Health Care Matters

A Complimentary Newsletter From:

Law Offices Of David S. Barmak, LLC

Partners to Skilled Nursing Facilities

Volume 10, Issue 4                               ADVERTISEMENT                                JULY 2009

In This Issue
Reality at 3:00 A.M.
Department of Homeland Security Focuses on Companies Hiring Illegal Workers
Negligent Hiring
Compliance Officer Q&A
David S. Barmak, Esq. 
David Photo
Licensed to practice law in the States of New Jersey, New York, Connecticut and Pennsylvania 
Reality at 3:00 A.M.
I am a compliance attorney. At 3:00 a.m. I inserviced a group of certified nursing assistants (CNA) at a skilled nursing facility. The topic: the facility's fraud and abuse compliance program and the policy of non-retaliation for complaints about substandard quality of care. After the inservice, Mary stayed behind and asked if we could talk. When the others had left and I closed the door she broke down into tears.
Q:        What are you so upset about?
A:        I can't take it anymore. I'm sick to my stomach. Every 
           night when I start my shift I find two or three of my
           patients wet from head to tow.  They've been lying in bed
           in their own urine for hours.  A couple of the CNAs on the
           shift before me refuse to properly care for my residents.

Q:        Why would they do that?

A:        They come here for a paycheck and don't care about my

Q:        Have you spoken with them?
A:        Yes. They just don't care.
Q:        Have you complained to your nurse?
A:        I have and she says she'll look into it but never does
           anything about it.
Q:        How come?
A:        She's afraid of these CNAs.
Q:        Physically afraid?
A:        Yes. She's afraid her car will be keyed.
Q:        What about talking to the nurse supervisor?
A:        I can't. If I complain then these CNAs will get me
           in trouble - at work and at home because they know where
           I live.  My nurse won't help me.  I can't afford to lose my
           job.  I cant' afford to get into trouble.  I'm so upset.  I don't
           know what to do.  I've got to help those poor people.
Fortunately, after a lot of persuasion and assurances of anonymity, I was able to set up a telephone conference call for this CNA, the facility's Compliance Officer and me. The Compliance Officer, a nurse, was able to resolve this situation which resulted in improved quality of care for the residents, the firing of the CNAs who were providing substandard quality of care and the disciplining of the nurse who was unresponsive to the CNA's complaints.
It is indisputable that skilled nursing facilities must develop and implement compliance programs to safeguard the facilities from government allegations of "fraud and abuse" and to show good faith efforts to adhere to federal and state laws and regulations. The Office of the Inspector General focuses primarily on quality of care issues when it comes to investigating "fraud and abuse" in skilled nursing facilities. When developing and implementing compliance programs, I am satisfied that management regularly conveys to its clinical staff that management will not retaliate against employees who complain about substandard quality of care. Unfortunately what is sometimes overlooked by management is the need to protect complaining employees from co-workers against whom they have made their complaints. Facilities must stress to their supervisors and managers that while it is critical to encourage and to not retaliate against staff that "blow the whistle" on substandard quality of care, it is most important that management protect whistle blowing staff from the staff against whom the whistle was blown.
I realize that every skilled nursing facility claims "we do not retaliate" and "we encourage our staff to complain to management"; however, having spent hundreds of hours inservicing third shift CNAs on various elements of compliance programs, the same response is too often heard from third shift CNAs: "We think very highly of the owner, Administrator, Director of Nursing and you. We believe all of you want to do the right thing by us. We believe in the goals of the compliance program and we do our best to follow what you teach us in order to protect our certifications, our patients and our facility. However, we are very, very reluctant to 'blow the whistle' on our third shift CNA colleagues who do not provide good quality of care for our patients. If we complain about them they will retaliate against us and our nurse will not protect us. It doesn't matter what the owner, Administrator, Director of Nursing and you say. Our only reality at 3:00 a.m. involves our immediate floor nurse and our fellow CNAs. This is very upsetting for us because we care about our residents but we also have to get along with our colleagues."  "Whistle blowing" by one CNA against another requires management protection through enforcement and discipline. A lack of such protection results in a fear of retaliation by fellow CNAs. Rather than risk such retaliation, a potential whistleblower finds it safer to say nothing. Result: continued substandard quality of care for the patients.
How do you sell the most important message from your compliance program - that your facility encourages disclosure and has a zero tolerance for retaliation by all employees on all shifts? It's a message that all staff readily agree should be supported and enforced; however, the reality is that unless a facility can assure that all of its nursing staff are willing to fully support disclosure, CNAs may not come forward with their real concerns.  A CNA's reality is not always determined by management's policies and procedures or what the Compliance Attorney says about "zero tolerance". Very often a CNA's reality is dictated by her colleagues and her floor nurse. "Zero tolerance" is nothing more than a concept unless every nurse understands, believes and is willing to enforce the concept in order to encourage every CNA to express their concerns without fear of retaliation from either nursing or fellow CNAs. To me, a compliance program is only as effective as the real protection it affords a facility's CNAs if and when they are faced with the decision to "blow the whistle" at 3:00 a.m.
Department of Homeland Security Focuses on Companies Hiring Illegal Workers
