Amendment to the Attorney Advisor Program, 11349-11353 [E8-3945]
Download as PDF
<![CDATA[
Federal Register / Vol. 73, No. 42 / Monday, March 3, 2008 / Rules and Regulations
this service bulletin,’’ this AD requires
compliance within the corresponding
specified time relative to August 24, 2007.
(j) Where the alert service bulletin specifies
a compliance time relative to the ‘‘date of
issuance of airworthiness certificate,’’ this
AD requires compliance within the
corresponding time relative to the date of
issuance of the original standard
airworthiness certificate or the date of
issuance of the original export certificate of
airworthiness.
(k) If any crack is found during any
inspection required by this AD, and the alert
service bulletin specifies to contact Boeing
for appropriate action: Before further flight,
repair the crack using a method approved in
accordance with the procedures specified in
paragraph (q) of this AD.
New Requirements of This AD
One-Time Inspection/Repair for Airplanes
for Which There Are No Conclusive
Inspection Records
(l) For airplanes for which there are no
conclusive records showing no loose or
missing fasteners during previous
inspections done in accordance with the
requirements of AD 2007–16–13, amendment
39–15152; or AD 2005–12–04, amendment
39–14120: Do the actions specified in
paragraphs (l)(1) and (l)(2) of this AD, at the
times specified in those paragraphs, as
applicable.
(1) Within 90 days after the effective date
of this AD, do the actions specified in
paragraph (g) of this AD, except as required
by paragraph (k) of this AD.
(2) At the applicable times specified in
paragraph 1.E., ‘‘Compliance,’’ of the alert
service bulletin, do the actions specified in
paragraph (h) of this AD, except as required
by paragraphs (j) and (m) of this AD. And,
before further flight, do all applicable related
investigative actions and repairs, by doing all
the actions specified in Parts I and II of the
Accomplishment Instructions of the alert
service bulletin, except as required by
paragraph (k) of this AD.
rmajette on PROD1PC64 with RULES
Exception To Alert Service Bulletin
Procedures
(m) Where the alert service bulletin
specifies a compliance time relative to ‘‘the
date on this service bulletin,’’ this AD
requires compliance within the
corresponding specified time relative to the
effective date of this AD.
Credit for Actions Done Using Previous
Service Information
(n) Except for the actions specified in
paragraph (l) of this AD, actions done before
the effective date of this AD in accordance
with Boeing Service Bulletin 757–54A0047,
Revision 1, dated March 24, 2005; or Boeing
Alert Service Bulletin 757–54A0047,
Revision 2, dated January 31, 2007; are
considered acceptable for compliance with
the corresponding actions specified in this
AD.
(o) An inspection and corrective actions
done before June 29, 2005 (the effective date
of AD 2005–12–04), in accordance with
paragraph (b) or (c), as applicable, of AD
2004–12–07, are acceptable for compliance
VerDate Aug<31>2005
14:18 Feb 29, 2008
Jkt 214001
with the initial inspection requirement of
paragraph (h) of this AD.
11349
An Acceptable Method of Compliance With
Certain Requirements of AD 2004–12–07
(p) Accomplishing the actions specified in
this AD terminates the requirements
specified in paragraphs (b) and (c) of AD
2004–12–07.
Issued in Renton, Washington, on February
22, 2008.
Ali Bahrami,
Manager, Transport Airplane Directorate,
Aircraft Certification Service.
[FR Doc. E8–3928 Filed 2–29–08; 8:45 am]
BILLING CODE 4910–13–P
Alternative Methods of Compliance
(AMOCs)
SOCIAL SECURITY ADMINISTRATION
(q)(1) The Manager, Seattle Aircraft
Certification Office (ACO), FAA, has the
authority to approve AMOCs for this AD, if
requested in accordance with the procedures
found in 14 CFR 39.19.
(2) To request a different method of
compliance or a different compliance time
for this AD, follow the procedures in 14 CFR
39.19. Before using any approved AMOC on
any airplane to which the AMOC applies,
notify your appropriate principal inspector
(PI) in the FAA Flight Standards District
Office (FSDO), or lacking a PI, your local
FSDO.
(3) An AMOC that provides an acceptable
level of safety may be used for any repair
required by this AD, if it is approved by an
Authorized Representative for the Boeing
Commercial Airplanes Delegation Option
Authorization Organization who has been
authorized by the Manager, Seattle ACO, to
make those findings. For a repair method to
be approved, the repair must meet the
certification basis of the airplane, and the
approval must specifically refer to this AD.
(4) AMOCs approved previously in
accordance with AD 2004–12–07 are
approved as AMOCs for the corresponding
provisions of this AD.
(5) AMOCs approved previously in
accordance with AD 2005–12–04 are
approved as AMOCs for the corresponding
provisions of this AD.
(6) AMOCs approved previously in
accordance with AD 2007–16–13 are
approved as AMOCs for the corresponding
provisions of this AD.
20 CFR Parts 404 and 416
Material Incorporated by Reference
(r) You must use Boeing Alert Service
Bulletin 757–54A0047, Revision 3, dated
June 27, 2007, to perform the actions that are
required by this AD, unless the AD specifies
otherwise.
(1) On August 24, 2007 (72 FR 44753,
August 9, 2007), the Director of the Federal
Register approved the incorporation by
reference of this service information.
(2) Contact Boeing Commercial Airplanes,
P.O. Box 3707, Seattle, Washington 98124–
2207, for a copy of this service information.
You may review copies at the FAA,
Transport Airplane Directorate, 1601 Lind
Avenue, SW., Renton, Washington; or at the
National Archives and Records
Administration (NARA). For information on
the availability of this material at NARA, call
202–741–6030, or go to: https://
www.archives.gov/federal-register/cfr/ibrlocations.html.
PO 00000
Frm 00045
Fmt 4700
Sfmt 4700
[Docket No. SSA 2007–0036]
RIN 0960–AG49
Amendment to the Attorney Advisor
Program
Social Security Administration.
Final rule.
AGENCY:
ACTION:
SUMMARY: We are issuing this final rule
to adopt without change the interim
final rule we published on August 9,
2007, which temporarily modifies the
prehearing procedures we follow in
claims for Social Security disability
benefits and supplemental security
income (SSI) payments based on
disability or blindness. Under this final
rule, we are permitting certain attorney
advisors to conduct certain prehearing
proceedings, and where the
documentary record developed as a
result of these proceedings warrants,
issue decisions that are wholly favorable
to the parties to the hearing.
DATES: The interim rule published
August 9, 2007 is effective March 3,
2008.
FOR FURTHER INFORMATION CONTACT:
Marilyn Hull, Social Security
Administration, 5107 Leesburg Pike,
Falls Church, VA 22041–3260, 703–
605–8500 for information about this
notice. For information on eligibility or
filing for benefits, call our national tollfree number, 1–800–772–1213 or TTY
1–800–325–0778, or visit our Internet
site, Social Security Online, at https://
www.socialsecurity.gov.
SUPPLEMENTARY INFORMATION:
Electronic Version
The electronic file of this document is
available on the date of publication in
the Federal Register at https://
www.gpoaccess.gov/fr/.
