Meet Lauren Khouri, Aspiring Labor and Employment Administrative Lawyer

by Nina Hart

Meet Lauren Khouri, third-year law student at American University Washington College of Law and Notice and Comment contributor.  Below, she shares her experiences and enthusiasm for administrative law.

1.   Where do you attend law school?  What led you to attend law school? What are your plans for after law school?

I am a third-year law student at American University Washington College of Law, graduating this May. I went to law school because I have always wanted to work on improving equal opportunity in our country. In my opinion, the law provides a uniquely effective tool for protecting and enhancing our individual civil rights. After law school, I hope to litigate cases in the education or labor and employment law field.

 2.  What experiences with administrative or regulatory law have you had?

I have experience with both local and federal administrative agencies. While working with the U.S. Department of Justice in the Tax Division, I interacted frequently with the IRS. Now, I am working with the National Partnership for Women & Families, a non-profit, nonpartisan advocacy organization that promotes fairness in the workplace, among other issues, and helps men and women balance the demands of work and family. For this organization, I am researching regulations and agency decisions of the Department of Labor, NLRB, and EEOC. On the local level, I spent time working within the District of Columbia’s regulatory system while serving in the General Counsel’s Office of the D.C. Public Schools.

3.  How did you become interested in studying or pursuing a career in administrative law?

I first became interested in administrative law while working with the Labor & Employment Law Forum at American University. As I read articles for publication, I realized how important and pervasive the administrative law field is. Since then, I see how significant administrative law is in every place I work.

4.  Based on your experiences thus far, what do you perceive to be challenges facing administrative law practitioners?

From what I have seen, there still seems to be a power struggle between Congress, agencies, and the courts. The weight of authority given to regulations by the federal courts and the discretion delegated to agencies from Congress will always be a point of dispute. This is even more important during a time where Congress and the courts are debating the constitutionality of agency appointments.

5.  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 strong supporter of legal blogs. The best way to familiarize yourself with a new body of law is to find the most reputable blogs in the area and read them every day. Blogs offer a general overview of the important legal precedent and stay up-to-date on the cutting-edge developments in the field. Legal blogs are also one of the few places where you can read about district court cases and smaller legal issues that do not make it onto the front page of the newspaper. It is informative, and also fun, to know about the legal issues that are happening day-to-day on the ground.

6.  From a law student’s perspective, how would you characterize the dialogue between academics, students, and practitioners in the area of administrative law?

In general, I believe the dialogue between students, academics, and practitioners should always increase. For students, there is no better way to learn then to speak with people who are out there in the field practicing what they may be interested in doing. Academics also provide useful insight as to recent developments in the law and trends that are important to pay attention to. In the administrative law field, the dialogue between students, academics, and practitioners is even more important. In my opinion, administrative law is a subject that you do not truly learn until you have seen the process in action. The best way to do that, as a student, is to talk to those that are doing it.

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

When I am not inside a library or coffee shop, I love to be outside exploring D.C. or experimenting with my new affinity for cooking!

Supervisory Attorney Position at Merit Systems Protection Board

The U.S. Merit Systems Protection Board (MSPB is currently accepting applications for a Supervisory Attorney-Advisor (General) (Associate Director) position in Washington, D.C.  The deadline for applying is May 15, 2013 or, once the first 100 applications are received. 

The MSPB carries out its statutory responsibilities and authorities primarily by adjudicating individual employee appeals and by conducting merit systems studies. In addition, MSPB reviews significant actions by the Office of Personnel Management to assess the degree to which those actions may impact merit.

The Associate Director is responsible for directing the work of several attorneys engaged in doing legal research on assigned cases and developing decision documents for the Board to consider. This includes reviewing, assessing, and making preliminary decisions during initial case screening. The Associate Director also reviews case decision documents completed by staff to discuss additional research or revision, if necessary. The position requires participation in an array of human resource functions including interviewing, recruiting, and selecting new attorneys. The Associate Director carries out a variety of special assignments for the Director of OAC, including oral presentations, legal research, and writing of professional papers on matters of law. Finally, the Associate Director represents the office and the agency at professional seminars or conferences, and responds to requests from other offices to comment on documents and studies that they have prepared.

The MSPB is seeking a candidate with superior law student credentials plus four years of professional experience.  The candidates should also have at least one year of experience at a level of difficulty comparable to the GS-14 level in the Federal service; a professional law degree (LL.B or J.D.) plus five years of professional legal experience, at least one year of which must be at a level of difficulty comparable to the GS-14 level in the Federal service; or Second professional law degree(LL.M) plus four years of professional legal experience, at least one year of which must be at a level of difficulty comparable to the GS-14 level in the Federal service.

