Chair’s Column: Policy Winds of Change

With another presidential election having come and gone, there will be another administration transition for the third election cycle in a row. That means since 2016, the country has alternated between Democrat- and Republican-led administrations with different goals on a number of fronts. Changing priorities impact policy decisions both before and after the transition.

The Post-Election Rush

In the past, when an administration has known its time was coming to an end, policy goals have received a surge of attention. A key timeframe to keep an eye on from that perspective is the 60-day effective requirement. Any rule determined to be a major rule must have a 60-day delay post-final publication before becoming effective.

What does that mean for an outgoing administration? In effect, it means there is a strong desire to final publish any major rule no later than 60 days before the day before inauguration day for the new incoming administration. Why the rush? If a rule is not final, then effective as of inauguration, the new administration can delay or pull a rule that is not finalized.

The rush to be able to finalize rules calls for tracking the Federal Register. The Federal Register is where rules are published and has a helpful website. In addition to its role publishing rules in proposed or final form, the Federal Register is a key resource for researching the history behind rules and gleaning insight from preamble text throughout the rulemaking process.

A New Administration

Once the inauguration occurs and a new administration is in place, new goals and concepts for policy will be followed. That is especially true when control of the White House switches from one party to another. The path taken can include proposing new regulations that push ideas in different directions, attempting to repeal existing regulations that do not align with the administration’s views, or otherwise seeking to evolve policy positions.

A potential stumbling point for any new administration is coming in and not being fully aware of all existing regulations and how each existing or potentially proposed regulation would interact. The unintended consequences of unexpected interactions are certainly a key policy issue, because that is where ongoing fodder for litigation or challenges can arise.

Another aspect of a new administration is the impact of the common focus on the first 100 days of an administration. In the first 100 days, administrations believe, whether accurately or not, that there is the most political capital to spend and that translates into trying to push major objectives through Congress or the machinery of government. The push can result in a lot of new concepts being put into place through legislation or executive orders that then require implementation. 

The Impact for the Section

Leaving aside the broad implications for the operation of the government and the country, why should the Section be interested in all of the policy developments? There are a number of ways to answer that question, some of which feed into activities that the Section engages in.

One way all of the new policies impact the Section is the opportunity to develop new content that analyzes the new policies and provides education on how those new policies operate. Education is an important component of the Section’s mission, and new policies are an easy way to fulfill that mission. The members of the Section are well positioned to digest, break down, and then explain the impacts of new or proposed policies. As educational content is created, the Section can then distribute that information to members and the community at large. These opportunities promote the expertise of Section members along with spurring dialogue about how to work within the framework established by the policies.

The educational opportunities run the full gamut of what the Section produces. As a quick refresher, what are those opportunities? The types of educational content include articles for eSource or The Health Lawyer, member benefit discussions through an interest group, CLE webinars, podcast episodes, and proposed sessions for an in-person conference. The content created does not need to be exclusive to one of those options. The Section is focused on using content in a variety of avenues, which means each person creating content will get multiple chances to demonstrate their insight into the matter.

A second impact for the Section is the ability to comment on proposed policies. As part of the American Bar Association, the Section is able to share its expertise and knowledge about laws and offer suggestions as to the impact of pending changes. The means of providing that insight include preparing written comments to proposed regulations, providing information to the ABA’s government relations team, or seeking to meet with members of the legislature to discuss proposals. Throughout all of those means of commenting on policy, the Section leans on the expertise of its members to explain or postulate on the impact of a proposal and potential interaction with existing laws and regulations. The comments and feedback are not partisan. Instead, the nature of the comments is similar to a memorandum that would be prepared for a client that analyzes the law (or in this case the proposal) and explains what it will do.

The Section’s commitment to actively participating in the policy process is reflected by the formation of new policy working groups, which reflect collaboration among all of the Section’s Interest Groups and the Health Law and Policy Coordinating Committee. The working groups will actively monitor announcements and sources for proposed rules or laws that impact areas of interest to the Section. The groups will then be ready to jump into action and prepare comments to meet what can often be tight submission deadlines.

The benefit to the Section of being actively involved in policy developments is optimistically guiding agencies, legislators, and others in a direction that does not create conflict among laws or regulations as well as thoughtfully iterating on ideas. The hopeful impact of those activities is to reduce opportunities for exploiting a change once enacted by anticipating problems as well as minimizing areas for challenge by limiting inconsistencies. As a personal benefit to Section members, there is the chance to play a role in how the country develops its laws.

Washington Health Law Summit

The Section’s upcoming Washington Health Law Summit is a great way to experience the Section’s focus on policy. Held in Washington, DC, from December 9-10, 2024, WHS brings in speakers from a number of agencies and Congress. The policy-heavy discussions offer a lot of insight into what the government is doing and what may be coming down the road. Not only will those speakers be coming, but part of WHS will be held on Capital Hill this year in one of the Congressional Office Buildings.

Take advantage of the opportunity to learn about developments directly from some of the sources along with meeting fellow members of the Section.