[Federal Register Volume 68, Number 238 (Thursday, December 11, 2003)]
[Rules and Regulations]
[Pages 69003-69009]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-30691]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Regulation 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 rule.

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SUMMARY: We are adopting without change the final rules that were 
published in the Federal Register on February 3, 2003, at 68 FR 5210, 
authorizing us to conduct hearings before administrative law judges 
(ALJs) using video teleconferencing (VTC). The revised rules authorized 
us to conduct hearings before ALJs at which a party or parties to the 
hearing and/or a witness or witnesses may appear before the ALJ by VTC. 
The revised rules also provided that if we schedule you to appear at 
your hearing by VTC, rather than in person, and you object to use of 
the VTC procedure, we will reschedule your hearing as one at which you 
may appear in person before the ALJ. Under the revised rules, the ALJ 
will also consider any objection you may have to the appearance of a 
witness by VTC. The purpose of the rules is to 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.

DATES: These rules were effective March 5, 2003.

FOR FURTHER INFORMATION CONTACT: Robert J. Augustine, Social Insurance 
Specialist, Office of Regulations, Social Security Administration, 100 
Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235-6401, 
(410) 965-0020 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.socialsecurity.gov.

Electronic Version

    The electronic file of this document is available on the Internet 
at http://www.gpoaccess.gov/fr/index.html. It is also available on the 
Internet site for SSA (i.e., Social Security Online) at http://policy.ssa.gov/pnpublic.nsf/LawRegs.

SUPPLEMENTARY INFORMATION:

Background

    On January 5, 2001, at 66 FR 1059, we published a Notice of 
Proposed Rulemaking (NPRM) in which we proposed to authorize our use of 
VTC in conducting hearings before ALJs. One provision in the proposed 
rules would have given claimants the right to veto use of VTC to take 
both their own testimony and the testimony of vocational experts (VEs) 
and medical experts (MEs). On February 3, 2003, after considering the 
public comments received on the NPRM, we published the final rules at 
68 FR 5210 authorizing our use of VTC effective March 5, 2003. The 
final rules made a significant change from the proposed rules by giving 
claimants the right to veto the use of VTC only for the purpose of 
taking their own testimony. Accordingly, in publishing the final rules, 
we requested public comment on the issue of whether

[[Page 69004]]

claimants should or should not be empowered to veto use of VTC to take 
the testimony of expert witnesses.\1\
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    \1\ The final rules published on February 3, 2003, were 
designated as ``[f]inal rules with request for comment.'' This 
current preamble deals with three sets of rules: (1) The proposed 
rules published in the NPRM of January 5, 2001; (2) the final rules 
were requested for comment published February 3, 3002, and (3) these 
current final rules that adopt the final rules with request for 
comment without change.
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Our Reasons for Proposing Rules Authorizing Use of VTC \2\
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    \2\ We are summarizing our reasons for proposing rules to 
authorize use of VTC. For a more detailed review of the history of 
the development of these rules, see the preamble to the NPRM of 
January 5, 2001 (66 FR 1059-1062).
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    We receive more than 500,000 requests for hearings before ALJs each 
year. To accommodate the hearing requests of individuals who do not 
live near a hearing office, we hold approximately 40% of hearings at 
remote sites, which are generally at least 75 miles from the hearing 
office.
    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.
    We proposed rules to authorize use of VTC in conducting hearings 
based on testing conducted in the State of Iowa beginning in 1996 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 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 would be 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 
did in our testing of VTC, would improve hearing office efficiency and 
would permit us to provide faster access to a hearing for some 
individuals.

