understands the right to decline to 
appear by VTC, a notice scheduling an individual to appear at his or 
her hearing by VTC will clearly state:
    [sbull] What it means to appear by VTC;
    [sbull] That we have scheduled the individual's appearance to be by 
VTC;
    [sbull] That we will schedule a hearing at which the individual may 
appear in person if the individual tells us that he or she does not 
want to appear by VTC; and
    [sbull] How to tell us that.
    We will evaluate hearings using VTC procedures to ensure that there 
is no significant difference in the outcome of hearings conducted using 
VTC and those conducted in person and that we maintain a high degree of 
accuracy in decisions made based on hearings using VTC. We will also 
ensure that individuals:
    [sbull] Understand that they are not required to appear at their 
hearings by VTC;
    [sbull] Know how to tell us if they do not want to appear by VTC;
    [sbull] Receive a full and fair hearing; and
    [sbull] Are satisfied with the VTC process in relation to their 
appearance and the appearances of any witnesses.

The Final Regulations

    We are revising 20 CFR 404.929 and 416.1429 to state that you may 
appear at your hearing in person or by VTC. We are revising 20 CFR 
404.936 and 416.1436 to state that we may schedule your appearance or 
that of any individual appearing at the hearing to be by VTC and that, 
if we schedule you to appear by VTC and you tell us that you want to 
appear in person, we will schedule a hearing at which you may appear in 
person. We are revising 20 CFR 404.938 and 416.1438 to state that if we 
schedule you or anyone to appear at your hearing by VTC, the notice of 
hearing will tell you that and provide information about VTC 
appearances and about how you can tell us that you do not want to 
appear by VTC. Finally, we are revising 20 CFR 404.950(a) and (e) and 
416.1450(a) and (e) to state that a party or a witness may appear at a 
hearing in person or by VTC.

Public Comments

    We published these regulatory provisions in the Federal Register as 
an NPRM on January 5, 2001 (66 FR 1059). We provided the public with a 
60-day comment period. In response to the NPRM, we received seven 
comment letters from the following sources: the Railroad Retirement 
Board (RRB), the Disability Law Center, the National Organization of 
Social Security Claimants Representatives, the Association of 
Administrative Law Judges, and seven ALJs commenting as individuals.
    Because some of the comments were detailed, we have condensed, 
summarized, or paraphrased them below. However, we have tried to 
summarize commenters' views accurately and to respond to all of the 
significant issues raised by the commenters that were within the scope 
of the proposed rules.
    Based on our consideration of the comments received, we have made a 
number of changes in the rules as proposed in the NPRM. We have also 
made a number of decisions about administrative practices we will 
follow in using VTC procedures. We discuss our response to each of the 
comments below.
    In the NPRM we spoke of ``VTC hearings'' and ``in-person hearings'' 
as a way of distinguishing easily between hearings at which VTC 
procedures are used and those at which all the participants are at the 
same location. The public comments received reflected our use of that 
language (see below) without raising any specific issue about it. 
However, from our general consideration of the comments and further 
evaluation of the use of VTC procedures, we have concluded that we 
should not rely on language that could erroneously suggest that there 
are two types of hearings and should instead use language that reflects 
the fact that all claimants are afforded an opportunity for one type of 
hearing--i.e., a hearing at which the claimant's rights to procedural 
due process, including the right to appear and present evidence, are 
fully protected. Speaking of hearings as either ``in-person'' or 
``VTC'' hearings would also not accurately reflect the circumstances of 
hearings in which some of the participants appear before the ALJ in 
person and some appear by VTC.
    The distinctions between hearings at which all of the participants 
are at the same location and hearings at which some or all of the 
involved individuals participate by VTC are secondary distinctions. The 
distinctions involve the manner in which the parties and the witnesses 
make their appearances before the ALJ (i.e., in person or by VTC), not 
fundamental differences that cause the hearings to be of different 
types. We reflect that view in the description of the final rules set 
forth above, in the discussion of our responses to the comments, and in 
specific changes we are making in the final rules. However, our comment 
summaries are couched in the terms we used in the NPRM.
    We further discuss these revisions, and other changes in the final 
rules that are not in direct response to the comments, following the 
discussion of our responses to the comments. See below under the 
heading, Additional Changes.
    Comment: The RRB commented that it was very pleased to see SSA's 
proposal. The RRB also indicated that it would be interested in 
determining the feasibility of its hearing officers using the VTC 
facilities of SSA on a fee basis to conduct some of its hearings--to 
reduce the significant travel in which the RRB is required to engage to 
conduct its hearings.
    Response: As we noted above and in the NPRM, we are investigating 
whether we can share facilities with other federal agencies and states. 
We will pursue discussions with the RRB in that regard.
    Comment: One organization commented that when claimants who need 
hearings at a remote site want to exercise their right to an in-person 
hearing, they will probably face even longer waits for their hearings, 
and that SSA must take steps to minimize the delays these claimants 
will face.
    Response: In considering this comment, we have concluded that 
frequent use of VTC procedures in a remote area could delay the 
hearings of individuals in that area who do not want to appear by VTC. 
That is the case because the participation of other individuals in VTC 
procedures will

[[Page 5213]]

