[Federal Register Volume 73, Number 218 (Monday, November 10, 2008)]
[Proposed Rules]
[Pages 66564-66568]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-26681]


-----------------------------------------------------------------------

SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Docket No. SSA 2008-0033]
RIN 0960-AG61


Setting the Time and Place for a Hearing before an Administrative 
Law Judge

AGENCY: Social Security Administration.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: We propose to amend our rules to clarify that the agency is 
responsible for setting the time and place for a hearing before an 
administrative law judge (ALJ). Consistent with our regulations at 
lower levels of the administrative process, we propose to use ``we'' or 
``us'' in the rules setting the time and place for a hearing. These 
changes will ensure greater flexibility in scheduling hearings both in 
person and via video teleconferencing and will aid us in our effort to 
increase efficiency in the hearing process and reduce the number of 
pending hearings. The number of cases awaiting a hearing has reached 
historic proportions, and efforts toward greater efficiency are 
critical to addressing this problem.

DATES: To be sure that we consider your comments, we must receive them 
no later than January 9, 2009.

ADDRESSES: You may submit comments by any one of four methods--
Internet, facsimile, regular mail, or hand-delivery. Commenters should 
not submit the same comments multiple times or by more than one method. 
Regardless of which of the following methods you choose, please state 
that your comments refer to Docket No. SSA-2008-0033 to ensure that we 
can associate your comments with the correct regulation:
    1. Federal eRulemaking portal at http://www.regulations.gov. (This 
is the most expedient method for submitting your comments, and we 
strongly urge you to use it.) In the ``Search Documents'' section of 
the webpage, type ``SSA-2008-0033'', select ``Go,'' and then click 
``Send a Comment or Submission.'' The Federal eRulemaking portal issues 
you a tracking number when you submit a comment.
    2. Telefax to (410) 966-2830.
    3. Letter to the Commissioner of Social Security, P.O. Box 17703, 
Baltimore, MD 21235-7703.
    4. Deliver your comments to the Office of Regulations, Social 
Security Administration, 922 Altmeyer Building, 6401 Security 
Boulevard, Baltimore, Maryland 21235-6401, between 8 a.m. and 4:30 p.m. 
on regular business days.
    All comments are posted on the Federal eRulemaking portal, although 
they may not appear for several days after receipt of the comment. You 
may also inspect the comments on regular business days by making 
arrangements with the contact person shown in this preamble.
    Caution: All comments we receive from members of the public are 
available for public viewing on the Federal eRulemaking portal at 
http://www.regulations.gov. Therefore, you should be careful to include 
in your comments only information that you wish to make publicly 
available on the Internet. We strongly urge you not to include any 
personal information, such as your Social Security number or medical 
information, in your comments.

FOR FURTHER INFORMATION CONTACT: Brent Hillman, Social Security 
Administration, 5107 Leesburg Pike, Falls Church, Virginia 22041-3260, 
(703) 605-8280, 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.

SUPPLEMENTARY INFORMATION: 

Electronic Version

    The electronic file of this document is available on the date of 
publication in the Federal Register at http://www.gpoaccess.gov/fr/index.html.

Introduction

    We are committed to improving the efficiency of the hearing process 
under the Old Age, Survivors, and Disability Insurance (OASDI) programs 
under title II of the Social Security Act (Act) and the Supplemental 
Security Income (SSI) program under title XVI of the Act. As part of 
our plan to carry out that commitment, we propose to amend our rules 
and clarify that the agency is responsible for setting the time and 
place for an administrative law judge hearing.
    The growth of our pending workloads at the ALJ-hearing level has 
been well-publicized, and we are attempting to address this growth and 
prepare for anticipated increases in hearing requests. Our Inspector 
General audited ALJ productivity and concluded that we must increase 
productivity if we are to eliminate the hearings backlog. This 
proposal, in connection with other proposed rule changes, will aid us 
in increasing the productivity of those ALJs who are not processing a 
sufficient number of cases and allow us to meet our goal to provide 
better service to claimants seeking a hearing before an ALJ. We 
anticipate exercising this authority only in those situations where 
productivity is below what we need to meet our goal to drive down the 
backlog.
    We recognize that the amendment to clarify that the agency sets the 
time and place of the hearing may be perceived as unwarranted by the 
small number of ALJs who may be affected by it. The agency's 
responsibility to set the time and place of the hearing in no way 
interferes with the well-respected role of the ALJs to hear and decide 
cases. While we believe ALJs will accept this principle, we will 
continue to monitor productivity closely. If hearings are not being 
performed in a prompt and professional manner, we will use all 
available existing authorities to correct that situation. We will also 
monitor the success of this regulation on an agency-wide basis to 
ensure that it does not produce unintended consequences. Where we do 
exercise authority to set the time and place for a hearing before an 
ALJ, we will carefully monitor quality, productivity and accuracy.

