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 Trump’s Supreme Court Pick Alert To Overregulating

Colorado appellate court Judge Neil Gorsuch could bring an especially sharp skepticism for federal “overregulation” to the Supreme Court if he is confirmed by the Senate, says a legal expert.
This was made evident in a May 2016 ruling by the U.S. Court of Appeals for the Tenth Circuit in which Gorsuch sits. That court denied a Centers for Medicare & Medicaid Services (CMS) $800,000 fine against a home health provider, with Gorsuch sharply questioning how CMS can regulate effectively without sufficient control of its own regulations.
George Breen, a lawyer in the Health Care and Life Sciences and Litigation practices for the Epstein Becker & Green law firm, says even though Gorsuch would be very similar to the judicial thinking of the late Supreme Court Justice Antonin Scalia, whose seat Gorsuch would fill if confirmed, the fact that the 2016 opinion he wrote was so strong should hearten companies operating in the health care space.
“He challenged the Chevron doctrine, which allows deference to an agency in interpreting its own regulations,” he says. “I think the takeaway would be as it relates to agency actions, is that Gorsuch is pretty skeptical about regulation.”
The case in question pitted CMS against Caring Hearts Personal Home Services of St. Louis, Mo. At the heart of the appeal was the home care company’s assertion that the fine being levied by the agency for overcharges related to serving its homebound clients was an erroneous application of a regulation. The company said this was because the regulation in question did not exist when the alleged misconduct occurred.
Gorsuch, in his written opinion, said there are roughly 37,000 guidance documents on the CMS website that providers must follow under the Medicare program, and thousands more waiting to be added.
“This case has taken us to a strange world where the government itself, the very ‘expert’ agency responsible for promulgating the ‘law’ no less, seems unable to keep pace with its own frenetic lawmaking,” the opinion said. “One thing seems to us certain: An agency decision that loses track of its own controlling regulations and applies the wrong rules in order to penalize private citizens can never stand.”
Breen says the logic displayed by Gorsuch could embolden health care providers to be bolder in their legal maneuvering.
“I think health care companies can expect that if they are challenging regulatory actions that they may get a friendly ear in Judge Gorsuch. Of course this depends on the composition of the court when it comes time to consider [a challenge], but he does look with a sharp eye relative to agency actions,” he says.
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