The Office of Management and Budget (OMB) has approved publication of proposed new Social Security regulations on Setting the Manner for the Appearance of Parties and Witnesses at a Hearing. Here is Social Security's summary of the proposal before it was submitted:
Remember, this is a proposal. It has to be published in the Federal Register for public comment. The agency must consider the comments before submitting a final proposal to OMB for approval. This process can take well over a year. Congressional opposition could derail the proposal.We propose to revise and unify some of the rules that govern how, where, and when individuals appear for hearings before an administrative law judge at the hearings level and before a disability hearing officer at the reconsideration level of our administrative review process. At both levels, when we schedule a hearing, we propose that we will determine the manner in which the parties to the hearing will appear: by VTC [Video Teleconference], in person, or, under limited circumstances, by telephone. We would not permit individuals to opt out of appearing by VTC. We also propose that we would determine the manner in which witnesses to a hearing will appear.
Increased opportunity to politicize the agency by staffing appeals offices based on whim, I mean "productivity."
ReplyDeleteShorter wait times for Hearing, many other admin law hearings are done by VTC, Immigration is a big one.
ReplyDeletereceipts are way way down. national pending is dropping 15,000 to 20,000 cases per month. the agency is closing almost one and a half cases for every case it receives. The next big money saving step is going to be to close hearing offices where receipts dont support them anymore and they will need mandatory video hearings in place to be able to do that.
ReplyDeleteThis is not an unexpected move on SSA's part. Stuffed suits at SSA have been pushing the idea that there is no difference between in person and VTC hearings for years and perpetuating the lie that VTC hearings are faster. Neither has proven to be accurate. They have truly lost their souls.
ReplyDelete10:44: At least in my OHO, as far as remote hearing sites are concerned, VTC hearings are absolutely faster.
ReplyDeleteThe proposed regulation is also known as the How to Not Be Able to Avoid the Chicago NHC Regulation.
ReplyDeleteHearings will be by video. Reps will be required to travel, while the agency will bend over backwards to allow VEs and MEs to appear (sleep) by phone.
ReplyDeleteI think the plan is to eventually close all the OHO's and have all the ALJ's in one office in D.C.
ReplyDeleteI'm picturing a Walmart sized cubicle farm of ALJs wearing headsets with American Flags behind them.
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ReplyDeleteOur office doesn't have remote hearing sites, just the OHO. VTC and in-person hearings are nearly the same delay with some in-person hearings being scheduled more quickly than VTC and vise versa, pretty much at random.
I would be interested to see actual statistics from SSA showing average VTC scheduled hearing delay versus in-person hearing delay. Does anyone know if this data has been published anywhere?
Last time I had Chicago NHC judges, I had eight hearings over 2 days. Every case that wasn’t approved by those two judges was remanded by Federal Court because NHC judges are incompetent bullies
ReplyDeleteThe most valuable part of the hearing process has always been that a person could appear personally before the ALJ, the actual person making the decision in their case, and look them in the eye and tell their story. When dealing with the Government, being able to speak directly to the person making the decision is a rare event.
ReplyDeleteThe Administrators at the SSA have never understood this notion. They are bean counters with no soul. They care not for whether a person has the right to be heard in person.
This change was inevitable, especially since the regulations never really did require in-person hearings. But being inevitable and being right are two different things. They really should be ashamed.
I assume the reason behind this regulation is to make it easier to redistribute cases from office to office. Most claimants, representatives and ALJs prefer in-person hearings over VTC. I believe the APA leaves it up to the ALJ to determine how a hearing is to be scheduled. Even when this regulation is enacted, I wonder what strong-arm tactics the agency will use to pressure ALJs to schedule more VTC hearings. No telework unless you schedule 250 VTC hearings per year?
ReplyDeleteDo some judges get to pick thrir VTC days? I certainly don't. I get to pick hearing days, the number of hearings on those days, and whether I want a VE or ME, but the office decides what type of hearings I do. If one of our remote sites has older pending hearings, I get video hearings for that office on a hearing day. If not, they're in-person.
ReplyDeleteI have been meaning to check my numbers on VTC versus live hearings to see if there is a discrepancy. I don't think there is. I think the NHCs may skew things with regard to numbers.
Downside to More Video and Phone Hearings?