Agencies Focusing on Employer Wellness Programs

by Lauren Khouri

Workplace wellness programs have recently become very popular with both employers and employees. In a study sponsored by the U.S. Department of Labor, 92 percent of employers with 200 or more employees reportedly offered a wellness program in 2009. Wellness programs are designed to improve the health of employees and therefore lower the cost of health insurance for employers. Examples of wellness programs include no-tobacco policies, health incentive payments and gift cards, discounted or reimbursed gym memberships, and free health coaching. Certain wellness programs also provide for discounted insurance premiums based on meeting designated health standards. The same policies typically also apply surcharges for those who do not meet those standards. The hope, for employers, is that wellness programs will improve the overall health of their employees, which in turn brings down the overall cost of health care.

The debate between employer- and employee-advocates regarding whether wellness programs are helpful or hurtful to the health insurance market recently intensified.  Participatory wellness programs, like discounted gym memberships, receive support from both sides of the issue. However, health-contingent wellness plans, where insurance premiums are based on health assessments, are vigorously debated. Employee advocates argue that health-contingent plans encourage discrimination based on health status, which can disproportionately affect minorities, women, and the aging population.

On May 3, 2013, the Internal Revenue Service (IRS) published a proposed rule regarding the Affordable Care Act (ACA) health insurance premium tax credit. Under the ACA, beginning in 2014, an employer must provide minimum health care coverage for its full-time employees. If it does not, the employer will pay an excise tax penalty. The proposed regulations tackle what qualifies as “minimum health care coverage” under the ACA. The proposed rule would not include wellness programs as part of the health care coverage package employers are required to provide. It does, however, create an exception for wellness programs that target smoking cessation.  The proposed regulation would not address the potential for discrimination, but it would guarantee that employers are providing adequate health care coverage, outside of what is provided through the workplace wellness plan.

The IRS’s proposed regulation comes one week before the May 8, 2013 Equal Employment Opportunity Commission (EEOC) meeting on the treatment of wellness programs under federal law. The hearing focused on how wellness programs interact with the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and other relevant statutes the EEOC works with.  The following witnesses testified on both sides of the issue:

• Christopher Kuczynski, Acting Associate Legal Counsel, EEOC
• Judith Lichtman, Senior Advisor, National Partnership for Women and Families
• Jennifer Mathis, Deputy Legal Director, Bazelon Center for Mental Health, on behalf of the Consortium for Citizens with Disabilities
• Amy Moore, Partner, Covington and Burling LLP, on behalf of the ERISA Industry Committee (ERIC)
• Karen Pollitz, Senior Fellow, Kaiser Family Foundation
• Leslie Silverman, Partner, Proskauer Rose, LLP
• Tami Simon, Managing Director, Knowledge Resource Center, Buck Consultants, on behalf of the American Benefits Council (ABC)

The new IRS rules are open to revision and comments, which are due by July 2, 2013. To submit a comment on the proposed rule online, visit here.

Lauren Khouri is a third-year law student at American University Washington College of Law.

8th Annual Homeland Security Law Institute

Registration is now open for the Section's 8th Annual Homeland Security Law Institute, to be held June 20 and 21 at the Capital Hilton in Washington, DC. Register online here.

This 2-day program features numerous panels and presentations on topics such as export control, transportation security, immigration enforcement, money laundering, and cyber security. The full brochure can be found online here. 13 CLE credits have been requested.

Pre-program workshops are also offered on Wednesday, June 19 at the law firm of Greenberg Traurif LLP, covering "Careers in Homeland Security" and "Homeland Security Law & Policy 101." A faculty reception will follow.

Register now to get the lowest early bird rates, expiring May 21.

Membership Mix & Mingle Next Week

Join Section members for the Spring Mingle Event on Wednesday, May 8, from 5:00 to 7:00. The event will take place on the 10th floor terrace of ABA Headquarters to honor Neil Eisner as Senior Fellow of the Section. All Section members are welcome. There is no charge, but an RSVP is required by May 7 to anne.kiefer@americanbar.org. Appetizers, beer, wine, and soft drinks will be provided.

ABA Headquarters is located at 740 15th Street NW, Washington, DC 20005.

CMS Proposes Changes to Part B Inpatient Billing Policy

by Shannon Allen

There are just a few weeks left to comment on the Centers for Medicare & Medicaid Services (“CMS”) proposed rule changing the Part B inpatient billing policy.  The proposed rule would rework Medicare Part B billing policies when Part A claims for hospital inpatient services are denied as “not medically reasonable and necessary . . . or when a hospital determines under § 482.30(d) or § 485.641 after a beneficiary is discharged that his or her inpatient admission was not reasonable and necessary.”

The CMS proposes that, “if the beneficiary is enrolled in Medicare Part B,” the hospital may “be paid for all the Part B services . . . that would have been reasonable and necessary had the beneficiary been treated as a hospital outpatient rather than admitted as an inpatient.”  This modified policy would “not apply to any other circumstances in which there is no payment under Part A” (e.g. when a beneficiary depletes Part A benefits for hospital services).

