Analysis | What the Chevron decision means for health policy – The Washington Post

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Good morning! I’m happy to be in the Health Brief saddle this week, along with our wonderful partners at KFF Health News. Got tips? Send ’em on over to [email protected].

Today’s edition: Dengue fever is surging worldwide as U.S. health officials warn of an increased risk of infections in the United States. House Republican leaders are urging government watchdogs to probe alleged Obamacare fraud. But first …

A new Supreme Court ruling could complicate health agencies’ work

A sweeping Supreme Court ruling curbing federal agencies’ power is likely to have a significant impact on how the nation’s health department crafts federal policy, several legal experts and former health agency staffers said.

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“It probably will be one of the most momentous decisions — at least in the regulatory space — of our lifetime,” said James Huang, a partner in law firm Hogan Lovells’s health-care practice.

The 6-3 opinion, which split along ideological lines, could slow rulemaking and lead to a flood of lawsuits challenging decisions made by the Food and Drug Administration and Centers for Medicare and Medicaid Services.

The details: The high court on Friday overturned a 40-year-old legal precedent known as the Chevron doctrine, which directed judges to defer to an agency’s reading of an ambiguous law as long as that interpretation was reasonable. But Chevron had long been targeted by conservatives who contend federal bureaucrats wield too much power — and the Supreme Court’s conservative supermajority agreed.

Huang likened the impact of the ruling to a “slow burn,” as litigants test the waters of a post-Chevron era and courts adjust to the new reality.

The arguments

Chief Justice John G. Roberts Jr., who wrote the majority opinion, called Chevron “unworkable.” The framework, he wrote, allowed agencies to “change course even when Congress has given them no power to do so.”

Chevron’s supporters argue that the doctrine gave government experts the flexibility to fill in details of broad statutes and respond to advances in technology.

Justice Elena Kagan, in her dissent, asserted that government regulators are best positioned to tackle highly technical subjects. To make her point, she posed two complicated health-care questions: What qualifies as a protein regulated by the FDA? And how should the Medicare program measure a “geographic area” when calculating reimbursements to hospitals based on the wage levels in certain regions?

What’s next

So, how will the Supreme Court’s ruling play out? Some of that will depend on future lower-court rulings over the next few years.

Opponents of certain rules can use the post-Chevron landscape to fuel doubts over policies they dislike. That, in turn, could make agencies, like the FDA and CMS, more cautious. Decision-making may be slower, and agencies will probably need to divert more resources to preparing for litigation, experts and former health officials say.

As Stacy Amin — a former FDA chief counsel who now works at law firm Morrison Foerster — says, “this definitely puts FDA in a weaker position.”

For the FDA’s part, the agency may rely more on issuing guidance, rather than setting policy through rulemaking, per Scott Gottlieb, a former FDA commissioner. “Nonbinding guidance may be less subject to judicial review since it is nonbinding,” he told the Health Brief.

  • The justices’ decision could impact broad areas, including some food safety regulations and a recent agency effort to regulate some tests the FDA says are unreliable. But courts should continue to defer to the FDA on decisions about whether to approve an individual product, Gottlieb wrote on X.

When it comes to Medicare and Medicaid, these are complex areas where officials create new ways of solving pressing policy issues based on novel interpretations of the law. The Supreme Court’s ruling may make those interpretations — everything from defining certain terms for Medicare drug negotiation to setting policy in the Medicaid drug rebate program — more vulnerable to lawsuits, legal experts said.

And one more thing: Today is another opinion day (even though it’s unusual for the court to continue its work into July). The Supreme Court hasn’t yet issued a ruling on a case to determine when plaintiffs can challenge government regulations in court — another decision that could affect federal agencies.

David Ovalle contributed to this report.

Infectious disease

Dengue fever is surging worldwide — a warning sign for the U.S.

A record 10 million people have fallen ill with dengue so far this year — an unprecedented surge that scientists say is fueled in part by climate change, The Post’s Lena H. Sun and Sarah Kaplan report.

Soaring global temperatures have accelerated the life cycles and expanded the ranges of the mosquitoes that carry dengue. That’s led to an influx of patients overwhelming hospitals from Brazil to Bangladesh, recalling the worst days of the coronavirus pandemic. Puerto Rico declared a public health emergency this spring, as the number of dengue cases reported in the first five months of 2024 surpassed the total for all of last year.

Last week, the Centers for Disease Control and Prevention warned of an increased risk of dengue infections in the United States. The agency urged clinicians to be on the lookout for the disease when treating feverish patients who have traveled to areas with dengue transmission. Public health officials are bracing for the virus to crop up in more temperate regions, including the southernmost portions of the United States.

From our notebook

We have more from Lena, who sends us this dispatch:

FDA says latest study confirms pasteurization kills bird flu

U.S. officials say a new study that re-created commercial pasteurization in a government lab confirms that heat treatment kills bird flu virus in cow’s milk.

The study released Friday is not yet peer reviewed. Researchers at the FDA and the U.S. Department of Agriculture used custom-designed equipment to simulate commercial milk processing at a lab in Athens, Ga. They found the most commonly used pasteurization time and temperature — 161 degrees for 15 seconds — was effective in inactivating H5N1 virus in raw milk, and in some instances, the virus was killed even before reaching that temperature.

Other studies that sought to simulate pasteurization found infectious virus in lab tests. The FDA’s initial sampling of milk from supermarket shelves had found no viable bird flu virus.

Reproductive wars

Iowa’s highest court rules in favor of six-week abortion ban

Iowa’s Supreme Court on Friday ruled that a six-week abortion ban could take effect, the latest court ruling to restrict abortion access, The Post’s Annie Gowen reports.

The measure restricts abortion after fetal cardiac activity has been detected at roughly six weeks. Planned Parenthood and others won a preliminary injunction from a lower court, which had kept abortion temporarily legal in the state up until 22 weeks of pregnancy.

What happened: Last year, the GOP-controlled legislature passed its abortion ban after the state Supreme Court deadlocked on whether to reinstate a similar 2018 law. In a 4-3 ruling Friday, the court reversed a temporary injunction put in place by a district court last year while allowing the ongoing litigation at that level to proceed.

What’s next: Under Iowa court rules, it takes at least 21 days for the case to be sent back to the district court. Abortion will remain legal in the state until then.

In other news …

In Nevada, a ballot measure to enshrine abortion rights in the state constitution met all the requirements to appear before voters this November, the Associated Press reports. Voters must approve the question in both 2024 and 2026 for it to become a constitutional amendment.

On the Hill

Republican leaders call for probes into alleged Obamacare fraud

House GOP leaders are asking government watchdogs to investigate health insurance sign-ups through the Affordable Care Act’s marketplaces, The Post’s Dan Diamond reports.

The prominent Republicans are citing reports that allege insurance brokers are fraudulently enrolling customers in some ACA health plans and that millions of Americans may be wrongly benefiting from federal subsidies.

The chairs of the House Energy and Commerce, Ways and Means and Judiciary committees requested Friday that the Government Accountability Office and the federal health department’s inspector general open investigations into potential enrollment fraud.

📅 The House and Senate are both out this week. Happy July Fourth recess!

Health reads

Corporate lobbyists eye new lawsuits after Supreme Court limits federal power (Tony Romm | The Washington Post)

Abortion rights groups argue Florida is trying to throw up barriers to amendment (Arek Sarkissian | Politico)

Cancer victims lose bid to block proposed J&J talc bankruptcy (By Brendan Pierson | Reuters)

How Does Bird Flu Spread in Cows? Experiment Yields Some ‘Good News.’ (By Carl Zimmer | The New York Times)

Sugar rush

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