[Federal Register Volume 78, Number 98 (Tuesday, May 21, 2013)]
[Rules and Regulations]
[Pages 29624-29628]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-11932]
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SOCIAL SECURITY ADMINISTRATION
[Docket No. SSA 2007-0044]
20 CFR Parts 404, 405, and 416
RIN 0960-AH40
Rules on Determining Hearing Appearances
AGENCY: Social Security Administration.
ACTION: Final rule.
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SUMMARY: This final rule is another step in our continual efforts to
handle workloads more effectively and efficiently. We are publishing
final rules for portions of the rules we proposed in October 2007 that
relate to persons, other than the claimant or any other party to the
hearing, appearing by telephone. We are also clarifying that the
administrative law judge (ALJ) will allow the claimant or any other
party to a hearing to appear by telephone under certain circumstances
when the claimant or other party requests to make his or her appearance
in that manner. We expect that these final rules will make the hearings
process more efficient and help us continue to reduce
[[Page 29625]]
the hearings backlog. In addition, we made some minor editorial changes
to our regulations that do not have any effect on the rights of
claimants or any other parties.
DATES: This rule is effective June 20, 2013.
FOR FURTHER INFORMATION CONTACT: Brent Hillman, Social Security
Administration, 5107 Leesburg Pike, Falls Church, VA 22041-3260, (703)
605-8280 for information about this notice. For information on
eligibility or filing for benefits, call our national toll-free number,
1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site,
Social Security Online, at http://www.socialsecurity.gov.
SUPPLEMENTARY INFORMATION:
Background
As part of our ongoing commitment to improve the way we process
claims for benefits under the old age, survivors, and disability
insurance programs under title II of the Social Security Act (Act) and
the supplemental security income (SSI) program under title XVI of the
Act, we are revising some of the procedures we follow at the ALJ
hearing level. To address recent court cases, we are making final the
rules that allow the ALJ to determine that a person other than the
claimant or any other party to the hearing may appear at the hearing by
telephone. In a recent Federal case, a District Court Judge held that
we could not take a medical expert's testimony by telephone without
prior notice to the claimant, and over the claimant's objections,
unless we amended our regulations to allow witnesses to appear by
telephone. Edwards v. Astrue, No. 3:10cv1017, 2011 WL 3490024 (D. Conn.
Aug. 10, 2011). Other courts have made similar rulings. These final
rules address concerns raised in Edwards and other cases.
We proposed these changes in a notice of proposed rulemaking (NPRM)
we published in the Federal Register on October 29, 2007 (72 FR 61218).
The preamble to the NPRM discussed the changes from the current rules
and our reasons for proposing those changes.\1\ We also have made
changes to these final rules to make them consistent with final rules
we published in the Federal Register on December 18, 2008 (73 FR 76940)
\2\ and July 8, 2010 (75 FR 39154).\3\
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\1\ The NPRM is available at: http://www.gpo.gov/fdsys/pkg/FR2007-1029/pdf/E7-20690.pdf.
\2\ The final rules are available at: http://www.gpo.gov/fdsys/pkg/FR-2008-12-18/pdf/E8-30056.pdf.
\3\ The final rules are available at: http://www.gpo.gov/fdsys/pkg/FR-2010-07-08/pdf/2010-16549.pdf.
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Appearing at the ALJ Hearing by Telephone
Our final rules provide that the ALJ will determine how any person
other than the claimant or any other party to the hearing will appear
at the hearing, whether in person, by video teleconferencing, or by
telephone. If the ALJ determines that any person will appear at the
hearing by telephone, the ALJ will notify the claimant and any other
party to the hearing in advance of the hearing. If the claimant or any
other party to the hearing objects to any other person appearing by
video teleconferencing or by telephone, the ALJ will decide how that
person will appear. Our final rules also clarify that the claimant or
any other party to the hearing may request to appear at the hearing by
telephone. The ALJ will allow the claimant or other party to appear by
telephone if the ALJ determines that extraordinary circumstances exist
which prevent the claimant or other party from appearing in person or
by video teleconferencing.
Other Provisions From the NPRM
At this time, we are not proceeding with the other proposed rules
in the October 2007 NPRM.
Public Comments on the NPRM
On October 29, 2007, we published an NPRM in the Federal Register
at 72 FR 61218 and provided a 60-day comment period, which ended on
December 28, 2007. We received 111 public comments on telephone
testimony. Nine of the comments related to testimony provided by
telephone by someone other than the claimant or any other party to the
hearing.
