In response to the proposed rule issued by the U.S. Department of Labor in September, Argentum and the American Seniors Housing Association (ASHA) sent a joint comment letter urging the department to withdraw the rule and work with stakeholders to develop solutions for overtime pay that more closely reflect current economic conditions.

Argentum joined with a coalition of industry stakeholders to submit comments in response to the proposed rule issued in September that would establish federal staffing requirements on long-term care facilities. The rule would apply only to Medicare and Medicaid-certified skilled nursing facilities (SNFs), and not residential senior living communities.

Under CMS’s proposal, nursing homes participating in Medicare and Medicaid would be required to provide residents with a minimum of 0.55 hours of care from a registered nurse per resident per day, and 2.45 hours of care from a nurse aide per resident per day. In addition, nursing homes would also be required to ensure a registered nurse is on site 24 hours per day, 7 days per week and to complete robust facility assessments on staffing needs. CMS would also impose new reporting requirements for states to report on the percentage of nursing home Medicaid payments that go to compensation for direct care workers and support staff.

Our comments specifically called attention to potential unintended impacts of the rule on settings that are otherwise not directly impacted, due largely to the long-term care industry's workforce shortages. Earlier this year, Argentum released a report showing a need to recruit more than 20 million workers by 2040 to keep pace with our rapidly aging population. We argued in our comments that imposing a minimum staffing standard will not create more caregivers; it will simply further exacerbate the current shortage.

On Friday, the Centers for Medicare and Medicaid Services (CMS) proposed new regulations that would for the first time establish federal staffing requirements on skilled nursing facilities (SNFs).
 
This proposed rule applies only to Medicare and Medicaid-certified SNFs, and not residential senior living communities. However, the rule has been expected for more than a year, when President Biden signaled a federal staffing mandate in his 2022 State of the Union Address.
 
Under CMS’s proposal, nursing homes participating in Medicare and Medicaid would be required to meet specific nurse staffing levels that promote safe, high-quality care for residents. Nursing homes would need to provide residents with a minimum of 0.55 hours of care from a registered nurse per resident per day, and 2.45 hours of care from a nurse aide per resident per day. In addition, nursing homes would also be required to ensure a registered nurse is on site 24 hours per day, 7 days per week and to complete robust facility assessments on staffing needs.

Earlier today, the U.S. Department of Labor announced a proposed rule to increase the threshold for employees to be eligible for overtime. Workers earning less than $55,068 per year would be eligible under the proposed rule, up from the current $35,568 per year. This threshold would be automatically updated every three years to reflect current earnings data.

The rule clarifies which employees are executive, administrative or professional employees, who are then exempt from overtime pay. It is estimated that the new threshold would extend overtime eligibility for an additional 3.6 million salaried workers.

Argentum continues to make progress on Capitol Hill in advancing our federal public priorities, including most recently as part of the U.S. Senate’s Fiscal Year (FY) 2024 Labor-HHS appropriations bill, passed at the Committee level last month. 

Argentum successfully secured several workforce provisions in the bill, including increased funding for federal training programs that we are directly engaging with such as Job Corps, WIOA, and federal apprenticeship programs.

Additionally, as a result of our education campaign on direct-care workforce shortages, report language was included directing federal agencies to review the impact of workforce shortages on long-term care affordability and accessibility, and strengthen and expand access to HCBS, facilitate State planning, encourage innovative models that benefit the workforce and care recipients, and support quality and accountability.

Most importantly, the Senate appropriations bill did not include the drastic cuts that were advanced by the U.S. House of Representatives, which calls for reducing federal workforce program funding by nearly 30%, including eliminating Job Corps funding. Argentum spearheaded a grassroots campaign urging lawmakers to oppose these cuts, and greatly appreciates everyone who took part and shared these letters.

Notable elements of the Senate appropriations package include:

The U.S. Senate Appropriations Committee voted 26-2 on Thursday to approve its Fiscal Year (FY) 2024 Labor, Health and Human Services, Education, and Related Agencies appropriations bill. Importantly, the Senate version of the appropriations bill does not include the drastic cuts that were advanced earlier this month by the House Appropriations Committee.

Argentum spearheaded a grassroots campaign urging both House and Senate lawmakers not to move forward with the cuts to workforce development programs, which includes eliminating Job Corps funding and otherwise cutting nearly 30% of funding for critical workforce programs. We sincerely appreciate everyone who took part in our grassroots campaign!

