On the Death of Chevron Deference, and the Strange Life of the USPSTF

On Chevron Deference

The decades-old Chevron Deference allowed federal agencies such as HHS (the Department of Health & Human Services) to interpret “ambiguous” laws via the regulatory actions unless said actions were deemed “unreasonable.” The overturning of this framework means that courts may substitute their own judgements for federal agencies’ previous interpretations, giving more power to the judiciary to decide regulatory and interpretive legislative matters:

• US Health Policy Implications
  • Broadly, this change could lead to more regulations being overturned, as courts may not support agency expertise in health care regulations. Agencies like the FDA (the Food and Drug Administration), USPSTF (the United States Preventive Services Task Force), CMS (the Centers for Medicare & Medicaid Services), and others could face challenges in implementing regulations effectively.
    
• Potential Outcomes
  • This may result in increased litigation, regulatory instability, and a chilling effect on the issuance of new regulations. Health policy areas such as: Medicaid, Medicare, drug pricing, and preventive health services may experience significant disruptions, and potential repositioning of associated markets and utilization patterns across systems and populations.
    
• HIV Treatment and PrEP Access
  • The vacation of Chevron Deference could also lead to increased legal challenges against regulations that support HIV treatment and prevention services. Accordingly, courts may elect to overturn or limit these regulations, and that could (and would) lead to reduced access to essential services, based on health benefit designs and plans.

On the Braidwood Ruling

However, a favorable Supreme Court ruling for the Administration in Kennedy v. Braidwood Management, Inc. has resulted in quite a strange situation, whereby the government’s authority to require insurers to cover USPSTF-recommended services without cost sharing under the ACA (Affordable Care Act) was affirmed, while at the same time the Administration has cancelled subsequent meetings of said Task Force, with many concerned medical stakeholders signing a letter expressing broad opposition to what they see as a deregulatory, potentially anti-vaccine, agenda—this follows broad concern from a similar set of stakeholders regarding recent convenings (and firing of the constituent members) of ACIP (the Advisory Committee on Immunization Practices).

Thus, one must hold two (seemingly contradictory) ideas in one’s head at the same time—that the Braidwood decision was a victory for the continued coverage of crucial HIV prevention medication (PrEP) for millions of Americans, and that these recent actions by the Administration are nevertheless cause for ongoing concern.

It is here now that public health efforts in the United States, and preventative health efforts in particular, are stuck between a rock and a hard place—with ongoing potential disruptions to the regulatory state on the one hand (with Chevron), and a re-affirmed power of agencies to advance agendas many have alleged are anti-vaccine on the other hand (with Braidwood).