Comment: Several commenters suggested that telephone appearances by
witnesses would impede the claimant's ability to adequately examine,
observe and be observed by, or question experts and other witnesses.
Regarding expert witnesses, one commenter believed that an expert
testifying via telephone would need to provide the underlying
documentation for his or her testimony at the hearing, and suggested
that, if requested, the expert witnesses could be obligated to fax such
documentation to the claimant or representative. Other commenters
expressed concern that it would be difficult for claimants or
representatives to verify the qualifications or investigate
disciplinary problems relating to expert witnesses testifying via
telephone. Another commenter said that an appearance of bias is
introduced when experts from one area of the country testify via
telephone in cases located in another area of the country. With respect
to lay witnesses, one commenter believed the proposed rule needed
additional clarity to convey that ALJs could not use it to prevent the
claimant from calling other witnesses to testify on his or her behalf.
Response: We disagree with the concerns raised in this comment.
Under these final rules, the claimant can object to a witness appearing
by telephone, and the ALJ has discretion to determine that the
appearance of any witness be conducted in person. Thus, to the extent
that circumstances could arise in which it would be advisable to
schedule an in-person appearance by a witness even though a telephonic
appearance would be possible, the ALJ may schedule such an appearance.
All claimants or representatives are entitled to conduct
questioning and cross-examination as needed to inquire fully into the
matters at issue. If witnesses appear by telephone, we will continue to
provide the claimant and any other party to the hearing the same right
to question and cross-examine witnesses, as well as access to the
hearing record.
In addition, the final rules do not change the standard procedures
we use when medical experts (MEs) and vocational experts (VEs) testify.
Before MEs and VEs testify as impartial witnesses at the hearing, ALJs
must ``qualify'' them by eliciting information including, but not
limited to, impartiality, expertise, and professional qualifications.
Furthermore, MEs and VEs will continue to submit their professional
qualifications into the written record. The claimant and any other
party to the hearing will have the same access to this information if
the ME or VE is appearing in person, by video teleconferencing, or by
telephone. ME and VE testimony is based on the evidence entered into
the record and not on any examination or personal evaluation of the
claimant. Thus, a claimant or representative will have a complete
opportunity to confront and examine an expert witness on qualifications
or adverse testimony regarding the matters that are important with
respect to expert testimony--i.e., the expertise of the witness and the
accuracy of his or her testimony. In addition, the claimant and any
other party to the hearing retain the right to
[[Page 29626]]
object to a witness based on bias or qualifications.
Regulatory Procedures
Executive Order 12866 as Supplemented by Executive Order 13563
We consulted with the Office of Management and Budget (OMB) and
determined that these final rules meet the requirements for a
significant regulatory action under Executive Order 12866 as
supplemented by Executive Order 13563. Thus, OMB reviewed these final
rules.
Regulatory Flexibility Act
We certify that these final rules will not have a significant
economic impact on a substantial number of small entities because they
only affect individuals. Accordingly, a regulatory flexibility analysis
as provided in the Regulatory Flexibility Act, as amended, is not
required.
Paperwork Reduction Act
These final rules contain public reporting requirements in the
regulation sections listed below, which we did not previously clear
through an existing Information Collection Request.
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Number of Average burden Estimated
Regulation section Description of public reporting respondents Frequency of per response annual burden
requirement (annually) response (minutes) (hours)
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404.936(c)(1); 404.938(b); 405.315(c)(1); You or any other party may request to 1,000 1 30 500
416.1436(c)(1); 416.1438(b). appear at the hearing by telephone;
ALJ will allow telephone hearing
when extraordinary circumstances
prevent appearance in person or by
video teleconference.
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SSA submitted an Information Collection Request for clearance to
OMB. We are soliciting comments on the burden estimate; the need for
the information; its practical utility; ways to enhance its quality,
utility, and clarity; and ways to minimize the burden on respondents,
including the use of automated techniques or other forms of information
technology. If you would like to submit comments, please send them to
the following locations:
Office of Management and Budget, Attn: Desk Officer for SSA, Fax
Number: 202-395-6974, Email address: [email protected].
Social Security Administration, Attn: Reports Clearance Officer, 1333
Annex, 6401 Security Blvd., Baltimore, MD 21235-0001, Fax Number: 410-
965-6400, Email: [email protected].
