Readers might have been surprised to learn earlier this week that provider advocates and federal regulators actually agreed on something about the nursing home staffing mandate.

In short, they both seemed to show they want to get the operators’ legal challenge resolved as soon as possible. Or at least this stage of it. As McKnight’s Senior Editor Kim Marselas first broke the news, the sides agreed to only file motions to bring resolution. No jury or drawn-out testimony needed or desired. 

That could grease the skids to allow a federal judge in Texas to rule as soon as January as to whether the staffing mandate should be set aside or allowed to remain. That would be fast for a lawsuit like this, which was filed in June.

Yet that’s not where the intrigue ends. The betting money says that the plaintiffs — your comrades in skilled nursing arms — did such a good job picking a good venue for their case, the feds are essentially conceding they’re not going to win … at this level.

The notion isn’t so far-fetched. Why else would Xavier B., Chiquita B-L. and the rest of the primed promulgators go so passively at this point? And without so much as a perfunctory request to toss the suit.

No, this wasn’t the administration waving the big white flag. Something says the feds are keeping their powder dry for later. They must already figure that Judge Matthew Kacsmaryk of the US District Court for Northern Texas is going to do them no favors. He has a track record of frowning on some of this administration’s policies, according to reports.

So let’s say the AHCA and gang get their way in a bench ruling come January or February. That won’t be the last of the case. An appeal will surely ensue. (That’s true no matter which side wins, for that matter.)

Federal appeals courts can be very different scenes, as many a disappointed plaintiff (and defendant) has learned.

It also must be pointed out that by January, the next inhabitants of the White House will be known. That could set off new orders regarding the staffing mandate. 

Will the freshest face in the presidential race continue her predecessor’s aggressive agenda toward nursing home operators? 

Or will a reprise residency bring a reprieve from a billionaire who has brought welcome relief to skilled nursing operators before? The task of having to hire thousands of registered nurses who don’t currently exist has to generate sympathy from a fellow business operator.

Getting back to the court games, providers may have an ace in the hole. Regardless of who wins the White House in November, a very conservative US Supreme Court will remain seated at the end of the legal trail. 

It would be no stretch to think that the Supremes, who just kneecapped federal agencies by overturning the Chevron deference, would do it again if given the chance.

The judicial system is not generally known for speeding cases along, especially to and through the highest court in the land. But then again, mandatory compliance with staffing minimum levels will be approaching relatively quickly after the current series of legal volleys is settled. If there’s any will to redirect current policy, it ought to be done with pace.

And given recent developments, we know that there’s an appetite — and there will be precedent — for not letting things linger.

James M. Berklan is McKnight’s Long-Term Care News’ Executive Editor and a Best Commentary award winner in the 2024 Neal Awards, which are given annually for the nation’s best specialized business journalism.

Opinions expressed in McKnight’s Long-Term Care News columns are not necessarily those of McKnight’s.