[Federal Register Volume 89, Number 165 (Monday, August 26, 2024)]
[Rules and Regulations]
[Pages 68341-68364]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18591]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Docket No. SSA-2022-0013]
RIN 0960-AI71


Setting the Manner of Appearance of Parties and Witnesses at 
Hearings

AGENCY: Social Security Administration.

ACTION: Final rule.

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SUMMARY: We are revising our hearing regulations to provide that 
claimants may appear at hearings in one of four ways: by agency video, 
by online video, by audio, or in person. Those four manners will all be 
standard manners of appearance in our hearing process. For online video 
and audio appearances, claimants may appear for hearings remotely, 
using private electronic devices that we do not own, operate, or 
approve. For online video appearances, a claimant may appear for a 
hearing using approved online video conferencing applications, rather 
than conferencing options using equipment that we own or approve. 
Additionally, while our current regulations permit us to schedule 
claimants to appear by telephone in limited circumstances only, this 
final rule will allow us to schedule claimants to appear by audio 
without similar restrictions, if the claimant does not object to 
appearing in that manner. We expect that this final rule will provide 
us and claimants with additional flexibility, allowing us to manage our 
hearing process more efficiently.

DATES: This final rule is effective November 23, 2024.

FOR FURTHER INFORMATION CONTACT: Susan Swansiger, Office of Hearings 
Operations, Social Security Administration, 250 E Street SW, Washington 
DC 20024, (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 
https://www.ssa.gov/.

SUPPLEMENTARY INFORMATION: On May 19, 2023, we published a notice of 
proposed rulemaking (NPRM), Setting the Manner of Appearance of Parties 
and Witnesses at Hearings,\1\ which proposed to update our hearing 
regulations by changing the term ``video teleconference'' to ``video''; 
changing ``telephone'' to ``audio''; and permitting ``video'' and 
``audio'' to be used as standard manners of appearance. We proposed 
these changes to clarify that claimants may appear for hearings 
remotely using private electronic devices that we do not own, operate, 
or approve, and to make clear that a claimant may appear for a hearing 
using approved online video conferencing applications, rather than only 
conferencing options using equipment that we own or approve. We are 
making final the changes that we proposed in the NPRM, with certain 
modifications. The preamble to the NPRM provides the background for 
these changes, and we explain our reasons for modifications to the 
original proposal below.\2\
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    \1\ 88 FR 32145.
    \2\ The preamble to the NPRM is available for public viewing at 
https://www.regulations.gov and searching for document ``SSA-2022-
0013'' or https://www.federalregister.gov/documents/2023/05/19/2023-10564/setting-the-manner-of-appearance-of-parties-and-witnesses-at-hearings.
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Background

    When we determine your rights under title II or title XVI of the 
Social Security Act, we generally follow an administrative review 
process that consists of the following steps: an initial determination, 
and, as necessary, a reconsideration, a hearing with an administrative 
law judge (ALJ), and review by the Appeals Council.\3\ After completing 
these steps, a claimant may request judicial review of our final 
decision by filing a civil action in Federal district court.
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    \3\ 20 CFR 404.900(a) and 416.1400(a).
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    As noted above, the third step in the administrative review process 
is a hearing held by an ALJ.\4\ Before the Coronavirus Disease 2019 
(COVID-19) national public health emergency, we generally scheduled a 
claimant to appear at a hearing in one of three ways: by video 
teleconferencing (VTC),\5\ in person, or by telephone. Further, we 
scheduled claimants to appear by telephone in certain limited 
circumstances only, such as when we found an appearance by VTC or in 
person was not possible, or if other extraordinary circumstances 
prevented the claimant from appearing by VTC or in person.\6\
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    \4\ Under 20 CFR 404.956(a) and 416.1456(a), the Appeals Council 
may assume responsibility for a hearing request(s) pending at the 
hearing level of our administrative review process.
    \5\ We have traditionally used the term VTC to refer to an 
appearance by video using our equipment or equipment that we approve 
in a Field Office or other pre-approved site.
    \6\ 20 CFR 404.936(c)(2)-(3); 404.937(b)(2), (c); 
416.1436(c)(2)-(3); and 416.1437(b)(2), (c).
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    As explained in the NPRM in more detail, in March 2020, we began 
offering claimants the option to appear at hearings by telephone and 
later offered claimants the additional option to appear by online video 
in response to the COVID-19 national public health emergency.\7\ Based 
on our positive experience with these manners of appearance during the 
COVID-19 national health emergency and beyond,\8\ and in an effort to 
incorporate greater flexibility into our rules for claimants, we are 
adopting audio and online video as standard manners of appearance in 
our hearing process.\9\
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    \7\ We began offering appearances at hearings by telephone in 
March 2020 and by online video in December 2020. Currently, we 
conduct online video appearances using a software application called 
``Microsoft Teams.'' For more information, see https://www.ssa.gov/appeals/hearing_video.html.
    \8\ 88 FR at 32146.
    \9\ We will generally direct anyone we call as a witness to 
appear by audio, agency video, or online video. A witness called by 
the claimant, like our previous policy, will generally appear in the 
same manner as the claimant, unless the witness is unable to do so. 
If the witness is unable to appear in the same manner as the 
claimant, we will generally direct the witness to appear by audio or 
agency video.
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    Under this final rule, there will be four standard manners of 
appearance: agency video (i.e., what we previously had defined as VTC), 
online video, audio, and in person. In the NPRM, we proposed to use the 
broader term ``video'' to capture appearances by agency video (where a 
person attends a hearing at one of our offices using our video 
equipment) as well as by online video (where a person attends a hearing 
from a private location using private equipment). As we explain in 
greater

[[Page 68342]]

detail below, this final rule distinguishes between agency video and 
online video appearances.
    We are also revising our regulations regarding scheduling the 
manner of appearance for individuals who appear before the Appeals 
Council for oral argument to keep them aligned with the ALJ hearing 
process. Similar to the changes above, we are making agency video, 
online video, audio, and in person standard manners of appearance for 
oral arguments before the Appeals Council.
    In addition, as proposed in the NPRM, we added language to 20 CFR 
404.944 and 416.1444 to clarify that an ALJ may stop a hearing 
temporarily and continue it at a later date if the ALJ finds that one 
or more variables outside of our control materially affected a hearing.
    Claimants may object to appearing by audio or agency video, and a 
claimant must agree to appear by online video before we will schedule 
that manner of appearance. If a claimant objects to audio and agency 
video and does not agree to online video, we will schedule that 
claimant to appear at a hearing in person. However, in certain limited 
circumstances, we will mandate an audio appearance notwithstanding a 
claimant's objection to appearing in that manner.\10\ If a claimant 
submits an untimely objection to appearing by audio or agency video, or 
if the claimant submits an untimely agreement to appear by online 
video, we will evaluate whether good cause exists for the late 
submission under the standards in sections 404.911 and 416.1411.\11\
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    \10\ See 20 CFR 404.936(d)(2) through (5); 404.937(b)(2), (c); 
416.1436(d)(2) through (5); 416.1437(b)(2), (c).
    \11\ See 404.936(d)(1), (e) and 416.1436(d)(1), (e).
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How This Final Rule Differs From the NPRM

    In a number of places, this final rule differs from our proposed 
rule. We list the changes below and further explain the substantive 
changes in the section titled ``Comments and Responses.''
     We modified Sec. Sec.  404.929 and 416.1429 to make clear 
that there are two ways to appear by ``video'': ``agency video'' and 
``online video.'' In the NPRM, we used the term ``video'' to refer to 
both types of video appearances. Commenters, however, expressed 
concerns about potential confusion stemming from the general term 
``video.'' By identifying and defining these two types of video in the 
regulations, we anticipate alleviating these concerns and confusion. We 
defined ``agency video'' as ``video, with audio functionality, using 
our equipment in one of our offices.'' \12\ We defined ``online video'' 
as ``video, with audio functionality, using a personal electronic 
device in a private location the claimant chooses.''
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    \12\ Agency video includes agency-approved sites and video 
equipment under the Representative Video Project (RVP). For more 
information on the Representative Video Project, see Chief Judge 
Bulletin (CJB) 11-04 and https://www.ssa.gov/appeals/documents/Representative_Video_Project_RVP-508.pdf.
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     We made several revisions to Sec. Sec.  404.936 and 
416.1436. First, in paragraph (a), we clarified that we set the 
manner(s) of appearance for all hearings, and we set the place of a 
hearing only when we schedule a claimant to appear in person or by 
agency video. Thus, we do not set the place of the hearing when we 
schedule the claimant to appear by online video or audio. Second, in 
paragraphs (b), (c), and (d), we removed the general term ``video'' and 
instead used the more specific terms ``online video'' and ``agency 
video,'' as appropriate. Third, in paragraph (c), we explained that we 
will only schedule a claimant to appear by online video if they agree 
to appear in that manner. This agreement requirement is a change from 
the NPRM, where we proposed to give claimants an opportunity to object 
to appearing by online video. Fourth, we relocated some information 
from paragraph (c) to paragraph (d) to clarify that in limited 
circumstances only, we will schedule an audio appearance 
notwithstanding a claimant's objection to an audio appearance. Fifth, 
we explained that for audio appearances under paragraph (d), we will 
call the individual using the individual's telephone number(s). Sixth, 
in paragraph (e), we explained that prior to scheduling a claimant's 
hearing, we will notify them that we may schedule them to appear by 
online video if they agree to appear in that manner. To agree to appear 
by online video, a claimant must notify us of their agreement in 
writing within 30 days of the date they receive that notice. If a 
claimant notifies us after the 30-day deadline, we will extend the time 
period if they show good cause for missing the deadline. Paragraph (e) 
also explains that a claimant may withdraw their agreement to appear by 
online video at any time before the start of the hearing, which should 
provide additional flexibility for claimants.
     In Sec. Sec.  404.937 and 416.1437, we added the option 
for claimants to agree to appear by online video (instead of allowing 
audio as the only option) when the Hearing Office Chief ALJ determines 
that the claimant or other individual poses a reasonable threat to the 
safety of our employees or other participants in the hearing, or we 
have banned the claimant from any of our facilities.
     In Sec. Sec.  404.938 and 416.1438, we explained in 
paragraph (b)(5) that the notice of hearing will tell the claimant the 
time and manner of appearance and, for in person and agency video 
appearances, the place of the hearing.
     In Sec. Sec.  404.944 and 416.1444, we defined the term 
``materially affects'' to mean prevents the hearing from proceeding.
     In Sec. Sec.  404.950 and 416.1450, we made two revisions. 
First, in paragraph (a), we explained that a party to the hearing or 
their designated representative may appear before an ALJ in the manner 
described in Sec. Sec.  404.936 and 416.1436. Second, in paragraph (e), 
we corrected cross references by replacing Sec. Sec.  404.936(c)(4) and 
416.1436(c)(4) with Sec. Sec.  404.936(c)(2) and 416.1436(c)(2).
     In Sec. Sec.  404.976 and 416.1476, we distinguished 
between ``agency video'' and ``online video.''
     We made other minor conforming changes throughout the 
final rule.

Comparison of Manners of Appearance Available at Different Times

    Table 1 below compares the manner of appearance options that were 
available before the COVID-19 national public health emergency, those 
that were available during the COVID-19 national public health 
emergency to the effective date of this final rule, and those that will 
be available under this final rule when it becomes effective. It also 
notes whether a claimant may object to a manner of appearance or must 
consent to a manner of appearance.

[[Page 68343]]



                    Table 1--Comparison of Manners of Appearance Available at Different Times
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                                                                  Available during the
                                         Available before the      COVID-19 national        Available when our
         Manner of appearance             COVID-19 national     public health emergency     final rule becomes
                                       public health emergency   to the effective date          effective
                                                                   of the final rule
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In-person............................  Yes (claimant cannot     Postponed from March     Yes (claimant cannot
                                        object).                 2020 through March       object).
                                                                 2022, when we began
                                                                 incrementally
                                                                 reopening our hearing
                                                                 offices to the public.
                                                                 (claimant cannot
                                                                 object).
Agency Video (formerly ``VTC'')......  Yes (claimant can        Postponed from March     Yes (claimant can
                                        object).                 2020 through March       object).
                                                                 2022, when we began
                                                                 incrementally
                                                                 reopening our hearing
                                                                 offices to the public.
                                                                 (claimant can object).
Online video.........................  No.....................  Available as of          Yes (claimant must
                                                                 December 2020            agree before we will
                                                                 (claimant must agree     schedule).
                                                                 before we schedule
                                                                 that manner of
                                                                 appearance).
Audio (formerly ``telephone'').......  Yes, but only in very    Available as of March    Yes (claimant can
                                        limited circumstances.   2020 (claimant must      object, unless we
                                        (claimant cannot         agree before we          require the claimant
                                        object when required).   schedule that manner     to appear by audio,
                                                                 of appearance, but we    (called via telephone
                                                                 can require a claimant   number) in very
                                                                 to appear by telephone   limited
                                                                 in very limited          circumstances).
                                                                 circumstances).
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Table 2--Summary of Manners of Appearance and Potential Claimant Actions
                          Under This Final Rule
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                                                    Does a claimant need
                            Can a claimant object     to agree to this
   Manner of appearance       to this manner of       manner before we
                                 appearance?            schedule it?
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Audio.....................  Yes, though we may     No, but claimants may
                             still require the      object to this
                             claimant to appear     manner of
                             by audio in very       appearance.
                             limited
                             circumstances.
Online Video..............  Not Applicable. We     Yes.
                             will not schedule an
                             online video
                             appearance unless a
                             claimant tells us
                             they agree to appear
                             in that manner.
Agency Video..............  Yes..................  No, but claimants may
                                                    object to this
                                                    manner of
                                                    appearance.
In-Person.................  No...................  No.
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Comments Summary

    We received 44 public comments on our NPRM during the comment 
period. Of the total comments, 42 are available for public viewing at 
https://www.regulations.gov/docket/SSA-2022-0013. We excluded a comment 
that was an exact duplicate submitted by the same commenter, and we 
excluded a comment submitted by one of our employees posted in an 
official capacity. The publicly available comments were from:
     Individual citizens;
     Advocacy groups comprising claimant representatives;
     Other advocacy groups;
     Organizations and firms that represent claimants; and
     Other organizations with an interest in our proceedings.
    We carefully considered the public comments we received, and we 
responded to them below.

Comments and Responses

Support for Proposal
    Comment: A majority of commenters supported our proposal to update 
our hearing regulations to permit ``video'' and ``audio'' as standard 
manners of appearance. Commenters said permanently adopting remote 
appearances as standard manners of appearance will result in greater 
flexibility for claimants and witnesses. They stated that both video 
and audio appearances can be advantageous for claimants who have 
limited transportation options, live far from hearing offices, or have 
circumstances like limited mobility or severe anxiety. One commenter 
expressed that our proposal may reduce cost, stress, and scheduling 
conflicts experienced by claimants and representatives.
    In addition, many commenters supported multiple manners of 
appearance being available to claimants, and supported the NPRM because 
it maintains the option of in-person appearances and permits objection 
to appearing by other means. Other commenters expressed that preserving 
the option of in-person appearances will continue to serve those who 
are most comfortable with this method, for reasons like unreliable 
access to technology or private, quiet spaces.
    Several commenters also agreed that audio and video appearances 
will allow us to balance hearings across offices to help reduce 
administrative delays. Commenters said that the ability to schedule 
hearings remotely by audio or online video without requiring ``extreme 
circumstances'' will reduce delays and allow for more hearings to be 
held in a timely manner. One commenter stated they have experienced 
numerous occasions where claimants failed to make an in-person 
appearance due to unexpected traffic, having their transportation 
canceled at the last minute and being unable to find alternate 
transportation, having the physical inability to sit in the car long 
enough to travel to the hearing office, having a panic attack from 
being around others due to a mental impairment, or being unable to be 
around others due to a compromised immune system.
    Response: We acknowledge the general support received from many 
commenters.

