By Jack Cumming

In recent years, media voices, escalating toward a crescendo in recent months, have criticized the conduct of operations, especially safety, among senior living institutions. You are likely aware of the persistent drumbeat of industry-critical articles in the New York Times and Washington Post in particular.

Imminent Challenge

The U.S. Senate’s Special Committee on Aging has now scheduled a hearing for this Thursday, January 25, 2024. “It’s terribly disturbing,” said committee chair Bob Casey. “It’s a basic violation of trust when you’re making assertions about a service you’re providing and you’re not providing that.”  The specifics for the hearing are not known beyond lengthy letters dated January 15 to the CEOs of Atria, Brookdale, and Sunrise.

The industry’s response to this crisis of allegations has mainly been to deny that lapses are frequent and to assert that safety and security are industry strengths. Others have pointed out that much of the analysis is superficial, leading to an argument that the chorus of criticism is unfair and unbalanced. Still, the perception looms, and may be growing among the public, that senior living enterprises are not, for the most part, to be trusted.

Provider advocates, trade associations, and legal advisers have long been exceptionally effective in shielding providers from liability and legislative challenges. The effect, though, has been to shift responsibility from provider organizations to the individuals they serve, i.e., consumers. No wonder there’s rising popular cynicism about the industry, as reflected most recently in the New York Times and Washington Post articles. The media mirror popular sentiment more often than they lead it.

What Is to Be Done?

Public trust is central to senior living. Prospective residents, and often their families, have to believe that the provider can be trusted not to neglect a resident or to take advantage of the gullibility of a resident. That would make providers fiduciaries, committed to putting resident interests first. Some residents may still have legal competency but may no longer be fully able to exercise responsible judgment. This is a gray area in the law. The industry depends on its legal contracts. Most residents and members of the public expect a social contract that puts the welfare of residents first before all other corporate considerations.

Instead of bemoaning the political reality posed by the Senate committee’s interest in allegations in the press, the industry might be wise to demonstrate conspicuously to the public that the industry is in fact committed to the security, safety, and well-being of those it serves. It could do that by turning the outrage of Senator Casey, who is seeking reelection this year, and the ominous committee hearing from a threat to an opportunity.

Instead of shouting, “Unfair!” the industry could put forward a clearly consumer friendly legislative agenda for the Senate to act on. An effective approach to well-reasoned regulation can create the trust that the industry now is reaching for. It would take a miracle for the industry to adopt a proactive, customer-friendly approach before the Senate hearing. In truth, it would take a miracle for the industry to do so at any time, and perhaps that’s part of the problem.

Why Not Proactive?

Traditionally, the industry has favored provider interests over resident safeguards and has offered contracts that reflect corporate concerns, e.g., avoidance of liability and of legislation that can impact the corporate fiscus. Earning trust would require reversing those corporate predilections. Such a reversal would be a miracle and, as such, it would be newsworthy.

There are many actions that the industry might include in a proactive, consumer-sensitive package. The simplest, and perhaps the most telling sign that the industry could send would be for a spokesman to appear at the hearing on Thursday to declare a new dawn, followed by a media campaign. The dawn might include acceptance of lifelong responsibility for the residents in provider care, fiduciary responsibility.

What older people want, especially when they enter into lifelong continuing care contracts, is an assurance that the provider entity they are then trusting will be there for them when their need is the greatest. Too often, there are tales of people after years of residence encouraged to leave or even evicted because the provider determines that it can no longer provide the care they need. That can raise suspicion that the provider-initiated move-out aims at a new entrance fee or a less needy resident.

It Can Be Done

For providers, accepting fiduciary responsibility for the well-being of residents for the rest of their lives would be a daunting challenge. Most provider executives whom I know would immediately cry that that’s impossible. But, it’s not. It would require that providers arrange to have the capacity to meet all care needs for aging persons. A change might have to start with more balanced contracts.

A sign of change would be retaining an outside, independent advocate to represent residents when provider managers may appear to overreach. Disputes are bound to arise. A clear and fair dispute resolution process could be a vast improvement over mandatory arbitration.

Of course, implementing a mindset change does not require legislation. More favorable resident provisions could be implemented by contract and branding. Even if such a nationally trusted provider organization were to evolve out of the consolidation now underway, the industry as a whole would still face a perception challenge. With any business, and senior living is a business, a cloud of fear persists that money is more important than people. A proactive approach to legislation can reassure a skeptical public.

It Would Take a Miracle

A miraculous change in advocacy approach may seem to be beyond the possible. An acceptance of fiduciary responsibility would be a bold first step. The public has been rendered cynical about senior living by tales of tragic endings; one-sided contracts; discontented residents; and a wave of adverse publicity.

Countering that would take a package of actions, but for this article, we start with the simple suggestion of having the industry associations stand before the Senate Special Committee on Aging to declare, “We are ready to accept fiduciary responsibility for the lifelong well-being of the residents in our care.”


Contact for Thursday’s Hearing is Peter Gartrell, chief investigator for the committee chair, at (202) 224-5364.