This transcript has been auto generated
00;00;05;01 - 00;00;28;28
Meg Pekarske
Hello and welcome to Hospice Insights: The Law and Beyond where we connect you to what matters in the ever changing world of hospice and palliative care. What a Difference No Deference Makes: Courts No Longer Bow to Administrative Agencies. Bryan, I’ve been wanting to do this podcast with you for quite some time because this was a big, big deal.
00;00;28;29 - 00;01;02;20
Meg Pekarske
We’re talking about and this is maybe one of our legal heavy podcasts because we're talking about a U.S. Supreme Court case that just well, it’s not just but it’s still a recent case turning over longstanding precedent. And so but for our non-lawyer listeners, I mean, this has a big effect on lots of things hospices care about. So I think it is really helpful for compliance and executives to understand this new ruling.
00;01;02;21 - 00;01;35;03
Meg Pekarske
So we’ll try to make it snappy and not too boring, but anyone who’s gone to a law school in the last, what, 30 or 30, 40 years? Yeah, 30, 40 years. Chevron was a case everyone knew about and people would talk about Chevron deference. But why don't you talk about the state of affairs prior to this Loper decision that just came came down.
00;01;35;13 - 00;02;00;06
Bryan Nowicki
Yeah. And this why? This is kind of a legal nerd episode, perhaps. But, you know, 30, 40 years ago, anybody who went to law school, they’re going to learn about Chevron deference and what the court did in the Chevron case. It talked about statutes and statutes are something that Congress enacts regulations, on the other hand, or something that administrative agencies enact.
00;02;00;07 - 00;02;31;24
Bryan Nowicki
So in the Chevron case, the court said if a statute is ambiguous, we’re going to defer to the administrative agency that enforces that statute and will defer to their interpretation of that statute as long as it's reasonable. And so you had a a shift at that time to administrative agencies being able to define what certain statutes meant. That had been something that courts did.
00;02;31;28 - 00;03;09;12
Bryan Nowicki
The courts say what the law is that's no centuries old president precedent. But but with Chevron, there was this shift over to administrative agencies. The idea behind it was that some of these statutes that Congress enacts, they touch upon very intricate, detailed issues. Health care certainly is one of them. You know, nuclear waste, environmental protection, all these things where the agencies staff hundreds if not thousands of scientists and all sorts of people who know the the science behind the laws.
00;03;09;28 - 00;03;35;25
Bryan Nowicki
And the thinking was, well, let’s let those experts kind of fill out the ambiguities, flesh out the ambiguities in some of these statutes. And I think at the time, it was seen as, you know, not a bad idea. Let’s let the experts help frame that. And I think over time, however, it became subject to a lot of criticism saying that, well, I thought courts were supposed to interpret the law.
00;03;36;06 - 00;04;04;16
Bryan Nowicki
And are we giving too much power to the administrative state to take something Congress did? And that may be interpreted in a way that it was not clear Congress would have approved of that. But still, we’re going to defer to these agencies. You know, how does that make sense? So that was where we were. Chevron had been under attack, certainly with the current court majority, which is more conservative, you know, over the past five, ten years.
00;04;04;16 - 00;04;13;13
Bryan Nowicki
And it was this kind of waiting for that case when Chevron would be overturned. And that happened this part in a decision I think issued in June or May or.
00;04;13;14 - 00;04;46;15
Meg Pekarske
Yeah, which is Loper Bright case, which is, as you said, Bryan, about a complicated area, which is it's about fishing and regulation and all this stuff, which I don’t we need to go into the details of that case. But but the holding of the case was I'm doing a drum roll here, Bryan already disclose what it was by, but because it didn’t say what agencies say don't matter.
00;04;46;15 - 00;04;52;18
Meg Pekarske
Right. It’s like agencies interpretation. They can still interpret their own regulation but.
00;04;53;11 - 00;05;20;24
Bryan Nowicki
Well, yeah. And and now they're not going to the agency’s interpretation is not going to control what the court’s conclusion is under Chevron. If an agency interpretation was reasonable, the court had to adopt it. Now, the court doesn't have to adopt. There could be multiple reasonable interpretations, one, that the agency arrives at, one that whatever party is suing, the agency has.
00;05;21;09 - 00;05;54;18
Bryan Nowicki
And ultimately now the court’s going to decide without deference to the agency. And like you said, Meg, the agency might have important things to say about it. The agency has experts, all that. And now typically those attacking agency actions also have their own experts that they bring to bear. So there’s often a balance of expertize, but now the court is free to just take all of these competing proposed interpretations of ambiguous statute and then decide for itself without having its hands tied.
00;05;54;28 - 00;06;13;09
Bryan Nowicki
I think in a lot of these Chevron type decisions, a common kind of reference or statement would be, although I don’t agree that the agency's interpretation is the best interpretation, it’s a reasonable interpretation, and therefore I give it deference that that won't happen anymore.
