Proposed VTC Opt-Out Rejected

Empire Justice Center January 31, 2020

In late 2018, Social Security Administration (SSA) proposed regulatory changes in “Setting the Manner for the Appearance of Parties and Witnesses at a Hearing,” notably focusing on video hearings and proposing that claimants would no longer have the right to opt out of a video hearing.  SSA recently issued  final rules on December 18, 2019.  They are remarkable in that they ultimately preserved a claimant’s right to opt out of a video hearing.  According to the SSA, the reversal was based on comments indicating an “overwhelming preference” for the current policy.

Indeed, the proposed elimination of the opt out option prompted significant concern and opposition, including from many DAP advocates who focused particularly on the need to maintain the “opt out” rule.  Several lawmakers also expressed their opposition.

The new regulations are effective January 17, 2020.  Note that the agency now does have the right to issue a corrected or updated notice of hearing closer in time to the hearing so long as it is at least 20 days in advance of the scheduled hearing.  Those notices will not change the date of the hearing (so the 75-day notice period does not apply) and will typically highlight a change or update in the expert scheduled to testify or on rare occasion the name of the ALJ who will handle the case.

Please always check such notices and clarify what exactly is being changed and whether you have to respond.  Any change to the actual hearing date will still have to comply with the 75-day rule unless that was waived.

In the final rule SSA adopted its proposal to “generally direct any person we call as a witness,” except the claimant or other party to the hearing, to appear by telephone.  This was also strongly opposed by advocates but the agency asserts that it has policies to address many of the problems complained of with respect to telephonic expert testimony.

SSA’s decision to preserve the claimant’s right to opt out of video is a nice win for claimants and a reminder of how important it is to follow any proposed regulatory changes and participate in the comment period.  It is especially helpful to be reminded of this as we face this month a set of very harmful changes proposed changes to the CDR process.