I am thinking about fish this week. Coming from the land-locked, upper-Midwest region, fish are not usually top of mind. But this week, the U.S. Supreme Court heard oral arguments in Loper Bright Enterprises v. Raimondo, a case brought by Cape May herring fishermen. They are upset about a federal agency’s requirement to make them pay for inspectors who go out on their boats to prevent overfishing. The boat captains are arguing that Congress did not give the agency the authority to require them to pay for the inspectors’ expenses. If the justices agree, it could shoot a hole through all federal agency rulemaking authority. We explain in the One Thoughtful Paragraph below how this may be a conundrum for health care policymaking.
The other news about federal regulations this week:
- Using all of 822 pages to explain new requirements for health plans, CMS finalized its Advancing Interoperability and Improving Prior Authorization Processes rule. The hope is that the new rules will ease the transfer of electronic health data to and from doctors, patients, and other health plans, and increase the speed of coverage decisions.
- To increase access to telehealth services, the Federal Communications Commission (FCC) released a final rule to update the Rural Health Care Program, which funds telecommunications and broadband services for healthcare delivery. The rule is designed to alleviate some of the program’s administrative burdens to encourage physician participation.
- The FDA opened a comment period until the end of the month, seeking information on how digital health technology may be used to prevent, detect, and manage diabetes by extending care into homes and communities.
One of my favorite movies is A River Runs Through It. With its gorgeous cinematography and reflective musical score, the film tells a story about fly-fishing, the complexity of family dynamics, and the impossibility of denying one’s own destiny. But I like it because it teaches you how to write with a simple message: “half as long.” This is not the lesson that CMS took away from the movie when it wrote the latest interoperability and electronic prior authorization rule (see our FAQs here), or we would have had to read only 400 pages. But if the CMS team could defend themselves here, they may say that the complexity of the rules to modernize the electronic exchange of data – which almost no one disagrees is a necessary goal to make our health care system work better — requires many words. So that’s why we are thinking about the fish case before the U.S. Supreme Court. If CMS is not allowed to use its expertise to create specific instructions using only the very general Congressional directive in the 21st Century Cures Act about how patients should get access to their own health data, then we may not be able to modernize much. Indeed, during oral arguments this week, U.S. Supreme Court Justice Elena Kagan wondered how Congress could possibly legislate something like artificial intelligence with any specificity – naturally leaving the regulatory experts to pick up where legislative language must leave off. If the High Court decides to eviscerate this regulatory authority, the film we should all go see is a different story about fishing: The Perfect Storm.
