Regulatory Litigation
Foley attorneys are recurrently called upon to challenge unjust statutes, regulations, and other government agency actions. Against such actions we have scored victories for our clients at the administrative level, in court, and in negotiated resolutions. Our regulatory litigators are highly experienced, and they often collaborate with regulatory subject-matter experts to ensure an efficient and comprehensive approach.
Over the last 40 years, when disputes have arisen between government agencies and businesses, the 1984 Chevron decision required courts to defer to agency interpretations of ambiguous statutes, resulting in a growth of burdensome regulations. However, in the wake of the U.S. Supreme Court’s 2024 decision in Loper Bright, which overruled Chevron, our regulatory litigators are well prepared to aggressively challenge agency overreach on behalf of their clients. In addition, many agencies engage in “rulemaking-by-litigation,” bringing enforcement actions to establish the bounds of permitted activity.
In addition to challenging agency actions contrary to statute, our team boasts a wealth of other regulatory litigation experience, including as related to notice and comment rulemaking, arbitrary and capricious agency actions, and challenging administrative decisions, among other capabilities. Cases that our team litigates frequently arise not only under the Administrative Procedure Act but also the Medicare Act and Food, Drug, and Cosmetic Act. We’ve brought cases before Administrative Law Judges, the Provider Reimbursement Review Board, and federal district and appellate courts.
Foley’s long experience representing clients in the Health Care, Energy, Innovative Technology, and Manufacturing sectors, among myriad other areas of commerce, comprehensively serves clients’ needs for legal guidance.
Representative Experience
- Leading a constitutional challenge to the False Claims Act’s whistleblower provisions.
- Recovered millions of dollars for hospital clients in a successful challenge to a Medicare rate reduction promulgated by the United States Department of Health & Human Services (HHS) in federal court.
- Negotiated resolutions involving multimillion-dollar Medicare reimbursement settlements, including as related to requirements imposed on providers related to bad debts.
- Successfully challenged HHS exclusion of health care executives in the D.C. Circuit.
- Multiple wins in federal court, vacating agency actions, including HHS’s approval of a Medicaid state plan amendment.
- Intervened in and successfully resolved cases on behalf of clients on the side of the government, against competitor challenges, including cases involving the Food & Drug Administration (FDA).
- Successfully challenged HHS exclusion of health care executives in D.C. Circuit.
- Challenged state employment laws on federal preemption grounds.
- Defended multiple actions before ALJs involving enforcement of extra-regulatory policies by CMS to seek overpayments and deny coverage for DME.
- Advanced Medicaid appeals before state agencies in Massachusetts and Rhode Island, including successfully blocking overpayments based on recordkeeping requirements that did not meet materiality thresholds under federal law.
- Obtained a positive resolution in a federal court challenge to volume decrease adjustments applied by CMS to sole community hospitals.
- Recovered millions of dollars in reimbursement in appeals before the Provider Reimbursement Review Board on medical education cost and disproportionate share hospital payment issues.
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