Week in Review

IN THE NEWS

• The U.S. Supreme Court agreed to hear an appeal of a U.S. Court of Appeals for the District of Columbia Circuit decision finding that a set of fuel companies lacked standing to challenge a waiver granted by the U.S. Environmental Protection Agency (EPA) that allowed California to set stricter fuel emissions standards than those imposed by other states and the federal government. The Court, however, will limit its review to the question of the fuel companies’ right to sue, and will not address the merits of EPA’s waiver.
• The U.S. Senate voted to reject President Biden’s renomination of National Labor Relations Board (NLRB) Chair Lauren McFerran, whose term expired this week. McFerran, a Democrat, served as NLRB Chair since 2021 and oversaw several major Board rulings, including establishing a process to unionize apart from secret ballot elections and holding that employers’ anti-union captive-audience meetings are unlawful. Without McFerran, Democrats will hold a 2-1 majority at the NLRB, with two openings left for President Elect Donald Trump to fill. McFerran’s renomination vote was split 49-50, with former Democratic Senators Joe Manchin (I-W. Va.) and Kyrsten Sinema (I-Ariz.) casting the deciding votes.
• The U.S. Supreme Court declined to hear a challenge to New York’s Affordable Broadband Act (ABA), allowing the law to take effect. The plaintiffs in the case were several trade groups that represented internet service providers (ISPs). The ABA requires ISPs to service low-income households at capped rates with exemptions for smaller businesses and a 2 percent cap on annual rate increases. The U.S. Court of Appeals for the Second Circuit reversed a district court ruling in April, holding that states may regulate ISPs because the Federal Communications Commission stripped itself of regulatory authority in 2017. Some ISPs challenged the law because it mandated that they charge “below-market rates,” though many major carriers in NY carried similar low-income options even before the law took effect.
• The National Highway Traffic Safety Administration (NHTSA), a part of the U.S. Department of Transportation, finalized a rule that will require cars to warn users when rear seat belts are not fastened. This rule, which will apply to all new vehicles as of September 1, 2027, is aimed at encouraging seat belt use and preventing serious injuries. At present, regulations only mandate seat belt alerts for front seats. NHTSA estimates that this new rule will save more than 50 lives each year.
• The U.S. Department of Transportation (DOT) issued a final rule to provide “safe and dignified assistance” to disabled people who travel on commercial airlines. The rule requires annual training for airline personnel who assist travelers with mobility disabilities and requires that passengers with disabilities receive prompt assistance when boarding and deplaning. The rule also clarifies that the agency will assume that airlines are at fault when it returns a checked wheelchair or other device with damage at the end of the flight. DOT estimates that airlines damage or destroy 10,000 to 15,000 mobility devices every year. The rule strengthens the Air Carrier Access Act, which prohibits airlines from discriminating against people with disabilities on flights.
• The U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) announced several new measures to strengthen oversight of meat, poultry, and egg processing facilities. FSIS’s actions are designed to respond to recent Listeria monocytogenes foodborne illness outbreaks and “ready-to-eat” meat and poultry recalls, such as the November Boar’s Head outbreak which led to 10 deaths. FSIS will test for a broader range of Listeria species at processing sites and will require more senior inspection staff to visit sites. FSIS will also update its federal–state food inspection cooperative agreements to include specific Listeria risk factors for ready-to-eat meat and poultry.
• The Office of Personnel Management (OPM) issued a final rule to restrict agencies’ ability to place federal employees accused of misconduct on extended periods of administrative leave. The rule limits agencies placing employees involved in a personnel investigation to a maximum of 10 workdays of administrative leave per calendar year. If an employee’s leave exceeds 90 days, the agency must notify Congress and provide a justification for the extended leave. The rule implements provisions of the Administrative Leave Act of 2016.
• The Federal Trade Commission (FTC) issued a final rule banning live-event ticketing, hotel, and short-term rental companies from including hidden fees in their total price. The rule requires businesses to “clearly and conspicuously disclose the true total price inclusive of all mandatory fees” before checkout. Businesses must also display the total price, including all fees, more prominently than other pricing information. The final rule, however, does not limit what sellers can charge for their product or service. The FTC estimated that this rule will save consumers up to 53 million hours per year of wasted time spent searching for the total price in these industries.

WHAT WE’RE READING THIS WEEK

• In a recent National Bureau of Economic Research working paper, Amy Finkelstein, a professor of economics at the Massachusetts Institute of Technology, Katherine Baicker, a professor at the University of Chicago Harris School of Public Policy, and Sarah Miller, an associate professor at the University of Michigan Ross School of Business, explored the impact of Medicaid coverage on subsequent criminal charges or convictions. As the authors explained, some policymakers have advocated for increased Medicaid coverage as a way to reduce crime, and several empirical studies have supported this approach. Finkelstein, Baicker, and Miller built their study around the 2008 Oregon Health Insurance Experiment, which randomly granted Medicaid eligibility to some low-income individuals but not others. By combining this lottery data with criminal record data, the authors found that the granting of Medicaid coverage had no statistically significant effect on subsequent criminal behavior. While other studies found an impact among high-risk subgroups, the authors note, these effects may not be present in a more general population.
• The U.S. Government Accountability Office (GAO) published a review of efforts by the Department of Health and Human Services’ (HHS) to implement cybersecurity measures. HHS is the lead federal agency for health care and public health critical infrastructure, which has been the target of recent threats, including the ransomware attack and data theft of UnitedHealth-owned company Change Healthcare in February. GAO recommended that HHS improve its monitoring of health care sector ransomware protection, and that the Centers for Medicare and Medicaid harmonize their cybersecurity policies with other federal agencies to avoid unnecessary conflicts. Improvements that GAO identified could mitigate attacks’ effects on patients, such as cancellation of urgent care surgeries and radiology appointments.
• In a forthcoming article in the Indiana Law Journal, Jennifer Oliva, a professor of law at the Indiana University Maurer School of Law, explored the deadly effects of unregulated algorithms that health insurers use to decide whether a particular treatment is “medically necessary” and, thus, covered by its plan. Olivia contended that use of these algorithms results in improper claim denials and delays in patient care. Oliva argued that recent federal regulations to improve transparency of these algorithms are inadequate. For instance, Olivia explained that the regulations only apply to specific government insurance programs, fail to set a criteria for when a treatment is “medically necessary,” and ignore the lengthy appeals process which incentivizes insurers to “strategically delay expensive care.” To address these issues, Oliva urged Congress to expand the Federal Drug Administration’s authority to include oversight of these algorithms, enabling the agency to evaluate their safety and efficacy before they are used by insurers.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Gabriel Scheffler of the University of Miami School of Law warned that the first Trump Administration was “waiving away” Medicaid coverage by granting Section 1115 waivers to states seeking to impose work requirements for Medicaid eligibility. Section 1115 of the Social Security Act allows the Secretary of the U.S. Department of Health and Human Services to waive conditions that would otherwise be required for Medicaid funding. As Scheffler highlighted, previous administrations tended to use Section 1115 waivers to expand coverage or experiment with new care delivery methods, rather than using the program to restrict coverage.