Recommendations for Amendments to the Proposal

Expanding Audio and Video Appearances Further

    Comment: Several commenters expressed that we should expand the use 
of video and audio beyond what we proposed. A commenter stated that 
``unrestricted use'' of video and audio should be allowed during any 
Social Security proceeding. Commenters provided examples of when 
expanded use of video should be allowed, including all stages of the 
disability determination process in which claimants have the 
opportunity to appear (e.g., age 18 redeterminations and benefits 
termination following a continuing disability review). Other commenters 
expressed that we need to ``eliminate barriers to the public'' and 
always make remote hearings available, and that ``safety and 
convenience mandate'' the option of a video appearance for any official 
Social Security matter requiring face to face communication, including 
communication with any Social Security field office or Disability 
Determination Services (DDS) office.
    Response: We acknowledge and appreciate the desire for greater

[[Page 68344]]

flexibility in all communications with us. While we may consider 
additional options in the future, for this final rule, we continue to 
focus on manners of appearance at ALJ hearings and before the Appeals 
Council.
    Comment: One commenter suggested eliminating in-person appearances 
to mitigate climate change and practice fiscal responsibility. The 
commenter said that a cost-benefit analysis would show the costs of in-
person appearances are ``enormous,'' and the benefits are minimal. The 
commenter also expressed that offering in-person appearances requires 
the agency to buy and maintain office space throughout the country and 
requires ALJs, hearing office staff, claimants, representatives, and 
hearing reporters to travel to hearing offices. According to the 
commenter, maintaining a large office presence and requiring hearing 
participants to travel generates carbon emissions and other pollution, 
and costs taxpayer money. In addition, the commenter said that 
eliminating in-person appearances would provide the agency with an 
advantage in recruiting and retaining personnel, and balancing 
workloads, by removing the need for personnel to be tied to a 
particular geographic location. Further, the commenter expressed that 
the agency's experience over the past three years shows the number of 
claimants who want to appear in-person is ``vanishingly small.'' 
According to the commenter, in the relatively rare instances in which 
claimants have objected to telephone and video appearances, most of 
these objections have been ``raised at the eleventh hour for the 
apparent strategic advantage of postponing hearings without showing 
good cause.'' The commenter expressed that for the small number of 
claimants who want to be seen as well as heard, the availability of 
video appearances satisfies that need.
    Response: We appreciate the commenter's preference for audio and 
video appearances. This final rule, however, does not eliminate in-
person appearances because some claimants value appearing in person for 
various reasons. For example, some commenters expressed that in-person 
appearances allow claimants to have meaningful interaction with 
decision-makers and allow decision-makers to fully observe a claimant's 
condition. While our experiences demonstrate that audio and video 
appearances also allow meaningful interaction and provide a sufficient 
basis for an ALJ to reach a policy compliant decision, it is important 
to retain in-person appearances at this time to accommodate those 
claimants who would object to or would have difficulty appearing by the 
other manners of appearance this final rule makes available. We also 
understand that some claimants feel more comfortable appearing in 
person. Depending on the facts of the case, we may find it necessary to 
schedule an appearance in person.\13\
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    \13\ Under 20 CFR 404.936(c)(1)(ii) and 416.1436(c)(1)(ii) of 
this final rule, we consider two factors in deciding which manner of 
appearance to schedule: (1) which manner would be most efficient for 
conducting the hearing, and (2) any facts in the particular case 
that provide a good reason to schedule a certain manner of 
appearance.
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    Comment: A commenter said if the agency is to retain in-person 
appearances and provide an order of preference, audio appearances 
should be first, video appearances should be second, and in-person 
appearances should be last. The commenter expressed that the current 
phrasing of Sec. Sec.  404.936(c)(2) and 416.1436(c)(2) appears to 
place video and in-person appearances in the highest order of 
preference, with audio appearances as a last resort. According to the 
commenter, this seems contrary to our explanation at the beginning of 
the NPRM, which suggests we wish to eliminate a showing of 
extraordinary circumstances as a requirement for audio hearings. The 
commenter said experiences during the COVID-19 pandemic have shown that 
the vast majority of claimants want to appear by audio, and audio 
appearances are also the simplest type to schedule, coordinate, and 
conduct. In addition, the commenter said that video appearances have 
been reasonably successful, but they involve greater technological 
complexity than audio appearances and require high internet bandwidth, 
and interruptions to hearings occur because deficiencies in these areas 
remain common. According to the commenter, if our rule specifies an 
order of preference, it should state that we will schedule a video 
appearance only if a claimant timely objects to an audio appearance, 
and an in-person appearance (if offered at all) will be scheduled only 
if the claimant timely objects to both audio and video. The commenter 
suggested that, alternatively, the rule could be written permissively 
to provide broad flexibility to hearing offices, without any particular 
hierarchy specified or implied among the options for manner of 
appearance. That is, the rule could simply state that the agency may 
schedule an audio or video appearance in any case in which the claimant 
does not timely opt out, without specifying an order of preference or 
requiring extraordinary circumstances for any manner of appearance.
    Response: We did not propose to establish any hierarchy for setting 
the manner of appearance, and we have made revisions to this final rule 
to clarify that. This final rule neither prioritizes a certain manner 
of appearance nor provides a hierarchy of scheduling preference. As the 
comments show, there is support for all manners of appearance: audio, 
both versions of video, and in person. When two or more manners are 
available to schedule,\14\ we will consider efficiency and the facts of 
a particular case when determining a claimant's manner of appearance. 
In order to prevent any implication of an order of preference, under 
this final rule, we reorganized some of the regulatory text mentioned 
by the commenter to clarify that we may schedule an audio appearance in 
certain limited circumstances notwithstanding a claimant's objection to 
an audio appearance, and that our regulations do not otherwise set a 
priority of scheduling.\15\ This flexibility will allow us to schedule 
more timely hearings for claimants.
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    \14\ If a claimant objects to an appearance by audio or agency 
video and does not agree to appear by online video, we will 
generally schedule the claimant to appear in person. Otherwise, we 
will determine the manner of appearance from among in person and the 
options to which the claimant agreed and/or did not object.
    \15\ See 20 CFR 404.936(d)(2)-(5) and 416.1436(d)(2)-(5).
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    Additionally, some commenters appear to have used the terms ``opt 
out'' and ``object to'' interchangeably in discussing our proposed 
rule. However, both our proposed rule and this final rule give 
claimants an opportunity to object to certain manners of appearance, 
not opt out of them. Furthermore, our current rules allow claimants to 
object to appearing by VTC, not opt out. An opt out process would allow 
a claimant to unilaterally eliminate a manner of appearance, whereas an 
objection process allows a claimant to tell us that they do not want to 
appear in a certain manner. Under this final rule, when a claimant 
objects to appearing by audio or agency video, there are limited 
circumstances when, despite the objection, we may still schedule that 
manner of appearance, such as when we have banned a claimant from our 
facilities to ensure the safety of the public and our employees, or 
when we cannot schedule a claimant to appear by agency video or by 
online video and extraordinary circumstances prevent them from 
appearing in person.\16\
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    \16\ See 20 CFR 404.936(d)(2) through (5), 404.937(b)(2), 
404.937(c), 416.1436(d)(2) through (5), 416.1437(b)(2), and 
416.1437(c).

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[[Page 68345]]

    Comment: One commenter suggested that we should automatically 
schedule hearings with audio as the default method, and if there is a 
``legitimate and valid reason'' why we should conduct a hearing in 
another manner (video or in person), the claimant should specifically 
request it, and all parties should consent. Similarly, a commenter 
recommended that we confirm directly with the claimant in writing their 
wish for an in-person appearance rather than make an in-person 
appearance the default format. The commenter asserted that this 
approach would ``further support efficiency and overall fairness of the 
hearing process.'' A commenter expressed that representatives should 
not be required to ``submit so much supplemental documentation the 
minute a claim is at the hearing level or even before that'' to ensure 
the hearing gets scheduled by audio. The commenter stated hearing 
offices currently create unnecessary barriers for claimants and their 
representatives to ensure a hearing is scheduled by phone. The 
commenter expressed there are substantial delays and hurdles to 
overcome to correct an inadvertently scheduled in-person appearance.
    Response: We understand the commenters' preference for audio 
appearances. However, we did not adopt the recommendation to make audio 
the default manner of appearance, nor did we adopt the recommendation 
to require claimants to confirm a preference for an in-person 
appearance. The comments we received in response to our proposed rule 
show that different claimants benefit from and prefer different manners 
of appearance for different reasons. Thus, to account for those 
different needs and preferences, we did not select any particular 
manner of appearance to be the default manner. The scheduling 
provisions in this final rule provide flexibility for claimants and us.
    We will, however, (1) implement a new publication and notice 
explaining the manners of appearance: Notice of Ways to Attend a 
Hearing (Form HA-L54); (2) revise an existing form for objecting to 
appearing by agency video or by audio: Objection to Appearing by Video 
Teleconferencing (Form HA-55); and (3) implement a new form providing 
the ability to agree to appear by online video: Agreement to Appearing 
by Online Video (Form HA-56).
    The new notice, Notice of Ways to Attend a Hearing (Form HA-L54), 
will explain in detail how an appearance by audio, by agency video, by 
online video, and in person would work. It will also explain how and 
when to object to an appearance by audio or agency video and agree to 
an appearance by online video. We are making this notice separate from 
our Request for Hearing Acknowledgement Letter (Form HA-L2) to ensure 
that the manner of appearance information stands out to claimants and 
does not get lost among the other information in the HA-L2.
    The revised objection form, Objection to Appearing by Video 
Teleconferencing (Form HA-55), will allow claimants to object to 
appearing by audio, by agency video, or both. We explain on the form 
that claimants only need to complete the form if they object to 
appearing by audio or agency video. The objection form also summarizes 
the appearance options again so that claimants can make an informed 
decision even if they do not read the new notice.
    The new online video agreement form, Agreement to Appearing by 
Online Video, (Form HA-56) will allow claimants to agree to appearing 
by online video. It will explain that claimants only need to complete 
the form if they agree to appearing in that manner. We made Form HA-56 
separate from Form HA-55 to clearly distinguish an agreement to appear 
by online video from an objection to appear by audio or agency video. 
We anticipate that these new communications and information collection 
requests will enhance claimant modality options, streamline the 
scheduling process, and minimize scheduling errors.
    Additionally, this final rule does not require a claimant, or 
representative, to submit any supplemental documentation before, or as 
soon as, a claim reaches the hearing level. Rather, a claimant, or 
representative, has a 30-day period to object or agree to a manner of 
appearance.

VTC

    Comment: Some commenters expressed concerns that we proposed to use 
the broader term ``video'' to reference two different manners of 
appearance: 1. online video through an application like Microsoft Teams 
(Teams) and 2. more traditional VTC. Commenters said that our 
regulations should use different terminology to distinguish between the 
two because they have meaningful differences.
    One commenter stated that providing the option of accepting or 
rejecting a ``video'' appearance without specifying whether it is by 
VTC or online video is misleading to the claimant. The commenter noted 
that there are distinctions between the two types. For example, an 
online video appearance does not necessarily require any travel by the 
claimant, whereas a VTC appearance does require some travel. Another 
commenter said that VTC appearances are ``in person'' from the 
perspective of the claimant because the claimant must usually travel to 
one of our offices along with a representative, when applicable, and 
the judge participates by ``video.'' The commenter also said that too 
often the VTC locations are more difficult in terms of travel, expense, 
and the stress of security or long lines for entrance. According to the 
commenter, a video appearance using an online video ``app'' such as 
Teams is ``entirely different'' for both the claimant and 
representative because online video appearances allow participants to 
avoid travel--reducing cost, stress, and conflicts. One commenter 
stated they routinely object to VTC appearances but have ``no problem'' 
with online video appearances. The commenter said claimants usually 
prefer video to in-person appearances because they can appear from 
home, yet still see the ALJ and be seen clearly, with very few 
technological problems.
    Another commenter expressed not being comfortable advising 
claimants to accept a video option if that option includes VTC. The 
commenter recommended more precise wording so claimants can make 
informed decisions about their manner of appearance for a hearing. One 
commenter recommended making it clear and easy for claimants to object 
separately to audio, video, and VTC appearances because limiting an 
objection to video appearances alone would be insufficient.
    Response: We generally agree with these recommendations. As we 
explained in the NPRM, we originally intended to use the general term 
``video'' because it allowed for greater flexibility. We planned to 
further explain the two video manners of appearance in our 
subregulatory policies. However, because there are significant 
differences between the two, we will distinguish them in the regulatory 
text. Therefore, this final rule distinguishes agency video from online 
video. ``Agency video'' means video, with audio functionality, using 
our equipment in one of our offices. In other words, agency video means 
a claimant travels to one of our offices for a hearing and attends the 
hearing using our video equipment. ``Online video'' means video, with 
audio functionality, using a personal electronic device in a private 
location the claimant chooses. In other words, online video means a 
claimant attends a hearing from a private location of the claimant's 
choice using the claimant's own smartphone, tablet, or computer and 
internet connection. We

[[Page 68346]]

will also highlight this distinction in our subregulatory policies; new 
notice, new publication, and new agreement form; and revised objection 
form related to this final rule.
    Comment: One commenter expressed the opinion that VTC appearances 
are ``inferior'' to both in-person and online video appearances, and 
with the addition of online video appearances, they should be obsolete. 
The commenter said that VTC appearances are often held in a ``small, 
cramped conference room'' at a hearing or field office, which is often 
not sound-proofed. According to the commenter, in some hearing offices, 
the video equipment is located on the wall behind the desks where the 
representative and claimant sit, making it difficult for both the 
claimant and representative to be seen, to see the ALJ, and to review 
the file and notes at the same time. The commenter also stated that VTC 
appearances require additional SSA staff, as they require a hearing 
monitor with the ALJ, as well as a monitor or other staff member with 
the claimant to ensure the equipment is working. The commenter noted 
that VTC appearances require travel to the hearing office and do not 
have the same effect as in-person appearances because the video is 
often of lower quality and does not allow the ALJ to see the claimant 
in detail. They also expressed that VTC appearances are inferior to 
online video appearances because with online video, each party can be 
in a position most comfortable to them and adjust the viewing angle of 
the camera so that they can be seen well. For VTC appearances, the 
representative and claimant are limited to the design of the room in 
which the hearing is held and cannot adjust the camera.
    The commenter noted that we previously introduced VTC appearances 
to allow us to schedule hearings quicker and to transfer workloads 
among offices to lighten the load at certain hearing offices. According 
to the commenter, because the same can be provided by both telephone 
(audio) and online video appearances, the need for VTC appearances 
becomes obsolete. The commenter said the proposed regulations did not 
provide any explanation as to why VTC appearances would remain 
necessary once audio and online video are offered as standard manners 
of appearance.
    Response: This final rule provides for an appearance by agency 
video to enhance the overall flexibility in our hearing process. We 
agree that many claimants are likely to prefer to appear by online 
video instead of by agency video. Nonetheless, we expect there will be 
some claimants who cannot appear by online video or do not want to 
appear by online video, but who do not object to appearing by agency 
video.\17\ Agency video helps ensure that all claimants are afforded 
the same options for virtual hearings, regardless of their ability to 
pay for or otherwise obtain a suitable device or internet connection on 
their own. It also allows us to retain the ability to transfer 
workloads to facilitate earlier scheduling when possible. Our new 
notice, new publication, new agreement form, and revised objection form 
related to this final rule will clearly explain the differences between 
the two video manners of appearance. Finally, we disagree that VTC 
appearances have inferior audio and video quality.\18\
---------------------------------------------------------------------------

    \17\ While a small percentage, we have continued to schedule 
claimants to appear by VTC even after the implementation of online 
video appearances. Since we began reopening our offices to the 
public in March 2022 following an initial closure during the COVID-
19 national public health emergency, we have held approximately 1.5 
percent of our hearings by VTC. See the Setting the Manner of 
Appearance of Parties and Witnesses at Hearings, Final Rule, 
Supporting Data Document, available at https://www.regulations.gov 
as a supporting document for Docket SSA-2022-0013.
    \18\ VTC appearances allow the claimant to see and hear the ALJ 
on a television screen over our secure network. For example, with 
our current systems, we transmit in Standard Definition on 50 to 65 
inch monitors in hearing rooms or 27 inch monitors in VTC locations 
using desktop video units.
---------------------------------------------------------------------------

Administrative Conference of the United States (ACUS) Recommendations

    Comment: The Office of the Chair of ACUS repeated in their comments 
recommendations they previously issued related to audio and online 
hearings at Federal agencies. They said they have long encouraged 
agencies, particularly those with high-volume caseloads, to consider 
``whether the use of VTC [hearings] would be beneficial as a way to 
improve efficiency and/or reduce costs while also preserving the 
fairness and participant satisfaction of proceedings.'' They noted that 
they have set forth best practices and practical guidelines for 
conducting traditional VTC hearings and, more recently, ``virtual 
hearings'' in which participants appear remotely from a location of 
their choosing using internet-based videoconferencing software.
    According to ACUS, our proposed rules addressed several of their 
recommended guidelines for conducting virtual hearings, such as the 
circumstances in which an individual's virtual participation may be 
inappropriate; the process by which claimants can object to 
participating virtually; and the technological requirements for virtual 
hearings. They also said that our plan to permit claimants to appear 
virtually by online video in a hearing office with agency-supplied 
electronic devices and internet connection (instead of only allowing 
this option for claimants using personal or borrowed devices in private 
locations) helps ensure that all claimants are afforded the same 
options for virtual hearings, regardless of their ability to pay for or 
otherwise obtain a suitable device or internet connection on their own.
    In addition, ACUS recommended that we consider addressing whether 
to make available or require attendance at ``a general training session 
or pre-hearing conference to discuss technological requirements, 
procedural rules, and standards of conduct for virtual hearings.'' 
According to ACUS, such proactive measures may help to reduce or 
eliminate delays before or during hearings caused by participants' 
unfamiliarity with the technology or videoconferencing software and 
prevent disruptions caused by a lack of understanding of applicable 
procedural rules or behavioral standards for virtual hearings.
    Further, ACUS referred to our proposed revisions to 20 CFR 404.944 
and 416.1444, which clarified that an ALJ could stop a hearing 
temporarily and continue it at a later date if they found that one or 
more variables outside of the agency's control materially affected a 
hearing. They expressed that we may want to explain when a hearing is 
``materially affected'' and provide examples. ACUS recommended that we 
clarify the actions that the ALJ or hearing office staff will take to 
attempt to remedy any technical problems before or after stopping the 
hearing when variables outside the agency's control materially affect 
the hearing.
    ACUS also suggested that, in our pre-hearing notices, we include 
information about the possible manners of appearance; explain the 
claimant's ability to object to virtual hearings; and explain what the 
claimant would need to appear in each manner. They advised we should 
include any other information that would help claimants make informed 
decisions about their preferred manner of appearance, and that we 
should ensure this information stays up to date.
    In addition, ACUS recommended that we continue to survey claimants 
who appear at virtual hearings to gauge their satisfaction with the 
process, and that we should ``maintain open lines of communication with 
representatives in order to receive [their] feedback about the use of 
virtual hearing.'' They suggested tracking and publishing disposition 
data for different hearing

