BLOG: The silver lining in the Chevron reversal
Click Here to Manage Email Alerts
On June 25, 1984, the Supreme Court settled the case of Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc.
By a 6-0 decision, the court voted in favor of the Environmental Protection Agency (EPA) and granted the agency sole right to interpret ambiguous language in laws and set policy based on the opinions of content experts within the agency. This ruling ushered in a doctrine known as the “Chevron deference,” which has been used to create ultimate power for governmental agencies.
This new power of federal agencies spread well beyond the EPA. Since that ruling, the Chevron deference has been used in thousands of cases to strengthen the hand of federal agencies and, in many cases, give them ultimate authority to create policies and rules that affect many aspects of American life.
Health care in general — and optometry in particular — have been affected by the power of these agencies. CMS has enjoyed ultimate power over rules, regulations and payments for services. Its decisions, including not covering refractions, not covering contact lenses for the management of diseases like keratoconus and not allowing for an OCT of the nerve head and macular ganglion cells on the same day, all represent policies that adversely affect optometry.
The Federal Trade Commission (FTC) has been at war with private practice optometry for decades. The agency is heavily lobbied by the commercial optometry industry to create the infamous “Eyeglass Rule” that confuses and complicates the traditional practice of optometry. On June 27, 2024, the FTC announced the latest set of Ophthalmic Practice Rules, to which the American Optometric Association responded.
“Too many officials and agencies remain out of touch with what we face every day in our practices, and the result can be an emboldened bureaucracy and schemes for burdensome new mandates,” AOA President Steven T. Reed, OD, said. “Our AOA will never stop fighting to change that and to stand up for the doctor-patient relationship as the foundation of optometry’s essential and expanding role in health care.”
Well, guess what? Thanks to a new Supreme Court ruling, the FTC and CMS no longer have ultimate authority in any of these rules and policies. In the case of Loper Bright Enterprises v. Raimondo, the court effectively overruled Chevron and returned the power of federal agencies to the courts. Unjust policies, rules and interpretations of laws can now be challenged in court.
The 1984 court felt that the expertise required to create rules and policies for complex issues of environment — or, in our case, health care and ophthalmic practice — would be better off in the hands of agency experts rather than judges. It did not count on the influence of heavily funded industry on the experts within the agencies.
The 2024 Supreme Court has taken a fresh look at unfettered power and the politics of the federal agencies and returned the power to the courts. It now seems that experts on all sides of the issues that affect American life will have a chance to be heard before a final decision can be rendered.
Optometrists can now use the AOA or affinity groups to initiate legal action against federal agencies that have damaged the practice of optometry and made it more difficult for us to take care of our patients.
Although the path is not clear on the details of these actions, the door is certainly open. I would urge the leaders of optometry and our legal experts to watch carefully as policies and agencies are affected by this new ruling. Perhaps it will be a new day for the profession.
References:
- AOA makes robust rebuttal to FTC over proposed changes to Eyeglass Rule. https://www.aoa.org/news/advocacy/federal-advocacy/aoa-makes-robust-rebuttal-to-ftc-over-proposed-changes-to-eyeglass-rule?sso=y. Published March 16, 2023. Accessed July 12, 2024.
- Chevron USA v NRDC, 467 U.S. 837 (1984).
- Complying with the Eyeglass Rule. https://www.ftc.gov/business-guidance/resources/complying-eyeglass-rule. Published June 2024. Accessed July 12, 2024.
- FTC issues 10-year Eyeglass Rule update as AOA renews demand for crackdown on medical device scammers. https://www.aoa.org/news/advocacy/federal-advocacy/ftc-issues-10-year-eyeglass-rule-update-as-aoa-renews-demand-for-crackdown-on-medical-device-scammers?sso=y. Published July 3, 2024. Accessed July 12, 2024.
- Loper Bright Enterprises v Raimondo, 22-451 (2024).
Collapse