Final Rules With Request for Comment

    In the final rules with request for comment published February 3, 
2003, we revised several sections of our regulations. We revised 
Sec. Sec.  404.929 and 416.1429 to state that you may appear at your 
hearing in person or by VTC. We revised Sec. Sec.  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 revised 
Sec. Sec.  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 
revised Sec. Sec.  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.
    The final rules with request for comment included a number of 
changes we made in response to the public comments we received on the 
NPRM, including changes to Sec. Sec.  404.936 and 416.1436 to clearly 
reflect the authority of the ALJ to determine how hearings are 
conducted with respect to the use of VTC to conduct appearances.\3\ The 
final rules with request for comment also set forth, in Sec. Sec.  
404.936(c) and 416.1436(c), specific policies that direct how that 
authority is to be exercised. Those sections specify that--
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    \3\ For a detailed review of the comments on the NPRM, and of 
all the changes that the final rules with request for comment made 
in the proposed rules, see the preamble to the final rules with 
request for comment of February 3, 2003, 68 FR 5212-5217.


    ``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 
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appearance.''

    As previously noted, the final rules with request for comment also 
made changes in the rules proposed in the NPRM relative to the issue of 
whether claimants should have veto authority over the use of VTC for 
the appearances of VEs and MEs. We made these changes in response to 
the comments of ALJs who commented on the NPRM, all but one of whom 
strongly opposed the proposal to allow claimants to veto the use of VTC 
to conduct the appearances of expert witnesses. (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 commenters opposed the proposal to allow claimants to veto VTC 
appearances by expert witnesses for several reasons. One was 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. The commenters also expressed concern 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

[[Page 69005]]

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 VTC appearances by experts 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 who participated in the Iowa test also 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 use of 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.
    In explaining our response to these comments (i.e., the decision we 
made in the final rules with request for comment to deny claimants veto 
authority over whether hearings will be conducted with a witness or 
witnesses appearing by VTC), we said--

    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-
5-30, I-2-5-42, and I-2-5-57, at http://www.ssa.gov/OP-Home/hallex/hallex.html. 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 have discretion to determine that 
the 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.\4\
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    \4\ 68 FR 5215-5216 (2003).
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Use of VTC

    At present, 15 of our 138 hearing offices and 1 regional office use 
VTC to conduct hearings. Appearances by VTC are occurring from 12 
different remote sites and 2 state networks.
    We plan to gradually roll out use of VTC nationally. We will begin 
to use 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.)

    Initially, 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.

[[Page 69006]]

    [sbull] The audio/video transmission is secure and the individual's 
privacy is protected.

    We will follow the same procedures for making audio recordings of 
hearings 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. If there is 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.
    Although use of VTC to conduct hearings has the potential to 
improve service, we will not require any 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 timely 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 date the request for hearing was 
filed. 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 
Sec. Sec.  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] Understand that a witness is appearing by VTC, when 
appropriate;
    [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, including the 
appearances of witnesses who may appear by VTC notwithstanding an 
objection by the claimant to use of VTC for the appearance.

Public Comments

    The final rules with request for comment that were published on 
February 3, 2003, provided the public with a 60-day comment period. We 
received a total of ten comments.
    Because some of the comments were detailed, we have condensed, 
summarized, or paraphrased them below. However, we have tried to 
summarize the commenters' views accurately and to respond to all of the 
significant issues raised by the commenters that were within the scope 
of this rulemaking action.
    We have not limited ourselves to responding only to those comments 
that addressed the specific issue on which we solicited comment (i.e., 
whether claimants should have veto authority over VTC appearances by 
witnesses as well as veto authority over their own appearances by VTC). 
Many of the other comments received addressed issues previously 
addressed or touched on in the comments received in response to the 
NPRM. However, since the additional comments generally offered some 
different perspective on the issues, we are responding to those 
comments as well.
    None of the comments we received opposed the change to deny 
claimants the right to veto use of VTC to conduct the appearance of a 
witness. However, a number of the comments suggested that we expand our 
rules to provide more specific guidance regarding the consideration of 
objections to the use of VTC for taking expert testimony and the 
factors that could interfere with use of VTC to conduct the appearance 
of a witness.
    Comment: The Railroad Retirement Board (RRB), which had noted in 
commenting on the proposed rules that it would be interested in making 
use of SSA's VTC facilities on a fee basis, wrote to again state its 
interest in exploring the possibility of the RRB using our VTC 
facilities.
    Response: We are exploring the possibilities of sharing VTC 
facilities with the RRB and other agencies.
    Comment: The Association of Administrative Law Judges (AALJ) wrote 
to restate its strong support for our decision to have the ALJ decide 
whether to have expert witnesses appear by VTC and to deny claimants 
the right to veto use of VTC for that purpose.
    Response: We considered the AALJ's comments in deciding to change 
the proposed rules in this respect. The AALJ's restatement of its prior 
comments supports adoption of the rules published February 3, 2003, 
without change.
    Comment: Noting that we cited the difficulty of finding MEs in 
remote sites in sparsely populated areas as one justification for using 
VTC, one commenter suggested that another possible solution would be to 
increase ME compensation.
    Response: We believe that we can increase our ability to secure ME 
(and VE) services in remote areas by using VTC, and that it will be 
productive to use VTC for this purpose even if we also identify other 
ways to ameliorate the problems we have experienced in securing expert 
testimony in remote areas. VTC use can increase the incentives for an 
expert witness to appear in remote-site hearings by reducing or 
eliminating the adverse effect on the expert's professional schedule 
that can occur if the expert is required to travel to a remote site. 
Use of VTC can also increase the incentive of experts to appear in 
Social Security hearings by facilitating the scheduling of multiple 
appearances for the expert within a limited period.
    Comment: In the mistaken belief that we plan to videotape hearings 
in which appearances are made by VTC, a commenter asked a number of 
questions about access to and the costs of the videotapes that would 
result under such a procedure, and about whether the Appeals Council 
might use these videotapes and the visual clues they

