[Federal Register Volume 84, Number 243 (Wednesday, December 18, 2019)]
[Rules and Regulations]
[Pages 69298-69308]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-27172]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Docket No. SSA-2017-0015]
RIN 0960-AI09


Setting the Manner for the Appearance of Parties and Witnesses at 
a Hearing

AGENCY: Social Security Administration.

ACTION: Final rule.

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SUMMARY: We are publishing a final rule we proposed in November 2018 
regarding setting the time, place, and manner of appearance for 
hearings at the administrative law judge (ALJ) level of our 
administrative review process, with modifications. Our final rule 
states that we (the agency) will determine how parties and witnesses 
will appear at a hearing before an ALJ, and that we will set the time 
and place for the hearing accordingly. We will schedule the parties to 
a hearing to appear by video teleconference (VTC), in person, or, in 
limited circumstances, by telephone. Under this final rule, we will 
decide how parties and witnesses will appear at a hearing based on 
several factors, but the parties to a hearing will continue to have the 
ability to opt out of appearing by VTC at the ALJ hearings level. 
Finally, we are revising our rule to state that, at the ALJ hearing 
level, if we need to send an amended notice of hearing, or if we need 
to schedule a supplemental hearing, we will send the amended notice or 
notice of supplemental hearing at least 20 days

[[Page 69299]]

before the date of the hearing. The date of hearing indicated in the 
amended notice or notice of supplemental hearing will be at least 75 
days from the date we first sent the claimant a notice of hearing, 
unless the claimant has waived his or her right to advance notice.

DATES: This rule is effective January 17, 2020.

FOR FURTHER INFORMATION CONTACT: Susan Swansiger, Office of Hearings 
Operations, Social Security Administration, 5107 Leesburg Pike, Falls 
Church, VA 22041, (703) 605-8500. 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: 

Background

    To provide better customer service and most efficiently manage our 
workloads, while maintaining accuracy and fundamental fairness in our 
hearing process, we seek to maximize the case processing efficiencies 
and flexibility allowed by all appropriate manners of appearance at 
hearings. Available manners of appearance for hearings include in 
person, by VTC, and in limited circumstances, by telephone. In support 
of these goals, our Office of the Inspector General and the 
Administrative Conference of the United States (ACUS) have repeatedly 
recommended that we increase use of VTC technology to conduct 
administrative hearings. As well, the Social Security Advisory Board 
(SSAB) has commented that the use of VTC ``obviously meets the 
requirements of due process and it is in widespread use in other types 
of adjudications.'' \1\
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    \1\ SSAB, Improving the Social Security Administration's Hearing 
Process, at 21 (Sep. 2006), available at: http://www.ssab.gov/Portals/0/OUR_WORK/REPORTS/HearingProcess_2006.pdf.
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    To achieve the increased efficiency and reduced processing delays 
of hearings referenced by ACUS and the SSAB, we published a notice of 
proposed rulemaking (NPRM) in the Federal Register on November 15, 
2018.\2\ In the NPRM, we proposed clarifications and revisions to our 
rule for setting the manner of appearance for parties and witnesses at 
a hearing. To the extent that we already discussed at length the 
reasons for and details of the proposed changes, we will not repeat 
that information here.
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    \2\ 83 FR 57368, available at https://www.federalregister.gov/documents/2018/11/15/2018-24711/setting-the-manner-for-the-appearance-of-parties-and-witnesses-at-a-hearing.
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    The changes that we proposed and are now adopting will provide us 
with the flexibility we need to address service challenges by allowing 
us to balance our hearing workloads in a way that we expect will reduce 
overall wait and processing times across the country, and the 
processing time disparities among offices. However, in response to the 
overwhelming preference expressed by public commenters in response to 
the NPRM, we are retaining the existing option for a party to a hearing 
to opt out of appearing by VTC at the ALJ hearing level. If the AC 
exercises removal authority for a case, it will continue to follow all 
the rules that apply to the ALJ level of adjudication.\3\
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    \3\ 20 CFR 404.956, 416.1456.
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    Besides the changes we proposed for setting the time, place, and 
manner of appearance for hearings, we also proposed one clarification 
to our rule regarding the notice of hearing at the ALJ hearing level. 
Under our current rule, we send a notice of hearing at least 75 days 
prior to the date of the scheduled hearing to all parties and their 
representative, if any.\4\ In addition to the time and place of a 
hearing, the notice has other information, including the issues to be 
decided, the right to representation, how to request a change in the 
time of the hearing, and how appearances will be made. We proposed to 
clarify that when we send an amended notice of hearing or notice of 
supplemental hearing, we would send the amended notice or notice of 
supplemental hearing at least 20 days prior to the hearing. If we need 
to change the date of a hearing, the date we choose will always be at 
least 75 days from the date we first sent the claimant a notice of 
hearing, unless the claimant has waived his or her right to advance 
notice.
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    \4\ 20 CFR 404.938(a), 416.1438(a).
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    Finally, we also proposed in the NPRM to make changes to our rule 
about scheduling hearings before disability hearing officers (DHO) in 
Sec. Sec.  404.914 and 416.1414. Our proposed changes to those sections 
generally tracked our proposed changes to the regulations that regard 
scheduling hearings before ALJs, including our proposal to not allow a 
party to a hearing to opt out of appearing by VTC. We are not pursuing 
changes to Sec. Sec.  404.914 and 416.1414 at this time.
    We made changes from the proposed rule in the final rule.
     We removed the proposed revisions to Sec. Sec.  404.914 
and 416.1414.
     We changed ``them'' to ``witnesses'' for clarity in final 
Sec. Sec.  404.936(c)(4) and 416.1436(c)(4).
     We retained existing Sec. Sec.  404.936(d) and 
416.1436(d), which allow a party to a hearing before an ALJ to object 
to appearing by VTC, and we moved and re-ordered the proposed text from 
the NPRM paragraphs (d) and (e) to (e) and (f) respectively.
     We added ``or notice of supplemental hearing'' to the 
paragraph heading in final Sec. Sec.  404.938(d) and 416.1438(d) to 
ensure readers understand the breadth of the paragraphs.
    In response to the NPRM, we received and posted 244 public comments 
that addressed issues within the scope of our proposed rule, and we 
received one comment that we did not post because an individual made it 
in his or her official capacity as a Social Security Administration 
(SSA) employee. Below we respond to the significant concerns that 
public commenters raised that are within the scope of the final rule.

