SSA Issues Final Regulations on Changes to Scheduling Hearings
As hearing level workloads continue to grow, SSA is “implementing final rules that will help us provide better service by allowing us to conduct hearings and issue decisions more expeditiously.” 79 Fed. Reg. 35926 (June 25, 2014). These final rules became effective on July 25, 2014. The final rules provide changes in scheduling and notice procedures for hearings, with a focus on video hearings and are essentially the same as the June 2013 notice of proposed rulemaking (NPRM). The one change, recommended by NOSSCR in its comments, is to provide a good cause exception for extending the time to object to appearing at a video hearing or to object to the time
and place of the hearing.
These final rules and the June 2013 notice of proposed rulemaking (NPRM), 78 Fed. Reg. 38610 (June 27, 2013), appear to be an outgrowth of now defunct “secret ALJ” policy, which ended in April 2013. According to the preface to the final rule:
… [W]e remain concerned that some individuals are manipulating our rules in order to obtain a hearing with an ALJ with a higher allowance rate. As we previously noted, this may be an unintended consequence of our commitment to transparency as we make more information, such as an ALJ’s allowances rates, available to claimants and their representatives. Until the effective date of this final rule, these types of efforts to undermine the random assignment of ALJs have generally been successful….
Our continued concerns about efforts to undermine our rules are not merely anecdotal. At the time of this fi nal rule, we brought and pursued sanction actions against an appointed representative for misrepresenting facts in order to have cases transferred to a hearing office with a higher allowance rate. We have observed some individuals decline hearings by video teleconferencing after learning that the claimant is scheduled to appear before an ALJ with a lower allowance rate. 79 Fed. Reg. 35926.
Time limit to object to VTC hearing. The final rule requires that the claimant be notified prior to scheduling a hearing that the hearing may be held by video teleconferencing (VTC). This will occur before the case is assigned to an ALJ. The claimant has 30 days from the date this notice is received (this is not the official “notice of hearing”) to object to the VTC hearing in writing. The general rule is that if the objection is “timely,” an in-person hearing will be scheduled (see exception below if the claimant changes residence). The prior regulations provided that an objection to a VTC hearing be made “at the earliest possible opportunity” (with no time limit) will automatically result in scheduling of an in-person hearing. If the objection was not “timely,” then the ALJ would determine if “good cause” existed under the other factors in the regulations. 20 C.F.R. §§ 404.936 and 416.1436. The change requires the objection to be made within 30 days of receipt of the new notice that the hearing will be held by VTC. 20 C.F.R. §§ 404.936(d) and 416.1436(d).
Based on comments to the NPRM, including those from NOSSCR, the final rule adds a “good cause” provision for extending the 30 days to object if the objection is made beyond that period. 20 C.F.R. §§ 404.936(d)(2) and 416.1436(d)(2). To determine whether good cause exists to extend the 30-day deadline, SSA will use the factors in 20 C.F.R. §§ 404.911 and 416.1411.
Exception if claimant moves. There is a “limited exception” to the general rule that a claimant can object to a VTC hearing if the claimant moves while the request for hearing is pending. In that case, “we will determine whether the claimant will appear in person or by video teleconferencing, even if the claimant previously objected to appearing by video teleconferencing.” 79 Fed. Reg. 35927. Why this exception to the rule? The preface states:
This limited exception to the rule allows 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.
Id. According to the response to a comment, SSA states that the “integrity” of the program needs to be protected for the following reason:
… [W]e are concerned that some claimants or their appointed representatives may be misusing our procedures regarding a change in residence to undermine the random assignment of cases to our ALJs. We are aware of situations in which a representative instructed claimants to report a change of address, which was not a change of residence, so that cases would be reassigned to a different hearing office with higher allowance rates. As a result of such practices, we must have a means to ensure the integrity of our program. 79 Fed. Reg. 35928. SSA anticipates “that we will apply this exception infrequently.”
Other important changes include:
New time limit for objecting to the time or place of the hearing. The claimant must notify SSA “at the earliest possible opportunity” but no later than 5 days before the hearing date or, if earlier, within 30 days after receipt of the official notice of hearing. The ALJ will decide if “good cause” applies to reschedule. 20 C.F.R. §§ 404.936(e), (f) and 416.1436(e), (f). The final rule adds a “good cause” provision for extending this time limit, using the factors in 20 C.F.R. §§ 404.911 and 416.1411.
Under the previous regulations, there was no time limit for objecting other than doing so “at the earliest possible opportunity before the time set for the hearing.” Under the final rules, “good cause” must be found in two circumstances: (1) If the claimant or representative is unable to attend or travel to the scheduled hearing because of a serious physical or mental condition, incapacitating injury, or death in the family; or (2) Severe weather conditions make it impossible to travel to the hearing. 20 C.F.R. §§ 404.936(f)(1) and 416.1436(f)(1).
In other circumstances, the ALJ will look at the reasons given, including a nonexhaustive list of factors. Id. at (f)(2). These “good cause” factors to reschedule are retained in the final except for “minor revisions,” as described by SSA.
One factor deleted from the previous regulations, which we do not view as “minor,” is that the claimant lives closer to another hearing site [previous 20 C.F.R. §§ 404.936(f)(6) and 416.1436(f) (6)]. We have been particularly concerned about deleting this factor, given the difficulties claimants have had with attending in-person hearings in some locations. According to SSA, this factor was removed to allow more flexibility if a hearing needs to be transferred to a different location. In addition, SSA again states it is concerned with “misuse” of procedures “to undermine the random assignment of cases to our ALJs.”
This change represents a departure from longstanding SSA policy and even though the list is nonexhaustive, removal of this factor from the list could prove to be a problem for many claimants with limited transportation options. The list of factors to consider does still include: “Transportation is not readily available for you to travel to the hearing …” Id. at (f)(2)(v).
Telephone hearings. Under the final rule, the ALJ is able to schedule a telephone hearing when (1) an in-person appearance is not possible, e.g., the claimant is incarcerated and VTC is not available at the facility; or (2) the ALJ determines, on his own or at the claimant’s request, that “extraordinary circumstances” prevent the claimant from appearing in person or by VTC.
While the preface to the NPRM seemed to focus on hearings at correctional facilities as “extraordinary circumstances, the problem is that the actual regulation presents a potentially broader application.
The final regulation, 20 C.F.R. §§ 404.936(c)(1)(ii) and 416.1436(c)(1)(ii), was not changed from the proposed rule. In response to comments, including those of NOSSCR, that claimants should have the ability to object to a telephone hearing, SSA stated that this was not necessary since “we will use this provision on a limited basis, and its goal is to promote efficiency of hearings.” The response goes on to note that a claimant scheduled to appear by telephone has the right to object to the time or place of hearing under 20 C.F.R. §§ 404.936(d), 405.317, and 416.1436(d).