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 10                               ADVERTISEMENT                                OCTOBER 2010

In This Issue
Our Clinical Nurse Consultant Explains Her Role At Your Facility In This Interview
What To Do If Federal Agents Threaten to Knock Down Your Door
David S. Barmak, Esq. 
David Photo
Licensed to practice law in the States of New Jersey, New York, Connecticut and Pennsylvania 

Our Clinical Nurse Consultant Explains Her Role At Your Facility In This Interview

Q: What role do you see yourself playing with the skilled nursing facilities ("SNF") that you provide consulting for?

A: I go in and meet with the administrator, Director of Nursing ("DON") and nursing management to discuss what they perceive as the needs of their facility because they know best what their needs are. We collaborate and develop a problem list and work from there. I focus on compliance issues that have been in the past, are in the present or could be in the future associated with Department of Health ("DOH") deficiencies.  For example: a level G deficiency - we identify the underlying root causes; develop and implement the interventions for prevention and on-going monitoring. The key to our service is that we insert ourselves into the equation, shoulder to shoulder, as part of the solution rather than just identifying what's wrong and leaving the facility with a laundry list of things to do to correct what's wrong. We help you correct the concerns and then continue as part of the on-going monitoring and audit system.


Q: What kind of a relationship do you find evolves with the nursing management that you assist?

A: I provide a support system for those at the top because that's where the buck stops.  Administration and nursing management know that my team and I are available to touch base with and collaborate with respect to specific situations, especially in the area of minimizing risk to residents and being cited for deficiencies. We interact with the staff in all departments and develop an ongoing dialog.

Q: But can't SNFs do this themselves?

A: Not always because very often nursing management is inexperienced or new in the position. They really need a mentor or a guide to provide the best approach to certain particular situations. Very frequently the management staff spends a majority of the day "putting out fires" as opposed to concentrating on other important issues.

Q:  Would you say that with the regulatory agencies breathing down the necks of the SNFs for regulatory compliance, with the Medicare / Medicaid fraud units and Office of Inspector General focusing on reimbursement issues and the resident's attorney trying to squeeze every drop of money out of SNFs based upon their perceived lack of quality of care, that the position of DON might just be too much for one person to handle?

A:  Yes. It really is too much for one person to keep an eye on the wolves outside as well as the residents and staff inside.  Please remember that the DON job is 24/7 - it never ends.  Every aspect of care and every department of the SNF links back to nursing: dietary, social service, activities, etc.  Everything is interrelated to nursing. The DON is required to be the resource for everyone and to be able to assist in the resolution of all of the issues that arise.


Q:  Would you say that the DON with the Administrator is, on the quality of care side of the equation, the target for all inquiries from federal and state agencies and therefore that they must take ultimate responsibility for professional liability issues?

A: Yes.  The DON is responsible for hiring, training and monitoring the staff as well as directing the nursing care. This is exactly what the DON's job is - to direct the clinical care. The DON must know the basic data with regard to all of the residents and take responsibility for the professional staff that is left in charge or delegated responsibility to care for the residents in the DON's absence. 


Q:  Does that include the rehab dept?

A: No.  The DON is not responsible for the rehab dept but the DON is responsible to ensure that the documentation is adequate and appropriate with regards to residents in therapy as well as being responsible for identifying and ensuring that care is provided for those residents who experience a functional decline and require therapeutic treatment to minimize the risk of functional loss.


Q: What role does the DON play with respect to reimbursement and isn't reimbursement the responsibility of the finance department?

A: Nursing is responsible to identify, with the physicians, clinical issues that are the basis for the provision of nursing care as well as therapy and to ensure that documentation exists throughout the course of treatment to indicate the resident's response to nursing care and therapy, including pain management and safety precautions to minimize the risk of any type of injury.


Q: I've noticed that there have been a flood of new laws and regulations which at first glance wouldn't seem to be the concern or to fall within the realm of the DON.  Is this an accurate perception? 

A: Can you give me an example?


Q: Sure. Let's take the New Jersey Violence Prevention Act. This relatively new law requires that SNF, among other healthcare facilities, develop and implement programs to protect employees from abusive behavior by residents. How might this involve clinical issues that the DON must address?

A: The DON is required to ensure that clinical assessments are conducted for all residents to identify what triggers that so called abusive behavior. For example: unexpressed pain is very often the cause of aggressive behaviors such as resistance to care. Often a psychotropic medication is ordered for the resident to facilitate the time during which care must be provided.  An alternative which I have repeatedly seen work wonders is to administer Tylenol an hour or so before the care is to be provided. Often the resident is a different person when the caregiver comes in to provide care an hour or so after the Tylenol is given. Why? Because the Tylenol alleviated the aggressive symptoms that stemmed from the unexpressed pain.  The DON is instrumental in assessing this type of intervention as a first step possibility before moving on to a powerful psychoactive medication which carries with it many side effects.  This is an example of the critical role that the DON plays in dealing with the many new laws and regulations impacting on our industry. The DON is responsible, with the management team, for the safety of the resident as well as the staff.


Q: I understand now that the DON job may very well be too much for one person to handle by herself and that the DON must rely on a qualified and trustworthy support staff. I can't help but wonder who trains a DON to handle this multifaceted position with all of these very real potential liabilities? Is this something that's taught in nursing school?

A: No.  Most DONs will agree that this ability comes from on the job training; you need to learn as you go, very often under "a baptism of fire".


