Consider the following scenario: A worker’s compensation claim or personal injury matter is advancing through the courts and nearing a possible settlement. Attorneys on both sides are seeking to protect their client(s) and consider Medicare’s interests. The defense and the injured party have conflicting information or views on how to use a Medicare set-aside (MSA) to achieve their competing goals and objectives. Agency deference creates real and perceived roadblocks that block a clear path to agreement on all issues.

Over the years, attorneys and other interested stakeholders attempting to settle worker’s compensation and personal injury cases have grown frustrated with the Centers for Medicare and Medicaid Services (CMS) and its voluntary review and approval process for MSAs. CMS’s policy of using this process, which began in 2001,^[1] has grown and, since 2013, has been included in the Workers’ Compensation Medicare Set-aside Arrangement (WCMSA) Reference Guide (the Guide).^[2]

CMS’s review and approval process is imperfect because the agency’s interpretation is contrary to the Medicare Secondary Payer Act (MSP Act). These imperfections include a process without an appeal to a neutral party, the CMS’s failure to consistently recognize state-law limitations on agency action, and the CMS protocols that create a de facto “requirement” that settlements meeting the CMS workload-review thresholds be submitted for review and approval.

The MSP Act requires parties to consider Medicare’s interests in all worker’s compensation^[3] settlements.^[4] This principle is grounded in the statutory language directing parties to satisfy all conditional payments at settlement and to keep Medicare the “secondary payer” after settlement. Unfortunately, the CMS has taken its role far beyond what the MSP Act permits.

Examples of overarching agency actions under the guise of Chevron deference (the doctrine the U.S. Supreme Court struck down in 2024, discussed later in this article) are well known to lawyers practicing in Wisconsin and other states. As a result, insurance carriers are being unwittingly compelled to pay what could best be described as a “settlement tax,” totaling over $1 billion in the last four years combined.^[5] Failure to rein in the CMS’s unfettered control over the industry will result in countless settlements being missed because reserve funds are unnecessarily spent to satisfy the CMS’s demands.

Although the Court struck down Chevron deference in Loper Bright Enterprises v. Raimondo,^[6] thought leaders in the Medicare secondary payer industry have failed to press Congress for legislation addressing the MSP Act’s many shortcomings.

MSP Act: A Brief and Confusing History

The Medicare program was signed into law by President Lyndon Johnson on July 30, 1965.^[7] Medicare originally provided medical insurance for people age 65 and older. It now includes younger people who have permanent disabilities and receive Social Security Disability Insurance (SSDI) payments and those who have end-stage renal disease (ESRD).^[8] In 2001, the Medicare program was expanded to cover persons with amyotrophic lateral sclerosis (ALS, sometimes referred to as Lou Gehrig’s disease).^[9]

Medicare was initially a “primary payer.” As a result, the Medicare program would make payment to beneficiaries who suffered any personal injury. This remained the status quo until December 6, 1980, when President Jimmy Carter signed into law what is now known as the MSP Act.^[10] Medicare then became a “secondary payer,” meaning it covers only the costs not paid by the primary insurer. Payments to an injured recipient are conditional, and if the at-fault party or an employer pays the injured individual, Medicare will seek repayment for the conditional payments.

Notwithstanding the change in Medicare’s status to a secondary payer, the CMS and attorneys largely ignored this law when settling worker’s compensation and personal injury claims. However, as the Baby Boomer Generation started to retire, the insurance industry and attorneys began to take notice of the MSP Act in the mid-1990s. This was followed by the CMS’s issuance of policy memoranda in 2001 regarding compliance with the MSP Act and supporting regulations.

The MSP Act applies to all “…workmen’s compensation law or plan[s], an automobile or liability insurance policy or plan (including a self-insured plan) or no-fault insurance….”^[11] Under the Act, the CMS has the right to recoup money paid on behalf of beneficiaries from claimants, medical providers, employers, insurers, third-party administrators, and attorneys. In other words, the CMS can recover money it has paid from any entity or person that has benefited financially by shifting the burden of medical expenses to Medicare.

Although its application may seem simple, attorneys, interested stakeholders, and even the courts have struggled to understand and apply the MSP Act correctly. Seizing on this confusion, the CMS has invoked Chevron deference to create legal fictions that industry “experts” closely follow as they navigate the federal government’s bureaucratic labyrinth.