Explanation of Changes

    In testimony before various congressional committees, we have

[[Page 66565]]

described the significant challenges that we face in dealing with the 
historically large number of pending hearing requests. We have 
explained to the committees that we must process a sufficient number of 
cases at the hearing level if we are to reduce the hearings backlog. We 
have testified that a minority of ALJs do not schedule enough hearings, 
and that our current rules do not provide adequate avenues for 
addressing these workload issues. This proposed rule would help us 
reduce the number of pending hearing requests and meet the needs of the 
public.
    In addition, Social Security's Inspector General conducted an audit 
of ALJ caseload performance. In the final report of his findings, the 
Inspector General stated that in fiscal year (FY) 2006, 502 of the 895 
fully available ALJs processed fewer than 500 cases. ``If the 502 ALJs 
processed 500 cases each and the remaining fully and partially 
available ALJs' production remained constant, [we] would be able to 
stay abreast of incoming hearing requests and make progress in reducing 
the backlog through FY 2012.'' Administrative Law Judges' Caseload 
Performance, A-07-07-17072 p. 8 (Feb. 6, 2008). Nevertheless, even at 
that level of production, we would need 87 additional ALJs over the FY 
2006 ALJ level to eliminate the backlog by 2013. Id.
    We now expect that over the coming years, we will receive a 
significant increase in the number of hearing requests over the number 
that the Inspector General had accounted for in his report. As a 
consequence, we expect that ALJs will need to process at least 500 
cases per year in order to meet our goals for 2013.
    Under our current rules, ALJs may set the time and place for 
hearings. In practice, each ALJ presents hearing office staff with a 
schedule of times that he or she is available to conduct administrative 
hearings. We know that under this process, some ALJs, but certainly not 
all, do not always present the scheduling staff with sufficient 
available hours to process the number of cases needed to reduce the 
backlog of pending hearing requests.
    Conflicts with medical and vocational experts' and contract hearing 
recorders' schedules may further impede our ability to schedule a 
sufficient number of hearings to drive down the backlog. The hearing 
office staff also attempts to coordinate scheduling with the claimant's 
representative, if any, to avoid potential scheduling conflicts. These 
conflicts escalate when an ALJ does not allot sufficient available 
times to hold hearings. Consequently, through this proposed rule, we 
could ensure that those ALJs who do not process a sufficient number of 
cases have enough of them docketed for hearings to drive down and 
eliminate the backlog by 2013.
    By using a broader range of available times and dates, we will more 
efficiently schedule an adequate number of hearings to meet our goals. 
The proposed changes would permit us to more uniformly distribute the 
hearings workload to meet the needs of the entire hearing office. We 
expect that we will need to exercise this authority in only those 
situations where an ALJ is not scheduling the number of hearings that 
we consider sufficient.
    Further, this proposal would assist in the development of the 
electronic scheduling initiative. We are planning to implement 
electronic scheduling of hearings which will ease the integration of 
the schedules of ALJs, experts, claimants, claimants' representatives, 
hearing recorders, and the availability of hearing rooms.

Relation to Other Proposed Changes

    We recognize that we have already proposed changes to some of these 
rules (72 FR 61218 (2007)), but have not finalized those proposed 
changes to sections 404.936, 404.938, 404.950, 416.1436, 416.1438, and 
416.1450. Should those proposed changes become final, we intend to 
modify the changes proposed herein accordingly as necessary.

Clarity of These Proposed Rules

    Executive Order 12866, as amended, requires each agency to write 
all rules in plain language. In addition to your substantive comments 
on these proposed rules, we invite your comments on how to make them 
easier to understand.
    For example:
     Have we organized the material to suit your needs?
     Are the requirements in the rules clearly stated?
     Do the rules contain technical language or jargon that 
isn't clear?
     Would a different format (grouping and order of sections, 
use of headings, paragraphing) make the rules easier to understand?
     Would more (but shorter) sections be better?
     Could we improve clarity by adding tables, lists, or 
diagrams?
     What else could we do to make the rules easier to 
understand?

When Will We Start To Use These Rules?

    We will not use these rules until we evaluate the public comments 
we receive on them, determine whether they should be issued as final 
rules, and issue final rules in the Federal Register. If we publish 
final rules, we will explain in the preamble how we will apply them, 
and summarize and respond to the public comments. Until the effective 
date of any final rules, we will continue to use our current rules.

