New Regs On Setting the Manner of Appearance of Parties and Witnesses at Hearings

     The Social Security Administration has posted final rules on Setting the Manner of Appearance of Parties and Witnesses at Hearings. These formalize the procedures already in place allowing claimants the option of either an in person, video or telephone hearing. 

    The pandemic changed the Social Security Administration in many ways. This may be the most enduring change.

Numbers Please

      The common wisdom is that claimants receive the same decision whether their hearing is in person, over the telephone and by video but do we really know? We think we know that the rate at which claimants were approved did not decline, at least to a significant extent, when the pandemic began and the switch was made to telephone hearings but do we know this for sure? I don't recall ever seeing any numbers from the Social Security Administration. A 2% difference probably wouldn't be enough to be noticeable without numbers from a database but a 2% change is not insignificant for a claimant. For that matter, numbers from the beginning of the pandemic are not the same as numbers from the current environment in which claimants can choose the method, although maybe "choose" should be in quotes since many law firms and other representing claimants -- and not just national firms -- always advise phone or video, mainly because it's more convenient for them. I doubt that the differences between phone, video and in person are great but we ought to get the numbers. 

    I have to say, though, that there will be confounding elements to the numbers, if we ever see them. In person is now the default mode. That's where a claimant ends up if he or she doesn't make a choice but unresponsive claimants certainly get denied at a higher rate than claimants who choose a method for their hearing. Also, the selection of video is one generally made by better educated claimants. Their chances of success may be different than for less well educated claimants who can only do telephone hearings. Yes, many, perhaps most, Social Security disability claimants lack the technical skills to download an app, register with the app and then access the app when the time comes for their hearing. There's also the problem that those who live in small towns and rural areas are more likely to select telephone or video since they have to travel farther for an person hearing than those who live in urban areas. Rural and urban claimants don't necessarily get approved at the same rate. Rural claimants, on average, have lower educational levels and less access to health care than their urban cousins.

Making It Official

     The Social Security Administration has posted a Notice of Proposed Rule-Making (NPRM) in the Federal Register to make official the availability of telephone and video hearings in Social Security cases.

Phone And Video Hearings Not Going Away

     Not that there was any doubt, but Social Security has decided to make telephone and video hearings a permanent option.

    This is extremely convenient for "national" firms representing disability claimants.

Trying To Cram Telephone/Video Hearings Down The Throats Of Claimants?

     Yesterday I received word through the National Organization of Social Security Claimants Representatives (NOSSCR) that the number of hearings Social Security has scheduled for July and August is down more than 30%. We are told that they will try to schedule more hearings if we'll agree to hearings being held without receiving the notice period required by the agency's regulations and agree that the hearings be held either by telephone or video. 

    I've got three questions:

• Why has the agency scheduled so many fewer hearings this summer? It's not like they're run out of cases to schedule.
• If the problem were merely scheduling, why is it necessary to put pressure on claimants to accept telephone and video hearings? If you're doing in person hearings, you're doing in person hearings.
  
• Will there be a continuing effort to cram telephone and video hearings down the throats of destitute claimants by scheduling those hearings far more quickly?
  

Reopening Plan

      Vague though it may be, Social Security has released its reopening plan. It certainly allows many employees to continue working from home every day. No one has to come into the office daily.

     I don't know how this is going to work. I'm pretty sure that there will be be far, far too much demand for in-person service at the field offices to allow field office employees to work from home three days a week. How do ALJs conduct all the hearings they are supposed to conduct coming into the office one day a week? Things I've read suggest that many ALJs think that most claimants will continue to accept telephone and video hearings in the future. That's incredibly naive. I don't care how wonderful you think telephone or video hearings are. I know better. My opinion and that of my clients matter. The self-serving opinions of public servants don't matter in this instance. Cramming video hearings down the throats of unwilling claimants won't be politically feasible after the pandemic is over. We're getting back to something like normal or there's going to be hell to pay.

Video Hearing Stats

      Social Security has posted numbers showing how many video hearings it has held recently. These are hearings where the claimant is at home connecting via a laptop, tablet computer or cell phone. The numbers are confusing since it includes a column purporting to show the number of in-person hearings being held but that's not the case. No in-person hearings have been held since March. Maybe that column is actually the number of telephone hearings? 

