Attorney Advisor Program Here to Stay

March 1, 2008

Author: Catherine M. Callery (Kate)| Louise M. Tarantino

In the September Disability Law News, we told you that SSA issued interim final regulations on using attorney advisors, a concept very familiar to the more seasoned DAP advocates among us.  Now, SSA has adopted those interim regulations as final. 73 Fed. Reg. 11349 (March 3, 2008).

The final rule permits “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. . . .”  The rule became effective upon publication on March 3, 2008.

The Attorney Advisor program was given a trial several years ago, and put on ice but the implementing regulations, 20 C.F.R. §§404.942 & 416.1442, remain in the regulations, albeit with an express sunset provision of April 2, 2001.

“Attorney advisors have performed these duties in the past.  In June 1995, we announced final rules establishing the attorney advisor program for a limited period of 2 years.  The program’s success prompted us to extend the program several times, until it finally ended in April 2001.”  The sunset now is August 10, 2009, “unless we terminate them earlier or extend them beyond that date by notice of a final rule in the Federal Register.”

In the past, advocates found that attorney advisors were an effective tool in moving appropriate cases to on-the-record favorable decisions.  We have already heard from advocates that the new crop of attorney advisors seem to be performing well.  Let us know about your experience with these attorney advisor decisions.