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bernomatic
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What Happens When the Government Doesn’t Even Know Its Own Laws?

How are we expected to follow the law, when the law is expending so rapidly that even the agencies tasked with enforcing it can't keep up?
While the overcriminalization phenomenon is nothing new, even the government itself is now becoming ensnared by the tangled criminal code. A recent case out of the Tenth Circuit, Caring Hearts Home Services, Inc. v. Burwell, exposes a government agency that did not know its own regulations.
The founding fathers in their wisdom made it so the government could not charge with a law they created after you did the deed. If say, you post a topic calling me a dummy today, and a rule on the starport is posted tomorrow saying no calling bernomatic a dummy, you could not be warned or banned for breaking that law.

But in the United States, our bureaucracies are becoming so overwhelmed by all the rules they make that sometimes aren't sure if someone is guilty or not.
Home Blog What Happens When the Government Doesn’t Even Know Its Own Laws?
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What Happens When the Government Doesn’t Even Know Its Own Laws?
Jarrett Dieterle June 08, 2016
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The average American likely commits three felonies a day, according to attorney Harvey Silverglate. While the overcriminalization phenomenon is nothing new, even the government itself is now becoming ensnared by the tangled criminal code. A recent case out of the Tenth Circuit, Caring Hearts Home Services, Inc. v. Burwell, exposes a government agency that did not know its own regulations.

Caring Hearts is a home health care service providing physical therapy and skilled nursing services to homebound Medicare patients. The Centers for Medicare & Medicaid Services (CMS) claimed that Caring Hearts had provided services to numerous patients who did not qualify as homebound—or had provided services that were not “reasonable and necessary”—and sought repayment for over $800,000 in Medicare payments that Caring Hearts had received.

But instead of applying the 2008 version of its regulations (which were in effect at the time), CMS applied a more stringent version of regulations it had adopted several years later. Under the older, correct version of the regulations, it appears that Caring Hearts was properly entitled to the Medicare payments for the services it had provided, but under the newer regulations it was not entitled to such payments. Caring Hearts, in essence, was expected to adhere to a version of regulations that didn’t exist at the time it was providing the services in question.
Fortunately in this case, there were some judges who can see the light at the end of the tunnel.
In a biting opinion, Judge Neil Gorsuch, writing for a unanimous court, ruled in favor of Caring Hearts. As the court wryly put it, “this isn’t (and never was) a case about willful Medicare fraud [but rather] it’s a case about an agency struggling to keep up with the furious pace of its own rulemaking.” Perhaps most alarming of all was the court’s revelation that CMS’s briefing in the case also “struggle[d] to keep up with the right regulations, repeatedly citing and quoting and relying the 2010 provisions” rather than the proper 2008 regulations

The court based its holding on a provision in the Medicare statute which states that medical providers who did not know, and could not have reasonably been expected to know, that their services weren’t permissible when rendered do not have to repay the amounts they received from CMS. (The court declined to consider other arguments against CMS’s action for repayment because they were not presented to the court and because the statutory argument sufficed to prevent the repayment).

Despite the relatively narrow statutory holding, the import of the case was not lost on the Tenth Circuit. Judge Gorsuch’s opinion highlighted the due process and fair notice concerns that occur when Congress delegates ever-greater swaths of lawmaking power to administrative agencies, which in turn promulgate an ever-expanding array of laws and regulations.

The proliferation of crimes—especially at the federal level—is jaw-dropping. Although efforts to count all the existing federal crimes on the books have failed, estimates put the number at over 3,000, and this does not count regulatory crimes (which could push the number to 300,000 or more). According to the court in Caring Hearts, CMS itself “issues literally thousands of new or revised guidance documents (not pages) every single year,” and that “about 37,000 separate guidance documents can be found on CMS’s website.” With so many laws, it’s difficult for well-meaning individuals and businesses to comply, especially when they often have no idea certain regulations even exist.
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