[Federal Register Volume 78, Number 124 (Thursday, June 27, 2013)]
[Proposed Rules]
[Pages 38610-38617]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-14894]
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SOCIAL SECURITY ADMINISTRATION
[Docket No. 2011-0056]
20 CFR Parts 404, 405, and 416
RIN 0960-AH37
Changes to Scheduling and Appearing at Hearings
AGENCY: Social Security Administration.
ACTION: Notice of proposed rulemaking.
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SUMMARY: We propose to revise our rules to protect the integrity of our
programs and preserve limited resources. Prior to scheduling a hearing,
we will notify the claimant that his or her hearing may be held by
video teleconferencing. The claimant will have an opportunity to object
to appearing by video teleconferencing within 30 days after the date he
or she receives the notice. We also propose changes that allow us to
determine that a claimant will appear via video teleconferencing if he
or she changes residences while his or her request for hearing is
pending, regardless of whether or not the claimant previously declined
a hearing by video teleconferencing.
Additionally, we propose changes that require a claimant to notify
us, in writing, of an objection to the time and place of hearing at the
earliest opportunity, but not later than 5 days before the date set for
the hearing, or, if
[[Page 38611]]
earlier, 30 days after receiving the notice of the hearing. We also
propose to revise our rules so that an administrative law judge (ALJ)
can direct a claimant and any other party to a hearing to appear by
telephone in extraordinary circumstances.
We anticipate that these proposed changes will have a minimal
impact on the public, and will help ensure the integrity of our
programs and allow us to administer our programs more efficiently.
DATES: To ensure that your comments are considered, we must receive
them no later than August 26, 2013.
ADDRESSES: You may submit comments by any one of three methods--
Internet, fax, or mail. Do not submit the same comments multiple times
or by more than one method. Regardless of which method you choose,
please state that your comments refer to Docket No. SSA-2011-0056 so
that we may associate your comments with the correct rule.
CAUTION: You should be careful to include in your comments only
information that you wish to make publicly available. We strongly urge
you not to include in your comments any personal information, such as
Social Security numbers or medical information.
1. Internet: We strongly recommend that you submit your comments
via the Internet. Please visit the Federal eRulemaking portal at http://www.regulations.gov. Use the Search function to find docket number
SSA-2011-0056. The system will issue a tracking number to confirm your
submission. You will not be able to view your comment immediately
because we must post each comment manually. It may take up to a week
for your comment to be viewable.
2. Fax: Fax comments to (410) 966-2830.
3. Mail: Mail your comments to the Office of Regulations and
Reports Clearance, Social Security Administration, 107 Altmeyer
Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401.
Comments are available for public viewing on the Federal
eRulemaking portal at http://www.regulations.gov or in person, during
regular business hours, by arranging with the contact person identified
below.
FOR FURTHER INFORMATION CONTACT: Brian J. Rudick, Office of Regulations
and Reports Clearance, Social Security Administration, 6401 Security
Boulevard, Baltimore, MD 21235-6401, (410) 965-7102. 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 proposing revisions to some of the procedures we follow at
the ALJ hearing level. Our workloads at the ALJ hearing level have
continued to grow, and we expect the number of requests for hearing
will remain high over the next several years. Along with our continued
developments and improvements in our electronic service delivery
process, we anticipate that the proposed changes will help us provide
better service by allowing us to conduct hearings and issue decisions
more expeditiously.
Objecting to Appearing by Video Teleconferencing
Nearly a decade ago, we adopted rules that allow us to hold
hearings by video teleconferencing, and we have continued to expand the
use of video teleconferencing technology for hearings since that time.
The addition of video teleconferencing capabilities has allowed us to
open five National Hearing Centers (NHC). The NHCs allow us to manage
our workloads more effectively and help us to reduce the hearing office
backlog. NHCs are uniquely positioned to assist hearing offices with
electronic cases that are scheduled for a hearing by video
teleconferencing. ALJs in traditional hearing offices also hold
hearings by video teleconferencing. In these cases, a claimant may
attend the hearing by video teleconferencing at a hearing office closer
to his or her residence, or, in some cases, at his or her local field
office. Hearings held by video teleconferencing help reduce our average
processing time, reduce travel expenses, and allow us to better serve
the public.
