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 11, Issue 2                               ADVERTISEMENT                                FEBRUARY 2010

In This Issue
Talking May Be the Best Preventative Medicine for Nursing Homes
What's in a Corporate Compliance Program Name?
Recent Supplemental Program Compliance Guidance for LTC Facilities Issued by OIG
Attention New York Employers New Expanded Requirements Mandated When Initializing Background Checks on New Employees
David S. Barmak, Esq. 
David Photo
Licensed to practice law in the States of New Jersey, New York, Connecticut and Pennsylvania 
Talking May Be the Best Preventative Medicine for Nursing Homes
Many lawsuits are the result of the inability or unwillingness of nursing home staff to communicate with a patient and/or family when an incident occurs. Very often the staff member is reluctant or afraid to discuss the "why's and how's" of a particular situation with the resident but most especially with the family. The reluctance on the part of the staff in conjunction with the time elapsed from the occurrence relates to the appearance of guilt on the part of the facility and the more likely the family is to consult the Department of Health and/or an attorney.
The attorney will then retain an expert witness, usually a physician in order to support a claim for negligence or malpractice. Even though there may not be enough to sustain a real case of negligence, the attorneys may press forward with a lawsuit with minimal support, hopeful that during the discovery process stronger support for the negligence claim will be uncovered. In addition, the opportunity to shift attorneys' fees to the skilled nursing home is a potential if the residence rights can be proven to have been violated. Is this a fair and appropriate modus operandi? Perhaps not, but it is how many professional malpractice attorneys proceed.
Obviously, you cannot avoid being sued. What you can avoid, however, are lawsuits that have less merit but are filed primarily because of the lack of timely and appropriate communication between the resident, family and facility staff. The following are examples:
  1. A resident is admitted to the facility with stage I or stage II pressure ulcers and/or perineal excoriation's that are small in size. It is imperative that the staff inform the resident and/or family as soon as possible as these wounds may get worse before they get better.
  2. The resident is admitted or returns to the facility with a stage III or IV pressure ulcer that was either not there prior to discharge, developed or became worse at the hospital. It is imperative that the staff inform the resident and/or family regarding the existence of the wound and the stage along with interventions that are being implemented as the hospitals are discharging patients with "stage II" wounds that are improperly staged. The recent CMS guidelines prohibit the reimbursement to hospitals for avoidable hospital acquired wounds above stage II. If the family thinks that the wound was stage II at the time of discharge and find out that it is stage III days later, the assumption will be that the facility is at fault.
  3. The resident is assessed as a high fall risk and multiple interventions are in place, however, the resident continues to fall. It is imperative that the staff request a family meeting as soon as possible to discuss the situation with the family and involve them as much as possible in the care planning process.
If a skilled nursing facility can prevent even a small percentage of these types of cases from being filed due to poor communication and "poor bedside manner" on the part of the staff, the facility's professional liability premiums will be less; and the facility staff may have more time to do what they were trained to do, "provide healthcare."  Depositions and court appearances require huge amounts of staff's time. Most preliminary professional liability inquiries result from some type of incident during the process of providing care. If the patient/family does not fully understand that there may be some medical reason for the resident's condition such as a wound, fall, or continued pain they are less likely to initiate a lawsuit. If a nurse or interdisciplinary team member sits down with the patient/family after an incident to fully explain what has occurred, this may be the first step in creating an amicable dialogue. What is important, however, is the continuation of this dialogue for weeks or months following the occurrence. A few minutes of heartfelt discussion may avoid what can easily become a snowball rolling downhill and gathering momentum in size.
Of course, what was said in the previous paragraphs was not meant to convey a prescription for preventing all professional liability lawsuits. As with most things in society today, perception is sometimes more important than reality. If a patient perceives that the facility is caring, understanding, and communicative, then the patient/family may not look beyond this point. It is only when patients/family truly believe that the staff has not been honest or is withholding information that they begin to think other things which may eventually lead to investigation as to whether the facility has committed negligence.
What's in a Corporate Compliance Program Name?