Public Comments and Discussion

Authorizing the Agency To Set the Time, Place, and Manner of Appearance 
for Hearings

    Comment: Some commenters opposed our proposal to allow the agency, 
rather than an ALJ, to set the time, place, and manner of appearance 
for the hearing. They maintained that our proposed changes are 
inconsistent with longstanding rule providing that ALJs set the time, 
place, and manner of appearance at hearings, and that ALJs should 
continue to do so as a fundamental function of their authority.
    Response: Because the agency, rather than any individual 
adjudicator, is responsible for managing our nationwide hearing 
process, we are best placed to appropriately balance the overriding 
concerns that have animated our hearing process since it began in 1940: 
Our hearing process provides due process for each claimant and works 
efficiently and uniformly across the country.\5\ We intend to balance 
concerns about due process, efficiency, and uniformity under this final 
rule and implement a standard, uniform scheduling process nationwide, 
while keeping maximum flexibility. By managing the process of 
scheduling hearings, maximizing our ability to transfer workloads, and 
exercising flexibility to determine the manner of appearance, we intend 
to promote a more timely hearing process that

[[Page 69300]]

provides greater consistency between the length of time a claimant 
requests a hearing and the date a hearing can be held. We expect that 
shifting the administrative task of scheduling hearings from individual 
ALJs to the agency will allow us to increase the overall efficiency of 
our hearing process and provide more consistent service to the public.
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    \5\ See, e.g., Barnhart v. Thomas, 540 U.S. 20, 28-29 (2003); 
Richardson v. Perales, 402 U.S. 389, 399 (1971).
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    Further, allowing the agency to set the claimant's manner of 
appearance is an administrative, logistical function that does not 
affect an ALJ's qualified decisional independence or significantly 
alter the functioning of our hearing process. Under this final rule, 
our current policy of generally assigning cases to ALJs on a rotational 
basis with the earliest hearing requests receiving priority will remain 
the same. We will also continue to make scheduling decisions in 
conjunction and consultation with our ALJs. Our ALJs will continue to 
provide their availability for hearings, decide necessary participants 
to the hearing, and evaluate the sufficiency of a record in determining 
when a hearing should be held. As part of this evaluation, the ALJ will 
have the opportunity to raise any factors in a particular case that 
would assist us in choosing the most appropriate time, place, and 
manner of appearance for the parties and witnesses.
    Comment: Some commenters expressed concern that the rule does not 
define any standards to determine whether a VTC hearing is less 
efficient than conducting a hearing in-person, nor does the rule 
include any standards for determining if there is good reason to 
conduct a hearing by VTC or in person.
    Response: When we consider whether it would be less efficient to 
schedule a party to appear by VTC, we will consider the overall 
efficiency of our hearing process. As we explained above and in our 
NPRM, we expect the final rule to help us reduce imbalances in the wait 
time among hearing offices by making it easier for us to shift cases 
from overburdened hearing offices to hearing offices with fewer 
requests for hearing pending per ALJ. Leveraging VTC technology to 
better balance our workloads is key to addressing our oldest pending 
cases, and it also allows us to act quickly when service needs arise 
from unanticipated emergencies, e.g., by transferring cases to a 
hearing office not in close geographical proximity to the claimant. All 
of these efficiencies will promote our ultimate goal of decreasing the 
total number of cases pending at the hearing level, and giving each 
claimant a more timely hearing and hearing decision.
    Moreover, due to advances in video technology and our investments 
in VTC technology, our adjudicators are able to hear, see, and interact 
with the parties to a hearing as effectively through VTC as they would 
during an in-person appearance. Accordingly, we do not believe there 
are categorical circumstances that will always provide a good reason to 
schedule an individual to appear by VTC or in person. The overall 
efficiency of the hearing process and the need to provide fair, timely 
hearings to each claimant will continue to guide our decisions on how 
we schedule the manner of appearance under the final rule.

Not Allowing the Parties to a Hearing To Opt Out of or Object To 
Appearing by VTC

    Comment: Multiple commenters stated that claimants should continue 
to have the option to opt out of or object to appearing by VTC in favor 
of appearing in person. Some commenters noted that when we revised our 
rule related to VTC hearings in the past, we specifically declined to 
require claimants to appear by VTC. The commenters maintained that our 
current policy works well and should not be changed.
    Response: We acknowledge the commenters' near-universal preference 
for our current policy, which allows a party to a hearing before an ALJ 
to opt out of appearing by VTC. In response to this expressed 
preference, in the final rule we retained the regulatory provision 
allowing a party to a hearing before an ALJ to opt out of appearing by 
VTC, as it currently appears in Sec. Sec.  404.936(d) and 416.1436(d). 
The AC will continue to follow all the rules that apply to ALJs when 
they remove a case.\6\ However, we maintain our position, which we 
stated in the NPRM, that an individual's decision to decline appearing 
by VTC can adversely affect the efficiency of our hearing process, and 
may result in a longer wait time for the individual's in-person 
hearing.
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    \6\ 20 CFR 404.956, 416.1456.
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    While we are retaining the opt out provision, we note that VTC 
technology is expected to help us reduce imbalances in the wait time 
among hearing offices. As well, the use of VTC technology allows us to 
shift cases in which the claimant did not object to appearing by VTC 
from overburdened hearing offices to hearing offices with fewer 
requests for hearing pending per ALJ. We anticipate that the effect of 
these process improvements will be to improve the balance across the 
country and decrease the total number of cases pending at the ALJ 
hearing level, thereby providing claimants with more timely hearing 
decisions and benefit payments to individuals whom we find entitled to 
disability benefits.
    Comment: A commenter also expressed that we should retain the 
ability to opt out of appearing by VTC based on the commenter's 
assertion that not all individuals with disabilities have access, nor 
can they arrange access, to the internet to appear by VTC.
    Response: As previously mentioned, under this final rule, a party 
to a hearing before an ALJ will still have an opportunity to opt out of 
appearing by VTC. Nevertheless, we note that this comment appears to 
reflect a misunderstanding of our intent and how we conduct VTC 
hearings. We conduct VTC hearings in our facilities or at those 
representative's offices that are suitably equipped. We do not require 
any individual to have internet access at their home when we conduct a 
VTC hearing.

Section 504 of the Rehabilitation Act of 1973

    Comment: Many commenters said that our proposed rule would violate 
section 504 of the Rehabilitation Act of 1973 (section 504).\7\ These 
comments primarily regarded our proposal to remove the option for 
parties to opt out of or object to appearing at a hearing by VTC.
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    \7\ 29 U.S.C. 794, Public Law 93-112, title V, Sec. 504, Sept. 
26, 1973, 87 Stat. 394.
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    Response: As noted above, we are not proceeding with our proposal 
to remove the option for parties to opt out of or object to appearing 
at a hearing by VTC. Moreover, we have pre-existing procedures for 
handling section 504 accommodation requests that we will continue to 
follow after the effective date of this final rule.

