Early trends in agency rulemaking after Loper Bright

The US Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, marked a significant shift in administrative law by overruling the longstanding Chevron deference doctrine. While the full impact of Loper Bright on agency rulemaking, particularly in the healthcare sector, remains to be seen, early trends are emerging in federal trial and appellate courts. This alert examines developments in healthcare cases since Loper Bright and key considerations for healthcare organizations and related entities.

“Chevron is overruled”

In Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), the Supreme Court held that courts must exercise independent judgment when interpreting statutes administered by agencies. While courts may still consider agency expertise, they are not required to defer to agency interpretations simply because a statute is ambiguous. The Supreme Court emphasized that agency views may be persuasive, but only to the extent justified by their reasoning and consistency. This decision overruled forty years of the two-step framework established in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

Under Chevron’s two-step framework for reviewing an agency’s interpretation of a statute, courts first determined whether Congress had directly addressed the specific question at issue. If Congress’s intent was clear in the statute, courts rejected any administrative interpretation that conflicted with that intent. If the statute was silent or ambiguous, courts deferred to the agency’s interpretation, provided it was based on a permissible construction of the statute. Critics argued that this approach led to inconsistent application of the law and allowed agencies to overstep their authority.

Before Chevron, courts applied the more limited Skidmore deference, under which agency rulings, interpretations and opinions, while not controlling, constituted a body of experience and informed judgment to which courts could look for guidance. The weight given to such judgment depended on several factors including thoroughness, validity and consistency. Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).

Justice Elena Kagan’s dissent in Loper Bright specifically addressed the anticipated increased role courts will play in federal healthcare policy: “Courts [will] have more say over regulation—over the provision of health care, the protection of the environment, the safety of consumer products, the efficacy of transportation systems and so on.” A recent ruling from the US District Court for the District of Maine illustrates how longstanding regulations may be disrupted, with implications for healthcare stakeholders.

Duffus v. MaineHealth

In the case of Duffus v. MaineHealth, No. 2:24-cv-00268-SDN, 2025 WL 1928339 (D. Me. July 14, 2025), the court examined a longstanding CMS interpretation under the Emergency Medical Treatment and Labor Act (EMTALA). The plaintiff, a Jamaican citizen in the US on a work visa, suffered a hemorrhagic stroke and was admitted as an inpatient at Maine Medical Center. After a 12-day inpatient stay, the hospital discharged the plaintiff, who alleged that this violated EMTALA’s statutory requirement that a patient be stabilized before being transferred. The hospital sought to dismiss the case, relying on CMS’s regulation that EMTALA’s stabilization requirement is automatically satisfied when a patient is admitted in good faith as an inpatient. See 42 C.F.R. § 489.24(d)(2)(i). The court disagreed holding that the regulation exceeded CMS’s statutory authority. Relying on Loper Bright. the court found that:

EMTALA's text is clear. The stabilization requirement means that a hospital must provide treatment as required to stabilize a patient's medical condition before transfer. The transfer restriction means that a hospital may not transfer a patient until it actually stabilizes a patient's emergency medical condition. A hospital's decision to admit the patient has no effect on EMTALA's statutory requirements.

(emphasis added). Duffus, 2025 WL 1928339 at *18. This case illustrates the potential for disruption of longstanding precedent and polices that in turn will require significant and potentially costly changes in operations for hospitals.

Other emerging judicial trends

The reemergence of Skidmore deference

Some courts are turning to Skidmore for guidance in evaluating agency interpretations they find persuasive. Notably, the Supreme Court cited Skidmore several times in Loper Bright, highlighting that courts and litigants may consider an agency’s interpretations and opinions based on specialized experience. The Supreme Court noted that in agency cases, courts will “go about [their] task with the agency’s ‘body of experience and informed judgment,’ among other information, at [their] disposal.” Id. at 402, quoting Skidmore. The agency’s expertise gives its interpretation the “power to persuade, if lacking power to control.” Id. quoting Skidmore.

