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In a rapidly evolving healthcare landscape, particularly since the enactment of the Patient Protection and Affordable Care Act (ACA) in 2010, regulators have confronted a number of challenges in crafting general rules of prospective applicability for health insurance plans. These challenges include quantifying costs and benefits of regulatory actions that seem difficult to predict, monetizing certain benefits, satisfying the demands of a robust cost-benefit analysis regime, and accounting for heightened uncertainty in the healthcare markets and recently, on Capitol Hill.
I will examine these and other challenges faced by regulators through the lens of two regulations: a 2013 regulation promulgated by the Department of Health and Human Services (HHS)and a 2018 regulation issued by the Department of Labor (DOL). Part I of this Article examines the cost-benefit analysis conducted by HHS through the rule’s Regulatory Impact Analysis (RIA); Part II analyzes the DOL rule on the same grounds; Part III studies the contrasts that emerge between the two regulations; Part IV comments on how differently the two agencies have approached cost-benefit analysis; and in Part V, I examine two case studies drawn from two different agencies, each subject to the Office of Management and Budget’s (OMB) regulatory review, to consider how the two regulations can inform cost-benefit analysis.
Patient Protection and Affordable Care Act; Standards Related to Essential Health Benefits, Actuarial Value, and Accreditation, 78 Fed. Reg. 12,833 (Feb. 25, 2013).
Definition of “Employer” Under Section 3(5) of ERISA—Association Health Plans, 83 Fed. Reg. 28,912 (June 21, 2018).
Saving Lives Through Shaming
The Occupational Safety and Health Administration (OSHA) routinely employs shaming tactics toward employers, using public denunciations disseminated through social media, press releases, and online databases. These tactics, termed by the agency “regulation by shaming,” aim to name and shame companies into compliance with worker-safety regulations. In the face of heavy criticism of this practice, as well as legislative initiatives that aim to scale back OSHA’s regulation by shaming, this Article argues not only that shaming employers is an important regulatory tool that can help save workers’ lives, but also that OSHA’s “provocative” shaming tactics are in fact soft in comparison to other forms of regulatory shaming, and should be amplified.
The CFPB Arbitration Rule
This paper analyzes the recent enactment and subsequent rescission of the Arbitration Agreements Rule(Arbitration Rule or Rule) promulgated by the Consumer Financial Protection Bureau (CFPB or Bureau), which bans the use of mandatory arbitration clauses in many types of financial contracts. Specifically, the paper will examine the life and death of the Rule through the lens of the types of cost-benefit analyses (CBA) undertaken by the Bureau in issuing the Rule. This analysis will consider the unique structure and administrative position of the CFPB, and use its authorizing legislation in the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act(Dodd-Frank or DFA) to compare and contrast its cost-benefit analysis procedures with that of other administrative agencies, particularly in the financial regulatory space. Beyond the narrow scope of the application to the Arbitration Rule—and its rescission—this analysis will necessarily touch on larger constitutional, procedural, and governance challenges to the existence structure of the CFPB, a major contributor to the ire over the Rule in question.
Arbitration Agreements, 82 Fed. Reg. 33,210 (July 19, 2017) (to be codified at 12 C.F.R. pt. 1040).
Formally, the statute is the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376 (2010).
Beyond the Board: Alternatives in Nonprofit Corporate Governance
William M. Klimon
The diversity of the nonprofit sector is manifold. There is great variety in organizational form; nonprofit organizations have long been structured as corporations, charitable trusts, and unincorporated associations. Now the Internal Revenue Service (IRS) has recognized the exempt status of standalone limited liability companies.Likewise, the range of activities across the sector is stunning: healthcare, education, welfare, religion, the arts, and the environment. And even within those fields the diversity astounds: from a tiny free clinic to the Adventist Health System; from a new public charter school to Harvard University; from a Primitive Baptist chapel to the thousands of Roman Catholic congregations, orders, and organizations; from a community theater to the Metropolitan Opera. That immense diversity has affected even the relatively uniform world of nonprofit corporate governance.
The basic principle of board governance remains the standard for nonprofit corporations: “[e]ach nonprofit corporation must have a board of directors.”But attempting to legislate for such a diverse sector has led lawmakers to realize that one size does not fit all and not every non-profitmaking corporation is best served by traditional board governance. Consequently, the various state nonprofit corporation statutes include a really amazing variety of mechanisms to deviate from, supplement, or even override that basic principle.
The following discussion reviews many of these mechanisms. Reference will be made repeatedly to the Revised Model Nonprofit Corporation Act, promulgated by the Business Law Section of the American Bar Association (ABA) in 1987 and subsequently adopted by at least half of the states. The widespread adoption of that model law makes it a useful touchstone for exploring alternatives to board governance. But the great variety of nonprofit governance innovations is not ignored and several nonuniform state-specific provisions are also discussed
SeeInstructions for Part II, line 2 of IRS Form 1023.
SeeWilliam M. Klimon, Recent Developments in Nonprofit Corporate Governance, in National Business Institute,Tax Exempt Organizations Boot Camp283, 303-04 (2016).
Revised ModelNonprofit Corp. Act§ 8.01(a) (Am. Bar Ass’n 1987).