New Referral Agency Laws

DMD Admin • May 29, 2020

Colorado Assisted Living Residence Referral Laws

New Ways to Work Together

Introduction:

Prior to 2019 Colorado was the wild west when it came to the working relationship between assisted living homes and placement and referral agencies. It was an anything goes business environment.

Recognizing the need for change, The Assisted Living Association of Colorado in 2019 introduced legislation to bring order to the industry. HB19-1268, “Concerning The Referral of A Prospective Resident to an Assisted Living Residence by an Assisted Living Residence Referral Agency”. This bill passed the legislature, was signed by the Governor on August 2, 2019 and became law which set the foundation for establishing the contractual relationships between ALR’s, Placement & Referral Agents, and the clients they serve.

As time progressed, it was realized that additional reform was needed. The Greater Denver Placement Referral Alliance took up the reform banner and introduced legislation in the 2020 legislative session. HB20-1101, “Concerning A Requirement That A Referral Agency Make Disclosures To A Prospective Resident Of An Assisted Living Residence” further defined the relationship and reporting responsibilities of all the parties to a referral contract. The bill passed the legislature, was signed by the Governor and the bill will become law August 5, 2020.

Industry Sponsored Legislation

HB19-1268: “Concerning The Referral of A Prospective Resident to an Assisted Living Residence by an Assisted Living Residence Referral Agency”

Summary of Legislation: This bill requires individuals and entities that receive a referral fee for referring prospective residents to an assisted living residence (referral agencies) to disclose to a prospective resident its business relationship to the residence and that the assisted living residence has paid a feeto the agent for the referral. The referral agency and the prospective resident must sign and date this disclosure and the agency must provide the document to the assisted living residence on or before the date the resident is admitted to the assisted living residence. Assisted living residences must not pay the referral agency a fee until receipt of this documentation. Residences are required to maintain a written or electronic copy for at least one year after the date that the new resident is admitted. A referral agency that violates this section is subject to a civil penalty of up to $500 per violation. The Attorney General or a district attorney may bring a civil action on behalf of the state to seek the imposition of civil penalty for a violation of this section.

Key Points of Legislation:

Agreement must be in writing and signed by all parties. Audio files are not written agreements between all the parties and cannot be substituted for a written signed agreement.
Fee between the assisted living residence and the referral agency will not be paid until receipt of signed agreement. There is latitude given for circumstances beyond control of the referral agent when providing the documentation.
Civil penalty of up to $500 per violation.

HB20-1101: “Concerning A Requirement That A Referral Agency Make Disclosures To A Prospective Resident Of An Assisted Living Residence”

Summary of Legislation: The bill requires an agreement between an assisted living residence, referral agency and a prospective resident to be in writing and include:

the right of the prospective resident or their representative to terminate the referral agency’s services for any reason and at any time; and

a requirement that, if the prospective resident terminates the services of the referral agency, that the referral agency must communicate this termination to any assisted living residences to which the prospective resident was referred.

The bill prohibits an assisted living residence from paying a fee to a referral agency if the agreement between the referral agency and prospective resident or their representative was terminated. Assisted living residences may not sell a prospective resident’s contact information without written consent. This bill also expands the definition of assisted living residence to include facilities for individuals with intellectual and developmental disabilities, long-term care facilities, and any other similar facility.

Key Points of Legislation:

The contract between the referral agency, the assisted living residence, and the prospective resident must be in writing and signed by all the parties
The right of the prospective resident or their representative to terminate the referral agency’s services for any reason and at any time
The referral agency must communicate to all assisted living communities which the prospective resident was referred that the contract was terminated
No referral fee will be paid if the contract is terminated
May not sell a prospect resident’s contact information without written consent
Expands definition of assisted living residence which the laws now cover

What to Do Now that Legislation has been Implemented?

With the passage of new legislation it is time to review your contractual relationships between the referral agencies that you do business with and vice versa. Both parties should get together and discuss how they will do business in the future and build upon existing business relationships. Some suggested items that should be part of the discussion would include:

A review of the contract. Does it incorporate all the requirements outlined in the law?
How will personal information of the resident be protected?
Under what conditions are commissions (full or partial) to be returned?
How to handle termination of the contract. What communications must occur between all parties when the contract is terminated?
How to contact each other when there is a vacancy?
What types of admissions the assisted living facility is looking for?
What are the minimum requirements for admission into the assisted living facility?
Compensation to be paid and when the payment will be distributed

Building Your Relationships

A new era has been established with the passage of this new legislation. Now is the time for assisted living professionals and referral agents to reestablish and enhance their working relationships for the benefit of the people they represent. The confusion and uncertainty associated with the industry has been removed . The professionalism has been enhanced and strengthen for everyone’s benefit.