00;06;14;01 - 00;06;50;28
Meg Pekarske
So what agencies think and say in interpreting their rules does matter, but it's not the end all, be all. And then importantly, Congress can still act right to essentially explain what it wants to do or it was intending to do. And so so that's important, too. It’s it’s right. You have the executive branch does like I’m thinking Sesame Street here, right.
00;06;51;12 - 00;07;16;29
Meg Pekarske
Or whatever that was where you have the different branches of government. I can remember watching Iraq. That’s when I was coming back to watch TV after school. But, you know, you have the courts, you have Congress, you know, and then you have the executive branch. And so they can all they all contribute to to stir the pot here.
00;07;17;14 - 00;07;46;14
Bryan Nowicki
Well, right. So Congress has been passed statute. The agency is going is usually empowered are often empowered to enact regulations under the authority. That statute. And then the courts are the ones who interpret those agencies, enact regulations and enforce of the courts, interpret that. And Congress is still able to kind of cede power to the agencies, but it has to do so explicitly.
00;07;47;10 - 00;08;12;10
Bryan Nowicki
Under Chevron, it was if there was an ambiguity that the agency could just step in and said, I’m going to resolve this, and okay, the court had to defer to that. Now, with Loper Bright doesn’t have to, but if Congress says we're going to pass this statute and we want this agency to be the one to resolve any ambiguities, then the court still has to respect that directive from Congress.
00;08;13;05 - 00;08;32;22
Bryan Nowicki
But but I think you’ll see Congress deciding when it wants to grant the agency that additional power or withhold that additional power so that the courts are the ones to decide it. And, you know, I think it gets into your philosophy of government. You know, what what are your what’s your take on the administrative state? Is it a good thing or a bad thing?
00;08;32;22 - 00;08;37;17
Bryan Nowicki
Too big to small? That kind of drives a lot of the the thinking around this issue.
00;08;38;16 - 00;09;05;27
Meg Pekarske
Well and by law school is boring and practicing law is much more fun because. Yes, just reading about this, if you have nothing to apply it to, it’s sort of like, oh, okay. But I think, you know, we we explore these questions a ton in the work that we do because, you know, when you’re training, young lawyers are always like, what does the statute say?
00;09;05;28 - 00;09;37;21
Meg Pekarske
What does the regulation say? What did rule commentary say? And all this stuff when we’re doing, you know, regulatory analysis and, you know, audit appeals and other things. Because I think and all of health care and all of are all, as you said, areas that have different expertise that are all sort of this is this is a huge deal, the legal community, because I think everyone's rethinking everything and, you know, and.
00;09;37;23 - 00;09;42;17
Bryan Nowicki
Agency suits are more and more lawsuits. Yeah, it’s good for attorneys.
00;09;42;26 - 00;10;10;25
Meg Pekarske
Yeah. But I mean, this was like. I mean, big, big, big, big news. But I think the fun part of this is, well, how does this impact my little world of of hospice and what we interface with? And I know, Bryan, you put together some ideas of how you think the law appropriate case may impact some of the things that we talk about.
00;10;10;25 - 00;10;18;03
Meg Pekarske
So the first thing you had on your list was Hospice Special Focus Program. So what are you thinking about on that?
00;10;18;03 - 00;10;46;20
Bryan Nowicki
Yeah, with that’s so focus program which now November 2024, that’s going to we’re going to begin to see the outcome of this list of or performing hospices and then surveys that follow. That’s this is as some immediacy to that. But if you take a look at the statute and then the regulations relating to that, you know, there’s a bit of a disconnect that that seems ripe for a Loper Bright kind of implication.
00;10;46;20 - 00;11;28;01
Bryan Nowicki
The statute that Congress passed asked CMS to identify non-compliant hospices, and it didn’t define a non-compliant or it didn’t define hospices that are failing to meet requirements. CMS then ran with that language and they one could argue that they started to identify not hospices that were violating any law or regulation, but part of their algorithm for identifying hospices to put into this program is poor performing hospices based upon patient surveys or patient or family surveys.
00;11;28;22 - 00;12;05;17
Bryan Nowicki
So shift from the directive to look at non-compliant hospices, not meeting requirements. The CMS targeting or performing hospices. Did CMS go too far in interpreting a potential ambiguity in the statute to really take it in a different direction? I think to the extent there are going to be any anybody challenging the the special focus program, that might be an aspect of it where were bright can be brought to bear to say court, this is for you to decide if CMS overstepped its authority.
00;12;05;17 - 00;12;15;17
Bryan Nowicki
You don’t have to. Just because what CMS did might be reasonable doesn't mean that you, the court, have to let them do that. You can decide for yourself.
00;12;15;17 - 00;12;55;20
Meg Pekarske
Yeah. Another area that I mean, we thought a lot about even before Loper was what does the statute say? And does the statute even address this? Because there are you know, the Congress has opened up the Social Security Act as it relates to hospice, like, for example, creating the face to face requirement. They revise the statute. But then there's other things where essentially Congress hasn't changed the statute, but then Hamas creates new rules.
