What happens when providers and regulators disagree about how best to interpret a vague regulation?
The answer is easy: Providers lose. That’s largely due to an exotic legal term called the Chevron deference.
For nearly four decades, this doctrine has been a foundational framework in administrative law. Boiled down, it holds that government agencies know best when it comes to clarifying federal statutes, so long as the interpretation is reasonable.
That means agencies have quite a bit of wiggle room when it comes to marrying an existing statue to unforeseen circumstance. And if you don’t like the ruling on the field? Sorry, there is no replay booth.
But it appears that the doctrine may soon get dismantled, or at least seriously defanged. The prevailing view is that should that happen, operators could greatly benefit. And for that they can thank herring fishermen. Well, that and a conservative-leaning Supreme Court.
The latter did not appear to give the doctrine much in the way of deference during oral arguments on two related cases last week. The plaintiffs were fishing vessel owners in the Atlantic herring fishery. Their stated objection: being forced to pay for government monitors.
While the case seems simple, it raises some interesting philosophical questions about the role of government. In fact, fishing-related concerns were hardly mentioned during oral arguments. Instead, the justices kept coming back to the doctrine.
Justice Neil Gorsuch, a conservative with longstanding misgivings about the Chevron deference, was particularly harsh.
“Chevron is exploited against the individual and in favor of the government,” Gorsuch said.
The court’s three liberal justices countered that reversing the doctrine would force courts to make policy decisions best left to experts employed by federal agencies.
“I see Chevron as doing the very important work of helping courts stay away from policymaking,” Justice Ketanji Brown Jackson said, adding later: “I’m worried about the courts becoming über legislators.”
A decision overruling Chevron would likely require Congress to craft more detailed legislation that delegates powers more specifically. It also could “have a significant impact” in keeping administrative agencies from overreaching when such delegation doesn’t exist, said Mark Reagan, managing shareholder of Hooper, Lundy & Bookman.
“This will have impact across the entire regulated economy, including Medicare, Medicaid and other healthcare legislation,” he told McKnight’s.
A final ruling on the matter is expected in June. But it’s already clear the Supreme Court will deliver this message to those who side with regulators: Go fish.
John O’Connor is editorial director for McKnight’s. Opinions expressed in McKnight’s Long-Term Care News columns are not necessarily those of McKnight’s.
