These days, with everything happening in long-term care, discussions are often focused on minimum staffing, lack of staff, increased enforcement, and focus on quality of care and technology.  That’s a lot to deal with on a daily basis.  

As long-term care providers, facilities are used to dealing with and navigating through the morass of state and federal administrative agencies that promulgate the many rules, seek enforcement, or interpret laws that directly impact and regulate healthcare operations every day.  

But there are two cases happening at the U.S. Supreme Court level that could transform the way that governmental healthcare administrative agencies operate, and that may provide a basis for nursing homes, and other heavily regulated healthcare providers, to challenge agency decisions.  

The two cases before the Supreme Court may dramatically impact all administrative agencies, definitely including healthcare, and those SCOTUS decisions are expected soon, in July 2024.  The cases are Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce. They challenge the Chevron doctrine, which is a policy borne out of a 1984 landmark decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, which held that US courts should give substantial deference to federal agency decisions.  

Chevron has been around and interpreted in the same way for 40 years, and in more than 19,000 cases over that time.  However, now that the Chevron doctrine is being brought into question by the US Supreme Court. At issue is a time-old operation of government: To what extent should agencies be allowed to interpret statutes or even issue regulations in furtherance of that statute?  Under the Chevron doctrine, agencies were given substantial deference to interpret congressional legislation, with the idea that agencies are better equipped to do so than the courts.   

What this means 

If the Supreme Court decides to limit Chevron and the deference paid to agencies, then that means that healthcare providers could more easily challenge or call into question agency actions and interpretations… period!  In other words, courts, not agencies, would be given more power to interpret an agency’s own actions with regard to the agency’s authority conveyed by Congress.  There are many ways the Court could rule here, but below are just two possible ramifications based on possible rulings in Relentless and Loper.

Narrowing Chevron:  If the Supreme Court decides to narrow the Chevron doctrine, then it could limit agency discretion and power if it explicitly requires Congress to specifically grant agency discretion in the statute itself. Without such congressional language in the statute itself, an agency would not be afforded discretion in interpreting a statute as it has had under Chevron all these years.

Eliminating Chevron:  If the Court decides to overturn Chevron altogether, that would mean that no agency deference would be given, and courts could rule de novo (on their own) in reviewing each agency’s exercise of discretion or judgment, reviewing the entire record with fresh eyes to see if the agency’s interpretation of the law is correct. Of course, overturning Chevron would give courts substantially more power and could allow for more litigation challenging agency interpretations.  (And we haven’t even talked about possible litigation over past uses of Chevron and whether those appeals would be allowed in the face of a decision overturning Chevron).

Many experts agree that Chevron will most likely be narrowed in some way with these two decisions. But how much and to what extent remains to be seen. 

Concluding thoughts

Healthcare providers may think such a Supreme Court decision affecting Chevron is good news by the mere fact that it would allow their regulators that have burdened them for so many years to now be challenged more forcefully and more easily, with greater court oversight.

However, there is also some bad news if the Supreme Court decision were to come down. A decision limiting Chevron deference also could provide more uncertainty when it comes to agency interpretations. Remember: Not all agency interpretations are “bad” for healthcare providers.  Sometimes they provide good guidance and even help to providers.  

In other words, under Chevron, providers have operated under a system of regulations and interpretations by agencies that have provided certainty and guidance over the years on how to operate and comply within those regulations and statutes. 

In other words, providers have learned over time to operate within the confines of agencies and their interpretations.  But if Chevron is overturned or narrowed, then, yes, interpretations by agencies will admittedly be called into question, but also, that same interpretation that provided certainty and which was relied upon by providers could also be subject to further challenge and new interpretation by courts. 

Such a result could remove the certainty of relying on agencies that many healthcare providers have been used to for the last 40 years. 

Neville M. Bilimoria is the Managing Partner of the Chicago Office, Partner in the Health Law Practice Group and member of the Post-Acute Care And Senior Services Subgroup at Duane Morris LLP.

The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.

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