Explanation of Changes
We are dedicated to providing highquality service to the American public.
Today and for the foreseeable future, we
face significant challenges in our ability
to provide the level of service that
disability benefit claimants deserve
because of the significantly increased
E:\FR\FM\03MRR1.SGM
03MRR1
rmajette on PROD1PC64 with RULES
11350
Federal Register / Vol. 73, No. 42 / Monday, March 3, 2008 / Rules and Regulations
number and complexity of these benefit
claims. Consequently, we are
temporarily modifying the procedures
we follow in the administrative law
judge (ALJ) hearings process in claims
for Social Security disability benefits
and SSI payments based on disability or
blindness. This temporary modification
will help us provide accurate and timely
service to claimants for Social Security
disability benefits and SSI payments
based on disability or blindness. With
this modification, we are permitting
certain attorney advisors to conduct
certain prehearing proceedings to help
develop claims and issue wholly
favorable decisions in appropriate
claims before a hearing is conducted.
For reasons we explain in the Public
Comments section of this preamble, we
expect that this modification will help
us to reduce the number of pending
cases at the hearing level. We intend to
monitor the program closely and to
make changes if it does not meet our
expectations.
This temporary modification applies
only to claims processed under parts
404 and 416 of our regulations; it does
not apply to claims processed under
part 405 of our regulations, which
concerns only disability claims filed in
the Boston region on or after August 1,
2006. Parts 404 and 416 of our
regulations concern disability cases in
every area outside the Boston region and
non-disability cases in every location.
Generally, when a claim is filed for
Social Security disability benefits or SSI
payments based on disability or
blindness, a State agency makes the
initial and reconsideration disability
determinations for us. An ALJ conducts
a hearing after we have made a
reconsideration determination. Under
this final rule, attorney advisors in our
hearing offices whom we designate may
conduct certain prehearing proceedings
and, where appropriate, issue decisions
that are wholly favorable to claimants
and any other party to the hearing.
Attorney advisors have performed
these duties in the past. On June 30,
1995, we announced final rules
establishing the attorney advisor
program for a limited period of 2 years.
60 FR 34126 (1995). The program’s
success prompted us to extend the
program several times, until it finally
ended in April 2001. (62 FR 35073 (June
30, 1997), 63 FR 35515 (June 30, 1998),
64 FR 13677 (March 22, 1999), 64 FR
51892 (September 27, 1999)).
The number of requests for hearings
that we have received has significantly
increased in recent years, and we expect
that trend to continue because of the
projected increase in the number of
disability claims as the baby boomers
VerDate Aug<31>2005
14:18 Feb 29, 2008
Jkt 214001
move into their disability-prone years.
In light of our current and projected
workload, we plainly must do
everything that we can to reduce the
number of cases awaiting a hearing.
This final rule is an important part of
our ongoing effort to decide cases more
efficiently and timely.
This final rule will allow us to
expedite the processing of cases
pending at the hearing level without
affecting a claimant’s right to a hearing
before an ALJ. The attorney advisor’s
conduct of certain prehearing
proceedings will not delay the
scheduling of a hearing before an ALJ.
If the prehearing proceedings are not
concluded before the hearing date, the
case will be sent to the ALJ unless a
decision wholly favorable to the
claimant and all other parties is in
process, or the claimant and all other
parties to the hearing agree in writing to
delay the hearing until the prehearing
proceedings are completed.
Prehearing proceedings may be
conducted by an attorney advisor under
this final rule if one of the following
criteria is met: New and material
evidence is submitted, there is an
indication that additional evidence is
available, there is a change in the law
or regulations, or there is an error in the
file or some other indication that a
wholly favorable decision could be
issued. We will mail the attorney
advisor’s decision to all parties. The
notice of decision will state the basis for
the decision and advise the parties that
an ALJ will dismiss the hearing request
unless a party requests to proceed with
the hearing within 30 days after the date
the notice of the decision of the attorney
advisor was mailed.
These procedures will remain in
effect for a period not to exceed 2 years
from the effective date of this final rule,
unless we terminate or extend them by
publication of a final rule in the Federal
Register.
Public Comments
On August 9, 2007, we published an
interim final rule with a request for
comments. (72 FR 44763). Although the
interim final rule became effective on
that date, we also provided the public
with a 60-day comment period, which
closed on October 9, 2007. We received
timely comments from one individual
and two professional organizations. We
carefully considered all the comments.
Because some of the comments were
lengthy, we have summarized and
paraphrased them below. However, we
have tried to present all of the
commenters’ views accurately and to
respond to all of the significant issues
raised by the comments that were
PO 00000
Frm 00046
Fmt 4700
Sfmt 4700
within the scope of this rule. We have
not responded to comments that were
outside the scope of the interim final
rule. The individual commenter and one
of the organizational commenters
supported the changes. We appreciate
this support.
In addition to submitting comments
on its own behalf, the second
organizational commenter also
included, within its comment letter,
comments made by individual ALJs in
its constituency. Although we refer
primarily to the comment letter from
this organization below, we did
carefully consider all of the comments
included in the organization’s letter,
and some of the comments we
summarize below are actually from
individual members of the organization.
Comment: The first organizational
commenter, which expressed strong
support for the changes, noted that the
changes should not negatively impact
the decisionmaking process for cases
that are heard by ALJs. The second
organizational commenter did not
support the interim final rule. This
commenter expressed concern that ALJ
productivity would fall. The commenter
said that we would be using our ‘‘most
experienced and gifted writers’’ to write
the easiest decisions, leaving the hardest
decisions to be written by our least
experienced staff. The second
commenter also referred to a 2002
General Accounting Office report
entitled ‘‘Disappointing Results From
SSA’s Efforts to Improve the Disability
Claims Process Warrant Immediate
Attention’’ (‘‘GAO report’’), indicating
that our own management had made the
same observation.1
This commenter also stated that we
had made a number of ‘‘unverified
programmatic assumptions,’’ including
that:
• The rule would not impose net
aggregate delay to claims processing and
would not exacerbate the aging of
pending claims,
• The rule would result in fully
developed claims ready for ALJ hearing,
and
• An ALJ, upon receiving a case the
attorney advisor determines should be
heard, would have little need to do
additional development of evidence or
prehearing review.
The commenter indicated that these
assumptions were contradicted by our
past experience, prior studies and
reports, and our current staffing needs.
The commenter believed that, given our
limited resources, there was an
1 GAO 02–322, February 27, 2002, available at
https://www.gao.gov/new.items/d02322.pdf. See p.
23.
E:\FR\FM\03MRR1.SGM
03MRR1
Federal Register / Vol. 73, No. 42 / Monday, March 3, 2008 / Rules and Regulations
rmajette on PROD1PC64 with RULES
‘‘unbridgeable gulf’’ between the case
processing realities we face and the
restoration of a temporary program that
the commenter believed would waste
resources.
Response: The primary purpose of the
attorney advisor program is to help us
process more efficiently the backlog of
cases we are facing at the hearing level,
given the realities of our current staffing
and budget. Commissioner Astrue has
recognized and testified in Congress that
ALJs are ‘‘achieving a record high
production rate,’’ yet backlogs continue
to grow at the hearing level.2 Plainly, we
need to take decisive steps to address
this situation.
