The Supreme Court Limits Agency Deference: Implications of Kisor v. Wilkie

Introduction

On June 26, 2019, in a splintered 5-4 decision, the United States Supreme Court issued its decision in the case of Kisor v. Wilkie.¹  At issue was the fate of Auer deference (sometimes referred to as Seminole Rock deference),² which is the legal doctrine expressing that a court will defer to an agency’s reasonable interpretation of its own genuinely ambiguous regulation.³  In the end, the doctrine of Auer deference narrowly survived, but the Court significantly constrained its application.  This article will examine Kisor’s implications for healthcare providers and suppliers and their legal counsel.