Federal Register: December 11, 2003 (Volume 68, Number 238)
DOCID: FR Doc 03-30691
SOCIAL SECURITY ADMINISTRATION
Social Security Administration
CFR Citation: 20 CFR Parts 404 and 416
RIN ID: RIN 0960-AE97
DOCUMENT ID: [Regulation Nos. 4 and 16]
NOTICE: RULES
ACTION: Social security benefits:
DOCUMENT ACTION: Final rule.
SUBJECT CATEGORY:
Federal Old-Age, Survivors and Disability Insurance and Supplemental Security Income for the Aged, Blind, and Disabled; Administrative Review Process; Video Teleconferencing Appearances Before Administrative Law Judges of the Social Security Administration
DATES: These rules were effective March 5, 2003.
DOCUMENT SUMMARY:
We are adopting without change the final rules that were published in the Federal Register on February 3, 2003, at 68 FR 5210, authorizing us to conduct hearings before administrative law judges (ALJs) using video teleconferencing (VTC). The revised rules authorized us to conduct hearings before ALJs at which a party or parties to the hearing and/or a witness or witnesses may appear before the ALJ by VTC. The revised rules also provided that if we schedule you to appear at your hearing by VTC, rather than in person, and you object to use of the VTC procedure, we will reschedule your hearing as one at which you may appear in person before the ALJ. Under the revised rules, the ALJ will also consider any objection you may have to the appearance of a witness by VTC. The purpose of the rules is to provide us with greater flexibility in scheduling and holding hearings, improve hearing process efficiency, and extend another service delivery option to individuals requesting a hearing.
SUMMARY:
Federal old age, survivors, and disability insurance and supplemental security income—; Administrative law judges; video teleconference hearings,
SUPPLEMENTAL INFORMATION
Background
On January 5, 2001, at 66 FR 1059, we published a Notice of
Proposed Rulemaking (NPRM) in which we proposed to authorize our use of
VTC in conducting hearings before ALJs. One provision in the proposed
rules would have given claimants the right to veto use of VTC to take
both their own testimony and the testimony of vocational experts (VEs)
and medical experts (MEs). On February 3, 2003, after considering the
public comments received on the NPRM, we published the final rules at
68 FR 5210 authorizing our use of VTC effective March 5, 2003. The
final rules made a significant change from the proposed rules by giving
claimants the right to veto the use of VTC only for the purpose of
taking their own testimony. Accordingly, in publishing the final rules, we requested public comment on the issue of whether
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claimants should or should not be empowered to veto use of VTC to take the testimony of expert witnesses.\1\
\1\ The final rules published on February 3, 2003, were
designated as ``[f]inal rules with request for comment.'' This
current preamble deals with three sets of rules: (1) The proposed
rules published in the NPRM of January 5, 2001; (2) the final rules
were requested for comment published February 3, 3002, and (3) these
current final rules that adopt the final rules with request for comment without change.
Our Reasons for Proposing Rules Authorizing Use of VTC \2\
\2\ We are summarizing our reasons for proposing rules to
authorize use of VTC. For a more detailed review of the history of
the development of these rules, see the preamble to the NPRM of January 5, 2001 (66 FR 10591062).
We receive more than 500,000 requests for hearings before ALJs each year. To accommodate the hearing requests of individuals who do not live near a hearing office, we hold approximately 40% of hearings at remote sites, which are generally at least 75 miles from the hearing office.
To make travel to remote hearing sites as cost effective as possible, hearing offices wait until they have a sufficient number of requests for hearing to schedule a full day or, if travel to a remote hearing site requires an overnight stay, several days of hearings. Because of the need to accrue a docket, ALJs travel to some remote hearing sites infrequently. Because many remote hearing sites are in lesspopulous areas, it can be difficult to find a needed medical and/ or vocational expert witness(es) to travel to these sites, and this difficulty may further delay scheduling a hearing. ALJs also travel from their assigned hearing offices to assist other hearing offices when the need arises.
We proposed rules to authorize use of VTC in conducting hearings based on testing conducted in the State of Iowa beginning in 1996 that demonstrated that VTC procedures can be effectively used where large scale, high quality VTC networks exist and claimants want to participate in VTC procedures because doing so reduces the distances they must travel to their hearings. In a survey of participants in the Iowa test, a large percentage of the respondents rated hearings using VTC procedures as ``convenient'' or ``very convenient,'' and overall service as either ``good'' or ``very good.'' Test data showed that processing time for these hearings was substantially less than for hearings conducted in person at remote sites during the same time period, and that the ratio of hearings held to hearings scheduled was significantly higher for hearings using VTC procedures than for hearings conducted in person. Being able to hold hearings as scheduled increases our efficiency because we do not have to recontact the individual to determine why he or she did not appear at a scheduled hearing nor reschedule the hearing (which can be time consuming, especially when an expert witness(es) has been scheduled to testify). Further, an ALJ does not spend time waiting for someone who does not appear, as would be the case in a hearing conducted in person at a remote site.