What Is Chevron Deference?

In Chevron v. Natural Resources Defense Council,^[12] the U.S. Supreme Court greatly expanded the powers of federal administrative agencies by stating that courts should uphold “permissible” agency interpretations of statutes even when a reviewing court reads the statute differently.^[13]

According to the Chevron court, deference depended on whether Congress had directly spoken to the precise question at issue^[14]; if Congress had not (the statute was silent or ambiguous with respect to the specific issue) the court should defer to the agency’s interpretation.^[15]

The Court said that lower courts should consider precedent that discusses an agency’s interpretation of a statute; the weight to be given to the interpretation would depend, among other things, upon “its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”^[16] This judicially created deference has allowed the CMS to wield broad, unchallenged authority, often in ways that confuse stakeholders and even confound federal judges.^[17]

Where the Medicare Set-Aside Came From

Quoting President Harry S. Truman, “If you can’t convince them, confuse them.” This has been accomplished through unfettered agency oversight, which has made the MSP Act one of “the most impenetrable texts within human experience.”^[18]

To understand this better, review the Federal Register, which publishes daily notices of new rules and regulations. The size of this publication has grown since Chevron became the law of the land. Instead of passing laws to clarify matters, Congress has allowed the U.S. Department of Health and Human Services and the CMS to use their expertise to develop procedures via policy memoranda and user guides concerning the MSP Act, relying on the agencies’ perceived expertise in the subject matter. In effect, agency policy — not statute — has driven MSP Act compliance.^[19]

Under this approach to policymaking, courts have struggled to define and comprehend the term “Medicare set-aside” because it is not found in federal law and is a legal fiction that has gained broad acceptance. Since the CMS first used this term in July 2001, it has confused countless people, including attorneys.^[20] Common examples include perpetual questions that continue today:

• Doesn’t the MSP Act only apply to worker’s compensation cases — not personal injury cases?

• Isn’t an MSA only used in worker’s compensation cases that meet the CMS workload review thresholds?

• Is an MSA required in my case?

Attorneys and other interested stakeholders would probably agree that there is confusion about what they need to do to consider Medicare’s interests and protect their clients. Attorneys handling any injury-related case must determine whether the MSP Act applies. Factors to consider include the injured party’s age and Medicare status, whether any Medicare items and services are being closed out in the settlement, and whether the injured party will require medical care after the settlement. Therefore, every injury settlement should be analyzed and reviewed by a compliance attorney.

Law Versus Policy: CMS Memoranda, the WCMSA Review Process, and the MSP Act

The term “Medicare set-aside” reportedly was first used in the mid-1990s by Colorado attorneys who stumbled upon the MSP Act while seeking to protect their clients from future adverse action. In the early 2000s, the CMS adopted the term in official publications, and it has become the mainstay of the legal community.

Although the term is not found in statutes or regulations, there is a basis for using this tool to consider Medicare’s interests post-settlement under 42 U.S.C. § 1395y(b)(2)(B)(i):

“The Secretary may make payment under this subchapter with respect to an item or service if a primary plan … has not made or cannot reasonably be expected to make payment with respect to such item or service promptly (as determined in accordance with regulations). Any such payment by the Secretary shall be conditioned on reimbursement to the appropriate Trust Fund….” (emphasis added).

Repayment to Medicare is required when a primary plan is responsible for a payment, which responsibility can be demonstrated by “a judgment, a payment conditioned upon the recipient’s compromise, waiver, or release (whether or not there is a determination or admission of liability) of payment for items or services included in a claim against the primary plan or the primary plan’s insured, or by other means.”^[21]

The CMS has emphasized this in numerous policy memoranda, including a May 25, 2011, memorandum in which MSP Regional Coordinator Sally Stalcup stated, “Medicare’s interests must be protected; however, CMS does not mandate a specific mechanism to protect those interests. The law does not require a ‘set-aside’ in any situation. The law requires that the Medicare Trust Funds be protected from payment for future services … Set-aside is our method of choice and the agency feels it provides the best protection for the program and the Medicare beneficiary.”

Given the CMS’s reliance on these statutory sections to perpetuate the use of MSAs, one could reasonably conclude that an MSA is merely a “conditional payment” made at an unknown time in an unknown amount. To take this logic one step further, any statute, regulation, or policy that applies to conditional payments made before settlement, judgment, or award must also apply to a conditional payment made after settlement, which we refer to as an MSA.

