Brown Bag Lunch Series Beginning March 20

The Section has announced two brown-bag lunches to be held starting next week in Washington D.C. The first will be a Cost Benefit Analysis Brown Bag on Wednesday March 20 from noon to 1:30 p.m. The first confirmed panelist is Rebecca MacPherson, Of Counsel at Jones Day and former assistant chief counsel for international law, legislation and regulations at the Federal Aviation Administration. Find out more about this important tool of rulemaking either in person or via teleconference. Registration form available online.

The second session will be held Thursday March 28 from noon to 1:30 p.m. and is titled "Latest Developments at the Merit Systems Protection Board, CY 2012 Year in Review." Panelists will discuss changes in statutes and regulations, and address important cases decided in the last year. Registration form available online.

Beverages will be available, and attendees are invited to bring their own lunches. Both sessions are being held in the John Marshall Room on the 9th floor of the American Bar Association in Washington.

Come Learn About Critical Issues in Regulation

Please join us for the 9th Annual Administrative Law & Regulatory Practice Institute: Critical Issues in Regulation. The Institute will be April 3-4, 2013 at the Capital Hilton in Washington, DC. 

On April 3, Anna Shavers, Program Chair, will welcome Joan Dailey and her colleagues for another very popular look at rulemaking and judicial review, during the “Rulemaking 101” program. The Institute will also cover a number of hot topics in administrative law including the constitutionality of recess appointments, extending OIRA review to independent agencies, and what technology can do for rulemaking.

Download the Full Agenda & Registration Form and register today!

Agency Spotlight: HHS Regulations Implementing the Affordable Care Act

by Kevin J. Schmitt

While much of the recent media attention focused on states establishing health insurance exchanges under the Affordable Care Act (ACA), the federal government is playing a significant role implementing key parts of the law. With only sixteen states plus the District of Columbia set to manage their own exchanges and seven more opting for a partnership approach, the federal government will assume full responsibility for running the remainder of the state health insurance exchange marketplaces nationwide. The Department of Health and Human Services (HHS) also made “expand[ing] health insurance coverage and ensur[ing] that the American people can rely on their existing coverage when they need it most” a top regulatory priority for Fiscal Year 2013. HHS is seeking comments on a number of proposed rules to achieve this goal:

• Coverage for Preventive Services: Issued in conjunction with the Departments of Treasury and Labor, the proposed rule addresses requirements under section 2713 of the ACA requiring insurance coverage of preventative health measures, including contraceptives. The proposal is part of an ongoing effort by these departments to ensure insurance coverage for these services while protecting organizations objecting to contraceptives on religious grounds. The proposed rule contemplates two key changes: (1) amend the criteria for the religious exemption to ensure that an employer falling under this exemption does not face disqualification “because the employer’s purposes extend beyond the inculcation of religious values or because the employer serves or hires people of different religious faiths;” and (2) “establish accommodations for health coverage established or maintained by eligible organizations . . . with religious objections to contraceptive coverage.”  The comment period closes on April 8, 2013.  Visit regulations.gov for instructions on how to submit comments.

• Small Business Health Options Plan: The ACA requires states running their own exchanges to establish a Small Business Health Options Plan (SHOP) to help small businesses provide insurance for their employees. The proposed rule would make a variety of changes to existing regulations governing the management of these SHOPs. First, it would align various aspects of the SHOPs with provisions of the Health Insurance Portability and Accountability Act. Second, the rule proposes a transitional plan for establishing the SHOPs to grant businesses more preparation time while allowing employees access to small group benefits.  The comment period closes on April 1, 2013. Visit regulations.gov for instructions on how to submit comments.   

• Essential Coverage: Section 5000A of the Internal Revenue Code, which requires individuals to maintain minimum essential coverage, is one of the most controversial aspects of the ACA. Certain classes of individuals are exempted from this requirement, and the health insurance exchanges are directed to issue certifications of exemption for qualified individuals. The proposed rule would establish the procedures by which the exchanges will determine eligibility for the exemption.  Interested parties are encouraged to act soon, as comments are due March 18, 2013. Visit regulations.gov for instructions on how to submit comments.

Kevin J. Schmitt is a third-year law student at UC Hastings College of the Law.  He is currently a Senior Articles Editor for the Hastings Law Journal. 

