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 5                               ADVERTISEMENT                                          MAY 2010

In This Issue
Guardianships Can Be a Long Term Care Facility's Best Friend
Employee's Privacy Rights Are Limited When Using Company Computers
The Do's and Don'ts of Collecting Accounts Receivables
Workplace Privacy and the Law "A Work in Progress"
Breach of Protected Health Information (PHI) Must Be Reported and Investigated
Repeat Violators of New Jersey's Wage, Benefit and Tax Laws May Face New, Severe Penalties Effective July 13, 2010
For Your Information
Medical Equipment Owner Guilty of Ten Counts of Health Care Fraud
David S. Barmak, Esq. 
David Photo
Licensed to practice law in the States of New Jersey, New York, Connecticut and Pennsylvania 
Guardianships Can Be a Long Term Care Facility's Best Friend
Many times a long term care (LTC) facility has no one to turn to during a medical emergency to obtain necessary authorization to provide appropriate medical care for one of its residents.  Also too often a LTC facility is ignored by family members when it comes to applying for or tapping available financial assets to pay for the care provided for a resident.
A guardianship may be an appropriate legal solution to help your facility to take action in these and other situations.  A guardian may be appointed by the court if it is proven that the person is a danger to themselves, incompetent to care for themselves, or is facing financial abuse situations including having potential or actual financial assets which are not being marshaled for the benefit of the resident and the long term care facility either because there is no existing family or there is family but they are racked by dissension.

There are two types of guardianships: Guardian of the person (this person will make decisions regarding medical care and daily living needs) and Guardian of the estate (this person handles all financial matters and is the guardian of property).  A guardian who does both is called a "general guardian."  All types of guardians have to be approved by the court in order to act as a guardian. If a family member or friend who wants to be the guardian is not approved, the court will appoint an independent guardian.
Employee's Privacy Rights Are Limited When Using Company Computers
The New Jersey Appellate Court has ruled that an employee has a limited right to privacy when using his/her employer's computer for personal matters, reversing the trial judge's decision that agreed with the employer finding no privilege and holding that the employee waived any right to privacy by virtue of the express language in the Employee Handbook.

In Stengart v. Loving Care Agency, Inc et al the Appellate Court found that the employee had a legitimate expectation of privacy when she accessed her personal email account from the company's computer in order to communicate with her attorney despite the employer's broad electronic communication policy which disclaimed any expectation of privacy and stated that communication using the company computer became company property while permitting only occasional personal use.
In reaching its decision, the Court acknowledged the broad company policy in the Employee Handbook, yet found that it simply went too far.  The Court formulated a new rule that employers can only access employee personal email communication and internet usage if there is a legitimate business reason to do so.

As  a result of this decision employers need to revisit their Employee Handbooks and electronic communications polices making certain that polices are clearly expressed and unambiguous that the company computers are for company business and that all communications made using the company computers are accessible to the company and will not be considered "private."  Also employers may need to exercise restraint in monitoring employee use of electronic equipment in the workplace.
The Do's and Don'ts of Collecting Accounts Receivables

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.
Workplace Privacy and the Law "A Work In Progress"
Workplace privacy is an evolving legal landscape in the new world of electronic and digital communications. The United States Supreme Court has before it a case involving the high tech world of text messaging that has potentially huge implications for the privacy rights of senders and receivers and for workplace communications. City of Ontario, California v. Quon is the Court's first foray into workplace monitoring of electronic and digital communications. The city asks the justices whether a member of its police SWAT team had a Fourth Amendment "reasonable expectation of privacy" in text messages transmitted on his SWAT pager.  The case also raises the issue of whether the senders of messages to the SWAT pager had their own reasonable expectation that the city would not review their messages. It will be interesting to see how the Court handles the issues raised in this case.
Breach of Protected Health Information (PHI) Must Be Reported and Investigated
Recently the Department of Health and Human Services began enforcing sanctions against health care providers for failure to provide breach notifications of unsecured Protected Health Information (PHI) within their organizations.  HITECH (Health Information Technology for Economic and Clinical Health Act) identifies requirements for health care providers and vendors regarding PHI breach notifications that are subject to HIPAA.
With the passage of HITECH, an internal investigation must be conducted upon awareness of a potential breach.  A single notification violation can carry a fine of from $10,000 to $50,000. HITECH also imposes stringent new requirements on business associates including but not limited to the reporting of potential breaches of PHI.
Repeat Violators of New Jersey's Wage, Benefit and Tax Laws May Face New, Severe Penalties Effective July 13, 2010
This new law effective July 13, 2010 provides that once a company has failed - for even one employee - to maintain all required records regarding wages, benefits, taxes or other contributions due, it will face not only the ordinary fines or penalties but it will now have to face an audit from the New Jersey Department of Labor and Workforce Development (NJDOL) within 12 months after the initial determination.
If this subsequent audit reveals that the company has again failed to maintain records and pay wages, benefits or taxes the NJDOL can direct other governmental agencies to suspend or revoke state issued licenses held by the company.   The NJDOL has the discretion to decide how long any suspension will be and the only protection offered to businesses is a right to a hearing before any final orders take effect.
The new law prohibits companies who have had their licenses suspended or revoked to reopen utilizing a new name.  It also covers successor companies and broadly includes the suspension of such companies as well.
In addition the law states that employers cannot discharge or discriminate against an employee because he/she made an inquiry or complaint under this law to his/her employer.  If they do they will open themselves up to severe penalties including paying all legal costs, all wages and benefits lost, plus punitive damages equal to two times the lost wages and benefits and the employer is required to offer reinstatement to the discharged employee. 
In addition, under this new law, all New Jersey employers will be required to post a notice in a form prescribed by the NJDOL and provide every employee with a written copy of said notice that will include information as how an employee may contact a NJDOL representative to report violation of the law.  This notification requirement applies to every business not just those found to have violated the wage, benefits and tax laws. With the passage of this new legislation it is very clear that there are no run-of-the-mill employee wages, benefits or tax complaints or any such thing as a routine NJDOL audit.
For Your Information
Is it necessary to re-sign the admission agreement for readmissions? We spend a lot of time re-signing for some residents out for less than a week.
If you maintain a "bed hold" for the resident, it is not necessary to have the admission agreement re-signed. If the resident leaves without an expectation of returning and then returns, a new admission agreement has to be signed.
Medical Equipment Owner Guilty of Ten Counts of Health Care Fraud
Maria A. Aloise, owner of Aetna's Medical Equipment, Inc. a Hialeah, based company was convicted after a six day trial before a federal jury in Miami, Florida.
Aetna's Medical Equipment submitted approximately $1,421,346 in fraudulent claims to Medicare seeking reimbursement for various types of durable medical equipment (DME) including oxygen concentrators, urinary leg bags, etc. The DME had not been legitimately prescribed by health care providers and had not been provided to Medicare patients.  The defendant executed her fraud using forged prescriptions, certificates of medical necessity and delivery receipts. She also used identifying information of numerous Medicare beneficiaries and physicians. Aloise faces a maximum sentence of 10 years imprisonment on each of the health care fraud counts.
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.  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
Copyright, 2010.  Law Offices Of David S. Barmak, LLC.  All rights reserved.
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