At the same time that we have increased our video teleconference
capacity, our commitment to transparency has made significantly more
detailed information about our ALJs available to claimants and their
representatives. We make available on our Internet site information
about the performance of each of our ALJs, including information about
the number of decisions each ALJ has made, and the breakdown of those
decisions by outcome. Our increased use of the NHCs, the expansion of
our video teleconferencing capacity, and the public availability of
detailed information about the performance of each of our ALJs,
including each ALJ's allowance rate, have had unintended consequences
that can undermine the efficiency and integrity of our hearings
process, as described below.
Under our current business processes, we notify claimants whether
they will appear by video teleconferencing at the same time that we
schedule the hearing. Our current regulations also provide that a
claimant, or a representative on a claimant's behalf, may object to
appearing by video teleconferencing at the earliest possible
opportunity before the time set for the hearing. If the claimant files
such an objection, the ALJ assigned to the case will find the objection
is good cause to reschedule the hearing, so that the claimant can
appear in person. In addition, a claimant may notify us at any time
prior to appearing in person or via video teleconferencing at the
hearing that he or she has a new residence, which could result in the
case being transferred to, and rescheduled in, a new hearing office or
region.
Because our regulations do not contain a specific time limit for
objecting to appearing by video teleconferencing, we have experienced
an increase in declinations to participate in hearings by video
teleconferencing.\1\ Similarly, a change in residence could result in a
re-assignment to a different ALJ. We have become concerned that some
claimants or their representatives may be using the ability to decline
to appear by video teleconferencing or to request a case transfer due
to a change in residence to undermine the random assignment of cases to
our ALJs.
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\1\ We took steps to address this issue beginning in December
2011 by changing the prehearing notices that we sent to claimants
and their representatives. Those prehearing notices no longer
included the name of the ALJ assigned to the case. We ended the
policy we adopted in December 2011 effective April 20, 2013.
Currently, we disclose the name of the ALJ assigned to a hearing
when we send out a Notice of Hearing.
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When claimants decline a hearing scheduled by video
teleconferencing or request to reschedule an in-person hearing, the
decision has a ripple effect throughout the hearing process. We must
use limited administrative resources to reschedule a hearing at a time
and place amenable to all hearing participants. Rescheduling hearings
has an adverse effect on other claimants, some of whom must wait longer
for a
[[Page 38612]]
hearing while we accommodate the rescheduled hearing.
To better utilize our limited resources and make our hearing
process more efficient for all claimants, we propose to modify our
rules so that we would notify a claimant earlier in the process, before
an ALJ is assigned or a hearing is scheduled, that he or she has the
right to object to appearing at the hearing by video teleconferencing.
If the claimant does not want to appear at the hearing in this manner,
the claimant must object in writing within 30 days after the date he or
she receives this notice. If we receive a timely objection, we will
schedule the claimant for an in person hearing, with one limited
exception.
The limited exception to this rule would apply when the claimant
moves to a different residence while his or her request for a hearing
is pending. If a claimant moves from one residence to another while his
or her request for hearing is pending, we will determine whether a
claimant will appear in person or by video teleconferencing, even if
the claimant previously objected to appearing by video
teleconferencing. In addition, the proposed rules explain that in order
for us to consider a change in residence when scheduling a hearing, the
claimant must submit evidence verifying a new residence. After we
receive evidence regarding the claimant's new residence, we will decide
how the claimant's appearance will be made. This limited exception to
the rule would allow us to protect the integrity of our programs while
providing us with the flexibility to transfer cases when there is a
legitimate change in residence and such a transfer would allow us to
process the case more efficiently.
