Last week, the Supreme Court sided with Atlantic herring fisheries in a landmark case, Loper Bright Enterprises v. Raimondo. Although the case centered on environmental monitoring fees, the implications for healthcare – among other industries – stem from the Court’s decision to overturn the Chevron deference doctrine.

Since 1984, Chevron meant that federal agencies had significant leeway to interpret ambiguity in laws during rulemaking – and courts had to defer to that interpretation so long as it was reasonable. In its new decision, the Supreme Court overturned this principle, instead assigning the responsibility of evaluating ambiguity to the federal judiciary.

So, what does this mean for healthcare and gastroenterology?

The Department of Health and Human Services (HHS) and the Centers for Medicare and Medicaid Services (CMS) routinely use the federal rulemaking process to implement payment and coverage policies, which span Medicare fee for service, Medicare Advantage, the ACA marketplace, Medicaid, and more.

While the rulemaking process is still intact, without Chevron, more lawsuits targeting federal agency authority are coming. For healthcare, this could include Medicare Advantage reimbursement rates, FDA decision making, drug price negotiations, and hospital payment rates. The legal challenges might also extend into GI practice management issues, such as the recent rules prohibiting non-compete clauses and reforming prior authorization for federal health plans.

Might this change affect Medicare physician reimbursement?

It’s unclear.

Unlike Medicare payment programs for hospitals and other facilities, the statute for Medicare physician reimbursement specifically prohibits legal challenges for pay rates:

“There shall be no administrative or judicial review under section 1869 or otherwise of – (A) the determination of the historical payment basis; (B) the determination of relative values and relative value units; C) the determination of conversion factors; (D) the establishment of geographic adjustment factors; and (E) the establishment of the system for the coding of physicians’ services …”

Omnibus Reconciliation Act of 1989

This discrepancy is an alarm bell that ACG’s Board of Governors and Legislative and Public Policy Council have been ringing for years. We reference this part of the statute in all advocacy conversations with Congress, alongside our principles of Medicare reform.

In this new, post-Chevron era, there is a lot of uncertainty about how courts will handle novel legal challenges. But if recourse on Medicare physician reimbursement still must come from the other branches of government, then know ACG will always be the voice fighting for clinical GI.