     Obviously, this is very uneven. I don't know what accounts for some offices holding no video hearings while others have held many video hearings.

     I wish that the agency would show totals per region and nationally.

 Hearing Office                                  In-person(?)   Video    Total

AKRON OH	385	0	385
ALBANY	252	88	340
ALBUQUERQUE	204	133	337
ALEXANDRIA	274	8	282
ATLANTA DOWNTOWN	432	35	467
ATLANTA NORTH	314	110	424
BALTIMORE	394	31	425
BILLINGS	114	79	193
BIRMINGHAM	583	2	585
BOSTON	315	0	315
BRONX	232	0	232
BUFFALO	140	17	157
CHARLESTON SC	310	0	310
CHARLESTON WV	264	0	264
CHARLOTTE	408	23	431
CHARLOTTESVILLE	67	70	137
CHATTANOOGA	261	145	406
CHICAGO	351	18	369
CINCINNATI	331	3	334
CLEVELAND	392	3	395
COLORADO SPRINGS	131	120	251
COLUMBIA MO	53	176	229
COLUMBIA SC	462	0	462
COLUMBUS	232	47	279
COVINGTON GA	251	7	258
CREVE COEUR	325	8	333
DALLAS DOWNTOWN	319	43	362
DALLAS NORTH	380	62	442
DAYTON	163	0	163
DENVER	156	199	355
DETROIT	248	76	324
DOVER	121	0	121
ELKINS PARK	266	76	342
EUGENE	95	159	254
EVANSTON	126	46	172
EVANSVILLE	175	51	226
FARGO	15	189	204
FAYETTEVILLE NC	295	7	302
FLINT	202	92	294
FLORENCE	95	137	232
FORT MYERS FL	250	0	250
FORT SMITH	175	66	241
FORT WAYNE	187	0	187
FORT WORTH	377	2	379
FRANKLIN TN	280	117	397
FRESNO	108	0	108
FT LAUDERDALE	483	15	498
GRAND RAPIDS	272	49	321
GREENSBORO	294	0	294
GREENVILLE	339	24	363
HARRISBURG	212	105	317
HARTFORD	231	1	232
HATTIESBURG	231	92	323
HONOLULU	80	0	80
HOUSTON NORTH	340	189	529
HOUSTON WEST	430	29	459
HUNTINGTON WV	177	0	177
INDIANAPOLIS	484	16	500
JACKSON MS	269	0	269
JACKSONVILLE	494	0	494
JERSEY CITY	271	0	271
JOHNSTOWN	87	0	87
KANSAS CITY	254	167	421
KINGSPORT	252	43	295
KNOXVILLE	202	193	395
LANSING	350	2	352
LAS VEGAS	245	12	257
LAWRENCE MA	81	85	166
LEXINGTON	312	0	312
LITTLE ROCK	350	0	350
LIVONIA MI	279	0	279
LONG BEACH	95	49	144
LONG ISLAND	235	0	235
LOS ANGELES DOWNTOWN	223	0	223
LOS ANGELES WEST	158	111	269
LOUISVILLE	299	55	354
MACON	228	0	228
MADISON	34	117	151
MANCHESTER	53	173	226
MCALESTER	30	96	126
MEMPHIS	230	10	240
METAIRIE	182	1	183
MIAMI	293	24	317
MIDDLESBORO	104	0	104
MILWAUKEE	399	66	465
MINNEAPOLIS	306	0	306
MOBILE	477	0	477
MONTGOMERY	386	1	387
MORENO VALLEY	157	63	220
MORGANTOWN	178	12	190
MT PLEASANT MI	113	36	149
NASHVILLE	217	12	229
NEW HAVEN	178	10	188
NEW ORLEANS	231	63	294
NEW YORK	239	0	239
NEW YORK VARICK	119	1	120
NEWARK	359	1	360
NHC ALBUQUERQUE	0	280	280
NHC BALTIMORE	61	416	477
NHC CHICAGO	21	532	553
NHC FALLS CHURCH	0	474	474
NHC ST LOUIS	20	286	306
NORFOLK	161	78	239
NORWALK	292	0	292
OAK BROOK	333	1	334
OAK PARK	282	18	300
OAKLAND	271	0	271
OKLAHOMA CITY	319	152	471
OMAHA	95	129	224
ORANGE	270	0	270
ORLAND PARK	365	36	401
ORLANDO	512	7	519
PADUCAH	155	66	221
PASADENA	141	0	141
PEORIA	267	0	267
PHILADELPHIA	151	186	337
PHILADELPHIA EAST	122	142	264
PHOENIX	248	61	309
PHOENIX NORTH	141	103	244
PITTSBURGH	163	46	209
PONCE	64	39	103
PORTLAND ME	56	51	107
PORTLAND OR	372	68	440
PROVIDENCE	123	2	125
QUEENS	187	0	187
RALEIGH	421	0	421
RENO	66	0	66
RICHMOND	201	134	335
RIO GRANDE VALLEY TX	59	64	123
ROANOKE	109	87	196
ROCHESTER	125	0	125
SACRAMENTO	357	51	408
SALT LAKE CITY	226	0	226
SAN ANTONIO	323	384	707
SAN BERNARDINO	206	0	206
SAN DIEGO	401	4	405
SAN FRANCISCO	162	1	163
SAN JOSE	95	0	95
SAN JUAN	183	0	183
SAN RAFAEL	73	0	73
SANTA BARBARA	130	3	133
SAVANNAH	234	12	246
SEATTLE	262	92	354
SEVEN FIELDS	95	152	247
SHREVEPORT	110	125	235
SOUTH JERSEY	279	0	279
SPOKANE	249	28	277
SPRINGFIELD MA	87	0	87
SPRINGFIELD MO	133	121	254
ST LOUIS	126	80	206
ST PETERSBURG FL	261	0	261
STOCKTON	194	0	194
SYRACUSE	210	161	371
TACOMA	133	103	236
TALLAHASSEE FL	309	0	309
TAMPA	634	0	634
TOLEDO OH	223	65	288
TOPEKA KS	76	50	126
TUCSON	270	43	313
TULSA	267	2	269
TUPELO	238	0	238
VALPARAISO IN	332	0	332
WASHINGTON	268	0	268
WEST DES MOINES	131	110	241
WHITE PLAINS	224	1	225
WICHITA	49	126	175
WILKES BARRE	185	124	309

