Raise Family Cargivers Act Becomes Law

The U.S. Congress recently passed, and President Trump signed, the "Recognize, Assist, Include, Support and Engage (RAISE) Family Caregivers Act.” The RAISE Act aims to help relatives and partners who provide medical, household and financial assistance to loved ones, including those family members providing care for the elderly.

Senators Susan Collins (R-Maine, Tammy Baldwin (D-Wis.),  Representatives Greg Harper (R-Miss.), and Kathy Castor (D-Fla.) spearheaded the legislation.  The legislation was championed by AARP, the nation’s largest non-profit, non-partisan organization dedicated to older Americans, which rallied more than 60 aging and disability organizations in support, including the Elizabeth Dole Foundation, Paralyzed Veterans of America, Michael J. Fox Foundation and the Alzheimer’s Association. 

The RAISE  Act requires the U.S. Secretary of Health and Human Services (HHS) to develop, maintain and update an integrated national strategy to support family caregivers.  Nancy A. LeaMond, AARP’s chief advocacy and engagement officer,  said in an issued statement:  “Family caregivers are the backbone of our care system in America. We need to make it easier for them to coordinate care for their loved ones, get information and resources, and take a break so they can rest and recharge."  According to AARP, family caregivers “commonly experience emotional strain and mental health problems, especially depression, and have poorer physical health than noncaregivers.” And they rarely receive training in providing care.   Most family caregivers juggle work and caregiving. And 78 percent of them incur out-of-pocket costs due to caregiving, spending $6,954 a year, on average, according to AARP’s Family Caregiving and Out-of-Pocket Costs: 2016 Report.As a result, according to the 2016 Families Caring for an Aging America report, family caregivers for adults 65 and older are “stressed, isolated and often suffering financially.”

Under the RAISE Act, HHS will create a national family caregiver strategy by bringing together federal agencies and representatives from the private and public sectors (like family caregivers, health care providers, employers and state and local officials) in public advisory council meetings designed to make recommendations. The agency will have 18 months to develop its initial strategy and then must provide annual updates.  The RAISE Act also establishes an advisory body that will bring together stakeholders from the private and public sectors to make recommendations that communities, providers, government and others may take to help caregivers.

The goals of the strategy include identifying actions that government, communities, health providers, employers and others can take to support family caregivers, including:

• Promoting greater adoption of person-centered care and family-centered care in health settings and long-term care settings
• Training for family caregivers
• Respite services and options for family caregivers
• Ways to increase financial security for family caregivers
• Workplace policies to help family caregivers keep working
• Collecting and sharing of information about innovative family caregiving models
• Assessing federal programs around family caregiving
• Addressing disparities and meeting the needs of the diverse caregiving population

Forbes, in reporting on passage of the Act observed:

In the midst of one of the most divisive political landscapes in America’s history, members of Congress as well as President Donald Trump have shown there is one thing we can all agree on--caregiving.  

America’s family caregivers are eagerly waiting to see what effect the law will have on health care policy, and long term care.  

Dementia Specific Advance Directives More Prevalent

An increasing number of people will experience dementia. Worldwide, the number of people living with dementia is projected to increase from 47 million in 2015 to 132 million by 2050.

Family members and clinicians are often unsure whether the care they provide for patients suffering dementia is the care that patients would have chosen. Across the care spectrum, including skilled nursing facilities, hospital wards, intensive care units, and outpatient clinics, family members and clinicians commonly encounter this dilemma.  

In light of this concern, Paula Span has penned an excellent article One Day Your Mind May Fade. At Least You’ll Have a Plan in the New York Times as part of the New Old Age Series.  The article discusses advance directives for those with dementia.  The article follows a recent article published in the Journal of the American Medical Association (JAMA).  

According to these articles, existing advance directives are not particularly helpful for those with dementia because of the way dementia progresses over time with corresponding diminishing cognitive function.  The New York Times article explains:

"Although [dementia] is a terminal disease, dementia often intensifies slowly, over many years. The point at which dementia patients can no longer direct their own care isn’t predictable or obvious. ... Moreover, patients’ goals and preferences might well change over time. In the early stage, life may remain enjoyable and rewarding despite memory problems or difficulties with daily tasks."

The dementia-specific directive describes the person's wishes  as "goals of care" and offers four options for each stage of dementia, directing the person to "[s]elect one of the 4 main goals of care listed below to express your wishes. Choose the goal of care that describes what you would want at this stage."  The directive divides dementia into three stages, mild, moderate and severe.

The purpose of the dementia-specific advance directive is to express your wishes based on the specific "phase" of dementia you may enter in the future.  The website for this directive is here from which the 5-page directive may be downloaded.  The NY Times article describes that the directive:

"...in simple language...maps out the effects of mild, moderate and severe dementia, and asks patients to specify which medical interventions they would want — and not want — at each phase of the illness."