Although a claimant retains the right to object to the time and
place of the hearing once it is scheduled, as described below, we will
not consider an objection based solely on appearing at the hearing by
video teleconferencing if the claimant did not object within the
required time period.
Time Period for Objecting to a Hearing
We also propose specifying the time period for objecting to the
time and place of a hearing. To ensure that we have adequate time to
prepare for the hearing, we propose to revise these rules to require
that a claimant notify us of an objection in writing at the earliest
possible opportunity, but not later than 5 days before the date set for
the hearing or, if earlier, 30 days after receiving notice of the
hearing.
If the claimant objects to the time and place of the hearing
outside of the specified time period and fails to attend the hearing,
the administrative law judge will follow existing sub-regulatory
authority to develop good cause for failure to appear. For example, our
current procedures require that when the claimant fails to appear at
the hearing because of severe weather or a death in the family, the ALJ
will find good cause for failure to appear and reschedule the hearing.
We also made other minor revisions to the proposed rules to clarify
when we will reschedule a hearing for good cause. For instance, we
removed the example that a claimant might offer living closer to
another hearing site as a good cause reason to object to the time and
place of the hearing. Additionally, in the proposed rules where we
address rescheduling a hearing, we added editorial changes for internal
consistency.
Appearing at the Hearing by Telephone
To further reduce the need to reschedule hearings and improve
efficiency, we also propose to provide that the ALJ may determine that
the claimant who requested the hearing, or any other party to the
hearing, will appear at the hearing by telephone under extraordinary
circumstances. For example, an ALJ will direct a claimant or other
party to the hearing to appear by telephone when the person's
appearance in person is not possible, such as when the person is
incarcerated, and the correctional facility will not allow a hearing to
be held at the facility, and video teleconferencing is not available.
The flexibility in the proposed rule will also allow us to continue the
practice of scheduling a hearing by telephone when the claimant
specifically requests a hearing in this manner, and the ALJ determines
that extraordinary circumstances prevent the claimant or other party
who makes the request from appearing at the hearing in person or by
video teleconferencing.
We anticipate that this proposed rule will benefit both us and the
public. We spend significant administrative resources trying to arrange
an in person hearing with the officials of the correctional facility.
We also lose significant productivity if an ALJ is required to travel
to a confinement facility to hold one or two hearings, because the
travel to the facility prevents the ALJ from scheduling a full hearing
docket for that day. Permitting us to schedule telephone appearances
when extraordinary circumstances such as these exist would allow us to
save limited administrative resources and allow us to provide more
timely hearings to all claimants because the ALJ would be present in
the hearing office to conduct a full hearing docket.
Part 405
We are proposing several changes to Part 405 for consistency with
these proposed rules. We propose changes relating to video
teleconferencing and hearing appearances by telephone in extraordinary
circumstances, as described above.
Additionally, we are proposing other minor changes for consistency
with other rules in Parts 404 and 416. Most significantly, for
consistency with our pilot program in place in all regions except
Boston, we are proposing changes in setting the time and place for
hearing. Currently in the Boston region, the ALJ sets the time and
place of hearing. In every other region the regulations state that we
have the authority to set the time and place of hearing. We propose
expanding that authority to Part 405.
Clarity of These Rules
Executive Order 12866 as supplemented by Executive Order 13563
requires each agency to write all rules in plain language. In addition
to your substantive comments on this NPRM, we invite your comments on
how to make rules easier to understand. For example:
Would more, but shorter, sections be better?
Are the requirements in the rule clearly stated?
Have we organized the material to suit your needs?
Could we improve clarity by adding tables, lists, or
diagrams?
What else could we do to make the rule easier to
understand?
Does the rule contain technical language or jargon that is
not clear?
Would a different format make the rule easier to
understand, e.g. grouping and order of sections, use of headings,
paragraphing?
When will we start to use these rules?
