High Court to Decide Whether Agencies Like CMS Can Flip-Flop Decisions

Do you know anyone who constantly changes his or her mind? Sometimes changing your mind can have drastic consequences. Think about it in the aspects of politics. Imagine that Obama announces that he was switching parties to become a Republican? This would be a huge decision with drastic consequences.

As crazy as it sounds, politicians do switch sides. The most recent switch-hitter that I can recall is Charlie Crist of Florida. Republican Crist served as Florida’s governor from 2007 to 2011. In December 2011, Crist officially changed his party affiliation to Democrat. More famously, Ronald Reagan began his political career as a Democrat. Hillary Clinton used to be a Republican. These changes had profound impact.

Now imagine that the Supreme Court rules one way, then overturns itself. There would be drastic consequences, and it does not happen often (actually the Supreme Court has overturned itself 10 times over the course of history).

Similarly, what if the Center for Medicare and Medicaid (CMS) issued a final ruling, caused millions of providers to change the way they bill Medicare or Medicaid, then changed its mind?

Can CMS change its mind after issuing a final ruling?

This is precisely what the Supreme Court will decide.

In Perez v. Mortg. Bankers Ass’n, U.S., No. 13-1041, petition filed 2/28/14, the federal government is asking the Supreme Court to review whether an agency altered its interpretation of a regulation without adhering to the Administrative Procedure Act (APA). In Perez, the Department of Labor (DOL) issued a reinterpretation of a prior ruling without obtaining notice and comment from the public.

If the Supreme Court allows the DOL to uphold its reinterpretation, this holding could have serious ramifications in the health care arena. Medicare and Medicaid are also highly regulated, like labor laws. IF DOL’s reinterpretation stands, then CMS could also issue redeterminations of prior rulings without notice and comment.

Allowing CMS to flip-flop decisions would impact providers who rely on CMS rulings in order for their practices to remain compliant.

As of now, the Supreme Court has not decided whether it will hear arguments on this case. But both petitions filed with the Supreme Court cite a circuit court split in opinions. It is more likely for the Supreme Court to grant review of a case when there is a split of opinion.

About kemanuel

Medicare and Medicaid Regulatory Compliance Litigator

Posted on April 10, 2014, in Affordable Care Act, Agency, CMS, Doctors, Federal Law, Final Rulings, Health Care Providers and Services, Hospital Medicaid Providers, Lawsuit, Legal Analysis, Medicaid, Medicaid Billing, Medicaid Providers, Medicaid Services, Medicare, Physicians, Provider Medicaid Contracts, Supreme Court and tagged , , , , , , , , , . Bookmark the permalink. Leave a comment.

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