This program is only one tool among
several we are now using, or planning
to use, to reduce the waiting time for
claimants who have requested
hearings.3 We believe that the attorney
advisor program is especially important
because it helps us to identify
individuals who are disabled and who
should not have to appear at a hearing
in order for us to decide their case.
Because of the provisions for
prehearing proceedings in §§ 404.942
and 416.1442 and in our internal
procedures implementing the attorney
advisor program, we expect that ALJs
will be able to decide more readily those
cases that attorney advisors review but
do not allow. This is because attorney
advisors will obtain more evidence in
some cases and those cases will be
ready for an ALJ hearing sooner than
they otherwise would be, and because
the attorney advisors will review and
recommend development of additional
evidence in others. The attorney
advisors will also provide ALJs with an
analysis of the issues in cases in which
they are unable to issue wholly
favorable decisions, which will assist
the ALJs who subsequently review the
case. Also, under this final rule, the
conduct of prehearing proceedings by
attorney advisors will generally not
delay the scheduling or holding of
hearings, unless a decision wholly
favorable to the claimant and all other
parties is in process, or the claimant and
all other parties to the hearing agree in
writing to delay the hearing until the
prehearing proceedings are completed.
Only certain attorney advisors are
permitted to participate in this program.
Our internal instructions provide that
2 Testimony before the Senate Finance
Committee, May 23, 2007, available at: https://
www.socialsecurity.gov/legislation/
testimony_052307.htm.
3 For our current, complete plan, see ‘‘Plan to
Reduce the Hearings Backlog and Improve Public
Service at the Social Security Administration,’’
September, 13, 2007, available at: https://
www.socialsecurity.gov/hearingsbacklog.pdf.
VerDate Aug<31>2005
14:18 Feb 29, 2008
Jkt 214001
only Hearing Office GS–13 Senior
Attorney Advisors, Supervisory
Attorney Advisors who are Hearing
Office Directors, Supervisory Attorney
Advisors who are Group Supervisors,
and attorneys at the GS–13 level and
above in the regional offices of our
Office of Disability Adjudication and
Review are authorized to issue fully
favorable decisions under the interim
final rule. These same individuals will
be authorized to issue decisions under
this final rule. Our internal operating
instructions also provide that the
attorney advisors who participate in this
program will continue to draft decisions
for ALJs, as assigned by local hearing
office management. Our instructions
also allow the management of each local
hearing office to decide the amount of
time attorney advisors will devote to the
adjudication of wholly favorable
decisions. We believe that these
modifications to the program are
improvements over the way we
administered the program from 1995 to
2001. Therefore, we anticipate that, with
these modifications, ALJs should have
sufficient qualified and experienced
staff to draft their decisions, conduct
research, and perform other tasks.
Nevertheless, we are aware that we
are shifting valuable resources to this
task, even if only part-time, and that
there is a potential that this shift will
affect ALJs’ ability to issue their
decisions. Based on our experience
using this procedure in the past, we do
not believe this will happen, but as we
noted earlier in this preamble, we
intend to monitor the program closely
and will make changes to it, including
ending it if necessary, if it does not meet
our expectations.
We address the additional, specific
concerns of the second organizational
commenter in the responses that follow.
Comment: The second organizational
commenter also expressed concern that
the interim final rule was intended to
‘‘pay down’’ the backlog. This
commenter also submitted a number of
individual ALJ comments and concerns
about allowance rates. Some individual
ALJs also believed that the allowance
rate would increase. One ALJ believed
that the outcomes would vary by office.
This ALJ stated that in offices in which
the attorney advisors are more
conservative than the ALJs, they would
waste time reviewing cases that they
would not allow, and the program
would have no beneficial effect and
would delay case processing. In offices
in which attorney advisors and the ALJs
are ‘‘similarly disposed to granting
certain cases without a hearing,’’ the
allowance rate would not change and
the program would again have no
PO 00000
Frm 00047
Fmt 4700
Sfmt 4700
11351
beneficial effect. In offices in which the
attorneys are ‘‘more sympathetic’’ to the
claimants than the ALJs, ‘‘many, many
cases’’ would be paid without merit.
Response: We do not intend by this
final rule to ‘‘pay down’’ the backlog of
cases awaiting a hearing, nor do we
expect the allowance rate to increase.
Rather, we are providing our hearing
offices with additional adjudicative
capacity to more quickly decide some
cases in which we can make a wholly
favorable decision without a hearing.
This will provide better service to
claimants and, we expect, will help us
to make faster decisions on all pending
hearing requests and to reduce the
number of cases in our hearing offices.
Therefore, we expect that the overall
allowance rate at the hearing level will
not change. The purpose of this program
is to issue decisions more quickly in
cases in which we can make a favorable
decision without the time and expense
of holding an ALJ hearing, and to
improve the efficiency of our hearing
office operations given our current
staffing and budget. As we explain in
more detail in response to another
comment below, we plan to carefully
monitor attorney advisor decisions for
quality to ensure that they are making
wholly favorable decisions only in
appropriate cases.
Comment: The same commenter
expressed concern about the accuracy,
quality, and legal sufficiency of attorney
advisor decisions. The commenter
referred to a statement in the 2002 GAO
report indicating that there were
‘‘mixed’’ findings on the accuracy of
attorney advisors’ decisions the first
time we implemented this program. The
commenter also referred to an internal
Agency report issued by our Office of
Quality Performance (OQP) in 2001,4
which found that decisions issued by
attorney advisors under the program
were supported by substantial evidence
78 percent of the time.
Response: We are aware of concerns
that were raised regarding the quality of
decisions made by attorney advisors
under our prior rule, and we intend to
vigorously monitor the quality of
attorney advisor decisions under this
final rule. We will randomly select
attorney advisor decisions for review by
OQP after they have been issued and the
decision has been effectuated. We will
also perform quality reviews of attorney
advisor decisions before they are issued.
We will share the information from
these reviews with our attorney advisors
and use it for training purposes to
continually improve the program.
4 In 2001, OQP was called the Office of Quality
Assurance and Performance Assessment.
E:\FR\FM\03MRR1.SGM
03MRR1
rmajette on PROD1PC64 with RULES
11352
Federal Register / Vol. 73, No. 42 / Monday, March 3, 2008 / Rules and Regulations
We must also put the data cited by the
commenter in perspective. The GAO
reported results from two studies: One
conducted in OQP and the other by the
Appeals Council. The reviews in OQP
were conducted by ALJs and reported
‘‘support’’ rates; that is, the rate at
which the reviewing ALJs agreed that
the attorney advisors’ decisions were
supported by substantial evidence. The
GAO indicated that ‘‘the quality of
decisions made by [attorney advisors]
generally increased over the period of
the initiative, though falling short of the
quality of decisions made by the
ALJs.’’ 5 However, in fact, while OQP
did report a support rate for attorney
advisor decisions of 78 percent, they
also reported a support rate for ALJ onthe-record decisions (that is, decisions
made based on the written information
in the case file without holding a
hearing) of 81 percent, essentially the
same as for attorney advisors. Moreover,
another Agency internal report issued
by OQP in December 2000 showed an
80 percent support rate for attorney
advisor decisions in fiscal year 2000.
