HHS Faces Hurdles Revising Medicare Interpretive Rules

Law360 (February 11, 2021, 6:19 PM EST) -- The U.S. Supreme Court's decision in Azar v. Allina Health Services[1] threatens to slow down the Biden administration's ability to issue new interpretations of Medicare statutory and regulatory provisions that alter interpretations previously issued under the Trump administration.

Ordinarily, following the Supreme Court's 2015 decision in Perez v. Mortgage Bankers Association,[2] federal agencies are free under the Administrative Procedure Act to issue revised interpretations of their statutes or regulations — even interpretations that deviate materially from earlier interpretations — without using notice-and-comment rulemaking.

But the Supreme Court's conclusion in Allina that the Medicare Act imposes more expansive notice-and-comment obligations than the...

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