Health Care Matters

A Complimentary Newsletter From:

Law Offices Of David S. Barmak, LLC

Managing Risk for Long Term Care and Health Care Providers

Volume 10, Issue 9                               ADVERTISEMENT                                DECEMBER 2009

In This Issue
Gifts from Residents & Family Members - Should they be Accepted?
Allison J. Whitehead, ESQ Joins Law Firm
In the Spotlight
Free Teleconference - CEU Program
HIPAA Data Security Officer Q&A
David S. Barmak, Esq. 
David Photo
Licensed to practice law in the States of New Jersey, New York, Connecticut and Pennsylvania 
Gifts from Residents & Family Members - Should they be Accepted?
I was recently at a nursing home and learned that a certified nursing assistant, ("CNA"), was charging a resident $5 per shower! Before we explore why this situation offends every fiber in our body, let's look at the reverse situation. What should a CNA do if a resident says: Thank you for providing me with the best showers of my life. Here's $5. Happy Holidays." What if a family member says: "Thank you for taking care of my Mom so well. Here's $5." All nursing homes have policies that require the CNA to say to the resident or family member: "Thank you but I cannot accept your generous gift. It is my job to take care of you/your Mom and it is also my pleasure to do so." If the resident/family member are insistent and perhaps even feel slightly hurt or insulted by the CNA's refusal to accept the gift, then the resident/family member will be referred to the supervisor to discuss and alternative form of a gift - perhaps a fruit basket for the entire nursing unit or a contribution to the residents' fund or ... something that can be enjoyed by everyone and not just one employee.

But if the old adage is true, that "tis better to give than to receive", how can we enable the resident/family member to give unless we are willing to receive?  Therein lies the difficulty. We do not know what's really going on in the mind of the resident/family member. In other words, we don't know the real motivation behind the "gift."  Perhaps the motivation is NOT WHAT IT SHOULD BE: "I'm afraid if I don't give you a gift that you will not take care of me." "I'm frightened that if I do not give you money you will not give me a shower." "I'm concerned that if I don't give you a holiday gift that you won't properly care for my Mom."

We cannot read the minds of our residents and family members. Wouldn't that be nice! But we can't. Therefore when a resident and/or family members offers a CNA a personal gift, especially if it involves cash, it is impossible for anyone to tell if the motivation on the part of the resident and/or family member is one of gratitude or fear. To avoid any potential criticism of possible blackmail or coercion, it is best for our staff to NOT accept gifts from residents and/or family members. Perception often becomes reality. Our staff must do everything they can to protect their reputations. Gift giving during the year, especially during the holiday season, is a prime opportunity to ruin one's reputation or to polish it beautifully. We don't need to explain this concept to our staff on the basis of the Federal Anti-Kickback or Anti-Solicitation statutes; the Office of the Inspector General Advisory Opinions; our Compliance Program policies and procedures, etc. Very simply we can explain our policy in terms of protecting one's certification, license and reputation. Every employee I speak with intuitively understands the inappropriateness of accepting a gift from a resident and/or a family member. Couching the reasons in terms of protecting the employee helps support the message, the policy and the well being of our residents.
Allison J. Whitehead, ESQ Joins Law Firm
David S. Barmak is pleased to announce that Allison J. Whitehead, ESQ has joined the staff of the Law Offices Of David S. Barmak, LLC. Allison is licensed to practice in New Jersey and New York.
Attorney Whitehead is a graduate of Seton Hall University School of Law and served as a clerk to the Honorable Michael A. Petrolle of Superior Court. During her law school years she was a judicial intern for Judge Petrolle and worked as a legal intern for Alpharma Pharmaceuticals, LLC in Piscataway, N.J.
Allison is a welcomed addition to the staff that is currently serving 45 long term care facilities in New Jersey, New York and Pennsylvania as well as acting as General Counsel for the Jersey Association of Medical Equipment Services (JAMES), the New Jersey Society of Independent Physical Therapists (NJSIPT) and Care Associates Network, LLC.

Allison is a resident of Belle Mead, New Jersey.
In the Spotlight
Karen Fraites is a nurse at Oxford Nursing Home in Brooklyn, NY.
Question:  What do you find most satisfying about being a nurse?
Answer:  When I was growing up I was very close to my grandmother and my great grandmother. I know this sounds a little extreme but I really feel as if the elderly residents here at Oxford Nursing Home are part of my family.

Question:  I don't think that sounds extreme. Actually, I think that is really wonderful.
Answer:  Thank you. When I first worked in a hospital in California at the age of 20, I provided care for an elderly lady named Mary who gave me some wisdom that I have never forgotten. I asked Mary to tell me the secret of her having been married for more than 50 years. Mary said to me, "When I open my mouth to speak, my husband closes his mouth. When he opens his mouth to speak, I close my mouth." I thought at the time that was such great wisdom that I'd make sure I did the same someday when I became married. Sure enough it has worked in my own marriage. I've now been married - successfully - for 23 years. Definitely some of the success in my marriage is because of the wisdom Mary gave to me.

Question:  Congratulations! So are you saying that part of what you like about working with elderly residents is learning from them?
Answer:  Exactly! I find that if I listen to my residents there is so much to learn from them. When I look at my residents, I see people who can barely help themselves. But when I listen to them, I realize that they are no different than me except for the fact that their bodies are no longer able to do what their bodies once were able to do. But there is one other difference from me - they have many more years of life experiences which I can learn from and find fascinating. All I have to do is listen to them. I also believe that our residents, like all human beings, want and deserve respect. I find that my residents believe they are receiving my respect when I just listen to them, listen to their pearls of wisdom from the stories and their thoughts.
Question:  I bet you never know what a resident might say.
Answer:  Ha! That's so true. I never know what's going to come out of a resident's mouth. I am interested and willing to listen to what my residents have to say. It makes them feel better and I certainly benefit from their wisdom. I am very satisfied taking care of our elderly residents.

Thank you, Karen, for your participation and viewpoint.

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.
HIPAA Data Security Officer Q&A
Question: I'm the HIPAA Data Security Officer at our nursing home. I am struggling to meet the requirements of HIPAA. I just heard from our Compliance Attorney that there are even more compliance requirements on the horizon for our residents' protected heath information - a New Jersey law dealing with identity theft. Is this true?
Answer:  Yes and we can expect many new laws and regulations over the coming years to continue to deal with protecting our residents' protected health information. Protecting privacy is a top priority that is here to stay because in order to maximize the cost savings of new communication technology there must be a corresponding increase in the protection afforded to our residents' protected health information. The recent Red Flag rules issued by the Federal Trade Commission dealing with medical identity theft are a prime example. The New Jersey Identity Theft Prevention Act is similar in that both require that credit be protected and our skilled nursing facilities do provide credit to our residents every time we agree to seek reimbursement for services rendered from a third party (e.g.: Medicare, Medicaid and private insurance carriers).
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. 

For more information, please contact us:
Telephone (609) 688-0055
Fax (609) 688-1199
Copyright, 2009.  Law Offices Of David S. Barmak, LLC.  All rights reserved.
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