A blog on practice in the Nation’s second-most powerful court

Panel critical of attack on Trump Administration’s interpretation of the Affordable Care Act

In recent weeks, the press has focused heavily on how a possible Justice Amy Coney Barrett may view the Trump Administration’s pending challenge to the Affordable Care Act.  Fewer have noticed the Administration’s enforcement of the Act against hospitals—specifically, by interpreting the Act’s price-transparency provision to require hospitals to disclose what the Administration believes are more accurate prices for hospital services. 

The American Hospital Association challenged the Administration’s interpretation as exceeding its statutory authority, and violating the APA and the First Amendment.  In June, the Association lost in the District Court, in an opinion by Judge Carl Nichols.  Last week, the D.C. Circuit heard argument in the case, and all three members of the panel (Tatel, Garland, Edwards) appeared to be skeptical of the hospitals’ position. 

The statutory provision at issue requires hospitals to make public “a list” of their “standard charges for items and services provided.”  42 U.S.C. § 300gg-18(e).  At argument, counsel for the hospitals said the Administration’s interpretation of the “list” requirement failed under Chevron step one and deserved no deference under step two.  Indeed, counsel said, Chevron wasn’t even in play because (in her view) the rule was an unreasoned departure from the Obama Administration’s construction.  (Here, counsel’s principal brief relied on Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125-26 (2016), which rejected an interpretive change by the Department of Labor as lacking a sufficiently reasoned explanation.)  The government’s lawyer received fewer questions, which mainly focused on whether the Administration’s rule was workable.  The rule is set to go into effect on January 1, 2021.

For practitioners, the argument was a good reminder that the D.C. Circuit holds time limits loosely.  The Court had allotted the parties 15 minutes per side, yet kept the hospitals’ counsel going for over 30 minutes during her opening remarks.  For rebuttal, Judge Tatel told counsel she would have “two minutes,” yet the panel kept her answering questions for some 15 minutes.

The case is American Hospital Association v. Azar (No. 20-5193).