Two recent Supreme Court decisions have thrown regulating agencies into disarray, and home care stakeholders are contemplating how to respond. At least one expert is expecting “all kinds of [legal] challenges.”
Last month, the court overturned the longstanding Chevron precedent, giving plaintiffs more power to challenge regulators’ authority. And on July 1, the court decided Corner Post v. Board of Governors of the Federal Reserve System, further weakening agencies’ power.
Currently, a federal rule can only be challenged up to six years after it has been finalized by a regulating agency. The Supreme Court’s Corner Post decision allows certain rules that have been around for more than six years to be challenged, though precedent — or stare decisis — set by older, related cases would still apply.
“The doctrine of stare decisis still applies to those where a previous court ruling has been issued,” Tom Threlkeld, a spokesperson for the National Association for Home Care & Hospice, told McKnight’s Home Care Daily Pulse. “The decision would require regulation-specific analysis. We have not yet evaluated whether there are regulations in our world that would be good targets to challenge.”
After the Chevron decision last month, NAHC said it intended to capitalize on regulators’ new disadvantage. The association is currently embroiled in a lawsuit challenging the Centers for Medicare & Medicaid Services’ methodology for deciding home health reimbursement, and Chevron gave CMS a heavier responsibility in justifying its payment determinations, NAHC explained.
Now, as a result of Corner Post, nearly any rule finalized at any point in time can be challenged in court — as long as the plaintiff can prove it was the cause of recent harm. This flexibility could put much older regulation at risk of legal pushback, according to Julius Hobson, a senior policy advisor for law firm Polsinelli.
“If you’re some kind of provider, you could look at the statutes and say, ‘Does CMS have the ability to throw me out, fine me or something like that? You know, that may be something I might want to challenge,’” Hobson said in an interview with McKnight’s Home Care Daily Pulse. “I’m expecting to see all kinds of challenges.”
Home health providers have endured repeated Medicare rate cuts in recent years, placing heavy strains on operations. CMS recently proposed a 1.7% rate reduction for home health in 2025; such a proposal could attract stakeholders’ ire, Hobson noted.
“The home health calendar year 2025, payment rule whacked them… they took a cut,” he said. “[I] suppose they’d want to sue, that the process for setting the annual rates is unconstitutional.”
Other recent, unpopular regulations include the Federal Trade Commission’s ban on noncompete agreements and the CMS’ Medicaid Access Rule. The Supreme Court’s weakening of regulators’ power through Chevron and Corner Post could spark an “avalanche” of litigation challenging rate determinations and other rules, experts predict.