eliminate some or most of the pending hearings that could go to make up 
a complete docket for an ALJ trip to the affected remote site.
    To ensure claimants in areas of high VTC usage a meaningful option 
to appear in person, we will make it our practice in those areas to 
afford claimants who do not want to appear by VTC the opportunity to 
appear in person either at the hearing office (where hearings are held 
without need to accumulate ALJ travel dockets), or at any remote site 
in the hearing office's service area (including, but not limited to, 
the designated remote site for the claimant's place of residence). We 
will schedule a hearing where the claimant may appear in person at the 
earliest possible time based on the filing date of the claimant's 
request for hearing; election of the option to appear in person will 
not cause the claimant to lose his or her place in the queue of 
individuals awaiting entry into the process for scheduling hearings.
    In following these practices, we will apply our normal rules for 
reimbursing the travel expenses that claimants, their representatives, 
and any unsubpoenaed witnesses incur in traveling to the hearing office 
or to any remote site in the service area for hearings (see Sec. Sec.  
404.999a-404.999d and 416.1495-416.1499). A claimant's decision not to 
accept a scheduled appearance by VTC will not prevent reimbursement of 
travel expenses under Sec. Sec.  404.999c(d)(4) and 416.1498(d)(4).
    Comment: An organization commented that choice of hearing sites 
should be explained at an early, informal conference, and that the 
choice should be deferred where a claimant wants to appoint a 
representative. The commenter noted that ensuring that claimants make 
an informed choice of hearing site would further SSA's goal of reducing 
the rescheduling of hearings.
    Response: In areas in which the Associate Commissioner for Hearings 
and Appeals has determined that hearings can be conducted more 
efficiently using VTC than by having appearances made in person, it 
will be our practice in our pre-hearing activities to provide claimants 
with information about VTC procedures and an opportunity to ask 
questions about and to state a preference for or against use of those 
procedures.
    When the ALJ determines that a case is ready to be scheduled for 
hearing and sets the time and place of the hearing, the ALJ will also 
decide whether the claimant's appearance should be scheduled to occur 
by VTC or in person. In doing that, the ALJ will consider any stated 
preference of the claimant or the representative for or against 
appearing by VTC, as well as the availability of VTC technology and any 
other factors, such as a claimant's loss of visual and auditory 
capacities, that may affect how the appearance should be conducted.
    When we issue a notice of hearing advising a claimant that his or 
her appearance has been scheduled to be by VTC, the claimant will then 
have an absolute right to decline to appear by VTC, irrespective of any 
preference he or she may have previously stated in this regard, and to 
choose to appear in person, under the practices on rescheduling and use 
of in-person appearance sites that we have described above. A timely 
statement by the claimant of any objection to appearing by VTC or of a 
desire to appear in person will constitute good cause for rescheduling 
the claimant's appearance to be in person (see Sec. Sec.  404.936(e) 
and 416.1436(e) as revised in these final rules).
    Our policy of giving claimants their option to decline to appear by 
VTC after issuance of the notice of hearing is designed to promote the 
effective use of VTC procedures while also maintaining a meaningful 
option for claimants who want to appear in person. We believe that 
claimants will carefully consider whether they should exercise this 
option since doing so could delay the occurrence of their hearings, 
even under the rescheduling and site-usage practices we have described 
above for expediting the rescheduling of hearings to allow in-person 
appearances. We believe this policy will help to ensure that VTC 
procedures will be frequently used where available and, thus, that 
these procedures will be effective in improving the overall efficiency 
of the hearings process, even though some hearings will have to be 
rescheduled because claimants decide against appearing by VTC. We 
believe the policy is warranted with respect to the individuals 
affected because the option of appearing by VTC will allow them to have 
their hearings before an ALJ in the shortest possible time.
    Comment: An ALJ commented that claimants should not be given the 
option of demanding an in-person hearing instead of a VTC hearing. The 
commenter's reasoning was that VTC either is or is not in accord with 
due process and, if it is (as this commenter believes), the claimant 
has no legal basis for insisting on in-person proceedings. The 
commenter further contended that giving this option would be based, not 
on a legal right, but on an attempt to accommodate the claimant's 
preferences, and that mere preferences should be outweighed by the 
costs to the Agency and the public of accommodating those preferences 
for a hearing in a more costly forum. The commenter reported that it 
was his impression--based on pre-ALJ experience with use of VTC in 
criminal proceedings--that the participants in proceedings conducted by 
VTC paid little attention to the medium once the proceedings began. In 
this commenter's view, there is no legitimate reason to object to VTC 
procedures and many less than legitimate reasons for preferences 
against those procedures, including judge shopping and claimant 
discomfort at being ``on TV.''
    Response: We believe that the hearing proceedings we conduct by VTC 
will be fundamentally fair and that they will fully protect the 
claimant's right to procedural due process. However, as explained 
below, there are sound reasons for assuring that all claimants retain 
an opportunity to appear in person at their hearings. Preserving that 
opportunity for claimants is also consistent with our general policy, 
as explained in SSR 96-10p, of using technology to provide claimants an 
optional way of communicating with us.
    That certain procedures will provide due process does not mean that 
there are no legal issues to consider regarding those procedures. Use 
of VTC technology in administrative hearings is relatively new. In 
these final rules, we are interpreting the word ``hearing'' as used in 
sections 205(b)(1) and 1631(c)(1)(A) of the Social Security Act (the 
Act) to include hearings at which the claimant will appear by VTC, a 
technology that was not available when these statutes were created, as 
well as hearings at which the claimant appears in person before the 
ALJ. Our earliest regulations interpreting the hearing provisions of 
the Act specified that the claimant had a right to request a hearing 
``before'' the decisionmaker (20 CFR 403.707, 1940), and our current 
regulations specify that claimants may appear ``in person'' at the 
hearing (20 CFR 404.929 and 416.1429), and that they have a ``right to 
appear before the administrative law judge, either personally or by 
means of a designated representative * * *'' (20 CFR 404.950(a) and 
416.1450(a)). Therefore, we believe it is legally prudent to ensure 
that all claimants retain the opportunity to appear in person.
    Claimant credibility is an important issue in many of our hearings, 
and some claimants may have strong opinions about whether they can best 
project their own credibility by appearing in person as opposed to 
appearing by VTC. Preserving an option for claimants to appear in 
person should increase their

[[Page 5214]]

