American Bar Association House of Delegates Update: Summer 2016

RESOLVED, That the American Bar Association urges lawyers and all interested parties to encourage the informed and voluntary use of alternative dispute resolution (ADR) processes as an effective, efficient and appropriate means to resolve health care disputes.

FURTHER RESOLVED, That the American Bar Association opposes the use of binding forms of dispute resolution involving patients, or involving residents of long-term care facilities and other health care institutions, unless the parties agree to do so voluntarily and with informed consent after a dispute arises.

RESOLVED, That the American Bar Association urges Congress to amend the rulemaking provisions of the Administrative Procedure Act (“APA”). Specifically, Congress should:

1. Codify the requirement that an agency fully disclose data, studies, and other information upon which it proposes to rely in connection with a rulemaking, including factual material that is critical to the rule that becomes available to the agency after the comment period has closed and on which the agency proposes to rely;

2. Provide for the systematic development by the agency in each rulemaking of a rulemaking record as a basis for agency factual determinations and a record for judicial review. The record should include any material that the agency considered during the rulemaking, in addition to materials required by law to be included in the record, as well as all comments and materials submitted to the agency during the comment period. The record should be accessible to the public via an online docket, with limited exceptions allowed, such as for privileged, copyrighted, or sensitive material;

3. Establish a minimum comment period of 60 days for “major” rules as defined by the Congressional Review Act, subject to an exemption for good cause;

4. Clarify the definition of “rule” by deleting the phrases “or particular” and “and future effect”; update the term “interpretative rules” to “interpretive rules”; and substitute “rulemaking” for “rule making” throughout the Act;

5. Authorize a new presidential administration to (i) delay the effective date of rules finalized but not yet effective at the end of the prior administration while the new administration examines the merits of those rules, and (ii) allow the public to be given the opportunity to comment on whether such rules should be amended, rescinded or further delayed;

6. Promote retrospective review by requiring agencies:

a. When promulgating a major rule, to publish a plan (which would not be subject to judicial review) for assessing experience under the rule that describes (i) information the agency believes will enable it to assess the effectiveness of the rule in accomplishing its objectives, potentially in conjunction with other rules or other program activities, and (ii) how the agency intends to compile such information over time;

b. On a continuing basis, to invite interested persons to submit, by electronic means, suggestions for rules that warrant review and possible modification or repeal;

7. Add provisions related to the Unified Regulatory Agenda that would require each participating agency to (i) maintain a website that contains its regulatory agenda, (ii) update its agenda in real time to reflect concrete actions taken with respect to rules (such as initiation, issuance or withdrawal of a rule or change of contact person), (iii) explain how all rules were resolved rather than removing rules without explanation, (iv) list all active rulemakings, and (v) make reasonable efforts to accurately classify all agenda items. All agencies with rulemaking plans for a given year should also participate in the annual Regulatory Plan published in the spring Unified Agenda. These provisions should not be subject to judicial review;

8. Repeal the exemptions from the notice-and-comment process for “public . . .   loans, grants [and] benefits” and narrow the exemptions for “public property [and] contracts” and for “military or foreign affairs functions”; and

9. Require that when an agency promulgates a final rule without notice-and-comment procedure on the basis that such procedure is impracticable or contrary   to the public interest, it (i) invite the public to submit post-promulgation comments and (ii) set a target date by which it expects to adopt a successor rule after consideration of the comments received; provided that:

a. If the agency fails to replace the interim final rule with a successor rule by the target date, it should explain its failure to do so and set a new target date;

b. The adequacy of the agency’s compliance with the foregoing obligation would not be subject to judicial review, but existing judicial remedies for undue delay in rulemaking would be unaffected; and

c. The preamble and rulemaking record accompanying the successor rule should support the lawfulness of the rule as a whole, rather than only the differences between the interim final rule and the successor rule.

FURTHER RESOLVED, That the American Bar Association recommends that federal agencies experiment with reply comment processes in rulemaking, such as by (a) providing in advance for a specific period for reply comments; (b) re-opening the comment period for the purpose of soliciting reply comments; or (c) permitting a reply only from a commenter who demonstrates a particular justification for that opportunity, such as a specific interest in responding to specified comments that were filed at or near the end of the regular comment period.

RESOLVED, That the American Bar Association urges the bar admission authorities in each state and territory to adopt expeditiously the Uniform Bar Examination.

RESOLVED, That the American Bar Association urges the United States Supreme Court to record and make available video recordings of its oral arguments.

RESOLVED, That the American Bar Association urges state, territorial, local and tribal child welfare and juvenile justice agencies to provide adequate resources for assessing and treating emotional and behavioral disorders of children in their custody, including psychosocial and clinical interventions, recreational opportunities and supportive services that can reduce the need for prescribing psychotropic drugs.

FURTHER RESOLVED, That the American Bar Association urges state, territorial, local and tribal child welfare and juvenile justice agencies to develop comprehensive policies, based on best practice guidelines developed in collaboration with medical professional organizations medical, mental health and disability experts, and other stakeholders designed to facilitate medically appropriate use of psychotropic medications needed by children in the custody of child welfare and juvenile justice systems, while ensuring that medications are not used solely to control behavior.

FURTHER RESOLVED, That the American Bar Association urges state, territorial, local and tribal courts to work with medical professional organizations and other stakeholder groups to develop oversight protocols administered by child and adolescent psychiatrists to ensure that these policies are successfully implemented in child welfare and juvenile justice cases under their jurisdiction, and to ensure that medication regimens are evaluated, and, if appropriate, continue without interruption when placement changes occur or when the child is transitioning out of the foster care or juvenile justice systems.

FURTHER RESOLVED, That the American Bar Association urges attorneys, judges, bar associations, and law school clinical programs on children’s issues to promote education and to develop technical assistance resources on the rights of children in the custody of child welfare and juvenile justice agencies, including legal issues related to appropriate use of psychotropic medication.

FURTHER RESOLVED, That the American Bar Association urges Congress to enact legislation requiring state, territorial, local and tribal governments to report de-identified data, consistent with children’s privacy rights under federal and state law, to appropriate federal agencies on the ongoing use of psychotropic medication for children in foster care and in the juvenile justice system under their jurisdiction.

RESOLVED, That the American Bar Association adopts the ABA Model Act Governing Assisted Reproductive Technology Agencies dated February 2016 and recommends consideration and adoption of the Model Act by appropriate governmental agencies and legislatures.

RESOLVED, That the American Bar Association urges Congress to enact legislation to encompass services provided by advanced practice providers within the locum tenens exception to the prohibition on reassignment of Medicare billing privileges.

FURTHER RESOLVED, That the American Bar Association urges the Center for Medicare and Medicaid Services (“CMS”) to promulgate regulations and draft guidance to enable advanced practice providers to bill under the locum tenens or reciprocal billing reassignment exceptions using the Q6 or similar modifier.

FURTHER RESOLVED, That the American Bar Association urges the regional Medicare Administrative Contractors (“MAC”) to draft guidance enabling advanced practice providers to bill under the locum tenens or reciprocal billing reassignment exceptions using the Q6 modifier.