Under this proposal, the hospital could “re-code the reasonable and necessary services” provided as Part B services, and “bill them on a Part B inpatient claim.” The timely filing restriction to Part B inpatient billing would continue to apply.  It is estimated that this change “would result in an approximately $4.8 billion decrease in Medicare program expenditures over 5 years.”

The CMS’s proposal, however, “could create a unique liability issue for Medicare beneficiaries that did not previously exist.”  Beneficiaries, who previously had no “out-of-pocket costs” for a denied Part A claim, would be “responsible for applicable deductible and copayment amounts for Medicare covered services, and for the cost of items or services never covered . . . under Part B . . . .”  The CMS would“conduct an educational campaign and issue materials” to raise “beneficiary awareness.”

Comments should refer to file code CMS-1455-P and must be received by 5:00 PM on May 17, 2013.  Interested parties may comment in only one of the four following ways:  (Note: facsimile (FAX) transmissions cannot be accepted.)

• Electronically. You may submit electronic comments on this document to http://www.regulations.gov. Follow the “Submit a comment” instructions.
• By regular mail. You may mail written comments to the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-1455-P, P.O. Box 8013, Baltimore, MD 21244-8013.
• By express or overnight mail. You may send written comments to the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-1455-P, Mail Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.
• By hand or courier. Alternatively, you may deliver (by hand or courier) your written comments ONLY to the following addresses prior to the close of the comment period:
• For delivery in Washington, DC—Centers for Medicare & Medicaid Services, Department of Health and Human Services, Room 445-G, Hubert H. Humphrey Building, 200 Independence Avenue SW., Washington, DC 20201. 
• For delivery in Baltimore, MD—Centers for Medicare & Medicaid Services, Department of Health and Human Services, 7500 Security Boulevard, Baltimore, MD 21244-1850.  If you intend to deliver your comments to the Baltimore address, call telephone number (410) 786-7195 in advance to schedule your arrival with one of our staff members.

D.C. Circuit Allows CREW v. FEC to Move Forward

by Lou Kolodner

On April 2, 2013, the U.S. Court of Appeals for the D.C. Circuit reversed a District Court ruling in favor of the Federal Election Commission ("FEC").  Citizens for Resp. and Ethics in Washington v. Fed. Election Comm., 711 F.3d 180 (D.C. Cir. 2013). The District Court granted the FEC's motion for summary judgment of a Citizens for Responsibility and Ethics in Washington ("CREW") complaint challenging the FEC's delay in responding to a Freedom of Information Act ("FOIA").  The District Court held that CREW did not exhaust administrative appeal remedies.  The Circuit Court reversed the decision, allowing the case to move forward. The case hinged on “what constitutes [an agency] ‘determination' so as to trigger the exhaustion requirement.”  This was a case of first impression in the D.C. Circuit.

CREW is a nonprofit organization dedicated to promoting ethics and accountability in government and public life.  CREW promotes transparency through monitoring and exposing activities of public officials and federal agencies. In this case, CREW submitted a FOIA request to the FEC in March of 2011. The FEC acknowledged receipt of the request the next day. However, after the agency failed to produce any documents in two months, CREW filed suit in D.C. District Court.  The District Court granted the FEC's motion for summary judgment asserting that CREW had not exhausted administrative remedies.

The general rule governing this issue is that a party making a FOIA request must exhaust administrative remedies before filing suit in District Court. However, if an agency does not make and communicate its determination whether to comply with a request within certain statutory timelines, the party making the FOIA request has exhausted administrative remedies pursuant to 5 U.S.C. § 552(a)(6)(C)(i).

CREW argued that in order to make a determination within the meaning of the statute, an agency must at least inform the requester of the scope of the documents it will produce and the exemptions it will claim with respect to any withheld documents. Thus, CREW expected notice regarding the scope of the documents the FEC would produce in response to CREW's request. The FEC countered that an agency only needs to express a future intention to produce non-exempt documents and claim exemptions.

The D.C. Circuit agreed with CREW’s interpretation and application of the statute for four reasons. First, FOIA requires agency notification immediately upon making a determination on FOIA requests. Second, the agency must also immediately notify the requester of his or her right to appeal. In the instant case, the FEC failed to do so within the statutory timelines. Third, while FOIA provides for exceptional circumstances if an agency needs more time to make its determination, the FEC did not meet this statutory requirement. Fourth, the court agreed with CREW that FEC’s interpretation of the statute would negate the need for the exceptional circumstances provision.

The court held that in order to make a determination to trigger the administrative exhaustion requirement, the agency must at least: 1) gather and review the documents; 2) determine and communicate the scope of the documents it intends to produce and withhold, and the reasons for withholding any documents; and 3) inform the requester that it can appeal whatever portion of the ‘determination’ is adverse.

Even though the court sympathized with the difficulty that FOIA requests pose of executive and independent agencies, the agency must adhere to the 20-working day period absent unusual circumstances. The take home message of this case is that the statute does not allow agencies to keep FOIA requests bottled up for months for no reason.