The new regulation is similar to the current Title II provision in C.F.R. section 404.506 (new section 416.557). Under the new rule, both Title II and SSI personal conferences could be held by telephone or video conference.
The revision in the rule was undertaken based on the success of the similar procedure applied in Medicare Part D subsidy appeals. Prior to this, personal conferences were conducted face to face.
20 CFR sections 416.1435 and 404.935 currently provide that "if possible", evidence to be considered at a hearing should be submitted to the ALJ when the hearing is requested or within 10 days of filing the request. Further these regulations state that a claimant should exert "every effort" to supply material evidence to the ALJ by the time of hearing.
Many are opposed to these proposed changes to the regulations, which would require that all evidence must be submitted within 5 business days of the hearing.
In addition, if the claimant gives the evidence to the ALJ less than 5 business days prior to the hearing or at the hearing, it will be considered late and the ALJ may decline to accept the evidence unless the claimant shows as follows:
1. It was the fault of the Social Security Administration
2. The agency’s action had misled the claimant.
3. The claimant has a physical, mental, educational, or linguistic limitation which prevent him from submitting evidence at an earlier time
4. An unusual, unexpected and unavoidable circumstance beyond the claimant’s control has prevented him from submitting the evidence within the deadline
Opposition to the new rules claimed the proposed changes ‘restrict the submission of evidence’ and violates the Social Security Act.
Further, most claimants hold that the proposed changes are unfair and had caused the backlog in most cases. They said it is unfair to reject what may be critical evidence based only on the grounds that it is late by a matter of days.
Under current law, the claimant has a right to a hearing with a decision based on "evidence adduced” at the hearing. 42 U.S.C. section 405(b)(1).
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