Regulatory Procedures

Executive Order 12866, As Amended

    We have consulted with the Office of Management and Budget (OMB) 
and determined that these proposed rules meet the criteria for a 
significant regulatory action under Executive Order 12866, as amended. 
Thus, they were subject to OMB review.
    The Office of the Chief Actuary estimates that this proposed rule, 
if finalized, would increase the program costs of the OASDI and SSI 
programs by $1.2 billion. The table below presents our estimates of the 
increases in OASDI benefit payments and Federal SSI payments over the 
fiscal year period 2009-18 resulting from the increases in ALJ 
dispositions assumed to occur as a result of the proposed rule change. 
The estimates are consistent with the assumptions underlying the Mid-
Session Review of the President's FY 2009 Budget, and assume that the 
proposed rule will be published as a final rule on July 1, 2009.

 Table 1--Estimated Increases in OASDI benefits and Federal SSI payments
                              [In millions]
------------------------------------------------------------------------
                 Fiscal year                    OASDI     SSI     Total
------------------------------------------------------------------------
2009.........................................  .......  .......  .......
2010.........................................      $16       $4      $19
2011.........................................       40       11       50
2012.........................................       68       15       83
2013.........................................       97       24      121
2014.........................................      127       32      159
2015.........................................      158       40      198
2016.........................................      159       46      205
2017.........................................      155       45      200
2018.........................................      146       44      189
                                              --------------------------
Totals:
    2009-13..................................      219       54      273
    2009-18..................................      964      261    1,225
------------------------------------------------------------------------
(Totals may not equal the sum of components due to rounding.)

    In providing estimates of the effects of this change on benefits, 
we assume that under the proposed rule the agency would begin 
scheduling hearings for a small number of judges in FY 2010,

[[Page 66566]]

resulting in a modest increase in the number of ALJ dispositions that 
year.
    Through 2018, we project that the additional benefit outlays 
associated with this regulation would be about $964 million for OASDI 
and about $261 million for SSI. Over the long-range 75-year projection 
period, we estimate that this rule would increase benefits by a 
negligible amount (i.e., less than 0.005 percent of taxable payroll).

  Table 2--Accounting Statement: Estimated Economic Impact of Providing
 Authority for SSA To Schedule Administrative Law Judge Hearings, Fiscal
                     Years 2009-2018 in 2008 Dollars
------------------------------------------------------------------------
                 Category                             Transfers
------------------------------------------------------------------------
Annualized Monetized Transfers............  $91.3 million (7% discount
                                             rate).
                                            $97.7 million (3% discount
                                             rate).
From Whom To Whom?                          From the Social Security
                                             trust funds and the general
                                             fund to SSA beneficiaries.
------------------------------------------------------------------------

Regulatory Flexibility Act

    We certify that these proposed rules would 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 proposed rules contain reporting requirements in the 
regulation sections listed below. We previously accounted for these 
public reporting burdens in the Information Collection Requests for the 
various forms or regulations the public uses to submit the information 
to SSA. Consequently, we are inserting a 1-hour placeholder burden in 
these sections.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                  Average
                                                   Description of public         Number of     Frequency of     burden per
             Regulation section                    reporting requirement        respondents      response        response      Estimated annual  burden
                                                                                (annually)                       (minutes)
--------------------------------------------------------------------------------------------------------------------------------------------------------
404.932/416.1432............................  SSA may notify a person to      ..............  ..............  ..............  1 hour.
                                               appear at an ALJ hearing or
                                               present evidence if SSA
                                               decides the person will be
                                               affected by the ALJ's
                                               decision.
404.936(d)-(e)/416.1436(d)-(e)..............  If someone objects to the time/ ..............  ..............  ..............  1 hour.
                                               place of the scheduled ALJ
                                               hearing, the person must
                                               notify SSA and provide good
                                               cause for changing the
                                               hearing's time or place.
404.938(a)/416.1438(a)......................  SSA will notify affected        ..............  ..............  ..............  1 hour.
                                               parties of the time/place of
                                               an ALJ hearing, unless those
                                               parties have previously
                                               stated in writing they do not
                                               want to receive this notice.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    SSA submitted an Information Collection Request for clearance of 
these regulation sections to 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 ways to minimize 
the burden on respondents, including the use of automated techniques or 
other forms of information technology. If you would like to submit 
comments, please send them to the following: Office of Management and 
Budget, Attn: Desk Officer for SSA, Fax Number: 202-395-6974, E-mail 
address: [email protected]. Social Security Administration, 
Attn: Reports Clearance Officer, 6401 Security Blvd., Baltimore, MD 
21235-0001, Fax Number: 410-965-6400, E-mail: [email protected].
    You can submit comments for up to 60 days after the publication of 
this notice; however, your comments will be most useful if you send 
them to SSA within 30 days of publication. To receive a copy of the OMB 
clearance package, contact the SSA Reports Clearance Officer using any 
of the above contact methods.

