John O’Connor

By any measure, the Supreme Court just wrapped up one of its more memorable sessions.

In its closing weeks, the highest court overturned a landmark decision establishing a constitutional right to abortions, affirmed a public high school football coach’s right to pray on the field following games and rejected New York’s gun control law.

But the decision that may most directly affect long-term care providers was actually directed at the Environmental Protection Agency. And its potential impact on skilled care might be hard to overestimate.

Voting along ideological lines, the court moved to curb the EPA’s ability to regulate climate change. So what part of a decision about greenhouse gases has to do with long-term care, you might ask? This part: the logic behind the 6-3 decision.

Simply put, the justices determined the EPA overstepped its regulatory authority.

The majority opinion, written by Chief Justice John Roberts, claimed the agency’s heightened emissions rules were a “fundamental revision” of existing law. He added that it’s up to Congress, not the EPA, to make “a decision of such magnitude.”

Talk about the importance of timing: Just one day earlier, the Centers for Medicare & Medicaid Services proposed regulations that would allow surveyors to use payroll data to investigate staffing rules violations, force facilities to hire infection preventionists, and revamp arbitration requirements, among other provisions.

Do you think it could be argued that such new requirements, if enacted, perhaps exceed CMS’s statutory authority?

My strong suspicion is that industry lawyers are already preparing briefs making exactly that claim. For thanks to the Supreme Court’s EPA decision, they were just handed one extremely helpful precedent.

And it’s not just these latest rules for nursing homes that could come under fire. Any regulation that arguably steps over the line would appear to be fair game.

So how big is the Supreme Court’s EPA ruling? Let’s put it this way: Regulatory oversight might never be the same.

John O’Connor is editorial director for McKnight’s.

The opinions expressed in McKnight’s Long-Term Care News columns are the author’s and are not necessarily those of McKnight’s.