You can submit comments until June 20, 2013, 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.
(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social
Security--Disability Insurance; 96.002, Social Security--Retirement
Insurance; 96.004, Social Security--Survivors Insurance; and 96.006,
Supplemental Security Income)
List of Subjects
20 CFR Part 404
Administrative practice and procedure; Blind; Disability benefits;
Old-Age, Survivors, and Disability insurance; Reporting and
recordkeeping requirements; Social Security.
20 CFR Part 405
Administrative practice and procedure; Blind, Disability benefits;
Old-Age, Survivors, and Disability Insurance; Public assistance
programs; Reporting and recordkeeping requirements; Social Security;
Supplemental Security Income (SSI).
20 CFR Part 416
Administrative practice and procedure; Aged, Blind, Disability
benefits, Public Assistance programs; Reporting and recordkeeping
requirements; Supplemental Security Income (SSI).
Dated: May 9, 2013.
Carolyn W. Colvin,
Acting Commissioner of Social Security.
For the reasons set out in the preamble, we are amending 20 CFR
chapter III parts 404, 405, and part 416 as set forth below:
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950-)
Subpart J--[Amended]
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. In Sec. 404.936, revise the reference to ``paragraph (c)'' in the
first sentence of paragraph (h) to ``paragraph (c)(1)'' and revise
paragraph (c) to read as follows:
Sec. 404.936 Time and place for a hearing before an administrative
law judge.
* * * * *
(c) Determining how appearances will be made. In setting the time
and place of the hearing, we will consider the following:
(1) We will consult with the administrative law judge to determine
the status of case preparation and to determine whether your
appearance, or the appearance of any other party to the hearing, will
be made in person or by video teleconferencing. The administrative law
judge will determine that your appearance, or the appearance of any
other party to the hearing, be conducted by video teleconferencing if
video teleconferencing equipment is available to conduct the
appearance, use of video teleconferencing to conduct the appearance
would be more efficient than conducting the appearance in person, and
the administrative law judge determines that there is no circumstance
in the particular case that prevents the use of video teleconferencing
to conduct the appearance. You or any other party to the hearing may
request to appear at the hearing by telephone. The administrative law
judge will allow you or any other party to the hearing to appear by
telephone if the administrative law judge determines that extraordinary
circumstances prevent you or the other party who makes the request from
appearing at the hearing in person or by video teleconferencing.
(2) The administrative law judge will determine whether any person
other
[[Page 29627]]
than you or any other party to the hearing, including a medical expert
or a vocational expert, will appear at the hearing in person, by video
teleconferencing, or by telephone. If you or any other party to the
hearing objects to any other person appearing by video teleconferencing
or by telephone, the administrative law judge will decide, either in
writing or at the hearing, whether to have that person appear in
person, by video teleconferencing, or by telephone. The administrative
law judge will direct a person, other than you or any other party to
the hearing if we are notified as provided in paragraph (e) of this
section that you or any other party to the hearing objects to appearing
by video teleconferencing, to appear by video teleconferencing or
telephone when the administrative law judge determines:
(i) Video teleconferencing or telephone equipment is available;
(ii) Use of video teleconferencing or telephone equipment would be
more efficient than conducting an examination of a witness in person,
and;
(iii) The ALJ determines there is no other reason why video
teleconferencing or telephone should not be used.
* * * * *
0
3. In Sec. 404.938, revise paragraph (b) to read as follows:
Sec. 404.938 Notice of a hearing before an administrative law judge.
* * * * *
(b) Notice information. The notice of hearing will contain a
statement of the specific issues to be decided and tell you that you
may designate a person to represent you during the proceedings. The
notice will also contain an explanation of the procedures for
requesting a change in the time or place of your hearing, a reminder
that if you fail to appear at your scheduled hearing without good cause
the administrative law judge may dismiss your hearing request, and
other information about the scheduling and conduct of your hearing. You
will also be told if your appearance or that of any other person is
scheduled to be made in person, by video teleconferencing, or, for a
person other than you or any other party to the hearing, by telephone.
