It was inevitable, though the speed with which it unfolded has surprised many.
I’m referring, of course, to the pushback that more organizations are directing at their regulatory overlords. The catalyst? A recent Supreme Court decision.
In June, the nation’s highest court dismantled the long-standing Chevron deference, a principle that had instructed courts to side with regulatory agencies in matters where specific guidance was missing or vague.
Less than two months later, some beneficiaries of this decision are already moving to — as they see it — level the playing field. And who knows where things will end?
Just last week, federal judges questioned whether the Department of Labor’s salary test for determining overtime pay eligibility under the Fair Labor Standards Act goes too far. And it seems they might be inclined to rule that it does.
The three justices on the 5th U.S. Circuit Court of Appeals repeatedly pressed Courtney Dixon, counsel for the government, to pinpoint where Congress explicitly granted the department authority to consider salary when classifying employees as exempt or nonexempt.
“The text of the statute doesn’t allude to or mention salary or compensation,” Judge Cory Wilson pointed out.
Dixon’s responses, frankly, were not particularly persuasive. Especially in light of Chevron’s recent beat down.
To my mind, this development raises an intriguing question: Will nursing homes soon challenge CMS guidance that might be considered unclear? And what about controversial interpretations made by other agencies?
My guess is that we will soon see lawsuits flying like fish in a Sharknado.
There is no denying that few sectors are as heavily regulated as skilled care. Federal rules address virtually nearly every aspect of operations, from residents’ physical safety to refrigerator temperatures.
And amid those thousands of pages of regulations, you can bet there are more than a few head-scratchers tucked in.
In this post-Chevron world, it’s a safe bet that more than a few facilities will feel emboldened to challenge CMS and other regulatory bodies on, shall we say, differences of opinion?
How will the parade of lawsuits play out? That’s anyone’s guess. But one thing is certain: Providers’ chances for success have never looked better.
John O’Connor is editorial director for McKnight’s.
Opinions expressed in McKnight’s Long-Term Care News columns are not necessarily those of McKnight’s.