We will not use these rules until we evaluate public comments and
publish final rules in the Federal Register. All final rules we issue
include an effective date. We will continue to use our current rules
until that date. If we publish final rules, we will include a summary
of those relevant comments we received along with responses and an
explanation of how we will apply the new rules.
[[Page 38613]]
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 proposed rules meet the criteria for a
significant regulatory action under Executive Order 12866, as
supplemented by Executive Order 13563 and are subject to OMB review.
Regulatory Flexibility Act
We certify that these proposed rules will not have a significant
economic impact on a substantial number of small entities because they
affect individuals only. Therefore, a regulatory flexibility analysis
is not required under the Regulatory Flexibility Act, as amended.
Paperwork Reduction Act
These proposed rules contain reporting public reporting
requirements in the regulation sections listed below. We are seeking
approval for these regulation sections and for new a new SSA form,
which we will use to collect the information required by these
sections. Below we provide burden estimates for the public reporting
requirements.
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Average
Description of public reporting Number of Frequency of burden per Estimated
Regulation section requirement respondents response response annual burden*
(annually) (minutes)
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404.936(c); 405.317(a); 416.1436(c)............ If you object to video teleconferencing 850,000 1 5 70,833
you must notify us in writing no later
than 30 days after we send the
acknowledgement letter.
404.936(e); 416.1436(e)........................ You must notify us if you wish to 900,000 1 30 450,000
object to the time and place in
writing no later than 5 days prior to
hearing or 30 days after receiving
notice of hearing.
404.938(a); 405.316(a); 416.1438(a)............ Indication in writing that respondent 1,600 1 5 133
does not wish to receive notice of
hearing.
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Total...................................... ....................................... 1,751,600 .............. .............. 520,966
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We 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: OR Reports [email protected].
You can submit comments until August 26, 2013, which is 60 days
after the publication of this notice. However, your comments will be
most useful if you send them to SSA by July 29, 2013, which is 30 days
after publication. 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: June 18, 2013.
Carolyn W. Colvin,
Acting Commissioner of Social Security.
For the reasons set out in the preamble, we propose to amend 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--Determinations, Administrative Review Process, and
Reopening of Determinations and Decisions
0
1. The authority citation for subpart J of part 404 continues to read
as follows:
Authority: Secs. 201(j), 204(f), 205(a)-(b), (d)-(h), and (j),
221, 223(i), 225, and 702(a)(5) of the Social Security Act (42
U.S.C. 401(j), 404(f), 405(a)-(b), (d)-(h), and (j), 421, 423(i),
425, and 902(a)(5)); sec. 5, Pub. L. 97-455, 96 Stat. 2500 (42
U.S.C. 405 note); secs. 5, 6(c)-(e), and 15, Pub. L. 98-460, 98
Stat. 1802 (42 U.S.C. 421 note); sec. 202, Pub. L. 108-203, 118
Stat. 509 (42 U.S.C. 902 note).
0
2. Revise Sec. 404.929 to read as follows:
Sec. 404.929 Hearing before an administrative law judge--general.
If you are dissatisfied with one of the determinations or decisions
listed in Sec. 404.930 you may request a hearing. The Deputy
Commissioner for Disability Adjudication and Review, or his or her
delegate, will appoint an administrative law judge to conduct the
hearing. If circumstances warrant, the Deputy Commissioner, or his or
her delegate, may assign your case to another administrative law judge.
At the hearing, you may appear in person, by video teleconferencing,
or, under certain extraordinary circumstances, by telephone. You may
submit new evidence, examine the evidence used in
[[Page 38614]]
making the determination or decision under review, and present and
question witnesses. The administrative law judge who conducts the
hearing may ask you questions. He or she will issue a decision based on
the preponderance of the evidence in the hearing record. If you waive
your right to appear at the hearing, in person, by video
teleconferencing, or by telephone, the administrative law judge will
make a decision based on the preponderance of the evidence that is in
the file and any new evidence that may have been submitted for
consideration.
