The Centers for Medicare and Medicaid Services (CMS) is ramping up efforts to limit patients’ access to pain medication without giving affected parties sufficient notice or opportunity for comment. Since the start of 2017, CMS has released three separate guidance documents on how insurers and payers should impose new limits on the use of opioids. While opioid abuse undoubtedly presents a serious public health issue, CMS should take steps to foster transparency and avoid harming patients and providers alike by offering them a meaningful opportunity to participate in the development of policies that could limit pain management. CMS also must do more to ensure that it adheres to statutes requiring complete openness whenever it solicits advice from advisory committees that include members who are not federal government employees. Continue reading
Gordon v. CFPB: Will the High Court Halt an End-Run Around the Appointments Clause?
The program featured commentary on WLF cert petition on behalf of our client Chance Gordon currently pending before the US Supreme Court. The Court may decide as early as this Thursday, May 25, on our review request. WLF’s petition argues that the Consumer Financial Protection Bureau could not lawfully prosecute a claim against Mr. Gordon at a point when the agency lacked a lawfully appointed director.
Our Gordon v. CFPB page, which contains our briefs and press releases in the case, is available here.
By Arielle Roth, The Hudson Institute*
It came as no surprise last week when the US Court of Appeals for the DC Circuit denied the request for en banc rehearing in US Telecom v. FCC, better known as the “net neutrality” case. As a technical matter, the panel decision upheld the Federal Communication Commission’s 2015 Title II order, which reclassified broadband Internet as a “telecommunications service” and in turn subjected broadband providers to common carriage regulation. Such a grant would have been rare in any event. Further, in the view of Judge Sri Srinivasan’s opinion concurring in the denial of rehearing, the issues were unfit for judicial review in light of the announcement by current FCC Chairman Ajit Pai of a rulemaking to reverse the previous FCC’s order.
On the contrary, it is precisely because the current FCC seeks to undo the rules in question that the DC Circuit ought to have granted en banc rehearing. Continue reading
Promulgated in April 2016, the Department of Labor’s (DOL) highly controversial Fiduciary Rule drastically expands the universe of retirement investment advisors and employees who are deemed to be “fiduciaries” under federal law. Abandoning 40 years of settled statutory interpretation of the Employee Retirement Income Security Act of 1974 (ERISA) and parallel provisions of the Internal Revenue Code (IRC), DOL now maintains that a fiduciary is anyone who provides “recommendations” that are individualized or directed to a specific recipient for consideration in making investment or management decisions with respect to securities or other property of an ERISA plan or an IRA. Continue reading
In 2016, the Sierra Club filed suit in Oklahoma alleging that use of state-permitted deep wastewater injection wells was causing increased seismic activity—both in frequency and severity. Sierra Club v. Chesapeake Operating, LLC, et al., Case No. CIV-16-134-F, United States District Court for the Western District of Oklahoma.
In an April 4, 2017 Order the court dismissed the case, declining to exercise jurisdiction because doing so would interfere with the state regulators’ efforts to address the alleged increased seismic activity from wastewater injection. Continue reading
By Lawrence A. Kogan*
For decades, federal agencies have incrementally extended their control over agricultural lands by expanding the definition of “waters of the US” (WOTUS) under the Clean Water Act (CWA) and asserting broad legal jurisdiction over WOTUS-adjacent “wetlands.” Those efforts triggered intense legal conflicts, facilitated the CWA’s growth into a “regulatory hydra,” and caused a “reversal of terms [in our unique relationship with government] that is worthy of Alice in Wonderland.”1
President Trump recently issued Executive Order 13778 as the first step aimed at curtailing this government juggernaut. The order directs the heads of the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (the Corps) to review for substantial revision or rescission their jointly issued 2015 CWA regulation that expanded the definition of “WOTUS.” Presumably, EPA’s review of this regulation will be undertaken while the October 9, 2015 federal court-issued stay of its implementation remains in place.2 Continue reading
President Trump signed a Congressional Review Act (CRA) resolution on April 3, 2017 that nullified the Federal Communication Commission’s (FCC) privacy rule aimed at Internet Service Providers (ISPs). As discussed in the WLF Legal Pulse’s reading list for FCC regulators last month, the Commission adopted the rule just before the 2016 election over the opposition of two Commissioners (including one who has since become FCC Chairman). WLF filed comments last May opposing the proposed rule. Many media commentators and self-styled consumer advocates proclaimed that the proverbial sky was falling due to the nullification. Such ideologically-fueled Chicken-Little rhetoric, however, does not reflect reality.
Post-nullification analyses bemoaned ISPs’ collection of consumers’ “personal information” and the ability of these companies to sell such information to expand their businesses. Nay-sayers’ complaints essentially boiled down to the bromide offered in the Washington Post: the CRA resolution “wipe[d] away landmark privacy protections for Internet users.” Continue reading