[[Page 68347]]

modalities to measure how virtual hearings compare to in-person 
hearings in terms of procedural fairness and substantive outcomes.
    Finally, ACUS stated that virtual hearings should be utilized and 
conducted in a manner that promotes the principles of fairness, 
efficiency, and participant satisfaction, which form the cornerstones 
of adjudicative legitimacy. Accordingly, when revising regulations and 
issuing subregulatory guidance, ACUS said we should ensure that virtual 
hearings provide a claimant experience that meets or exceeds the in-
person hearing experience.
    Response: Consistent with ACUS's recommendation, this final rule 
recognizes that it may not be appropriate in every circumstance for an 
individual to appear at a hearing virtually. Thus, claimants will have 
an opportunity to object to appearing by agency video or audio, and we 
will not schedule an online video appearance unless the claimant agrees 
to appear in that manner. Additionally, consistent with ACUS's 
recommendation, this final rule sets forth the process by which 
claimants can object to appearing by agency video or audio, and it 
explains how a claimant can tell us that they agree to appear by online 
video. Further, our new publication, which will explain the possible 
manners of appearance, will reflect ACUS's recommendation to explain 
the technological requirements for virtual hearings.
    We also adopted ACUS's suggestion that we explain when audio 
quality or video quality ``materially affects'' a hearing under 20 CFR 
404.944 and 416.1444. Under this final rule, ``materially affects'' 
means it prevents the hearing from proceeding. Examples include 
termination of the audio or video connection or poor audio or video 
quality that prevents the efficient administration of the hearing. If 
an ALJ determines that audio or video quality ``materially affects'' 
the hearing, the ALJ will stop the hearing and continue it at a later 
date. We will schedule the continued hearing no earlier than 20 days 
after the stoppage unless the claimant waives in writing the advanced 
hearing notice requirement.\19\ While we will try to reschedule the 
hearing as quickly as possible, the time to reschedule will depend on 
multiple factors, including representative, expert witness and ALJ 
availability, as well as available hearing slots. If necessary, we may 
schedule the claimant to appear by another available manner of 
appearance.
---------------------------------------------------------------------------

    \19\ 20 CFR 404.938 and 416.1438.
---------------------------------------------------------------------------

    We also plan to post a publicly available video explaining the 
technical requirements of online video and audio appearances. However, 
we did not adopt the recommendation to have a prehearing conference for 
the purpose of discussing technological requirements, procedural rules, 
and standards of conduct for online video and audio hearings, because 
doing so would be overly burdensome, given the hundreds of thousands of 
hearings we schedule per year. The public informational video, along 
with our new notice, new publication, new agreement form, and revised 
objection form, will appropriately explain the manners of appearance 
and their requirements. The notice of hearing will include contact 
information for use if technical difficulties arise during an audio or 
online video hearing. In terms of feedback from participants, we 
conducted feedback surveys for our online video appearances during the 
COVID-19 national public health emergency. Our survey data at that time 
showed that 83 percent of claimants were satisfied with their online 
video hearing.\20\ When implementing this final rule, we plan to 
investigate further opportunities to gather feedback from claimants on 
their experience with the various manners of appearance.
---------------------------------------------------------------------------

    \20\ See Setting the Manner of Appearance of Parties and 
Witnesses at Hearings, NPRM, Supporting Data Document, available at 
https://www.regulations.gov as a supporting document for Docket SSA-
2022-0013.
---------------------------------------------------------------------------

    Regarding communications with representatives, we regularly meet 
with representative organizations, including the National Organization 
of Social Security Claimants' Representatives (NOSSCR) and the National 
Association of Disability Representatives (NADR). We also have 
quarterly roundtable discussions with the advocacy community. During 
our meetings with these organizations, we solicit and receive feedback 
from representatives about our use of remote appearances.
    As for the recommendation for a quality assurance system that 
tracks and publishes disposition data for each manner of appearance, we 
are working to develop this type of data, though it is not available at 
this time due to systems reporting limitations. We do, however, have a 
number of quality assurance measures, including routine quality reviews 
of decisions, in place.

Considerations of Equity and Supporting Underserved Communities

    Comment: Some commenters asked us to consider how the proposed rule 
will impact underserved communities. Commenters cited E.O. 13985, 
Advancing Racial Equity and Support for Underserved Communities Through 
the Federal Government, which prioritizes advancing equity throughout 
the Federal Government. The E.O. addresses removing barriers and 
increasing access to Federal programs by pursuing a comprehensive 
approach to advancing equity for people of color and others who have 
been historically underserved, marginalized, and adversely affected by 
persistent poverty and inequality. A commenter suggested that we 
implement changes to the rules regarding manners of appearance 
``through the lens of advancing equity and removing barriers to 
access.''
    Another commenter said ``the harm [of defaulting to audio or video] 
that could come to claimants is not merely conjectural. Many lower 
income claimants do not have sufficiently regular access to technology 
to make audio and video hearings convenient.'' Several commenters cited 
research about limited broadband internet access in the United States 
and stated that people most impacted by the technological divide are 
those who have ``less education and lower incomes; communities of 
color, such as Black and Latino; older adults; rural residents (and 
most acutely in Native communities); the physically disabled; the LGBTQ 
community; and those falling in the intersections of these groups.''
    Response: As our equity plan indicates,\21\ equity is a highly 
important priority for SSA. We strive to support underserved 
communities, including those identified by the commenters. To that end, 
we anticipate that appearances by audio and video will actually help 
underserved communities because those manners of appearance will often 
allow claimants the flexibility to attend their hearings more easily. 
For example, as other commenters have pointed out, both online video 
and audio appearances can be advantageous for claimants who have 
limited transportation options, who live far from hearing offices, or 
who have circumstances like limited mobility or severe anxiety. 
Additionally, as noted above, this final rule does not eliminate in-
person appearances or agency video (for those who do not have equipment 
necessary for online video) or prioritize audio or video appearances. 
It merely provides a variety of ways for claimants to appear at their 
hearings. Moreover, under this final rule, we will not schedule a 
claimant to appear by online video unless the claimant agrees to appear 
in that manner.
---------------------------------------------------------------------------

    \21\ Our Equity Plan is available at: https://www.ssa.gov/open/materials/SSA-E.O.-13985-Equity-Action-Plan.pdf.

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

[[Page 68348]]

Reasonable Accommodations, Consideration of Functional Disability-
Related Limitations, and Claimant Preferences

    Comment: One commenter said claimants should always determine the 
manner of appearance for their hearing. According to the commenter, 
some claimants are ``terrified'' to appear in the ``court-like 
atmosphere'' of an in-person hearing, and others have physical, 
transportation, or financial difficulties associated with traveling to 
the hearing sites. Other commenters said we should provide a form that 
allows claimants to select their preferred manner of appearance.
    Response: We did not adopt these recommendations because doing so 
would impede our ability to schedule timely hearings. First, we 
anticipate that some claimants would not provide us their preferred 
manner of appearance in a timely manner. Our experience over many years 
has been that it is often difficult to receive responses from some 
claimants when we ask them to contact us. Second, allowing claimants to 
select their preferred manner of appearance is not administratively 
feasible because it would significantly impede our ability to timely 
process the hundreds of thousands of hearings we schedule per year. 
When developing this final rule, we carefully balanced the two guiding 
principles that undergird our hearing process: that it be fair and that 
it works efficiently.\22\ This final rule is fair because it allows 
claimants to have input on their manner of appearance. At the same 
time, this final rule helps our hearing process to work efficiently by 
giving us additional scheduling flexibility, which will allow us to use 
our available resources to schedule more timely hearings.
---------------------------------------------------------------------------

    \22\ See Richardson v. Perales, 402 U.S. 389, 399 (1971).
---------------------------------------------------------------------------

    Comment: Several commenters said we should ask claimants to 
identify their hearing format preferences at the earliest stage 
possible and suggested this could be done on the hearing request form 
(e.g., SSA HA-501). The commenters suggested this may help claimants 
who have difficulty corresponding by mail and may also allow people to 
provide feedback when they are in our field offices, where they may 
have assistance of field office staff who can answer questions, or when 
they may have help from community assisters (e.g., social workers) who 
may be assisting them with an appeal but may not be present when they 
receive the hearing election notice. Further, some commenters said we 
should provide more than one opportunity to select the preferred 
hearing format.
    Response: We did not adopt these recommendations because they would 
require an overhaul of our existing operational processes and systems 
of such magnitude that it would delay our ability to implement the 
flexibilities in this final rule for several years. For example, 
adopting these recommendations would require us to overhaul our 
iAppeals online internet service, which allows claimants to 
electronically file a reconsideration or hearing request.\23\ In 
addition, we anticipate that the process set forth in this final rule 
will allow claimants sufficient opportunity to indicate whether they 
agree to appear by online video and whether they object to appearing by 
audio or agency video. We will provide a separate notice explaining the 
manners of appearance; a revised form for claimants to let us know 
whether they object to appearing by audio, agency video, or both; and a 
new form for claimants to let us know whether they agree to appear by 
online video. If a claimant misses the 30-day deadline to agree to 
appear by online video or to object to appearing by audio, agency 
video, or both, they have the opportunity to show us that they had good 
cause for missing the deadline.\24\ In summary, our new notice, new 
agreement form, revised objection form, and the good cause provisions 
in this final rule will provide claimants with a reasonable opportunity 
to share their manner of appearance preferences with us.
---------------------------------------------------------------------------

    \23\ For more information on iAppeals, see our Program 
Operations Manual System (POMS) GN 03101.125 available at https://secure.ssa.gov/poms.nsf/lnx/0203101125.
    \24\ See 404.936(d)(1) and 416.1436(d)(1).
---------------------------------------------------------------------------

    Comment: One commenter said that some claimants will not be able to 
meaningfully participate when they appear at a hearing by video or 
audio, which will impede our ability to make accurate disability 
determinations and violate section 504 of the Rehabilitation Act 
(section 504). The commenter noted that Federal agencies have an 
affirmative duty to make ``reasonable modifications for qualified 
individuals.'' According to the commenter, some individuals require an 
in-person appearance to meaningfully participate. Several other 
commenters provided examples of individuals who may require an in-
person appearance to meaningfully participate. Examples provided 
include claimants: with hearing or visual impairments; requiring an 
interpreter; who need to frequently shift between sitting and standing 
due to pain; who speak softly or have speech impairments; with auditory 
or visual hallucinations; with seizure disorders; who distrust 
technology or fear being recorded; with intellectual disabilities; with 
developmental disorders; and who may be less familiar with VTC.
    In addition, commenters said the difficulties faced by persons with 
disabilities may be exacerbated if they have limited English 
proficiency. They expressed that interpreter services do not adequately 
address the challenges faced by individuals with limited English 
proficiency who are deaf or hard of hearing. The commenters indicated 
that such individuals must be allowed to appear in a manner that 
accommodates their disabilities and that keeping the right to appear in 
person is required for procedural fairness.
    Response: We are not eliminating the in-person manner of 
appearance. Under this final rule, a claimant may object to appearing 
by agency video and audio and may decide not to agree to appear by 
online video. In that circumstance, barring an exceptional 
circumstance, we would schedule the claimant to appear in person.\25\ 
Additionally, this final rule does not preclude an individual from 
requesting an accommodation. Instead, this final rule adds flexibility 
to our hearing process, and we expect that it will make it easier for 
many claimants to appear at their hearings. Even when a claimant does 
not object to appearing by agency video or audio, we will not default 
to scheduling one of those manners of appearance. Rather, under 20 CFR 
404.936(c)(1)(ii) and 416.1436(c)(1)(ii) of this final rule, we will 
consider which manner would be the most efficient and any facts that 
provide good reason for a specific manner of appearance.
---------------------------------------------------------------------------

    \25\ We may schedule a claimant to appear in another manner when 
the claimant changes their residence, extraordinary circumstances 
prevent the claimant from appearing in person, the claimant is 
incarcerated, or it is necessary to ensure the safety of the public 
and our employees in our hearing process. See 20 CFR 404.936(d)(2) 
through (5); 404.937(b)(2), (c), 416.1436(d)(2) through (5); and 
416.1437(b)(2), (c).
---------------------------------------------------------------------------

    Furthermore, this final rule does not affect or modify our existing 
responsibilities under section 504 of the Rehabilitation Act of 1973, 
or the procedures we follow in considering requests for reasonable 
accommodations under that statute. Separate and distinct from this 
final rule, we will continue to use our established procedures for 
handling section 504 accommodation requests.\26\ We are not revising 
our obligations under section 504 or our

[[Page 68349]]

reasonable accommodation process as part of this final rule.
---------------------------------------------------------------------------

    \26\ HALLEX I-2-0-8 available at https://www.ssa.gov/OP_Home/hallex/I-02/I-2-0-8.html.
---------------------------------------------------------------------------

    Comment: One commenter said that the proposed regulatory language 
does not provide guidance on what may be considered a ``good reason'' 
for scheduling a hearing in person, by video, or by audio. The 
commenter recommended that we incorporate into our regulations the 
language referencing, at a minimum, the standards in 20 CFR 404.911 and 
416.1411 to ensure that an individual's physical, mental, educational, 
or linguistic limitations (including lack of facility with the English 
language) are considered when we choose the appropriate manner for an 
ALJ hearing. The commenter referred to section 504 of the 
Rehabilitation Act of 1973 and noted that section 504 requires Federal 
agencies to ensure that qualified individuals with disabilities are 
not, solely by reason of their disabilities, excluded from 
participation in, denied the benefits of, or subjected to 
discrimination under the programs and activities they conduct. The 
commenter said there is a ``pronounced lack of emphasis on [our] legal 
obligation to ensure equal access to a transparent and fair 
adjudicative process for all individuals with disabilities, including 
those who may require access to in-person hearings for disability 
related reasons.'' According to the commenter, clear regulatory 
instructions obligating our staff and ALJs to consider claimants' 
functional limitations as they pertain to the claimants' ability to 
effectively communicate and participate in the hearing process should 
be part of the evaluation of ``good reasons'' for scheduling a hearing 
in any manner. The commenter expressed that individuals with a wide 
range of disabilities, and those in the deaf and hard of hearing 
community specifically, face ``failed communication'' when dealing with 
our field offices and hearing offices, which may not provide methods of 
effective communication to deaf and hard of hearing individuals. The 
commenter states that such individuals will be adversely affected if 
they are unable to access onsite American Sign Language (ASL) 
interpretation when presenting testimony and interacting with 
adjudicators or witnesses.
    Further, the commenter expressed that our staff must be able to 
recognize the need for an effective communication assessment. The 
commenter said that, if any technology is used for interpreting during 
video or audio hearings, staff must be able to use the required 
equipment and have sufficient understanding of different modes of 
communication to recognize and remedy communication failures. The 
commenter expressed that, without these items addressed, a video or 
audio hearing will not provide effective communication and equal access 
to the administrative process.
    Another commenter said hearing notices should include clear 
guidelines on the use of effective assistive technology during video or 
audio hearings, beyond the explanation that one needs ``a desktop 
computer, laptop computer, tablet or phone with a camera, microphone, 
and speakers.'' The commenter said, to ensure effective communication 
for deaf and hard of hearing claimants, remote technology should offer 
real-time, full motion synchronized video and audio. The commenter 
further stated that the technology should operate over dedicated lines 
or wireless networks offering high-speed, wide-bandwidth video 
connection that delivers high-quality video images that do not produce 
lags, choppy, blurry, or grainy images, or irregular pauses in 
communication, and a clear, audible transmission of voices to support 
listening to and lipreading the hearing participants by the deaf or 
hard of hearing claimant.
    Response: We understand the commenters' concerns, and we expect 
that, overall, the audio and video manners of appearance will make it 
easier for claimants, especially those with functional limitations, to 
appear at their hearings. We did not adopt the recommendation to 
provide guidance on what constitutes a ``good reason'' for scheduling a 
certain manner of appearance because the broad ``good reason'' language 
in this final rule accounts for a wide latitude of possible 
considerations. These considerations may include, for example, the 
physical, mental, educational, or linguistic limitations contemplated 
in 20 CFR 404.911 and 416.1411. As other commenters suggested, we will 
provide more details on the requirements for each manner of appearance 
in our subregulatory policies, new notice and publication, and new and 
revised forms related to this final rule. Claimants may state their 
reasons for objecting or agreeing to a manner of appearance in the 
comment sections of our forms or in separate communications, including 
by telephone or writing. Additionally, if there are technical 
difficulties during a hearing, the ALJ may stop the hearing and 
continue it at a later date.\27\ When rescheduling the continued 
hearing, we will reconsider which manner of appearance to schedule 
using the factors in 20 CFR 404.936(c)(1) and 416.1436(c)(1).
---------------------------------------------------------------------------

