March 12, 2020 Articles

American Bar Association House of Delegates Update

The House considered a number of resolutions that may interest healthcare lawyers.

By Grant Killoran

The American Bar Association’s House of Delegates meets at the ABA Annual and Midyear Meetings each year to consider various policy initiatives proposed by the various constituents of the ABA.

The House is the policy-making body for the ABA to which its officers, sections, committees, and employees are responsible. The House represents not only various groups within the ABA but also the legal profession as a whole. Its membership of over 500 people is comprised of delegates elected by ABA members in each state and delegates from every state bar association, the larger local bar associations, the ABA’s sections and divisions, and other national organizations of the legal profession. The U.S. attorney general and the director of the Administrative Office of the U.S. Courts also are members of the House by virtue of their offices. The House elects ABA officers and members of the ABA Board of Governors and formulates ABA policy.

The House again convened at the ABA Annual Meeting in San Francisco, California, on August 12 and 13, 2019. During two days of deliberations, the House considered over 50 resolutions, including those listed below that may interest healthcare lawyers.

Resolution 103A

This resolution was proposed by the ABA Commission on Law and Aging and the ABA Senior Lawyers Division. It urges Congress to repeal the statutory exclusion of dental care and dentures from Medicare and expressly add coverage of comprehensive dental and oral health services to the Medicare program.

This resolution was approved by the House.

Resolution 104

This resolution was proposed by the ABA Criminal Justice Section. It urges Congress to enact legislation to resolve the conflict between some state laws and federal law over marijuana regulation and to update federal marijuana policy.

This resolution was approved by the House.

Resolution 109

This resolution was proposed by the ABA Young Lawyers Division. It seeks to ensure that children who live in poverty or high-crime communities or who experience race-based trauma or related stress receive the in-school service support needed to maintain or restore good health.

This resolution was withdrawn by its sponsor prior to a vote by the House.

Resolution 110B

This resolution was proposed by the ABA Intellectual Property Law Section. It urges federal courts to interpret the clause “where the defendant has committed acts of infringement and has a regular and established place of business” in the special venue statute, 28 U.S.C. § 1400(b)—when applied to Abbreviated New Drug Application (ANDA) litigation under 35 U.S.C. § 271(e)(2)—to mean a district in which the defendant who filed an ANDA application is anticipated to commit acts of infringement.

This resolution was approved by the House.

Resolution 115A

This resolution was proposed by the ABA Civil Rights and Social Justice Section, the National Native American Bar Association, and the ABA Commission on Homelessness and Poverty. It urges Congress to ensure that the health care delivered by the Indian Health Service is exempt from government shutdowns and federal budget sequestrations on par with the exemptions provided to the Veterans Health Administration.

This resolution was approved by the House.

Resolution 115F

This resolution was proposed by the ABA Civil Rights and Social Justice Section and the ABA Commission on Women in the Profession. It urges federal, state, local, territorial, and tribal governments to refrain from imposing upon medical facilities or healthcare providers requirements that are not medically necessary or have the purpose or effect of burdening patients’ access to healthcare services. This resolution was approved, as revised, by the House.

Resolution 117A

This resolution was proposed by the ABA Health Law Section. It urges states, counties, and tribal and local governments to enact legislation to ensure that any proceeds they receive from the current opioid litigation be used for remedying the harm resulting from the opioid epidemic.

This resolution was approved by the House.

Resolution 117B

This resolution was proposed by the ABA Health Law Section. It urges Congress to enact legislation to amend the Ethics in Patient Referrals Act of 1989 (commonly known as the Stark Law) to modernize the law and encourage the adoption of value-based payment arrangements and other coordinated-care arrangements that will lower costs to the Medicare program and improve the quality of services to its beneficiaries.

This resolution was approved by the House.

Final Words

For more information regarding the resolutions, as well as the other resolutions discussed by the House at the 2019 ABA Annual Meeting and the reports supporting those resolutions, please visit the ABA website.

Grant Killoran is the coeditor of the ABA Section of Litigation’s Health Law Litigation newsletter and is one of the State Bar of Wisconsin’s delegates to the ABA House of Delegates. Killoran is a partner and chair of the Litigation Practice Group at O’Neil, Cannon, Hollman, DeJong & Laing S.C. in Milwaukee, Wisconsin.


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