Based on all these factorsclaimant satisfaction, ability to provide more timely hearings, savings in ALJ travel time, faster case processing, and higher ratio of hearings held to hearings scheduledwe decided that conducting hearings by VTC would be an efficient service delivery alternative. We also decided that scheduling a hearing for use of VTC, rather than asking someone to elect a hearing using VTC, as we did in our testing of VTC, would improve hearing office efficiency and would permit us to provide faster access to a hearing for some individuals.
Final Rules With Request for Comment
In the final rules with request for comment published February 3, 2003, we revised several sections of our regulations. We revised Sec. Sec. 404.929 and 416.1429 to state that you may appear at your hearing in person or by VTC. We revised Sec. Sec. 404.936 and 416.1436 to state that we may schedule your appearance or that of any individual appearing at the hearing to be by VTC and that, if we schedule you to appear by VTC and you tell us that you want to appear in person, we will schedule a hearing at which you may appear in person. We revised Sec. Sec. 404.938 and 416.1438 to state that if we schedule you or anyone to appear at your hearing by VTC, the notice of hearing will tell you that and provide information about VTC appearances and about how you can tell us that you do not want to appear by VTC. Finally, we revised Sec. Sec. 404.950(a) and (e) and 416.1450(a) and (e) to state that a party or a witness may appear at a hearing in person or by VTC.
The final rules with request for comment included a number of
changes we made in response to the public comments we received on the
NPRM, including changes to Sec. Sec. 404.936 and 416.1436 to clearly
reflect the authority of the ALJ to determine how hearings are
conducted with respect to the use of VTC to conduct appearances.\3\ The
final rules with request for comment also set forth, in Sec. Sec.
404.936(c) and 416.1436(c), specific policies that direct how that authority is to be exercised. Those sections specify that
\3\ For a detailed review of the comments on the NPRM, and of
all the changes that the final rules with request for comment made
in the proposed rules, see the preamble to the final rules with request for comment of February 3, 2003, 68 FR 52125217.
``In setting the time and place of the hearing, the
administrative law judge determines whether your appearance or that
of any other individual who is to appear at the hearing will be made
in person or by video teleconferencing. The administrative law judge
will direct that the appearance of an individual be conducted by
video teleconferencing if video teleconferencing technology 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 does not
determine that there is a circumstance in the particular case preventing use of video teleconferencing to conduct the
appearance.''
As previously noted, the final rules with request for comment also made changes in the rules proposed in the NPRM relative to the issue of whether claimants should have veto authority over the use of VTC for the appearances of VEs and MEs. We made these changes in response to the comments of ALJs who commented on the NPRM, all but one of whom strongly opposed the proposal to allow claimants to veto the use of VTC to conduct the appearances of expert witnesses. (The comments of the remaining ALJ dealt with matters that were not within the scope of the NPRM.) The ALJs who opposed this provision included five ALJs who conducted hearings in the Iowa test and the Association of Administrative Law Judges.
The commenters opposed the proposal to allow claimants to veto VTC
appearances by expert witnesses for several reasons. One was that it
would defeat the purpose of using VTC as a way to obtain expert
testimony when it is impractical for the expert to appear in person,
and that it could force ALJs to forgo needed testimony or to take
testimony through the time consuming and unwieldy method of written
interrogatories. The commenters also expressed concern that the right
to veto the appearance of an expert by VTC could be used to prevent the
taking of expert testimony that might be adverse to the claimant and to
facilitate ``expert shopping.'' It was pointed out that claimants can
already object to witnesses based on bias or qualifications. The view
was also expressed that due process is fully accorded to the claimant if the claimant can see and crossexamine the expert
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and confront the expert with documentary evidence.
The ALJs who commented based on their experience in the Iowa test strongly emphasized the practical problems that allowing claimants to veto VTC appearances by experts would cause. These ALJs stated that using VTC to take the testimony of VEs is necessary to utilize these experts effectively because the cost of a VE's appearance can be reduced if, as is possible using VTC procedures, a docket of multiple appearances can be arranged for the expert. They also emphasized the value of VTC in reducing the problems involved in scheduling hearings, citing the example of how much easier it is to make arrangements for one VE to appear by VTC in four hearings occurring on a given day at four different sites than it is to arrange for four VEs to make in person appearances, at odd times in their workdays, at four sites.
