Trump's Supreme Court pick may mean trouble for CMS, healthcare regs

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Judge Neil Gorsuch, President Donald Trump's nominee for Supreme Court Justice, has a history of sparring with federal agencies over regulations, a tendency that could bring some relief to long-term care providers, observers say.

Gorsuch, a judge on the U.S. Court of Appeals for the Tenth Circuit, has expressed skepticism over how federal agencies, including the Centers for Medicare & Medicaid Services, have interpreted their own rules.

In an opinion filed in May 2016 in a case involving CMS' attempts 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 speculate about 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 wrote.

Gorsuch also has raised doubts about the “Chevron deference,” a 1984 court ruling that advises judges to defer interpretation of ambiguous regulations to the agencies that created them.

Aside from regulatory issues, Gorsuch also has worked extensively and authored a book on the legal and ethical ramifications of assisted suicide, a growing issue in the healthcare arena. In the book he states that he is a staunch opponent of euthanasia and aid-in-dying, due to his belief that “the intentional taking of human life by private persons is always wrong.”

Gorsuch's confirmation hearing is expected to take place in about six weeks, with some advocates hoping he can be approved in time to take part in the court's docket this spring.