Some Video Hearing Information

     I had a telephone call yesterday with Sheila Lowther, the Regional Chief Administrative Law Judge for the Social Security’s Region IV, concerning video hearings. She agreed for me to post what she was saying on this blog. I hope this information is also going out through internal channels, I'm happy to provide the information but Social Security employees shouldn't have to hear it from me.

    Social Security is starting to roll out video hearings on a limited basis. They’re looking for critical need cases where the claimant has declined a telephone hearing. They're starting with Hearing Office Chief Administrative Law Judges. I told her that in critical cases I’ve been strongly advising my clients to accept telephone hearings so there would be no delay. That means that I won’t have any cases for video hearings unless I start declining telephone hearings for critical cases which I'm reluctant to do because I have no guarantee of a video hearing in the near future. I expect that most Social Security attorneys would be in the same boat. She said they will use the Microsoft Teams platform and that it will work from any device. I was assured that they will have enough bandwidth for this. This has been a concern for me and others. There's a noticeable decline in audio quality when additional callers are added to the telephone hearings they’re doing now suggesting to me that even this old technology might strain Social Security's systems. I hope that that issue has nothing to do with bandwidth. Judge Lowther indicated that they want to fully roll this out as soon as possible but she didn’t predict when that might be. 

     By the way, it seemed important to Judge Lowther that Administrative Law Judges will appear against an artificially generated backdrop approximating one of the agency’s hearing rooms. I suppose that may be important to ALJs but it really doesn’t matter to me. My job is to pay no attention to such things and to concentrate on the substance of what’s happening.

When Do The Video Hearings Begin?

