WASHINGTON, D.C. – On June 28, the U.S. Supreme Court overturned the Chevron deference (Chevron v. Natural Resources Defense Council) that favored agencies’ rulemaking interpretations. The Chevron deference had been around for decades.
It required federal courts to defer to reasonable federal agency interpretations of ambiguous statutory provisions. As a result of the Supreme Court ruling, the courts (on their own) will need to interpret ambiguous statutory provisions.
The Supreme Court ruling does not completely level the playing field, but it makes it less uneven. The ruling will give DME suppliers more leverage in negotiating settlements of civil cases brought by the Department of Justice (DOJ).
In a federal criminal investigation, depending on the underlying facts, elimination of the Chevron deference may strengthen the defendant’s arguments on why the criminal case should pivot to a civil case. In the event that a DME supplier should go to trial, and again depending on the facts, the risk of an unsuccessful ruling/verdict is lessened.
The reason I say that the playing field is only “less uneven” is because the law is still stacked against DME suppliers that find themselves in the government’s crosshairs. Unambiguous statutes remain a formidable problem for suppliers that are under investigation. And while it is a positive that agency deference will not be given to ambiguous statutes, the federal government still has an arsenal of weapons at its disposal:
- The DOJ, OIG and CMS have unlimited time and money.
- Under the maxim of “possession is 9/10ths of the law,” federal agencies control the flow of Medicare/Medicaid money to DME suppliers. If the government cuts off the flow of funds to a supplier, and even if the supplier ultimately wins, it may be a pyric victory.
Will the elimination of the Chevron deference result in some DME suppliers taking a harder line stance in defending investigations? Absolutely. But the suppliers still need to have (i) a solid set of facts and (ii) a credible argument that the facts and the law, combined, do not result in a problem for the suppliers.
Jeffrey S. Baird, JD, is chairman of the Health Care Group at Brown & Fortunato, Amarillo, Texas.