    \27\ See 20 CFR 404.944 and 416.1444.
---------------------------------------------------------------------------

    Furthermore, as discussed above, this final rule does not affect or 
modify our existing responsibilities under section 504 of the 
Rehabilitation Act of 1973 or the procedures we follow in considering 
requests for reasonable accommodations. Separate and distinct from this 
final rule, we will continue to follow our long-standing procedures for 
handling section 504 accommodation requests when an individual requests 
an accommodation under this law. We are not revising our obligations 
under section 504 or our reasonable accommodation process as part of 
this final rule.
    Comment: One commenter stated that the provision of full and fair 
hearings for persons with disabilities requires that we have a public-
facing process for determining the need for reasonable accommodations 
and providing them at hearings. According to the commenter, it may be 
impossible to provide disability access effectively, including ASL and 
other language access, in many of the current VTC hearing sites, and 
for that reason, possible reasonable accommodations must include 
providing an in-person hearing, and this reasonable accommodation must 
be available even where the claimant has not timely opted out of a 
video or audio hearing.
    The commenter cited the Hearings, Appeals, and Litigation Law 
Manual (HALLEX) I-2-0-8 and asserted that it does not describe who is 
responsible for receiving and processing accommodation requests for 
hearings or who is responsible for making sure accommodations are 
provided at the various types of hearing sites and how long that 
process would take. The commenter stated that the reasonable 
accommodation information is ``buried among the hundreds of web pages 
on the SSA's website'' and is not connected to the Hearings and Appeals 
portal. The commenter also stated that the SSA Hearing Agreement Form 
and other written information related to our hearing and appeals 
process do not provide information on how to request a reasonable 
accommodation. The commenter asserted that it is not clear how an 
individual pursuing an administrative appeal would be aware of the 
process to request a reasonable accommodation, or even know whether 
they would need an accommodation during the hearing process. According 
to the commenter, individuals needing ``nonstandard'' accommodations 
would require a significant amount of lead time to make and document 
their

[[Page 68350]]

accommodation requests. The commenter expressed that it is important 
that such individuals are able to change their preferred method of 
hearing outside the 30-day period.
    Response: This final rule does not affect or modify the procedures 
we follow in considering requests for reasonable accommodations under 
current law. Rather, it simply provides additional manners of 
appearance, which will make it easier for claimants to appear at their 
hearings. While we understand that some commenters have expressed 
concerns with our existing reasonable accommodation process, including 
under HALLEX I-2-0-8, these comments are outside the scope of this 
regulation change because we are not revising our reasonable 
accommodation procedures. We will, however, take these comments under 
advisement and review our existing reasonable accommodation process, 
including how to find information about the process, for possible 
updates.

Technical, Communication, and Other Considerations

    Comment: One commenter cited ``poor communication between [Office 
of Hearings Operations] staff and representatives when a hearing is 
delayed due to scheduling or technical issues'' for telephone and video 
appearances. The commenter also said judges and hearing reporters are 
not notified when representatives submit a phone number or email 
address change in advance, which may cause hearing office staff to dial 
incorrect phone numbers or use incorrect email addresses, potentially 
resulting in claimants or representatives being designated as ``no-
shows'' at hearings. The commenter requested that we take additional 
steps to assist claimants with technical and other same-day problems 
that arise, and suggested a portal where the representative and 
claimant could check the real-time status of the hearing and update 
their contact information. Other commenters reported difficulty 
reaching a hearing office to address similar same-day problems. For 
example, one commenter said that when there is a significant delay with 
the start time of a hearing, it is difficult to reach the hearing 
office to confirm the hearing is going forward and address any 
miscommunication. The commenter urged us to make available a telephone 
contact for claimants and representatives when facing such problems 
during or prior to the start of a scheduled hearing and to ensure staff 
is available and responsive by telephone. Another commenter stated it 
is difficult to communicate specifically with National Hearing Centers, 
in particular Baltimore or Chicago, causing unnecessary delays and 
continuances through no fault of the claimant or their office. They 
also said it is difficult to have accurate scheduling, causing delays 
due to conflicts.
    Another commenter said it takes ``too long to even get a phone 
hearing.'' The commenter asserted that local hearing offices may need 
assistance from other States because of the ``enormous backlog,'' 
especially related to Federal remand hearings. The commenter asked us 
to ``focus on speeding up the process.'' Another commenter expressed 
that many claimants are experiencing long delays in having their 
hearings scheduled, partly because of the COVID-19 national public 
health emergency, but also due to employee shortages at their 
locations.
    Response: We acknowledge the concerns raised by the commenters and 
are working diligently to implement procedural and efficiency 
improvements in our hearing process. The commenters' recommendations 
relate to our internal practices and procedures, not the policy in this 
final rule. However, we appreciate the comments and plan to consider 
them as we continue evaluating and updating, as necessary, our internal 
practices and procedures to ensure appropriate support during audio and 
video appearances.
    Comment: A commenter expressed that, for online video appearances, 
claimants are ``overwhelmingly unable'' to operate the Teams 
application without assistance, and even with assistance, there are 
often technical difficulties. Additionally, the commenter stated that 
ALJs ``pushed'' claimants to appear by telephone if there were 
technical difficulties during an online video appearance. The commenter 
asserted that these situations created concern that the ``use of the 
Teams app allowed for inconsistent policies among ALJs.''
    Response: The commenter's reported experience does not match our 
data. Our survey data showed that 83 percent of claimants were 
satisfied with their online video hearing.\28\ However, given the 
unique factors related to online video appearances, this final rule 
differs from our proposed rule in that it requires a claimant to agree 
to appear by online video before we will schedule that manner of 
appearance. Depending on the logistics of any given case, it might be 
possible to schedule a hearing more quickly using one manner of 
appearance over another, but we will not pressure a claimant regarding 
their choice to agree to online video or to object to audio or agency 
video.
---------------------------------------------------------------------------

    \28\ See the Manner of Appearance, NPRM, Supporting Data 
Document, available at https://www.regulations.gov as a supporting 
document for Docket SSA-2022-0013.
---------------------------------------------------------------------------

    Regarding the commenter's concern about difficulties that arise 
during online video appearances, this final rule, Sec. Sec.  404.944 
and 416.1444, provide that an ALJ may stop a hearing temporarily and 
continue it at a later date if one or more variables outside of our 
control, such as audio quality or video quality, materially affects the 
hearing. We will then determine the manner of appearance for a 
continued hearing like we would any other hearing. This determination 
involves considering which manner would be most efficient and any facts 
of the case that provide a good reason to schedule the claimant to 
appear in a certain manner. We plan to provide additional training to 
our ALJs to ensure consistent application of this rule.
    Comment: One commenter said it is crucial to acknowledge explicitly 
the need for audio in video-based appearances, since otherwise people 
might think the video option did not include audio. The commenter 
stated that we must recognize the insufficiency of video alone for 
effective communication during hearings. According to the commenter, 
ignoring the audio aspect introduces an incomplete scenario that could 
lead to potential issues.
    Response: We agree with the commenter that some individuals might 
not understand our presumption that video includes audio. Accordingly, 
this final rule explains that agency video and online video include the 
element of audio.
    Comment: One commenter suggested that, in the event of an 
irresolvable technical disruption, an adjourned hearing be rescheduled 
expeditiously.
    Response: We plan to schedule continued hearings following 
adjournments for technical difficulties as quickly as our available 
resources will allow. However, our regulations require us to send a 
notice of continued hearing at least 20 days in advance, unless a 
claimant waives the 20-day advance notice requirement.\29\
---------------------------------------------------------------------------

    \29\ 20 CFR 404.938(d) and 416.1438(d).
---------------------------------------------------------------------------

Objection Period and Good Cause

    Comment: Some commenters disagreed with the 30-day timeframe to 
allow claimants to object to a particular manner of appearance. One 
commenter said that confining the period to 30 days after the date the 
claimant receives the

[[Page 68351]]

notice is more restrictive than current practice and would ``fail to 
recognize the rapidly changing circumstances'' of claimants. Another 
commenter said we should remove any deadline to object to the manner of 
appearance. Others suggested longer deadlines such as 60 days, five 
business days before a hearing, and the date the hearing is scheduled. 
Commenters expressed that additional time is necessary to locate 
unhoused or very low-income claimants, especially those who lack 
consistent access to communication resources like working phones or 
mailing addresses. Another commenter stated that claimants should be 
entitled to change the manner of hearing from audio to video, or video 
to audio, at any point up to five business days before a scheduled 
hearing because, in the view of the commenter, that could be 
accomplished without disruption to the hearing schedule.
    Response: Although we acknowledge commenters' concerns about the 
potential for missed opportunities to object to a particular manner of 
appearance, we did not change the 30-day time period for objecting to 
appearances by agency video or by audio. Thirty days offers an 
appropriate balance between allocating enough time for claimants or 
their representatives to object, while also allowing us sufficient time 
to determine the manner of appearance and schedule the hearing. It is 
critical for us to know the available manners of appearance to schedule 
timely hearings because we schedule hundreds of thousands of hearings 
per year.\30\ A longer or indefinite time period would delay scheduling 
and, therefore, lead to longer hearing wait times. Some of the longer 
time periods suggested by the commenters, and certainly those that 
approach the actual day of the hearing, do not take into account the 
disruption or delay such last-minute changes would cause. We schedule 
each hearing based on considerations for that particular case and the 
overall resources available.
---------------------------------------------------------------------------

    \30\ See the Setting the Manner of Appearance of Parties and 
Witnesses at Hearings, Final Rule, Supporting Data Document, 
available at https://www.regulations.gov as a supporting document 
for Docket SSA-2022-0013.
---------------------------------------------------------------------------

    We do not agree that this 30-day period is ``more restrictive than 
current practice.'' The 30-day time period to object to an appearance 
by agency video or by audio is consistent with the current VTC 
objection policy in our regulations. Even so, some commenters may still 
perceive this rule as ``more restrictive'' because under our current 
business process, we generally require a claimant's agreement before we 
schedule them to appear by telephone, whereas this final rule gives 
claimants an opportunity to object to appearing by audio. However, we 
expect that the overall flexibilities provided by this final rule will 
offset any seemingly greater restriction.
    As discussed earlier, it is often difficult to receive responses 
from some claimants when we ask them to contact us. For example, during 
the period from December 2020, when we began offering appearances by 
online video, until the end of the COVID-19 national public health 
emergency in May 2023, 25 percent of claimants did not respond to our 
form asking if they would like to appear by telephone or online 
video.\31\ By not requiring an ``opt in'' for audio, we will be able to 
efficiently schedule audio hearings for claimants who do not respond. 
This efficient scheduling of audio hearings will allow us to provide 
more timely hearings to all claimants. For appearances by audio, we do 
not need to coordinate hearing room space because the claimants appear 
from private locations of their choice, and ALJs generally conduct 
hearings from a private location other than a hearing room. We can also 
transfer cases with audio appearances to offices and regions with more 
capacity, which reduces hearing wait times.
---------------------------------------------------------------------------

    \31\ See the Setting the Manner of Appearance of Parties and 
Witnesses at Hearings, Final Rule, Supporting Data Document, 
available at https://www.regulations.gov as a supporting document 
for Docket SSA-2022-0013.
---------------------------------------------------------------------------

    When we implement this final rule, we will create a new notice and 
publication explaining the different manners of appearance and the 
various requirements. We will also revise our existing objection form 
so that claimants can easily object to appearances by agency video or 
by audio, and we will create a new form on which claimants can agree, 
if they would like, to appear by online video.
    Finally, as in our current rule, we will extend the time period if 
a claimant shows they had good cause for missing the deadline. We 
expect that this good cause provision will effectively accommodate 
those who lack consistent access to communication resources.

Unique Considerations for Online Video Appearances

    Comment: Commenters stated that many claimants have limited or 
unreliable access to electronic devices or high-speed broadband access. 
One commenter said that many of the same claimants who could 
successfully use online hearing options are those best positioned to 
elect an alternative form of appearance.
    Response: We understand from these comments that we need to 
consider appearances by online video differently than other manners of 
appearance. This difference is needed because appearances by online 
video require using private electronic devices that we do not own, 
operate, or specifically approve and also using third-party software. 
Therefore, in this final rule, we created two categories of video 
appearances: (1) agency video and (2) online video. Agency video means 
video, with audio functionality, using our equipment in one of our 
offices. Online video means video, with audio functionality, using a 
personal electronic device in a private location the claimant chooses.
    Furthermore, because of the unique circumstances involved in 
appearances by online video, we will only schedule appearances by that 
manner if the claimant agrees. Thus, there will be no need for 
claimants to object to appearing by online video. We are not requiring 
claimants' agreement for audio or agency video appearances because 
those manners of appearance do not involve the same unique 
circumstances as online video. Particularly significant is the fact 
that audio and agency video appearances do not require using third-
party software.
    We will send claimants a notice informing them that we may schedule 
them to appear by online video if they agree to appear in that manner. 
To agree to appear by online video, claimants must notify us in writing 
within 30 days of receiving that notice. We are adopting a 30-day 
deadline because we need to know early in the process whether a 
claimant agrees to appear by online video in order to help schedule 
timely hearings for all claimants. Moreover, changing the manner of 
appearance after we schedule a hearing requires us to send an amended 
notice of hearing at least 20 days before the hearing, which may 
require us to reschedule the hearing for a later date unless we are 
able to obtain a written waiver from the claimant.\32\ We will extend 
the 30-day time period for agreeing to online video if the claimant 
shows that they had good cause for missing the deadline. We will 
evaluate good cause using the standards in 20 CFR 404.911 and 416.1411. 
Within our discretion and where possible, even without a showing of 
good cause, we will still consider a request to change the manner of 
appearance to online video after the 30-day time period if it would be 
efficient to conduct the hearing in that manner and the circumstances 
in the case provide a

[[Page 68352]]

good reason to schedule the claimant's appearance by online video.
---------------------------------------------------------------------------

    \32\ 20 CFR 404.938 and 416.1438.
---------------------------------------------------------------------------

Good Cause for Missing the 30-Day Objection Period

    Comment: According to one commenter, the examples of good cause for 
untimely objections identified in proposed 20 CFR 404.936(d)(2) and 
416.1436(d)(2) are problematic, creating a loophole in the rule that 
would effectively eliminate the deadline for objecting to audio and 
video appearances. One example of good cause for an untimely objection 
that we provided in the NPRM was disagreement with the terms of service 
for a third-party application. The commenter said if that were enough 
to show good cause for an untimely objection, any claimant would be 
able to successfully raise an objection at any time simply by claiming 
to disagree with the terms of service of the third-party application we 
use. Thus, we would be required to schedule the claimant to appear in 
another manner whenever a claimant scheduled for an online video 
appearance stated disagreement with the terms of service, even if that 
claimant waited until a day before the originally scheduled hearing. 
The commenter expressed this would be disruptive to hearing operations, 
requiring last-minute postponement of hearings and loss of 
productivity, which has been a ``major undesirable feature of the 
current opt-in, object-at-any-time hearing process.'' The commenter 
suggested that if we think the rule needs to specify examples of good 
cause for untimely objections, the examples should involve much more 
compelling circumstances, such as those currently required for untimely 
objections to VTC.\33\ The commenter expressed it may be better not to 
provide examples, and rather leave it to ALJs to exercise their 
judgment in determining whether good cause for untimely objections has 
been shown.
---------------------------------------------------------------------------

    \33\ The commenter cited 20 CFR 404.911.
---------------------------------------------------------------------------

    Another commenter stated that the two examples of good cause from 
the NPRM (disagreement with the terms of service of the third-party 
application or lack of resources to appear by video) do not establish 
good cause because both scenarios can be ascertained within the 30-day 
timeframe for objection.
    Response: We did not adopt the two examples of good cause provided 
in the NPRM because they pertained to objections to appearing by online 
video only. Under this final rule, a claimant does not need to object 
to appearing by online video. Rather, this final rule provides that we 
will not schedule a claimant to appear by online video unless the 
claimant agrees to appear in that manner, and it provides that a 
claimant may withdraw their agreement to appear by online video at any 
time before the start of the hearing. If the claimant withdraws their 
agreement, we will reschedule the claimant to appear by one of the 
other available manners of appearance. While we will try to reschedule 
the hearing as quickly as possible, the time to reschedule will depend 
on multiple factors, including representative, expert witness and ALJ 
availability, as well as available hearing slots. Additionally, we can 
reschedule the hearing no earlier than 20 days after the withdrawal 
unless the claimant waives in writing the advanced written hearing 
notice requirement.\34\ Although we did not adopt the two examples of 
good cause provided in the NPRM, a claimant may still submit a late 
objection to appearing by audio or agency video. If we receive a late 
objection, we will use the standards in 20 CFR 404.911 and 416.1411 to 
evaluate whether good cause exists for missing the deadline.
---------------------------------------------------------------------------

    \34\ 20 CFR 404.938 and 416.1438.
---------------------------------------------------------------------------