     Social Security has issued an official announcement about video hearings. Interestingly, the announcement talks only about video hearings beginning this fall. A November date isn't mentioned. November is the date that was mentioned to NOSSCR recently. This may mean nothing but people were already asking whether November meant the first of November. The term "fall" covers a lot of ground. Perhaps, it's a sign that this won't be rolled out all at once or that Social Security still hasn't decided when they'll start this.

We Need To Make Sure This Works For Everyone

      I posted yesterday that the Microsoft Teams app that Social Security plans to use to hold Administrative Law Judge hearings wasn't available for my desktop and therefore probably wasn't available for laptops either. I received responses saying that it certainly was available to desktops. Take a look at this screenshot and tell me that it's available to everyone at the moment:

     Perhaps it's included in recent versions of the Microsoft Office Suite but I don't think people should have to buy that to participate in these hearings. Maybe there's some other explanation but the page shown above says what it says and the fact that you haven't gotten such a message doesn't make what I'm seeing an illusion. We need to make sure this works for everyone.

Social Security Planning To Use Platform For Video Hearings That Doesn't Currently Work With Most Laptops

     Beginning in November Social Security is planning to use the Microsoft Teams app for Administrative Law Judge video hearings during the pandemic but I see this message when I go to the Microsoft Teams website "Teams for your personal life is only available for iOS and Android. Desktop and web coming soon." This would rule out Windows laptops, which is most of them. You can do these hearings with handheld cellphones but that's not going to give you a stable image. Also, while they’re not heavy, holding up a cell phone for an hour could become tiring. I hope they get this sorted out by November.

I'll Have To Put On A Suit!

      I understand from the National Organization of Social Security Claimants Representatives (NOSSCR) that Social Security is hoping to offer video hearings to claimants from their homes or their attorneys' offices starting as early as November.

Why Can't Attorneys Use Facetime Or Viber To Do Video Hearings?

     The Covid-19 emergency isn't going away soon. The Department of Health and Human Services is planning based upon an assumption it will last 18 months or more.

     Social Security has allowed attorneys to do video hearings from their offices but only if they install expensive video equipment. Very few have done so.

     Why don't we allow attorneys to use Facetime or Viber to appear with their clients at these hearings? Skype doesn't but Facetime and Viber have end-to-end encryption. They're far more secure than the telephone calls we'll be using otherwise. At least from out end this can be implemented quickly. Come on, we're in an emergency situation here!

Social Security Hearings In The Time Of Plague

     Social Security Administrative Law Judges are talking about holding hearings by telephone. I don't even like video hearings. I understand the logic behind telephone hearings in the strange times we're in but I still hate the idea.

     In the past, Social Security was allowing attorneys to do video hearings from their offices but only if they installed expensive equipment. I don't want to go to that kind of effort and expense for something that's only going to last a few months. I'm wondering whether Social Security has the technical ability to allow attorneys to patch in using simple video technology such as Face Time. I could do that easily with no added expense -- myself and my client in my office with my iPad in front of us (no, that doesn't scare me) and the ALJ at OHO. Of course, that assumes the ALJ will go into his or her office to do the hearing.

Ability To Opt Out Of Video Hearings Preserved

     Social Security is publishing final rules tomorrow on Setting the Manner for the Appearance of Parties and Witnesses at a Hearing. The ability to opt out of video hearings is preserved.

Appropriations Bill Moves Forward With Many Directives For Social Security

     The House Appropriations Committee has reported out the bill that includes the appropriation for the Social Security Administration's operations. As expected, it includes a $300 million increase for Social Security. This is barely enough to keep up with inflation. The Senate bill is likely to be worse for Social Security.

     As usual, the Committee report on the bill includes a number of directives for the agency, which start at page 228 of the report. This year's bill includes a high number of these directives. Here's a list:

• Prepare report within 60 days on Administrative Law Judge selection;
• Include more information in Beneficiary Verification letters;
• Prepare report on negotiations with employee unions;
• Encourage proper consideration of headache disorders in determination of disability;
• Prepare update for Committee on agency's information technology modernization;
• Brief Committee on mailing paper statements;
• Prepare report on utilization of Social Security programs by persons suffering from muscular dystrophy;
• Prepare report on occupational information system project;
• Prepare proper research designs for all pilot projects and prepare a report on all such pilots;
• Prepare report within 180 days on improving Disability Determination Services process, including addressing the role of the reconsideration stage;
• Stop the proposal to charge fees for replacement Social Security cards;
• Stop pursuing the plan to consider social media postings in determining disability;
• Strongly urges agency to not proceed with plan for mandatory video hearings;
• Provide report within 90 days on strengthening vocational expert program;
• Strongly urges agency to not go forward with proposed regulations that would eliminate inability to communicate in English as factor in determining disability.