If we have scheduled you to appear at the hearing by video
teleconferencing, the notice of hearing will tell you that the
scheduled place for the hearing is a video teleconferencing site and
explain what it means to appear at your hearing by video
teleconferencing. The notice will also tell you how you may let us know
if you do not want to appear by video teleconferencing and want,
instead, to have your hearing at a time and place where you may appear
in person before the administrative law judge. The notice will also
tell you that you may ask us if you want to appear by telephone, and
that the administrative law judge will grant your request if he or she
determines that extraordinary circumstances prevent you from appearing
in person or by video teleconferencing.
* * * * *
0
4. In Sec. 404.950, revise paragraphs (a) and (e) to read as follows:
Sec. 404.950 Presenting evidence at a hearing before an
administrative law judge
(a) The right to appear and present evidence. Any party to a
hearing has a right to appear before the administrative law judge,
either in person, or, when the conditions in Sec. 404.936(c)(1) exist,
by video teleconferencing or telephone, to present evidence and to
state his or her position. A party may also make his or her appearance
by means of a designated representative, who may make the appearance in
person, or, when the conditions in Sec. 404.936(c)(1) exist, by video
teleconferencing or telephone.
* * * * *
(e) Witnesses at a hearing. Witnesses may appear at a hearing in
person or, when the conditions in Sec. 404.936(c)(2) exist, by video
teleconferencing or telephone. They will testify under oath or
affirmation unless the administrative law judge finds an important
reason to excuse them from taking an oath or affirmation. The
administrative law judge may ask the witness any questions material to
the issues and will allow the parties or their designated
representatives to do so.
* * * * *
PART 405--ADMINISTRATIVE REVIEW PROCESS FOR ADJUDICATING INITIAL
DISABILITY CLAIMS
0
5. The authority citation for part 405 continues to read as follows:
Authority: Secs. 201(j), 205(a)-(b), (d)-(h), and (s), 221,
223(a)-(b), 702(a)(5), 1601, 1602, 1631, and 1633 of the Social
Security Act (42 U.S.C. 401(j), 405(a)-(b), (d)-(h), and (s), 421,
423(a)-(b), 902(a)(5), 1381, 1381a, 1383, and 1383b).
0
6. In Sec. 405.315, revise paragraph (c) to read as follows:
Sec. 405.315 Time and place for a hearing before an administrative
law judge.
* * * * *
(c) Determining how appearances will be made. In setting the time
and place of the hearing, we will consider the following:
(1) The administrative law judge will determine whether your
appearance will be made in person or by video teleconferencing. The
administrative law judge will determine that your appearance be
conducted by video teleconferencing if video teleconferencing equipment
is available to conduct the appearance, use of video teleconferencing
to conduct the appearance would be more efficient than conducting the
appearance in person, and the administrative law judge determines that
there is no circumstance in the particular case that prevents the use
of video teleconferencing to conduct the appearance. If you object to
appearing personally by video teleconferencing, we will re-schedule the
hearing to a time and place at which you may appear in person before
the administrative law judge. You may request to appear at the hearing
by telephone. The administrative law judge will allow you to appear by
telephone if the administrative law judge determines that extraordinary
circumstances prevent you from appearing at the hearing in person or by
video teleconferencing.
(2) The administrative law judge will determine whether any person
other than you, including a medical expert or a vocational expert, will
appear at the hearing in person, by video teleconferencing, or by
telephone. If you object to any other person appearing by video
teleconferencing or telephone, the administrative law judge will
decide, either in writing or at the hearing, whether to have that
person appear in person, by video teleconferencing, or by telephone.
The administrative law judge will direct a person, other than you if
you object to your appearing by video teleconferencing as provided in
paragraph (c)(1) of this section, to appear by video teleconferencing
or telephone when the administrative law judge determines:
(i) Video teleconferencing or telephone equipment is available,
(ii) Use of video teleconferencing or telephone equipment would be
more efficient than conducting an examination of a witness in person,
and
(iii) The administrative law judge determines that there is no
other reason why video teleconferencing or telephone should not be
used.
[[Page 29628]]
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
Subpart N--[Amended]
0
7. The authority citation for subpart N of part 416 continues to read
as follows
Authority: Secs. 702(a)(5), 1631, and 1633 of the Social
Security Act (42 U.S.C. 902(a)(5), 1383, and 1383b); sec. 202, Pub.
L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note).
0
8. In Sec. 416.1436, revise the reference in paragraph (h) from the
``first sentence of paragraph (c)'' to the ``first sentence of
paragraph (c)(1)'' and revise paragraph (c) to read as follows:
Sec. 416.1436 Time and place for a hearing before an administrative
law judge.
