Whether an agency rule delegating rulemaking authority to a private entity violates the nondelegation doctrine

QUESTIONS PRESENTED In 1981, Congress passed a statute requiring that reimbursement rates paid to managed-care organizations for managing state Medicaid plans be “actuarially sound.” In 2002, unable to give that term a prescriptive meaning, the Centers for Medicare and Medicaid Services punted the question to a private group of actuaries. Because “actuarially sound” is not actually a term that actuaries use in their day-to-day practice, that group had no definition either. And that group did not adopt a binding definition to be applied to Medicaid capitation rates until 2015. That definition was then used to foist nearly $500 million of taxes under the Affordable Care Act onto Petitioner-States in only three years. The questions presented are: (1) Whether an agency rule delegating rulemaking authority to a private entity violates the nondelegation doctrine. (2) Whether the statute of limitations applicable to a challenge to an agency rule that delegates rulemaking authority to a private entity starts to run when the agency delegates the authority or when the private entity exercises the delegated authority. (1)