    Comment: According to some commenters, we should expand upon the 
circumstances in which claimants can opt out of manners of appearance 
beyond the 30-day objection period. Some commenters said we should do 
this by adding more examples of what would constitute good cause to 
change the manner of appearance.\35\ Other commenters said we should 
specify circumstances that would not require a good cause determination 
but would still permit us to change the manner of appearance beyond the 
objection period. According to one commenter, while retaining ``good 
cause'' exceptions for claimants with extenuating circumstances is 
important, it is not sufficient because good cause exceptions are 
individualized determinations based on judgment. Instead, according to 
the commenter, in certain situations, claimants should be able to 
automatically modify the manner of appearance. Some commenters stated 
that such requests should be processed by hearings staff, without 
involvement of the ALJ. Commenters provided examples of circumstances 
they asserted should allow claimants to change their manner of 
appearance beyond the proposed objection period without requiring a 
good cause determination. Some of the suggested circumstances include:
---------------------------------------------------------------------------

    \35\ Our regulations provide examples of good cause for missing 
a deadline in 20 CFR 404.911 and 416.1411. Also, in the NPRM, we 
proposed to include examples of some circumstances that would apply 
specifically to online video appearances: ``Examples of good cause 
would include circumstances where the claimant disagrees with the 
terms of service for a third-party application or lacks the 
resources to appear by video.'' See 88 FR 32148, 32152, and 32153 
(May 19, 2023). We removed the NPRM examples from this final rule.
---------------------------------------------------------------------------

     If the claimant obtains counsel for their disability 
hearing.
     If claimants change or obtain new counsel.
     If there is a change of address.
     If there is a change in medical condition, including 
hospitalization, because some of these changes may impact accessibility 
to certain hearing formats.
     If the custody or guardianship of a child changes.
     If the claimant is homeless.
     If the claimant lacks necessary equipment, such as a 
personal electronic device with internet access.
     If the claimant never received the notice to object due to 
mailing problems, homelessness, illiteracy, or inability to read 
English.
     Lack of proper identification (for hearings in government 
buildings).
    One commenter expressed that because claimants may have ``long wait 
times of multiple years before getting to appear at a hearing before an 
ALJ, this process ought to account for changes in circumstances with 
flexibility and lenient consideration.'' Another commenter said that 
claimants unfamiliar with hearing modalities offered will not likely 
know whether they need to request an accommodation or may assume that 
accommodations will be easily provided. Additional commenters said that 
a claimant who elects or defaults to a video or audio appearance may 
not understand the nature of the appearance, and allowing changes in 
manner of appearance until a hearing is scheduled promotes informed 
decisions.
    According to a commenter, the lack of clarity regarding what 
constitutes good cause to object to appearing by VTC (under current 
regulations) has resulted in ALJs denying late objections for 
circumstances that would likely have been granted if detailed with 
further clarity.
    Finally, a commenter expressed that, in addition to the reasons we 
would allow a change, the rule should clarify whether, how, when, and 
how often a claimant can change their manner of appearance preference.
    Response: We did not adopt these comments. This final rule does not 
include the two examples of good cause from the NPRM because, as 
discussed above, those examples are unnecessary based on changes to the 
final rule.

[[Page 68353]]

    We retained the policy in our current regulations for evaluating 
good cause for an untimely objection. Under that policy, we use the 
standards in 20 CFR 404.911 and 416.1411 to evaluate good cause. We 
have been using those standards to evaluate good cause for missing the 
deadline to object to a VTC appearance for nearly a decade.\36\ Those 
standards are broad and effective, and they are appropriate for 
considering a wide range of reasons for missing a deadline, including 
those identified by the commenters.
---------------------------------------------------------------------------

    \36\ In 2014, we added the provision that we would evaluate good 
cause for untimely VTC objections using the standards in 20 CFR 
404.911 and 416.1411. 79 FR 35926.
---------------------------------------------------------------------------

    Expanding the standards for evaluating good cause too broadly, 
including by adding more across-the-board examples that would require a 
change at any time, would disrupt the efficiency of our hearing 
process. Therefore, it is important to retain our current standards, 
which have worked well for a long time, and which allow us to make 
case-specific good cause determinations based on individual 
circumstances.
    Our ALJs are well positioned to evaluate good cause and have 
extensive experience doing so. While a commenter suggested that ALJs do 
not evaluate good cause appropriately, the commenter did not provide 
examples, and the commenter's suggestion does not match our experience.
    Comment: Some commenters expressed concerns that the proposal may 
cause a surge in discretionary good cause determinations. One commenter 
said many claimants will object after the 30-day period, and that 
requiring ALJ decisions on an ``influx'' of requests to change the 
manner of appearance for good cause will likely weigh the agency down 
with administrative burdens and erode uniformity and equity of claim 
outcomes. The commenter said that the addition of a new discretionary 
procedure will most likely hurt the least-resourced and furthest 
marginalized claimants.
    A different commenter stated that there may be an increase in 
claimants unable to attend hearings by audio or video because they 
either did not know of those manners of appearance or are unable to 
attend in the manner scheduled, which ``will further increase the 
administrative courts issuing Orders to Show Cause (OSC) for failure to 
appear.'' The commenter stated that ALJs will be required to rule on 
OSC responses, requiring subsequent administrative action that would be 
otherwise unnecessary.
    Response: We disagree with these commenters. We do not anticipate 
an influx of untimely objections, and we do not anticipate delays or 
lack of uniformity in our good cause determinations. As we noted in our 
other responses, our ALJs have extensive experience evaluating good 
cause under the standards in 20 CFR 404.911 and 416.1411. Our ALJs have 
been doing so regarding VTC objections since 2014 \37\ and regarding 
other deadlines for nearly three decades.\38\ There is nothing unique 
about appearances by agency video or by audio that would necessitate a 
change.
---------------------------------------------------------------------------

    \37\ See 79 FR 35926.
    \38\ We set forth good cause provisions in 20 CFR 404.911 and 
416.1411 in 1980, and we amended them to their current form in 1994.
---------------------------------------------------------------------------

    Moreover, we expect that the manners of appearance in this final 
rule will make it easier for many claimants, especially those facing 
barriers to service, to attend their hearings. As such, we anticipate 
that fewer--not more--claimants will fail to appear at their hearings, 
which will result in the need to issue fewer Requests to Show Cause for 
Failure to Appear (Form SSA- HA-L90s).

In-Person Appearances

    Comment: Multiple commenters expressed support for retaining in-
person hearings as the default manner of appearance. One commenter 
asserted that changing the default manner of appearance will 
``adversely affect vulnerable claimants.'' They expressed that many 
claimants, particularly those who are unhoused or lack reliable access 
to mail, are not always able to respond to notices regarding the manner 
of appearance. Some commenters said that mail service remains ``spotty 
at best'' in many low-income neighborhoods and claimants facing the 
most significant barriers, including homelessness, poverty, and housing 
instability, move frequently. According to some commenters, our 
inability to reach approximately 30 percent of claimants (data we 
reported in the NPRM) should not be ``interpreted as endorsement of, or 
acquiescence to, the change in platforms.'' The commenter expressed 
that a change in the default manner of appearance could create a group 
of claimants who would have elected an in-person hearing, but because 
of housing insecurity, physical or behavioral deficits in their ability 
to read and understand, or other reasons, are forced into a manner of 
appearance which they did not choose.
    Another commenter said the ``onus should not be on the claimant to 
affirmatively pursue and protect their right to appear at their hearing 
in person.'' According to the commenter, the proposed regulations 
``unfairly shift the burden of preserving the right to appear in person 
on the claimant by requiring them to object, but also require the 
claimant to navigate a duplicative, cumbersome process to do so.'' 
According to a different commenter, audio hearings are a ``true 
disservice to the disabled individuals seeking benefits,'' and unless 
claimants specifically request audio, it ``deprives them of a full and 
fair hearing, particularly if they are not represented.'' Another 
commenter asserted that telephone hearings do not provide claimants 
with an opportunity to fully present their case, which causes cases to 
be ``decided unfavorably due to an error by the ALJ that would have 
been avoided in an in-person hearing.'' The commenter said that the 
denial rate for telephone hearings didn't reflect what they expected 
based on their experience with the ALJs in their region, and they found 
many decisions were ``so deficient as to require appeal.'' The 
commenter expressed that in-person, local hearings should be the 
preferred manner of appearance.
    Another commenter said that, unless a particular claimant has 
indicated a preference for an audio or video appearance, they should be 
scheduled for an in-person appearance to enable the ``fullest 
evaluation of their claim.'' According to some commenters, in-person 
appearances are often necessary for an adjudicator to fully observe the 
physical manifestations of a claimant's disabilities (such as their 
physical functioning, scars, mannerisms, and hygiene) and accurately 
assess a claimant's credibility. A commenter stated that confused or 
anxious looks can be visual evidence of confusion or anxiety. Another 
commenter said that claimants often must testify to highly personal, 
emotional, traumatic symptoms and events, and that requiring them to 
testify in a manner contrary to their choice may lead to less claimant 
disclosure and decisions based on incomplete information.
    One commenter said that scheduling audio or video appearances 
without providing a meaningful opportunity to opt out effectively 
removes a claimant's one chance to engage in an in-person interaction 
with a decision-maker for the entire disability determination process 
(since we usually rely on document review for the initial and 
reconsideration determinations, and the Appeals Council and District 
Court appellate processes). According to the commenter, allowing in-
person

[[Page 68354]]

appearances for all who choose it ``demonstrates respect'' and 
``promotes dignity and transparency in what may appear to be a largely 
invisible and impersonal process.'' Further, the commenter said 
defaulting to audio or video appearances demotes this process to one 
that may feel ``less legitimate, presenting a significant disruption to 
the human element of disability adjudication.'' Another commenter 
stated this is the first interaction that some claimants have with the 
American legal system and the right to be heard in person. They 
expressed that this is a core value in our justice system and any 
changes we make should not erode this right.
    Response: We are not eliminating in-person appearances, nor are we 
making in-person appearances the default. Under this final rule, we 
will generally schedule a claimant to appear in person if the claimant 
timely objects to appearing by audio and agency video and if the 
claimant does not timely agree to appear by online video.\39\ Absent an 
objection, we will not default to scheduling claimants by agency video 
or by audio. Rather, under 20 CFR 404.936(c)(1)(ii) and 
416.1436(c)(1)(ii) of this final rule, we will consider which manner 
would be the most efficient and any facts that provide a good reason 
for a specific manner of appearance. Thus, we may schedule an in-person 
appearance if we determine it is necessary.
---------------------------------------------------------------------------

    \39\ In limited circumstances, we may not schedule the claimant 
to appear in person, see 20 CFR 404.936(d)(2)-(5); 404.937(b)(2), 
(c); 416.1436(d)(2)-(5); and 416.1437(b)(2), (c).
---------------------------------------------------------------------------

    This final rule adds flexibility to our policy on manners of 
appearance and gives claimants an opportunity to have input on their 
own manner of appearance. Many other commenters highlighted the 
benefits of, and indeed a preference for, appearances by audio and 
video. For example, commenters noted that audio and video appearances 
will result in greater overall flexibility for claimants. Commenters 
also stated that both video and audio appearances can be advantageous 
for claimants who have limited transportation options, who live far 
from hearing offices, or who have circumstances like limited mobility 
or severe anxiety. Furthermore, our experience stemming from the COVID-
19 national public health emergency shows that many claimants desire to 
appear by audio or video.\40\ Since we began reopening our offices to 
the public in March 2022, many claimants continue to choose a telephone 
or online video appearance. Since March 2022, approximately 70.5 
percent of hearing appearances have occurred by telephone, 14.4 percent 
by online video, 13.6 percent in person, and 1.5 percent by VTC.\41\ 
Our survey data also showed that 83 percent of claimants were satisfied 
with their online video hearing.\42\ The audio, agency video, and 
online video manners of appearance in this final rule will help us to 
balance workloads and reduce wait and processing times, thereby 
providing more timely hearings for claimants.
---------------------------------------------------------------------------

    \40\ See the Setting the Manner of Appearance of Parties and 
Witnesses at Hearings, NPRM, Supporting Data Document, available at 
https://www.regulations.gov as a supporting document for Docket SSA-
2022-0013.
    \41\ See the Setting the Manner of Appearance of Parties and 
Witnesses at Hearings, Final Rule, Supporting Data Document, 
available at https://www.regulations.gov as a supporting document 
for Docket SSA-2022-0013.
    \42\ From July 2021 through July 2022, we sent surveys to 
claimants who appeared at hearings by online video to gauge their 
satisfaction with the process. We asked them to rate four statements 
regarding their online video experience on a scale from 1 to 5, 
where 1 meant ``strongly disagree'' and 5 meant ``strongly agree.'' 
The four statements were: (1) the instructions sent in advance were 
helpful; (2) it was easy to connect to my online video hearing; (3) 
I was satisfied with the audio quality of my online video hearing; 
and (4) I was satisfied with the video quality of my online video 
hearing. The overall satisfaction score was 4.2 or higher, and 83 
percent or more of respondents in each month reported an overall 
satisfaction rate of a 4 or 5. See the Setting the Manner of 
Appearance of Parties and Witnesses at Hearings, NPRM, Supporting 
Data Document, available at https://www.regulations.gov as a 
supporting document for Docket SSA-2022-0013.
---------------------------------------------------------------------------

    We disagree with one commenter's assertion that audio appearances 
result in more denials to claimants. The commenter did not provide any 
data to support the assertion. Furthermore, comments about assessing a 
claimant's credibility are an inaccurate description of our rules 
because our ALJs do not evaluate a claimant's credibility. Instead, our 
ALJs evaluate the intensity, persistence, and limiting effects of an 
individual's symptoms based on all the evidence of record. We do not 
assess a claimant's overall character or truthfulness in the manner 
typically used during adversarial litigation.\43\
---------------------------------------------------------------------------

    \43\ See 20 CFR 404.1529(c)(3) and 416.929(c)(3) and Social 
Security Ruling (SSR) 16-3p.
---------------------------------------------------------------------------

    In conclusion, it would be as inappropriate for us to automatically 
assume that a claimant prefers to appear at a hearing in-person as it 
would be for us to assume the claimant wants to appear by online video. 
Indeed, we designed this final rule to allow claimants to have input 
into the manner in which they will appear at hearings.
    Comment: One commenter said the proposed rule has the potential to 
improve on our current practice, primarily because it creates an opt-
out process for audio and video appearances and provides a deadline for 
opting out. This opt out process is in contrast to the current process, 
which requires opting in for audio and video appearances and allows 
claimants and representatives to ``disrupt'' hearing schedules by 
raising objections to audio and video appearances at any time. Another 
commenter stated that ``in-person hearings should not be the automatic 
default for claimants'' and that claimants usually prefer video to in-
person hearings, as they can appear from home yet ``still see the ALJ 
and be seen clearly, with very few cases of tech problems.''
    Response: We agree that appearances by audio, agency video, and 
online video provide significant benefits to claimants, 
representatives, and us. However, as discussed above, under this final 
rule, we will only schedule an online video appearance if the claimant 
agrees because of the unique circumstances of that manner of 
appearance.
    Comment: One commenter expressed concerns that our proposed 
regulations would lead to local hearing offices staffed with only a few 
ALJs willing to hold hearings with in-person appearances, and that 
there would be pressure on claimants to choose an alternative option to 
have their case heard ``earlier'' by a remote ALJ by video or audio. 
The commenter recommended that we continue to staff local hearing 
offices with sufficient ALJs to hold hearings with in-person 
appearances. Another commenter requested that we update our policy to 
describe the ``need to conduct hearings using multiple formats during 
an [ALJ's] day.'' According to the commenter, too often, the 
convenience of our employees outweighs the needs of claimants to have 
their hearings held using first-in first-out scheduling.
    Response: We will continue to staff our hearing offices, budgets 
permitting, with sufficient personnel, including ALJs, to accommodate 
in-person and agency video appearances. For an in-person appearance, we 
have a fixed number of hearing rooms, which we must coordinate the 
scheduling of among our ALJs and claimants. We also do not have the 
ability to transfer a case with an in-person appearance to a non-local 
hearing office with more capacity.
    For appearances by audio and online video, we do not need to 
coordinate hearing room space because the claimants appear from private 
locations of their choice, and ALJs generally conduct hearings from a 
private location other than a hearing room. We can also transfer cases 
with audio, agency video,

[[Page 68355]]

and online video appearances to offices and regions with more capacity, 
which reduces hearing wait times. An advantage of this final rule is 
that it allows us to transfer cases to fill hearing office capacity 
without the geographic limitations of the current rules. Although we 
strive wherever possible to process cases in order, the flexibilities 
and efficiencies this final rule provides may result in a slight 
deviation from the first in, first out order to optimize our hearing 
process overall. Depending on the logistics of a particular case, it 
might be possible to schedule appearances by audio or video more 
quickly than in person, but we will not pressure a claimant regarding 
their choice to agree to online video or to object to audio or agency 
video. This final rule does not prioritize the convenience of our 
employees over our claimants. Finally, because we temporarily closed 
our offices for a period during the COVID-19 national public health 
emergency and we reopened our offices gradually, we communicated to 
claimants that scheduling would be delayed for individuals who did not 
agree to appear by telephone or online video. Now that the emergency 
has ended, we no longer communicate that scheduling in-person 
appearances will be delayed.