[[Page 69007]]

provide regarding credibility to make credibility findings over and 
beyond those of the ALJ.
    Response: As we stated above, and in the preambles to the NPRM and 
the final rules with request for comment, we have no plans to videotape 
hearings in which a party or witness appears by VTC. We will make audio 
recordings of these hearings using the same procedures we use in 
hearings in which all of the participants appear in person. The role of 
the Appeals Council in considering cases should not be affected by 
whether VTC was used in conducting an appearance or appearances at the 
hearing.
    Comment: This same commenter asked what savings in real days we 
project to occur as a result of the use of VTC.
    Response: As we noted above and in the prior preambles concerning 
these rules, the Iowa test results showed that processing time for 
hearings using VTC procedures was substantially less than for hearings 
conducted in person at remote sites. The processing time savings 
achieved by different hearing offices will vary depending on multiple 
factors, including the rate at which the office uses VTC in the 
hearings it conducts. Nationally, we expect that the overall effect of 
using VTC in reducing processing times will increase as we gradually 
rollout VTC and develop more effective VTC networks.
    Comment: A commenter expressed the opinion that VTC is a viable 
alternative for hearings, provided it remains a choice and not a 
requirement, and that use of VTC should speed up the hearing process 
and save money.
    Response: We agree with these views. We understand the aspect of 
this comment that deals with the maintenance of ``choice'' to be 
concerned with the claimant's retention of choice regarding the mode of 
his or her appearance, rather than the specific issue of whether the 
claimant should have veto authority over VTC appearances of expert 
witness. We discuss that issue in response to other comments.
    Comment: Two commenters questioned whether claimants would find 
appearing by VTC satisfactory. One commenter thought that the ALJ 
hearing was already stressful enough for claimants and that adding a 
camera to the process will only make matters worse. Another thought 
that the camera ``may not cut it'' and that represented claimants will 
want to look the ALJ in the eye and tell their story in person.
    Response: Our testing of VTC does not support the conclusion that 
claimants will find appearing by VTC to be intimidating or 
unsatisfactory for the purpose of projecting their own credibility. As 
previously discussed (above and in the prior preambles for these 
rules), in our testing of VTC in Iowa a large percentage of claimants 
rated hearings using VTC procedures as ``convenient'' or ``very 
convenient'' and overall service as ``good'' or ``very good.'' We also 
note that in commenting on the NPRM, a national organization of 
claimant representatives reported that one of its members who had 
represented several hundred claimants in the Iowa test now preferred 
VTC to in-person hearings because, among other benefits, VTC has a 
calming effect on his clients.
    One of the reasons we retained the right of claimants to opt out of 
appearing personally by VTC in the final rules with request for comment 
was to promote claimant satisfaction with the hearing experience. As we 
noted in the preamble to those rules, claimants may have strong 
opinions about whether they can best project their own credibility by 
appearing in person or by VTC. Preserving an option for claimants to 
appear in person should increase their comfort level in appearing by 
VTC and help to ensure that they perceive the hearing process as fair.
    Comment: Two commenters expressed concerns about the effectiveness 
of VTC proceedings for the purposes of inquiring fully into the facts. 
One thought that a ``flickering and disembodied'' view is no substitute 
for in-person observation at the hearing and that use of VTC will 
deprive hearing proceedings of the solemnity that encourages truth 
telling. Another commenter thought that the decisionmaker would lose 
the personal contact with the claimant that the commenter believes is 
needed to assess credibility.
    Response: Under the final rules with request for comment, the ALJ 
has discretion to require in-person appearances, by the claimant or 
witnesses, in any case in which the ALJ determines that the immediacy 
of an in-person appearance is needed to inquire fully into the facts. 
Thus, the rules provide a mechanism to prevent use of VTC where an in-
person appearance would be more appropriate.
    We believe that any problems in assessing credibility in VTC 
proceedings would generally be associated with possible instances of 
inadequate VTC transmission. That was the case, for example, in the 
incident reported in a comment on the NPRM in which a claimant 
representative was dissatisfied with a VTC experience because the 
quality of the VTC transmission was not sufficient to allow the ALJ to 
perceive the claimant's sweating and shortness of breath. We believe we 
can generally avoid problems of this type by assuring that our VTC 
facilities are of high quality. As we noted above and in the prior 
preambles for these rules, we plan to implement use of VTC in the 
servicing areas of hearing offices after the Associate Commissioner for 
Hearings and Appeals determines that appearances at hearings conducted 
in those areas can be conducted more efficiently by VTC than in person. 
Where problems do occur, we believe that it will frequently be possible 
to reach satisfactory solutions on an ad hoc basis, such as happened in 
the above noted example when the ALJ stipulated to the claimant's 
sweating and shortness of breath based on the representative's 
statement describing these conditions. Where technical problems occur 
and cannot be overcome, the hearing will be rescheduled, as happens 
when a problem in the audio recording equipment prevents the recording 
of a hearing.
    Comment: One commenter opposed use of VTC on the basis that its use 
is complicated by technical issues, including problems involved in 
making the claim file available for review by the claimant and the 
additional costs associated with having dual staffs at two sites.
    Response: The technical problems of concern to this commenter 
involve matters that we assessed in deciding that using VTC to conduct 
hearings is an efficient service delivery option. Our judgment in this 
regard included consideration of the need to establish VTC facilities 
and to have hearing monitors available at VTC sites to assist in the 
hearing proceedings. The technical issues we have considered also 
include the problems involved in ensuring that claimants who appear by 
VTC will have access to the record that is sufficient and equal to that 
of claimants who appear in person. We have addressed these problems by 
establishing procedures to provide the claimant and the representative 
a copy of the evidence of record or an opportunity to review the file 
at their local Social Security FO before the hearing is conducted, and/
or through use of document cameras to display documents on the day of 
the hearing.\5\
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    \5\ We address these procedures, together with changes we are 
making in our standardized notices of hearing to advise claimants 
concerning the procedures, in HALLEX guidance that we have issued to 
implement our use of VTC procedures (HALLEX TI I-5-1-16). (See 
http://www.ssa.gov/OP-Home/hallex/I-05/I-5-1-16.html, TI 1-5-1-16 
III.E, and Attachment 3.)