Imagine a skilled nursing facility ("SNF") sends its assistant director of nursing to a seminar offered by the Department of Health. The speaker explains the importance of having a compliance program. The assistant director of nursing calls the administrator and asks if the facility has a compliance program. The administrator almost drops off his chair because the SNF implemented a compliance program at the facility over a year ago.  He reflects on the compliance program that was implemented and feels satisfied that the nuts and bolts of the compliance program have successfully been included:  preparing and publishing policies and procedures, three shift training on a periodic basis, establishing a compliance committee comprised of a compliance officer and department heads and a compliance attorney, putting in place a telephone hot line and instituting an outside auditor among numerous other components of a formal compliance program. Nevertheless, the administrator cannot understand how this reality could be lost upon the assistant director of nursing who clearly did not remember or recognize that existence of the compliance program.
The administrator immediately has his compliance attorney revisit the SNF and perform three shifts in services for all of the staff. The key message conveyed is that the SNF has a compliance program that addresses issues of concern to both the federal and state governments, issues that also include protecting the staff's certifications and licenses, as well as protecting the residents. The staff welcomes the refresher in service; however, the compliance attorney notices that when he says the words "corporate compliance program" it seems to him that the staff's eyes register a lack of recognition. His conclusion: the phrase "compliance program" has specific meaning only to the administrator and certain other department heads that have spoken of and are familiar with this particular nomenclature. For most of the other employees, in particular the line staff, the magic words "compliance program" in and of themselves have little meaning. Why? Perhaps because these words are not familiar to the staff on a day to day basis. Perhaps repetition on a periodic basis has not been enough to promote complete familiarization of the nomenclature. Perhaps because the phrase "compliance program" does not conjure up a tangible product or service. While the staff are very familiar with the nuts and bolts of the compliance program: fraud and abuse, HIPAA privacy, employment, etc.; the phrase "compliance program" doesn't "ring a bell" for all staff. The phrase "compliance program" is still not a phrase bandied about the dinner table.

Continuing with the staff training, the compliance attorney makes a concerted effort to focus on associating the fraud and abuse program, the employment program, the discrimination and harassment program, HIPAA privacy program with the phrase "compliance program." A subsequent survey of the staff showed that the training, having emphasized the nomenclature of "compliance program," paid off with nearly 100% staff recognition.
The point of this story is critical because when the federal and state governments come on site to conduct compliance surveys, they have been known to ask employees: "do you have a compliance program?"  "Who is your compliance officer?"  The need to associate the phrase "compliance program" with the specific compliance program topics (fraud and abuse, etc.) is critical. Staff must be reminded, over and over again, not only of the benefits of the compliance program but the fact that the program is called a "compliance program." The staff must be reminded as to who their compliance officer is. These word associations must be repeated firmly and often to the staff so that the nomenclature is entrenched in their minds. Business cards providing the name of the compliance attorney as well as the hot line number, along with compliance program posters at every nurse's station and by the time clock promoting the existence of the compliance program are essential. As always, to be successful in this effort the SNF's compliance officer needs to be fully involved and engaged in the program.
Recent Supplemental Program Compliance Guidance for LTC Facilities Issued by OIG
The Office of Inspector General (OIG) for the U. S. Department of Health and Human Services recently issued supplemental program compliance guidance specifically directed at long term care facilities that accept Medicare and Medicaid funds. The OIG cautioned that this supplemental compliance program guidance is neither mandatory nor exhaustive. The program guidance identifies fraud and abuse risk areas in four (4) broad categories: quality of care, submission of accurate claims, the Federal anti kick-back statue and "other" risks.
In the area of quality of care, the OIG asserts that a facility may be liable for submitting false or fraudulent claims in cases that involve failure of care on a systemic and wide-spread basis. Specific areas that encompass "quality of care" include sufficient staffing levels, resident care plans, medication management, psychotropic drugs and resident safety. Submission of accurate claims is another fraud and abuse risk area highlighted by the OIG. Examples of false or fraudulent claims include claims for items not provided or not provided as claimed, claims for services that are not medically necessary and claims where there has been a failure of care.