For unknown reasons, the CMS has focused its MSP Act compliance efforts on worker’s compensation settlements rather than other personal injury claims. This included creating the WCMSA review and approval process. This process is the de facto law of all cases submitted for agency review.^[22] Features of this process include:

• Workload review thresholds that outline the instances in which the CMS will review a settlement and the accompanying MSA to determine whether the set-aside amount adequately considers Medicare’s future interests;^[23]

• Guidelines specifying which documents are required for submission, including a prohibition on independent medical examination (IME) reports,^[24] which some argue tilts the process toward the findings and opinions of the treating provider; and

• Absence of an appeals process to a neutral party.^[25]

These are among the many concerns attorneys and interested stakeholders have about the use of agency deference made possible by Chevron. The CMS has become a powerhouse with no checks or balances. In overruling Chevron, the Court underscored common objections that resonate with stakeholders seeking to comply with the MSP Act. The bottom line is that the CMS policy very likely conflicts with the law.

Loper Bright Facts and Holding

Loper Bright did not involve the MSP Act, and its effects have yet to be fully understood by personal injury and worker’s compensation attorneys, and more importantly, Congress.^[26] The case involved the Magnuson-Stevens Fishery Conservation and Management Act (MSA),^[27] which gave the federal government control over fisheries operating within 200 nautical miles of the United States coastline. It was amended in 1996 and 2007 to address ecological and economic concerns about overfishing. Under this statute, the New England Fisheries Management Council (NEFMC) was created and given the authority to implement and regulate fishing practices in the New England area.

Loper Bright Enterprises is a private business that estimated the cost of compliance with federal law at about $700 per day. It filed a lawsuit in the U.S. District Court for the District of Columbia, arguing that the MSA does not authorize the NMFS to require herring fishers to pay for the at-sea observers mandated by a fishery management plan.^[28] In sum, Loper Bright contended that Chevron deference improperly allowed the federal agency to act.

Various appeals brought the matter before the U.S. Supreme Court. Among many things, the Loper Bright Court noted, “Chevron defies the command of the APA^[29] [Administrative Procedure Act] that ‘the reviewing court’— not the agency whose action it reviews — is to ‘decide all relevant questions of law’ and ‘interpret . . . statutory provisions.’ §706 (emphasis added). It requires a court to ignore, not follow, ‘the reading the court would have reached’ had it exercised its independent judgment as required by the APA. And although exercising independent judgment is consistent with the ‘respect’ historically given to Executive Branch interpretations, Chevron insists on much more. It demands that courts mechanically afford binding deference to agency interpretations, including those that have been inconsistent over time. Still worse, it forces courts to do so even when a pre-existing judicial precedent holds that the statute means something else — unless the prior court happened to also say that the statute is ‘unambiguous.’ That regime is the antithesis of the time honored approach the APA prescribes. In fretting over the prospect of ‘allow[ing]’ a judicial interpretation of a statute ‘to override an agency’s’ in a dispute before a court, Chevron turns the statutory scheme for judicial review of agency action upside down.”^[30]

In sum, the Loper Bright Court noted that agency deference under Chevron conflicted with the APA’s underlying tenets, which removed the courts’ role in interpreting laws. The result was that agency interpretations took precedence over judicial findings. This is a direct conflict with the deeply held belief that the three branches of government are co-equal, and each has separate powers.

In overturning Chevron, the Supreme Court held that reviewing courts should not give executive branch agencies deference when interpreting a statute simply because it is ambiguous or involves complex or technical issues.^[31] Instead, courts must “do their ordinary job of interpreting statutes, with due respect for the views of the Executive Branch. And to the extent that Congress and the Executive Branch may disagree with how the courts have performed that job in a particular case, they are of course always free to act by revising the statute.”^[32]

Voluntary WCMSA Review and Approval Process in the Wake of Loper Bright

Under the MSP Act, several issues continue to cause frustration, delay, and confusion. In light of Loper Bright, attorneys and other stakeholders are challenged to address the following areas of confusion under the MSP Act.