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[[Page 69008]]

    Comment: One commenter proposed that we should limit the use of VTC 
to cases in which the ALJ determines that there is ``good cause'' to 
use VTC procedures because the claimant is prevented from traveling by 
illness or other good reasons. Another commenter expressed the view 
that use of VTC should be limited to situations in which its use is 
necessary to allow the appearance of a witnesses who would be unable to 
appear except by VTC.
    Response: Using VTC would not be efficient or cost effective if we 
limited its use to the relatively small number of cases in which the 
claimant is unable to travel or there is another factor requiring the 
use of VTC. The advantages in efficiency and costs savings involved in 
using VTC accrue where a hearing office is able to use VTC in many of 
its cases.
    We see no basis for making the use of VTC contingent upon the ALJ 
finding ``good cause'' to use it in a particular case. As we stated in 
the preamble to the final rules with request for comment, we believe 
that the hearing proceedings we conduct using VTC will be fundamentally 
fair and fully protective of the claimant's right to procedural due 
process. Based on that belief, we further believe that the best overall 
policy is to schedule use of VTC to conduct hearings in all instances 
in which VTC technology is available and would be an efficient means 
for conducting the appearance(s) of the claimant and/or a witness or 
witnesses,\6\ and the ALJ does not determine that there is a 
circumstance in the particular case preventing use of VTC to conduct an 
appearance.
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    \6\ Concerning the assessment of the efficiency of using VTC, 
see our response below to the comment recommending that the ALJ 
consider certain factors when scheduling VTC appearances.
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    Comment: One commenter expressed concern about unspecified 
provisions of the final rules with request for comment that ``prohibit 
a right to object to the appearance of an expert witness by VTC.''
    Response: The final rules with request for comment included no 
provision prohibiting claimants or their representatives from stating 
objections on any matter, including the appearance of a witness by VTC. 
As we noted in the preamble to those rules, claimants may state 
objections to a witness appearing by VTC, just as they may state 
objections to any aspect of the hearing.\7\
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    \7\ HALLEX TI I-5-1-16 has changed our standardized notices of 
hearing to notify claimants when a witness will appear by VTC and to 
advise claimants explicitly that they may object not only with 
respect to issues, but also `` to any other aspect of the scheduled 
hearing.'' (TI I-5-1-16, Attachment 3.)
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    Comment: Noting that it generally supports the use of VTC provided 
the right to a full and fair hearing is adequately protected and the 
technical quality of the hearings is assured, an organization of 
individuals who represent claimants commented that we should provide 
guidance for circumstances that warrant having a witness appear in 
person. For that purpose, the commenter suggested that we should 
include in our rules language from the preamble to the final rules with 
request for comment in which we specified that a claimant's objection 
to a witness appearing by VTC will not prevent the use of VTC ``unless 
the ALJ determines that the claimant's objection is based on a 
circumstance that warrants having the witness appear in person.'' \8\
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    \8\ 68 FR 5215 (2003).
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    Response: We are not adopting this comment because the provisions 
of the final rules with request for comment encompass the point made in 
the preamble language cited in the comment. Sections 404.936(c) and 