     One thing that didn't make this long list is a directive to strongly consider increasing the cap on fees that attorneys and others can charge for representing Social Security claimants.

Democrats Support In-Person Social Security Hearings

     From a press release:

Top Democrats responsible for Social Security policy in the House and Senate yesterday called on the Social Security Administration to withdraw a proposed rule that would limit the right of Americans to receive an in-person appeals hearing if their initial application for Social Security benefits is denied. Workers who are eligible to apply for these benefits have contributed to Social Security for years, paying into the program with each paycheck.

“This change would deprive millions of Americans of their constitutional right to due process and result in hearings which are less fair and less efficient. This proposal is harmful and not justified and we request that SSA withdraw this proposed rule,” the members wrote. 

The letter was signed by House Ways and Means Committee Chairman Richard E. Neal, (D-MA), House Ways and Means Social Security Subcommittee Chairman John Larson (D-CT), House Ways and Means Worker & Family Support Subcommittee Chairman Danny K. Davis (D-IL), Senate Finance Committee Ranking Member Ron Wyden (D-OR), and Senate Finance Social Security Subcommittee Ranking Member Sherrod Brown (D-OH).

In the letter, the members outlined why video hearings are inferior to in-person hearings. In a video hearing, the administrative law judge (ALJ) may be limited in their ability to thoroughly evaluate the impact that an individual’s impairments have on their ability to work, and disabled individuals may not be able to fully and effectively present their case. The Social Security Administration has a large backlog of individuals awaiting an appeal hearing, and the delays cause significant harm to individuals who have worked years to earn their Social Security benefits but have suffered a career-ending injury or illness. ...

The full letter can be found here.

Social Security Proposing Mandatory Video Hearings

     From a Notice of Proposed Rule Making (NPRM) that the Social Security Administration will publish in the Federal Register tomorrow:

We propose to revise our rules to explain that the agency retains the right 

to determine how parties and witnesses will appear at a hearing before an administrative law judge (ALJ) at the hearing level of our administrative review process, and we will set the time and place for the hearing accordingly. ... 

We propose that parties to a hearing will not have the option to opt out of appearing by the manner of hearing we choose.  ...

     This is a proposal. The public can comment on it. Congress can’t prevent its adoption but can certainly weigh in on it. The new Democratic  majority in the House could make Andrew Saul pay a price for going ahead with it. Expect a House Social Security Subcommittee hearing on this issue next year.

The Election Results: Effects On Proposed Regulations

     On October 29 the Office of Management and Budget (OMB) approved the publication of proposed new regulations that would allow the Social Security Administration to force video hearings on claimants who don't want them. Normally, once OMB approves the publication of proposed regulations, Social Security publishes them in the Federal Register within a week or two. It hasn't been that long but this one hasn't yet been published.

     I wonder whether the Acting Commissioner of Social Security will sign off on publishing this proposal now. The incoming Democratic majority on the House Social Security Subcommittee is likely to be strongly opposed to this proposal. In my experience, the Social Security Administration has always been highly responsive to the House Social Security Subcommittee, far more responsive than to the White House or the Senate, neither of which is interested in getting down in the weeds of Social Security issues. Perhaps the Acting Commissioner would prefer to leave this hanging until there's a confirmed Commissioner to make the decision. We’ll see.

     For that matter, there's a proposal to remove inability to communicate in English as an education category in the grid regulations that's pending OMB review. Assuming OMB approves it, will Social Security ever publish it? More important, proposed changes to the musculoskeletal listings have already been published. The comments to that proposal may get much more serious consideration now.

Social Security To Propose Mandatory Video Hearings

     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:

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.

     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.