Judith Waltz Comments on Trump Administration's Health Care Regulatory Approach

Foley & Lardner LLP partner Judith Waltz assessed the Trump administration’s health care regulatory approach in the Report on Medicare Compliance article, “Trump Plan to Revoke Regulations Without Notice Is Underway With Loper Bright as ‘a Tool.’“

Waltz said a new presidential memo instructing the heads of federal agencies and departments to identify regulations for repeal is consistent with a recent policy statement from the U.S. Department of Health and Human Services (HHS), which introduced a rollback of the notice and comment period process in policymaking.

The memo cites the U.S. Supreme Court’s decision in Loper Bright among nine other decisions, though Waltz pointed out that “the list of Supreme Court cases does not specify what is important in each of them to reach the conclusion that a regulation is unlawful.”

While Loper Bright‘s key holding was that a court does not have to defer to an agency’s interpretation of a regulation, Waltz noted, “It’s not clear to me how that translates to agency review of a regulation, to say nothing of the fact that the decision itself says it doesn’t expect a revisiting of prior cases which might have been challenged but were decided applying Chevron deference.”

“Moreover, that case was decided on the basis of the APA (Administrative Procedure Act), not generally applicable in most Medicare situations,” Waltz added.