comfort level in appearing by VTC and help to ensure that they perceive 
the hearing process as fair. The satisfaction of claimants with their 
hearing experiences is, of course, an important consideration in the 
administration of the Social Security hearings process.
    It is also important that we try to ensure that preferences against 
appearing by VTC do not undermine the effectiveness with which we are 
able to use VTC, as could happen if such preferences frequently caused 
claimants to decline to appear by VTC. However, we believe we should 
pursue that end by promoting and continually improving the claimant-
service advantages of VTC while also preserving the opportunity of 
claimants to appear in person.
    Comment: An organization stated that we should guarantee the right 
of claimants to an in-person hearing to the extent of allowing the 
claimant to withdraw consent to participate in VTC proceedings even up 
to the point of arriving at the VTC site (because they may not realize 
that they do not want to proceed with a VTC appearance until they 
arrive at the site), and by ensuring that claimants do not lose their 
place in queue if they decline (or withdraw consent for) a VTC hearing.
    Response: Under the provisions of Sec. Sec.  404.936 and 416.1436, 
as they currently exist and as revised when these final rules become 
effective, claimants who object to the time or place of the hearing are 
required to ``notify the [ALJ] at the earliest possible opportunity 
before the time set for the hearing.'' Under our existing provisions on 
dismissing requests for hearing based on failure to appear at a 
scheduled hearing, a request for hearing may be dismissed if a claimant 
does not appear at the scheduled hearing and has not given the ALJ, 
before the time set for the hearing, a good reason why he or she cannot 
appear at the scheduled hearing. (See Sec. Sec.  404.957(b) and 
416.1457(b), which we are not revising.) Under the above provisions, a 
claimant who has been scheduled to appear by VTC may establish good 
cause for changing the time or place of the hearing by notifying the 
ALJ at the earliest possible opportunity before the time set for the 
hearing that he or she has an objection to appearing by VTC. The notice 
of hearing will advise the claimant of that requirement. A timely 
statement by the claimant of any objection to appearing by VTC will 
cause the ALJ to find that there is good cause to change the time and 
place of the scheduled hearing and to reschedule the hearing for a time 
and place at which the claimant may appear in person (see Sec. Sec.  
404.936(e) and 416.1436(e)). No hard and fast rule for the latest time 
for a claimant to object to appearing by VTC may be set because many 
different factors (including the delayed appointment of a 
representative who opposes participation in VTC) could affect whether 
the claimant has notified the ALJ of his or her objection at the 
earliest possible time. In addition, as we discussed above, claimants 
who decide to decline to appear by VTC will not lose their place in the 
queue of individuals awaiting hearings.
    Comment: An organization commented that while VTC hearings have the 
potential to be an improvement over some in-person hearings (such as 
those conducted in hotel rooms), there are concerns and we should not 
schedule a VTC hearing and require the claimant to respond 
affirmatively to choose an in-person hearing. This commenter noted that 
many claimants with mental impairments, cognitive limits, low 
education, and communication limitations will have difficulty 
understanding and responding to the notice.
    Response: As discussed above, we believe that the policy of 
generally requiring claimants to take action to opt out of a scheduled 
appearance by VTC will be administratively beneficial and otherwise 
warranted. For the reasons set forth below, we also believe that the 
policy of generally requiring claimants affirmatively to decline to 
appear by VTC will not involve any significant risks for claimants, 
including those individuals who do not have an appointed representative 
and who may have mental, educational, and linguistic limitations--
    [sbull] Hearing office staff will have provided claimants with 
information concerning their options for how they may appear at the 
hearing during the pre-hearing case preparation that occurs before the 
notice of hearing is issued;
    [sbull] The ALJ will have discretion to prevent issuance of a 
notice scheduling a claimant to appear by VTC in instances in which the 
ALJ concludes that there are circumstances that make it necessary not 
to have the claimant appear by VTC;
    [sbull] The notices of hearing used to schedule claimants to appear 
by VTC will explain VTC procedures and the option to appear in person 
in clear, easily understood language; and
    [sbull] The claimant will be able to opt out of appearing by VTC 
merely by stating a desire not to appear in that way or a desire to 
appear in person.
    Comment: An organization of individuals who represent claimants in 
proceedings before us reported that it generally supported the proposed 
rules and the use of VTC hearings, so long as the right to a full and 
fair hearing is adequately protected and the quality of VTC hearings is 
ensured. This organization reported that its members had had mixed 
experiences with the VTC tests and noted that while a member who had 
experience with one VTC hearing was dissatisfied with the quality of 
the VTC transmission (which was not sufficient to allow the ALJ to 
perceive shortness of breath and sweating experienced by the claimant), 
another member who had represented several hundred claimants in the 
Iowa test now preferred VTC to in-person hearings because of the 
calming effect that VTC procedures had on his clients, the reduction in 
claimant travel, and the quality of VTC facilities. This organization 
offered the general comment that its members could be expected not to 
encourage their clients to participate in VTC hearings if there is no 
travel advantage and the quality of the hearing experience is 
inadequate.
    Response: We believe that providing high quality VTC facilities and 
travel advantages for claimants who use VTC services will be of 
critical importance in ensuring the active cooperation of claimant 
representatives in encouraging their clients to use those services. We 
will not achieve our goals in implementing VTC procedures unless 
claimant representatives support their use. For that reason, and 
because providing claimants high quality hearing experiences with as 
little inconvenience to them as reasonably possible is inherently part 
of our overall mission, we intend to ensure that our VTC facilities are 
of high quality and that the travel claimants are required to undertake 
to attend their hearings is reduced by participation in our VTC 
services. The Associate Commissioner for Hearings and Appeals will 
consider those factors in determining whether a service area should be 
designated as ready for VTC use.
    Comment: An organization commented that we should establish 
procedures to ensure that files can be reviewed and that additional 
evidence is associated with the file. The organization noted that 
problems have occurred in these respects at in-person, remote-site 
hearings, especially where the hearing is conducted by a visiting ALJ, 
and these problems would also exist in VTC hearings.
    Response: As we stated in the NPRM, we will make certain that 
claimants participating in VTC procedures will have the ``same access'' 
to the hearing record as individuals not participating in those 
procedures. It is our intent in this regard to ensure that claimants 
who

