When the U.S. Supreme Court ruled this summer in a case that struck down the so-called Chevron Deference, many observers wondered about the impact on environmental regulations. The doctrine generally held that federal courts had to defer to the way federal agencies interpreted laws that left wiggle room.
But the environment isn’t the only area which could see some significant changes as a result of this ruling. Jennifer Piatt, a research scholar at ASU’s Sandra Day O’Conner College of Law and co-director of the Center for Public Health Law and Policy, joined The Show to talk about the impact of this ruling on health policy.
Full conversation
MARK BRODIE: Jen, how big of a deal might this actually be?
JENNIFER PIATT: Really, really insurmountable. This could be something that changes just about everything that we look at with respect to health policy, because this is a decision that really at the bottom of it affects federal agencies’ ability to do their jobs.
And a lot of what we have in respect to health policy in the United States comes from federal agencies like HHS, like CMS, like CDC, like FDA. So all of those agencies and all of those rules that they implement could be at issue here.
BRODIE: Is this a matter of, as you say, so much input by federal agencies because a lot of the policies that are in place are rules as opposed to laws?
PIATT: Yes, absolutely. And that’s a great question. So I would say that most of the law that we have in place in this country that specifically governs every day health related activities is regulatory, is coming from those agencies. And that makes sense because Congress, what they do is they pass laws with kind of broad language, because that’s what the two parties can generally agree to.
So when they pass those laws, they leave some wiggle room. And that is where agencies come in to fill in those gaps. So when you’re talking about the specifics of policy, that’s really impactful, lot of that is coming from agencies.
BRODIE: So are there particular areas that you are looking at as maybe some of the first to that that folks might see impacts in?
PIATT: So yes, absolutely. There are tons of them. But I’ll point to actually an area where we’ve already seen impacts. So we’ve already had a couple of cases, one out of Tennessee and one out of Montana. These cases deal with the Affordable Care Act. Essentially, the Affordable Care Act prohibited discrimination on the basis of sex in health programs that are federally funded Medicare, Medicaid, etc..
And HHS put out a rule that said, “Well, that sex based discrimination and that should apply to discrimination against people who are LGBTQ.” And these two court decisions out of Montana and out of Tennessee said, “Nope, we don’t have to defer to that. And actually, HHS, you have overstepped your authority under the ACA in saying that.”
So we have this real, substantial discrimination-based rule in all of the federally funded health programs. That’s kind of at issue already and on ice as this litigation continues. And that’s just a quick example of something that already happened.
But there are tons of other areas where this could be impactful. This could impact FDA and its drug approval process. This could impact insurance and CMS and the Medicare and Medicaid programs. So tons of areas that are just right for this decision to impact.
BRODIE: It seems like there’s a ton of uncertainty coming up, both for patients and for providers and for pretty much everybody involved in the health sector.
PIATT: Absolutely. And that’s the real crux of this, right? Because we don’t actually know what individual judges around the country are going to do. And that’s what this Loper decision boils down to. It’s no longer “Let’s defer to the experts in the agencies who have that very specific, scientific or technical training and experience to tell us what’s going on.” It’s “What does this one judge in this one district in this one state think?”
BRODIE: Well, so I guess that’s the question then, right? If you are somebody who, for example, believes that LGBTQ people should not be discriminated against in things like Medicare and Medicaid, is that the kind of thing that you should be trying now to codify in law and say specifically, not leave it to the interpretation of a federal agency, but have the law specifically say, “Nope, this is what we think.”
PIATT: Yeah, that's absolutely one pathway that you could go, is you could say, “OK, well, let’s address these particular issues and get Congress to go ahead and codify that.” But when you think about the fact that federal regulatory agencies are putting out new rules on average like every two weeks or so, that’s a lot to ask of Congress.
We know that Congress just historically and recently isn’t getting that much done, isn’t getting as much done as what these federal regulatory agencies are doing to keep abreast, to keep up with the changes and with the state of things. And so, yeah, you could ask Congress to take sort of a piece-by-piece look at these issues, but that’s going to take a lot of time and a lot of political effort.
BRODIE: Do you think that federal agencies are going to scale back their rules and interpretations, given this Supreme Court ruling?
PIATT: I think it’s entirely possible that agencies will be a little bit more hesitant to take action.
BRODIE: What do you think this is going to mean for health policy and health care policy coming out of Congress going forward?
PIATT: You know, I would be interested to learn that myself. I think it’s possible that we get a Congress that realizes that they have to step in here and make things more clear and give a little bit more power very clearly to the agencies on the issues where they want those agencies to step in.
I also think it’s possible that, given the right makeup of Congress, you could see Congress come in and try to codify what Chevron used to be and say, “No, actually, what we mean with respect to administrative agencies is that, yeah, you do give them deference because we’re never going to be able to be as specific as those agencies are and get those bills through this process.”
But whether that will happen is just entirely dependent on who is making up that Congress as we head into this election.
BRODIE: I’m also curious, given the size and the impact of the health care sector on the American economy, what might all of this mean financially and economically?
PIATT: Oh boy. It’s going to be a really interesting time. We don’t even really know truly what the extent of the impacts will be, because we just don’t know everything that might be litigated, everything that might be coming up in the months and years to come. There are thousands upon thousands upon thousands of these rules, and there are tons of litigants and private parties and businesses, etc., that are willing to try to go and challenge them.
And that uncertainty, I think, can impact the desire to invest and, and desire to put energy into funding, for example, very expensive testing and clinical trials on prescription drugs, etc. if you’re not even sure if FDA is going to have that sort of nationwide approval because of a specific statutory interpretation question that that now is getting relitigated.
So I think, yeah, the economic impacts can be really, really great.