Evaluating Subjective Complaints and Activities of Daily Living When 
the Parties to a Hearing Appear by VTC

    Comment: Some commenters alleged that there are substantive 
differences between VTC hearings and in-person hearings when the 
adjudicator has to make findings about the intensity, persistence, and 
limiting effects of the individual's symptoms. The commenters opined 
that when an individual appears by VTC, the adjudicator may not be able 
to evaluate the intensity, persistence, and limiting effects of his or 
her symptoms in a policy compliant manner. Other commenters also 
asserted that only an

[[Page 69301]]

in-person appearance can adequately convey some aspects of a claimant's 
presence, such as odor. These commenters noted that grooming and 
hygiene are among the activities of daily living that an adjudicator 
considers when deciding some claims such that a claimant may reasonably 
prefer to appear in person to permit the adjudicator to smell him or 
her. Several commenters also expressed concerns about technological 
issues and variability in the quality of VTC hearings.
    Response: We are committed to ensuring all hearings are conducted 
in a consistent and fair manner using modern technology, and because of 
the efforts we have made to ensure this happens, we disagree that an 
appearance by VTC may adversely affect the adjudicator's ability to 
evaluate the intensity, persistence, and limiting effects of an 
individual's symptoms. Due to advances in video technology and our 
investment in VTC technology, our adjudicators are able to hear, see, 
and interact with the parties to a hearing as effectively through VTC 
as they would during an in-person appearance. Our video network 
infrastructure allows us to conduct daily business in a reliable and 
stable manner, including holding over 1.7 million video hearings since 
we began conducting video hearings \8\ and opened five National Hearing 
Centers that exclusively use video technology in their business 
process. Moreover, as we explained in the NPRM, over the past three 
years we have refreshed all VTC equipment and infrastructure, resulting 
in better technological quality and experience for users. All SSA-owned 
video units on our network use the Real Presence Group platform, which 
is designed for large enterprise-wide usage necessary for a national 
network of our size. Our video platform provides clear picture and 
audio for all participants. Desktop video units have been replaced with 
new larger Convene desktops with a 27-inch flat panel monitor and Eagle 
Eye camera, ideal for smaller spaces. Hearing rooms are also equipped 
with a 65-inch monitor and Eagle Eye camera. We will continue to 
refresh our video inventory to keep pace with new technology and 
industry standards, including consulting ACUS's recommendations. Our 
ALJs and staff are properly trained to operate the VTC equipment and to 
alert management of any technical issues, which can be dealt with on a 
case-by-case basis by support personnel.
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    \8\ See the Supporting Document ``Number of administrative law 
judge hearings held by video teleconferencing since 2005,'' under 
Docket No. SSA-2017-0015 at: www.regulations.gov.
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    The high quality of our VTC hearings, and the essential parity in 
quality between VTC and in-person hearings, is further evidenced by a 
study conducted by our Office of Quality Review (OQR) in 2017 (which we 
included in the rulemaking docket when we published the NPRM). This 
study found that there was no statistically significant difference in 
the quality rates of fully favorable or unfavorable decisions, 
regardless of whether the hearings were conducted in person or by VTC.
    We also disagree with the comments that claimants must be in the 
same room as adjudicators to detect aspects of the claimant's presence 
that can only be discerned in person, such as odor. We note that when 
an adjudicator evaluates an individual's symptoms, he or she is 
required to limit the evaluation to the individual's statements about 
symptoms and the evidence in the record that is relevant to the 
individual's impairments and activities of daily living.\9\ An 
adjudicator does not assess the individual's overall character or 
truthfulness in the manner typically used during an adversarial 
proceeding.\10\ Instead, when relevant, the adjudicator receives 
testimony from the claimant about his or her activities of daily 
living, and evaluates whether the claimant's statements are consistent 
with the objective and other evidence of record. Moreover, although an 
adjudicator cannot make firsthand observations about an individual's 
body odor when the individual appears by VTC, the distance between the 
adjudicator and the individual during an in-person appearance may 
similarly render the adjudicator unable to make firsthand observations 
about body odor.
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    \9\ Social Security Ruling 16-3p.
    \10\ Id.
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    Objection To Scheduling Expert Witnesses To Appear by Telephone
    Comment: Some commenters also objected to our proposal to schedule 
expert witnesses to appear by telephone, stating that we should remove 
this option (which already exists). These commenters cited concerns 
regarding assumed technical difficulties with telephone connections, 
concerns that expert witnesses appearing via telephone would not 
adequately pay attention to the hearing proceedings, and concerns about 
the security of personally identifiable information (PII) if the expert 
witness is not in a private location. Commenters also stated that 
experts appearing via telephone may not be able to view the electronic 
file during the hearing to review evidence submitted at or shortly 
after the hearing.
    Response: We disagree with these comments, and note that under our 
existing procedures, we already use telephone hearings for expert 
witnesses without experiencing the projected technical difficulties 
cited by the commenters. Under our current rule, expert witnesses 
frequently appear at hearings by telephone. Experts conducted 21 
percent of hearing testimony via telephone in FY 2018 and 37 percent 
thus far in 2019.\11\
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    \11\ See the Supporting Document ``Telephone Appearances by 
Vocational Expert (VE) Witnesses and Medical Expert (ME) 
Witnesses,'' under Docket No. SSA-2017-0015 at: www.regulations.gov.
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    In the past, we have encountered some complications when a hearing 
office did not place calls to expert witnesses through the video units, 
but instead used desk phones or teleconference lines. In such 
situations, the participants at the other video site may have had 
difficulty hearing the expert witness. To avoid this problem, we issued 
reminder instructions to all hearing office managers to place calls to 
experts using the video equipment. Additionally, we require expert 
witnesses to have a landline telephone connection, which should 
minimize any connection issues that may be associated with wireless 
calls. If an expert witness did not comply with our expectations and 
requirements for hearings testimony, we would address those compliance 
issues as we do now, in a manner separate and apart from this final 
rule. Similarly, we already require expert witnesses to properly 
protect PII,\12\ and any issues related to this concern would not be 
affected by this final rule.
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    \12\ https://www.ssa.gov/appeals/public_experts/Medical_Experts_(ME)_Handbook-508.pdf; https://www.ssa.gov/appeals/public_experts/Vocational_Experts_(VE)_Handbook-508.pdf; https://www.fedconnect.net/FedConnect/PublicPages/PublicSearch/Public_Opportunities.aspx (Reference number SSA-RFQ-15-0214); and 
https://www.fedconnect.net/FedConnect/PublicPages/PublicSearch/Public_Opportunities.aspx (Reference number SSA-RFQ-15-0182).
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    Moreover, our subregulatory guidance provides procedures for ALJs 
to follow to ensure all participants are able to hear the ALJ and other 
participants, if multiple participants appear by different means.\13\ 
Our subregulatory guidance also provides procedures for ALJs to ensure 
that expert witnesses review any additional evidence received between 
the time the expert reviewed the file and the time of the hearing and 
to summarize on the record any pertinent testimony for expert witnesses

[[Page 69302]]