The GAO reported that the study by the
Appeals Council indicated that the
quality of decisions made by attorney
advisors was ‘‘comparable’’ to those
made by the ALJs.6
Finally, we are confident that these
‘‘most experienced and gifted writers,’’
to use the commenter’s own description,
will produce legally sufficient
decisions.
Comment: The same commenter
reported an individual ALJ’s comment
asserting that during the first attorney
advisor program the lack of sufficient
attorneys to write the difficult decisions
for cases heard by ALJs resulted in a
case writing backlog, and that many
attorney advisors could not keep up
with the flow of cases to be reviewed.
Response: Although this final rule is
substantively the same as the rule we
published on June 30, 1995, our internal
procedures address current operational
issues, including our limited staff. They
provide each hearing office with the
flexibility to assign work to attorney
advisors according to the needs and
workloads of the office. Since our intent
is to use this program to help reduce the
backlog of cases and to provide better
and faster service to the public, we will
monitor it carefully and immediately
take action if we find that it is having
the effect the commenter was concerned
about—the opposite of what we hope to
achieve.
Comment: The same commenter
reported an individual ALJ’s comment
5 GAO
report, p. 23.
6 Id.
VerDate Aug<31>2005
14:18 Feb 29, 2008
Jkt 214001
that attorney advisors made the most
errors in cases involving mental
impairments and that such cases are
generally not ‘‘readily susceptible to onthe-record decisions.’’
Response: We have already noted that
we will carefully monitor the quality of
attorney advisor decisions, and will take
appropriate action if we find that there
are special problems with the
adjudication of cases involving mental
impairments. Otherwise, we do not
agree with the commenter. We believe
that there are no inherent features of
cases involving mental impairments that
would make them any less susceptible
to on-the-record decisions than any
other cases.
Comment: The same commenter
reported an individual ALJ’s concern
that attorney advisors would ‘‘waste a
lot of time’’ reviewing cases that will
not result in wholly favorable decisions.
Response: We do not agree that a
prehearing review of cases will be a
‘‘waste of time’’ even if the attorney
advisor is not able to make a wholly
favorable decision. Our internal
instructions for these rules permit
attorney advisors to obtain evidence
from the claimant or the claimant’s
representative and require them to
provide the ALJ with an analysis of the
issues in the case, including an
explanation of why a wholly favorable
decision could not be made on the
record. Our instructions also require the
attorney advisor to make
recommendations to the ALJ for
additional development of evidence to
complete the record. We believe that, far
from being a ‘‘waste’’ of time, these
actions will help ALJs to prepare cases
for a hearing and to more quickly decide
cases that require a hearing after
prehearing review.
Comment: The same commenter
reported individual ALJ concerns that
attorney advisor independence will be
compromised by managerial oversight,
performance evaluations, and
‘‘bonuses’’ received by attorney
advisors. The individual ALJs were also
concerned that the attorney advisor
program will ‘‘erode the integrity of the
independent due process hearing and
the role of the ALJ in that process.’’
Response: Our attorney advisors have
always been subject to ‘‘managerial
oversight,’’ and they will continue to be
under this final rule. We do not expect
the implementation of this final rule to
adversely affect their ability to perform
their jobs in an appropriate manner.
Regarding the integrity of the
independent due process hearing and
the role of the ALJ in that process, this
final rule augments the process by
authorizing attorney advisors to make
PO 00000
Frm 00048
Fmt 4700
Sfmt 4700
wholly favorable decisions in claims for
disability benefits when there is no need
for a hearing. Section 205(b) of the
Social Security Act (the Act) requires
the Commissioner to make findings of
fact, and decisions as to the rights of any
individual applying for a payment. The
Act further provides that, upon request
by any such individual (or upon request
by a wife, divorced wife, widow,
surviving divorced wife, surviving
divorced mother, surviving divorced
father, husband, divorced husband,
widower, surviving divorced husband,
child, or parent who makes a showing
in writing that his or her rights may be
prejudiced by any decision), the
Commissioner shall give the individual
reasonable notice and opportunity for a
hearing. The final rules explicitly
preserve the individual’s right to a
hearing which will be conducted by an
ALJ if the individual is dissatisfied with
the decision made by the attorney
advisor.
Finally, we note that similar concerns
were expressed in 1995. Our prior
experience using attorney advisors to
make decisions from 1995 to 2001
shows that concerns like those
characterized above were unfounded.
As was the case under our prior rules,
attorney advisors who are authorized to
conduct prehearing proceedings and
issue wholly favorable decisions under
the final rule will not conduct a hearing.
Hearings will continue to be conducted
by ALJs in appropriate cases.
Comment: The same commenter
reported an individual ALJ’s concern
that there would be an increased
potential for abuse, and even fraud,
since attorney advisors are not subject to
the same financial disclosure rules that
ALJs are.
Response: We do not believe that this
rule will increase the likelihood of fraud
or abuse because attorney advisors are
not required to submit financial reports.
We know of no fraud or abuse resulting
from the prior rules. However, we will
handle any alleged fraud or abuse under
our existing guidelines and procedures.
Comment: The same commenter
reported individual ALJs’ concerns that
ALJs would have to take on more
‘‘clerical functions,’’ and that ALJs ‘‘will
be forced to write more and more of
their own decisions.’’
Response: We do not intend for ALJs
to take on any additional ‘‘clerical
functions’’ under this final rule, and we
do not expect implementation of this
final rule to affect the ability of our
decision writers to write decisions on
behalf of the ALJs.
Comment: The same commenter
indicated that we had rushed to this
rule without asking for comments first.
E:\FR\FM\03MRR1.SGM
03MRR1
rmajette on PROD1PC64 with RULES
Federal Register / Vol. 73, No. 42 / Monday, March 3, 2008 / Rules and Regulations
Response: We disagree with the
commenter’s observation that we should
have first published a notice of
proposed rulemaking with respect to
this rule. We explained in detail in the
preamble to the interim final rule why
we determined that notice-andcomment rulemaking was both
unnecessary and contrary to the public
interest under the Administrative
Procedure Act (APA) (5 U.S.C.
553(b)(B)). Therefore, we properly
determined that we had good cause to
publish a final rule without requesting
prior public comment. (72 FR at 44764).
However, we also recognized that the
rule we published in August 2007
concerned a subject about which the
public was likely to be interested. As a
result, we made the rule we published
in August 2007 an interim final rule,
and we requested public comments
regarding the changes we made. Our
actions in this regard are consistent with
both the APA and good rulemaking
practice.
Comment: The same commenter made
a number of alternative
recommendations for us to consider
instead of the attorney advisor program,
such as the implementation of a
‘‘Government Representative Program.’’
The commenter also recommended
modifications to the attorney advisor
program.
Response: We did not adopt the
comments suggesting alternatives to the
attorney advisor program because they
were outside the scope of this
rulemaking proceeding. The other
comments addressed our internal
procedures rather than the substance of
the interim final rule. In our responses
to prior comments, we have discussed
our internal procedures, and explained
how we believe those procedures
provide adequate safeguards to address
the concerns that the commenter raised.
