The U.S. Supreme Court issued a major ruling today, effectively overturning the legal precedent of “Chevron Deference” established in the 1984 decision Chevron v. Natural Resources Defense Council, which provides for courts to defer to agencies to interpret ambiguous statutes in their rulemaking. The 6-3 decision issued today in Loper Bright Enterprises v. Raimondo states that courts may not defer to an agency interpretation of the law simply because a statute is ambiguous.

The ruling does not apply retroactively to previous cases that the Court has decided based on Chevron Deference. However, it is possible that with today’s ruling the Court may consider other cases involving agency interpretation of ambiguous laws, and therefore today's decision may have significant and long-lasting impacts to all federal rulemaking moving forward.

The ruling applies only to federal agencies, and does not overturn Chevron Deference policies that have been adopted by some states, but it could bring additional momentum for states to challenge these deferential policies. While some states have adopted a Chevron Deference framework for state regulators to interpret ambiguous statutes, other states do not have this policy, and several states have begun eroding deference to regulators through state statutes, court opinions, and state constitutional amendment. Additionally, several states filed amicus briefs in support of the plaintiff in today's Supreme Court case.

Argentum will be closely following the impact of today's ruling on recent federal rulemaking, including several rules issued this Spring by the Biden Administration with direct or indirect impacts on senior living communities:

Legislation was recently introduced that includes assisted living communities among entities subject to criminal, civil, and financial sanctions in an effort to address alleged private equity and corporate abuse in health care. The bill is in addition to anticipated legislation that could limit private equity’s ability to finance assisted living development.

Argentum has expressed significant concerns about these measures, which have been echoed by researchers from Brown University, Georgetown University, and Johns Hopkins University who published an editorial in the Journal of Health Affairs, cautioning against regulating private equity in assisted living.

Tomorrow, Argentum will share important updates on these increasing efforts to regulate investment in assisted living and how Argentum is promoting the critical role private investment plays in ensuring access to high-quality assisted living options for our nation's seniors.

Argentum Advocates Member Briefing
Wednesday, June 26, 2024
2:00 PM ET

This session will also include an important discussion on how senior living advocates can join us in our advocacy efforts by meeting with lawmakers directly, including by hosting lawmakers for community visits to meet with residents and caregivers. This session will feature insight from Tana Gall, President of Merrill Gardens and Vice President of the Argentum Board of Directors, and Michael Queene, General Manager of The Pines of Newmarket community in Southern New Hampshire.

This morning, the prestigious Journal of Health Affairs published an editorial (“Private Equity Investment In Assisted Living: Distinct Impacts And Policy Considerations”) on its policy blog Forefront by a team of academic researchers from Brown University, Georgetown University, Johns Hopkins University, and others studying private equity (PE) investment in assisted living. 

Yesterday, Senators Elizabeth Warren (D-MA) and Ed Markey (D-MA) introduced S. 4503, the Corporate Crimes Against Health Care Act of 2024 to address alleged private equity and corporate abuse in health care (see bill text and summary). It was introduced in response to the Steward Health Care bankruptcy affecting 8 hospitals in Massachusetts.

The legislation primarily targets hospitals, certain physician practices and nursing homes, but also includes assisted living communities, hospice programs, and home health agencies among other specified entities subject to the legislation. The bill also provides the Secretary of the Department of Health the authority to add other entities that “furnish health care items and services” and imposes a number of criminal, civil and financial sanctions and requirements on private equity and similar entities as well as executives.

Provisions in the legislation include:

Argentum and the American Seniors Housing Association (ASHA) sent a comment letter yesterday in response to the Request for Information (RFI) issued jointly by the Federal Trade Commission, Department of Justice, and Health and Human Services related to health care consolidation.

While the RFI does not directly include assisted living in its scope, we used it as an opportunity to share the role that private equity and REIT investment play in meeting the growing needs of our aging population who rely on senior living communities. We specifically called attention to the differences of assisted living compared to clinical health care settings, including their residential nature and role in helping to facilitate access to health care services, not being reliant on reimbursements from Medicare, Medicaid, or private insurance, and how private investment has been and will continue to be critical in meeting the housing and care needs of an aging population.

The RFI was issued following a virtual workshop led by the FTC in early March, “Private Capital, Public Impact: An FTC Workshop on Private Equity in Health Care.” There are not yet specific plans for regulations to be issued by the agencies based on this RFI, but we will be closely monitoring. More than 6,000 stakeholder comments were submitted in response to the RFI.

Earlier this week, U.S. Senator Maggie Hassan (D-NH) visited The Pines of Newmarket, a Merrill Gardens community in Southern New Hampshire.

The visit provided an opportunity for Senator Hassan to meet with residents and staff and to discuss several policy issues, including the Care Across Generations Act, the SENIOR Act, the Veterans Assisted Living Pilot Initiative, the need for foreign born workers, and issues with staffing agencies.

Lawmakers from coast to coast are gaining a fresh perspective on the value of senior living by visiting communities. We need your help so that more lawmakers, at both the federal and state level, can tour our communities, meet with residents and staff, and better understand our policy issues and our proposed solutions.

We encourage all senior living communities to host visits. To get started, please review this a toolkit which includes sample invitations, a sample itinerary, best practices for preparing for your visit, and more.

DOWNLOAD THE TOOLKIT

Earlier today, the U.S. Department of Labor finalized a rule that dramatically expands overtime eligibility for millions of salaried workers. The release of the rule comes a day after the Centers for Medicare and Medicaid Services (CMS) released final rules that would impose new requirements on Medicaid Home and Community Based Services (HCBS) providers and establish federal staffing requirements on long-term care facilities.

Argentum will be covering the impact of the rules on assisted living communities during tomorrow's Argentum Advocates member briefing. The session will also share updates on on new long-term care workforce legislation and the forthcoming “Health Over Wealth Act,” calling for greater transparency and accountability for private equity in health care, including assisted living.

Argentum Advocates Member Briefing
Wednesday, April 24, 2024
2:00 PM ET

Read more for a detailed summary of the new rules:

Argentum hosted an in-person briefing yesterday on Capitol Hill in partnership with the House 21st Century Long-Term Care Caucus on policy considerations for reauthorization of the Older Americans Act (OAA), which is due to expire in September.

The briefing offered an opportunity to educate legislative staff on the assisted living care model and how it differs from other long-term settings, to promote our recent report, The Value of Assisted Living in America, and to share our legislative priorities, including the SENIOR Act and the Care Across Generations Act, both of which have provisions that may be incorporated into reauthorization of the OAA.

The Senate Aging Committee held a hearing this morning, "The Long-Term Care Workforce: Addressing Shortages and Improving the Profession." The hearing focused on workforce issues across long-term care settings and served as a platform for Committee Chairman Bob Casey (D-PA) to promote S. 4120, the “Long-Term Care Workforce Support Act,” which he introduced yesterday with Senators Tim Kaine (D-VA) and Tammy Baldwin (D-WI).

U.S. Representative Pramila Jayapal (D-WA) recently visited Truewood by Merrill, First Hill, a Merrill Gardens community in Seattle, Washington.

Lawmakers from coast to coast are gaining a fresh perspective on the value of senior living by visiting communities. We need your help so that more lawmakers, at both the federal and state level, can tour our communities, meet with residents and staff, and better understand our policy issues and our proposed solutions.

We encourage all senior living communities to host visits. To get started, please review this a toolkit which includes sample invitations, a sample itinerary, best practices for preparing for your visit, and more.

DOWNLOAD THE TOOLKIT