Due Process

    Comment: One commenter said our proposal would limit claimants' 
rights to request in-person hearings and thereby affect their right to 
due process. The commenter stated that the Supreme Court has held that, 
in a case involving welfare, a recipient has a due process right to a 
hearing before they can be deprived of benefits, and that due process 
requires the opportunity to be heard ``at a meaningful time and in a 
meaningful manner.'' The commenter referred to a study that, according 
to the commenter, found a deprivation of an in-person hearing for 
people seeking asylum resulted in an increased risk of negative 
outcomes.\44\ The commenter stated that a court today would find that 
due process requires the right to an in-person hearing, particularly in 
claims for Supplemental Security Income (SSI). As such, the commenter 
asserted that the rule, as proposed, would potentially violate the 
procedural due process rights of Social Security claimants.
---------------------------------------------------------------------------

    \44\ The commenter cited Frank M. Walsh; Edward M. Walsh, 
Effective Processing or Assembly-Line Justice--The Use of 
Teleconferencing in Asylum Removal Hearings, 22 Geo. Immigr. L.J. 
259, 275 (2008).
---------------------------------------------------------------------------

    Another commenter expressed that ``procedural Due Process serves 
two basic goals: (1) preventing the wrongful deprivation of interests, 
and (2) promoting fairness by providing a meaningful opportunity for 
individuals to share their side of the story with the government.'' 
According to the commenter, ``imposed'' audio or video appearances that 
conflict with a claimant's preferred manner of appearance militate 
against both goals. The commenter said a ``sizeable number'' of 
claimants will lack the capacity to respond in 30 days. According to 
the commenter, if these claimants are scheduled for an audio or video 
appearance and are unable to appear at the remote hearing because they 
lack notice and the necessary tools to appear, such as a phone or 
computer, their claims will likely be dismissed for failure to appear. 
The commenter stated, for this reason, this change in policy will 
increase procedural dismissals in substantively valid disability 
claims, significantly violating claimants' due process rights.
    Response: This final rule will help to safeguard a claimant's right 
to a full and fair hearing. Barring limited circumstances, no 
provisions in this final rule limit a claimant's ability to appear at a 
hearing in person, if the claimant wants to appear in that manner. 
Moreover, the procedures set forth in this final rule are similar to 
the procedures in our current rules, procedures that have operated well 
for many years.
    Under our current rules, if a claimant wants to appear at a hearing 
in person, instead of by VTC, the claimant can object to appearing by 
VTC within a 30-day period. Claimants who have good cause for missing 
the 30-day deadline can submit a late objection. If the claimant 
objects timely to appearing by VTC (or objects after the 30-day period 
and we find good cause for late filing), and the claimant's residence 
does not change, we will schedule the claimant to appear at a hearing 
in person. Similarly, under this final rule, if a claimant wants to 
appear at a hearing in person, instead of by audio, agency video, or 
online video, the claimant can object to appearing by audio and agency 
video within the same 30-day period, or can submit a late objection 
based on a showing of good cause for missing the deadline. We will not 
schedule an appearance by online video unless the claimant agrees. If 
the claimant objects timely to appearing by audio and agency video (or 
objects after the 30-day period and we find good cause for the late 
filing), the claimant's residence does not change, and the claimant has 
not agreed to appear by online video, we will schedule the claimant to 
appear at a hearing in person. Thus, a claimant has the same 
opportunity to appear at a hearing in person under this final rule as 
under our current rules.
    Under this final rule as well as under our current rules, there are 
very limited circumstances where we will schedule a claimant to appear 
at a hearing by audio despite the claimant's objection to appearing in 
that manner. For example, under this final rule, we will schedule a 
claimant to appear by audio when we cannot schedule the claimant to 
appear by video, e.g., because the claimant objected to appearing by 
agency video and did not agree to appear by online video, and 
extraordinary circumstances prevent the claimant from appearing in 
person.\45\
---------------------------------------------------------------------------

    \45\ See 20 CFR 404.936(d)(2) and 416.1436(d)(2). Under this 
final rule, we may also schedule a claimant to appear by audio, 
despite a timely objection to appearing in that manner, as set forth 
in 20 CFR 404.936(d)(3)-(d)(5), 404.937(b)(2), 404.937(c), 
416.1436(d)(3)-(d)(5), 416.1437(b)(2), and 416.1437(c).
---------------------------------------------------------------------------

    We take seriously our responsibility to ensure that claimants 
receive full and fair hearings as well as accurate hearing decisions. 
Our experience with VTC appearances over the last 20 years, and our 
more recent experience with online video and telephone appearances 
during the COVID-19 national public health emergency shows that 
claimants do not have to appear in person to be heard meaningfully. Our 
ALJs look fully into the issues and follow the same policies and 
procedures, regardless of the claimant's manner of appearance. If a 
variable outside an ALJ's control, such as audio or video quality, were 
to materially affect a hearing, this final rule, Sec. Sec.  404.944 and 
416.1444, provide that the ALJ may stop the hearing temporarily and 
continue it at a later date.
    While a commenter opined that due process requires an in-person 
appearance, particularly for claimants seeking SSI, the commenter did 
not explain why. Instead, the commenter referenced a study that, 
according to the commenter, concluded that VTC hearings for people 
seeking asylum resulted in an increased risk of negative outcomes.\46\ 
Notably though, an asylum removal hearing differs significantly from a 
Social Security hearing. An asylum removal hearing is an adversarial 
proceeding, whereas a hearing on a claim for benefits under the Social 
Security Act is informal and non-adversarial.\47\
---------------------------------------------------------------------------

    \46\ The article the commenter cited regards the use of video 
conferencing in asylum removal hearings. See Walsh & Walsh, supra 
note 43.
    \47\ See Johanna Selberg, Truth and Trauma: Exploring the Merits 
of Non-Adversarial Asylum Hearings, 35 Geo. Immigr. L.J. 929, 932 
(2021) (describing defensive, adversarial asylum proceedings before 
an immigration judge); 20 CFR 404.900(b), 416.1400(b) (explaining 
that we conduct our administrative review process in an informal, 
non-adversarial manner).

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

[[Page 68356]]

    Our ALJs are neutral decision-makers who develop all of the facts 
regarding a benefit claim. An immigration judge does not perform that 
same fact-finding function. Rather, an immigration judge rules on the 
evidence presented by the parties, one of whom is the United States, 
represented by an Immigration and Customs Enforcement attorney. 
Additionally, the study the commenter referenced notes that the 
testimony of an asylum applicant at an asylum hearing is especially 
important because, in order to meet the definition of ``refugees,'' 
they must have fled their country and may have little to no 
documentation to support their allegations of persecution.\48\ Thus, an 
asylum removal hearing is not comparable to a Social Security hearing. 
As previously explained, our experience shows that claimants receive 
full and fair hearings regardless of whether they appear in person or 
by VTC, online video, or audio.
---------------------------------------------------------------------------

    \48\ Walsh & Walsh, supra note 43, at 273.
---------------------------------------------------------------------------

    Furthermore, even in relation to the asylum example cited by the 
commenter, courts have upheld the use of video conferencing for asylum 
hearings. Those courts have examined whether the asylum petitioner 
received a full and fair hearing based on the facts of the individual 
case, including the use of video conferencing.\49\
---------------------------------------------------------------------------

    \49\ See, e.g., Miller v. Att'y Gen. of U.S., 397 F. App'x 780, 
783 (3d Cir. 2010) (finding that the petitioner did not show that 
use of video conferencing prevented the immigration judge from 
properly considering the record or testimony, and noting there was 
no basis to conclude that the immigration judge's ruling would have 
been different if the petitioner had appeared in person); Rapheal v. 
Mukasey, 533 F.3d 521, 531 (7th Cir. 2008) (``No court has ever held 
that Congress has violated the due process clause by authorizing 
removal hearings to proceed via video conference.''); Rusu v. U.S. 
I.N.S., 296 F.3d 316, 322-24 (4th Cir. 2002) (noting the potential 
negative impacts of video conferencing, but finding that the 
petitioner appeared to have a meaningful opportunity to be heard).
---------------------------------------------------------------------------

    As noted elsewhere, this final rule recognizes that some claimants 
may not want to appear at a hearing by agency video or by audio, but, 
due to personal circumstances, may be unable to meet the deadline to 
object to those manners of appearance. In those circumstances, and 
others, we will extend the deadline for submitting an objection if the 
claimant shows good cause for missing it. And, again, this final rule 
specifies that we will only schedule a claimant to appear by online 
video if they agree to an appearance in that manner.
    Ultimately, we expect this final rule will make it easier, not more 
difficult, for claimants to attend hearings. As multiple commenters 
recognized, making audio and video appearances available helps 
claimants who, for a variety of reasons, have difficulty traveling to, 
or participating from, our offices.
    Additionally, under our longstanding procedures, if neither the 
claimant nor the appointed representative, if any, appears for a 
scheduled hearing, we will not dismiss the request for hearing if the 
claimant shows good cause for failing to appear.\50\
---------------------------------------------------------------------------

    \50\ 20 CFR 404.957(b) and 416.1457(b).
---------------------------------------------------------------------------

    Comment: Another commenter said the proposed regulation's shift of 
burden (modifying the requirement that a claimant ``consent to appear 
at a hearing'' to requiring claimants to ``object to appearing at a 
hearing by video, audio, or both'') conflicts with the ``individual's 
right to appear, in person or through a representative.'' According to 
the commenter, ``absent direct expression by U.S. Congress to depart 
from this enacted right, the Administration cannot implement 
regulations to change it.'' The commenter asserted that pursuant to 
Social Security Ruling (SSR) 79-19,\51\ an individual's waiver of the 
right to personal appearance at a hearing needs to be ``made 
voluntarily and knowingly.'' The commenter said that a claimant who has 
not objected to appear remotely has neither ``voluntarily nor 
knowingly'' waived the right to appear in person. The commenter 
asserted that it follows that claimants also have the option to rescind 
an election for remote appearance at any time.
---------------------------------------------------------------------------

    \51\ See SSR 79-19, available at https://www.ssa.gov/OP_Home/rulings/oasi/33/SSR79-19-oasi-33.html.
---------------------------------------------------------------------------

    Response: The commenter has misconstrued SSR 79-19. That SSR 
provides guidance about waiver of a claimant's statutory right to 
appear at a hearing, either personally or through a representative. 
Under our regulations, an ALJ may decide a case without a hearing if 
all the parties to the hearing indicate in writing that they do not 
wish to appear at a hearing.\52\ SSR 79-19 requires the agency to give 
a claimant who files a request for hearing a thorough explanation of 
the hearing procedures to help convey the importance of those 
procedures, and it sets forth the requirements for a valid waiver of 
the right to appear at a hearing. Contrary to the commenter's 
statement, SSR 79-19 does not relate to manners of appearance, and 
neither SSR 79-19 nor any other authority requires a claimant to 
voluntarily and knowingly waive the opportunity to appear in person 
before we can schedule another manner of appearance. Moreover, under 
our current rules, we routinely schedule claimants to appear at 
hearings by VTC, without requiring any waiver of the opportunity to 
appear in person.\53\
---------------------------------------------------------------------------

    \52\ 20 CFR 404.948(b)(1)(i) and 416.1448(b)(1)(i).
    \53\ Under our current rules, we generally will not schedule a 
claimant to appear by VTC if the claimant timely objected to 
appearing in that manner. 20 CFR 404.936(d) and 416.1436(d).
---------------------------------------------------------------------------

Other

    Comment: Multiple commenters said a claimant should have the right 
to a hearing before an ALJ who is local to the claimant's residence. 
According to commenters, local healthcare options, cultural and other 
barriers to evidence, language, and other regional differences 
contribute to a claimant receiving a higher quality hearing before a 
local ALJ. Some commenters said that the proposed regulations 
``continue to encourage a problematic slide within our agency toward 
scheduling hearings with ALJs who lack knowledge of the claimant's 
region.'' Other commenters expressed that local ALJs are familiar with 
unique vocational factors and know the specific circuit's case law. In 
addition, a commenter said local attorneys have sufficient experience 
and knowledge of local ALJs' preferences, ranging from supplying 
evidence, to brief formatting and content, to how hearings are 
conducted. The commenter stated that familiarity with an ALJ's 
preferences allows the entire hearing process to run more efficiently, 
and the consequential increased need to appear before non-local ALJs 
will result in longer hearings and more supplemental hearings, costing 
more in the end. The commenter said, in some cases, remote ALJs have 
seemed ``disparaging and unreasonably disbelieving'' of claimants from 
the commenter's region, which has a ``distinct cultural identity and 
racial and ethnic demography.''
    Another commenter stated that the proposed notices do not inform 
claimants that choosing a remote appearance may result in their case 
being transferred to ``any hearing office in the country,'' and took 
issue with the lack of notice regarding the potential for cases to be 
transferred outside one's local hearing office.
    Response: We did not adopt these recommendations because claimants 
do not have a statutory right to a hearing in their region or locally. 
We administer a national program, and, unless a relevant acquiescence 
ruling applies, our ALJs apply our national policies to

[[Page 68357]]

all cases.\54\ We also have extensive experience conducting hearings 
with ALJs who are in different locations than our claimants. For 
example, ALJs at our National Hearing Centers conduct hearings with 
claimants located throughout the nation. In addition, we transfer cases 
to other offices and regions to help balance our processing times. As 
we explained in our NPRM, we transferred approximately 17 percent of 
our cases in fiscal year 2022.\55\
---------------------------------------------------------------------------

    \54\ 20 CFR 404.985 and 416.1485 and SSR 96-1p, available at 
https://www.ssa.gov/OP_Home/rulings/di/10/SSR96-01-di-10.html.
    \55\ See the Manner of Appearance, NPRM, Supporting Data 
Document, available at https://www.regulations.gov as a supporting 
document for Docket SSA-2022-0013.
---------------------------------------------------------------------------

    Our policy requires ALJs to conduct fair and impartial hearings 
\56\ and we have processes and procedures in place to address any 
issues that arise.\57\ Indeed, as previously explained in this rule, 
one of the driving factors behind this regulation is the desire to 
achieve greater equity for all claimants, including those from 
historically underserved racial or ethnic groups.
---------------------------------------------------------------------------

    \56\ See HALLEX I-2-3-10 B.1 available at https://www.ssa.gov/OP_Home/hallex/I-02/I-2-3-10.html (``Regardless of a claimant's 
manner of appearance at the hearing, the [ALJ] must inquire fully 
into all matters at issue and conduct the hearing in a fair and 
impartial manner.'').
    \57\ See SSR 13-1p available at https://www.ssa.gov/OP_Home/rulings/oasi/33/SSR2013-01-oasi-33.html and HALLEX I-1-8-4 available 
at https://www.ssa.gov/OP_Home/hallex/I-01/I-1-8-4.html and I-3-3-2 
available at https://www.ssa.gov/OP_Home/hallex/I-03/I-3-3-2.html.
---------------------------------------------------------------------------

    Comment: One commenter said claimants and their representatives 
should be allowed to opt for video appearances in every case, and they 
should never be required to appear by audio if they seek a video 
appearance (where the ALJ can observe the claimant).
    Response: As we stated in an earlier response, it is not 
administratively feasible to allow claimants to select their preferred 
manner of appearance. However, this final rule provides for claimant 
input by allowing claimants to object to appearing by audio or agency 
video and by requiring a claimant's agreement to an appearance by 
online video. We must have flexibility in our scheduling process 
because we schedule hundreds of thousands of hearings per year, and 
flexibility enhances our efficiency.
    If a claimant does not want to appear by audio, they can object to 
appearing in that manner. Under this final rule, we will generally not 
schedule an appearance by audio if the claimant timely objects to 
appearing in that manner. Generally, we will only schedule an 
appearance by audio, notwithstanding an objection to appearing in that 
manner in very limited circumstances, when an appearance by video or in 
person is not available.\58\ This is consistent with our current rules, 
which allow us to require an appearance by telephone in certain limited 
circumstances. Despite the current provisions, we have historically 
required a telephone appearance in very few cases. Even during the 
COVID-19 national public health emergency, we asked claimants if they 
agreed to appear by telephone before holding a hearing in that manner. 
Similarly, under this final rule, we expect that we will require a 
claimant to appear by audio notwithstanding their objection in few 
cases.
---------------------------------------------------------------------------

    \58\ See 20 CFR 404.936(d)(2)-(5); 404.937(b)(2), (c); 
416.1436(d)(2)-(5); and 416.1437(b)(2), (c).
---------------------------------------------------------------------------

    Comment: Multiple commenters indicated that the current election 
form \59\ should be more user friendly. One commenter said that many 
claimants are confused by the current form, which has led those who 
would have preferred an audio or video appearance to wait years for an 
in-person appearance because they did not understand how to communicate 
their agreement to audio or video to us. The commenter provided a 
sample form and suggested we designate it as the ``Manner of Appearance 
Election For Social Security Administrative Law Judge Hearings.'' They 
also suggested that we include the form with the letter that informs 
the claimant of the hearing process. Commenters said the letter should 
make clear that the claimant has 30 days to respond, or the hearing 
will be scheduled in person. According to the commenter, the proposed 
form could also be used to indicate a claimant's request to change the 
manner of appearance and the reason for the requested change.
---------------------------------------------------------------------------