[[Page 5215]]

make in-person appearances and those who participate in VTC procedures 
will have equal and sufficient access to the record. The sufficiency of 
record access in an area will be one of the factors the Associate 
Commissioner for Hearings and Appeals considers in deciding whether to 
declare an area ready for use of VTC procedures.
    Comment: While only one of the ALJs who commented on the NPRM 
opposed the proposal to give claimants the right to choose not to have 
their hearings conducted by VTC, all but one of the commenting ALJs 
strongly opposed the proposal to allow claimants to veto the use of VTC 
to conduct the appearances of vocational experts (VEs) and medical 
experts (MEs). (The comments of the remaining ALJ dealt with matters 
that were not within the scope of the NPRM.) The ALJs who opposed this 
provision included five ALJs who conducted hearings in the Iowa test 
and the Association of Administrative Law Judges.
    The reasons offered for opposing this proposal included that it 
would defeat the purpose of using VTC as a way to obtain expert 
testimony when it is impractical for the expert to appear in person, 
and that it could force ALJs to forgo needed testimony or to take 
testimony through the time consuming and unwieldy method of written 
interrogatories. Concern was expressed that the right to veto the 
appearance of an expert by VTC could be used to prevent the taking of 
expert testimony that might be adverse to the claimant and to 
facilitate ``expert shopping.'' It was pointed out that claimants can 
already object to witnesses based on bias or qualifications. The view 
was also expressed that due process is fully accorded to the claimant 
if the claimant can see and cross-examine the expert and confront the 
expert with documentary evidence.
    The ALJs who commented based on their experience in the Iowa test 
strongly emphasized the practical problems that allowing claimants to 
veto having an expert testify by VTC would cause. These ALJs stated 
that using VTC to take the testimony of VEs is necessary to utilize 
these experts effectively because the cost of a VE's appearance can be 
reduced if, as is possible using VTC procedures, a docket of multiple 
appearances can be arranged for the expert. They also emphasized the 
value of VTC in reducing the problems involved in scheduling hearings, 
citing the example of how much easier it is to make arrangements for 
one VE to appear by VTC in four hearings occurring on a given day at 
four different sites than it is to arrange for four VEs to make in-
person appearances, at odd times in their workdays, at four sites.
    The ALJs involved in the Iowa test further emphasized that the 
practical problems in not using VTC to take VE testimony are greatly 
compounded when it comes to securing the testimony of MEs. They 
reported that it is only through VTC that they are able to provide ME 
testimony for hearings being held in remote sites, and that MEs will 
not travel to remote sites when it is technically possible to testify 
in hearings being held at such sites via VTC. These ALJs also reported 
that it was their experience that it is almost impossible to get MEs to 
testify in the larger urban areas where the hearing offices are 
located, and that it is sometimes necessary to rely on MEs testifying 
from the medical centers in Ames and Iowa City even in cases being 
heard in the West Des Moines area.
    Response: In considering this comment, we have concluded that 
claimants should not be empowered to veto use of VTC to take the 
testimony of expert witnesses. Therefore, we have deleted from 
Sec. Sec.  404.938 and 416.1438 the proposed provisions that would have 
given claimants that power. Because this represents a significant 
change from the proposed rule, we have decided to offer an additional 
opportunity for public comment on this provision.
    Under these final rules, decisions as to whether hearings will be 
conducted with a witness or witnesses appearing by VTC will be made by 
the ALJ. The claimant may state objections to a witness appearing by 
VTC, just as they may state objections to any aspect of the hearing, 
and they may object to a witness on the basis of perceived bias or lack 
of expertise. However, a claimant's objection to a witness appearing by 
VTC will not prevent use of VTC for the appearance, unless the ALJ 
determines that the claimant's objection is based on a circumstance 
that warrants having the witness appear in person.
    The analysis of the commenting ALJs concerning the impracticalities 
of giving claimants veto power over the medium whereby expert witnesses 
make their appearance has caused us to reevaluate our proposal in that 
regard. We believe these commenters are correct in indicating that 
giving claimants that power would undermine one of the primary 
practical benefits of using VTC procedures and adversely impact our 
ability to use those procedures effectively to improve the hearings 
process. The commenters also effectively emphasize the significance of 
the positive practical benefits that can flow from relying on VTC 
procedures in scheduling and conducting the appearances of expert 
witnesses.
    An important point made in this comment is that implementation of 
VTC procedures reduces the readiness of experts to travel to remote 
sites. This is a result that might be expected logically, we believe, 
and the experience of the ALJs in the Iowa test bears out its 
occurrence.
    Unless we ensure ALJ authority to use VTC to take expert testimony 
by not empowering claimants to veto its use for that purpose, the 
reduced readiness of expert witnesses to travel when VTC appearances 
are technologically possible will adversely affect our ability to 
preserve a reasonable opportunity for claimants to appear in person if 
they choose to opt out of scheduled appearances by VTC. If the 
authority of ALJs to secure expert testimony by VTC is not ensured, the 
reduced willingness of experts to travel when VTC technology is 
available could also reduce the efficiency with which we are able to 
schedule the appearances of experts at the hearings of individuals who 
live near hearing offices in urban areas and appear in person in those 
offices for their hearings.
    MEs and VEs testify as impartial witnesses. They testify based on 
the evidence entered into the record and not based on any examination 
or personal evaluation of the claimant. Where they testify by VTC and 
their testimony is adverse to a party's claim, the party and his or her 
representative, if any, will have a complete opportunity to confront 
and examine the witness regarding the matters that are important with 
respect to expert testimony--i.e., the expertise of the witness and the 
accuracy of his or her testimony.
    Affording claimants the power to veto the appearance of expert 
witnesses by VTC would be inconsistent with our existing practices and 
instructions regarding use of interrogatories to secure the testimony 
of expert witnesses. While emphasizing the preferability of securing 
live testimony where feasible, and requiring the ALJ to consider and 
rule on any claimant objection to the use of interrogatories, our 
instructions do not mandate non-use of interrogatories merely because a 
claimant objects to their use. See Hearings, Appeals and Litigation Law 
Manual (HALLEX), sections I-2-530, I-2-542, and I-2-557. Thus, allowing 
claimants to veto the live testimony that experts can give by VTC would 
invest claimants with an authority that they do not currently have with 
respect to interrogatories.
    Under these final rules, ALJs will have discretion to determine 
that the