who do not attend the entire hearing.\14\ We do not plan to modify 
those existing procedures under the final rule.
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    \13\ Hearings, Appeals, and Litigation Law (HALLEX) Manual I-2-
6-15.
    \14\ HALLEX I-2-6-70 and I-2-6-74.
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    Sending an Amended Notice of Hearing or Notice of Supplemental 
Hearing 20 days Before the Date of the Hearing
    Comment: A number of commenters opposed our proposal to clarify 
that when we need to update the information in a notice of hearing at 
the ALJ hearing level, we will send an amended notice of hearing or 
notice of supplemental hearing at least 20 days, rather than 75 days, 
in advance of the date of the scheduled hearing. Noting that we 
generally allow 5 days mailing time for notices to arrive, these 
commenters stated that claimants and appointed representatives may 
receive the amended notice fewer than 20 days, and possibly only 15 
days, before the hearing. Observing that claimants often need to 
arrange transportation (e.g., paratransit, a ride from a friend or 
relative, etc.), arrange childcare, reschedule medical appointments, or 
meet other needs, these commenters further stated that it would be 
inappropriate and insufficient for us to provide only 20 or fewer days' 
notice about a change to the date or time of a hearing. The commenters 
additionally stated that if claimants receive an amended notice only 15 
calendar days before the scheduled hearing, these claimants may be 
unable to meet other requirements that apply at the ALJ hearing level, 
such as: (1) Requesting a subpoena at least 10 business days in advance 
of a scheduled hearing, or (2) informing the ALJ about or submitting 
written evidence at least 5 business days before the date of the 
scheduled hearing.
    Another commenter stated that our proposal to reduce the amount of 
advance notice that we must provide when updating ``critical facts'' 
about a scheduled hearing is problematic. This commenter stated that 
our current practice, which allows a party to a hearing to waive the 
right to advance notice of the hearing, is sufficient, and that the 
proposed changes will lead to inefficiencies and fewer policy-compliant 
decisions.
    Response: We disagree with the commenters. As we explained in our 
NPRM, if we need to change the date of a scheduled hearing, the new 
date will always be at least 75 days from the date we first sent the 
claimant a notice of hearing, unless the claimant has waived the right 
to advance notice. With this safeguard in place, we expect that the 
vast majority of claimants will be able to meet other requirements that 
apply at the ALJ hearing level.\15\ However, if a claimant is unable to 
comply with relevant timeframes based on his or her receipt of an 
amended notice of hearing, the claimant can inform us of that 
difficulty and request an exception based on an unusual, unexpected, or 
unavoidable circumstance beyond the claimant's control that prevented 
him or her from complying with the applicable timeframe.\16\
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    \15\ See, e.g., 20 CFR 404.935(a), 404.939, 404.949, 
404.950(d)(2), 416.1435(a), 416.1439, 416.1449, 416.1450(d)(2).
    \16\ See 20 CFR 404.935(b)(3), 404.939, 404.949, 404.950(d)(2), 
416.1435(b)(3), 416.1439, 146.1449, 416.1450(d)(2).
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    Further, we frequently send amended hearing notices to update 
information other than the time or date of the hearing. For example, we 
send an amended notice of hearing when we change the name of the 
medical or vocational expert who will testify, add a new witness, 
change the manner of appearance, or change the ALJ assigned to the 
case. As explained in the NPRM, under our current rule, these changes 
required us to send a notice 75 days in advance, resulting in 
rescheduled hearings and unnecessary delays in many cases. By changing 
the timeframe to 20 days, we are able to make these types of changes 
with less impact to our hearings workload and without unnecessarily 
delaying the hearing.
    If we need to change the time or date of a scheduled hearing, we 
will continue to work with both claimants and representatives to 
accommodate schedules, including following our standard business 
process of requesting potential dates and times that the representative 
will be available for hearing.\17\ In this regard, we understand that a 
representative's schedule of availability, once provided to a hearing 
office, may change. We remain committed to working with both claimants 
and representatives when we need to reschedule a hearing and will make 
every effort to provide adequate advance notice that will not impede 
the claimant's ability to comply with deadlines like the 10-day 
deadline for submitting subpoena requests and the 5-day deadline for 
submitting or informing us of written evidence. Additionally, we will 
continue to consider good cause for changing the time of the hearing 
due to issues including, but not limited to, the availability of 
transportation.
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    \17\ See 20 CFR 404.1740(b)(3)(iii) and 416.1540(b)(3)(iii).
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VTC as a Tool To Improve Efficiency

    Comment: Some commenters expressed that we failed to demonstrate 
VTC hearings are more efficient than in-person hearings, or that they 
reduce processing times. These commenters further stated that we did 
not provide adequate data to justify the proposed changes, and that we 
relied on outdated data to support our rationale that more VTC 
appearances will result in more timely hearings. Some commenters 
criticized the quality of the data we relied on, and provided studies 
they asserted refute our conclusions.
    Response: We disagree with these commenters. In the preamble to our 
NPRM, we provided an extensive discussion about our historical and 
ongoing experience using VTC technology and the flexibility it provides 
to manage our hearing workloads. We also explained that the number of 
ALJs available to conduct in-person hearings is generally limited to 
those ALJs stationed at, or geographically close to, the assigned 
hearing office or within travel distance to one of our permanent remote 
sites. As we explained, requiring an ALJ to travel to a remote hearing 
site for an in-person hearing reduces the amount of time the ALJ can 
devote to holding other hearings and issuing decisions from his or her 
assigned hearing office.
    We further explained that prior studies, both internal and 
external, have found that utilizing VTC technology to conduct 
administrative hearings provides multiple benefits, including improved 
processing times and additional flexibility with respect to aged and 
backlogged hearing requests.
    We stand by the quality of the data we relied on in the 2017 study 
by our OQR, which found there was no statistically significant 
difference in the quality rates of fully favorable or unfavorable 
decisions, regardless of whether the hearings were held in person or 
via VTC. The data used in the study represented a national random 
sample of recent cases. The data sample also fully accounts for 
improved technological changes that we implemented in the past three 
years.
    Several commenters said that a 2018 Government Accountability 
Office (GAO) study refutes our findings, and supports the conclusion 
that individuals who had in-person hearings received favorable 
decisions at a higher rate than claimants who had VTC hearings.\18\ 
However, unlike our studies, the GAO study was not designed to study 
the effects of VTC on allowance rates, and it did not account for all 
factors that

[[Page 69303]]