There are already a number of types of advance directives, with recent pushes for Physician Ordered Life Support Treatment (POLST) and other initiatives, such as the Conversation Project, and the Five Wishes.

Care Suffers as More Nursing Homes Feed Money Into Corporate Webs

A Kaiser Health News analysis of nursing home financial records revealed that nearly three-quarters of all nursing homes in the U.S. are owned by people who also have vested interest in companies that in turn sell services and goods to these same nursing homes, according to a New York Times article.

These business dealings are known as “related party transactions.” These transactions enable a nursing home owner to arrange contracts with their related businesses above a more competitive price, allowing them to turn around and siphon off the extra profit.

As an additional benefit, creating these corporate “webs” provides a layer of legal protection to nursing home owners. When a nursing home is sued, it is often very difficult for victims and their families to collect from the other related companies an owner holds stake in, thereby allowing them to “shore” away money.

Unfortunately, nursing homes which deal in “related party transactions” tend to have significant shortcomings which specifically affect their patients. The Kaiser Health News analysis showed that nursing homes which outsource to related organizations “have fewer nurses and aides per patient, have higher rates of patient injuries and unsafe practices, and are the subject of complaints almost twice as often as independent [nursing] homes.”

These arrangements are also associated with a wide array of deficiencies that may lead to negative health outcomes for residents.  Kaiser Health News’s analysis of inspection, staffing and financial records nationwide found shortcomings at other homes with similar corporate structures:

•  Homes that did business with sister companies employed, on average, 8 percent fewer nurses and aides;
•  As a group, these homes were 9 percent more likely to have hurt residents or put them in immediate jeopardy of harm, and amassed 53 substantiated complaints for every 1,000 beds, compared with 32 per 1,000 beds at independent homes;
• Homes with related companies were fined 22 percent more often for serious health violations than independent homes, and penalties averaged $24,441 — 7 percent higher.

For-profit nursing homes utilize related corporations more frequently than nonprofits do, and have fared worse than independent for-profit homes in fines, complaints and staffing, the analysis found. Their fines averaged $25,345, which was 10 percent higher than fines for independent for-profits, and the homes received 24 percent more substantiated complaints from residents. Overall staffing was 4 percent lower than at independent for-profits.

FINRA and SEC Adopt New Rule to Help Curb Elder Financial Fraud

FINRA, the Financial Industry Regulatory Authority, Inc. (a private corporation that acts as a self-regulatory organization (SRO)). has released a series of questions and answers designed specifically to address elder financial exploitation. Frequently Asked Questions Regarding FINRA Rules Relating to Financial Exploitation of Seniors (FAQ's)  explains new rules that take effect on February 5, 2018.

The SEC recently approved: (1) the adoption of new FINRA Rule 2165 (Financial Exploitation of Specified Adults) to permit members to place temporary holds on disbursements of funds or securities from the accounts of specified customers where there is a reasonable belief of financial exploitation of these customers; and (2) amendments to FINRA Rule 4512 (Customer Account Information) to require members to make reasonable efforts to obtain the name of and contact information for a trusted contact person (“trusted contact”) for a customer’s account. FAQs Nos. 1 and 2 deal with temporary holds, No. 3 deals with trusted contacts, and No. 4 with disclosures.  The FAQs are available here.

FINRA Rule 2165 allows a FINRA member firm that reasonably believes financial exploitation may be occurring or has occurred to place a temporary hold of up to fifteen (15) business days on the disbursement of funds or securities from the account of a “Specified Adult” customer.  A Specified Adult is either (a) a person aged 65 or older; or (b) a person, aged 18 or older, who the firm reasonably believes has a mental or physical impairment that renders the individual unable to protect his or her own interest.

Rule 2165 also establishes additional recordkeeping requirements in order to comply with the rule including identification, escalation and reporting of matters related to the financial exploitation of Specified Adults.

Further, Rule 2165 requires a member firm’s supervisory procedures to identify the title of the person authorized to place, terminate or extend a temporary hold.  The person specified at the member firm must serve in a supervisory, compliance or legal capacity.

The rule allows member firms to exercise discretion in placing temporary holds on disbursements of funds or securities from the accounts of Specified Adults.  The rule serves as a safe harbor from violations of other FINRA rules, but Rule 2165 raises the question as to whether a stockbroker is qualified to pass judgment on the mental condition of his or her clients.

Additionally, the rule requires members to develop and documents training policies or programs reasonably designed to ensure that associated persons comply with its requirements to aid in identifying tell-tale signs of elder financial abuse.