Another high risk area documented by the OIG for potential fraud and abuse activity are those actions prohibited by the Federal Anti-Kick Back Statute. These include practices common in other businesses such as offering or receiving gifts or rebates to reward past or potential new referrals. An example of a forbidden activity under the Federal Anti-Kickback Statue is if a hospice offers a nursing facility free nursing services in order to induce referrals, or pays room and board in excess of what the facility would have received from Medicaid if the resident had not been on hospice, such arrangements could violate the Federal Anti-Kickback Law. Another example of a potential troublesome arrangement is if a hospital provides remuneration to a nursing facility to keep certain number of beds open and available for its patients. Payments for beds that are already occupied, payments for more beds than the hospital needs and payments that exceed the nursing facility's actual costs of holding a bed, all give rise to an inference that the payment is intended to induce referrals.
Other risk areas for fraud and abuse activities include physician self-referrals that violate the federal Stark law; supplementation of covered items or services, conditioning acceptance of a Medicare or Medicaid beneficiary upon payment from a hospital or the beneficiary's family and steering a resident to a particular Medicare Part D prescription plan.
The OIG urges nursing facilities to develop an ethical culture that values compliance from the top down and fosters compliance from the bottom up. In review such areas as sufficient staffing, resident care plans, medication management and resident safety might not have been considered as constituting false or fraudulent claims in the past. However, this new program compliance guidance indicates that the OIG is serious about identifying substandard care as a factor making a false or fraudulent claim for federal funds, which may result in criminal, civil or administrative sanctions.
A formal corporate compliance program has been identified by the federal as well as state governments as critical in substantiating that the health care provider has made a good faith effort to comply with laws and regulations, thereby mitigating against a possible finding of "intent" to not comply.
Attention New York Employers New Expanded Requirements Mandated When Initiating Background Checks on New Employees
Article 23-A of the New York State Corrections Law makes it unlawful for private employers that employ at least 10 employees to deny an applicant employment or to take an adverse action against an employee because of the applicant/employee's prior criminal conviction(s) or a finding that the applicant/employee does not have "good moral character" as a result of his or her previous criminal convictions. There are only two exceptions to this general rule. First, employment may be denied if there is a direct relationship between one or more of the prior criminal offenses and the specific employment sought or held by the person. Second, employment may be denied if the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific persons or the general public.

The new expanded requirements of Article 23-A now makes it mandatory for employers to provide employees/applicant who they are requesting criminal conviction data on with a copy of Article 23-A. The law also requires employers to post a copy of Article 23-A in a visually conspicuous manner in an accessible location at the workplace.
Article 23-A lists a number of factors that an employer must consider in determining whether employment may be denied or adverse action may be taken based on an individual's past criminal conviction(s). 
These factors are:
  1. The public policy of New York to encourage the employment of persons convicted of one or more criminal offenses;
  2. The specific duties and responsibilities necessarily related to the employment sought;
  3. The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his or her fitness or ability to perform one or more such duties or responsibilities;
  4. The time which has elapsed since the occurrences of the criminal offense or offenses;
  5. The age of the person at the time of occurrence of the criminal offense or offenses;
  6. The seriousness of the offense or offenses;
  7. Any information produced by the person or produced on his or her behalf in regard to his or her rehabilitation and good conduct; and
  8. The legitimate interest of the employer in protecting property, and the safety and welfare of specific individuals or the general public.
Employer Protection Also Passed
In addition to the above law, and in order to further encourage employers not to discriminate against persons with criminal convictions, the New York State Human Rights Law has been amended. This amendment, provides that, so long as it is determined that the employer made a reasonable and good faith determination that, due to the factors outlined in Article 23-A, the applicant should have been hired, the employee's criminal record is inadmissible in any negligent hiring or retention case pertaining to the employee that may be brought against the employer.
Based on the requirements set forth in Article 23-A, New York long term care facility employers should review their workplace postings, as well as their background check policies and procedures and ensure that they follow the guidelines provided in Article 23-A. Healthcare providers should also review their job descriptions to ensure that it is clear that the job position requires a criminal background check and to explain the basis for such a requirement in terms of safety for the patients.
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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