Any lawyer can tell you simply getting to argue a case before the U.S. Supreme Court is a huge achievement. And to get a majority of the nation’s top justices to rule in your favor? Sublime.
But there’s something Thursday’s winners of the healthcare worker mandate argument need to remember: It ain’t over yet.
Oh, sure, winning is better than losing. But the vote was only 5-4, and as we used to say as kids, it’s not really the “final-final” vote anyway.
All that has to happen to wash out Thursday’s big W is just one of the justices in the majority switching sides when the case returns to the High Court.
And it’s not a matter of “if” the case will land before the Supreme Court again. It’s likely “when.” Appeals and challenges are far from over. Thursday’s rulings were only whether to allow the rules to move forward while lower courts deal with various challenges. A broad large-employer mandate stopped by a 6-3 in yesterday’s Court rulings. For now, however, the Centers for Medicare & Medicaid Services’ healthcare worker mandate is free to proceed.
But we have not heard the final word as to the propriety or constitutionality of the mandates. There’s still going to be a whole lot of pleadin’ and posturin’.
However, until any of those challenges makes its way back to the Supremes, we may get an eye-opening look at healthcare providers practicing best infection control practices (one of the majority’s fixations).
Will masses of workers truly walk off the job, or have to be let go? Will any operators have to close half of their facilities, as some have claimed?
Or will most workers agree to become full-fledged members of a profession that should at least not put its own charges at greater health risk? (Again, justices’ own concern.)
There will surely be more winners and losers before this is over.
Actuaries may be able to project the number of lives likely to be saved when the caregiving population lowers its percentage of unvaccinated members. And maybe the majority members in the CMS decision will further solidify their positions if they see the system doesn’t blow up after a few “experimental” with the mandate.
But maybe they’ll also deem the economic carnage too great. There will certainly be some business fallout to calculate and plenty of hurting souls to do it. Some care communities may be damaged so deeply, no amount of licking will heal their wounds. And, yes, it would be fair to expect the sight of some Chapter 11 filings, or at least some reluctant sales contracts.
Another consequence could be that citizens of the surrounding communities may become compelled to recognize best healthcare practices and want better for their frail elders. A greater supply of willing workers could result. One can hope anyway.
But until this fully plays out, just remember that the final winners and losers are far from known. There’s still plenty to keep the lawyers busy.
James M. Berklan is McKnight’s Long-Term Care News Executive Editor.
Opinions expressed in McKnight’s columns are not necessarily those of McKnight’s.
