As discussed in
CCHP’s August Newsletter, the recent
Supreme Court Loper Bright Enterprises Inc. v. Raimondo decision to overrule the “
Chevron deference” has the potential to profoundly impact the policymaking landscape. The June ruling overturned the longstanding
Chevron deference doctrine by shifting the interpretation of ambiguous laws away from administrative agencies and into the courts. Since the
Loper Bright decision, multiple industries and agencies have begun assessing the impacts of the ruling. In addition to potentially impacting various industries and agency regulations, the decision is set to impact the balance of power and policymaking roles across the branches of government.
When crafting legislation,
Congress has typically deferred some policy details to regulating agencies as the implementers and enforcers of the law. With
Loper Bright, that ability to interpret vague or ambiguous statutory language shifts to the courts, appearing to undercut agencies. However, the federal
Environmental Protection Agency (EPA) recently used the
Loper Bright decision to defend a
contested administrative rule related to power plants by highlighting an exception in the
Loper Bright ruling that may lead to more explicit statutory deference as a way of mitigating the overturning of
Chevron.
A recent
article on
Law.com (account required) discusses a
filing defending the EPA’s new carbon reduction rule in which
U.S. Solicitor General Elizabeth Prelogar, the Biden Administration’s Supreme Court lawyer, who is arguing on behalf of the EPA, points to a provision of the
Loper decision where Chief Justice John Roberts Jr. writes as part of the majority opinion that “[W]hen a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it.” The administrative carbon reduction rule in question is argued to be within statutory authority as required to implement the original
Clear Air Act legislation, which explicitly directed the EPA to make the rule’s determinations, not the courts – as written in the
EPA filing defending the rule. Therefore, as discussed in
CCHP’s August write-up of the case,
Loper Bright may result in Congress providing more explicit legislative instructions when crafting legislative policies, or at least explicit agency authority in implementing and interpreting the law.
As we think about federal telehealth policy and administrative regulations in relation to legislative statutes and judicial interpretations, it is important to understand where telehealth policy currently falls within each of these branches. For instance, as Congress considers further extending the current COVID-era Medicare telehealth expansions via statute, the
Centers for Medicare and Medicaid Services (CMS) has already been required to release
its proposed telehealth reimbursement regulations for 2025 (for more information, see CCHP’s
Proposed 2025 Physician Fee Schedule (PFS) Special Alert and
Proposed 2025 PFS Fact Sheet). Without further statutory guidance from the legislative branch, the administrative agency is tasked with implementing policies that ensure continued access to services to telehealth within their authority and based upon previously established policy – pending the expiration of many statutory telehealth expansions. The impact of
Loper Bright on CMS’ ability to do so could discourage the administration from taking some actions that maintain telehealth coverage if CMS doesn’t have ample and explicit statutory support to withstand potential legal challenges. See
CCHP’s August Newsletter article on the case for more nuances between existing Medicare telehealth payment statutes and CMS telehealth reimbursement regulations. For example, how CMS has regulatorily defined certain terms to include audio-only modalities, federally qualified health center (FQHC) and rural health clinic (RHC) providers, as well as creating a range of communication technology-based services (CTBS) codes falling outside the scope of telehealth and its statutory restrictions. In addition, join CCHP for its upcoming
webinar tomorrow to receive a broader understanding regarding the potential impacts of the
Loper Bright decision on telehealth policy across the branches.