The Supreme Court recently issued two major decisions that give healthcare providers new tools to challenge Medicare payment policies. Our webinar will explore the possibilities.
Are All CMS Sub-Regulatory Payment Rules Now Invalid?
CMS has always had to submit “substantive” rules for public comment. But the Administrative Procedure Act does not apply to “interpretative” rules. In Azar v. Allina Health Services, the Supreme Court held that CMS must also adopt interpretative rules that substantively affect reimbursement by notice-and-comment rulemaking. Allina itself involved a sub-regulatory rule that cost hospitals billions of dollars in lost Medicare DSH payments. We will explore other sub-regulatory payment policies, such as the many policies contained only in CMS manuals, that are now open to challenge.
Is This the End of Agency Deference?
Historically, courts have deferred to CMS, especially when it interprets its own regulations. In Kisor v. Wilkie, the Supreme Court reconsidered this practice, often referred to as “Auer deference,” based upon a prior Supreme Court case of that name. While the Court reaffirmed Auer for now, it did so in a fractured opinion that limited the circumstances under which Auer deference will be applied. With Auer on “life support,” further erosion of agency deference may be on the horizon as lower courts apply the Supreme Court’s reasoning in Kisor in future cases.
Mark Polston, Daniel Hettich and Joel McElvain lead King & Spalding’s Medicare reimbursement litigation practice. Between them, they have decades of experience litigating Medicare reimbursement matters at CMS, the Department of Justice, and representing healthcare providers in federal court. On August 21 they will host a 90-minute webinar discussing the new landscape for litigation under the Medicare statute.
This webinar will address:
- The potential scope of the Allina ruling and the practical challenges that both providers and the agency might face from CMS’s new rulemaking obligations;
- The status of CMS’s sub-regulatory guidance documents in light of Kisor; and
- Practical examples of ways in which providers can challenge agency policies that are found in sub-regulatory materials.