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Take Steps to Prevent Weight Discrimination in the Workplace

By Employers Council • October 19, 2023

Federal discrimination laws protect individuals from discrimination in the workplace on the basis of race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, age (40 and older), disability, or genetic information. Obesity, however, is noticeably absent from protection under federal law as well as most state laws. As a result, sizeism, or weight-based discrimination, remains a prevalent issue, with more than 40% of U.S. adults experiencing weight stigma at some point in their lives, according to the American Psychological Association (APA). According to the Centers for Disease Control and Prevention (CDC), 42% of Americans are obese , making this a significant and widespread concern. Sizeism, like other forms of bias and discrimination, not only causes suffering and psychological distress but also increases the risk of mental health problems, such as substance abuse and the risk of suicide, according to the APA. While federal laws have yet to address weight-based discrimination, some states and municipalities have begun recognizing the need for change. Likewise, some federal and state courts have interpreted disability laws to provide protection. Currently, Michigan is the only state to make weight-based discrimination illegal. Four states, Massachusetts, New York, New Jersey, and Vermont, have recently introduced bills dealing with weight-based discrimination. New York City, Washington, D.C., and San Francisco are among a handful of U.S. cities with local ordinances that prohibit discrimination based on weight or appearance. At this time, Arizona, Colorado, New Mexico, Utah, and Wyoming have not taken legislative action to address obesity as a protected class. The majority of federal courts hold that obesity is not a physical impairment under the Americans with Disabilities Act (ADA) unless it is the symptom of an actual or perceived underlying physiological disorder or condition, such as diabetes. These courts have relied on interpretive guidance from the Equal Employment Opportunity Commission (EEOC) on the definition of “impairment” under the ADA. Recently, federal district courts in Texas, Louisiana, and Mississippi have determined that, even absent an underlying physiological disorder, obesity could be an actual or perceived disability under the ADA. Likewise, state courts in Washington, Montana, and New Jersey, have interpreted state statutes to include obesity as a disability. By taking proactive measures, employers can protect themselves from potential liability. Employers should refrain from employment decisions based on physical characteristics absent a legitimate job-related requirement. Employers in states where obesity may be treated as a disability should review their disability policies and include size, and make sure managers are trained on the policies. Additionally, employers should accurately state job descriptions to reflect the essential functions and demands of the job. These steps help contribute to a more equitable and supportive work environment for all employees. This is an area to watch as more legislatures and courts consider the issue of obesity as a protected class. If you have any questions about workplace discrimination, please contact the Employers Council Member Experience Team.

Prepare Now for 2024 Increases in State and Local Minimum Wages in Colorado

By EmployersCouncil.org • August 21, 2023

The statewide minimum wage for Colorado — currently $13.65 — will increase on January 1, 2024, in line with the cost of living (COLA) to an amount not yet determined. The state is not alone in its upcoming minimum wage hike. During the 2019 legislative session, Colorado passed House Bill 19-1210 , which allowed local governments to enact a minimum wage higher than that of the state. The Legislature did so because the cost of living can vary significantly from one community to another. The law enables local governments to address the minimum needs of the workers and businesses in their jurisdictions.

Employees vs. Independent Contractors: The Pitfalls of Misclassification

By Hannah Rich of Employers Council • July 18, 2023

As an employer, it is vital to understand the differences between employees and independent contractors. An employee is an individual with whom a business has established an employment relationship. An independent contractor is an individual or business with whom a business has established a contractual relationship. In a contractual relationship, each party’s obligations to the other are agreed upon in advance and can change only if renegotiated by both parties. An employer, on the other hand, has broad discretion over the work assignments, duties, and schedule of an employee and can make significant changes at any time as business needs change. Understanding the differences can help employers avoid the negative consequences of misclassification. And following a recent National Labor Relations Board (NLRB) decision, employers should keep in mind that they will face a stricter test when trying to classify workers as independent contractors. This Employers Council article explains more about the decision.

The Pregnant Workers Fairness Act Takes Effect June 27, 2023

By Heather Basch (Employers Council) • June 20, 2023

As a reminder, the Pregnant Workers Fairness Act (PWFA) , a new federal law, goes into effect on June 27, 2023. The PWFA applies to employees and applicants of employers with at least 15 employees. The Equal Employment Opportunity Commission (EEOC) is charged with enforcing this law, and regulatory guidance is pending. The PWFA requires employers to provide reasonable accommodations to employees and applicants affected by pregnancy, childbirth, or related conditions. Some examples include the following: Closer parking Additional break time to use the restroom, eat, and rest Modifications of food and drinking policies Appropriately sized uniforms or safety equipment Time off or flexible scheduling for prenatal or postnatal appointments The PWFA also has several prohibitions, including the following: Requiring an employee to take leave if another accommodation would work Retaliation for requesting accommodations or reporting unlawful discrimination Denying employment opportunities based on the need for accommodations Requiring employees to accept an accommodation without engaging in the Americans with Disabilities Act (ADA) interactive process Don’t confuse the PWFA with the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). The PUMP Act requires employers to provide reasonable break time and private, non-bathroom space for nursing employees to pump for a nursing child’s first year of life. The following resources provide more information about protections for workers affected by pregnancy, childbirth, and related conditions: Employers Council - Accommodations for Conditions Related to Pregnancy or Childbirth EEOC - Legal Rights of Pregnant Workers under Federal Law EEOC - What You Should Know About the Pregnant Workers Fairness Act Employers Council - Find relevant laws for all 50 states in the CCH multi-state tool . If you would like more information the PWFA, please reach out to Employers Council to discuss membership options at sales@employerscouncil.org .

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CALA Legislative Update and Town Hall

June 15, 2023

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How to Obtain a Copy of an Adult Protective Services Report

January 24, 2023

Assisted living operators are often involved in Adult Protective Services investigations, but unless the facility has been the recipient of APS legal action, the facility may not find out what happened or what APS learned because APS investigations are often considered confidential.