Final rule sets manner for appearance of parties and witnesses at a hearing
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Monday, January 20, 2020

Final rule sets manner for appearance of parties and witnesses at a hearing

By Payroll and Entitlements Editorial Staff

The SSA is publishing a final rule it proposed in November 2018 regarding setting the time, place, and manner of appearance for hearings at the administrative law judge (ALJ) level of the administrative review process, with modifications. The final rule states that the agency will determine how parties and witnesses will appear at a hearing before an ALJ, and that the SSA will set the time and place for the hearing accordingly. The agency will schedule the parties to a hearing to appear by video teleconference (VTC), in person, or, in limited circumstances, by telephone. Under the final rule, the SSA will decide how parties and witnesses will appear at a hearing based on several factors, but the parties to a hearing will continue to have the ability to opt out of appearing by VTC at the ALJ hearings level. Finally, the SSA is revising its rule to state that, at the ALJ hearing level, if the agency needs to send an amended notice of hearing, or if it needs to schedule a supplemental hearing, the SSA will send the amended notice or notice of supplemental hearing at least 20 days before the date of the hearing. The date of hearing indicated in the amended notice or notice of supplemental hearing will be at least 75 days from the date the SSA first sent the claimant a notice of hearing, unless the claimant has waived his or her right to advance notice. The rule becomes effective on January 17, 2020.

Some changes from proposed to final rule. The changes that the SSA proposed and are now adopting will provide the agency with the flexibility it needs to address service challenges by allowing it to balance hearing workloads in a way that the SSA expects will reduce overall wait and processing times across the country, and the processing time disparities among offices. However, in response to the overwhelming preference expressed by public commenters in response to last year’s NPRM, the agency is retaining the existing option for a party to a hearing to opt out of appearing by VTC at the ALJ hearing level. If the Appeals Council (AC) exercises removal authority for a case, it will continue to follow all the rules that apply to the ALJ level of adjudication.

Besides the changes the SSA has proposed for setting the time, place, and manner of appearance for hearings, it also proposed one clarification to its rule regarding the notice of hearing at the ALJ hearing level. Under current rule, the SSA sends a notice of hearing at least 75 days prior to the date of the scheduled hearing to all parties and their representative, if any. In addition to the time and place of a hearing, the notice has other information, including the issues to be decided, the right to representation, how to request a change in the time of the hearing, and how appearances will be made. The SSA proposed to clarify that when it sends an amended notice of hearing or notice of supplemental hearing, it would send the amended notice or notice of supplemental hearing at least 20 days prior to the hearing. If the agency needs to change the date of a hearing, the date it chooses will always be at least 75 days from the date the SSA first sent the claimant a notice of hearing, unless the claimant has waived his or her right to advance notice.

Finally, the SSA also proposed in the NPRM to make changes to its rule about scheduling hearings before disability hearing officers (DHO) in §§404.914 and 416.1414. The proposed changes to those sections generally tracked the SSA’s proposed changes to the regulations that regard scheduling hearings before ALJs, including the proposal not to allow a party to a hearing to opt out of appearing by VTC. The SSA is not pursuing changes to §§404.914 and 416.1414 at this time.

Changes from the proposed rule to the final rule are as follows:

  • The SSA removed the proposed revisions to §§404.914 and 416.1414.
  • The agency changed “them” to “witnesses” for clarity in final §§404.936(c)(4) and 416.1436(c)(4).
  • The SSA retained existing §§404.936(d) and 416.1436(d), which allow a party to a hearing before an ALJ to object to appearing by VTC, and it moved and reordered the proposed text from NPRM paragraphs (d) and (e) to (e) and (f) respectively.
  • The agency added “or notice of supplemental hearing” to the par
  • agraph heading in final §§404.938(d) and 416.1438(d) to ensure readers understand the breadth of the paragraphs.

In response to the NPRM, the SSA received and posted 244 public comments that addressed issues within the scope of the proposed rule, and one comment that it did not post because it was made by an individual in his or her official capacity as an SSA employee.

For further information, contact Susan Swansiger, Office of Hearings Operations, Social Security Administration, 5107 Leesburg Pike, Falls Church, VA 22041, (703) 605-8500. See 84 Fed. Reg. 69298, December 18, 2019.

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