1. The WCMSA review and approval process fails to provide the certainty stakeholders seek. The only “certainty” the WCMSA review and approval process provides is for CMS, not for stakeholders submitting an MSA. Anyone who has submitted an MSA for several years can give countless examples, such as the following:

• Review contractors are changed. What was acceptable in the past is no longer acceptable today. Changes to processes occur without notice.

• Revisions of the CMS policy that was first outlined in policy memoranda^[33] and the Guide are ongoing. Numerous examples show policy changes in the process that did not correspond to changes in the MSP Act.

• The WCMSA process has always been sold as voluntary, but recent policy changes state that the CMS has the “sole” discretion to determine whether the burden has been shifted to Medicare after settlement.^[34]

This ongoing system of trial and error allowed under “Chevron fosters unwarranted instability in the law, leaving those attempting to plan around agency action in an eternal fog of uncertainty.”^[35] The results are delay, confusion, and perpetual frustration.

2. The WCMSA review and approval process has given the CMS a license to change its position and enforce a de facto system requiring submission for all settlements meeting the workload review thresholds. First issued in 2013, the Guide has changed repeatedly without stakeholder input and was never fully explained. Examples of this include:

• Changes in workload review thresholds;

• Ambiguous definitions in essential terms such as “compromise,” “commutation,” and “total settlement amount”; and

• Attempts to force stakeholders into the WCMSA review and approval process while still claiming it is “voluntary.”^[36]

Although the Guide has been a welcome addition to the process, some details remain a mystery. For example, the CMS operating rules remain cloaked in secrecy. On October 27, 2008, the CMS gave industry stakeholders their first glimpse of these rules when it released a heavily redacted version. The reason for redacting portions of the rules was “not to cause confusion.”^[37] CMS undertook a similar process on April 22, 2010.

Unfettered and unchecked Chevron deference has allowed the CMS to operate a system that costs all parties to worker’s compensation settlements needless delay and additional expense. The Loper Bright Court referred to statutory ambiguity as a “license authorizing an agency to change position as much as it likes, with ‘unexplained inconsistency’” and in an “arbitrary and capricious” manner.^[38]

3. The WCMSA review and approval process unfairly gives CMS the final say on the “reasonable” amount to consider future interests. Under the WCMSA process, the CMS is supreme:

• The CMS makes all the rules, which are biased toward ensuring the highest dollar amount is set aside.

• The CMS ignores fundamental procedural due-process standards by selecting relevant evidence and excluding IMEs, even when the report has adequate medical foundation. In other instances, the CMS applies a set of rules to one jurisdiction but ignores them in others.

• The CMS has the final say on all matters of “re-review” and “amended review” but avoids any appeals of an adverse decision to a neutral third party.

The CMS has taken further steps to encourage the submission of all settlements for review and approval through means such as the following:

• WCMSA Reference Guide Section 4.3 – The Use of Non-CMS-Approved Products to Address Future Medical Care. While changes were made from v3.5 to v3.6, the CMS still maintains a “sole discretion” position to deny post-settlement payments in non-submit situations, which flies in the face of longstanding precedent in American jurisprudence.

• Including various data points in Section 111 reporting that will help identify MSAs that have not been submitted for review and approval.

Necessary Changes: Loper Bright as a Vehicle for Change

There have been several bills in Congress that, if enacted, would have better defined the WCMSA review and approval process and mandated changes to ensure due process in a broken system. Legislative proposals have included the following:

Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act – H.R. 5285 (112th Congress): This bill would have clarified commonly used terms in the WCMSA process, created statutory exemptions for the use of MSAs in worker’s compensation settlements, and created a “qualified” MSA (QMSA) process with safe harbors and due-process considerations

Secondary Payer Advancement, Rationalization, and Clarification (SPARC) Act – H.R. 1122 (115th Congress): This bill sought to clarify the rights of Medicare Part D plans to ensure a consistent interpretation with Medicare Part C as defined by case law.

Coordination of Medicare Payments and Workers’ Compensation (COMP) Act – S. 653 (117th Congress): This bill would have accomplished similar objectives of the Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act - H.R. 5285, by defining key WCMSA terms and creating a QMSA process with due-process considerations and appeals on adverse agency determinations.

