Stuart Gerson Quoted in “Attorneys React to High Court’s Agency Rule-Making Decision”

Law360

Stuart M. Gerson, a Member of the Firm in the Litigation and Health Care & Life Sciences practices, in the firm's Washington, DC, and New York offices, was quoted in Law360, in “Attorneys React to High Court's Agency Rule-Making Decision.” (Read the full version — subscription required.)

Following is an excerpt:

“The court’s decision in Perez is an extremely important administrative law case that has significantly increased unilateral 'informal' interpretive rulemaking authority. That significance lies in the fact that the court rejected the generally accepted view of the D.C. [Circuit] in Paralyzed Veterans of Am. v. D.C. Arena LP, which had required agencies to use the APA’s notice-and-comment procedures when it wishes to issue a new interpretation of a regulation that deviates significantly from a previously adopted interpretation. The Supreme Court now has held that this doctrine improperly exceeds the APA’s maximum requirements, leaving agencies free to alter even long-standing interpretive rules at will. This will not only empower DOL, but other activist agencies like the Centers for Medicare and Medicaid Services, which promulgates a large number of rulings that it states are 'interpretive.' The decision also augurs substantial unilateral agency shifts in interpretations when administrations change. It also may signal agency deference under the Chevron doctrine in the now-pending Affordable Care case regarding the IRS regulation as to tax credit subsidies.”