ICFM Magazine, August-September 2005
The regulators of the cemetery and funeral profession are too often regarded as police officers, enforcers, scolds and irritants. But individual companies, as well as state associations, can learn to work with regulators for the betterment of their profession.
As a regulator in Maryland, all too often when I called a company manager to discuss something, the conversation went like this: "Hello, Mary?" "Yes," ''This is Steve Sklar from the Cemetery Oversight Office." "[Sigh] What did we do now?"
Why is that the typical reaction to getting a call from your state regulator? Do most people in the cemetery and funeral profession have a preconceived negative view of their state regulator?
Why can't the regulator just as realistically be seen as the cemetery's facilitator, its advocate and its partner, where appropriate? That's how I tried to run the office, and I don't feel it's a far-fetched approach.
It's all about relationships
Exploring ways to see the regulator's role as a positive one for your business involves discussing relationships. We have to look at how you can use a relationship with state regulators to advance your company's legitimate interests.
In Maryland, the regulator's office is funded by fees from the profession; taxpayers' money is not used at all. Some states are partly fee-funded, with taxpayers covering part of the operating expenses. In either case, you're helping to pay for the regulator's office, and you're entitled to some service.
We're going to cover three areas in discussing how you can take a more positive approach to your state regulator:
1. Who is the typical regulator? We're dealing with people, so you need to know who you're dealing with, get a feel for the individual and what regulation means to him or her.
2. What should you be asking your regulator's office to do to help you and your business?
3. What should your state association be doing to work with the regulator's office on your behalf?
Who is your state regulator?
I served as president of the North American Cemetery Regulators Association, or NCRA, last year. We're a diverse group. There are almost as many women as men. Some are political appointees; others are civil service employees. I happened to have been a political appointee, which is why I'm a former director—change of administration, nothing personal or substantive.
In general, regulators are very dedicated people. They're smart, they're committed and they work hard. For the last three years, there's been a lot of belt-tightening at the state level, which has meant hiring freezes for many offices. People leave and you can't replace them.
For 18 months, I was both the director and investigator for the entire state, and under those conditions you can't do the job right, the way consumers deserve. This gives you an idea of what many regulators are dealing with.
Most regulators could work somewhere else, but they find value in public service. Their decisions affect the livelihood of businesses and individuals; it's a serious responsibility.
NCRA members hold conference call meetings twice a month, gather for an annual convention and use e-mail to stay in constant contact. We share trends, developments, tips on how to handle things, common problems, questions about companies with offices in more than one state, merchandising programs we've seen, etc.
These are generalities; if you want to have an effective relationship with your regulator, you must know something about him or her as an individual—background, education and attitudes. That's just good politics.
Six weeks after I became director in 1998, I spoke at the Maryland Free State Cemetery Association's annual meeting. I began by introducing myself so that the licensees would know my background, my strengths and my biases. I told them I wanted to be approachable.
I told them I went to business school and law school, and I sold encyclopedias door-
to-door as a student, so I understand what a well developed pitch is. I understand how to keep people saying, "yes, yes, yes, yes, yes," so at the end of your presentation they'll say, "Yes, we want to buy."
On the other hand, my wife has retail experience, and she's told me that some customers just can't be satisfied, that customers are not always right—sometimes, they're nuts.
Regulators have a number of roles to fill. They have to conduct their offices in the public interest, to protect consumers. They license providers, establish standards for licensing; develop professional operating standards and business practices. They handle investigation and enforcement, and provide consumers with assistance and advice. They mediate or adjudicate those complaints. They help to promote the profession they regulate through increased public confidence. They advise the executive branch and participate in the legislative process.
We do have specific and special perspectives as regulators. One of them is that death care purchasers do not always act like other consumers. Under the law, if you are over
21 and you don't have a disability, you are presumed to be a "reasonable man," having the capacity to enter into a legal contract.
But in the world of cemetery and funeral contracts, regulators have to consider that people may be grieving and/or elderly. Given the immediacy of the purchase, the complexity of the contracts, the costs involved and the salesmanship at work, we should give special attention to the particular circumstances of the contracting party.
Regulators are not necessarily independent; others are looking over their shoulders, and they are constrained by that. The attorney general assigned to the office is checking over the regulator's decisions. The regulator also answers to a board, a division superior, the secretary in charge of the department and the legislature, and must be able to defend decisions to consumer groups and the press, as well.
Getting on your regulator's good side
How do you get on the good side of your regulator? As in all relationships, there are things to do and things to avoid doing.
Behaviors most regulators don't like:
• Indiscriminate griping about everything, complaining that the regulator is always wrong, is "after" you.
• Stonewalling for employees. For example, I investigated cases where the client obviously had Alzheimer's and the salesperson went out of his way to get that person away from other family members to sign a contract, yet the company management insisted that the salesperson had no idea there was a problem.
• Not responding to specific requests or orders. Regulators don't like undue delays in getting phone calls returned, and we don't like fudged financial statements.
Behaviors regulators like:
• Being forthright, admitting when there's been a foul-up and saying, "We'll do better next time."
• Stating your case in a logical and unemotional way. That's refreshing.
• Asking for a declaratory judgment. This means calling up the regulator before implementing a new merchandising program, for example, and asking, "How would you view this?" instead of implementing it and seeing if anyone complains. This gives the regulator a chance to suggest changes before there's a problem, and in effect gives the company manager preapproval from the regulator's office.
• Alerting the regulator when a client may be filing a complaint. Call and say, "We had a difficult time with a family here yesterday, Mr. Sklar, and they could come to you. We want to give you a heads up and tell you what happened."
• Conducting a meaningful internal investigation when the regulator comes to you with a problem.
• Giving the regulator respectful but honest feedback on his or her actions and decisions. If you disagree with what the regulator does, say so and explain why. Most regulators learn about your profession on the job and welcome a chance to learn more.
Consider that it's better for the regulator to have a reputation for being understanding of business than business-friendly. Someone considered "business-friendly" may be perceived as biased. All parties involved in a dispute should feel they will get a fair and impartial hearing from the regulator.
When people don't trust the outcome at the regulatory level, they may choose to go to court instead, and the outcome of that process is potentially more uncertain and probably a lot more expensive.
What the regulator can do for you
• Be the fall guy or validator. When customers question something that is legally required or standard practice, they will usually believe the regulator more readily than they'll believe you. While the client is in the office, call the regulator and have him back up what you're saying. Doing this can calm down an angry customer, save a sale, or prevent a cancellation.
• Provide you with valuable managerial feedback. Ask her to let you know when inquiries or complaints come in about your company. This is one way to find out how the public perceives your sales force, or your sales message.
• Get attorneys off your back. Before a dispute seems headed for court, ask if the regulator can step in and mediate or arbitrate. It's a lot less expensive than going to court, win or lose. You don't want to end up in front of a judge and especially a jury with no knowledge of your profession deciding the outcome and damages.
• Get the media off your back. The regulator can establish himself with the media as a reliable source so that when someone runs to the newspaper or local television station with a story about how your business did something terrible to a grieving family, the reporter will first check with the regulator's office to see if there's any validity to the complaint. Hard-earned community goodwill can be preserved this way.
• Make the slick, deceptive operators shape up or ship out. This is called "rascal remediation." The regulator needs your help to find the bad apples, and it's to your advantage to keep competition fair. Insist the regulator get bad guys out of the business by suspending or revoking their licenses.
• Promote your company's and your profession's image with the consumer. When you can say that your operation is licensed by the state and in good standing, people feel more comfortable dealing with you.