OPM Accepting Applications for ALJ Positions

OPM is now accepting applications for Administrative Law Judge (ALJ) positions with various federal agencies all over the country. ALJs preside over hearings required pursuant to the Administrative Procedures Act on a variety of issues including food and drugs, labor management relations and social security disability. This position closes March 15, 2013. Visit usajobs.gov for more information on how to apply. 

Meet Mary Bissell, Principal, Child Focus

by Nina Hart

Notice and Comment is pleased to spotlight Mary Bissell, Principal at Child Focus.  Child Focus is a national consulting firm that brings together innovative people, programs and policies to help non-profit organizations, foundations, and government agencies support America's children and families.  Below, Mary shares her administrative law experience and offers advice for aspiring attorneys.  

  1.      What is your experience with administrative or regulatory law?

Like many law students, administrative law never had a lot of magnetism for me.  I took Administrative Law because it seemed like a class that a well-rounded lawyer “should take,” not because it held any particular interest for me.  It was only when I began working as an Equal Justice Fellow at the Legal Aid Society of DC that I realized how administrative and regulatory law strategies were often a more effective – and efficient – fix for some of my clients, many of whom had already experienced years of delay with traditional legal reform and litigation approaches.  I also realized the power of economies of scale.  One change to DC public school regulations could bring relief to dozens of the clients on my caseload – and sometimes eliminate the need for individual legal representation altogether.

2.      Where are you working now and how has your experience with administrative law shaped your approach to legal or policy advocacy?

As a child and family policy advocate, my approach is based on an assessment of the fastest and more cost-effective way to bring about lasting social change.  Especially in this current Congressional environment of partisan rancor, I find that focusing on administrative and regulatory reforms is often the short cut to “getting things done.”  And while you can also develop strong relations over time when you lobby Congress for statutory reforms, you really develop strong relationships with leaders in the administrative context.  Strong relationships and plain dealing are critical in achieving administrative and regulatory reforms – and often those relationships bring rewards that last long beyond a specific proposal for change. 

3.      What led you to a career in law and an interest in administrative law?

For me, law school was not a fun or particularly interesting experience.  I felt that the Socratic method and emphasis on litigation and debate had limited application for me in the real world of problem solving.  That being said, when I began to see the things I learned in law school as tools (as opposed to a professional approach), I felt more comfortable with the skills I learned as part of a lifetime of skill building.  I now teach a class on advocacy skills for public interest lawyers.  What we want our students to understand is that every tool has its time and its place.  Lawyers can no longer afford to say, “that approach isn’t in my job description.”  You have to understand enough about each aspect of law practice to identify where the gaps are.  For me, administrative law is one of the many tools in the tool kit.  There is a time and a place for it, just as there is a time and place to elevate an issue using traditional and social media.

4.      Do you have any advice about “best practices” for attorneys who are preparing to handle administrative law cases or otherwise interacting with administrative regulations or agencies?

Effectuating lasting change is almost always dependent on lasting relationships.  You can have the best legal argument in the world and make the mistake of alienating a key bureaucrat or other decision maker early in your career.  Build strong relationships, be straightforward in your dealings with others, and you will realize that success is dependent on more than a strong grounding in law and strategy. 

5.      What do you think is the biggest challenge facing administrative law practitioners?

As with all legal specialties, lawyers often lose the forest through the trees.  In my experience in the public interest, the more “purist” administrative law practitioners have sometimes been short-sided in their overall strategic approach.  For example, they may find the perfect legal loophole to derail an administrative reform process, but destroy a key alliance in the process.  In the short run, they have accomplished their legal goals, but the approach is a pyrrhic victory over the long haul.

6.      For law students or new attorneys considering a career in administrative law, what do you think would be a good way of familiarizing themselves with the field?

I am a big advocate of finding an issue or a cause that moves you and then trying a variety of tools to determine which ones fit your personality and life choices.  I wouldn’t recommend that a student pursue a career in administrative law or tax law or estate law right out of the gate.  Instead, find something that really makes you pound the table, exposes you to a wide range of experiences and let your career unfold over time.  I have always been skeptical of 22-year-old law students who know they want to spend their entire career in one area of the law.  A lucky few may find the right match immediately, but it takes work to figure out what you want to do when you grow up.  The happiest lawyers I know are those that take the time and have the courage to reinvent themselves on a regular basis. 