    \59\ Commenters likely referred to Remote Hearing Agreement Form 
(OMB control no. 0960-0671), available at: https://www.ssa.gov/appeals/documents/RemoteHearingAgreementForm_RepresentedClaimantandRepresentative.pdf.
---------------------------------------------------------------------------

    Another commenter said the notice should explain how effectively 
ASL and other language access can be provided with each manner of 
appearance, including how all participants will be shown on the screen, 
when applicable, and whether there will be a number to call on the day 
of the hearing if they run into trouble accessing the hearing. An 
additional commenter expressed that there should be a more accessible 
method for claimants and representatives to state a preference for an 
in-person, audio, or video appearance.
    One commenter stated the new form should provide a check box near 
the top of the proposed form that states, ``I wish to have an in-person 
hearing.'' According to the commenter, this would make this option a 
meaningful choice, and it would help claimants understand that in-
person appearances are still an option. Multiple commenters advised the 
new form should remove the language that states, ``I understand that by 
selecting this option my hearing may be delayed.''
    Finally, commenters expressed that it is important that the rule 
provides clear instructions for objecting to a remote appearance, 
opting for an in-person appearance, and for providing good cause for 
the late submission of an objection.
    Response: We will provide a new notice and publication explaining 
the manners of appearance, a revised form (Form HA-55) allowing 
claimants to object to appearances by audio and agency video, and a new 
form allowing claimants to agree to appearances by online video. These 
documents will clearly explain the various manners of appearance, the 
requirements for each, and the time period for objecting to appearances 
by audio and by agency video and for agreeing to appearances by online 
video.
    Our Request for Hearing Acknowledgment Letter (Form HA-L2) explains 
how claimants with limited English proficiency, or those who are deaf 
or hard of hearing, may request an interpreter, including for ASL. As 
we did throughout the COVID-19 national public health emergency, where 
requested, we will provide interpreters for all our manners of 
appearance. We also plan to revise our subregulatory policies to 
explain how we will offer interpreters for audio, agency video, and 
online video appearances. Based on our experience during the COVID-19 
national public health emergency, we find that each manner of 
appearances is equally effective for all interpretation needs.
    We also do not plan to adopt the suggestion to add a special 
checkbox for in-person appearances, because doing so would make it seem 
like in-person is the preferred or default manner. We will, though, 
seek approval from the Office of Management and Budget (OMB) for our 
revised objection form and new agreement form. As explained earlier, 
one of the goals of this regulation is to provide claimants with an 
opportunity to have input about their manner of appearance, based on 
what is best for them. As some of the public comments cited in this 
final rule indicate, an in-

[[Page 68358]]

person appearance is not necessarily what is best for every claimant.

Regulatory Procedures

Executive Order (E.O.) 12866, as Supplemented by E.O. 13563 and Amended 
by E.O. 14094

    We have consulted with OMB and determined that this final rule 
meets the criteria for a significant regulatory action under E.O. 
12866, as supplemented by E.O. 13563 and amended by 14094, and is 
subject to OMB review.

Anticipated Costs/Transfers to Our Program

    The Office of the Chief Actuary estimates that there will be no 
significant changes in allowance rates for disability cases under the 
Old-Age, Survivors, and Disability Insurance (OASDI) and Federal SSI 
programs due to implementation of this final rule. The primary effects 
from implementing this final rule will be small cash flow effects due 
to conducting hearings and issuing decisions more timely. These changes 
are therefore expected to result in small changes of less than $500,000 
in scheduled OASDI benefit payments and Federal SSI payments over the 
period from fiscal year 2024 through fiscal year 2033.

Anticipated Administrative Cost/Savings

    The Office of Budget, Finance, and Management estimates net 
administrative savings of less than 15 work years and $2 million 
annually. We anticipate a small savings from lower ALJ, claimant, and 
representative travel costs, offset some by slightly higher costs from 
an increase in forms returned to us by claimants.

Anticipated Qualitative Benefits

    As discussed in the NPRM, we expect that the flexibility provided 
by this rule will benefit claimants and our agency in several ways. 
First, we will be able to continue scheduling claimants to appear at 
hearings remotely, by audio (except when claimants object) and by 
online video (when claimants agree to this manner). Our experience, as 
well as that of claimants, during the COVID-19 national public health 
emergency showed that remote appearances are acceptable and beneficial 
to our hearing process. If claimants agree to appear by online video or 
do not object to appearing by audio, and we schedule them in one of 
those manners, they may save on costs associated with transportation 
(e.g., gas, maintenance of vehicle, bus fare), and they may save time 
that they would otherwise have spent traveling. Likewise, they may not 
need to secure a replacement caregiver if they supervise family members 
or others, such as children, who cannot be left alone. In addition, if 
claimants have difficulty leaving the house because of limited mobility 
or other reasons, an online video or audio appearance will allow them 
to appear from a private location of their choice, such as their home.
    This rule will also allow us to balance our workloads more 
efficiently among hearing offices because we can more easily transfer 
cases where the claimant is scheduled to appear by agency video, online 
video, or audio from one hearing office to another. We expect that this 
rule will help us to reduce overall wait and processing times across 
the country and reduce the disparities that exist from region to region 
and office to office.
    Finally, the changes in this rule will allow us to be prepared for 
future emergency events, including localized events such as natural 
disasters and national public health emergencies similar to COVID-19 
that could require us to temporarily suspend in-person or agency video 
appearances.

Congressional Review Act

    This final rule is not a major rule as defined by the Congressional 
Review Act.\60\
---------------------------------------------------------------------------

    \60\ 5 U.S.C. 801 et seq.
---------------------------------------------------------------------------

Executive Order 13132 (Federalism)

    We analyzed this final rule in accordance with the principles and 
criteria established by Executive Order 13132 and determined that the 
final rule will not have sufficient federalism implications to warrant 
the preparation of a federalism assessment. We also determined that 
this final rule will not preempt any State law or State regulation or 
affect the States' abilities to discharge traditional State 
governmental functions.

Regulatory Flexibility Act

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

Paperwork Reduction Act

    SSA already has existing OMB PRA-approved information collection 
tools relating to this proposed rule under OMB Control No. 0960-0671: 
Form HA-504, Acknowledgement of Receipt (Notice of Hearing); Form HA-
L83, Acknowledgement of Receipt (Notice of Hearing) Cover Letter; Form 
HA-55, Objection to Appearing by Video Teleconferencing; Form HA-L2, 
Objection to Appearing by Video Teleconferencing Cover Letter; and Form 
HA-510, Waiver of Written Notice of Hearing. This final rule changes 
the ways in which the Social Security Administration conducts hearings, 
by expanding and clarifying our manner of appearance options. In 
addition, this rule clarifies that claimants may appear for hearings 
remotely using a telephone in the absence of extraordinary 
circumstances; and that claimants may also appear remotely by video 
using private electronic devices with approved online video 
conferencing applications, rather than only using SSA owned video 
equipment. We will need to revise the associated forms to reflect these 
changes. Overall, we do not anticipate significant burden changes due 
to this regulation. The burden chart below reflects our current burden 
estimates for the associated information collection tools, as well as 
the projected burden savings for the few Information Collections where 
we think the burden will change. We will obtain OMB approval for the 
revisions to the collection instruments concurrently with the effective 
date of this final rule.
    In addition, due to the final rule, we are also creating a new 
notice, the HA-L54, Notice of Ways to Attend a Hearing, and a new Form, 
the HA-56, Agreement to Appearing by Online Video. The new notice, HA-
L54, will explain in more detail the various ways to attend a hearing, 
the requirements for each appearance type, the ability to object to 
attending by audio or agency video, and the ability to agree to 
attending by online video. The HA-L54 will serve as a cover letter for 
Form HA-55 and new Form HA-56. The new form, HA-56, will allow 
claimants to agree to an appearance via online video (using MS Teams). 
Respondents will only use this form if they agree to an online video 
appearance. The instructions on both the HA-L54 and Form HA-56 will 
make this use of the Form HA-56 clear to the respondent. Claimants who 
wish to object to an appearance by audio or agency video will use the 
HA-55 to object.
    The sections for the HA-56 and HA-L54 below report our anticipated 
public reporting burdens for these new forms.
    Finally, as we created the new notice, HA-L54, we will no longer 
need to use the Claimant Enhanced Outreach Notices, since the new 
Notice replaces them. In addition, we also expect to replace the 
current Claimant Enhanced Outreach calls with one combined call,

[[Page 68359]]

since we will use the new HA-L54 to collect the necessary information 
prior to a hearing but may still need an Outreach call to initiate the 
hearing process. Since we are removing these information collections, 
we anticipate a significant overall burden reduction for the public of 
about 168,366 hours. The chart below shows the overall burden reduction 
for this final rule.
    We will obtain OMB approval both for the modifications to the 
existing collection instruments and the new collection instruments 
discussed above concurrently with the effective date of this final 
rule.
    The following chart shows the time burden information associated 
with this final rule:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                 Anticipated
                                                                                                      Current     Anticipated     estimated
                                                                                         Average     estimated  new number  of      total      Estimated
               OMB #; form #; CFR citations                  Number of   Frequency of   burden per     total       responses       burden       burden
                                                            respondents     response     response     burden         under          under       savings
                                                                                        (minutes)     (hours)     regulation     regulation     (hours)
                                                                                                                                   (hours)
--------------------------------------------------------------------------------------------------------------------------------------------------------
HA-504\+\ HA-504-OP1 HA-504-OP2 404.938(c) 413.1438(c)...       700,000             1           30     350,000         700,000       350,000           0
HA-L83--404.936(f); 404.938; 416.1436(f); 416.1438.......       700,000             1           30     350,000         700,000       350,000           0
HA-L83--Good cause for missing deadline--404.936(f)(2);           5,000             1            5         417           5,000           417           0
 416.1436(f)(2)..........................................
HA-L83--Objection stating issues in notice are incorrect--       35,000             1            5       2,917          35,000         2,917           0
 sent 5 days prior to hearing 404.939; 416.1439..........
HA-L2 Acknowledgement Letter 404.936 416.1436............       500,000             1            5      41,667         500,000        41,667           0
HA-L54, HA-56, and HA-55--404.936; 404.938; 416.1436;           500,000             1           10      83,333         500,000        83,333           0
 416.1438................................................
HA-L2--Verification of New Residence 404.936(d)(4);              35,000             1            5       2,917          35,000         2,917           0
 416.1436(d)(1)..........................................
HA-L54--Notification of objection to audio and agency            13,500             1           10       2,250          13,500         2,250           0
 video and agreement to online video more than 30-days
 after receipt of notice showing good cause 404.936(d)(1)
 and (e)(1); 416.1436(d)(1) and (e)(1)...................
HA-510--404.938(a); 416.1438(a)..........................         4,000             1            2         133           4,000           133           0
Claimant Enhanced Outreach--Initial Call No                      75,190             1           10      12,532               0             0      12,532
 Representative (Unrepresented Claimant/ProSe)...........
Claimant Enhanced Outreach--Initial Call with                   201,400             1           10      33,567               0             0      33,567
 Representative..........................................
Claimant Enhanced Outreach--Follow Up Call--No                   37,500             1           60      37,500               0             0      37,500
 Representative (Unrepresented Claimant/ProSe)...........
Claimant Enhanced Outreach--Follow Up Call--With                120,800             1           30      60,400               0             0      60,400
 Representative..........................................
Claimant Enhanced Outreach Call..........................             0             1           30           0          75,190        37,500      37,500
Remote Hearing Options Letter and Form Mailed to                280,000             1           10      46,667               0             0      46,667
 Representative..........................................
Microsoft Teams Video Hearing Call Script--Representative            50             1           20          17               0             0          17
 Payee Outreach..........................................
Microsoft Teams Hearing Call Script--Claimant Outreach...            50             1           20          17               0             0          17
                                                          ----------------------------------------------------------------------------------------------
    Totals...............................................     3,557,490  ............  ...........   1,039,500       2,492,500       833,634     168,366
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The following chart shows the theoretical cost burdens associated 
with this final rule:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                              Anticipated
                                                                                                               estimated      Average
                                                                     Anticipated                  Average        total      theoretical   Total  annual
                   OMB #; form #; CFR citations                       number of     Frequency    burden per     burden      hourly cost    opportunity
                                                                     respondents   of response    response       under        amount     cost  (dollars)
                                                                                                 (minutes)    regulation    (dollars) *         **
                                                                                                                (hours)
--------------------------------------------------------------------------------------------------------------------------------------------------------
HA-504\+\ HA-504-OP1 HA-504-OP2 404.938(c) 413.1438(c)............       700,000             1           30       350,000      * $22.39    ** $7,836,500
HA-L83--404.936(f); 404.938; 416.1436(f); 416.1438................       700,000             1           30       350,000       * 22.39     ** 7,836,500
HA-L83--Good cause for missing deadline--404.936(f)(2);                    5,000             1            5           417       * 22.39         ** 9,337
 416.1436(f)(2)...................................................
HA-L83--Objection stating issues in notice are incorrect--sent 5          35,000             1            5         2,917       * 22.39        ** 65,312
 days prior to hearing 404.939; 416.1439..........................
HA-L2 Acknowledgement Letter 404.936 416.1436.....................       500,000             1            5        41,667       * 22.39       ** 932,924
HA-L54, HA-56, and HA-55--404.936; 404.938; 416.1436; 416.1438....       500,000             1           10        83,333       * 22.39     ** 1,865,826
HA-L2--Verification of New Residence 404.936(d)(4); 416.1436(d)(1)        35,000             1            5         2,917       * 22.39        ** 65,312
HA-L54--Notification of objection to audio and agency video and           13,500             1           10         2,250       * 22.39        ** 50,378
 agreement to online video more than 30-days after receipt of
 notice showing good cause 404.936(d)(1) and (e)(1);
 416.1436(d)(1) and (e)(1)........................................
HA-510--404.938(a); 416.1438(a)...................................         4,000             1            2           133       * 22.39         ** 2,978
Clamant Enhanced Outreach--Initial Call No Representative                      0             1           10             0           * 0             ** 0
 (Unrepresented Claimant/ProSe)...................................
Clamant Enhanced Outreach--Initial Call with Representative.......             0             1           10             0           * 0             ** 0

[[Page 68360]]

 
Clamant Enhanced Outreach--Follow Up Call--No Representative                   0             1           60             0           * 0             ** 0
 (Unrepresented Claimant/ProSe)...................................
Clamant Enhanced Outreach--Follow Up Call--With Representative....             0             1           30             0           * 0             ** 0
Claimant Enhanced Outreach Call...................................        75,190             1           30        37,500       * 22.39          839,625
Remote Hearing Options Letter and Form Mailed to Representative...             0             1           10             0           * 0             ** 0
Microsoft Teams Video Hearing Call Script--Representative Payee                0             1           20             0           * 0             ** 0
 Outreach.........................................................
Microsoft Teams Hearing Call Script--Claimant Outreach............             0             1           20             0           * 0             ** 0
                                                                   -------------------------------------------------------------------------------------
    Totals........................................................     2,492,500  ............  ...........       833,634  ............    ** 19,504,692
--------------------------------------------------------------------------------------------------------------------------------------------------------
* We based these figures on average DI hourly wages based on SSA's current FY 2024 SSI data (https://www.ssa.gov/legislation/2024FactSheet.pdf); and on
  average U.S. citizen's hourly salary, as reported by Bureau of Labor Statistics data (https://www.bls.gov/oes/current/oes_stru.htm).
** This figure does not represent actual costs that SSA is imposing on recipients of Social Security payments to complete this application; rather,
  these are theoretical opportunity costs for the additional time respondents will spend to complete the application. There is no actual charge to
  respondents to complete the application.

    SSA submitted an Information Collection Request under OMB No. 0960-
0671 to OMB for the approval of the changes due to the final rule, 
which encompasses the revisions to these information collections.
    As we have revised the associated burdens for the above-mentioned 
forms, and since we made revisions to the final rule which were not 
included at the NPRM stage, we are currently soliciting comment on the 
burden for the forms as shown in the charts above. If you would like to 
submit comments, please send them to:
    Currently under Review--Open for Public Comments (https://www.reginfo.gov/public/do/PRAMain) \61\ and choosing to click on one of 
SSA's published items. Please reference Docket ID Number [SSA-2022-
0013] in your submitted response.
---------------------------------------------------------------------------

    \61\ Please note that the link to the specific ICR connected to 
this regulation will only become active the day after the final rule 
publishes in the Federal Register.
---------------------------------------------------------------------------

    Social Security Administration, OLCA, Attn: Reports Clearance 
Director, 3100 West High Rise, 6401 Security Blvd., Baltimore, MD 
21235, Fax: 410-966-2830, Email address: [email protected].
    You can submit comments until September 25, 2024, which is 30 days 
after the publication of this notice. To receive a copy of the OMB 
clearance package, contact the SSA Reports Clearance Officer using any 
of the above contact methods. We prefer to receive comments by email or 
fax.

List of Subjects

20 CFR Part 404

    Administrative practice and procedure, Aged, Blind, Disability 
benefits, Individuals with disabilities, and Social Security.