416.1436(c) of our rules require us to schedule a VTC appearance for 
the claimant or any other individual ``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 in the particular 
case preventing use of [VTC] to conduct the appearance.'' (Emphasis 
added.) A ``circumstance preventing use of [VTC]'' for an appearance 
necessarily exists where the ALJ ``determines that the claimant's 
objection is based on a circumstance that warrants having the witness 
appear in person''; therefore, deciding if there is a circumstance that 
warrants having a witness appear in person is requisite to deciding if 
there is a circumstance preventing use of VTC to conduct an appearance.
    Comment: This commenter further recommended that our rules should 
include a requirement that the ALJ consider other factors, such as 
limitations of the claimant or the representative, that could affect 
how the hearing is conducted. In this respect, the commenter suggested 
that we consider including in our rules guidance like that in language 
from the preamble to the final rules with request for comment 
indicating that, in deciding whether the claimant's appearance should 
be scheduled to occur in person or by VTC, 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 
other factors, such as a claimant's loss of visual and auditory 
capacities, that may affect how the appearance should be conducted.'' 
\9\ Another commenter, a claimant's representative who personally has a 
hearing loss that would interfere with his ability to understand and to 
question a witness appearing by VTC, made a similar comment.
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    \9\ 68 FR 5213 (2003).
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    Response: We are making no change in response to these commenters 
because our rules already include provisions to require consideration 
of any factors that would compromise the integrity or fairness of the 
hearing or make it inappropriate to use VTC for any reason. These 
provisions are reinforced by provisions that require the ALJ to 
consider the efficiency of scheduling an appearance to occur by VTC.
    In setting the time and place for the hearing, the ALJ is required 
under Sec. Sec.  404.936(c) and 416.1436(c) to determine whether the 
appearance of the claimant or any other individual appearing at the 
hearing will be made in person or by VTC. To make that determination, 
the ALJ is required by the provisions of these sections to determine if 
there is a circumstance preventing use of VTC for the appearance. As 
the cited preamble language reflects, determining if there is such a 
circumstance requires the ALJ to consider if there is any factor or 
factors, such as an auditory loss on the part of one of the 
participants, that would interfere with using VTC for the appearance. 
The factors considered will necessarily include any visual or auditory 
limitations on the part of the claimant's representative that could 
compromise the ability of the representative to participate effectively 
in observing, understanding, and questioning the expert if VTC is used 
to take the expert's testimony.\10\
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    \10\ Our HALLEX instructions implementing VTC procedures specify 
that the circumstances that might cause the ALJ to require an in-
person appearance include that in which the claimant or the 
representative has a visual or auditory impairment of a type that 
could adversely affect his or her ability to appear and participate 
in the hearing through VTC, either for the purpose of interacting 
with the ALJ or another participant in the hearing. (TI-I-5-1-16 
III.B.)
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    Under Sec. Sec.  404.936(c)and 416.1436(c) of the final rules with 
request for comment, the efficiency of using VTC for an appearance is 
one of the factors the ALJ must consider in deciding if an appearance 
should be scheduled to occur by VTC or in person. As we explained above 
and in the prior preambles to these rules, we plan to use VTC in the 
service area of a hearing

