The impact of the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo may be, at least to some extent, overstated. Some courts were already moving away from Chevron deference in health care cases prior to Loper Bright. For example, the Supreme Court did not even reference Chevron in its 2022 Becerra v. Empire Health Foundation decision interpreting Medicare disproportionate share hospital (“DSH”) payment methodology, despite acknowledging that “the [statutory] language is downright byzantine.” Similarly, the Eastern District of Texas did not even reach whether HHS’s legal interpretation was reasonable under Chevron when the court set aside the agency’s “qualified payment amount” (median in-network rate) calculation rules for the federal No Surprises Act’s out-of-network dispute resolution process.
Is Loper Bright's Impact Limited to Position-Switching and the Most "Byzantine" Regulations?
Nevertheless, Loper Bright still may particularly impact areas where agencies changed positions or implemented especially dense statutory requirements. For example, in State of Tennessee v. Becerra, the Southern District of Mississippi relied on Loper Bright when preliminarily enjoining the Biden Administration’s rule explicitly extending Affordable Care Act 1557’s anti discrimination prohibitions to protect gender identity and sexual orientation–an issue where HHS’s position has previously changed depending on the party holding the presidency. And notwithstanding the Supreme Court ignoring Chevron in Empire Health, healthcare providers have already begun citing Loper Bright in further challenges to Medicare DSH payment rules, where circuit courts previously applied Chevron deference to uphold agency regulations.