Comment: The same commenter
reported an individual ALJ’s
recommendation that the final rule
require that the attorney advisors be
limited to reviewing, developing the
record, and drafting recommended ‘‘on
the record’’ wholly favorable decisions
for an ALJ to either sign such decisions
or hear such cases.
Response: We did not adopt this
comment suggesting an alternative to
the attorney advisor program because it
is outside the scope of this rulemaking
proceeding.
Therefore, for all the reasons stated
above, we are adopting the interim final
rule without change.
VerDate Aug<31>2005
14:18 Feb 29, 2008
Jkt 214001
Regulatory Procedures
Executive Order 12866, as Amended
We have consulted with the Office of
Management and Budget (OMB) and
determined that this final rule meets the
criteria for a significant regulatory
action under Executive Order 12866, as
amended. Accordingly, it was subject to
OMB review. We also have determined
that this rule meets the plain language
requirement of Executive Order 12866,
as amended.
11353
Dated: January 23, 2008.
Michael J. Astrue,
Commissioner of Social Security.
Accordingly, the interim final rule
amending subpart J of part 404 and
subpart N of part 416 of chapter III of
title 20 of the Code of Federal
Regulations, which was published at 72
FR 44763 on August 9, 2007, is adopted
as a final rule without change.
I
[FR Doc. E8–3945 Filed 2–29–08; 8:45 am]
BILLING CODE 4191–02–P
Regulatory Flexibility Act
We certify that this final rule will not
have a significant economic impact on
a substantial number of small entities as
it affects only individuals. Therefore, a
regulatory flexibility analysis as
provided in the Regulatory Flexibility
Act, as amended, is not required.
Paperwork Reduction Act
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 73
[DA 08–378; MB Docket No. 07–165; RM–
11371]
Radio Broadcasting Services; Blanca,
CO
Federal Communications
Commission.
ACTION: Final rule.
This rule will impose no additional
reporting or recordkeeping requirements
requiring OMB clearance.
AGENCY:
Federalism Impact and Unfunded
Mandates Impact
SUMMARY: At the request of Kevin J.
Youngers, Channel 249C2 at Blanca,
Colorado, is allotted as the community’s
first local aural transmission service.
Channel 249C2 is allotted at Blanca,
Colorado with a site restriction of 6.6
kilometers (4.1 miles) east of the
community at coordinates 37–26–35 NL
and 105–26–29 WL .
DATES: Effective March 31, 2008.
ADDRESSES: Secretary, Federal
Communications Commission, 445
Twelfth Street, SW., Washington, DC
20554.
We have reviewed this rule under the
threshold criteria of Executive Order
13132 and the Unfunded Mandates
Reform Act and have determined that it
does not have substantial direct effects
on the States, on the relationship
between the national government and
the States, on the distribution of power
and responsibilities among the various
levels of government, or on imposing
any costs on State, local, or tribal
governments. This rule does not affect
the roles of the State, local, or tribal
governments.
(Catalog of Federal Domestic Assistance
Program Nos. 96.001, Social Security—
Disability Insurance; 96.002, Social
Security—Retirement Insurance; 96.004,
Social Security—Survivors Insurance;
96.006, Supplemental Security Income)
List of Subjects
20 CFR Part 404
Administrative practice and
procedure; Blind, Disability benefits;
Old-age, Survivors, and Disability
insurance; Reporting and recordkeeping
requirements; Social Security.
20 CFR Part 416
Administrative practice and
procedure; Aged, Blind, Disability
benefits; Public assistance programs;
Reporting and recordkeeping
requirements; Supplemental Security
Income (SSI).
PO 00000
Frm 00049
Fmt 4700
Sfmt 4700
FOR FURTHER INFORMATION CONTACT:
Victoria McCauley, Media Bureau, (202)
418–2180.
SUPPLEMENTARY INFORMATION: This is a
synopsis of the Commission’s Report
and Order MB Docket No. 07–165,
adopted February 13, 2008, and released
February 15, 2008. The Notice of
Proposed Rule Making proposed the
allotment of Channel 249C2 at Blanca,
Colorado. See 72 FR 46949, published
August 22, 2007. To accommodate the
allotment, United States CP, LLC,
permittee on Channel 249A at
Westcliffe, Colorado, has consented to
substitute Channel 269A for Channel
249A at Westcliffe. The full text of this
Commission decision is available for
inspection and copying during normal
business hours in the FCC’s Reference
Information Center at Portals II, CY–
A257, 445 Twelfth Street, SW.,
Washington, DC 20554. This document
may also be purchased from the
Commission’s copy contractor, Best
E:\FR\FM\03MRR1.SGM
03MRR1
]]>Agencies
[Federal Register Volume 73, Number 42 (Monday, March 3, 2008)]
[Rules and Regulations]
[Pages 11349-11353]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-3945]
=======================================================================
-----------------------------------------------------------------------
SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404 and 416
[Docket No. SSA 2007-0036]
RIN 0960-AG49
Amendment to the Attorney Advisor Program
AGENCY: Social Security Administration.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We are issuing this final rule to adopt without change the
interim final rule we published on August 9, 2007, which temporarily
modifies the prehearing procedures we follow in claims for Social
Security disability benefits and supplemental security income (SSI)
payments based on disability or blindness. Under this final rule, we
are permitting certain attorney advisors to conduct certain prehearing
proceedings, and where the documentary record developed as a result of
these proceedings warrants, issue decisions that are wholly favorable
to the parties to the hearing.
DATES: The interim rule published August 9, 2007 is effective March 3,
2008.
FOR FURTHER INFORMATION CONTACT: Marilyn Hull, Social Security
Administration, 5107 Leesburg Pike, Falls Church, VA 22041-3260, 703-
605-8500 for information about this notice. For information on
eligibility or filing for benefits, call our national toll-free number,
1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site,
Social Security Online, at https://www.socialsecurity.gov.
SUPPLEMENTARY INFORMATION:
Electronic Version
The electronic file of this document is available on the date of
publication in the Federal Register at https://www.gpoaccess.gov/fr/
index.html.
Explanation of Changes
We are dedicated to providing high-quality service to the American
public. Today and for the foreseeable future, we face significant
challenges in our ability to provide the level of service that
disability benefit claimants deserve because of the significantly
increased
[[Page 11350]]
number and complexity of these benefit claims. Consequently, we are
temporarily modifying the procedures we follow in the administrative
law judge (ALJ) hearings process in claims for Social Security
disability benefits and SSI payments based on disability or blindness.
This temporary modification will help us provide accurate and timely
service to claimants for Social Security disability benefits and SSI
payments based on disability or blindness. With this modification, we
are permitting certain attorney advisors to conduct certain prehearing
proceedings to help develop claims and issue wholly favorable decisions
in appropriate claims before a hearing is conducted. For reasons we
explain in the Public Comments section of this preamble, we expect that
this modification will help us to reduce the number of pending cases at
the hearing level. We intend to monitor the program closely and to make
changes if it does not meet our expectations.
