The long-term care equivalent of life’s “death and taxes” could be fairly called “CMS and plaintiffs’ lawyers.” Both givens, and neither too savory.

In fact, you learn early in a long-term care career that if you want to get a smile or a cheer, you jab at either the Centers for Medicare & Medicaid Services or lawyers. 

Now providers have an interesting choice: Cheer for CMS and other federal agencies to get their wings clipped or root for the status quo, which would keep lawyers’ and judges’ power more in check. Pick your favorite flavor.

This week’s Supreme Court hearing on the Chevron case brought that tough choice into focus. In a nutshell, the High Court is going to let us know whether administrative agencies like CMS will continue to have the final say on what goes into legally binding regulations and how they’re enforced, or whether the courts should take more of that responsibility.

In layman’s terms, the Chevron doctrine says that deference must be given to federal agencies and their experts when laws aren’t totally clear on interpretations of regulations.

I’d ask if anybody out there has a recent CMS rule or decision they’d like changed — any issues with Medicare or Medicaid regs, for example?  — but the ensuing roars of mocking laughter might be too loud for the neighbors. 

We could start with the proposed federal staffing mandate and work through hundreds (thousands?) of existing regulations that plaintiffs’ lawyers could target if SCOTUS reverses Chevron. A decision is expected by the end of the court session in June.

Legal observers are all but certain some kind of change is in the air since the watering down or elimination of the 40-year-old Chevron ruling has been on conservatives’ agenda for years. Their 6-3 super majority on the Supreme Court gives strong credence to the theory.

Ironically, it was a 6-0 decision in a case pushed by the then-conservative administration in the early 1980s that first put the Chevron standard into place.

One handicapper figures it comes down to whether Chief Justice John Roberts and Justice Amy Coney Barrett would defy their political leanings and side with the three staunch liberal justices to keep Chevron in place. They’ve asked questions that give one pause. But given that unlikely scenario, it would then come down to whether Chevron is totally tossed or some modified version is put in place.

A wide swath of public health, consumer, workplace safety and environmental regulations could be affected. That’s why you see a far bigger crowd than just long-term care practitioners keeping a close eye on this one.

As with many cases before the Supreme Court, there are not a lot of smooth edges here. 

Now, every time the White House changes political parties, agencies and rule-making can make a 90- or 180-degree turn. History has shown us how this happens.

On the other hand if the current less-than-perfect system is upended, lawsuits challenging any kind of standard — favorable or not to long-term care providers — could be taken up. Anybody know any sue-happy lawyers or special interest groups?

Then, freed up from any agency’s ultimate oversight, a judge with not as much technical background or some kind of activist streak could rule the roost.

Somehow death and taxes don’t seem quite as gloomy.

James M. Berklan is McKnight’s Long-Term Care News’ Executive Editor.

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