* * * * *
(c) Determination how appearances will be made. In setting the time
and place of the hearing, we will consider the following:
(1) We will consult with the administrative law judge to determine
the status of case preparation and to determine whether your
appearance, or the appearance of any other party to the hearing, will
be made in person or by video teleconferencing. The administrative law
judge will determine that your appearance, or the appearance of any
other party to the hearing, be conducted by video teleconferencing if
video teleconferencing equipment is available to conduct the
appearance, use of video teleconferencing to conduct the appearance
would be more efficient than conducting the appearance in person, and
the administrative law judge determines there is no circumstance in the
particular case that prevents the use of video teleconferencing to
conduct the appearance. You or any other party to the hearing may
request to appear at the hearing by telephone. The administrative law
judge will allow you or any other party to the hearing to appear by
telephone if the administrative law judge determines that extraordinary
circumstances prevent you or the other party who makes the request from
appearing at your hearing in person or by video teleconferencing.
(2) The administrative law judge will determine whether any person,
other than you or any other party to the hearing, including a medical
expert or a vocational expert, will appear at the hearing in person, by
video teleconferencing, or by telephone. If you or any other party to
the hearing objects to any other person appearing by video
teleconferencing or by telephone, the administrative law judge will
decide, either in writing or at the hearing, whether to have that
person appear in person, by video teleconferencing, or by telephone.
The administrative law judge will direct a person, other than you or
any other party to the hearing if we are notified as provided in
paragraph (e) of this section that you or any other party to the
hearing objects to appearing by video teleconferencing, to appear by
video teleconferencing or telephone when the administrative law judge
determines:
(i) Video teleconferencing or telephone equipment is available,
(ii) Use of video teleconferencing or telephone equipment would be
more efficient than conducting an examination of a witness in person,
and
(iii) The administrative law judge determines there is no other
reason why video teleconferencing or telephone should not be used.
* * * * *
0
9. In Sec. 416.1438, revise paragraph (b) to read as follows:
Sec. 416.1438 Notice of a hearing before an administrative law judge.
* * * * *
(b) Notice information. The notice of hearing will contain a
statement of the specific issues to be decided and tell you that you
may designate a person to represent you during the proceedings. The
notice will also contain an explanation of the procedures for
requesting a change in the time or place of your hearing, a reminder
that if you fail to appear at your scheduled hearing without good cause
the administrative law judge may dismiss your hearing request, and
other information about the scheduling and conduct of your hearing. You
will also be told if your appearance or that of any other person is
scheduled to be made in person, by video teleconferencing, or, for a
person other than you or any other party to the hearing, by telephone.
If we have scheduled you to appear at the hearing by video
teleconferencing, the notice of hearing will tell you the scheduled
place for the hearing is a video teleconferencing site and explain what
it means to appear at your hearing by video teleconferencing. The
notice will also tell you how you may let us know if you do not want to
appear by video teleconferencing and want, instead, to have your
hearing at a time and place where you may appear in person before the
administrative law judge. The notice will also tell you that you may
ask us if you want to appear by telephone, and that the administrative
law judge will grant your request if he or she determines that
extraordinary circumstances prevent you from appearing in person or by
video teleconferencing.
* * * * *
0
10. In Sec. 416.1450, revise paragraphs (a) and (e) to read as
follows:
Sec. 416.1450 Presenting evidence at a hearing before an
administrative law judge
(a) The right to appear and present evidence. Any party to a
hearing has a right to appear before the administrative law judge,
either in person, or, when the conditions in Sec. 416.1436(c)(1)
exist, by video teleconferencing or telephone, to present evidence and
to state his or her position. A party may also make his or her
appearance by means of a designated representative, who may make the
appearance in person, or, when the conditions in Sec. 416.1436(c)(1)
exist, by video teleconferencing or telephone.
* * * * *
(e) Witnesses at a hearing. Witnesses may appear at a hearing in
person or, when the conditions in Sec. 416.1436(c)(2) exist, by video
teleconferencing or telephone. They will testify under oath or
affirmation unless the administrative law judge finds an important
reason to excuse them from taking an oath or affirmation. The
administrative law judge may ask the witness any questions material to
the issues and will allow the parties or their designated
representatives to do so.
* * * * *
[FR Doc. 2013-11932 Filed 5-20-13; 8:45 am]
BILLING CODE 4191-02-P