Proposed Regulations Concerning ALJ Hearings And Appeals

These official publication date on these proposed regulations is Monday, but you can read them now. These will prove to be controversial. Here are a few excerpts from Social Security's summary:

We also propose to replace both the Appeals Council and the Decision Review Board with a new adjudicative body to be named the ‘‘Review Board.’’ ...

To ensure individuals have adequate time in which to prepare for the hearing and meet the deadlines for submitting evidence, we propose requiring ALJs to notify an individual of the time and place of the hearing at least 75 days before the date of the hearing, unless the individual agrees to a shorter notice period. ...

[N]o later than 5 business days before the hearing, they [claimants] must submit all of the evidence to be relied upon in a case. ...

The 5-day time limit for submitting evidence would be subject to exceptions, depending on when the individual attempts to present the additional evidence. If the individual requests to submit evidence within the 5 business days immediately preceding the hearing, the ALJ would accept and consider the evidence if:
1. Our action misled the individual (for example, if the wrong notice was accidentally sent to you, or you were provided misinformation over the phone);
2. The individual had a physical, mental, educational, or linguistic limitation(s) that prevented him or her from submitting the evidence earlier; or
3. Some other unusual, unexpected, or unavoidable circumstance beyond the individual’s control prevented the individual from submitting the evidence earlier. If the individual requests to submit evidence after the hearing but before the hearing decision is issued, the ALJ would accept and consider the evidence if the individual makes one of the three showings above and there is a reasonable possibility that the evidence would affect the outcome of the case. ...

At any time before the hearing begins, an individual could submit, or the ALJ could request the individual to submit, a prehearing statement on the issues arising in the case. In this statement, the individual should briefly discuss the issues; describe the supporting facts; identify witnesses; explain the evidentiary and legal basis upon which he or she believes the ALJ should find in his or her favor; and provide any other comments, suggestions, or information that might assist in preparing for the hearing.
...

The proposed rule differs from the current rule in that it specifies that the ALJ may direct a witness, other than the individual who requested the hearing, to appear by video teleconference if: (1) Video teleconference is available, (2) use of the technology would be more efficient than conducting an examination of a witness in person, and (3) the ALJ determines that there is no other reason why a video hearing should not be conducted. ...

In addition, this proposed rulespecifies that the ALJ would retain discretion at the time of the hearing to hold the record open for the submission of additional evidence. If an individual were aware of any additional evidence that the individual was unable to obtain and submit before or at the hearing or if the individual were scheduled to undergo additional medical evaluation after the hearing for any impairment that forms the basis of the case, the individual should inform the ALJ of the circumstances during the hearing. If the individual were to request additional time to submit the evidence, the ALJ could exercise discretion and choose to keep the record open for a defined period of time to give the individual the opportunity to obtain and submit the additional evidence. ...

Our proposed rule would specify that the ALJ must explain, in clear and understandable language, the reasons for his or her decision. ...

[W]e propose to extend the additional evidence requirements we are proposing for the hearing level to the Review Board level, with a further restriction that additional evidence offered by the individual may be accepted by the Review Board only if there is a reasonable probability that it, alone or when considered with the other evidence of record, would change the outcome of the decision. ...

[W]e propose to remove ‘‘new and material evidence’’ as a basis for reopening any decision made at the hearing or Review Board levels on a claim for benefits based on disability. ...

[W]e propose in these rules that throughout any appeal to the Review Board, and during any subsequent administrative proceedings on remand from the Review Board or a Federal court, the proceedings will consider only the claimant’s eligibility for benefits on or before the date of that first ALJ hearing decision on the claim for benefits.

The estimate given in the proposal is that if these regulations are adopted that over $1.5 billion will be saved over the next ten years.