PWDF News

PWDF Submits Public Comments to the Social Security Administration (SSA) on Proposed Regulations that Would Eliminate Claimants’ Ability to Choose an In-person Disability Hearing

By: Steven Bruce, PWDF Legal Director

In November 2018, the SSA proposed rules that would eliminate claimants’ choice in the method of appearing at disability hearings. [¹] Claimants may attend their disability hearings in person, by videoconference (VTC), and, in specified limited circumstances, by telephone. Currently, the SSA chooses whether each hearing will be held in person or by VTC; claimants then may opt out of appearing by VTC and have an in-person hearing if they object to VTC. To opt-out of VTC, claimants “must object to VTC within 30 days after receiving a notice acknowledging receipt of their hearing request, unless they had good cause for failing to meet that deadline.” [²] To improve the efficiency of the hearing process, the SSA is now proposing to eliminate claimants’ ability to opt out of VTC, instead requiring all claimants to appear at hearings in the manner the SSA chooses, without objection.

As a part of the rulemaking process, PWDF submitted public comments to the SSA, in which we said that the rule needs to have a provision for claimants to opt-out of appearing by the manner chosen by the SSA for cause, depending on the nature of the disability. For example, people with certain mental, intellectual, and/or developmental delay disabilities may have communication barriers that could affect their credibility determinations by the administrative law judges (ALJs) or other reviewers and they should have the ability to opt-out of VTC in favor of attending the hearing in person. [³]

The SSA and other federal agencies have been moving away from holding live hearings and towards holding hearings by VTC and teleconference as part of a national move to improve the efficiency of the hearing process and cut costs. [⁴] For example, in some areas, the Department of Health and Human Services now only allows claimants to have their hearings by teleconference unless VTC is demanded.

Claimants should be aware of the potential risk of due process violations that may arise from agency streamlining. For example, in the past, the SSA recouped overpayments to Social Security disability beneficiaries without first conducting a hearing at which the beneficiary could object. In 1979, the US Supreme Court held that Social Security disability recipients who filed a written request for waiver of overpayment were entitled to a hearing before the SSA recouped the overpayment. (Califano v. Yamasaki, 442 U.S. 682 (1979).) In contrast, the SSA states that their policy is to offset retroactive benefits they owe claimants by any alleged overpayments to the claimant. PWDF has told the SSA that, since Yamasaki in 1979, this process would abrogate the claimant’s due process right to contest the overpayment.

While improving efficiency and cutting costs are laudable, and perhaps necessary, goals, the SSA and other federal agencies must ensure that achieving these goals does not lead to violations of claimants’ due process rights.

PWDF Profile

Who We Are

People With Disabilities Foundation is an operating 501(c)(3) nonprofit organization based in San Francisco, California, which focuses on the rights of the mentally and developmentally disabled.

Services

Advocacy: PWDF advocates for Social Security claimant’s disability benefits in eight Bay Area counties. We also provide services in disability rights, on issues regarding returning to work, and in ADA consultations, including areas of employment, health care, and education, among others. There is representation before all levels of federal court and Administrative Law Judges. No one is declined due to their inability to pay, and we offer a sliding scale for attorney’s fees.

Education/Public Awareness: To help eliminate the stigma against people with mental disabilities in society, PWDF’s educational program organizes workshops and public seminars, provides guest speakers with backgrounds in mental health, and produces educational materials such as videos.

Continuing Education Provider: State Bar of California MCLE and Commission of Rehabilitation Counselor Certification.