• In Regents of University of California v. Chefs' Warehouse, Inc. Emp. Benefit Plan, No. 2:23-CV-00676-KJM-CKD, 2024 WL 3937161 (E.D. Cal. Aug. 26, 2024), the court addressed the interpretation of cost-sharing requirements for out-of-network providers under the Affordable Care Act and ERISA. When addressing the role of agency FAQ’s in its analysis, the court recognized that while Chevron is no longer controlling, Skidmore deference remains applicable, and agency interpretations are entitled to a “measure of respect.” Id. at *5. 
• Similarly, in BNSF Railway Company v. Center for Asbestos Related Disease, Inc., No. 23-35507, 2024 WL 4273814, at *2 n.3 (9th Cir. Sept. 24, 2024), which involved allegations that the Center for Asbestos Related Disease Inc. (CARD) submitted hundreds of false claims to Medicare, the Ninth Circuit acknowledged the end of Chevron deference and the persuasive effect reserved for agency interpretations under Skidmore deference. Part of CARD’s argument was that the text of the Affordable Care Act was ambiguous as to the diagnoses requirement for submission of asbestos-related Medicare eligibility forms. The court noted that, it no longer recognized Chevron deference after Loper bright but “even if [it] were to give agency interpretations persuasive effect,” (citing to Skidmore), CARD’s argument failed. Id.   

Cases requiring a fresh look after Loper Bright

District court cases decided before Loper Bright or during litigation when Loper Bright was decided are shifting course, especially where the agencies relied heavily on Chevron deference.

• In Lake Region v. Becerra, 113 F.4th 1002 (D.C. Cir. 2024), the DC Circuit overturned the district court’s decision to uphold CMS’s interpretation of a Medicare statute provision. The circuit court noted that the district court had deferred to HHS’s reading of the statute under Chevron but with Chevron overruled, the court was “unpersuaded” by HHS’s arguments.
• In Baptist Healthcare of Oklahoma, LLC v. Becerra, Case No. 1:23-cv-00625 (D.D.C. - Pending), which involves challenges to the calculation of Medicare Disproportionate Share Hospital payments, the DC Circuit Court ordered additional briefing in light of Loper Bright stating that under the new standard, “if it is not the best, it is not permissible.”

No automatic “re do” of prior cases

Despite some political calls to challenge regulations upheld under Chevron, courts appear reluctant to revisit settled matters absent other grounds.

• In Tennessee v. Becerra, 131 F.4th 350 (6th Cir. 2025), the court addressed a challenge by the state of Tennessee against HHS’s decision to terminate its Title X family planning funding. The dispute arose after HHS implemented a 2021 regulation requiring all Title X grant recipients to provide neutral, nondirective counseling and referrals for abortion services upon patient request. The court noted that while Loper Bright was unclear about whether statutory stare decisis included circuit court precedent, the Sixth Circuit’s prior decision was persuasive. Further the “Supreme Court cautioned litigants hoping to rehash or relitigate previously settled issues decided based on Chevron . . .” Id. at 366. The Sixth Circuit ultimately held that even if its prior decision was not binding, it arrived at the same conclusion, that the agency rule in question was a lawful construction of the statute.
• In Doe v. U.S. Department of Health and Human Services, No. 1:24-CV-49-MJT-CLS, 2024 WL 4984444 (E.D. Tex. Oct. 1, 2024) (pending appeal), the court rejected a plaintiff’s argument that he was entitled to a “re-do” of his claims because the prior court expressly relied on Chevron. The court noted that the previous court had explicitly stated that the level of deference given to the agency’s interpretation of the question at issue was not determinative because the agency’s interpretation withstood scrutiny under either Chevron or “the less forgiving prism of Skidmore.” Id. at *14. This case involved a surgeon’s challenges to HHS’s procedures for disputing reports submitted to the National Practitioner Data Bank.     

Implications for healthcare stakeholders

Agency guidance still matters

Courts will continue to consider agency expertise, but only to the extent the agency’s reasoning is thorough, valid and consistent. As ongoing litigation demonstrates, courts are now demanding more than just an agency’s endorsed interpretation or a reading of the statute that is merely permissible. Healthcare organizations should ensure that any agency guidance they rely on is well-supported and carefully reasoned.

Precedent provides stability

Generally, courts are not allowing parties to relitigate cases settled before Loper Bright because of reliance on Chevron deference, offering a measure of stability for healthcare stakeholders who depend on established interpretations of the law. However, as demonstrated in Duffus, consistent agency interpretation may not be enough to protect longstanding regulations from being reexamined.

Potential for increased litigation

Agencies perceived as aggressive in their policymaking may encounter greater challenges, with courts subjecting their actions to heightened scrutiny. While increased oversight could slow the pace of regulatory change, it may also result in greater consistency and predictability.

Our team of experienced lawyers and professionals at Norton Rose Fulbright will be closely monitoring trends in agency rulemaking after Loper Bright. If you have any questions, please do not hesitate to contact us.