[[Page 69009]]

office when the Associate Commissioner for OHA determines that 
appearances at hearings conducted in the areas can be conducted more 
efficiently by VTC than in person. However, while the Associate 
Commissioner makes the decision about the general efficiency of using 
VTC in an area, the ALJ is responsible for determining if using VTC for 
any appearance in a particular case will be efficient.
    Comment: The same organization also commented that our rules should 
require the hearing notice to include a statement that a ME and/or a VE 
will appear by VTC and provide an opportunity to object.
    Response: Sections 404.938(b) and 416.1438(b) of the final rules 
with request for comment specify that the claimant ``will also be told 
if [his/her] appearance or that of any other party or witness is 
scheduled to be made by [VTC] rather than in person.'' We reflect these 
requirements in HALLEX guidance that modifies our standardized notices 
of hearing to notify claimants that a witness will appear by VTC and to 
advise them explicitly of their right to object to any aspect of the 
hearing (see Footnote 7 above).

Regulatory Procedures

Executive Order 12866, As Amended by Executive Order 13258

    We have consulted with the Office of Management and Budget (OMB) 
and determined that this final rules document meets the criteria for a 
significant regulatory action under Executive Order 12866, as amended 
by Executive Order 13258. Thus, it was reviewed by OMB.

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

    The Paperwork Reduction Act (PRA) of 1995 says that no persons are 
required to respond to a collection of information unless it displays a 
valid OMB control number. In accordance with the PRA, SSA is providing 
notice that the Office of Management and Budget has approved the 
information collection requirements contained in Sec. Sec.  404.929, 
404.936(d), (e) & (f), 404.938(c) (HA-504), 404.950(a), 416.1429, 
416.1436(d), (e) and (f), 416.1438(c) (HA-504), and 416.1450(a) of 
these final rules. The OMB control number for this collection is 0960-
0671, expiring November 30, 2004.

(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 Part 404

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

20 CFR Part 416

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

    Dated: October 3, 2003.
Jo Anne B. Barnhart,
Commissioner of Social Security.

0
Accordingly, the final rules with request for comment amending 20 CFR 
parts 404 and 416 that were published at 68 FR 5210 on February 3, 
2003, are adopted as final rules without change.
[FR Doc. 03-30691 Filed 12-10-03; 8:45 am]
BILLING CODE 4191-02-P