7.      Outside of the law, what are your favorite activities or hobbies?

My husband and I have two children, 11 and 13, which doesn’t leave a lot of time for hobbies (unless hobbies include driving our kids back and forth to sports practices and games).  But when I get the chance, I love to read, work out and like nothing more than hanging out with my family and friends.

DOT Seeks Assistant General Counsel

Submitted by Judith S. Kaleta, Deputy General Counsel, U.S. Departement of Transportatin (DOT)

The DOT, Office of the General Counsel is looking for a dynamic executive to serve as the Assistant General Counsel for Regulation and Enforcement. The application deadline is March 25, 2013, with interim reviews of applications received by midnight on March 7, 2013 and March 20, 2013.

The Assistant General Counsel will lead a team of attorneys, staff professionals and support personnel in providing legal advice and services in all matters related to the Department’s regulatory and enforcement activities. He or she will direct the oversight, assessment, and review of the multidimensional regulatory and enforcement activities and practices of one of the largest Federal Regulatory agencies to ensure conformity with the Administrative Procedure Act, other applicable statutes and Executive Orders, and Departmental policies. This executive will work on challenging and rewarding issues such as safety requirements for unmanned aircraft and driverless cars, environmental impacts of federally-funded transportation projects, training requirements for commercial truck drivers, motor vehicle fuel economy, and consumer protection. The executive will also represent the Department in conferences with other departments and agencies of the Federal Government, state, local and tribal governments.

 

The Assistant General Counsel will report to the General Counsel and Deputy General Counsel, will receive broad policy guidance and direction from them, and will be responsible for the effective operation of his/her office. The Assistant General Counsel will provide legal and policy advice to our highest officials. When appropriate, DOT will expect the Assistant General Counsel's recommendations to include innovative approaches to substantive and procedural problems. Because a high degree of trust and confidence must be placed in the successful candidate’s professional skills and judgment, DOT is seeking an individual with demonstrated leadership and supervisor abilities, a proven commitment to client service and a strong background in the relevant legal and policy fields.

 

DOT is looking for a diverse pool of highly qualified candidates. If you know someone who has the leadership qualities and may be interested in this position, please encourage him/her to apply through the vacancy announcement listed on USAJOBS.

Agency Spotlight: DOL OFCCP Replaces Compensation Guidelines

by Lynn White

On February 28, 2013, the Department of Labor (DOL), Office of Federal Contract Compliance Programs (OFCCP) published a notice rescinding two guidance documents related to compensation discrimination. OFCCP enforces nondiscrimination and affirmative action requirements for federal contractors. The agency rescinded the Interpreting Nondiscrimination Requirements of Executive Order 11246 with respect to Systemic Compensation Discrimination (Standards) which outlined “analytical procedures” for issuing a Notice of Violation based on compensation discrimination. OFCCP also rescinded the Voluntary Guidelines for Self-Evaluation of Compensation Practices for Compliance with Executive Order 11246 (Voluntary Guidelines) which created a method for contractors to evaluate their own pay practices. The agency initially proposed the rescissions on January 3, 2011.

Removing Barriers to Enforcement

OFCCP Director Patricia A. Shiu stated that the Standards and Voluntary Guidelines created arbitrary barriers to “finding and combating illegal pay discrimination.” In particular, the Standards applied to pay differences among workers in specific job categories, leaving little room for analysis of other factors like discrimination in job assignments and unequal access to promotional opportunities. OFCCP further asserted that the Voluntary Guidelines gave employers the flexibility to analyze pay data based on their interpretation of how to apply the guidelines. If the interpretation was reasonable, the Voluntary Guidelines required finding contractors in compliance even if a different analysis suggested pay disparities. 

Issuing Clearer Guidance

OFCCP issued Policy Directive 307 (Directive 307) to replace the Standards, Voluntary Guidelines, and any previous policy guidance on investigating pay discrimination. Directive 307 provides a detailed description of the process OFCCP compliance officers should follow when reviewing compensation data during a federal contractor audit. This includes conducting a preliminary analysis of summary data, analyzing individual employee level data, and developing pay analysis groups, among other things. Director Shiu stated that the directive  provides "clear guidance for contractors to facilitate their success when it comes to providing equal opportunity to all of their workers."

For more information about the rescission and Directive 307, visit OFCCP’s website.