Agency Deference and the Impact of Kisor in Healthcare: Challenging CMS and Other Agency Actions

The Supreme Court issued its decision in Kisor v. Wilkie (U.S. June 26, 2019), addressing the doctrine of agency deference. In a 5-4 decision, the Court declined to overturn Auer but specified significant limitations on its applicability. Kisor may present new opportunities for those in the highly regulated healthcare industry to challenge agency actions.

Following the Kisor decision, along with the Court's decision in Azar v. Allina (U.S. June 3, 2019), the healthcare industry can expect to learn more about agency internal review processes. It will also be necessary to note who at the agency acted. Are decisions made by mid-level officials now vulnerable or at risk? Will decisions at CMS begin to be made at higher levels to maintain deference?

Listen as our authoritative panel of healthcare counsel examines the critical implications and practical application of Kisor for the healthcare industry. The panel will also discuss Auer deference in light of Kisor and Azar v. Allina. The panel will offer guidance to healthcare counsel in challenging CMS and other agency actions.

1. Review of Supreme Court's decisions
   1. Kisor v. Wilkie (U.S. June 26, 2019)
   2. Azar v. Allina (U.S. June 3, 2019)
2. Implications of Kisor for the healthcare industry
3. What does Kisor mean for Auer deference?
4. Practical guidance and strategies

The panel will review these and other key issues:

• What are the practical implications of the Supreme Court's decision in Kisor v. Wilkie for the healthcare industry
• What is the status of Chevron and Auer deference?
• How do these cases impact the tools available to CMS and other federal agencies in regulatory litigation?
• What are best practices for challenging CMS agency actions based on recent decisions?