Health Care Matters Newsletter

Clear and conspicuous identification of the hospice personnel such as different uniforms and different nametags.
Review all intake, consent, resident notification forms to include clear and conspicuous notices regarding the status of the hospice personnel.
Provide standard instructions to the residents concerning the status of the hospice.
Ensure that there is indemnification language in existing and new contracts between the nursing home and the hospice.
Consider a notice in the local newspaper announcing the relationship of the nursing home and the hospice.
Put a disclaimer and notice of the relationship between the nursing home and the hospice on the nursing home's web site.
Notify residents and their families up front that the hospice is separate and apart from the nursing home. Include such language in Admission Agreement to emphasize the hospice is not part of the nursing home and is there only as an accommodation to the resident.
Post notices in the facility that the nursing home and the hospice are not one and the same.

Sample: "Hospice personnel who participate in your care, including, for example, nurses and certified nursing assistants, are private healthcare providers, and not employees or agents of [nursing home]. Only [nursing home] nurses and certified nursing assistants are [nursing home] employees. Please note that the nurses and certified nursing assistants who provide care at [nursing home] must meet certain educational and experience requirements; however, [nursing home] is not responsible for the specific care provided to you by the hospice personnel. If you wish to change any of the hospice personnel, please ask to speak with the Unit Manager."

Have hospice and other third party vendors add the facility as an additional insured on their professional liability policy and get a certificate issued by the insurance company (annually) to this effect.

There are limits to what a facility can do, but you should do as much as reasonable to differentiate between the nursing home and any third party vendor (hospice, housekeeping, and/or maintenance contractors).

Free Teleconference - CEU Program

David S. Barmak, Esq. will present "HIPAA Compliance: What Every Health Care Provider Should Know" and will provide 1.0 CEU for New Jersey LNHA and CALA. Call Saul A. Fern, Marketing Director at (609) 688-0055 to schedule date in January, 2010.

Update from NJ Medicaid Fraud Control Unit

On October 16, 2009, John Krayniak, Assistant Attorney General for the State of New Jersey, Senior Counsel for the Medicaid Fraud Control Unit, discussed the current year in review for his unit's fraud enforcement efforts while presenting at the New Jersey State Bar Association Health & Hospital Section symposium. John explained that the Medicaid Fraud Control Unit negotiated billions of dollars of settlements with healthcare providers and entities ranging from pharmaceutical companies to physicians. His unit's work plan for 2010 will continue to focus on Medicaid misrepresentations including kickbacks to referral sources and substandard quality of care. The New Jersey False Claims Act, which came into effect on March 13, 2008, currently has 94 cases pending with 46 cases having been filed since January of 2009. The unit has recovered $52,286,221 this year for the Medicaid program (state and federal). New Jersey's share of this recovery is $26,361,531.75. Primary complaints in these false claims lawsuits include cost report fraud, kickbacks to referral sources, inadequate staffing leading to substandard quality of care and the lack of adequate credentials for health care professionals. The New Jersey Division of Medical Assistance and Health Services continues to require fraud prevention programs for health care providers receiving more than $5 million dollars a year in Medicaid receipts. John works closely with Mark Anderson, the New Jersey Medicaid Inspector General, a newly created position for the State of New Jersey. This new position clearly communicates the State's commitment to "cleaning up" fraudulent behavior among health care providers.

In the Spotlight

Vickie Alfeche is the Director of Nursing at New Vista Nursing & Rehabilitation Center in Newark, NJ.

Question: As the Director of Nursing, what is the most important quality for a Certified Nursing Assistant (CNA) to have while doing her job?
Answer: A CNA must have respect for the patient, respect for co-workers, and respect for authority.

Question: How do you determine if a CNA has this respect during the hiring process?
Answer: I always interview CNA applicants. I ask them to share with me what their expectations are of the job. I then share with them what my expectations are for CNAs at my facility.

Question: What expectations do you find unacceptable?
Answer: If a CNA says that she wants a job as a CNA at my facility because she heard it was an easy job - that's not right and I do not hire her.

Question: So you believe that a CNA's job is difficult?
Answer: Yes! I make it very clear to CNA applicants that being a CNA is very difficult.

Question: So what expectations do you find acceptable?
Answer: I want a CNA to expect that she is expected to act like and will be treated like a professional. The issue is really whether or not a CNA thinks of herself as a professional and is ready to act like a professional and accept the expectations of being a professional. Unfortunately, some CNAs are just not ready or appropriate for the profession of being a CNA. Just because a CNA has a certification from the Department of Health doesn't mean that she is a professional.

Question: That reminds me of many lawyers who may be technically competent but are still very poor lawyers because they lack appropriate ethics and values that the profession expects of them.
Answer: I agree. I also expect my CNAs to put their work first when they are at the facility.

Question: What did you mean by respect for authority?
Answer: Respect for authority involves doing a task that an authority figure directs the CNA to do, even if the CNA does not want to do it. For example: a Unit Manager directs a CNA to give a resident a shower. If the resident is unpleasant to the CNA, the CNA must make a good faith effort to provide care for that resident. If the CNA needs help or even needs to be switched off from that resident then we'll do what we need to do to accommodate the CNA and the resident; however, the CNA must still make a good faith effort to provide the care. Anything less than that is considered insubordination. The resident's care team develops a care plan which the CNA is in part responsible to implement. There's a need for CNAs to recognize that the tasks that they have been assigned to do have been carefully thought out and need to be done. CNAs have a very difficult but crucial job in taking care of our patients.

Question: Anything else regarding respect for authority?
Answer: Yes. CNAs must also respect policies, procedures and rules.

Question: Is there risk for the nursing home if CNAs do not have the respect you expect?
Answer: Absolutely! The CNAs I hire understand that without proper respect and professionalism, and this is true for all professionals at our facility, there is not only great risk to the facility but also to the CNA. CNAs work too hard to jeopardize their certifications. My job is to protect the residents and to help the CNAs protect their certifications as well as our nurse professionals protect their licenses.

Thank you, Vickie, for your participation and viewpoint.

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:

Counsel and advisement on all aspects of legal risk, from setting up the entity to corporate governance and compliance;
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
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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