This temporary modification applies only to claims processed under
parts 404 and 416 of our regulations; it does not apply to claims
processed under part 405 of our regulations, which concerns only
disability claims filed in the Boston region on or after August 1,
2006. Parts 404 and 416 of our regulations concern disability cases in
every area outside the Boston region and non-disability cases in every
location.
Generally, when a claim is filed for Social Security disability
benefits or SSI payments based on disability or blindness, a State
agency makes the initial and reconsideration disability determinations
for us. An ALJ conducts a hearing after we have made a reconsideration
determination. Under this final rule, attorney advisors in our hearing
offices whom we designate may conduct certain prehearing proceedings
and, where appropriate, issue decisions that are wholly favorable to
claimants and any other party to the hearing.
Attorney advisors have performed these duties in the past. On June
30, 1995, we announced final rules establishing the attorney advisor
program for a limited period of 2 years. 60 FR 34126 (1995). The
program's success prompted us to extend the program several times,
until it finally ended in April 2001. (62 FR 35073 (June 30, 1997), 63
FR 35515 (June 30, 1998), 64 FR 13677 (March 22, 1999), 64 FR 51892
(September 27, 1999)).
The number of requests for hearings that we have received has
significantly increased in recent years, and we expect that trend to
continue because of the projected increase in the number of disability
claims as the baby boomers move into their disability-prone years. In
light of our current and projected workload, we plainly must do
everything that we can to reduce the number of cases awaiting a
hearing. This final rule is an important part of our ongoing effort to
decide cases more efficiently and timely.
This final rule will allow us to expedite the processing of cases
pending at the hearing level without affecting a claimant's right to a
hearing before an ALJ. The attorney advisor's conduct of certain
prehearing proceedings will not delay the scheduling of a hearing
before an ALJ. If the prehearing proceedings are not concluded before
the hearing date, the case will be sent to the ALJ unless a decision
wholly favorable to the claimant and all other parties is in process,
or the claimant and all other parties to the hearing agree in writing
to delay the hearing until the prehearing proceedings are completed.
Prehearing proceedings may be conducted by an attorney advisor
under this final rule if one of the following criteria is met: New and
material evidence is submitted, there is an indication that additional
evidence is available, there is a change in the law or regulations, or
there is an error in the file or some other indication that a wholly
favorable decision could be issued. We will mail the attorney advisor's
decision to all parties. The notice of decision will state the basis
for the decision and advise the parties that an ALJ will dismiss the
hearing request unless a party requests to proceed with the hearing
within 30 days after the date the notice of the decision of the
attorney advisor was mailed.
These procedures will remain in effect for a period not to exceed 2
years from the effective date of this final rule, unless we terminate
or extend them by publication of a final rule in the Federal Register.
Public Comments
On August 9, 2007, we published an interim final rule with a
request for comments. (72 FR 44763). Although the interim final rule
became effective on that date, we also provided the public with a 60-
day comment period, which closed on October 9, 2007. We received timely
comments from one individual and two professional organizations. We
carefully considered all the comments. Because some of the comments
were lengthy, we have summarized and paraphrased them below. However,
we have tried to present all of the commenters' views accurately and to
respond to all of the significant issues raised by the comments that
were within the scope of this rule. We have not responded to comments
that were outside the scope of the interim final rule. The individual
commenter and one of the organizational commenters supported the
changes. We appreciate this support.
In addition to submitting comments on its own behalf, the second
organizational commenter also included, within its comment letter,
comments made by individual ALJs in its constituency. Although we refer
primarily to the comment letter from this organization below, we did
carefully consider all of the comments included in the organization's
letter, and some of the comments we summarize below are actually from
individual members of the organization.
Comment: The first organizational commenter, which expressed strong
support for the changes, noted that the changes should not negatively
impact the decisionmaking process for cases that are heard by ALJs. The
second organizational commenter did not support the interim final rule.
This commenter expressed concern that ALJ productivity would fall. The
commenter said that we would be using our ``most experienced and gifted
writers'' to write the easiest decisions, leaving the hardest decisions
to be written by our least experienced staff. The second commenter also
referred to a 2002 General Accounting Office report entitled
``Disappointing Results From SSA's Efforts to Improve the Disability
Claims Process Warrant Immediate Attention'' (``GAO report''),
indicating that our own management had made the same observation.\1\
---------------------------------------------------------------------------
\1\ GAO 02-322, February 27, 2002, available at https://
www.gao.gov/new.items/d02322.pdf. See p. 23.
---------------------------------------------------------------------------
This commenter also stated that we had made a number of
``unverified programmatic assumptions,'' including that:
The rule would not impose net aggregate delay to claims
processing and would not exacerbate the aging of pending claims,
The rule would result in fully developed claims ready for
ALJ hearing, and
An ALJ, upon receiving a case the attorney advisor
determines should be heard, would have little need to do additional
development of evidence or prehearing review.
The commenter indicated that these assumptions were contradicted by
our past experience, prior studies and reports, and our current
staffing needs. The commenter believed that, given our limited
resources, there was an
[[Page 11351]]
``unbridgeable gulf'' between the case processing realities we face and
the restoration of a temporary program that the commenter believed
would waste resources.
Response: The primary purpose of the attorney advisor program is to
help us process more efficiently the backlog of cases we are facing at
the hearing level, given the realities of our current staffing and
budget. Commissioner Astrue has recognized and testified in Congress
that ALJs are ``achieving a record high production rate,'' yet backlogs
continue to grow at the hearing level.\2\ Plainly, we need to take
decisive steps to address this situation.
---------------------------------------------------------------------------
\2\ Testimony before the Senate Finance Committee, May 23, 2007,
available at: https://www.socialsecurity.gov/legislation/testimony_
052307.htm.
---------------------------------------------------------------------------
This program is only one tool among several we are now using, or
planning to use, to reduce the waiting time for claimants who have
requested hearings.\3\ We believe that the attorney advisor program is
especially important because it helps us to identify individuals who
are disabled and who should not have to appear at a hearing in order
for us to decide their case.
---------------------------------------------------------------------------
\3\ For our current, complete plan, see ``Plan to Reduce the
Hearings Backlog and Improve Public Service at the Social Security
Administration,'' September, 13, 2007, available at: https://
www.socialsecurity.gov/hearingsbacklog.pdf.
---------------------------------------------------------------------------
Because of the provisions for prehearing proceedings in Sec. Sec.
404.942 and 416.1442 and in our internal procedures implementing the
attorney advisor program, we expect that ALJs will be able to decide
more readily those cases that attorney advisors review but do not
allow. This is because attorney advisors will obtain more evidence in
some cases and those cases will be ready for an ALJ hearing sooner than
they otherwise would be, and because the attorney advisors will review
and recommend development of additional evidence in others. The
attorney advisors will also provide ALJs with an analysis of the issues
in cases in which they are unable to issue wholly favorable decisions,
which will assist the ALJs who subsequently review the case. Also,
under this final rule, the conduct of prehearing proceedings by
attorney advisors will generally not delay the scheduling or holding of
hearings, unless a decision wholly favorable to the claimant and all
other parties is in process, or the claimant and all other parties to
the hearing agree in writing to delay the hearing until the prehearing
proceedings are completed.