[[Page 5216]]

appearance of any individual must be conducted in person. Thus, to the 
extent that circumstances could arise in which it would be advisable to 
schedule an in-person appearance by an expert witness even though a VTC 
appearance would be possible technologically, the ALJ may schedule such 
an appearance. That action could be appropriate, for example, where the 
claimant alleges personal bias or dishonesty on the part of the expert 
and the ALJ determines that the claimant should have the opportunity to 
cross-examine the witness in person because of the greater immediacy of 
an in-person confrontation.
    Comment: An organization commented that the ALJ has exclusive 
control over the way hearings are conducted, so long as they are 
fundamentally fair and comport with requirements of due process, and 
such authority necessarily implies authority to settle disputes 
concerning the appropriate form of a hearing in a particular case. This 
commenter was concerned that the proposed rules did not expressly 
reflect the authority of ALJs to determine if a hearing will be 
conducted wholly or in part by VTC, and that the lack of clarity of 
these rules in this regard could lead to confusion and litigation.
    Response: We agree that the proposed rules were unclear in this 
respect. In Sec. Sec.  404.936 and 416.1436, the final rules clearly 
reflect the authority of the ALJ to determine how hearings are 
conducted with respect to the use of VTC to conduct appearances, while 
also setting forth specific policies that direct how that authority is 
to be exercised.
    In paragraph (c) of Sec. Sec.  404.936 and 416.1436, the final 
rules provide that in setting the time and place of the hearing, the 
ALJ will determine if the appearance of the claimant or that of any 
other individual who is to appear at the hearing will be made in person 
or by VTC. Determining the medium by which appearances will be made is 
part of the ALJ's function of setting the time and place of the hearing 
because determining the hearing's ``place'' requires consideration of 
whether VTC technology will be used to conduct an appearance or 
appearances. See below under Additional Changes regarding the 
definition of ``place'' included in the final rules.
    The final rules include provisions in paragraph (c) of Sec. Sec.  
404.936 and 416.1436 that require the ALJ to direct that the appearance 
of an individual be conducted by VTC if VTC technology is available to 
conduct the appearance, use of VTC to conduct the appearance would be 
more efficient than conducting the appearance in person, and the ALJ 
does not determine that there is a circumstance preventing use of VTC 
to conduct the appearance. In setting these guidelines, it is our 
intent that ALJs routinely schedule appearances by VTC in areas that we 
have designated as ready for VTC use. An appearance in person should be 
scheduled in these areas only if the ALJ determines that there is a 
circumstance in the particular case that would make it inappropriate to 
use VTC in that case.
    The final rules also include provisions requiring the ALJ to find 
good cause to change a scheduled VTC appearance of a party to an in-
person appearance if the party objects to appearing by VTC. These 
provisions are located in paragraph (e) of Sec. Sec.  404.936 and 
416.1436.
    Comment: An organization commented that VTC hearings have not been 
shown to equal the quality and accuracy of in-person hearings and that 
national rollout should await the study referenced in the NPRM to 
ensure that claimants have access to full and fair hearings.
    Response: We anticipate that we will gradually rollout use of VTC 
procedures nationally as we are able to make high-quality VTC 
technology available in different areas. Under that approach, claimants 
and the hearing process will be able to benefit from VTC technology as 
soon as it is available, and we will be able to improve our VTC 
procedures as we move toward full national implementation.
    Based on our experience in using VTC, we believe that VTC does not 
change adjudicative quality or change decisional outcomes. We will 
continue to assess the results of VTC procedures as we go forward. We 
will consider the accuracy and efficiency of VTC procedures and the 
reactions of claimants and their representatives to those procedures.

Additional Changes

    Our decision not to use terminology referring to a hearing as a 
``video teleconference hearing'' or an ``in-person hearing,'' and to 
use instead language that distinguishes between appearances made in-
person and by VTC, has resulted in editorial changes throughout the 
rules as proposed in the NPRM. These changes include eliminating the 
phrase ``and type of hearing'' from the proposed heading for Sec. Sec.  
404.936 and 416.1436. In the final rules, that heading reads, as it 
does in the current rules: ``Time and place for a hearing before an 
administrative law judge.''
    To facilitate this change in terminology, and to address a question 
that the proposed rules did not address, we have included in Sec. Sec.  
404.936 and 416.1436 language defining the term ``place.'' Under these 
final rules, generally, the ``place'' of the hearing is the hearing 
office or other site at which claimant is located when he or she makes 
his or her appearance before the administrative law judge, whether in 
person or by video teleconferencing. If there are multiple parties, the 
``place'' of the hearing is the site or sites at which the parties are 
located when they make their appearances, whether in person or by VTC. 
That will be the ``place'' of the hearing even though the ALJ and a 
witness or witnesses may be located at one or more other sites. Thus, 
in notifying claimants of the ``place'' of their hearings, we will 
notify them, under these final rules as under our current rules, of the 
places at which they should arrive in order to make their appearances.
    The rules as proposed were unclear regarding the function of the 
ALJ in setting the time and place of the hearing. We have clarified the 
rules in this regard by changing the final rules to use the language of 
the current regulations, which specifies that the ``[ALJ] sets the time 
and place for the hearing.'' Use of the existing language is possible 
based on the definition of ``place'' noted above.
    These final rules provide needed headings for the multiple 
paragraphs of Sec. Sec.  404.936 and 416.1436. In doing that, the final 
rules distinguish the ``General'' material in current paragraph (a) 
from the matter included therein on where we hold hearings, and move 
the matter dealing with location into a separate, new paragraph (b) 
that has the heading, ``Where we hold hearings.'' The rules include the 
definition of ``place'' in that paragraph.
    The final rules also create a new paragraph (c) under the heading, 
``Determining how appearance will be made.'' This paragraph sets forth 
the rules, as discussed above, under which, in setting the time and 
place for the hearing, the ALJ determines if an appearance or 
appearances are to be made by VTC or in person. We have also included 
in this paragraph a reference to Sec. Sec.  404.950 and 416.1450, which 
describe procedures under which parties to the hearing and witnesses 
appear and present evidence at hearings.
    Paragraph (b) of the current regulations is redesignated paragraph 
(d) and given the heading, ``Objecting to the time or place of the 
hearing.'' The language of this paragraph follows the

