Supreme Court decision on environmental protection threatens health care rules

Health care rules could be called into question following a Supreme Court ruling last month that limits another agency’s powers to interpret laws.

While the decision may not have much immediate impact on healthcare, it creates an atmosphere of uncertainty that could hamper healthcare companies that need regulatory clarity to plan ahead.

The Supreme Court has ruled that the EPA’s method of limiting emissions is outside the agency’s powers delegated by Congress. 6-3 opinion written by Chief Justice John Roberts, indicates that the Court’s current majority believes important policy issues should be left to the legislature.

“Agencies have only the powers that Congress has given them… We suggest that “Congress intends to make important policy decisions for itself and not leave those decisions to agencies,” Roberts wrote in his opinion in West Virginia v. Environmental Protection Agency. ‘, citing the court’s decision. document from a separate case in 2017.

While the decision does not clearly affect health policy, it could have implications for the Department of Health and Human Services and the organizations it regulates, said Michael Teuter, a partner at the law firm Foley & Lardner.

The opinion of the Supreme Court is based on the doctrine of “basic issues”. Essentially, the courts can review any ruling presented by it and decide whether the substance of the rule qualifies as a “substantive matter” over which Congress, not the agency, should have authority. The Supreme Court has relied on this structure for more than two decades, but a decision last month indicates that the current court is skeptical of the administrative state, Tyter said.

The Supreme Court ruled that the EPA policy is considered “basic” because of its economic impact. But the high court did not rely on that doctrine in this term’s rulings about whether HHS correctly interpreted the disproportionate share of hospital payments law or the 340B drug rebate program, which cost billions of dollars each, said Robert Vanerman, an attorney. Epstein Becker Green law firm.

This lack of clarity could create problems for healthcare organizations, which are heavily regulated by HHS and the Centers for Medicare and Medicaid Services, Tutuer said. CMS alone submitted about 50 rulings to the White House Office of Management and Budget last year.

“To speak cynically, I think that you, of course, could object [the Supreme Court] decided to use the core questions doctrine because they didn’t like what they were looking at and that in the future they would use that when they didn’t like politics,” Tutuer said.

Crowell & Moring partner Tom Lorenzen agreed that companies should be prepared for uncertainty about rules as a result of the decision. It could take five to ten years to figure out the implications of this decision for healthcare regulation, he said.

“You really don’t know if these rules will survive the litigation until it’s over,” Lorenzen said. “Even if the agency’s structure seems reasonable…if it’s really a big deal, the courts will look at this rulemaking with some skepticism.”

While repealing some federal regulations may help companies, the uncertainty is generally bad for business, Tuter said.

Because the Medicare and Medicaid payment systems are governed by complex rules and claims can take years to resolve, health care organizations need certainty to make financial plans and the knowledge that the rules won’t change suddenly, Tuter said.

“They are looking at a stream of payments that will last for many, many years. And from their own perspective — in terms of planning, in terms of figuring out where they’re going to get their sources of income from — it’s better to just know what you can expect,” Teuter said.

But the vagueness of the core issues doctrine also means it can’t be seen as an automatic victory for those who try to challenge health regulations they don’t like, Vaneman said. “You’re probably taking a little risk if you’re going to hang your hat on this,” he said.

The question of whether anything is important is “difficult to do because the vast majority of what CMS does already fits either into a well-defined congressional mandate or into a long-recognised area in which they have been regulated for years” Weinman said.

Vaneman does not believe the EPA’s decision and its implications for judicial review will have an immediate impact on healthcare regulation. But he expects the decision will raise new challenges to federal regulations. HHS and CMS are likely to pay more attention to the text of the law when writing rules, he said. Regulators can also be more specific in advising congressional committees on health legislation, he said.

“They might say, ‘OK, we kind of anticipate this. We want to use more specific language so that we are not embarrassed by litigation,” Weinman said.

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