0
3. In Sec. 404.936, revise paragraphs (b) and (c), redesignate
paragraphs (d)-(e) as paragraphs (e)-(f), add a new paragraph (d) and
revise redesignated paragraphs (e)-(f), to read as follows:
Sec. 404.936 Time and place for a hearing before an administrative
law judge.
* * * * *
(b) Where we hold hearings. We hold hearings in the 50 States, the
District of Columbia, American Samoa, Guam, the Northern Mariana
Islands, the Commonwealth of Puerto Rico, and the United States Virgin
Islands. The place of the hearing is the hearing office or other
site(s) at which you and any other parties to the hearing are located
when you make your appearance(s) before the administrative law judge,
whether in person, by video teleconferencing, or by telephone.
(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, by video teleconferencing or, under extraordinary
circumstances, by telephone. 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. The administrative law judge will direct you or
another party to the hearing to appear by telephone when:
(i) An appearance in person is not possible, such as if you are
incarcerated and the facility will not allow a hearing to be held at
the facility, and video teleconferencing is not available; or
(ii) The administrative law judge determines, either on his own, or
at your request or the request of any other party to the hearing, that
extraordinary circumstances prevent you or another party to the hearing
from appearing at the hearing in person or by video teleconferencing.
(2) [Reserved]
(d) Objecting to appearing by video teleconferencing. Prior to
scheduling your hearing, we will notify you that we may schedule you to
appear by video teleconferencing. If you object to appearing by video
teleconferencing, you must notify us in writing within 30 days after
the date you receive the notice. If you notify us within that time
period and your residence does not change while your request for
hearing is pending, we will set your hearing for a time and place at
which you may make your appearance before the administrative law judge
in person. However, notwithstanding any objections you may have to
appearing by video teleconferencing, if you change your residence while
your request for hearing is pending, we may determine how you will
appear, including by video teleconferencing, as provided in paragraph
(c)(1) of this section. For us to consider your change of residence
when we schedule your hearing, you must submit evidence verifying your
new residence.
(e) Objecting to the time or place of the hearing. If you object to
the time or place of your hearing, you must notify us in writing at the
earliest possible opportunity, but not later than 5 days before the
date set for the hearing or, if earlier, 30 days after receiving notice
of the hearing. You must state the reason for your objection and state
the time and place you want the hearing to be held. We will change the
time or place of the hearing if the administrative law judge finds you
have good cause, as determined under paragraph (f) of this section.
Section 404.938 provides procedures we will follow when you do not
respond to a notice of hearing.
(f) Good cause for changing the time or place. The administrative
law judge will determine whether good cause exists for changing the
time or place of your scheduled hearing. However, a finding that good
cause exists to reschedule the time or place of your hearing will not
change the assignment of the administrative law judge for your case,
unless we determine reassignment will promote more efficient
administration of the hearing process.
(1) We will reschedule your hearing, if your reason is one of the
following circumstances and is supported by the evidence:
(i) A serious physical or mental condition or incapacitating injury
makes it impossible for you or your representative to travel to the
hearing, or a death in the family occurs; or
(ii) Severe weather conditions make it impossible for you or your
representative to travel to the hearing.
(2) In determining whether good cause exists in circumstances other
than those set out in subparagraph (1) of this section, the
administrative law judge will consider your reason for requesting the
change, the facts supporting it, and the impact of the proposed change
on the efficient administration of the hearing process. Factors
affecting the impact of the change include, but are not limited to, the
effect on the processing of other scheduled hearings, delays which
might occur in rescheduling your hearing, and whether we granted you
any prior changes. Examples of such other circumstances that you might
give for requesting a change in the time or place of the hearing
include, but are not limited to, the following:
(i) You unsuccessfully attempted to obtain a representative and
need additional time to secure representation;
(ii) Your representative was appointed within 30 days of the
scheduled hearing and needs additional time to prepare for the hearing;
(iii) Your representative has a prior commitment to be in court or
at another administrative hearing on the date scheduled for the
hearing;
(iv) A witness who will testify to facts material to your case
would be unavailable to attend the scheduled hearing and the evidence
cannot be otherwise obtained;
(v) Transportation is not readily available for you to travel to
the hearing; or
(vi) You are unrepresented, and you are unable to respond to the
notice of hearing because of any physical, mental, educational, or
linguistic limitations (including any lack of facility with the English
language) which you may have.
