SSA Enacts Rule Maintaining Video Hearing Opt-Out, Making Telephone Witnesses and Interpreters the D

SSA issued a final rule on “Setting the Manner for the Appearance of Parties and Witnesses at a Hearing” on December 18, 2019. The final rule, which preserves claimants’ rights to opt out of video hearings, was described in detail in the December 2019 issue of the Forum.

The revised 20 CFR §§404.936 and 416.1436, which went into effect on January 17, 2020, say “We will generally direct any person we call as a witness, other than you or any other party to the hearing, including a medical expert or a vocational expert, to appear by telephone or by video teleconferencing.” Exceptions exist when “[t]elephone or video teleconferencing equipment is not available to conduct the appearance;” SSA determines that “use of telephone or video teleconferencing equipment would be less efficient than conducting the appearance in person;” or SSA finds “facts in your particular case that provide a good reason to schedule this individual’s appearance in person.”

Some NOSSCR members have expressed concern that this will cause problems when medical and vocational experts and interpreters are scheduled to appear by telephone and technical difficulties occur. In the prefatory matter to the final rule, SSA says “we issued reminder instructions to all hearing office managers to place calls to experts using the video equipment. Additionally, we require expert witnesses to have a landline telephone connection, which should minimize any connection issues that may be associated with wireless calls. If an expert witness did not comply with our expectations and requirements for hearings testimony, we would address those compliance issues as we do now, in a manner separate and apart from this final rule. Similarly, we already require expert witnesses to properly protect PII, and any issues related to this concern would not be affected by this final rule.”

SSA also updated HALLEX on January 21 to reflect the changes to the regulations. Transmittal notice I-2-232 explaining the changes to HALLEX sections is available here. Overall, the changes shift the decision about whether a hearing should be held in person, by video, or by telephone, as well as the manner of appearance for experts and other witnesses, from the ALJ who will be conducting the hearing to OHO management.

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