Grimm Quoted on One-Year Anniversary of Ruling on Loper Bright

Douglas said that it may still be too early to see the full effects of the Loper Bright decision. 

“In fact, the agencies continue to emphasize that compliance investigations and compliance enforcement will continue full speed, which makes complete sense because of the return on investment of those investigations,” he said

Douglas added that the rules in place before the Loper Bright ruling are still in effect, but health care organizations may be more willing to challenge them.

“One balancing factor to keep in mind is that, while judges are no longer required to provide Chevron deference to agency rulemaking, judges may not have backgrounds in areas of healthcare law that are dense. Prime examples are Medicare and Medicaid reimbursement, the Medicare Part D drug pricing program, and the intersection of federal and state data privacy and security laws,” he said. “When starting from scratch, it is not difficult to become quickly entangled in arcane provisions and miss the forest for the trees, which is completely understandable.”

However, Douglas still thinks Loper Bright could work out well for health care organizations.

“Their rules and the explanations for the rules in the Federal Register will need to be more clear. Areas of ambiguity will need to be resolved more quickly through sub-regulatory guidance, and that sub-regulatory guidance will need to be more clear, and that’s a good thing for the providers,” he said. “I used to run hospitals. I was [a] hospital administrator for 10 years and, as a lawyer, we crave clarity and certainty. That clarity is not the responsibility of the providers, that clarity is the responsibility of the government.”

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