tag:blogger.com,1999:blog-4841866593898210279.post4668300307601749878..comments2023-10-31T03:54:17.210-05:00Comments on Thus Blogged Anderson: Statutes, regulations, and ChevronAndersonhttp://www.blogger.com/profile/02325205512110155291noreply@blogger.comBlogger4125tag:blogger.com,1999:blog-4841866593898210279.post-45489551344783182262010-08-26T17:29:53.750-05:002010-08-26T17:29:53.750-05:00I don't think you sent me anything on that, an...I don't think you sent me anything on that, and I'm interested.NMissChttp://nmisscommentor.comnoreply@blogger.comtag:blogger.com,1999:blog-4841866593898210279.post-59308399234813882542010-08-25T22:49:47.814-05:002010-08-25T22:49:47.814-05:00What puzzles me is the section immediately prior t...What puzzles me is the section immediately prior to part IV of the decision, which considers whether CMS's "decision" is allowable under the statute. That's the wrong analysis; the first place the court should look for the agency's interpretation is its notice-and-comment regulation.<br /><br />I could almost see the feds moving for rehearing, saying "hey, you found our reading acceptable under part two, no need to look at that pesky reg."<br /><br />Glad the case was of some interest!<br /><br />... Re: lenity as it applies to FCA, etc. prosecutions, I think that the Affordable Care Act has changed the standard ... did I send you something on that already? Having a kinda deja vu feeling here.Andersonhttps://www.blogger.com/profile/02325205512110155291noreply@blogger.comtag:blogger.com,1999:blog-4841866593898210279.post-74669339456572803222010-08-25T22:04:32.288-05:002010-08-25T22:04:32.288-05:00That case is fascinating to me, in part because th...That case is fascinating to me, in part because the CMS regulations about physical medicine occurred over a similar time frame, and CMS has attempted to pretend that regs that went in place in 2005 really just expressed existing law rather than announcing something new.<br /><br />The same damn thing as here. Really fascinating to me. <br /><br />I don't find the contradiction you seem to see in the Chevron deference parts of the decision:<br /><br />1) Ambiguous statute<br /><br />2) Regulations doing an interpretation<br /><br />3) Later regulations changing that, in which the regulators pretend they are clearing things up but really not. CMS argues that they were correct, but Chevron only says defer to 1 & 2, not how CMS tries to pretend away what it does at 2.<br /><br />CMS has a history IMHO of not wanting to do what Congress tells it to do, and of trying to fix by "interpretation" what it can't get through formal regulatory or legislative processes. And passing regulations that pretend "this is what we've always done" when it's not.<br /><br />Pretty interesting case. At least to me. Thanks for blogging it.NMissChttp://nmisscommentor.comnoreply@blogger.comtag:blogger.com,1999:blog-4841866593898210279.post-37014777540632926582010-08-25T21:22:13.201-05:002010-08-25T21:22:13.201-05:00I'm getting lost in here somewhere, and probab...I'm getting lost in here somewhere, and probably need to read the case (actually, will read the case because it's an important area for me).<br /><br />Here's what I'm reading you to say:<br /><br />1) statute confers on CMS the duty to regulate.<br /><br />2) CMS regulates.<br /><br />3) CMS then interprets the statute inconsistent with its own regulations.<br /><br />And so the 5C should say "step two is entitled to Chevron def, and CMS is wrong at step 3."<br /><br />??<br /><br />Where I'm fighting this battle has an additional overlay-- in criminal case the rule of lenity sez that, unless the statute/regulation/contract speaks clearly, it can't be the basis of a prosecution. For reasons that I cannot comprehend, this issue has not been raised in prosecutions over Medicare or Medicaid payments, as near as I can tell, even though there are really clear cases saying that lenity applies all the way down tot he level of contract interpretation (e.g. things that you and I would probably not think particularly unclear in contract documents can provide a successful lenity defense where a layman may well find it unclear. <br /><br />After saying all these possibly irrelevant things, I'm going to read the case.<br /><br />But be reassured! or afraid! there's an audience for this sort of thing, and at least one member of that audience has found your blog!NMissChttp://nmisscommentor.comnoreply@blogger.com