[[Page 5217]]

language of current paragraph (b). For reasons previously discussed, 
paragraph (d) of the final rules does not include, as the comparable 
language of the proposed rules did, language distinguishing between the 
``site and/or time'' of a ``video teleconference hearing'' and the 
``time and/or place'' of an ``in person hearing.''
    The claimant's right to veto his or her appearance by VTC by 
objecting to it is established in paragraph (e) of Sec. Sec.  404.936 
and 416.1436 of the final rules. The heading for this paragraph is, 
``Good Cause for changing the time or place.'' Paragraph (e) of the 
final rules follows the language of paragraph (c) of the current rules 
except for the additions at the beginning of the paragraph that 
describe both the right of a claimant to object if he or she is 
scheduled to appear by VTC at the place of the hearing, and the 
required reaction of the ALJ to such an objection. Those additions make 
it clear that there is no evidentiary requirement that the claimant 
must satisfy in establishing this ``good cause'' condition (such as 
exists regarding the other ``good cause'' conditions described in the 
paragraph). Nor is there any requirement that the claimant state a 
reason for objecting to appearing by VTC beyond his or her wish not to 
do so.
    The power of the claimant to veto a VTC appearance pertains in 
these final rules (with request for comment) only to his or her own 
appearance, not to the appearances of any other party or witness. The 
decision made in these final rules not to distinguish between hearings 
as ``in-person hearings'' or ``VTC hearings'' makes it possible to 
preserve the right of claimants to control the manner of their own 
appearances without expanding that right to include control over the 
manner in which other individuals make their appearances at the 
hearing.
    The heading assigned to the last paragraph of Sec. Sec.  404.936 
and 416.1436 in the final rules, paragraph (f), is, ``Good cause in 
other circumstances.'' The language of this paragraph follows the 
language of paragraph (d) of the current Sec. Sec.  404.936 and 
416.1436.
    The final rules make a number of changes in the sections of the 
regulations that deal with the notice of hearing before an 
administrative law judge, Sec. Sec.  404.938 and 416.1438. In the 
current regulations, these sections consist of a single paragraph that 
includes material that deals with the issuance of notices, information 
included in notices, and acknowledgment of the notice of hearing. In 
the proposed rules, this material was placed in a paragraph (a) with 
the heading, ``General notice information.'' The proposed rules also 
added a new paragraph (b) with the heading, ``Hearing via video 
teleconferencing [,]'' which included material about the scheduling of 
a ``[VTC] hearing'' and information included in notices of such 
hearings. The proposed rules also added a new paragraph (c) with the 
heading, ``For a hearing before an [ALJ,]'' which discussed the 
scheduling of an ``in-person hearing.'' In these final rules, paragraph 
(a) deals with the issuance of notices and has the heading, ``Issuing 
the notice.'' Paragraph (b) deals with information contained in 
notices, including notices that schedule an appearance or appearances 
by VTC, and has the heading, ``Notice information.'' Paragraph (c) 
deals with acknowledgment of the notice of hearing and has the heading, 
``Acknowledging the notice of hearing.''
    The language of the final rules follows the language of the current 
rules, except as regards the notice information pertaining to use of 
VTC procedures and acknowledgment of receipt of the notice of hearing. 
Paragraph (b) states that the claimant will be told if his or her 
appearance or that of any other party or witness is scheduled to be 
made by VTC rather than in person. If we have scheduled the claimant to 
appear at the hearing by VTC, the notice of hearing will also tell the 
claimant that the scheduled place for the hearing is a teleconferencing 
site and explain what it means to appear at the hearing by VTC. The 
notice will also tell the claimant how to object to appearing by VTC 
and how to request a hearing at a place for appearing in person. In 
paragraph (c), the information provided by the current rules regarding 
acknowledgement of receipt of the notice of hearing is expanded to 
include a statement explaining that the notice will ask the claimant to 
return a form acknowledging receipt of the notice. It has long been our 
practice to include an acknowledgement form with the notice of hearing. 
We plan to modify the current form to include a check block that 
claimants may use to object to appearing by VTC.
    The final rules also make conforming changes in Sec. Sec.  404.950 
and 416.1450. In paragraph (a) of these sections, we specify that 
claimants may appear before the ALJ either in person or by VTC, and 
that if the claimant's appearance is made by a designated 
representative, the representative may appear in person or by VTC. In 
paragraph (e) of these sections, we specify that witnesses may appear 
at a hearing in person or by VTC.

Additional Comments

    We invite your comments on the issue of whether claimants should or 
should not be empowered to veto use of VTC to take the testimony of 
expert witnesses. Comments may be submitted by the date and to the 
addresses shown above.

Electronic Version

    The electronic file of this document is available on the Internet 
at http://www.access.gpo.gov/su docs/aces/aces140.html. It is also 
available on the Internet site for SSA (i.e., SSA Online) at http://www.ssa.gov/regulations.

Regulatory Procedures

Executive Order 12866, As Amended by Executive Order 13258

    The Office of Management and Budget (OMB) has reviewed these rules 
in accordance with Executive Order 12866, as amended by Executive Order 
13258.

Regulatory Flexibility Act

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

Paperwork Reduction Act

    These final rules contain reporting requirements as shown in the 
table below. Where the public reporting burden is accounted for in 
Information Collection Requests for the various forms that the public 
uses to submit the information to SSA, a 1-hour placeholder burden is 
being assigned to the specific reporting requirement(s) contained in 
these rules; we are seeking clearance of the burdens referenced in 
these rules because the rules were not considered during the clearance 
of the forms.

[[Page 5218]]



----------------------------------------------------------------------------------------------------------------
                                                                                  Average burden     Estimated
                Section                  Annual number    Frequency of response    per response    annual burden
                                          of resonses                                (minutes)        (hours)
----------------------------------------------------------------------------------------------------------------
404.929...............................               1  1.......................               1               1
404.936(d), (e) & (f).................          92,000  Once....................              10          15,333
404.938(c)............................         300,000  Once....................               1           5,000
404.950(a)............................         210,000  Once....................              30         105,000
416.1429..............................               1  1.......................               1               1
416.1436(d), (e) & (f)................          75,000  Once....................              10          12,500
416.1438(c)...........................         250,000  Once....................               1           4,166
416.1450(a)...........................         172,000  Once....................              30          86,000
    Total.............................       1,099,002  ........................  ..............         228,001
----------------------------------------------------------------------------------------------------------------

    An Information Collection Request has been submitted to OMB for 
clearance. While these rules will be effective 30 days from 
publication, these burdens will not be effective until cleared by OMB. 
We are soliciting comments on the burden estimate; the need for the 
information; its practical utility; ways to enhance its quality, 
utility and clarity; and on ways to minimize the burden on respondents, 
including the use of automated collection techniques or other forms of 
information technology. We will publish a notice in the Federal 
Register upon OMB's approval of the information collection 
requirement(s). Comments should be submitted to the OMB desk officer 
for SSA within 30 days of publication of this final rule at the 
following address: Office of Management and Budget, Attn: Desk Officer 
for SSA, New Executive Office Building, Room 10230, 725 17th St., NW., 
Washington, DC 20530.