20 CFR Part 416

    Administrative practice and procedure, Aged, Blind, Disability 
benefits, Social Security, and Supplemental Security Income (SSI).
    The Commissioner of Social Security, Martin O'Malley, having 
reviewed and approved this document, is delegating the authority to 
electronically sign this document to Faye I. Lipsky, who is the primary 
Federal Register Liaison for SSA, for purposes of publication in the 
Federal Register.

Faye I. Lipsky,
Federal Register Liaison, Office of Legislation and Congressional 
Affairs, Social Security Administration.

    For the reasons set out in the preamble, we amend 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. Subject to Sec.  
404.956, the Deputy Commissioner for Hearings Operations, or their 
delegate, will appoint an administrative law judge to conduct the 
hearing. If circumstances warrant, the Deputy Commissioner for Hearings 
Operations, or their delegate, may assign your case to another 
administrative law judge. We will schedule you to appear by audio, 
agency video, online video, or in person as set forth in Sec.  404.936. 
Audio means telephone or similar audio-based technology in a private 
location you choose. Agency video means video, with audio 
functionality, using our equipment in one of our offices. Online video 
means video, with audio functionality, using a personal electronic 
device in a private location you choose. When we determine your manner 
of appearance, we consider the factors described in Sec.  
404.936(c)(1)(i) through (ii). 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. The administrative law judge 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. In Sec.  404.936, revise the section heading and paragraphs (a) 
through (d), redesignate paragraphs (e) and (f) as paragraphs (f) and 
(g), and add a new paragraph (e).
    The revisions and addition read as follows:

[[Page 68361]]

Sec.  404.936  Time, place, and manner of appearance for a hearing 
before an administrative law judge.

    (a) General. We set the time and manner(s) of appearance for any 
hearing. We will set the place of a hearing when we schedule you and 
any other parties to the hearing to appear in person or by agency 
video. We may change the time, manner(s) of appearance, or 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 the 
administrative law judge notifies you of a hearing decision.
    (b) Place of hearing. If we set the place of the hearing, it can be 
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 agency video or in person. A party to a 
hearing may only appear from the geographic areas, noted in this 
subsection, in which we hold hearings.
    (c) Determining manner of appearance to schedule. We will schedule 
you or any other party to the hearing to appear by audio, agency video, 
online video, or in person. We may schedule you to appear by online 
video only if you agree to appear in that manner.
    (1) When we determine your manner of appearance at the hearing, we 
consider the following factors:
    (i) Which manner of appearance would be the most efficient for 
conducting the hearing; and
    (ii) Any facts in your particular case that provide a good reason 
to schedule your appearance by audio, agency video, online video, or in 
person.
    (2) We will generally direct any person we call as a witness, other 
than you or any other party to the hearing, to appear by audio, by 
agency video, or by online video. Witnesses include medical experts and 
vocational experts. 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 
agency video or by audio. We will consider directing witnesses to 
appear in person only when:
    (i) A witness is unable to appear by other available manners of 
appearance;
    (ii) We determine that an alternate manner of appearance 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.
    (3) We follow the procedures set forth in Sec.  404.937 to ensure 
the safety of the public and our employees in our hearing process.
    (d) Objecting to appearing by audio, by agency video, or both. 
Prior to scheduling your hearing, we will notify you that we may 
schedule you to appear by audio or by agency video, or, if you agree, 
by online video. If you object to appearing by audio, by agency video, 
or both, you must notify us in writing within 30 days after the date 
you receive the notice. If you only object to appearing by audio, we 
may schedule you to appear in person, by agency video, or, if you 
agree, by online video. Similarly, if you only object to appearing by 
agency video, we may schedule you to appear in person, by audio, or, if 
you agree, by online video. If you object to appearing by both audio 
and agency video, and your residence does not change while your request 
for hearing is pending, we will schedule you to appear before the 
administrative law judge in person or, if you agree, by online video.
    (1) If you notify us that you object to appearing by audio, by 
agency video, or both, 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.
    (2) Notwithstanding any objections you may have to appearing by 
audio and subject to paragraph (d)(3) of this section, we will schedule 
you or any other party to the hearing to appear by audio when we cannot 
schedule you to appear by agency video or by online video and 
extraordinary circumstances prevent you from appearing in person. For 
audio appearances under this subsection, we will call you or any other 
party to the hearing using your or their telephone number(s).
    (3) Notwithstanding any objections you may have to appearing by 
audio, if you are incarcerated and an appearance by agency video and 
online video is not available, we will schedule you to appear by audio, 
unless we find that there are facts in your particular case that 
provide a good reason to schedule you to appear in person, if allowed 
by the place of confinement, or by agency video, online video, or in 
person upon your release. For audio appearances under this subsection, 
we will call you or any other party to the hearing using your or their 
telephone number(s).
    (4) Notwithstanding any objections you may have to appearing by 
audio, by agency video, or both, if you change your residence while 
your request for hearing is pending, we will determine how you will 
appear, including by audio or by agency video, as provided in paragraph 
(c) of this section. For us to consider your change of residence when 
we schedule your hearing, you must submit evidence verifying your new 
residence. For audio appearances under this subsection, we will call 
you or any other party to the hearing using your or their telephone 
number(s).
    (5) Notwithstanding any objection you may have to appearing by 
audio, we will schedule you or any other party to the hearing to appear 
by audio in the circumstances provided in Sec.  404.937(b)(2)(ii) and 
(c). For audio appearances under this subsection, we will call you or 
any other party to the hearing using your or their telephone number(s).
    (e) Time period to agree to an appearance by online video. Prior to 
scheduling your hearing, we will notify you that we may schedule you to 
appear by online video if you agree to appear in that manner. To agree 
to appear by online video, you must notify us in writing within 30 days 
after the date you receive the notice. If you notify us that you agree 
to appearing by online video 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. You may withdraw your agreement any time before the 
start of your hearing.
* * * * *

0
4. In Sec.  404.937, revise paragraphs (b)(2)(ii) and (c) and add 
paragraph (e) to read as follows:


Sec.  404.937  Protecting the safety of the public and our employees in 
our hearing process.

* * * * *
    (b) * * *
    (2) * * *
    (ii) Require that the hearing be conducted by audio, 
notwithstanding any objection to appearing by audio, or, if the 
claimant agrees, by online video.
    (c) If we have banned a claimant from any of our facilities, we 
will provide the claimant with the opportunity for a hearing that will 
be conducted by audio, notwithstanding any objection to

[[Page 68362]]

appearing by audio, or, if the claimant agrees, by online video.
* * * * *
    (e) For audio appearances under this section, we will call you or 
any other party to the hearing using your or their telephone number(s).

0
5. In Sec.  404.938, revise paragraph (b)(5) to read as follows:


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

* * * * *
    (b) * * *
    (5) The time and manner(s) in which you, or any other party or 
witness, will appear. If we schedule you to appear in person or by 
agency video, as set forth in Sec.  404.936, the notice of hearing will 
tell you the place of the hearing.
* * * * *

0
6. Revise Sec.  404.944 to read as follows:


Sec.  404.944  Administrative law judge hearing procedures--general.

    A hearing is open to the parties and to other persons the 
administrative law judge considers necessary and proper. At the 
hearing, the administrative law judge looks fully into the issues, 
questions you and the other witnesses, and, subject to the provisions 
of Sec.  404.935, accepts as evidence any documents that are material 
to the issues; may stop the hearing temporarily and continue it at a 
later date if the administrative law judge finds that there is material 
evidence missing at the hearing or one or more variables outside of our 
control, such as audio quality or video quality, materially affects the 
hearing; and may reopen the hearing at any time before the 
administrative law judge mails a notice of the decision in order to 
receive new and material evidence. For purposes of this section, 
materially affects means prevents the hearing from proceeding. The 
administrative law judge may decide when the evidence will be presented 
and when the issues will be discussed.

0
7. In Sec.  404.950, revise paragraph (a) and the second and third 
sentences in paragraph (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, in 
the manner set forth in Sec.  404.936, to present evidence and to state 
their position. A party may also make their appearance by means of a 
designated representative, who may make their appearance in the manner 
set forth in Sec.  404.936.
* * * * *
    (e) * * * If they are unable to appear with you in the same manner 
as you, they may appear as prescribed in Sec.  404.936(c)(2). Witnesses 
called by the administrative law judge will appear in the manner 
prescribed in Sec.  404.936(c)(2). * * *
* * * * *

0
8. In Sec.  404.976, revise paragraph (c) to read as follows:


Sec.  404.976  Procedures before the Appeals Council.

* * * * *
    (c) Oral argument. You may request to appear before the Appeals 
Council to present oral argument in support of your request for review. 
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. The Appeals Council will determine whether your appearance will 
be by audio, agency video, online video, or in person as set forth in 
Sec.  404.936. The Appeals Council will determine whether any other 
person relevant to the proceeding will appear by audio, agency video, 
online video, or in person as set forth in Sec.  404.936(c)(2).

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

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

0
9. 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
10. 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. Subject to Sec.  
416.1456, the Deputy Commissioner for Hearings Operations, or their 
delegate, will appoint an administrative law judge to conduct the 
hearing. If circumstances warrant, the Deputy Commissioner for Hearings 
Operations, or their delegate, may assign your case to another 
administrative law judge. We will schedule you to appear by audio, 
agency video, online video, or in person as set forth in Sec.  
416.1436. Audio means telephone or similar audio-based technology in a 
private location you choose. Agency video means video, with audio 
functionality, using our equipment in one of our offices. Online video 
means video, with audio functionality, using a personal electronic 
device in a private location you choose. When we determine your manner 
of appearance, we consider the factors described in Sec.  416.1436 
(c)(1)(i) through (ii). 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. The administrative law judge 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
11. In Sec.  416.1436, revise the section heading and paragraphs (a) 
through (d), redesignate paragraphs (e) and (f) as paragraphs (f) and 
(g), and add a new paragraph (e).
    The revisions and addition read as follows:


Sec.  416.1436  Time, place, and manner of appearance for a hearing 
before an administrative law judge.

    (a) General. We set the time and manner(s) of appearance for any 
hearing. We will set the place of a hearing when we schedule you and 
any other parties to the hearing to appear in person or by agency 
video. We may change the time, manner(s) of appearance, or 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 the 
administrative law judge notifies you of a hearing decision.
    (b) Place of hearing. If we set the place of the hearing, it can be 
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 agency video or in person. A party to a 
hearing

[[Page 68363]]

may only appear from the geographic areas, noted in this subsection, in 
which we hold hearings.
    (c) Determining manner of appearance to schedule. We will schedule 
you or any other party to the hearing to appear by audio, agency video, 
online video, or in person. We may schedule you to appear by online 
video only if you agree to appear in that manner.
    (1) When we determine your manner of appearance at the hearing, we 
consider the following factors:
    (i) Which manner of appearance would be the most efficient for 
conducting the hearing; and
    (ii) Any facts in your particular case that provide a good reason 
to schedule your appearance by audio, agency video, online video, or in 
person.
    (2) We will generally direct any person we call as a witness, other 
than you or any other party to the hearing, to appear by audio, by 
agency video, or by online video. Witnesses include medical experts and 
vocational experts. 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 
agency video or by audio. We will consider directing witnesses to 
appear in person only when:
    (i) A witness is unable to appear by other available manners of 
appearance;
    (ii) We determine that an alternate manner of appearance 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.
    (3) We follow the procedures set forth in Sec.  416.1437 to ensure 
the safety of the public and our employees in our hearing process.
    (d) Objecting to appearing by audio, by agency video, or both. 
Prior to scheduling your hearing, we will notify you that we may 
schedule you to appear by audio or by agency video, or, if you agree, 
by online video. If you object to appearing by audio, by agency video, 
or both, you must notify us in writing within 30 days after the date 
you receive the notice. If you only object to appearing by audio, we 
may schedule you to appear in person, by agency video, or, if you 
agree, by online video. Similarly, if you only object to appearing by 
agency video, we may schedule you to appear in person, by audio, or, if 
you agree, by online video. If you object to appearing by both audio 
and agency video, and your residence does not change while your request 
for hearing is pending, we will schedule you to appear before the 
administrative law judge in person or, if you agree, by online video.
    (1) If you notify us that you object to appearing by audio, by 
agency video, or both, 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.
    (2) Notwithstanding any objections you may have to appearing by 
audio and subject to paragraph (d)(3) of this section, we will schedule 
you or any other party to the hearing to appear by audio when we cannot 
schedule you to appear by agency video or by online video and 
extraordinary circumstances prevent you from appearing in person. For 
audio appearances under this subsection, we will call you or any other 
party to the hearing using your or their telephone number(s).
    (3) Notwithstanding any objections you may have to appearing by 
audio, if you are incarcerated and an appearance by agency video and 
online video is not available, we will schedule you to appear by audio, 
unless we find that there are facts in your particular case that 
provide a good reason to schedule you to appear in person, if allowed 
by the place of confinement, or by agency video, online video, or in 
person upon your release. For audio appearances under this subsection, 
we will call you or any other party to the hearing using your or their 
telephone number(s).
    (4) Notwithstanding any objections you may have to appearing by 
audio, by agency video, or both, if you change your residence while 
your request for hearing is pending, we will determine how you will 
appear, including by audio or by agency video, as provided in paragraph 
(c) of this section. For us to consider your change of residence when 
we schedule your hearing, you must submit evidence verifying your new 
residence. For audio appearances under this subsection, we will call 
you or any other party to the hearing using your or their telephone 
number(s).
    (5) Notwithstanding any objection you may have to appearing by 
audio, we will schedule you or any other party to the hearing to appear 
by audio in the circumstances provided in Sec.  416.1437(b)(2)(ii) and 
(c). For audio appearances under this subsection, we will call you or 
any other party to the hearing using your or their telephone number(s).
    (e) Time period to agree to an appearance by online video. Prior to 
scheduling your hearing, we will notify you that we may schedule you to 
appear by online video if you agree to appear in that manner. To agree 
to appear by online video, you must notify us in writing within 30 days 
after the date you receive the notice. If you notify us that you agree 
to appearing by online video 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. You may withdraw your agreement any time before the 
start of your hearing.
* * * * *

0
12. In Sec.  416.1437, revise paragraphs (b)(2)(ii) and (c) and add 
paragraph (e) to read as follows:


Sec.  416.1437  Protecting the safety of the public and our employees 
in our hearing process.

* * * * *
    (b) * * *
    (2) * * *
    (ii) Require that the hearing be conducted by audio, 
notwithstanding any objection to appearing by audio, or, if the 
claimant agrees, by online video.
    (c) If we have banned a claimant from any of our facilities, we 
will provide the claimant with the opportunity for a hearing that will 
be conducted by audio, notwithstanding any objection to appearing by 
audio, or, if the claimant agrees, by online video.
* * * * *
    (e) For audio appearances under this section, we will call you or 
any other party to the hearing using your or their telephone number(s).

0
13. In Sec.  416.1438, revise paragraph (b)(5) to read as follows:


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

* * * * *
    (b) * * *
    (5) The time and manner(s) in which you, or any other party or 
witness, will appear. If we schedule you to appear in person or by 
agency video, as set forth in Sec.  416.1436, the notice of hearing 
will tell you the place of the hearing.
* * * * *

0
14. Revise Sec.  416.1444 to read as follows:


Sec.  416.1444  Administrative law judge hearing procedures--general.

    A hearing is open to the parties and to other persons the 
administrative law judge considers necessary and proper. At the 
hearing, the administrative law judge looks fully into the issues, 
questions you and the other witnesses,

[[Page 68364]]

and, subject to the provisions of Sec.  416.1435, accepts as evidence 
any documents that are material to the issues; may stop the hearing 
temporarily and continue it at a later date if the administrative law 
judge finds that there is material evidence missing at the hearing or 
one or more variables outside of our control, such as audio quality or 
video quality, materially affects the hearing; and may reopen the 
hearing at any time before the administrative law judge mails a notice 
of the decision in order to receive new and material evidence. For 
purposes of this section, materially affects means prevents the hearing 
from proceeding. The administrative law judge may decide when the 
evidence will be presented and when the issues will be discussed.

0
15. In Sec.  416.1450, revise paragraph (a) and the second and third 
sentences in paragraph (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, in 
the manner set forth in Sec.  416.1436, to present evidence and to 
state their position. A party may also make their appearance by means 
of a designated representative, who may make their appearance in the 
manner set forth in Sec.  416.1436.
* * * * *
    (e) * * * If they are unable to appear with you in the same manner 
as you, they may appear as prescribed in Sec.  416.1436(c)(2). 
Witnesses called by the administrative law judge will appear in the 
manner prescribed in Sec.  416.1436(c)(2). * * *
* * * * *

0
16. In Sec.  416.1476, revise paragraph (c) to read as follows:


Sec.  416.1476  Procedures before the Appeals Council.

* * * * *
    (c) Oral argument. You may request to appear before the Appeals 
Council to present oral argument in support of your request for review. 
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. The Appeals Council will determine whether your appearance will 
be by audio, agency video, online video, or in person as set forth in 
Sec.  416.1436. The Appeals Council will determine whether any other 
person relevant to the proceeding will appear by audio, agency video, 
online video, or in person as set forth in Sec.  416.1436(c)(2).

[FR Doc. 2024-18591 Filed 8-23-24; 8:45 am]
BILLING CODE 4191-02-P