Additionally, the Senate bill's report language includes:

• The Committee encourages the Department [of Labor], in coordination with the Department of Health and Human Services and the Centers for Medicare and Medicaid Services, to study the effects of worker shortages in the direct care sector and the impact that worker shortages will have on long-term care affordability and accessibility, and long-term care programs and submit a report to the Committees on Appropriations not later than 270 days after enactment.
• The Committee provides $48,245,000 for the Geriatric Workforce Enhancement Program. This program supports training to integrate geriatrics into primary care delivery and develops academic primary care community based partnerships to address gaps in healthcare for older adults.
• The Committee expects CMS to strengthen and expand access to HCBS, facilitate State planning, encourage innovative models that benefit the workforce and care recipients, and support quality and accountability.
• The Committee directs ACL [Administration for Community Living], in coordination with DOL and CMS, to examine data on the potential impacts of worker shortages on long-term care affordability and accessibility.

While we are encouraged by the Senate’s actions to preserve workforce funding, the process is far from over. Lawmakers are preparing to leave for their annual August recess, and will return following the Labor Day holiday to resume negotiations on appropriations. Current FY spending is due to expire on September 30, at which point Congress must either pass their appropriations bills or a continuing resolution to fund the government until a broader spending agreement can be reached.

Argentum will continue its outreach to lawmakers who sit on the Congressional appropriations committees to protect against any cuts and to urge inclusion of our priorities. These include: funding through the Employment and Training Administration for grants to support the expansion of the direct care workforce; Job Corps direct care workforce apprenticeship programs; and Health Resources and Services Administration (HRSA) workforce development grants.

Earlier today, the House Appropriations Subcommittee on Labor, Health and Human Services and Education voted to advance drastic cuts to critical workforce development programs by favorably reporting out of the subcommittee its portion of the Fiscal Year 2024 appropriations bill. This legislation calls for eliminating Job Corps funding and reducing workforce program funding by nearly 30%, including for essential workforce grants and apprenticeship programs.

Argentum is deeply concerned about these funding cuts as they would impede progress to meet the workforce demands of our industry. 

According to our recently released report (Workforce Projections for Senior Care) there is currently a shortage of more than 400,000 workers, which is projected to grow to more than 20 million workers by 2040. Argentum is working to fill this gap through a federally funded workforce initiative that is on target to recruit thousands of new CNAs, LPNs, RNs, rehab technicians, nursing directors, and executive directors through the DOL’s Healthcare Apprenticeship Expansion Program. If the cuts proposed by House lawmakers go forward, our efforts are jeopardized.

We need your help! We are calling on all Argentum Advocates to join us by sending a letter to Congress urging them to oppose these cuts from moving forward. The annual appropriations process is long and complex, and there are several opportunities to stop this, but we need everyone to join together to get our message heard.

In an example of the activity at the state-level on the workforce crisis in assisted living, we highlight the achievements of the Virginia Assisted Living Association (VALA), which is focused on turning the tide on workforce challenges and creating more opportunities for career pathways to blossom within the senior living industry in Virginia.

The group, which is an affiliate of Argentum, successfully drew attention to its cause in May, when Virginia’s Deputy Secretary of Health and Human Resources and the Special Advisor to the Governor for Healthcare Workforce joined the VALA Workforce Development Committee meeting. In the meeting, assisted living providers were able to share their concerns and describe the barriers they face relative to workforce directly with Gov. Glenn Youngkin’s (R) administration. VALA is working to keep lines of communication open to ensure that assisted living providers get the support they need, they said.

The workforce shortage in the commonwealth has forced the 560 assisted living communities (ALFs) to operate below full capacity. “In the last 10 years, the capacity of Virginia’s ALFs was nearly 32,500, but the demand for senior living has significantly grown resulting to the capacity being increased to nearly 39,000 at the end of 2022,” reports Judy Hackler, executive director of VALA.

In other news from VALA, several recent advocacy wins have a positive impact on industry workforce issues.

Quintin King, president, Brightwater Senior Living, Bend, Ore., knows the score when it comes to workforce challenges, managing and operating 12 communities mostly in the Western U.S. and in Canada.

Earlier this week, the U.S. National Labor Relations Board (NLRB) presented a proposal to revise its standard for determining joint-employer status under the National Labor Relations Act.