(Catalog of Federal Domestic Assistance Program No. 96.001, Social 
Security--Disability Insurance; 96.002, Social Security--Retirement 
Insurance; 96.004, Social Security--Survivors Insurance; 96.006, 
Supplemental Security Income)

List of Subjects

20 CFR Part 404

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

20 CFR Part 416

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

    Dated: November 3, 2008.
Michael J. Astrue,
Commissioner of Social Security.
    For the reasons set out in the preamble, we propose to amend 
subpart J of part 404 and subpart N of part 416 of chapter III of title 
20 of the Code of Federal Regulations 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, 223(i), 225, and 702(a)(5) of the Social Security Act (42 
U.S.C. 401(j), 404(f), 405(a), (b), (d)-(h), and (j), 421, 423(i), 
425, and 902(a)(5)); sec. 5, Pub. L. 97-455, 96 Stat. 2500 (42 
U.S.C. 405 note); secs. 5, 6(c)-(e), and 15, Pub. L. 98-460, 98 
Stat. 1802 (42 U.S.C. 421 note); sec. 202, Pub. L. 108-203, 118 
Stat. 509 (42 U.S.C. 902 note).

    2. Amend Sec.  404.932 by revising the second sentence of paragraph 
(b) to read as follows:

[[Page 66567]]

Sec.  404.932  Parties to a hearing before an administrative law judge.

* * * * *
    (b) * * * In addition, any other person may be made a party to the 
hearing if his or her rights may be adversely affected by the decision, 
and we notify the person to appear at the hearing or to present 
evidence supporting his or her interest.
    3. Amend Sec.  404.936 by revising the first and second sentences 
of paragraph (a) and paragraphs (c), (d), and (e) introductory text to 
read as follows:


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

    (a) General. We set the time and place for the hearing. We may 
change the time and place, if it is necessary. * * *
* * * * *
    (c) Determining how appearances will be made. In setting the time 
and place of the hearing, we will consult with the administrative law 
judge, who will determine 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 determine 
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 determines that there is no 
circumstance in the particular case that prevents the 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.
    (d) Objecting to the time and place of the hearing. If you object 
to the time or place of your hearing, you must notify us 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. We will change the time or place of the hearing if the 
administrative law judge finds 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 for your hearing by video teleconferencing and you 
notify us 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 we 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 we will reschedule your 
hearing, if your reason is one of the following circumstances and is 
supported by the evidence:
* * * * *
    4. Amend Sec.  404.938 by revising the first sentence of paragraph 
(a) to read as follows:


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

    (a) Issuing the notice. After we set 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. * * *
* * * * *
    5. Revise the third sentence of Sec.  404.950(b) to read as 
follows:


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

* * * * *
    (b) * * * Even if all of the parties waive their right to appear at 
a hearing, we may notify them of a time and a place for an oral 
hearing, if the administrative law judge believes that a personal 
appearance and testimony by you or any other party is necessary to 
decide the case.
* * * * *

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

Subpart N--[Amended]

    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 1383(b); sec. 202, Pub. 
L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note).

    7. Amend Sec.  416.1432 by revising the second sentence of 
paragraph (b) to read as follows:


Sec.  416.1432  Parties to a hearing before an administrative law 
judge.

* * * * *
    (b) * * * In addition, any other person may be made a party to the 
hearing if his or her rights may be adversely affected by the decision, 
and we notify the person to appear at the hearing or to present 
evidence supporting his or her interest.
    8. Amend Sec.  416.1436 by revising the first and second sentences 
of paragraph (a) and paragraphs (c), (d), and (e) introductory text to 
read as follows:


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

    (a) General. We set the time and place for the hearing. We may 
change the time and place, if it is necessary. * * *
* * * * *
    (c) Determining how appearances will be made. In setting the time 
and place of the hearing, we will consult with the administrative law 
judge, who will determine 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 determine 
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 determines that there is no 
circumstance in the particular case that prevents the 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 and place of the hearing. If you object 
to the time or place of your hearing, you must notify us 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. We will change the time or place of the hearing if the 
administrative law judge finds 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 for your hearing by video teleconferencing and you 
notify us 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 we will 
reschedule your hearing for a time and

[[Page 66568]]

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 we 
will reschedule your hearing, if your reason is one of the following 
circumstances and is supported by the evidence:
* * * * *
    9. Amend Sec.  416.1438 by revising the first sentence of paragraph 
(a) to read as follows:


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

    (a) Issuing the notice. After we set 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. * * *
* * * * *
    10. Revise the third sentence of Sec.  416.1450(b) to read as 
follows:


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

* * * * *
    (b) * * * Even if all of the parties waive their right to appear at 
a hearing, we may notify them of a time and a place for an oral 
hearing, if the administrative law judge believes that a personal 
appearance and testimony by you or any other party is necessary to 
decide the case.
* * * * *
[FR Doc. E8-26681 Filed 11-7-08; 8:45 am]
BILLING CODE 4191-02-P