administrative law

U.S. District Judge Richard Berman of the Southern District of New York ruled last week that the Securities and Exchange Commission is likely to lose the fight to defend its use of in-house judges as constitutional, The Wall Street Journal's Eaglesham reports. Berman, who previously ruled the SEC’s system of having its in-house judges named by the staff, rather than the agency’s commissioners, may violate the constitution, said he thinks the SEC's appeals will fail.

The SEC in-house courts have been criticized as unfairly biased in favor of the agency's position in cases.

The Securities and Exchange Commission is defending its use of in-house courts to handle enforcement of financial regulations, The Wall Street Journal's Jean Eaglesham reports: "The SEC accused several defendants of 'judge shopping' by trying to get a case heard in a particular court and in another instance asked one of its own judges to submit a formal statement about whether he has ever felt pressure to favor the agency."

Seven cases have been brought by defendants against those in-house courts, and they argue the administrative-law process denies them important protections. One federal judge has said the process is likely unconstitutional.

For the first time, the Securities and Exchange Commission has provided guidance on when it chooses in-house judges to preside over securities cases, the Wall Street Journal's Aruna Viswanatha reports. The SEC revealed "it would consider bringing cases before its in-house courts when the alleged misconduct was old or if it presented unsettled legal issues."

The SEC got the ability to bring cases before administrative law judges in the 2010 Dodd-Frank law. The SEC has won 90 percent of those cases.

Defendants are arguing that the SEC's administrative-law process violates their due process rights.

The Otoe-Missouria Tribal Nation is suing the Connecticut Department of Banking over the agency's efforts to curb the payday loans the tribe offers over the Internet, The Connecticut Law Tribune's Jay Stapleton reports. The tribe argues Connecticut's administrative enforcement action to stop its payday-loan businesses violates its tribal sovereignty. The tribe's lending companies charge up to 700 percent.

The U.S. Court of Appeals for the Second Circuit ruled against tribal immunity in a similar lawsuit.

The waiting time for appeals over Medicare coverage has been cut in half, Kaiser Health News reports: "The Office of Medicare Hearings and Appeals (OMHA) has decided most of the 5,162 cases filed by beneficiaries in the fiscal year ended Sept. 30, plus 1,535 older cases, according to statistics provided to Kaiser Health News. That’s a dramatic change from the year before, when a third of beneficiary cases (1,493) were not decided and nearly half (1,705) of the 2012 cases also were unresolved."

The office is still a long way from meeting the federal requirement that an appeal be decided within 90 days after a request for a hearing.

The progress in addressing the Medicare-coverage backlog has been at the expense of appeals filed by healthcare providers like hospitals, nursing homes and medical-device suppliers. There are 900,000 appeals from healthcare providers, and the wait times for their appeals have doubled because appeals from beneficiaries have been prioritized.

Even though the National Transportation Safety Board ruled that the FAA can fine drone operators for commercial use of their aircraft, including toy models, Popular Mechanics reports that the ruling was narrowly focused on "'whether unmanned aircraft systems are subject to an aviation safety regulation concerning reckless operation.'" A rule to integrate drones into American airspace will take up to a year before it goes into effect, Popular Mechanics further reports.

After years of delay, the Federal Aviation Administration is close to releasing a ruling to allow smaller drones operated by commercial enterprises like media companies to fly in American airspace, National Defense Magazine's Yasmin Tadjeh reports. Jim Williams, manager of the FAA’s UAS integration office, said "we hope that it will be published before the end of this year." Under the 2012 FAA Modernization and Reform Act, drones weighing less than 55 pounds were to be integrated into the domestic airspace by September 2015.

David Hoffman, writing in a Washington Post opinion piece, notes that the Food and Drug Administration has long wanted to curb the use of antibiotics on farms out of the concern that their overuse will make bactera resistant to the drugs. The agricultural industry has pushed back, especially regarding the use of tetracyclines, antibiotics that are not used in humans as much as it is used in animals. Hoffman notes that "research, by a team that included H. Morgan Scott of Texas A&M University and Guy Loneragan of Texas Tech University, showed that the use of a tetracycline led to 'co-selection,' a process in which the antibiotic expanded the population of bacteria that are resistant to otherantibiotics as well." The FDA now has asked drugmakers to voluntarily stop producing antibiotics for growth promotion and all have agreed. The FDA also will require antibiotic use in livestock to be supervised by veterinarians.

Computerworld's Jaikumar Vijayan writes that pressure is mounting on the Federal Aviation Administration to issue rules governing private drone use with Amazon and Google working on plans to use drones for commercial purposes and trade group Association of Unmanned Vehicle Systems International and other groups like media companies sharply criticizing the agency for moving slowly on rules to integrates drones into American airspace. The FAA is still more than a year away from releasing final rules, but a spokesman told Computerworld that the agency is on track to issue an intial draft of its rules before the end of the year.

Information technology is changing health care. Federal regulators are looking to draft rules to protect patient safety in this new landscape.

The Food and Drug Administration is trying to draw up a framework for the FDA, the Federal Communications Commission and the Office of the National Coordinator for Health Information Technology to regulate information technology related to medical devices, electronic health records, and other health IT, the Washington Post reports.

The recent report on the plan is out for public comment and "signals that the FDA might pursue a loose regulatory framework for some elements of health-care IT, allowing technologists to innovate without being burdened by federal oversight, said Gartner analyst Wes Rishel," the Post further reports.