Readers may have been surprised to learn earlier this week that provider representatives and federal regulators have actually agreed on a rule regarding nursing home staffing.
In short, both seemed to show that they wanted to settle the operators’ lawsuit as quickly as possible. Or at least this part of it. McKnights Editor-in-chief Kim Marselas was the first to announce the news: the parties agreed to simply file motions to resolve the dispute. A jury or lengthy testimony were neither necessary nor desired.
That would allow a federal judge in Texas to decide as early as January whether to repeal or keep the staffing rule. That would be a quick decision for a lawsuit like this one, which was first filed in June.
But the intrigue doesn’t end there. The stakes are that the plaintiffs – your fellow nurses – have done such a good job of choosing an appropriate forum for their case that the government is essentially conceding it won’t win… on this level.
The idea is not so far-fetched. Why else would Xavier B., Chiquita BL. and the rest of the prepared promulgators remain so passive at this point? And without even the most cursory request to dismiss the case.
No, the government has not waved the big white flag. Something says the government is saving its powder for later. They must already be expecting that Judge Matthew Kacsmaryk of the U.S. District Court for North Texas is not going to do them any favors. He already reportedly has a history of disapproving of some of the government’s actions.
So let’s say the AHCA and its gang win a court ruling in January or February. It won’t be the last case. An appeal is certain to happen. (This is true regardless of which side wins, by the way.)
As many disappointed plaintiffs (and defendants) have learned, federal appeals courts can offer quite different conditions.
It is also important to note that the next occupants of the White House will be known by January, which could entail new guidelines for personnel planning.
Will the newest face in the presidential campaign continue her predecessor’s aggressive agenda against nursing home operators?
Or will a renewed residency provide a reprieve from a billionaire who previously provided welcome relief to qualified nurses? The task of having to recruit thousands of trained nurses who currently do not exist must inspire sympathy in a colleague in the industry.
Let’s get back to the courtroom games: The vendors may have an ace up their sleeve. No matter who wins the White House in November, at the end of the legal process a very conservative US Supreme Court will remain in office.
It would not be an exaggeration to say that the Supreme Court, having just shut down the feds by repealing the Chevron regulation, would do it again if given the chance.
The judicial system is not known for speeding up cases, especially to and through the highest court in the land. On the other hand, mandatory compliance with minimum staffing limits will approach relatively quickly after the current series of legal disputes is resolved. If there is any will at all to redirect current policy, it should be done expeditiously.
And given recent developments, we know that there is a will – and a precedent will be set – not to put things off.
James M. Berklan is McKnight’s Long-Term Care News’ Senior Editor and winner of the award for the best commentary in Neal Awards 2024which are awarded annually for the best business journalism in the country.
Opinions expressed in McKnight’s Long-Term Care News Columns are not necessarily those of McKnight’s.