Talk about Christmas coming early. It sure looks like the Supreme Court just gave long-term care operators a really swell gift.
Voting along ideological lines, the nation’s highest court ruled 6-3 to terminate the Chevron doctrine.
That legal principle gave regulatory agencies like the Centers for Medicare & Medicaid Services plenty of leeway in interpreting ambiguous rules and regulations. Going forward, judges will have the final say in such disputes when they arise. As they surely will.
On the surface, this ruling seems to promise operators less red tape and more freedom. How can that not be good news for one of the nation’s most heavily regulated industries?
But before providers start popping the champagne, perhaps they should take a moment to consider a couple of matters that might make this victory less than fully satisfying. Two come immediately to mind.
First, let’s talk about the new sheriff in town. Sure, the Supreme Court’s decision strips some power from regulatory agencies, but that hardly means operators are completely off the hook from oversight. It just shifts the power from bureaucrats to judges. And judges, let me remind you, can be every bit as biased, prickly and heavy-handed.
We often hear about the challenge of mission creep in long-term care. What about lawsuit creep? Imagine a courtroom drama every time there’s a new proposal in the Federal Register. Or a facility receives a 2-star survey. Or a claim is denied. Legal battles are costly, time-consuming, and, frankly, unpredictable. Many operators could find themselves swapping one headache for another.
And then there’s the long game. The Supreme Court’s conservative tilt was the deciding factor in reversing the Chevron doctrine. Just as it was a year ago, when they reversed a landmark abortion rights decision. But what happens when the Court eventually leans the other way?
A future Court with a liberal majority might see fit to overturn this decision, just as this one overturned Roe v. Wade.
These days, stare decisis and $1.79 will get you a soda at the gas station.
And when all it really takes to trash precedent are five justices who don’t like the way things were, can any Supreme Court decision be considered permanent?
So enjoy this recent victory for what it’s worth. Even if we don’t yet know how valuable it will prove to be, or how long it will stick around.
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.