00;12;55;20 - 00;13;39;26
Meg Pekarske
For example, like the the face to face requirement thing that they changed the regulation or the statute for face to face. But then, for example, like the election dad or the physician narrative, like things that they have asked is claiming our conditions of payment are not with, you know, explicitly in in the statute. And so when we’re doing it ourselves, we really try to pay attention to that because it’s interesting, too, that even the election form itself is in a very different section of the Social Security Act.
00;13;39;26 - 00;14;03;25
Meg Pekarske
Then, you know, the other the conditions of coverage that we think about. And so I think it is really important to pay attention to what is actually in the statute and what does that and where choice is really important. And this is where we get into real nitty nitty things. But, but, and that's been around for a while.
00;14;03;25 - 00;14;17;15
Meg Pekarske
But I think, again, maybe renewed interest and well, what did Congress actually speak to versus what is the AMA just broadly saying? Well, this was, you know, arguably within the scope of of what Congress said I could do.
00;14;17;25 - 00;14;50;23
Bryan Nowicki
Well. Well, right. What was before really a tough hurdle for us to overcome with Chevron deference. It really has just significantly lowered. So and you know, and the work we do, like you said, we’re going back to the statutes. We're pointing out in our advocacy how this regulation is really a departure from the statute. You can only take those kinds of, I would say, high level arguments so far in an audit appeal, which is an administrative process.
00;14;51;23 - 00;15;25;27
Bryan Nowicki
So I think the real opportunity to take advantage of Loper Bright in those kinds of issues is going to come when there's an audit that is is of such magnitude that people are taking the results to federal court or there's a class action or an association decides to really push back on CMS, arguably going beyond what the statute authorized them to do and really doing so based on maybe a reasonable interpretation, but not what a court would say is the correct interpretation of the statute.
00;15;26;16 - 00;15;53;11
Bryan Nowicki
So yeah, we see that in a lot of the documentation technical requirements that we see that with extrapolation where Congress said go and extrapolate in some of your audit, you could do that. But then CMS making some regulations that appeared to kind of define their own rules about extrapolation that are not always what a statistician might believe to be sound statistics.
00;15;54;05 - 00;16;06;21
Bryan Nowicki
So can CMS kind of bend the science around whatever is expedient for it in the regulations? So there are those kinds of areas that will appropriate can have an effect if the right kind of case comes along.
00;16;06;27 - 00;16;33;28
Meg Pekarske
Yeah, yeah. It’s just from an intellectual standpoint when you can apply it to the real life things you and I deal with and it gives us more to to play with and explore. And that is the fun part of our job. It was not going to law school, at least not for me. It was 25 years ago or whatever, but it was still our I guess they started like almost 30 or whatever of that is long time ago.
00;16;34;29 - 00;16;59;15
Meg Pekarske
But practicing law is much more far back study in law because it's really the application and like it affects real people doing real stuff in the world and it's that's what action you and I went to Wisconsin and we were all thinking to law and action but it really like how law I mean right it’s central to democracy.
00;16;59;15 - 00;17;04;19
Meg Pekarske
So all the stuff is really important. But we started to study well.
00;17;04;19 - 00;17;34;27
Bryan Nowicki
Right. And the Supreme Court, I mean, they're talking super high level stuff and it’s really it’s really interesting how a case in a completely different area of the law might just identify some principles that you can apply and what you’re doing in your particular area. So yeah, I mean, we obviously keep track of the kinds of laws. I mean, this is a fishing case in the right fishing case, but we’re there’s there’s a whole body of information about that.
00;17;34;27 - 00;17;53;03
Bryan Nowicki
They’re out there about how it's going to apply to health care. And we are foreseeing how it’s going to apply to hospice. So yeah, all the concepts they talk about, they really have broad application and just kind of what are the laws that that bring us together and make us a community of of citizens.
00;17;53;14 - 00;17;53;26
Meg Pekarske
Yeah.
00;17;54;19 - 00;17;56;27
Bryan Nowicki
We should air this on the 4th of July. Yeah.
00;17;57;10 - 00;18;18;17
Meg Pekarske
Exactly. This is like the lofty stuff of being a lawyer, but so. Well, we geeked out enough. I think I got a stat, Bryan, so. But, but thanks for your insights. I think this is this is really helpful to put it on people’s radar screen. So thanks.
00;18;18;28 - 00;18;22;15
Bryan Nowicki
Thank you, Meg.
00;18;22;15 - 00;18;40;01
Meg Pekarske
Well, that’s it for today’s episode of Hospice Insights: The Law and Beyond. Thank you for joining the conversation. To subscribe to our podcast, visit our website at huschblackwell.com or sign up wherever you get your podcasts. Until next time, may the wind be at your back.