Trump's Supreme Court pick may spar with CMS over regs

Gorsuch: “Hard to keep up” with federal agencies’ rules.
Gorsuch: “Hard to keep up” with federal agencies’ rules.

President Donald Trump's nominee for Supreme Court Justice recently sided with providers against federal agencies, a fact that should provoke joy in long-term care circles, according to observers.

Judge Neil Gorsuch, now of the U.S. Court of Appeals for the Tenth Circuit, has expressed skepticism in past court rulings over how federal agencies, including the Centers for Medicare & Medicaid Services, interpret their own rules.

In an opinion penned in May 2016 for a case involving CMS' attempt to recoup Medicare reimbursements from
a home health provider,
Gorsuch wrote that the number of regulations issued by federal agencies “has grown so exuberantly it's hard to keep up.”

“The Centers for Medicare & Medicaid Services estimates that it issues literally thousands of new or revised guidance documents (not pages) every single year, guidance providers must follow exactingly if they wish to provide healthcare services to the elderly and disabled under Medicare's umbrella,” Gorsuch wrote.

He goes on to ponder a “strange world” where government agencies are unable to keep up with their own “frenetic lawmaking.”

“Whatever else one might say about our visit to this place, one thing seems to us certain: An agency decision that loses track of its own controlling regulations and applies the wrong rules in order to penalize private citizens can never stand,” he added.

Gorsuch's thinking is in line with Trump's promise to reduce the number of rules issued by federal agencies— a move that may bring some ease to the heavily regulated healthcare industry. 

Trump issued an executive order in late January that would require two regulations to be eliminated for every new one introduced. The order also set a cap on the number of rules that can be introduced each year.

Gorsuch was appointed to the 10th Circuit by President George W. Bush. As of press time, his confirmation hearings were expected to begin in mid-March.