Overview
The impact of the 2020 election will present a challenging public policy environment for senior living, unlike any it has seen over the last thirty-plus years. The result of a new administration and the flip of the U.S. Senate from Republican to Democratic control, will potentially result in increased oversight and regulation at the federal level. At the same time, the challenges of the COVID-19 pandemic will likely remain daunting for senior living communities as we continue to fight for federal financial resources and vaccine prioritization for senior living workforces and residents.
Argentum is committed to addressing each challenge with immediate and decisive action. The long-term outlook for senior living communities is strong, and we will continue to fight to protect this important choice of care for our nation’s seniors.
Impact of the Election
With Democrats winning both Senate seats in Georgia, the chamber will have a balance of 50-50, enough for the Democrats to control the majority due to the ability of Vice President Kamala Harris to also serve as President of the Senate and become the tie-breaking vote.
Democrats will Control the Agenda: The majority party in the Senate wields power, but with limitations. Democrats will have the sole ability to decide what issues will go before Senate committees and what legislation will be debated on the floor. This means that Majority Leader Schumer (D-NY) will be able to control what legislation is prioritized and what proposals are blocked. It also allows for more coordination with the Democratic-led House and the new Democratic White House.
Slim Majority Means Republican Moderates are Key: Because the Democratic majority margin is extremely narrow in the Senate, there are significant limitations to their power. For most legislation, 60 votes are needed to override a Senate filibuster (a tactic to stall and defeat legislation). This will force bipartisan support; therefore, moderate Republicans will play a key role in determining whether much of the Democrats’ agenda can pass. (There may be pushes to eliminate the filibuster rule in the Senate, but that possibility is not likely as many Democrats have historically been opposed to such a rule change.) As a result, wide-sweeping Democratic proposals such as Medicare-for-All and the Green New Deal still face limited prospects, even with the party in control.
Confirmation Process Should be Smooth: Under Senate rules, judges and executive branch nominees need just 51 votes to pass. A Democratic majority should help President-elect Biden’s cabinet picks be confirmed quickly.
Committee Chairs and Leadership Positions: Sen. Chuck Schumer (D-NY) will serve as Majority Leader, Sen. Dick Durbin (D-IL) will serve as Whip, and Sen. Patty Murray (D-WA) will serve as Assistant Leader. Additionally, many of the Democrats who previously served as ranking members of their committees will become chairs of those committees, meaning that they would be able to dictate legislation that falls in their panel’s jurisdiction. Key Senate committees that impact senior living and their expected chairs include:
- Senate Finance Committee (jurisdiction over Medicare, Medicaid, and certain health policy) – expected chair, Sen. Ron Wyden (D-OR). (It is important to note that before being elected to Congress, Sen. Wyden was the co-director of the Oregon Gray Panthers, a former professor of gerontology, and director of a legal services center for the elderly.)
- Senate Health, Education, Labor and Pension Committee (jurisdiction over health, insurance, health care workforce and labor issues) – expected chair, Sen. Patty Murray (D-WA).
- Senate Aging Committee (no legislative authority, but can hold oversight hearings and investigations into senior issues) – expected chair, Sen. Bob Casey (D-PA).
What if there is a vacancy? Voting in person is required in the Senate (although the Democratic-controlled House instituted proxy voting rules in 2020 that could similarly be adopted by the incoming Democratic-controlled Senate as part of its 117th session rules package.) However, long-term absences for health issues or COVID-19 exposure could prove problematic for either party. Should a member leave office and a governor appoint a senator from a different party, the 50-50 split would become 51-49.
Anticipated Legislation in the 117th Congress that Impacts Senior Living Industry
Another COVID-19 Relief Bill: It is anticipated that President-elect Biden will lay out his COVID-19 relief agenda early this year, and both Houses will likely take it up quickly. More appropriations in the Provider Relief Fund, as well as funding for vaccine distribution, is expected. The passage of a modest bill is likely, but an extensive and costly bill is not due to the likely objections of Republican fiscal conservatives and the 60-vote super-majority requirement in the Senate. However, there is a possibility that a larger bill could move if the Democrats attach the package to an annual Budget Reconciliation Act, which requires only a simple majority vote of 51. (For reference, the ACA of 2010 and the Tax Cuts and Jobs Act in 2017 were passed through budget reconciliation.)