Only certain attorney advisors are permitted to participate in this
program. Our internal instructions provide that only Hearing Office GS-
13 Senior Attorney Advisors, Supervisory Attorney Advisors who are
Hearing Office Directors, Supervisory Attorney Advisors who are Group
Supervisors, and attorneys at the GS-13 level and above in the regional
offices of our Office of Disability Adjudication and Review are
authorized to issue fully favorable decisions under the interim final
rule. These same individuals will be authorized to issue decisions
under this final rule. Our internal operating instructions also provide
that the attorney advisors who participate in this program will
continue to draft decisions for ALJs, as assigned by local hearing
office management. Our instructions also allow the management of each
local hearing office to decide the amount of time attorney advisors
will devote to the adjudication of wholly favorable decisions. We
believe that these modifications to the program are improvements over
the way we administered the program from 1995 to 2001. Therefore, we
anticipate that, with these modifications, ALJs should have sufficient
qualified and experienced staff to draft their decisions, conduct
research, and perform other tasks.
Nevertheless, we are aware that we are shifting valuable resources
to this task, even if only part-time, and that there is a potential
that this shift will affect ALJs' ability to issue their decisions.
Based on our experience using this procedure in the past, we do not
believe this will happen, but as we noted earlier in this preamble, we
intend to monitor the program closely and will make changes to it,
including ending it if necessary, if it does not meet our expectations.
We address the additional, specific concerns of the second
organizational commenter in the responses that follow.
Comment: The second organizational commenter also expressed concern
that the interim final rule was intended to ``pay down'' the backlog.
This commenter also submitted a number of individual ALJ comments and
concerns about allowance rates. Some individual ALJs also believed that
the allowance rate would increase. One ALJ believed that the outcomes
would vary by office. This ALJ stated that in offices in which the
attorney advisors are more conservative than the ALJs, they would waste
time reviewing cases that they would not allow, and the program would
have no beneficial effect and would delay case processing. In offices
in which attorney advisors and the ALJs are ``similarly disposed to
granting certain cases without a hearing,'' the allowance rate would
not change and the program would again have no beneficial effect. In
offices in which the attorneys are ``more sympathetic'' to the
claimants than the ALJs, ``many, many cases'' would be paid without
merit.
Response: We do not intend by this final rule to ``pay down'' the
backlog of cases awaiting a hearing, nor do we expect the allowance
rate to increase. Rather, we are providing our hearing offices with
additional adjudicative capacity to more quickly decide some cases in
which we can make a wholly favorable decision without a hearing. This
will provide better service to claimants and, we expect, will help us
to make faster decisions on all pending hearing requests and to reduce
the number of cases in our hearing offices.
Therefore, we expect that the overall allowance rate at the hearing
level will not change. The purpose of this program is to issue
decisions more quickly in cases in which we can make a favorable
decision without the time and expense of holding an ALJ hearing, and to
improve the efficiency of our hearing office operations given our
current staffing and budget. As we explain in more detail in response
to another comment below, we plan to carefully monitor attorney advisor
decisions for quality to ensure that they are making wholly favorable
decisions only in appropriate cases.
Comment: The same commenter expressed concern about the accuracy,
quality, and legal sufficiency of attorney advisor decisions. The
commenter referred to a statement in the 2002 GAO report indicating
that there were ``mixed'' findings on the accuracy of attorney
advisors' decisions the first time we implemented this program. The
commenter also referred to an internal Agency report issued by our
Office of Quality Performance (OQP) in 2001,\4\ which found that
decisions issued by attorney advisors under the program were supported
by substantial evidence 78 percent of the time.
---------------------------------------------------------------------------
\4\ In 2001, OQP was called the Office of Quality Assurance and
Performance Assessment.
---------------------------------------------------------------------------
Response: We are aware of concerns that were raised regarding the
quality of decisions made by attorney advisors under our prior rule,
and we intend to vigorously monitor the quality of attorney advisor
decisions under this final rule. We will randomly select attorney
advisor decisions for review by OQP after they have been issued and the
decision has been effectuated. We will also perform quality reviews of
attorney advisor decisions before they are issued. We will share the
information from these reviews with our attorney advisors and use it
for training purposes to continually improve the program.
[[Page 11352]]
We must also put the data cited by the commenter in perspective.
The GAO reported results from two studies: One conducted in OQP and the
other by the Appeals Council. The reviews in OQP were conducted by ALJs
and reported ``support'' rates; that is, the rate at which the
reviewing ALJs agreed that the attorney advisors' decisions were
supported by substantial evidence. The GAO indicated that ``the quality
of decisions made by [attorney advisors] generally increased over the
period of the initiative, though falling short of the quality of
decisions made by the ALJs.'' \5\ However, in fact, while OQP did
report a support rate for attorney advisor decisions of 78 percent,
they also reported a support rate for ALJ on-the-record decisions (that
is, decisions made based on the written information in the case file
without holding a hearing) of 81 percent, essentially the same as for
attorney advisors. Moreover, another Agency internal report issued by
OQP in December 2000 showed an 80 percent support rate for attorney
advisor decisions in fiscal year 2000. The GAO reported that the study
by the Appeals Council indicated that the quality of decisions made by
attorney advisors was ``comparable'' to those made by the ALJs.\6\
---------------------------------------------------------------------------
\5\ GAO report, p. 23.
\6\ Id.
---------------------------------------------------------------------------
Finally, we are confident that these ``most experienced and gifted
writers,'' to use the commenter's own description, will produce legally
sufficient decisions.
Comment: The same commenter reported an individual ALJ's comment
asserting that during the first attorney advisor program the lack of
sufficient attorneys to write the difficult decisions for cases heard
by ALJs resulted in a case writing backlog, and that many attorney
advisors could not keep up with the flow of cases to be reviewed.
Response: Although this final rule is substantively the same as the
rule we published on June 30, 1995, our internal procedures address
current operational issues, including our limited staff. They provide
each hearing office with the flexibility to assign work to attorney
advisors according to the needs and workloads of the office. Since our
intent is to use this program to help reduce the backlog of cases and
to provide better and faster service to the public, we will monitor it
carefully and immediately take action if we find that it is having the
effect the commenter was concerned about--the opposite of what we hope
to achieve.
Comment: The same commenter reported an individual ALJ's comment
that attorney advisors made the most errors in cases involving mental
impairments and that such cases are generally not ``readily susceptible
to on-the-record decisions.''
Response: We have already noted that we will carefully monitor the
quality of attorney advisor decisions, and will take appropriate action
if we find that there are special problems with the adjudication of
cases involving mental impairments. Otherwise, we do not agree with the
commenter. We believe that there are no inherent features of cases
involving mental impairments that would make them any less susceptible
to on-the-record decisions than any other cases.
Comment: The same commenter reported an individual ALJ's concern
that attorney advisors would ``waste a lot of time'' reviewing cases
that will not result in wholly favorable decisions.