The Department of Homeland Security announced on April 30, 2009 that it is directing its agents to focus on arresting and prosecuting employers who hire illegal workers. Homeland Security is emphasizing the imposition of fines and criminal charges against employers who break the law more so than workplace raids aimed at rounding up undocumented workers. Employers who knowingly hire undocumented workers are the primary targets. Special agents at U.S. Immigration and Customs Enforcement are instructed to "obtain indictments, criminal arrest or search warrants, or a commitment from a U.S. attorney's office to prosecute the targeted employer, before arresting employees for civil immigration violations at a work site". Civil penalties, including fines and exclusion from federal contracts are additional remedies to be levied against violating employers.
It is critical that healthcare providers ensure that their Compliance Programs are effective and proactive in minimizing the risk of possible criminal investigations in the area of hiring employees.
Negligent Hiring
Healthcare providers, as employers, are subject to direct liability for the negligent hiring, retention, or supervision of their employees when third parties are injured by the tortious acts of unfit or incompetent employees. In order to succeed during a lawsuit, the injured party must show that the employer knew or in the exercise of ordinary care should have known that its employee's conduct would subject third parties to an unreasonable risk of harm.
When a patient has been injured as a result of the negligent or intentional conduct of a certified nursing assistant or nurse (collectively "caregiver"), one possible ground for a lawsuit against the healthcare provider is the provider's negligence in hiring or retaining an incompetent caregiver. Such a claim is based upon the independent negligence of the provider itself. In other words, the claim is that the provider was administratively negligent in hiring an incompetent caregiver.
There are a number of types of incompetence which may be alleged in these types of lawsuits. If physical or sexual abuse is involved, the provider may be liable if it knew or should have known of the caregiver's tendency or history toward such conduct. Injuries to patients may also result from the failure of an incompetent caregiver to provide proper instruction or from lack of proper and adequate supervision. A caregiver and consequently a provider may be determined to have been unfit where the caregiver was unable to properly maintain control of a patient's behavior which leads to the patient's injury. If, however, there is no evidence that the caregiver was incompetent or where there is no connection between the alleged incompetence and the injury to the patient then there should be no liability to the provider. Providers owe a duty of care to their patients; however, providers are not insurers of their patients' safety and are not obligated to provide patients with constant and complete supervision.
It is this author's opinion that healthcare providers must very carefully screen applicants, through pre-employment investigations, for caregiver employment to ensure that there are no skeletons in the closet (abuse, theft, etc.). A jury will be unforgiving if a criminal background check for a few dollars could've prevented an ultimate injury to the patient. The other critical factor is that if an applicant is hired and deemed at any time to be incompetent, it is crucial that the provider terminate that incompetent employee's employment immediately after remedial efforts prove unsuccessful. To continue to employ an incompetent caregiver after all reasonable efforts to rehabilitate have failed will be viewed by a jury as unconscionable and result in liability for the provider. On the other hand providers must exercise caution because they may be incurring legal liability if the pre-employment investigations utilized discriminate, fail to protect third parties from liability or invade privacy interests.
Compliance Officer Q & A
Question:  How is my facility supposed to integrate paid time off that our employees have coming to them with the New Jersey Paid Family Leave Act?
Answer:  This new law specifies that an employer may not require an employee to utilize more than two weeks of sick, vacation or other paid time off in connection with a period of paid family leave. In other words, an employer can require an employee to use up to two weeks of sick, vacation or other paid time off as part of the six weeks of paid leave. When an employer does this, the employee will be left with four weeks of paid leave available under this new law.
Question:  Under the New Jersey Paid Family Leave Act, is it enough for the employee to tell us that she needs the time off for a serious health condition?
Answer:  Well, that's a start. But the employee must also complete a form for benefits which includes a certification from a healthcare provider. The certification must include:  (1) the date the "serious health condition" commenced; (2) the probable duration of the condition; (3) the medical facts within the knowledge of the provider of the certification; (4) a statement concerning the need for the employee to provide care for the individual; (5) an estimate of the time the employee will need to provide care; (6) a statement of the medical necessity for any intermittent leave; and (7) dates of any future intermittent treatment.
Law Offices Of David S. Barmak, LLC
David Barmak established his health care law firm in 1984 to deliver legal services, both in transactions and litigation, to organizations and professional practitioners in the health care field.  We call this approach "Enterprise-Wide Risk Management" because it includes three important facets:
  1. Counsel and advisement on all aspects of legal risk, from setting up the entity to corporate governance and compliance;
  2. Protection of your practice or business through litigation prosecution or defense in the Courts; as well as regulatory compliance and licensure issues before government agencies; and
  3. Operations improvement through the implementation of enterprise-wise onsite audits, programs and training seminars in the areas of, but not limited to, Fraud and Abuse, HIPAA Privacy and Data Security, Employment, A/R Management, Emergency Preparedness, and Workplace Violence.

David S. Barmak, Esq. received his JD from Cornell University and BA from Duke University.  He is licensed to practice and serves clients in the States of New Jersey, New York, Connecticut and Pennsylvania.  Before making your choice of attorney, you should give this matter careful thought.  The selection of an attorney is an important decision.  The recipient may, if the newsletter is inaccurate or misleading, report the same to the Committee on Attorney Advertising. 

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Disclaimer:  The contents of this newsletter are presented as general information.  Legal advice and opinion can only be provided upon individual consultation.
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