| David S. Barmak, Esq. |
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Licensed to practice law in the States of New Jersey, New York, Connecticut and Pennsylvania
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Minimize Your Facility's Liability & Deficiency Severity Risk Through Your Corporate Compliance Program
By Georgette Bieber RN C, LNCC | |
Recently the administrator of one of our clients reported an incident that resulted in a non-life-threatening injury to a resident. The resident involved was identified as a "frequent faller." However, as a result of her fall, she sustained a facial fracture and a closed head injury. As required, the incident was reported to the Department of Health.
As the nurse on the Corporate Compliance team, I went to the facility to evaluate the incident and offer my assistance in minimizing the facilities risk for deficiency and to ensure that the residents were being offered every possible intervention to limit the risk of additional injuries due to falls.
With the assistance of the Director of Nursing and nursing staff, I was able to complete a thorough medical record review including the incident reports, therapy notes and care plans.
The interdisciplinary team had assessed the resident and implemented multiple interventions that they would not have gotten credit for due to their failure to update and review the care plans on a continual basis. The Department of Health would have cited them regarding care planning and fall prevention. Interviews with the staff nurses, recreation personnel and therapists revealed that the team was actively involved regarding safety and the prevention of injuries. Multiple interventions were implemented over the course of 2 ½ months that were not captured and recorded in the care plan. We updated and revised the fall risk care plan to include the appropriate information regarding the interventions that were provided and the family involvement. Using the documentation found in that particular record, I was able to in-service the professional staff regarding the importance of accurate, descriptive documentation and care planning.
The Department of Health has since reviewed the incident with no citations for deficiency. However, the facility was prepared to show how they had identified the risk, implemented the individual and systemic correction, and had a review process in place to ensure the ongoing monitoring process. All were important ingredients in the Department of Health's decision.
It is always beneficial to be proactive regarding a possible problem rather than trying to defend yourself regarding your action or inaction after the fact. A Corporate Compliance Program is considered by both federal and state authorities as a highly proactive program designed to reduce liability.
NOTE: Georgette Bieber, RN C, LNCC is a recent addition to the Corporate Compliance team at the Law Offices Of David S. Barmak, LLC. Georgette has had considerable experience as a Director of Nursing, Clinical Care Coordinator/Compliance Director, Director of Clinical Services, Corporate Director of Quality Assurance all in the long term care field and brings years of experience to the Corporate Compliance Team at the Law Offices Of David S. Barmak, LLC. Georgette is also a Legal Nurse Consultant certified by the ANA.
It is expected that Georgette will be of great assistance to our long term care facility clients in many areas including clinical audits, mock surveys and in responding to Department of Health inquiries. |
| What Role Does a Nursing Home's General Counsel Play with Respect to Outside Counsel's Defense of Lawsuits Against the Nursing Home? | |
Outside counsel are hired by or provided for a nursing home in numerous situations. The one that comes to mind quickly is when a nursing home is sued by a current or former resident. The nursing home's insurance company provides counsel to defend and indemnify the nursing home. Indemnification means that the insurance company will pay for any settlement or verdict against the nursing home that arises out of the alleged claim. All professional and general liability insurance policies have coverage limits as well as a deductible. The amount of insurance coverage offered by the policy is purchased with the goal that it will cover any liabilities incurred by the nursing home. It must be noted that at the conclusion of the case if the verdict is against the insurance company and the judgment includes punitive damages and/or attorney's fees for the plaintiff, these costs are not covered by the professional or general liability policy. Therefore it is imperative that the nursing home's General Counsel must from the start of the proceedings put pressure on the insurance company to settle or reach a verdict that is within the policy limits.
The General Counsel plays an important role in assisting the outside counsel and the nursing home in the investigation of the alleged claim, the interviewing of employees, the collection of documents, review of charts, etc. as well as the defense of the alleged claim.
The General Counsel should be notified along with the insurance company as soon as a potential claim arises. This occurs when an attorney for the suing party asks the nursing home for a copy of the resident or former resident's medical chart. The General Counsel should work with the Director of Nursing to review the medical chart requested. Once it is reviewed and a summary of potential liabilities are critiqued by the General Counsel, the summary and the review should be submitted to the insurance company's counsel. At that time a copy of the medical chart can be sent to the requesting attorney.
A copy of the chart should be kept on the floor in the event that it is needed. The original and a second copy should be locked in the administrator's office to ensure that no modifications, changes or deletions are made by anyone.
The General Counsel should oversee this whole process assuring that it is done properly. In addition, the General Counsel should ensure that electronic records are not destroyed and that electronic record systems are in place to maintain documents in the event that a lawsuit goes forward.
The General Counsel should be copied on all documentation to and from assigned counsel, advise administration and owners as to what is happening in the lawsuit and should stay actively involved in the entire case.
