Assume for this question the following three things:
1. The Department of Health and Human Services (HHS), a federal administrative agency, circulates a proposed new rule (the Rule) implementing certain provisions of the Affordable Care Act (ACA).
2. You are an administrator of Good Health (GH), a health care organization that would be subject to the Rule.
3. Good Health opposes the Rule as currently formulated.
Good Health opposes the Rule for a variety of reasons. All of these reasons have to do with the fact that the Rule would increase Good Health’s cost of doing business. These costs would either need to be passed on to Good Health’s clients (in terms of higher fees) or absorbed via painful cost-cutting measures within the organization.
At the heart of Good Health’s opposition to the Rule is the definition the Rule uses for the term “skilled nursing care.” The Rule adopts an expansive definition of this term. A narrower definition of this term would not subject your organization to the Rule (or would significantly decrease the cost of Good Health’s compliance with the Rule).
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Assume that the term “skilled nursing care” already appears in the ACA, but was left undefined in the ACA. Assume further that the Fifth Circuit Court of Appeals and the Ninth Circuit Court of Appeals have reached divergent results as to the precise definition of “skilled nursing care.” These differing definitions were promulgated in different contexts concerning the ACA—not in any litigation over the proposed Rule itself.
The proposed Rule adopts the interpretation set forth by the Ninth Circuit. As alluded to, the Ninth Circuit interpretation of “skilled nursing care” was fairly broad; the Fifth Circuit’s interpretation was fairly narrow.
Based upon the material covered in this course, coupled with your own personal experiences and background, please set forth the various means by which your organization can attempt to block or modify the proposed rule. To the extent possible, please opine upon the related strength and weaknesses of each means identified—particularly as they relate to the mean’s potential efficacy and practicality.
Among the means you identify, please be sure to address:
• The rule-making process.
• Judicial challenges to agency action.
• The political process.
Your answer should be no more than five pages long. You should use the Times New Roman font, 12-point size. Your lines should be double-spaced and each of your margins set at 1″.