* * * * *
0
4. 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
[[Page 38615]]
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 party or witness is scheduled to be made in person,
by video teleconferencing, or 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.
* * * * *
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 paragraphs (a)-(c), and add new paragraphs
(d)-(e), to read as follows:
Sec. 405.315 Time and place for a hearing before an administrative
law judge.
(a) General. We may set the time and place for the hearing. We may
change the time and place, if it is necessary. If we change the time
and place of the hearing, we will send you reasonable notice of the
change. We will notify you of the time and place of the hearing at
least 75 days before the date of the hearing, unless you agree to a
shorter notice period.
(b) Where we hold hearings. We hold hearings in the 50 States, the
District of Columbia, American Samoa, Guam, the Northern Mariana
Islands, the Commonwealth of Puerto Rico, and the United States Virgin
Islands. The place of the hearing is the hearing office or other
site(s) at which you and any other parties to the hearing are located
when you make your appearance(s) before the administrative law judge,
whether in person, by video teleconferencing, or by telephone.
(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
will be made in person or by video teleconferencing or, under
extraordinary circumstances, by telephone. 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. The administrative law
judge will direct you to appear by telephone when:
(i) An appearance in person is not possible, such as if you are
incarcerated and the facility will not allow a hearing to be held at
the facility, and video teleconferencing is not available; or
(ii) The administrative law judge determines, either on his own, or
at your request or the request of any other party to the hearing, that
extraordinary circumstances prevent you or another party to the hearing
from appearing at the hearing in person or by video teleconferencing.
(2) Reserved
(d) Consultation procedures. Before we exercise the authority to
set the time and place for an administrative law judge's hearings, we
will consult with the appropriate hearing office chief administrative
law judge to determine if there are any reasons why we should not set
the time and place of the administrative law judge's hearings. If the
hearing office chief administrative law judge does not state a reason
that we believe justifies the limited number of hearings scheduled by
the administrative law judge, we will then consult with the
administrative law judge before deciding whether to begin to exercise
our authority to set the time and place for the administrative law
judge's hearings. If the hearing office chief administrative law judge
states a reason that we believe justifies the limited number of
hearings scheduled by the administrative law judge, we will not
exercise our authority to set the time and place for the administrative
law judge's hearings. We will work with the hearing office chief
administrative law judge to identify those circumstances where we can
assist the administrative law judge and address any impediment that may
affect the scheduling of hearings.
(e) Pilot program. The provisions in the first three sentences of
paragraph (a), the first sentence of paragraph (c)(1), and paragraph
(d) of this section are a pilot program. These provisions will no
longer be effective on August 9, 2016, unless we terminate them earlier
or extend them beyond that date by notice of a final rule in the
Federal Register.
0
7. In 405.316, revise paragraphs (a) and (b)(5), to read as follows:
(a) Issuing the notice. After we set the time and place of the
hearing, we will mail notice of the hearing to you at your last known
address, or give the notice to you by personal service, unless you have
indicated in writing that you do not wish to receive this notice. We
will mail or serve the notice at least 75 days before the date of the
hearing, unless you agree to a shorter notice period.
(b) * * *
(5) Whether your appearance or that of any witness is scheduled to
be made in person, by video teleconferencing, or 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.
* * * * *
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8. Revise Sec. 405.317 to read as follows:
Sec. 405.317 Objections.
