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Abstract

What do the Environmental Protection Agency’s “plantwide” definition of a “stationary” pollution source,” a National Marine Fisheries Service determination of who pays for fishing boat observers, and a Department of Health and Human Services rule governing the marketing of prescription drugs have in common? In short, a government agency’s interpretation of a federal statute. All three cases go to the heart of the administrative state: the ability of an agency, staffed by experts in the field, to interpret static statutory language to offer practical guidance to an ever-evolving industry.

The same is true of health care fraud, although it is often overlooked. Prosecuting fraudulent behavior is complex because allegations may hinge not on clear violations of law, but rather on activities subject to a wide range of pronouncements by the agencies that oversee the federal health care programs. Due to the complex administrative status of the policies that underlie these programs – both traditional notice-and-comment rules and informal subregulatory guidance – health care fraud is far more “administrative” than often is assumed.

For forty years disputes over those provisions were mediated by Chevron U.S.A. Inc. v. Natural Resources Defense Council, which held that where a statute is silent or ambiguous, courts should defer to an agency’s reasonable interpretation. When the Supreme Court overruled Chevron in Loper Bright Enterprises v. Raimondo in 2024, that framework was thrown into chaos. This Article provides a fresh perspective on Loper Bright from the administrative context of health care fraud, retelling the tale of Chevron as it relates to the inherent complexities of health care fraud enforcement. To the extent Loper Bright invites challenges to traditional health care regulations, agencies may be tempted to increase their reliance on informal fraud guidance – a development that portends instability for both the industry and government alike.

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