None of these bills advanced beyond committee after introduction, notwithstanding efforts by industry groups lobbying members of Congress. Nevertheless, the CMS could use administrative rulemaking and guidance from Loper Bright to bring about change to the MSP Act — a reimagining of the process that would include input from the industry and still allow consideration of Medicare’s interests after settlements. Suggested changes include the following:

• Codify case-law interpretations requiring the CMS to follow state worker’s compensation law regarding all affirmative defenses, including reviewing all medical records with the proper foundation (for example, IME reports), applying all applicable medication fee schedules, and so on;

• Encourage parties to use the WCMSA submissions — make it a genuinely voluntary review and approval process; and

• Create an appeals process that allows review by a neutral and impartial third party.

The Court, in Loper Bright, was spot on when it stated, “fundamentally, Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.”^[39] By claiming competence the Court says agencies never had, CMS has become the final arbiter of Medicare set-asides in worker’s compensation settlements, with no appeal to a neutral party. Now is the time for change in the WCMSA review and approval process.

Congress can reform a flawed system through legislative action, with input from all interested stakeholders. At the same time, if the CMS is unwilling to take the necessary steps to change its program, attorneys must take the lead by litigating matters with guidance and confidence provided by Loper Bright.

Endnotes

[1] Parashar B. Patel, Centers for Medicare and Medicaid Services, policy memorandum (July 23, 2001). ^

[2] CMS policy was initially referenced in a series of policy memoranda, which were consolidated into the Workers’ Compensation Medicare Set-aside Arrangement (WCMSA) Reference Guide on March 13, 2013, and published under v1.3 on March 29, 2013. (The “v” stands for “version.”) According to section 1.0 – About This Reference Guide, “There are no statutory or regulatory provisions requiring that you submit a WCMSA amount proposal to CMS for review. If you choose to use CMS’ WCMSA review process, the Agency requests that you comply with CMS’ established policies and procedures.” ^

[3] Readers should be aware the MSP Act applies to all personal injury or liability claims, no-fault claims, and worker’s compensation claims. The WCMSA review and approval process applies only to worker’s compensation settlements. The absence of such review process in cases other than worker’s compensation cases should never lead one to the conclusion a Medicare set-aside is irrelevant in other personal injury cases. ^

[4] See 42 C.F.R. § 411.46(b). ^

[5] Workers’ Compensation Medicare Set-aside (WCMSA) Fiscal Year Statistics: 2020-2023 (Dec. 2023), https://www.cms.gov/files/document/workers-compensation-medicare-set-aside-wcmsa-fiscal-year-statistics-2023.pdf; Workers’ Compensation Medicare Set-aside (WCMSA) Fiscal Year Statistics: 2020-2023 (Dec. 2024), https://www.cms.gov/files/document/workers-compensation-medicare-set-aside-wcmsa-fiscal-year-statistics-2024.pdf-0; see also Aaron Frederickson, Medicare Set-Aside Arrangements: Submit or Not Submit?, 97 Wis. Law 20 (July/Aug. 2024). ^

[6] 603 U.S. 369 (2024). ^

[7] Pub. L. No. 89-97, H.R. 6675 – Social Security Amendments of 1965, amending Title XVIII of the Social Security Act, and codified under 42 U.S.C. § 1395. ^

[8] Pub. L. No. 95-292 (H.R. 8423 – Social Security Act amendment, End stage renal disease program), which was signed into law by President Jimmy Carter on June 13, 1978, and codified under 42 U.S.C. § 1395c. ^

[9] Pub. L. No. 106-554 (H.R. 4577 – Consolidated Appropriations Act of 2001), which was signed into law by President Bill Clinton and codified at 42 U.S.C. § 423(a)(1). This amendment was effective July 1, 2001. Persons with ALS were previously subject to a five-month waiting period for Medicare eligibility. This restriction was removed under Pub. L. No. 116-250 (S. 578 – ALS Disability Insurance Access Act of 2019), which was signed into law by President Donald Trump on December 22, 2020, and codified at 42 U.S.C. § 423(1)(E). This amendment was immediately effective. Technical corrections were later made upon passage of S. 579 - A bill to make a technical correction to the ALS Disability Insurance Access Act of 2019, which was signed by President Joseph Biden on March 23, 2021, which eliminated the five-month waiting period for individuals with ALS who were approved for benefits on or after July 23, 2020. ^

[10] Omnibus Budget Reconciliation Act of 1980, Pub. L. No. 96-499 (codified at 42 U.S.C. §1395y(b)(2)(A)(ii)). ^