(a) Objecting to appearing by video teleconferencing. Prior to
scheduling your hearing, we will notify you that we may schedule you to
appear by video teleconferencing. If you object to appearing by video
teleconferencing, you must notify us in writing within 30 days after
the date you receive the notice. If you notify us within that time
period and your residence does not change while your request for
hearing is pending, we will set your hearing for a time and place at
which you may make your appearance before the administrative law judge
in person. However, notwithstanding any objections you may have to
appearing by video teleconferencing, if you change your residence while
your request for hearing is pending, we may determine how you will
appear, including by video teleconferencing, as provided in section
405.315 of this part. For us to consider a change of residence when we
schedule your hearing, you must submit evidence verifying your new
residence.
(b) Objecting to the time and place of the hearing. (1) If you
object to the time or place of your hearing, you must notify us in
writing at the earliest possible opportunity before the date set
[[Page 38616]]
for the hearing, but no later than 30 days after receiving notice of
the hearing. You must state the reason(s) for your objection and state
the time and place you want the hearing to be held.
(2) The administrative law judge will consider your reason(s) for
requesting the change and the impact of the proposed change on the
efficient administration of the hearing process. Factors affecting the
impact of the change include, but are not limited to, the effect on the
processing of other scheduled hearings, delays which might occur in
rescheduling your hearing, and whether we previously granted to you any
changes in the time or place of your hearing. However, an objection to
the time or place of your hearing will not change the assignment of the
administrative law judge for your case, unless we determine
reassignment will promote more efficient administration of the hearing
process.
(c) Issues. If you believe that the issues contained in the hearing
notice are incorrect, you should notify the administrative law judge in
writing at the earliest possible opportunity, but must notify him or
her no later than five business days before the date set for the
hearing. You must state the reason(s) for your objection. The
administrative law judge will make a decision on your objection either
at the hearing or in writing before the hearing.
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9. In Sec. 405.350, revise the first sentence of paragraph (a) to read
as follows:
Sec. 405.350 Presenting evidence at a hearing before an
administrative law judge.
(a) * * * You have a right to appear before the administrative law
judge, either in person or, when the administrative law judge
determines that the conditions in Sec. 405.315(c) exist, by video
teleconferencing or telephone, to present evidence and to state your
position. * * *
* * * * *
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
Subpart N--Determinations, Administrative Review Process, and
Reopening of Determinations and Decisions
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10. 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).
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11. Revise Sec. 416.1429 to read as follows:
Sec. 416.1429 Hearing before an administrative law judge-general.
If you are dissatisfied with one of the determinations or decisions
listed in Sec. 416.1430 you may request a hearing. The Deputy
Commissioner for Disability Adjudication and Review, or his or her
delegate, will appoint an administrative law judge to conduct the
hearing. If circumstances warrant, the Deputy Commissioner, or his or
her delegate, may assign your case to another administrative law judge.
At the hearing, you may appear in person, by video teleconferencing,
or, under certain extraordinary circumstances, by telephone. You may
submit new evidence, examine the evidence used in making the
determination or decision under review, and present and question
witnesses. The administrative law judge who conducts the hearing may
ask you questions. He or she will issue a decision based on the
preponderance of the evidence in the hearing record. If you waive your
right to appear at the hearing, in person, by video teleconferencing,
or by telephone, the administrative law judge will make a decision
based on the preponderance of the evidence that is in the file and any
new evidence that may have been submitted for consideration.
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12. In Sec. 416.1436, revise paragraphs (b) and (c), redesignate
paragraphs (d)-(e) as paragraphs (e)-(f), add a new paragraph, (d) and
revise redesignated paragraphs (e)-(f), to read as follows:
Sec. 416.1436 Time and place for a hearing before an administrative
law judge.
* * * * *
(b) Where we hold hearings. We hold hearings in the 50 States, the
District of Columbia, American Samoa, Guam, the Northern Mariana
Islands, the Commonwealth of Puerto Rico, and the United States Virgin
Islands. The place of the hearing is the hearing office or other
site(s) at which you and any other parties to the hearing are located
when you make your appearance(s) before the administrative law judge,
whether in person, by video teleconferencing, or by telephone.