Oversight Legislation for Senior Living Industry: With 40 percent of COVID-19 deaths reported to be in long-term care settings and with Democrats in control of the House and Senate, additional federal scrutiny, including proposals for increased oversight and regulation of the senior living industry, is expected. Legislation similar to bills that were introduced in 2020 is also expected:
- Assisted Living Facility Coronavirus Reporting Act – Requires states to meet assisted living facility reporting requirements to qualify for future COVID-19 response funds (S. 4184 – Sen. Elizabeth Warren +1 co-sponsor / H.R. 7463 – Rep. Carolyn Maloney +60 co-sponsors)
- Nursing Home Pandemic Protection Act – Establishes requirements for skilled nursing facilities and assisted living facilities to manage the outbreak of COVID-19 (S. 4846 – Sen. Cory Booker +0 co-sponsors / H.R. 7048 – Rep. Josh Gottheimer +6 co-sponsors)
- Nursing Facility Quality Reporting Act of 2020 – Requires long-term care facilities to report certain information relating to COVID-19 cases and deaths (H.R. 6849 – Rep. Steven Horsford +6 co-sponsors)
Other Possible Regulation Proposals: More legislation on issues such as data reporting, infection prevention and control, staffing, emergency preparedness, and patient/resident socialization among others, is anticipated to move forward both within the House and Senate – individually or as part of any larger COVID-19-related bills. Some of these bills may target assisted living directly, while others may pressure states through use of Medicaid funds to revisit regulations impacting assisted living. Additionally, there will likely be a series of Congressional investigations and Presidential Commissions tasked with identifying challenges related to COVID-19 and infectious diseases in long-term care settings including, but not limited to, extensive auditing of the Provider Relief Fund.
Taxes and Long-Term Care: The administration may have bipartisan support for long-term care tax relief offering tax credits for informal caregivers and tax benefits, and use of retirement funds for the purchase of long-term care insurance.
Long-Term Care/Health Care: It is anticipated that the Biden administration will look for the Democratic Congress to expand Medicaid. Part of this push may be to create a new voluntary federal program, which would allow Medicaid recipients who need long-term care the increased flexibility to choose home and community-based care options. While senior living is predominately a private-pay model, current census challenges and federal/state shifts away from nursing homes could drive increased Medicaid participation among industry providers, leading further toward increased federal oversight.
Union and Labor: Legislative priorities such as paid sick leave, caregiver leave, minimum wage increases, and pay equity legislation are anticipated. Much of the labor agenda will likely also be in the form of regulatory changes put forward by the Biden administration, which will likely include significant OSHA standards and regulations enhancements.
Federal Liability Reform Likely Off-the-Table: With the control of both the House and the Senate in the hands of the Democrats, federal liability reform is not likely in 117th Congress. Pressure to advance federal liability relief must continue, but efforts now must also focus on enacting meaningful reform at a state level.
Biden Administration Agenda
COVID-19 Relief Package: An early call for an additional COVID-19 relief bill with a heavy focus on vaccine distribution funding is expected. Additionally, money for the Provider Relief Fund is also expected.
Strengthening of the Affordable Care Act: President Biden will include in his legislative proposals to Congress his desire to strengthen and build upon the ACA. He will also utilize regulatory authority to undo much of the dismantling that occurred under the Trump administration.
Regulatory Efforts: Expect a heavy focus on rolling back Trump-era deregulation. Regulatory activity under the Biden administration may closely resemble that of the Obama administration with an emphasis on reinstating many prior regulations (especially those focused on the ACA) that had been eliminated under the Trump administration. Also, heavy regulation on the labor and health care sector is expected.
Argentum Advocacy Priorities
- Taking proactive steps to prevent onerous and misguided legislative and regulatory oversight.
- Securing needed federal resources to recoup losses incurred by the pandemic and ensure prioritization for COVID-19 vaccines, tests, PPE, and other resources needed to protect residents and workforces.
- Guarding against the anticipated resurgence of labor and union organizing efforts specifically targeting senior living.
- Pursuing reasonable liability protections at the state level.
