On June 28, 2024, the Supreme Court unraveled the 1984 decision, Chevron v. Natural Resources Defense Council . Chevron has been one of the most cited decisions in American law, because it granted significant power to executive agencies that regulate many aspects of our lives and work.
The ruling will make it easier to challenge regulations across an array of issues, like keeping the water clean; ensuring car seats are safe; what Medicare covers including NCDs/LCDs; and CMS regulations related to billing and coding (for example, will we use ICD-9, 10, or 11?); and even regulations associated with EMTALA and utilization review.
Legal challenges at the federal levels have relied on Chevron to defuse and dismiss challenges to regulations. According to the precedent established in Chevron , if part of the law Congress wrote empowering a regulatory agency is ambiguous but the agency's interpretation is reasonable, judges should defer to the agency.
In the New York Times, “How a Fishery Case Fits Into a Long-Game Effort to Sap Regulation of Business” (Jan. 17, 2024), Charlie Savage contends that critics of Chevron argue that Chevron put too much power in the executive branch when the courts are competent to interpret the law. Proponents of Chevron counter-argue that without the agency regulations, courts may be overwhelmed and dealing with many technical issues that judges have no expertise to resolve.
We need to make a distinction here. Regulations and interpretations are issued after a law or statute is established. Chevron and its demise are placing regulations and interpretations on the table for questioning.
Savage also reported that Jody Freeman, a Harvard University law professor who specializes in administrative and environmental law, suggested that the rejection of Chevron will create “a free-for-all for judges to dig into the nitty-gritty of everything agencies are doing” and “an invitation for interest-group lawyers to try to tie up the agencies in legal knots.” In contrast, as reported by the HFMA in “Supreme Court Ruling on Chevron Makes Regulations in Healthcare More Vulnerable to Legal Challenges” (June 28, 2024), the Supreme Court stated that “Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority. Courts are in a better position to resolve the statutory ambiguities.”
One, if not the first, lawsuit was filed in Mississippi, with the court issuing an injunction on July 3, 2024, on behalf of 15 state Medicaid agencies, preventing the Biden administration from enforcing regulations expanding anti-discrimination gender specific protections in the Affordable Care Act (ACA). In this case, reported by the HFMA in “HHS Issues Regulations to Strengthen Anti-Discriminatory Protections in Healthcare” (July 3, 2024), according to the Mississippi Court, the relevant laws—that is, statutes-are Title 9 and ACA, and neither mentions gender identity.
Many agency interpretations could now be out and the courts' decisions in , which means that statutes trump regulations.
Although not identical in nature, think about what has happened in the courts since Roe v. Wade was struck down. Now, let's consider what the Chevron decision might mean for coding and billing guidelines that will be on the table for payors to litigate the validity of, and how the guidelines may be modified in each court. Could we end up with guidelines that are not just payor-specific but also state-specific?
John Hall, MD, JD, mentioned on Monitor Mondays (July 8, 2024) that we have 94 federal courts. Texas has four and could therefore have four different decisions on the same agency interpretation!
The HFMA shared a perspective that hospitals that disagree with CMS's application of the market basket in its annual determination of Medicare payments or covers an item or service or not, could litigate and successfully argue the issue. Specifically, “There are thousands of pages of regulations and manuals containing agency interpretations of program requirements such as coding for risk adjustment payments, qualifications for disproportionate share hospital payments, [and] supervision requirements for use of physician extenders…”
Within those stacks of agency interpretations and regulations will be such regulations as: coding for HCCs, what should be in an H&P, the two-midnight rule, billing rules, E/M requirements, what constitutes a complete record, and so on. Consider just the HIPAA requirements: Could attorneys litigate what is PHI and what isn't, how much/if anything should be charged for copies, and who may access the record?
One suggestion offers a workaround employing negotiated rulemaking, a process in which a committee of agency experts and affected parties collaborates on proposed regulations. Reported by Polsinelli in “The Chevron Doctrine: Part 1” (May 2, 2024), “Although negotiated rulemaking is not appropriate for all regulations, advocates have felt the approach can speed rule development, reduce litigation, and generate more creative and effective regulatory solutions. Congress has sometimes mandated negotiated rulemaking and established specific procedures and time frames to follow.”
What actions should revenue cycle and health information professionals take?
• Review and understand the rationale behind the specific coding rules that you may be using for appeals. Just citing agency interpretations and guidelines may no longer suffice and could be ignored by payors. If an appeal goes up the judiciary ladder, coding professionals and denial specialists will need to argue the rationale of the code applied and even the sequencing of those codes.
• Capture and compare the application of payor coverage rules for similar patient populations and the payors' billing requirements to define the industry norm. Again, payors may use the demise of the Chevron rule to apply their own billing requirements. In court, you and your attorneys may need to promote the norm and defend against using willy-nilly requirements. Imagine having to configure the organization or practice's billing and edit systems for each payor's application of the standard billing rules. Explaining the technological challenges to modify a billing system to accommodate rules that are unique to a single payor for the services being claimed for a commercial, Medicaid, or Medicare patient will benefit the organization should it file or be a party to a lawsuit against a payor.
• Proactively convene functional leaders from those functions that are substantially governed by agency regulations. This includes finance, compliance, health information, coding, revenue cycle, payroll, pharmacy, laboratory, etc. to forecast “what ifs” and identify issues that are controversial or vulnerable to litigation because they are based on agency rules, such as whether and how much you can charge for copies of records, what is considered protected health information for individuals participating in research, what needs to be in a compliance plan, what if the inpatient only list is challenged, should CISA requirements for cybersecurity protections be followed, and so forth. Any of these are possibilities now that Chevron has been struck down.
• Communicate with our congressional members and encourage the use of negotiated rulemaking. And, at the same time, urge each of our professional associations (such as AHIMA, HFMA, HIMSS, and AAPC) to get involved now .
I encourage readers to review the articles that are cited herein as these authors provide great insight; another recommended resource is Adam Liptak's “The Morning: A Landmark Case. How Much Power Should Government Experts Have?” (Jan. 18, 2024) in the New York Times.
To all of us: Be ready for the litigation heyday ahead.
Rose T. Dunn, MBA, RHIA, CPA, FACHE, FHFMA, FAHIMA, is a past president and former interim CEO of AHIMA and recipient of AHIMA's distinguished member and legacy awards. She is Chief Operating Officer of First Class Solutions, Inc. sm , a healthcare consulting firm based in St. Louis, MO. First Class Solutions, Inc. sm assists healthcare organizations to enhance or transform their HIM operations, facility and physician office documentation, and revenue cycle performance, and provides coding support and coding audits. Rose is also the author of Libman's HCC Fundamentals and Auditing programs.
(Note: This article was first published July 8, 2024, and is being made available with permission to republish granted by ICD10monitor.)