(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, by video teleconferencing, or, under extraordinary
circumstances, by telephone. 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. The administrative law judge will direct you or
another party to the hearing to appear by telephone when:
(i) An appearance in person is not possible, such as if you are
incarcerated and the facility will not allow a hearing to be held at
the facility, and video teleconferencing is not available; or
(ii) The administrative law judge determines, either on his own, or
at your request or the request of any other party to the hearing, that
extraordinary circumstances prevent you or another party to the hearing
from appearing at the hearing in person or by video teleconferencing.
(2) Reserved
(d) Objecting to appearing by video teleconferencing. Prior to
scheduling your hearing, we will notify you that we may schedule you to
appear by video teleconferencing. If you object to appearing by video
teleconferencing, you must notify us in writing within 30 days after
the date you receive the notice. If you notify us within that time
period and your residence does not change while your request for
hearing is pending, we will set your hearing for a time and place at
which you may make your appearance before the administrative law judge
in person. However, notwithstanding any objections you may have to
appearing by video teleconferencing, if you change your residence while
your request for hearing is pending, we may determine how you will
appear, including by video teleconferencing, as provided in paragraph
(c)(1) of this section. For us to consider your change of residence
when we schedule your hearing, you must submit evidence verifying your
new residence.
(e) Objecting to the time or place of the hearing. If you object to
the time or place of your hearing, you must notify us in writing at the
earliest possible opportunity, but not later than 5 days before the
date set for the hearing or, if earlier, 30 days after receiving notice
of the hearing. You must state the reason for your objection and state
the time and place you want the hearing to be held. We will change the
time or place of the
[[Page 38617]]
hearing if the administrative law judge finds you have good cause, as
determined under paragraph (f) of this section. Section 416.1438
provides procedures we will follow when you do not respond to a notice
of hearing.
(f) Good cause for changing the time or place. The administrative
law judge will determine whether good cause exists for changing the
time or place of your scheduled hearing. However, a finding that good
cause exists to reschedule the time or place of your hearing will not
change the assignment of the administrative law judge for your case,
unless we determine reassignment will promote more efficient
administration of the hearing process.
(1) We will reschedule your hearing, if your reason is one of the
following circumstances and is supported by the evidence:
(i) A serious physical or mental condition or incapacitating injury
makes it impossible for you or your representative to travel to the
hearing, or a death in the family occurs; or
(ii) Severe weather conditions make it impossible for you and your
representative to travel to the hearing.
(2) In determining whether good cause exists in circumstances other
than those set out in subparagraph (1) of this section, the
administrative law judge will consider your reason for requesting the
change, the facts supporting it, and the impact of the proposed change
on the efficient administration of the hearing process. Factors
affecting the impact of the change include, but are not limited to, the
effect on the processing of other scheduled hearings, delays which
might occur in rescheduling your hearing, and whether we granted you
any prior changes. Examples of such other circumstances that you might
give for requesting a change in the time or place of the hearing
include, but are not limited to, the following:
(i) You unsuccessfully attempted to obtain a representative and
need additional time to secure representation;
(ii) Your representative was appointed within 30 days of the
scheduled hearing and needs additional time to prepare for the hearing;
(iii) Your representative has a prior commitment to be in court or
at another administrative hearing on the date scheduled for the
hearing;
(iv) A witness who will testify to facts material to your case
would be unavailable to attend the scheduled hearing and the evidence
cannot be otherwise obtained;
(v) Transportation is not readily available for you to travel to
the hearing; or
(vi) You are unrepresented, and you are unable to respond to the
notice of hearing because of any physical, mental, educational, or
linguistic limitations (including any lack of facility with the English
language) which you may have.
* * * * *
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13. 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 party or
witness is scheduled to be made in person, by video teleconferencing,
or 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.
* * * * *
[FR Doc. 2013-14894 Filed 6-26-13; 8:45 am]
BILLING CODE 4191-02-P