(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social 
Security--Disability Insurance; 96.002, Social Security--Retirement 
Insurance; 96.003, Social Security--Special Benefits for Persons 
Aged 72 and Over; 96.004, Social Security--Survivors Insurance; 
96.006, Supplemental Security Income.)

List of Subjects

20 CFR 404

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

20 CFR 416

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

    Dated: October 25, 2002.
Jo Anne B. Barnhart,
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), 204(f), 205(a), (b), (d)-(h), and (j), 
221, 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, 425, and 
902(a)(5)); 31 U.S.C. 3720A; 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).


    2. Section 404.929 is revised 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 Associate 
Commissioner for Hearings and Appeals, or his or her delegate, shall 
appoint an administrative law judge to conduct the hearing. If 
circumstances warrant, the Associate Commissioner, or his or her 
delegate, may assign your case to another administrative law judge. At 
the hearing you may appear in person or by video teleconferencing, 
submit new evidence, 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 shall issue a decision based on the 
hearing record. If you waive your right to appear at the hearing, 
either in person or by video teleconferencing, the administrative law 
judge will make a decision based on the evidence that is in the file 
and any new evidence that may have been submitted for consideration.

    3. Section 404.936 is revised to read as follows:


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

    (a) General. The administrative law judge sets the time and place 
for the hearing. He or she 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 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, whether in 
person or by video teleconferencing.
    (c) Determining how appearances will be made. In setting the time 
and place of the hearing, the administrative law judge determines 
whether your appearance or that of any other individual who is to 
appear at the hearing will be made in person or by video 
teleconferencing. The administrative law judge will direct that the 
appearance of an individual be conducted by video teleconferencing if 
video teleconferencing technology is available to conduct the 
appearance, use of video teleconferencing to conduct the appearance 
would be more efficient than conducting the appearance in person, and 
the administrative law judge does not determine that there is a 
circumstance in the particular case preventing use of video 
teleconferencing to conduct the appearance. Section 404.950 sets forth 
procedures under which parties to the hearing and witnesses appear and 
present evidence at hearings.

[[Page 5219]]

    (d) Objecting to the time or place of the hearing. If you object to 
the time or place of your hearing, you must notify the administrative 
law judge at the earliest possible opportunity before the time set for 
the hearing. You must state the reason for your objection and state the 
time and place you want the hearing to be held. If at all possible, the 
request should be in writing. The administrative law judge will change 
the time or place of the hearing if you have good cause, as determined 
under paragraph (e) and (f) of this section. Section 404.938 provides 
procedures we will follow when you do not respond to a notice of 
hearing.
    (e) Good cause for changing the time or place. If you have been 
scheduled to appear by video teleconferencing at the place of your 
hearing and you notify the ALJ as provided in paragraph (d) of this 
section that you object to appearing in that way, the administrative 
law judge will find your wish not to appear by video teleconferencing 
to be a good reason for changing the time or place of your scheduled 
hearing and will reschedule your hearing for a time and place at which 
you may make your appearance before the administrative law judge in 
person. The administrative law judge will also find good cause for 
changing the time or place of your scheduled hearing, and will 
reschedule your hearing, if your reason is one of the following 
circumstances and is supported by the evidence:
    (1) You or your representative are unable to attend or to travel to 
the scheduled hearing because of a serious physical or mental 
condition, incapacitating injury, or death in the family; or
    (2) Severe weather conditions make it impossible to travel to the 
hearing.
    (f) Good cause in other circumstances. In determining whether good 
cause exists in circumstances other than those set out in paragraph (e) 
of this section, the administrative law judge will consider your reason 
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 which might occur in rescheduling your hearing, and 
whether any prior changes were granted to you. Examples of such other 
circumstances, which you might give for requesting a change in the time 
or place of the hearing, include, but are not limited to, the 
following:
    (1) You have attempted to obtain a representative but need 
additional time;
    (2) Your representative was appointed within 30 days of the 
scheduled hearing and needs additional time to prepare for the hearing;
    (3) Your representative has a prior commitment to be in court or at 
another administrative hearing on the date scheduled for the hearing;
    (4) 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;
    (5) Transportation is not readily available for you to travel to 
the hearing;
    (6) You live closer to another hearing site; or
    (7) 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.

    4. Section 404.938 is revised to read as follows:


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

    (a) Issuing the notice. After the administrative law judge sets the 
time and place of the hearing, we will mail notice of the hearing to 
you at your last known address, or give the notice to you by personal 
service, unless you have indicated in writing that you do not wish to 
receive this notice. The notice will be mailed or served at least 20 
days before the hearing.
    (b) Notice information. The notice of hearing will contain a 
statement of the specific issues to be decided and tell you that you 
may designate a person to represent you during the proceedings. The 
notice will also contain an explanation of the procedures for 
requesting a change in the time or place of your hearing, a reminder 
that if you fail to appear at your scheduled hearing without good cause 
the ALJ may dismiss your hearing request, and other information about 
the scheduling and conduct of your hearing. You will also be told if 
your appearance or that of any other party or witness is scheduled to 
be made by video teleconferencing rather than in person. If we have 
scheduled you to appear at the hearing by video teleconferencing, the 
notice of hearing will tell you that the scheduled place for the 
hearing is a teleconferencing site and explain what it means to appear 
at your hearing by video teleconferencing. The notice will also tell 
you how you may let us know if you do not want to appear in this way 
and want, instead, to have your hearing at a time and place where you 
may appear in person before the ALJ.
    (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. See Sec.  404.936 for the 
procedures we will follow in deciding whether the time or place of your 
scheduled hearing will be changed if you do not respond to the notice 
of hearing.

    5. In Sec.  404.950, paragraphs (a) and (e) are revised 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 in person or, when the conditions in Sec.  404.936(c) exist, by 
video teleconferencing, 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 in person or by 
video teleconferencing.
* * * * *
    (e) Witnesses at a hearing. Witnesses may appear at a hearing in 
person or, when the conditions in Sec.  404.936(c) exist, by video 
teleconferencing. They shall 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 witnesses any questions material to the issues and shall allow 
the parties or their designated representatives to do so.
* * * * *

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

    6. 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); 31 U.S.C. 
3720A.

