Kenneth (Kenny) White on LinkedIn: The US Sup Ct will take up a case this week that may have major… (2024)

Kenneth (Kenny) White

SVP Nat'l Practice Ldr - Managed Care, Admin Svs and Risk Based Healthcare

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The US Sup Ct will take up a case this week that may have major implications on executive branch/agency power including HHS and its "subsidiaries" like CMS. Over the last 60+ years, the congress has gotten more and more lazy ... drafting and passing massive bills an spending packages with little detail - deferring all the medium and fine print to the the Executive branch ... something in my opinion has been disastrous because it has shifted way too much authority to the executive ( a job that turns over every 4 or 8 years with significant impact - remember - elections have consequences). What the President cannot do in congress is simply done by agency rule and edict. The case of Chevron v. Natural Resources Defense Council decided in 1984 established precedent that for decades now has framed how courts view agency interpretations of legislation and vague/imprecise/open-ended legislative wording. In essence, unless thee agency interpretations is simply untenable and without any basis, the agency interpretation is to be given deference over any other interpretation (no matter how reasonable/sane or proper). The Court will hear argument on Wednesday in the Loper Bright Enterprises. v. Gina Raimondo case where an agency interpretation that a federal act gave it the authority to charge the fishing industry for federal monitoring under the act. The act was silent on the issue. The lower courts had upheld the agency action on the basis (at lest partially) of Chevron "deference". The Court has restricted agency power of late. If the Court overturns or restricts the application of Chevron deference, this could have significant impact in health care, one of the most regulated industries of all. HHS and its sub agencies have operated by "rule" on an aggressive basis especially as it relates to Federal health programs, the ACA, Covid, etc. If the Court reigns in agency deference, there will be significant change/risk in the industry. That does not mean it will be a bad thing. Change can be good. The decision in Loper and the reasoning given will be very important and should be watched.

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Andrew J. Demetriou

Counselor and Strategic Advisor to the Healthcare Industry

6mo

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Overruling Chevron will likely not make Congress any more responsible in passing legislation touching on complex matters, or displace the federal agencies in developing regulations to implement the laws, but it will greatly expand the role of the federal courts in reviewing agency actions, which depending on your views of where interpretation of the law ends and policy choice begins, may not be a desirable outcome. If Chevron is overruled it will be incumbent on the Court to put some boundaries on the discretion of the courts in dealing with regulatory cases.

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