could affect this relationship. Further, GAO's study covered cases from 
2007 to 2015, the earlier of which did not benefit from technological 
enhancements that we fully accounted for in the more recent OQR study. 
GAO studied variances in allowance rates, but not the accuracy of the 
decisions. Notably, the GAO study found there was no meaningful 
difference in allowance rates between similar claims decided by 
adjudicators at our National Hearing Centers, which exclusively conduct 
VTC hearings, and traditional hearing offices.
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    \18\ GAO, Social Security Disability, Additional Measures and 
Evaluation Needed to Enhance Accuracy and Consistency of Hearings 
Decisions, GAO-18-37 (December 2017), available at: https://www.gao.gov/assets/690/688824.pdf.
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    Many of the studies and articles cited by commenters in support of 
their statements that VTC will impact the fairness of hearings do not 
account for technological enhancements that occurred after the 
respective studies were conducted, or the non-adversarial nature of our 
proceedings. For example, one commenter relied on a study from the 
1970s that found differences between video testimony and live 
testimony, particularly with regard to the perception of honesty.\19\ 
However, that study does not reflect the significant technological 
advancements that have occurred since the 1970s; these advancements 
enable the fact finder to see, hear, and interact with individuals as 
easily by VTC as in person. A 2007 article, also cited by commenters, 
that examined eviction hearings held by VTC, and that analyzed the 
impact of the conclusions in the criminal proceedings, is also not 
directly relevant to our VTC hearings.\20\ SSA hearings are non-
adversarial and have the benefit of technological enhancements over the 
past 12 years. Another commenter cited the Advisory Committee Notes to 
Rule 43 of the Federal Rules of Civil Procedure regarding testimony at 
trial, which is distinguishable because our hearings are not trials, 
and adjudicators are not bound by the procedures set forth in the 
Federal Rules of Evidence.
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    \19\ Gerald R. Williams, et al., Juror Perceptions of Trial 
Testimony as a Function of the Method of Presentation: A comparison 
of Live, Color Video, Black-and-White Video, Audio, and Transcript 
Presentations, 1975 BYU L. Rev. (1975).
    \20\ Sossin, Lorne and Yetnikoff, Zimra, I Can See Clearly Now: 
Videoteleconference Hearings and the Legal Limit on How Tribunals 
Allocate Resources. Windsor Yearbook of Access to Justice, 2007 
(August 5, 2007), available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1205123.
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    As we previously explained, we expect that we will be able to 
better balance our workloads by increasing our use of VTC technology. 
Specifically, we expect that we will be able to decrease the total 
number of cases pending at the ALJ hearing level by shifting cases from 
overburdened hearing offices to hearing offices with fewer requests for 
hearing pending per ALJ. In addition, as we discussed earlier, we are 
retaining the existing option allowing a claimant to decline a video 
hearing, which already exists at the ALJ hearing level, and the AC will 
continue to apply ALJ hearing rules for cases they remove for a 
hearing.
    Discussion of Our Use of the ACUS and SSAB Studies
    Comment: Some commenters stated that we mischaracterized the 
findings of a study from ACUS to justify our proposed changes. 
Specifically, commenters stated that we implied that ACUS's report 
endorses mandatory appearances by VTC.
    Response: We disagree that we mischaracterized ACUS's study, as 
evidenced by the fact that when ACUS submitted a comment on our 
proposed rule, ACUS merely stated that its views were already reflected 
in its reports and recommendations, and ACUS thanked us for considering 
its views and drawing upon its research studies. Moreover, in the NPRM, 
we explained that ACUS: Has identified a number of advantages to using 
VTC at administrative hearings; has noted that agencies with high 
volume caseloads are likely to receive the most benefit, cost savings, 
or both from using VTC; published a Handbook on Best Practices for 
Using Video Teleconferencing in Adjudicatory Hearings; \21\ documented 
that VTC has been widely accepted as an important tool that increases 
our ability to hold hearings and improve public service; and has 
repeatedly recommended that we increase our use of VTC hearings to 
achieve greater efficiency. Thus, we did not state or imply that ACUS 
supported our specific proposal to disallow the parties to a hearing to 
opt out of or object to appearing by VTC.
---------------------------------------------------------------------------

    \21\ The ACUS Handbook is available at: https://www.acus.gov/report/handbook-best-practices-using-video-teleconferencing-adjudicatory-hearings.
---------------------------------------------------------------------------

    We recognize that ACUS specifically recommended expansion of VTC on 
a voluntary basis, while allowing a party to have an in-person hearing 
or proceeding if he or she selected that option.\22\ However, as set 
forth in our NPRM, we based our proposed rule not solely on the ACUS 
study, but also on: Our own extensive experience with VTC hearings; 
multiple internal and external studies that have documented the 
benefits of VTC hearings; technological advances that enable an 
adjudicator to see, hear, and interact with individuals as easily by 
VTC as in person; our need to balance workloads and address service 
challenges while maintaining fairness and participant satisfaction; and 
SSAB's specific recommendation that we eliminate the ability to opt-out 
of VTC hearings. Regardless, we reiterate that we are retaining the 
existing option for a party to a hearing to opt out of appearing by VTC 
at the ALJ hearing level and AC hearing removal.
---------------------------------------------------------------------------

    \22\ ACUS Recommendation 2011-4, Agency Use of Video Hearings: 
Best Practices and Possibilities for Expansion, 76 FR 48789, 48796 
(2011), available at: https://www.acus.gov/recommendation/agency-use-video-hearings-best-practices-and-possibilities-expansion.
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Objections to the Rule Based on the Regulatory Flexibility Act and 
Paperwork Reduction Act

    Comment: One commenter objected to the NPRM based on the assertion 
that the NPRM, and thus this final rule, require a Regulatory 
Flexibility Act (RFA) analysis. The commenter made several claims to 
support this view, including, ``[s]ome claimants will withdraw hearing 
requests rather than go through with a VTC hearing'' which, the 
commenter contends, will affect experts and representatives. The 
commenter also contended ``[r]epresentatives with disabilities that 
require the reasonable modification of an in-person hearing will have 
to stop or curtail their work on Social Security cases if they can no 
longer choose to represent only claimants who have opted out of video 
hearings.'' Finally, the commenter stated, ``The proposed changes to 
notice rules may also require additional travel costs or hiring of 
supplemental staff for representatives if hearings are changed with 
only 20 days' notice.''
    Response: We disagree with this commenter. In our NPRM, we 
explained that our proposed rule would not have a significant economic 
impact on a substantial number of small entities because they would 
affect individuals only. Accordingly, we certified that an analysis as 
provided in the RFA, as amended, was not required. We certify the same 
with respect to this final rule.
    We note that the commenter's assertion that an RFA analysis is 
required is predicated, in part, on our proposal to disallow a party to 
a hearing to opt out of, or object to, appearing by VTC. As previously 
mentioned, in this final rule, we are retaining the existing option for 
a party to a hearing before an ALJ to object to appearing by VTC. 
Additionally, at this time, we are not pursuing changes to our rule 
about scheduling hearings before DHOs.
    While the commenter also asserted that our proposal to send an 
amended notice of hearing or notice of supplemental hearing at least 20 
days before the date of the hearing would

[[Page 69304]]

require additional travel or supplemental staff costs, the commenter 
did not explain why. Furthermore, as explained above, if we need to 
change the date of a hearing, the date we choose will always will be at 
least 75 days from the date we first sent the claimant a notice of 
hearing, unless the claimant has waived his or her right to advance 
notice. Additionally, if we need to change the date or time of a 
hearing, or schedule a supplemental hearing, we will continue to work 
with claimants and representatives to accommodate schedules.
    Comment: The same commenter stated our NPRM was invalid because we 
stated in the preamble that the proposed rule did not impose any new or 
significantly revise existing public reporting requirements under the 
Paperwork Reduction Act (PRA), and the commenter did not believe this 
to be correct.
    Response: The rationale the commenter provided to support this 
assertion reflected a misunderstanding of the PRA. When we published 
the NPRM, our PRA characterization was accurate: We were not creating, 
nor were we revising, any public information collection tools. The 
public already uses existing form HA-55 (Objection to Appearing by 
Video Teleconferencing (OMB No. 0960-0671)) to request a change in 
time, place, or manner of hearing. We will not be substantively 
changing this form, particularly since we are retaining the opt-out 
provision. We will be adding very minor language changes in the 
supplemental explanation section of this form; this language will 
clarify that if one declines the VTC option, there is a chance a delay 
in hearing will result. This change is considered non-substantive under 
the PRA because it does not add or remove any questions, nor does it 
provide new information that is needed to complete the form. 
Accordingly, although we are submitting a non-substantive change 
request for this modification, we do not need to undergo full PRA 
approval, nor do we need to seek public comment on the change.
    As well, we are making a minor change to form HA-510 (Waiver of 
Written Notice of Hearing (Form HA-510, OMB No. 0960-0671)) to reflect 
that we will now be providing a notice of amended or supplemental 
hearing 20, not 75 days, in advance of the hearing. Because we already 
solicited comment on this change through the proposed rule (i.e., the 
form language change is simply a reflection of the policy change), we 
do not need to seek additional comment under the PRA. We are thus 
clearing this change as well through the non-substantive change request 
process.