[11] 42 U.S.C. § 1395y(b)(2)(A)(ii). ^

[12] 467 U.S. 837 (1984). The Court in Loper Bright made it a point to note Chevron was decided by a bare quorum of six Justices. Loper Bright Enters. v. Raimondo, 603 U.S. 369, 396 (2024). ^

[13] Chevron, 467 U.S. at 843. ^

[14] Id.. at 842. ^

[15] Id.. at 843. In Loper Bright, the Court noted the “fiction” of Chevron is found in “the better part of four decades imposing one limitation on Chevron after another, pruning its presumption on the understanding that ‘where it is in doubt that Congress actually intended to delegate particular interpretive authority to an agency, Chevron is ‘inapplicable.’” Loper Bright, 603 U.S. at 404 (citations and quotations omitted). ^

[16] Skidmore v. Swift & Co., 323 U.S. 134 (1944). ^

[17] Aranki v. Burwell, 151 F. Supp. 3d 1038 (D. Ariz. 2015), is an opinion in which the presiding federal judge misstated the function of the MSP Act and created further confusion. But the result arguably is correct — a Medicare set-aside is never “required.” A better approach to complying with the MSP Act is to ask, “Is a MSA recommended to consider Medicare’s interests and protect my client(s) from future adverse action?” ^

[18] Cooper Univ. Hosp. v. Sebelius, 636 F.3d 44, 45 (3d Cir. 2010) (citation omitted). ^

[19] Skidmore, 323 U.S. at 139-140. ^

[20] Patel, supra note 1. ^

[21] 42 U.S.C. § 1395y(b)(2)(B)(ii). ^

[22] WCMSA Reference Guide, v4.6 (July 13, 2026) COBR-Q3-2026-v4.6. ^

[23] Id.. § 8.1, pp. 10–11. ^

[24] Id.. § 10.7 Section 35 – Medical Records, p. 53. ^

[25] Id. §§ 16.2–.3, pp. 62–63 ^

[26] On April 27, 2026, Environmental Protection Agency Administrator Lee Zeldin testified before the House Appropriations Committee – Subcommittee on Interior, Environment, and Related Agencies, regarding budget requests. The hearing evolved into a heated exchange with Rep. Rosa DeLauro (D-Conn.) over perceived agency inaction on climate change. When Rep. DeLauro stated she was not familiar with Loper Bright and its impact, Administrator Zeldin quipped, “Loper Bright says that was we as an agency don’t have the authority to get creative….” At the time of publication an official transcript of the hearing was not available. ^

[27] Pub. L. No. 94-265 (codified at 16 U.S.C. §§ 1801–1891d). This act was signed into law by President Gerald Ford on April 13, 1976, following the passage of H.R. 200. The author finds it ironic that the law reviewed by the Court in this case was the Magnuson-Stevens Fishery Conservation and Management Act, which is often referred to as “MSA.” Having prepared, reviewed, and commented on countless Medicare set-asides (MSAs), the underlying irony was of some humor. ^

[28] Loper Bright Enters. v. Raimondo, 45 F.4th 359, 370–73 (D.C. Cir. 2022). ^

[29] The Administrative Procedures Act, codified at 5 U.S.C. §§ 500–596, outlines how federal agencies make rules and decisions. ^

[30] Loper Bright, 603 U.S. at 398–99 (citations omitted). ^

[31] See id. at 400. ^

[32] Id. at 403. ^

[33] The CMS policy memorandum created constant confusion. Subsequent memoranda indicated prior answers to questions were no longer acceptable. The changes in policy have been ongoing, without opportunity to comment, and often so haphazard that they trigger subsequent revisions. ^

[34] WCMSA Reference Guide, § 4.3 – The Use of Non-CMS Approved Products to Address Future Medical Care, at 6–7 (issues concerning non-CMS approved products were first addressed in v3.5 (Jan. 10, 2022)). ^

[35] Loper Bright, 603 U.S. at 411. ^

[36] WCMSA Reference Guide § 4.3. ^

[37] CMS Operating Rules Policy Memorandum, Oct. 27, 2008. ^

[38] Loper Bright, 603 U.S. at 410–11 (citing National Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005)). ^

[39] Id. at 400–01. ^