The Rules of Health Law

I’ve had the opportunity to gain a great deal of practical skills during my time in law school.¬† I took a course on contract drafting, where I learned to review, edit, and write a variety of agreements. I did a health law externship, which allowed me to spend time outside of the school and gain experience dealing with legal issues related to clinical research, drug development, and conflicts of interest. This semester I decided to take a class that combines my interests in health law and administrative law. A class that has never been offered before. A class known as Administrative Rule Making in Health Law.

This was my first course with Professor Kevin Outterson, who teaches health law and corporate law here. I have taken many seminars at BU Law, but not one like this. Professor Outterson structures the course like a clinic, allowing us to participate in an agency’s rule making process directly. We get to choose an agency and a rule that is related to health law and open for comment. We then take a stance on the rule that has been proposed and write a comment to the agency advocating our position regarding how the final rule should look. Professor Outterson provides feedback and advice throughout the course to help make our comments more effective, but in the end it is our name on the comments that will be submitted and read by the agencies.

I chose the Centers for Medicare & Medicaid Services, otherwise known as CMS, as my agency. The Proposed Rule I chose to comment on was on that related to the coverage of¬†preventive services under the Affordable Care Act. I wrote my note for the American Journal of Law & Medicine on the cases leading up to Burwell v. Hobby Lobby Stores, Inc, which was decided by the Supreme Court this summer. This rule was a response to the Court’s ruling and proposed to change the definition of an “eligible organization” that could receive an accommodation instead of being required to provide contraceptive coverage to which it religiously objected. I felt the need to comment on this rule to make sure the regulations stayed true to the Court’s reasoning in Hobby Lobby and made sure the definition remained narrow.

Writing the comment involved plenty of research. I read through many articles and treatises on corporate law, especially the law related to close corporations. The Proposed Rule sought to add a “closely held for-profit corporation” to the definition of an “eligible organization,” so I included precedent from state and federal law as well as data from studies to support the idea that such a corporation should have a limited number of shareholders.

Professor Outterson was a great resource for both the health law and corporate law components of my comment. He suggested sources to find and read, helped me to refine the thoughts I had on different parts of the rule, and guided me in writing a comment that an agency would not only be forced to respond to, but one they would be interested in reading. By taking a clear position and providing support for that position, I was able to write and submit a comment I was proud of. I look forward to seeing how the agency responds.

If you’d like to read my comment, just click on the following link:

Zachary Rothman Comment on Proposed Rule CMS-9940-P


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