Response: We do not agree that a prehearing review of cases will be
a ``waste of time'' even if the attorney advisor is not able to make a
wholly favorable decision. Our internal instructions for these rules
permit attorney advisors to obtain evidence from the claimant or the
claimant's representative and require them to provide the ALJ with an
analysis of the issues in the case, including an explanation of why a
wholly favorable decision could not be made on the record. Our
instructions also require the attorney advisor to make recommendations
to the ALJ for additional development of evidence to complete the
record. We believe that, far from being a ``waste'' of time, these
actions will help ALJs to prepare cases for a hearing and to more
quickly decide cases that require a hearing after prehearing review.
Comment: The same commenter reported individual ALJ concerns that
attorney advisor independence will be compromised by managerial
oversight, performance evaluations, and ``bonuses'' received by
attorney advisors. The individual ALJs were also concerned that the
attorney advisor program will ``erode the integrity of the independent
due process hearing and the role of the ALJ in that process.''
Response: Our attorney advisors have always been subject to
``managerial oversight,'' and they will continue to be under this final
rule. We do not expect the implementation of this final rule to
adversely affect their ability to perform their jobs in an appropriate
manner.
Regarding the integrity of the independent due process hearing and
the role of the ALJ in that process, this final rule augments the
process by authorizing attorney advisors to make wholly favorable
decisions in claims for disability benefits when there is no need for a
hearing. Section 205(b) of the Social Security Act (the Act) requires
the Commissioner to make findings of fact, and decisions as to the
rights of any individual applying for a payment. The Act further
provides that, upon request by any such individual (or upon request by
a wife, divorced wife, widow, surviving divorced wife, surviving
divorced mother, surviving divorced father, husband, divorced husband,
widower, surviving divorced husband, child, or parent who makes a
showing in writing that his or her rights may be prejudiced by any
decision), the Commissioner shall give the individual reasonable notice
and opportunity for a hearing. The final rules explicitly preserve the
individual's right to a hearing which will be conducted by an ALJ if
the individual is dissatisfied with the decision made by the attorney
advisor.
Finally, we note that similar concerns were expressed in 1995. Our
prior experience using attorney advisors to make decisions from 1995 to
2001 shows that concerns like those characterized above were unfounded.
As was the case under our prior rules, attorney advisors who are
authorized to conduct prehearing proceedings and issue wholly favorable
decisions under the final rule will not conduct a hearing. Hearings
will continue to be conducted by ALJs in appropriate cases.
Comment: The same commenter reported an individual ALJ's concern
that there would be an increased potential for abuse, and even fraud,
since attorney advisors are not subject to the same financial
disclosure rules that ALJs are.
Response: We do not believe that this rule will increase the
likelihood of fraud or abuse because attorney advisors are not required
to submit financial reports. We know of no fraud or abuse resulting
from the prior rules. However, we will handle any alleged fraud or
abuse under our existing guidelines and procedures.
Comment: The same commenter reported individual ALJs' concerns that
ALJs would have to take on more ``clerical functions,'' and that ALJs
``will be forced to write more and more of their own decisions.''
Response: We do not intend for ALJs to take on any additional
``clerical functions'' under this final rule, and we do not expect
implementation of this final rule to affect the ability of our decision
writers to write decisions on behalf of the ALJs.
Comment: The same commenter indicated that we had rushed to this
rule without asking for comments first.
[[Page 11353]]
Response: We disagree with the commenter's observation that we
should have first published a notice of proposed rulemaking with
respect to this rule. We explained in detail in the preamble to the
interim final rule why we determined that notice-and-comment rulemaking
was both unnecessary and contrary to the public interest under the
Administrative Procedure Act (APA) (5 U.S.C. 553(b)(B)). Therefore, we
properly determined that we had good cause to publish a final rule
without requesting prior public comment. (72 FR at 44764). However, we
also recognized that the rule we published in August 2007 concerned a
subject about which the public was likely to be interested. As a
result, we made the rule we published in August 2007 an interim final
rule, and we requested public comments regarding the changes we made.
Our actions in this regard are consistent with both the APA and good
rulemaking practice.
Comment: The same commenter made a number of alternative
recommendations for us to consider instead of the attorney advisor
program, such as the implementation of a ``Government Representative
Program.'' The commenter also recommended modifications to the attorney
advisor program.
Response: We did not adopt the comments suggesting alternatives to
the attorney advisor program because they were outside the scope of
this rulemaking proceeding. The other comments addressed our internal
procedures rather than the substance of the interim final rule. In our
responses to prior comments, we have discussed our internal procedures,
and explained how we believe those procedures provide adequate
safeguards to address the concerns that the commenter raised.
Comment: The same commenter reported an individual ALJ's
recommendation that the final rule require that the attorney advisors
be limited to reviewing, developing the record, and drafting
recommended ``on the record'' wholly favorable decisions for an ALJ to
either sign such decisions or hear such cases.
Response: We did not adopt this comment suggesting an alternative
to the attorney advisor program because it is outside the scope of this
rulemaking proceeding.
Therefore, for all the reasons stated above, we are adopting the
interim final rule without change.
Regulatory Procedures
Executive Order 12866, as Amended
We have consulted with the Office of Management and Budget (OMB)
and determined that this final rule meets the criteria for a
significant regulatory action under Executive Order 12866, as amended.
Accordingly, it was subject to OMB review. We also have determined that
this rule meets the plain language requirement of Executive Order
12866, as amended.
Regulatory Flexibility Act
We certify that this final rule will not have a significant
economic impact on a substantial number of small entities as it affects
only individuals. Therefore, a regulatory flexibility analysis as
provided in the Regulatory Flexibility Act, as amended, is not
required.
Paperwork Reduction Act
This rule will impose no additional reporting or recordkeeping
requirements requiring OMB clearance.
Federalism Impact and Unfunded Mandates Impact
We have reviewed this rule under the threshold criteria of
Executive Order 13132 and the Unfunded Mandates Reform Act and have
determined that it does not have substantial direct effects on the
States, on the relationship between the national government and the
States, on the distribution of power and responsibilities among the
various levels of government, or on imposing any costs on State, local,
or tribal governments. This rule does not affect the roles of the
State, local, or tribal governments.
(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social
Security--Disability Insurance; 96.002, Social Security--Retirement
Insurance; 96.004, Social Security--Survivors Insurance; 96.006,
Supplemental Security Income)
List of Subjects
20 CFR Part 404
Administrative practice and procedure; Blind, Disability benefits;
Old-age, Survivors, and Disability insurance; Reporting and
recordkeeping requirements; Social Security.
20 CFR Part 416
Administrative practice and procedure; Aged, Blind, Disability
benefits; Public assistance programs; Reporting and recordkeeping
requirements; Supplemental Security Income (SSI).
Dated: January 23, 2008.
Michael J. Astrue,
Commissioner of Social Security.
0
Accordingly, the interim final rule amending subpart J of part 404 and
subpart N of part 416 of chapter III of title 20 of the Code of Federal
Regulations, which was published at 72 FR 44763 on August 9, 2007, is
adopted as a final rule without change.
[FR Doc. E8-3945 Filed 2-29-08; 8:45 am]
BILLING CODE 4191-02-P