The General Counsel should actively assist outside counsel and administration understand the proceedings as the lawsuit moves from step to step, including participating in mediation efforts as well as a trial if any. Often a General Counsel's participation contributes to save a nursing home's staff a tremendous amount of time as well as helping to avoid a potential verdict beyond a policy's limits and/or the awarding of punitive damages and/or attorney's fees. |
| For Your Information | Question:
I have a worker who has been out on Workman's Compensation for months. She holds a critical position and I want to fill that position with someone else. In fact I need to fill that position with someone else. Can I?
Answer:
New Jersey law does not require that an employee's job be held open for an employee out on workers compensations for as long as it takes that employee to recover from a work related injury.
Please note: There are numerous other New Jersey laws that must be considered when determining whether or not to replace this employee. |
| Do Not Resuscitate Directives - Are You Handling Them Correctly? |
Do Not Resuscitate (DNR) directives demand the attention of numerous parties at skilled nursing facilities. Is your staff handling them correctly?
Presently a resident and/or responsible party can make the decision for a DNR or DNT (do not transfer to the hospital) and the resident and/or responsible party can sign a form to validate the decision. The conversation regarding the decision must be documented in the IDPN notes by the nurse, the physician and a social worker.
The DNR/DNT form should be signed by the resident (when possible), the responsible party, the physician and a social worker. Once signed by all parties, the form is kept in the medical record with a copy in the social service file.
If the resident's condition is such that a change in condition is eminent, the responsible party and nursing staff can discuss the DNR and/or DNT decision. The form can be faxed to the physician for a signature pending the next visit at which time the physician can sign the form and document the conversation.
If the resident arrives from the hospital with a copy of a DNR, it should be included in the admission orders as a telephone order that will remain in effect until the physician visits and discusses the DNR with the resident and/or responsible party and signs the form. On the next visit the family, nurse and social worker can complete the form.
Keep in mind that your social worker must review advanced directives with each resident on admission, readmission and at least annually to see if the residents wishes have changed.
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| The Do's and Don'ts of Collecting Accounts Receivables |
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Register for FREE One Hour Teleconference
Wednesday, May 26, 2010 at 10:00 am
Join David Barmak on a free teleconference to learn the do's and don'ts of collecting accounts receivables. Learn how to minimize your exposure to loss of revenue and how to properly and legally collect past due accounts. David will discuss the Federal Fair Debt Collection Act and its ramifications for you, your staff, your ownership and their business. Please call Saul A. Fern at (609) 688-0055 at the Law Offices Of David S. Barmak, LLC to register for this free one hour teleconference.
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| New York State Legislature Passes Family Health Care Decisions Act (FHCDA) | |
The New York State Legislature recently passed the Family Health Care Decisions Act (FHCDA). The FHCDA amends public health law to allow family members to make health care decisions including decisions about withholding or withdrawal of life-sustaining treatment, on behalf of patients who lose their ability to make such decisions and have not prepared advance directives regarding their wishes.
The Act establishes a protocol by which health care providers can determine whether a patient in a general hospital or long term care facility has decision-making capacity and for patients without such capacity requires the selection of a surrogate from a list of individuals ranked in order of priority, including family members, domestic partners and close friends. The FHCDA contains various safeguards to prevent inappropriate decisions including procedures for a patient, family member or physician to assert objections to the selection of a particular person as a surrogate or to a decision made by a surrogate.
The addition of this priority listing will impact the rights of family members but more significantly domestic partners and close friends to make decisions where they have not previously been able to do so for lack of clear and convincing evidence to show that they are acting as the individual would have if competent. An advance directive, such as a living will or a health care proxy can serve as clear and convincing evidence of a patient's wishes, but many people do not prepare such directives while they are competent to do so.
In review, the FHCDA addresses these significant points:
- Applicability:
- Does not impact residents who have designated a health care agent in compliance with all New York State applicable rules and regulations for Health Care Proxy.
- Does not impact residents for whom a guardian has been appointed under article 17A of the Surrogate's Court Procedure Act or pursuant to OM or MRDD regulations.
- Establishes procedures for the determination of incapacity for purposes of authorizing surrogate decision for adult residents.
- Lists in order of priority who may act as a surrogate and the role and responsibilities of the surrogate.
- Outlines the role of the physician inclusive of procedures for addressing the physician's objections to the decisions of a surrogate.
- Establishes a procedure for making health care decisions for adult residents who have lost decision making capacity and have no available family member or friend to act as a surrogate.
- Outlines the criteria for the establishment, organization and responsibility of an Ethics Review Committee.
- Clarifies the roles and responsibilities of home care services, hospice, emergency medical services and hospital emergency personnel with regard to Non-Hospital DNR orders.
Implications For Nursing Homes:
In view of the changes in the manner in which advance directives are executed for residents determined to be without capacity, it would be wise to review the facility's policies and procedures for advanced directives. |
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| Law Offices Of David S. Barmak, LLC |
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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. Also he now serves as Chair of the Health and Hospital Law Section of the New Jersey State Bar Association. 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
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