Let’s begin with a common scenario: Your father has had a stroke or is exhibiting signs of advanced dementia. He may wish to remain in his home, but you know that he is not safe and remaining at home alone is no longer an option.
As is human nature, most of us put off looking at senior housing for a loved one until a crisis (or near-crisis) arises. The enormous task of selecting the most suitable, affordable and best senior care facility seems mind-bogglingly complex. Many people look for help, in the hours of frantic need, with one of the many senior care referral and placement agencies found online.
Most referral and placement websites declare that the agency can – at no charge to you, the client – recommend appropriate facilities. Based on the information you provide of your loved one's needs, you will receive a list of potential matches.
Whether you go with a nationwide company like Caring.com, or a much smaller, locally-based business where the agents focus on local facilities only, you’re probably expecting that you – and especially your loved one – will be treated with respect, empathy, and honesty.
Why Referral and Placement Agencies Might Not Be All That They Seem
There are two reasons why your trust could be misplaced. The first is that this sector of the senior care industry attracts both those who sincerely wish to assist potential residents to find a good home, and those others who regard senior placement as a way to earn a lot of quick money with very little work. The latter group are influenced by little, if any, regard for the welfare of their clients.
The second reason to be wary is that there has been, practically speaking, no regulation of these referral and placement agencies, either on a federal or a state level.
The Negative Results of a Lack of Legislation
Liz Fischer, a Certified Senior Adviser in Portland, OR, and president of the Oregon Senior Referral Agency Association, when asked about the results of this lack of regulation stated this:
We’re the only resource in the continuum of senior care that has no regulation,” adding that “there is currently no place to file a complaint about a referral agency and no penalties for causing harm to seniors. We don’t currently have background checks, so anybody could do this job and it could cause harm to seniors.
While obtaining information for our Best Assisted Living List, we asked Candiece Milford, Managing Director of Marketing for Rhoda Goldman Plaza, a senior care facility in San Francisco, about her views on the need for such legislation, to which she replied:
I only work with one [referral agency], who is a local couple who hand-holds clients through their process, even if they are planning ahead. To me, that is the ethical approach and does not immediately reap a fee, but establishes a trusting relationship, which is paramount . . . at least to me. I feel my role is not to sell but educate. Even if people cannot afford Rhoda Goldman Plaza, I am happy to refer to other communities and professionals that are more appropriate. This is also why I believe incentivizing sales staff with commissions should also be reconsidered. It only creates additional churn as highly frail people come into communities for months, not years, because they generate a commission.
Shifting Some of the Responsibility of Care Onto Referral and Placement Agencies
Stories of senior maltreatment are, unfortunately, hardly uncommon – including verifiable tales of abuse (physical, emotional, and financial) and neglect sometimes resulting in death.
However, these stories place the blame solely on the facility at which the events occurred, with no mention of how that senior came to be there in the first place. In many cases, it involved a family member relying on the purported expertise and knowledge of a professional agent working for a company whose business it is to securely place seniors.
Despite the fact many who run facilities or operate their own referral and placement agencies have voiced concerns about the lack of oversight, nothing was being done to rectify the situation until the Seattle Times ran the first of what would become a series of harrowing exposés from around the country regarding the situation (Seattle Times, “Hundreds of adult homes conceal abuse,” 9/2010).
The State of Washington Leads the Way to Regulating Referral Agencies
Following the revelations of blatant misconduct by facilities and referral and placement agencies in Washington State, the state’s legislature felt compelled to act, ultimately passing into law HB-1494, Concerning elder placement referrals (ELDER AND VULNERABLE ADULT PLACEMENT REFERRALS).
The Seattle Times described the action: “Washington will become the first state to clamp down on the unregulated, explosive growth of elder-care referral businesses that rake in profits, sometimes deceptively, by promising to help families find long-term care for the aged.” The article also stated that at least a dozen other states were now looking into devising their own legislation.
Particularly attention-grabbing of the subsequent articles and programs examining the state of referral and placement agencies and the overall condition of senior housing are the following three, including two newspaper accounts and a PBS series:
- The Miami Herald, “Herald Investigation Exposes Problems at Assisted Living Facilities,” May 10, 2011
- PBS Frontline ProPublica program, Life and Death in Assisted Living, which premiered July 30, 2013, and is available for viewing on the PBS website.
- The Minnesota Star Tribune, 5-part series beginning 12/12/2017
More States Follow Washington’s Lead
After Washington State passed HB-1494 on April 14, 2011, at least a dozen other states (including Texas and Arizona) expressed an interest in following suit.
Oregon was the first to do so with HB-2661, which became law on June 30, 2017. Oregon’s original bill was based, not on Washington’s law, but on the draft of a bill in California, SB-648, because of its strongly progressive tone.
For the record, in late 2016, SB-648 had passed both houses only to be vetoed by Governor Brown in December of that year, who claimed it was too costly to implement. In response, in February 2018 an amended bill titled AB-2744 was presented.
Less ambitious than SB-648 and more cost-effective, it still aims to require transparency and accountability on the part of the referral agency regarding both clients seeking placement and to the facilities as well.
But How Effective is the Legislation That’s Been Passed?
Passing a bill is often a frustrating and grueling process during which lobbyists and lawyers, paid to protect the interests of their clients (here the owners of some – but not all – referral and placement agencies) chip away at the bill, possibly gutting it. A Place for Mom, for example, has consistently voiced strenuous objections to being corralled by restrictions on how they do business.
To find out what those in the industry think about the Washington and Oregon bills, we contacted three insiders: Jamie Callahan, the founder and owner of a locally-based care and referral agency in Southern Oregon; Jennifer Cook-Buman, owner of LivingRight.net, a senior housing referral agency; and Liz Fischer, owner of Right Fit Senior Living Solutions.