Regulatory Procedures

Executive Order 12866 as Supplemented by Executive Order 13563

    We consulted with the Office of Management and Budget (OMB) and 
determined that this final rule did not meet the requirements for a 
significant regulatory action under Executive Order 12866 as 
supplemented by Executive Order 13563. Thus, OMB did not conduct formal 
review of this final rule.

Executive Order 13771 and Cost Information

    This rule is not subject to the requirements of Executive Order 
13771 because it is administrative in nature, and it will result in no 
more than de minimis, if any, costs in any one year after 
implementation.
    At this time, the Office of the Chief Actuary estimates that this 
final rule will have a negligible effect on scheduled old-age, 
survivors, and disability insurance benefits and Federal Supplemental 
Security Income payments.
    The Office of Budget, Finance, and Management estimates 
administrative savings of less than 15 work years and $2 million 
annually.

Regulatory Flexibility Act

    We certify that this final rule will not have a significant 
economic impact on a substantial number of small entities because it 
only affects individuals. Accordingly, a regulatory flexibility 
analysis as provided in the Regulatory Flexibility Act, as amended, is 
not required.

Paperwork Reduction Act

    SSA already has existing OMB PRA-approved information collection 
tools relating to this final rule: Objection to Appearing by Video 
Teleconferencing (Form HA-55, OMB No. 0960-0671), and Waiver of Written 
Notice of Hearing (Form HA-510, OMB No. 0960-0671). Because we are 
retaining the opt-out provision for video teleconference (VTC) in this 
final rule, we are only adding minor instructional changes to Form HA-
55 to caution claimants that by opting out of appearing by VTC, they 
may experience a delay in being scheduled for a hearing. In addition, 
due to the change in timing for amended or continued hearing notices, 
we are also making a minor change to Form HA-510 to show the change in 
timing for requesting the waiver for those affected by this change. 
However, because these modifications are minor in nature, and either 
reflect existing policy (HA-55), or have already been presented for 
public comments through rulemaking (HA-510), we will obtain OMB 
approval for these changes through a non-substantive change request, 
which does not require public notice and comment under the PRA. Thus, 
this final rule does not create or significantly alter any existing 
information collections under the PRA.

(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social 
Security--Disability Insurance; 96.002, Social Security--Retirement 
Insurance; 96.004, Social Security--Survivors Insurance; and 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).

Andrew Saul,
Commissioner of Social Security.

    For the reasons set out in the preamble, we are amending 20 CFR 
chapter III, parts 404 and 416, as set forth below:

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE 
(1950-)

Subpart J--Determinations, Administrative Review Process, and 
Reopening of Determinations and Decisions

0
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).


0
2. Revise Sec.  404.929 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 Deputy 
Commissioner for Hearings

[[Page 69305]]

Operations, or his or her delegate, will appoint an administrative law 
judge to conduct the hearing. If circumstances warrant, the Deputy 
Commissioner for Hearings Operations, or his or her delegate, may 
assign your case to another administrative law judge. In general, we 
will schedule you to appear by video teleconferencing or in person. 
When we determine whether you will appear by video teleconferencing or 
in person, we consider the factors described in Sec.  404.936(c)(1)(i) 
through (iii), and in the limited circumstances described in Sec.  
404.936(c)(2), we will schedule you to appear by telephone. You may 
submit new evidence (subject to the provisions of Sec.  404.935), 
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 will 
issue a decision based on the preponderance of the evidence in the 
hearing record. If you waive your right to appear at the hearing, the 
administrative law judge will make a decision based on the 
preponderance of the evidence that is in the file and, subject to the 
provisions of Sec.  404.935, any new evidence that may have been 
submitted for consideration.

0
 3. Revise Sec.  404.936 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 any hearing. We 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 United States 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 by 
video teleconferencing, in person or, when the circumstances described 
in paragraph (c)(2) of this section exist, by telephone.
    (c) Determining manner of hearing to schedule. We will generally 
schedule you or any other party to the hearing to appear either by 
video teleconferencing or in person.
    (1) When we determine whether you will appear by video 
teleconferencing or in person, we consider the following factors:
    (i) The availability of video teleconferencing equipment to conduct 
the appearance;
    (ii) Whether use of video teleconferencing to conduct the 
appearance would be less efficient than conducting the appearance in 
person; and
    (iii) Any facts in your particular case that provide a good reason 
to schedule your appearance by video teleconferencing or in person.
    (2) Subject to paragraph (c)(3) of this section, we will schedule 
you or any other party to the hearing to appear by telephone when we 
find an appearance by video teleconferencing or in person is not 
possible or other extraordinary circumstances prevent you from 
appearing by video teleconferencing or in person.
    (3) If you are incarcerated and video teleconferencing is not 
available, we will schedule your appearance by telephone, unless we 
find that there are facts in your particular case that provide a good 
reason to schedule your appearance in person, if allowed by the place 
of confinement, or by video teleconferencing or in person upon your 
release.
    (4) We will generally direct any person we call as a witness, other 
than you or any other party to the hearing, including a medical expert 
or a vocational expert, to appear by telephone or by video 
teleconferencing. Witnesses you call will appear at the hearing 
pursuant to Sec.  404.950(e). If they are unable to appear with you in 
the same manner as you, we will generally direct them to appear by 
video teleconferencing or by telephone. We will consider directing 
witnesses to appear in person only when:
    (i) Telephone or video teleconferencing equipment is not available 
to conduct the appearance;
    (ii) We determine that use of telephone or video teleconferencing 
equipment would be less efficient than conducting the appearance in 
person; or
    (iii) We find that there are facts in your particular case that 
provide a good reason to schedule this individual's appearance in 
person.
    (d) Objecting to appearing by video teleconferencing. Prior to 
scheduling your hearing, we will notify you that we may schedule you to 
appear by video teleconferencing. If you object to appearing by video 
teleconferencing, you must notify us in writing within 30 days after 
the date you receive the notice. If you notify us within that time 
period and your residence does not change while your request for 
hearing is pending, we will set your hearing for a time and place at 
which you may make your appearance before the administrative law judge 
in person.
    (1) Notwithstanding any objections you may have to appearing by 
video teleconferencing, if you change your residence while your request 
for hearing is pending, we may determine how you will appear, including 
by video teleconferencing, as provided in paragraph (c)(1) of this 
section. For us to consider your change of residence when we schedule 
your hearing, you must submit evidence verifying your new residence.
    (2) If you notify us that you object to appearing by video 
teleconferencing more than 30 days after the date you receive our 
notice, we will extend the time period if you show you had good cause 
for missing the deadline. To determine whether good cause exists for 
extending the deadline, we use the standards explained in Sec.  
404.911.
    (e) Objecting to the time or place of the hearing. (1) If you wish 
to object to the time or place of the hearing, you must:
    (i) Notify us in writing at the earliest possible opportunity, but 
not later than 5 days before the date set for the hearing or 30 days 
after receiving notice of the hearing, whichever is earlier; and
    (ii) State the reason(s) for your objection and state the time or 
place you want the hearing to be held. If the administrative law judge 
finds you have good cause, as determined under paragraph (e) of this 
section, we will change the time or place of the hearing.
    (2) If you notify us that you object to the time or place of 
hearing less than 5 days before the date set for the hearing or, if 
earlier, more than 30 days after receiving notice of the hearing, we 
will consider this objection only if you show you had good cause for 
missing the deadline. To determine whether good cause exists for 
missing this deadline, we use the standards explained in Sec.  404.911.
    (f) Good cause for changing the time or place. The administrative 
law judge will determine whether good cause exists for changing the 
time or place of your scheduled hearing. If the administrative law 
judge finds that good cause exists, we will set the time or place of 
the new hearing. A finding that good cause exists to reschedule the 
time or place of your hearing will generally not change the assignment 
of the administrative law judge or how you or another party will appear 
at the hearing, unless we determine a change will promote efficiency in 
our hearing process.