    7. Section 416.1429 is revised to read as follows:


Sec.  416.1429  Hearing before an administrative law judge--general.

    If you are dissatisfied with one of the determinations or decisions 
listed in Sec.  416.1430 you may request a hearing. The Associate 
Commissioner for Hearings and Appeals, or his or her delegate, shall 
appoint an

[[Page 5220]]

administrative law judge to conduct the hearing. If circumstances 
warrant, the Associate Commissioner, or his or her delegate, may assign 
your case to another administrative law judge. At the hearing you may 
appear in person or by video teleconferencing, submit new evidence, 
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 shall 
issue a decision based on the hearing record. If you waive your right 
to appear at the hearing, either in person or by video 
teleconferencing, the administrative law judge will make a decision 
based on the evidence that is in the file and any new evidence that may 
have been submitted for consideration.

    8. Section 416.1436 is revised to read as follows:


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

    (a) General. The administrative law judge sets the time and place 
for the hearing. He or she 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, and the Northern Mariana 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, whether in person or 
by video teleconferencing.
    (c) Determining how appearances will be made. In setting the time 
and place of the hearing, the administrative law judge determines 
whether your appearance or that of any other individual who is to 
appear at the hearing will be made in person or by video 
teleconferencing. The administrative law judge will direct that the 
appearance of an individual be conducted by video teleconferencing if 
video teleconferencing technology is available to conduct the 
appearance, use of video teleconferencing to conduct the appearance 
would be more efficient than conducting the appearance in person, and 
the administrative law judge does not determine that there is a 
circumstance in the particular case preventing use of video 
teleconferencing to conduct the appearance. Section 416.1450 sets forth 
procedures under which parties to the hearing and witnesses appear and 
present evidence at hearings.
    (d) Objecting to the time or place of the hearing. If you object to 
the time or place of your hearing, you must notify the administrative 
law judge at the earliest possible opportunity before the time set for 
the hearing. You must state the reason for your objection and state the 
time and place you want the hearing to be held. If at all possible, the 
request should be in writing. The administrative law judge will change 
the time or place of the hearing if you have good cause, as determined 
under paragraph (e) and (f) of this section. Section 416.1438 provides 
procedures we will follow when you do not respond to a notice of 
hearing.
    (e) Good cause for changing the time or place. If you have been 
scheduled to appear by video teleconferencing at the place of your 
hearing and you notify the ALJ as provided in paragraph (d) of this 
section that you object to appearing in that way, the administrative 
law judge will find your wish not to appear by video teleconferencing 
to be a good reason for changing the time or place of your scheduled 
hearing and will reschedule your hearing for a time and place at which 
you may make your appearance before the administrative law judge in 
person. The administrative law judge will also find good cause for 
changing the time or place of your scheduled hearing, and will 
reschedule your hearing, if your reason is one of the following 
circumstances and is supported by the evidence:
    (1) You or your representative are unable to attend or to travel to 
the scheduled hearing because of a serious physical or mental 
condition, incapacitating injury, or death in the family; or
    (2) Severe weather conditions make it impossible to travel to the 
hearing.
    (f) Good cause in other circumstances. In determining whether good 
cause exists in circumstances other than those set out in paragraph (e) 
of this section, the administrative law judge will consider your reason 
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 which might occur in rescheduling your hearing, and 
whether any prior changes were granted to you. Examples of such other 
circumstances, which you might give for requesting a change in the time 
or place of the hearing, include, but are not limited to, the 
following:
    (1) You have attempted to obtain a representative but need 
additional time;
    (2) Your representative was appointed within 30 days of the 
scheduled hearing and needs additional time to prepare for the hearing;
    (3) Your representative has a prior commitment to be in court or at 
another administrative hearing on the date scheduled for the hearing;
    (4) 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;
    (5) Transportation is not readily available for you to travel to 
the hearing;
    (6) You live closer to another hearing site; or
    (7) 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.

    9. Section 416.1438 is revised to read:


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

    (a) Issuing the notice. After the administrative law judge sets the 
time and place of the hearing, we will mail notice of the hearing to 
you at your last known address, or give the notice to you by personal 
service, unless you have indicated in writing that you do not wish to 
receive this notice. The notice will be mailed or served at least 20 
days before the hearing.
    (b) Notice information. The notice of hearing will contain a 
statement of the specific issues to be decided and tell you that you 
may designate a person to represent you during the proceedings. The 
notice will also contain an explanation of the procedures for 
requesting a change in the time or place of your hearing, a reminder 
that if you fail to appear at your scheduled hearing without good cause 
the ALJ may dismiss your hearing request, and other information about 
the scheduling and conduct of your hearing. You will also be told if 
your appearance or that of any other party or witness is scheduled to 
be made by video teleconferencing rather than in person. If we have 
scheduled you to appear at the hearing by video teleconferencing, the 
notice of hearing will tell you that the scheduled place for the 
hearing is a teleconferencing site and explain what it means to appear 
at your hearing by video teleconferencing. The notice will also tell 
you how you may let us know if you do not want to appear in this way 
and want, instead, to have your hearing at a time and place where you 
may appear in person before the ALJ.

[[Page 5221]]

    (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. See Sec.  416.1436 for 
the procedures we will follow in deciding whether the time or place of 
your scheduled hearing will be changed if you do not respond to the 
notice of hearing.

    10. In Sec.  416.1450, paragraphs (a) and (e) are revised 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 in person or, when the conditions in Sec.  416.1436(c) exist, by 
video teleconferencing, 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 in person or by 
video teleconferencing.
* * * * *
    (e) Witnesses at a hearing. Witnesses may appear at a hearing in 
person or, when the conditions in Sec.  416.1436(c) exist, video 
teleconferencing. They shall 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 witnesses any questions material to the issues and shall allow 
the parties or their designated representatives to do so.
* * * * *
[FR Doc. 03-2402 Filed 1-31-03; 8:45 am]
BILLING CODE 4191-02-P