All three agreed that such laws are essential to protect vulnerable seniors and to promote accountability on the part of the referral and placement agencies. But how effective are the Oregon and Washington laws?
The Washington law lacks teeth and an ability to enforce. It hasn't really done much of anything for Washington. The smaller businesses that operate in-person are made to abide, and my understanding is that the larger companies completely skirt the law by calling themselves a lead generator.
Laws need to exist in our industry for the sole purpose of regulating companies that can easily otherwise exploit seniors. These laws need to require conspicuous disclosures as well – which we did not do a good [job] of capturing with the Oregon law. Now that we are developing rules with DHS [Department of Human Services], we are realizing that things that should be disclosed will not be disclosed because the bill does not specifically call for it.
My feeling is that this is ridiculous… There's a very good chance that companies will not be required to disclose ‘speed to lead' or ‘ownership' clauses. It is NOT in the best interest of consumers and this gets to the root of owning names, which interferes with a consumer’s right to choose who they work with based on interference by contracts that they are bound to that they NEVER agreed to, do not even know exist, and are not a party to. It is complicated, to say the least!- Jamie Callahan
I support the Oregon law, and hope that we will be able to fine-tune the intentions during the upcoming Rules Advisory Committee period. Much of it is left for interpretation as it is currently written, and having been intimately involved in getting it to this point, I am putting a lot of faith into the RAC process.
The Washington law is ineffective from my perspective. There are companies skirting the intention of the law. It has retrospective penalties rather than proactive guidelines to do business ethically. Without someone reporting them, there is no penalty, and when there is a penalty, it is beyond punitive – it is business-ending. Operating under threat of being caught is not good business practice in my world.- Jennifer Cook-Buman
I don’t know much about Washington laws. I do know in Oregon we proactively tried to get something submitted so we had input on what was important, as the Washington bill was ‘forced’ on them and isn’t good (no enforcement mechanism). I totally support the Oregon laws.- Liz Fischer
Arizona’s regulation takes effect: HB-2529
For an assessment of Arizona’s HB-2529, passed on May 13, 2018, we were referred to David Johnson, Executive Director, National Placement & Referral Alliance. HB-2529 is considerably briefer than the Washington and Oregon bills, but David opined that it “is a significant reform that will protect Arizona's seniors. The bill brings sunshine to an otherwise hidden process that can mislead seniors into thinking a referral agency is working only in their best interest to help find the best assisted living facility for that person.” He further stated:
Rather than creating a regulatory bureaucracy as other states have done, HB-2529 simply requires a referral agency to tell the customer or the customer's representative prior to making a referral that the agency is paid a fee by the assisted living facility for the referral, and to disclose the existence of any business relationship that may create a conflict of interest (such as the agency is part owner of the facility referred to).
Once that customer becomes a resident at an assisted living facility due to such a referral, the referral agency must close the loop with its customer by sending a second disclosure of the amount of the fee paid or a good faith estimate of the fee to be paid. These disclosures must be acknowledged by the resident or their representative, and provided to the assisted living facility to be kept on file.
The bill allows for enforcement of these provisions by the Attorney General or the County Attorney, with up to a $1,000 civil penalty per violation. This bill creates consumer protections for some of Arizona's most vulnerable residents – we strongly encourage support of HB-2529 on final read.
What Would the “Ideal” Senior Care and Referral Agency Law Contain?
What follows is a summary of the points Ms. Callahan, Ms. Cook-Buman, and Ms. Fischer regarded as key to the phrasing of an effective law for regulating referral and placement agencies. This list, covering a multitude of issues, suggests how difficult it would be to achieve the ideal, particularly when not everyone involved is in favor of putting seniors first. Anyone conferring with an agency representative would do well to have this list at hand.
- Utter transparency as to:
- How the agency is paid
- How much the agency is paid
- Who pays the agency (the potential resident or the facility where they are placed)
- Whether or not the agency will refer potential residents only to facilities with whom the agency has a contract
- Whether the agency has inspected the facilities on their books, and how often, giving specific dates and findings
- That the agency will send a representative to first interview the client, preferably in their home or rehab setting, to build a profile about that client’s medical and personal history to help them find the most suitable facility
- Whether the agent is paid a flat fee for their work, or receives a commission based on the amount the client will be paying the facility monthly
- That an agent of the agency will accompany the potential resident (and any family or friends who wish to go along) on a tour of the facility and assist in interviewing the facility director and other staff
- What their “speed to lead” policy is. (This phrase, common to many industries, refers to the rapidity of the response time to a potential lead. When a potential resident shares information with a referral agency, how quickly does a representative of that agency respond?)
- What their “ownership” clause is. That is, when a client contacts an agency and supplies their contact information, the agency should be required to make it clear how they will use that information, as well as informing the client that, by sharing that information, a contract has been invoked, and the precise nature of that contract. (These “contracts,” which all too often are not verbalized by the agency and to which the client did not specifically agree to, have traditionally been used by some referral agencies to interfere with the client’s attempts to engage the services of a second referral agency; in effect, the agency is claiming “ownership” of you, your name and other personal information, which they may share indiscriminately.)
What Can We Take Away from All This?
The current laws drafted to enforce good faith dealing on the part of referral and placement agencies may not be all they could be, and are certainly too few, but each is a step in the right direction.
We all have a stake in this issue, whether for ourselves or for those we care about. Don’t put off contacting your senators and representatives if you are interested in seeing legislation in your state; the more people who do that, the more likely, and quickly, new laws will be drafted and those already in existence could be improved and strengthened.
In the meantime, be careful who you turn to for assistance, though remember: There are MANY good folks out there. Regardless, when it comes to asking for that assistance, go armed with all the information possible, and never hesitate to ask questions.