[[Page 69306]]

    (1) The administrative law judge will find good cause to change the 
time or place of your hearing if he or she determines that, based on 
the evidence:
    (i) A serious physical or mental condition or incapacitating injury 
makes it impossible for you or your representative to travel to the 
hearing, or a death in the family occurs; or
    (ii) Severe weather conditions make it impossible for you or your 
representative to travel to the hearing.
    (2) In determining whether good cause exists in circumstances other 
than those set out in paragraph (f)(1) of this section, the 
administrative law judge will consider your reason(s) 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 that might 
occur in rescheduling your hearing, and whether we previously granted 
you any changes in the time or place of your hearing. Examples of such 
other circumstances that you might give for requesting a change in the 
time or place of the hearing include, but are not limited to, the 
following:
    (i) You unsuccessfully attempted to obtain a representative and 
need additional time to secure representation;
    (ii) Your representative was appointed within 30 days of the 
scheduled hearing and needs additional time to prepare for the hearing;
    (iii) Your representative has a prior commitment to be in court or 
at another administrative hearing on the date scheduled for the 
hearing;
    (iv) 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;
    (v) Transportation is not readily available for you to travel to 
the hearing; or
    (vi) 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.

0
4. Amend Sec.  404.938 by revising paragraphs (b)(3) and (5) and (c) 
and adding paragraph (d) to read as follows:


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

* * * * *
    (b) * * *
    (3) How to request that we change the time or place of your 
hearing; * * *
    (5) Whether your appearance or that of any other party or witness 
is scheduled to be made by video teleconferencing, in person, or, when 
the circumstances described in Sec.  404.936(c)(2) exist, by telephone. 
If we have scheduled you to appear by video teleconferencing, the 
notice of hearing will tell you that the scheduled place for the 
hearing is a video teleconferencing site and explain what it means to 
appear at your hearing by video teleconferencing;
* * * * *
    (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.
    (d) Amended notice of hearing or notice of supplemental hearing. If 
we need to send you an amended notice of hearing, we will mail or serve 
the notice at least 20 days before the date of the hearing. Similarly, 
if we schedule a supplemental hearing, after the initial hearing was 
continued by the assigned administrative law judge, we will mail or 
serve a notice of hearing at least 20 days before the date of the 
hearing.

0
5. Amend Sec.  404.950 by revising paragraphs (a) and (e) 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 by video teleconferencing, in person, or, when the conditions in 
Sec.  404.936(c)(2) exist, by telephone, 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 by 
video teleconferencing, in person, or, when the conditions in Sec.  
404.936(c)(2) exist, by telephone.
* * * * *
    (e) Witnesses at a hearing. Witnesses you call may appear at a 
hearing with you in the same manner in which you are scheduled to 
appear. If they are unable to appear with you in the same manner as 
you, they may appear as prescribed in Sec.  404.936(c)(4). Witnesses 
called by the administrative law judge will appear in the manner 
prescribed in Sec.  404.936(c)(4). They will 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 witness any questions material to 
the issues and will allow the parties or their designated 
representatives to do so.
* * * * *

0
6. Amend Sec.  404.976 by revising paragraph (b) to read as follows:


Sec.  404.976  Procedures before the Appeals Council on review.

* * * * *
    (b) Oral argument. You may request to appear before the Appeals 
Council to present oral argument. The Appeals Council will grant your 
request if it decides that your case raises an important question of 
law or policy or that oral argument would help to reach a proper 
decision. If your request to appear is granted, the Appeals Council 
will tell you the time and place of the oral argument at least 10 
business days before the scheduled date. You will appear before the 
Appeals Council by video teleconferencing or in person, or, when the 
circumstances described in Sec.  404.936(c)(2) exist, we may schedule 
you to appear by telephone. The Appeals Council will determine whether 
any other person relevant to the proceeding will appear by video 
teleconferencing, telephone, or in person as based on the circumstances 
described in Sec.  404.936(c)(4).

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

Subpart N--Determinations, Administrative Review Process, and 
Reopening of Determinations and Decisions

0
7. 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); sec. 202, Pub. 
L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note).


0
8. Revise Sec.  416.1429 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 Deputy 
Commissioner for Hearings Operations, or his or her delegate, will 
appoint an administrative law judge to conduct the hearing. If 
circumstances warrant, the Deputy Commissioner for Hearings Operations, 
or his or her delegate, may assign your case to another administrative 
law judge. In general, we will schedule you to appear

[[Page 69307]]

by video teleconferencing or in person. When we determine whether you 
will appear by video teleconferencing or in person, we consider the 
factors described in Sec.  416.1436(c)(1)(i) through (iii), and in the 
limited circumstances described in Sec.  416.1436(c)(2), we will 
schedule you to appear by telephone. You may submit new evidence 
(subject to the provisions of Sec.  416.1435), 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 will issue a decision based on 
the preponderance of the evidence in the hearing record. If you waive 
your right to appear at the hearing, the administrative law judge will 
make a decision based on the preponderance of the evidence that is in 
the file and, subject to the provisions of Sec.  416.1435, any new 
evidence that may have been submitted for consideration.