ReplyDeleteIt is no secret that SSA lets ALJs get away with interpreting and implementing important procedural and substantive rules in non-uniform ways. Reps can figure out the interpretations and implementations of a small group of local ALJs. Not so with 1000+ ALJs nationwide. The result is frustration and inefficiency on both sides, in ways that I doubt SSA is measuring or considering.
Problems with bogus ME and VE testimony will get even worse. It is difficult to cross-examine when the rep and claimant are in one location, the ALJ is somewhere else, and the VE is on the phone. Considering there is already no meaningful pre-hearing discovery of ME and VE testimony allowed, adding video further limits the claimants ability to challenge incredible expert testimony by severely limiting the ability to effectively cross-examine.
Complain about the wait, complain about a proposed fix, complain about the pay, complain, complain, complain. If this is so unfair, so underpaid, so stacked against you, why would you do this? "For the Claimant, to preserve what is right!" Laughable, more likely because you cant do less and make more any other way.
ReplyDelete9:32 who p***** in you cheerios this morning? VTCs are worse for the claimants without speeding up the process. It's much easier for a Judge several states away to deny a person over a screen versus a Judge looking a person in the eye who lives in the same general area as the claimant. Additionally, as a high volume firm, we develop a relationship and reputation with the local Judges. We can work with them regarding onset dates and closed periods. Given our relationships, I believe our claimants often receive the benefit of the doubt in close cases. This is part of the reason why claimants hire our firm. This is lost with out-of-town VTC hearings.
ReplyDeleteI had a video hearing 6 weeks ago. My client was profoundly deaf in one ear with poor hearing in the other. He could not understand anything the judge was saying. After I started repeating the questions to the client for a couple of minutes (and I have been advised to consider a hearing aid, too) the ALJ said she would be in the area for some in persons hearing in a month and could we come in then. Had the hearing and it went smoothly and we won. The video hearing would have been a disaster if it had gone on longer. On top of which the hearing "room" we were in was a former client-lawyer conference room, the size of a modest broom closet.
ReplyDeleteIn addition, if we start having videos from all over all the time how can we learn anything in advance of the judge's proclivities. This is helpful not just to win the case but to make sure the hearing goes as smoothly as possible.
VTC is only faster when most of the ALJs in an office balk and refuse to travel.
ReplyDeleteVTC is awful even if it is better than it was 10 years ago.
Those of us who have spent years as litigators as well as claimants' reps know very well the actual human factors going into a live hearing as opposed to VTC. The first time I meet a client in my office, I can determine a lot about the limitations by observation as they ambulate and then sit throughout an involved interview. So can an experienced ALJ. In live hearings the ALJ has been seated and is watching as I usher in my client. At VTCs, the reporter ushers us in and seats my client prior to the ALJ appearing on screen--the ALJ does not have the opportunity to observe some very obvious limitations. Anyone experienced at cross-examination also realizes the value to close visual examination of experts or claimants (since so much is based upon their "credibility.") The detail needed has often been lacking in VTCs. Although my percentage wins have been similar, I know that some of my clients' cases were awarded with thinner evidence because the ALJ was impressed by their verbal testimony--and experts tell us that 55% of human communication is by body language and facial expression. From doing major criminal and some civil cases, I agree with that. VTC does not give fair due process to claimants.
ReplyDeleteGet realistic people! To the “stuffed suits” in FC and Baltimore, claimants, reps, and employees are just data points. They dont give one whit about you or your well-being. They care about the data and how to spin it to Congress. Dehumanizing you and all the people involved in the process is absolutely essential to dismantling the “administrative state.” SSA management is just pandering to that ethos now.
ReplyDeleteWe deal with VTC hearings, and often it makes little difference. But sometimes you need the option of a face to face hearing. Also, the optics aren't uniform. In one office, I might as well do the hearing by phone and in another they are seeing more than they could in person. We need to keep it as it is. The SSA appeals process needs to be maintained as other administrative agencies and not as a dumping ground for the perceived least important among us, disability claimants. I hope there are lots of comments objecting to this.
ReplyDeleteTo supplement my earlier comment, there was an ALJ, now long retired, who would sit stony-faced and hardly ever ask a question. A few years before he retired, I learned from someone who knew him that he was nearly deaf. Learning that helped me win cases with him, as I raised my voice and warned my clients to do the same. I guess that he appreciated not having to take the time to review tapes or the record before making his final decision.
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