The ALJs who participated in the Iowa test also emphasized that the practical problems in not using VTC to take VE testimony are greatly compounded when it comes to securing the testimony of MEs. They reported that it is only through use of VTC that they are able to provide ME testimony for hearings being held in remote sites, and that MEs will not travel to remote sites when it is technically possible to testify in hearings being held at such sites via VTC. These ALJs also reported that it was their experience that it is almost impossible to get MEs to testify in the larger urban areas where the hearing offices are located, and that it is sometimes necessary to rely on MEs testifying from the medical centers in Ames and Iowa City even in cases being heard in the West Des Moines area.
In explaining our response to these comments (i.e., the decision we made in the final rules with request for comment to deny claimants veto authority over whether hearings will be conducted with a witness or witnesses appearing by VTC), we said
The claimant may state objections to a witness appearing by VTC, just as they may state objections to any aspect of the hearing, and they may object to a witness on the basis of perceived bias or lack of expertise. However, a claimant's objection to a witness appearing by VTC will not prevent use of VTC for the appearance, unless the ALJ determines that the claimant's objection is based on a circumstance that warrants having the witness appear in person.
The analysis of the commenting ALJs concerning the impracticalities of giving claimants veto power over the medium whereby expert witnesses make their appearance has caused us to reevaluate our proposal in that regard. We believe these commenters are correct in indicating that giving claimants that power would undermine one of the primary practical benefits of using VTC procedures and adversely impact our ability to use those procedures effectively to improve the hearings process. The commenters also effectively emphasize the significance of the positive practical benefits that can flow from relying on VTC procedures in scheduling and conducting the appearances of expert witnesses.
An important point made in this comment is that implementation of VTC procedures reduces the readiness of experts to travel to remote sites. This is a result that might be expected logically, we believe, and the experience of the ALJs in the Iowa test bears out its occurrence.
Unless we ensure ALJ authority to use VTC to take expert testimony by not empowering claimants to veto its use for that purpose, the reduced readiness of expert witnesses to travel when VTC appearances are technologically possible will adversely affect our ability to preserve a reasonable opportunity for claimants to appear in person if they choose to opt out of scheduled appearances by VTC. If the authority of ALJs to secure expert testimony by VTC is not ensured, the reduced willingness of experts to travel when VTC technology is available could also reduce the efficiency with which we are able to schedule the appearances of experts at the hearings of individuals who live near hearing offices in urban areas and appear in person in those offices for their hearings.
MEs and VEs testify as impartial witnesses. They testify based on the evidence entered into the record and not based on any examination or personal evaluation of the claimant. Where they testify by VTC and their testimony is adverse to a party's claim, the party and his or her representative, if any, will have a complete opportunity to confront and examine the witness 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.
Affording claimants the power to veto the appearance of expert
witnesses by VTC would be inconsistent with our existing practices
and instructions regarding use of interrogatories to secure the
testimony of expert witnesses. While emphasizing the preferability
of securing live testimony where feasible, and requiring the ALJ to consider and rule on any claimant objection to the use of
interrogatories, our instructions do not mandate nonuse of
interrogatories merely because a claimant objects to their use. See
Hearings, Appeals, and Litigation Law Manual (HALLEX), sections I2
530, I2542, and I2557, at http://www.ssa.gov/OPHome/hallex/hallex.html. Thus, allowing claimants to veto the live testimony
that experts can give by VTC would invest claimants with an authority that they do not currently have with respect to
interrogatories.
Under these final rules, ALJs have discretion to determine that
the appearance of any individual must be conducted in person. Thus,
to the extent that circumstances could arise in which it would be
advisable to schedule an inperson appearance by an expert witness
even though a VTC appearance would be possible technologically, the ALJ may schedule such an appearance. That action could be
appropriate, for example, where the claimant alleges personal bias
or dishonesty on the part of the expert and the ALJ determines that
the claimant should have the opportunity to crossexamine the
witness in person because of the greater immediacy of an inperson confrontation.\4\
\4\ 68 FR 52155216 (2003).
Use of VTC
At present, 15 of our 138 hearing offices and 1 regional office use VTC to conduct hearings. Appearances by VTC are occurring from 12 different remote sites and 2 state networks.
We plan to gradually roll out use of VTC nationally. We will begin to use VTC facilities in the servicing area of a hearing office when the Associate Commissioner for Hearings and Appeals determines that appearances at hearings conducted in the area can be conducted more efficiently by VTC than in person.
We foresee initially scheduling VTC appearances where absent use of
FOR FURTHER INFORMATION CONTACT
Robert J. Augustine, Social Insurance Specialist, Office of Regulations, Social Security Administration, 100 Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 212356401, (410) 9650020 or TTY 18009665906, for information about this notice. For information on eligibility or filing for benefits, call our national tollfree number, 18007721213 or TTY 18003250778, or visit our Internet site, Social Security Online, at http://www.socialsecurity.gov .
Electronic Version
The electronic file of this document is available on the Internet at http://. policy.ssa.gov/pnpublic.nsf/LawRegs.