0
9. Revise Sec.  416.1436 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 any hearing. We 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 United States 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 by 
video teleconferencing, in person or, when the circumstances described 
in paragraph (c)(2) of this section exist, by telephone.
    (c) Determining manner of hearing to schedule. We will generally 
schedule you or any other party to the hearing to appear either by 
video teleconferencing or in person.
    (1) When we determine whether you will appear by video 
teleconferencing or in person, we consider the following factors:
    (i) The availability of video teleconferencing equipment to conduct 
the appearance;
    (ii) Whether use of video teleconferencing to conduct the 
appearance would be less efficient than conducting the appearance in 
person; and
    (iii) Any facts in your particular case that provide a good reason 
to schedule your appearance by video teleconferencing or in person.
    (2) Subject to paragraph (c)(3) of this section, we will schedule 
you or any other party to the hearing to appear by telephone when we 
find an appearance by video teleconferencing or in person is not 
possible or other extraordinary circumstances prevent you from 
appearing by video teleconferencing or in person.
    (3) If you are incarcerated and video teleconferencing is not 
available, we will schedule your appearance by telephone, unless we 
find that there are facts in your particular case that provide a good 
reason to schedule your appearance in person, if allowed by the place 
of confinement, or by video teleconferencing or in person upon your 
release.
    (4) We will generally direct any person we call as a witness, other 
than you or any other party to the hearing, including a medical expert 
or a vocational expert, to appear by telephone or by video 
teleconferencing. Witnesses you call will appear at the hearing 
pursuant to Sec.  416.1450(e). If they are unable to appear with you in 
the same manner as you, we will generally direct them to appear by 
video teleconferencing or by telephone. We will consider directing 
witnesses to appear in person only when:
    (i) Telephone or video teleconferencing equipment is not available 
to conduct the appearance;
    (ii) We determine that use of telephone or video teleconferencing 
equipment would be less efficient than conducting the appearance in 
person; or
    (iii) We find that there are facts in your particular case that 
provide a good reason to schedule this individual's appearance in 
person.
    (d) Objecting to appearing by video teleconferencing. Prior to 
scheduling your hearing, we will notify you that we may schedule you to 
appear by video teleconferencing. If you object to appearing by video 
teleconferencing, you must notify us in writing within 30 days after 
the date you receive the notice. If you notify us within that time 
period and your residence does not change while your request for 
hearing is pending, we will set your hearing for a time and place at 
which you may make your appearance before the administrative law judge 
in person.
    (1) Notwithstanding any objections you may have to appearing by 
video teleconferencing, if you change your residence while your request 
for hearing is pending, we may determine how you will appear, including 
by video teleconferencing, as provided in paragraph (c)(1) of this 
section. For us to consider your change of residence when we schedule 
your hearing, you must submit evidence verifying your new residence.
    (2) If you notify us that you object to appearing by video 
teleconferencing more than 30 days after the date you receive our 
notice, we will extend the time period if you show you had good cause 
for missing the deadline. To determine whether good cause exists for 
extending the deadline, we use the standards explained in Sec.  
416.1411.
    (e) Objecting to the time or place of the hearing. (1) If you wish 
to object to the time or place of the hearing, you must:
    (i) Notify us in writing at the earliest possible opportunity, but 
not later than 5 days before the date set for the hearing or 30 days 
after receiving notice of the hearing, whichever is earlier; and
    (ii) State the reason(s) for your objection and state the time or 
place you want the hearing to be held. If the administrative law judge 
finds you have good cause, as determined under paragraph (e) of this 
section, we will change the time or place of the hearing.
    (2) If you notify us that you object to the time or place of 
hearing less than 5 days before the date set for the hearing or, if 
earlier, more than 30 days after receiving notice of the hearing, we 
will consider this objection only if you show you had good cause for 
missing the deadline. To determine whether good cause exists for 
missing this deadline, we use the standards explained in Sec.  
416.1411.
    (f) Good cause for changing the time or place. The administrative 
law judge will determine whether good cause exists for changing the 
time or place of your scheduled hearing. If the administrative law 
judge finds that good cause exists, we will set the time or place of 
the new hearing. A finding that good cause exists to reschedule the 
time or place of your hearing will generally not change the assignment 
of the administrative law judge or how you or another party will appear 
at the hearing, unless we determine a change will promote efficiency in 
our hearing process.
    (1) The administrative law judge will find good cause to change the 
time or place of your hearing if he or she determines that, based on 
the evidence:
    (i) A serious physical or mental condition or incapacitating injury 
makes it impossible for you or your representative to travel to the 
hearing, or a death in the family occurs; or

[[Page 69308]]

    (ii) Severe weather conditions make it impossible for you or your 
representative to travel to the hearing.
    (2) In determining whether good cause exists in circumstances other 
than those set out in paragraph (f)(1) of this section, the 
administrative law judge will consider your reason(s) 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 that might 
occur in rescheduling your hearing, and whether we previously granted 
you any changes in the time or place of your hearing. Examples of such 
other circumstances that you might give for requesting a change in the 
time or place of the hearing include, but are not limited to, the 
following:
    (i) You unsuccessfully attempted to obtain a representative and 
need additional time to secure representation;
    (ii) Your representative was appointed within 30 days of the 
scheduled hearing and needs additional time to prepare for the hearing;
    (iii) Your representative has a prior commitment to be in court or 
at another administrative hearing on the date scheduled for the 
hearing;
    (iv) 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;
    (v) Transportation is not readily available for you to travel to 
the hearing; or
    (vi) 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.

0
10. Amend Sec.  416.1438 by revising paragraphs (b)(3) and (5) and (c) 
and adding paragraph (d) to read as follows:


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

* * * * *
    (b) * * *
    (3) How to request that we change the time or place of your 
hearing;
* * * * *
    (5) Whether your appearance or that of any other party or witness 
is scheduled to be made by video teleconferencing, in person, or, when 
the circumstances described in Sec.  416.1436(c)(2) exist, by 
telephone. If we have scheduled you to appear by video 
teleconferencing, the notice of hearing will tell you that the 
scheduled place for the hearing is a video teleconferencing site and 
explain what it means to appear at your hearing by video 
teleconferencing;
* * * * *
    (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.
    (d) Amended notice of hearing or notice of supplemental hearing. If 
we need to send you an amended notice of hearing, we will mail or serve 
the notice at least 20 days before the date of the hearing. Similarly, 
if we schedule a supplemental hearing, after the initial hearing was 
continued by the assigned administrative law judge, we will mail or 
serve a notice of hearing at least 20 days before the date of the 
hearing.

0
11. Amend Sec.  416.1450 by revising paragraphs (a) and (e) 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 by video teleconferencing, in person, or, when the conditions in 
Sec.  416.1436(c)(2) exist, by telephone, 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 by 
video teleconferencing, in person, or, when the conditions in Sec.  
416.1436(c)(2) exist, by telephone.
* * * * *
    (e) Witnesses at a hearing. Witnesses you call may appear at a 
hearing with you in the same manner in which you are scheduled to 
appear. If they are unable to appear with you in the same manner as 
you, they may appear as prescribed in Sec.  416.1436(c)(4). Witnesses 
called by the administrative law judge will appear in the manner 
prescribed in Sec.  416.1436(c)(4). They will 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 witness any questions material to 
the issues and will allow the parties or their designated 
representatives to do so.
* * * * *

0
12. Amend Sec.  416.1476 by revising paragraph (b) to read as follows:


Sec.  416.1476  Procedures before the Appeals Council on review.

* * * * *
    (b) Oral argument. You may request to appear before the Appeals 
Council to present oral argument. The Appeals Council will grant your 
request if it decides that your case raises an important question of 
law or policy or that oral argument would help to reach a proper 
decision. If your request to appear is granted, the Appeals Council 
will tell you the time and place of the oral argument at least 10 
business days before the scheduled date. You will appear before the 
Appeals Council by video teleconferencing or in person, or, when the 
circumstances described in Sec.  416.1436(c)(2) exist, we may schedule 
you to appear by telephone. The Appeals Council will determine whether 
any other person relevant to the proceeding will appear by video 
teleconferencing, telephone, or in person as based on the circumstances 
described in Sec.  416.1436(c)(4).

[FR Doc. 2019-27172 Filed 12-17-19; 8:45 am]
 BILLING CODE 4191-02-P