Q: In your experience, what background do most administrators have?

A: Most administrators come right from a college background and most do not have a medical background so it is very difficult for them to identify the areas that are potentially risky; the areas that could lead to potential litigation or deficient practice. Most administrators are not really equipped to help or provide the real clinical support that the DON needs. Yet administrators are responsible for everything that goes on in their facilities.


Q: So there are two distinctly different professionals in a SNF each of whom takes responsibility for a different half of the facility: the administrator for administration and overall responsibility; the DON for clinical responsibility. 

A: Yes, in general that's true.


Q: Well if that's the case, how does an administrator know that the DON is doing that which is required by the feds, the state, families, residents, etc.?

A: The only way for the administrator to really know is through the measurement of clinical outcomes with the facility's quality improvement program. The most direct and easiest way to assess the effectiveness of a facility's clinical program is to look at the resident council minutes, resident survey analysis and DOH / Centers for Medicare and Medicaid Services ("CMS") survey results. Unfortunately, the survey results include deficiencies in practice after the fact. All of these sources of information provide the administrator with identification of critical areas of concern about the clinical program. The goal for the administrator and the DON is to provide services through the regulatory process and to identify deficiencies before the federal and state surveyors do.


Q: What do your SNF clients hire you to do?

A: Our clients will call us if they have issues with a survey report, an Ombudsman complaint as well as for quarterly review of their Quality Improvement Program. We review incidents / accidents, infection control, psychotropic documentation and Medicare documentation to enhance the facility's performance and compliance. If there is a new member of the nursing management team, in particular the DON or the Assistant Director of Nursing ("ADON"), we have a mentoring program to guide that professional through the orientation phase and provide on-going mentoring 24/7 to help them deal with any crisis or particular issues that arise.


Q: So in other words, you work on behalf of the administrator to support the on-the job training that you earlier identified is the primary way that a DON learns to do her job?

A: Yes


Q:  What are the biggest issues that you are currently offering support of to your client DONs?

A:  Documentation issues, DOH survey compliance issues, preparing for case mix, changes in the MDS to the 3.0 system, care planning and mentoring of  new DONs.


Q: What roll do you play in supporting a SNF's corporate compliance program?

A:  As part of our compliance program that we develop and implement for our SNF clients, we look at where the facility and its clinical programs are, and then we move forward to enhance the current system of care to ensure that everything that's being done is being done correctly. We take into consideration the past and we look forward particularly in the areas of rehabilitation and the billing process to ensure that all of our areas - clinical and billing - are in synch with each other. For example: the UB4 must match the admitting diagnosis which must in turn match the rehabilitation therapy provided. 


Q: So you really look at systems.

A: Yes. We are constantly reviewing, developing, implementing, monitoring and auditing clinical and reimbursement systems as well as ensuring the validation of the necessity for the prescribed nursing and rehabilitation therapies to ensure compliance with federal and state laws and regulations.


Q:  Thank you very much. Our interview has been very informative.

A:  My pleasure.

What To Do If Federal Agents Threaten To Knock Down Your Door

It is 7:30 AM on Wednesday. Ten federal agents with guns and search warrants appear at your door. They threaten to break the door down unless granted admission.  Your employees open the door. The federal agents enter and then lock your doors, telling your employees that they may not leave. The federal agents confine your employees to one office while the agents literally begin to cart off records of all types, including but not limited to, active and inactive medical records, contracts, employment records and billing documentation. The federal agents even appear ready to cart off your computers because of the information that might be on the computer hard drives.


Or how about this more likely scenario:  During routine business hours, an investigator from the state Medicaid Fraud Control Unit appears with the intention of reviewing documents and interviewing employees.


In either situation, would your employees know how to respond? Have your employees been properly trained to know how to respond?  The procedures discussed below apply to both scenarios.


Compliance Program


An effective compliance program must establish a policy to deal with an orderly response to government investigations to enable the company to protect its interests as well as appropriately cooperate with the government investigation.  A well rehearsed policy and procedure is required to address either of the above scenarios. 


Request for Interview


When government agents or investigators appear on-site and request an interview with an employee, the President, Compliance Officer and Compliance Attorney must be notified immediately.  An employee is under no obligation to consent to an interview although anyone may volunteer to do so. If an interview is agreed to, the staff member should always be polite and ask for the name, agency affiliation, business telephone number and address of all investigators as well as the reason for the visit. The investigator must be asked if there is a subpoena or warrant to be served and for a copy of same.  The interview may be stopped at any time with a request that the investigator return when the Compliance Attorney can be present. It is strongly urged that the company not consent to any interviews without the Compliance Attorney being present. While employees have a right to their own individual legal counsel, it is recommended that the company's Compliance Attorney be present during any interviews and that staff be advised that the company's Compliance Attorney will at least initially be available to advise the employees as to how to proceed; however, it must be made clear to the employees that the Compliance Attorney represents the company and not them. If an employee chooses to not respond to the investigator's questions, the investigator has the authority to subpoena the employee to appear before a grand jury. Any staff member contacted by an investigator outside of work should also immediately notify his or her supervisor and provide as much information and documentation about the investigation as is possible. This notification must find its way to the President, Compliance Officer and Compliance Attorney.


The Search


The company should request that the investigator wait until either the Compliance Officer, Compliance Attorney or President arrive. Whoever arrives first is referred to going forward as "the employee in charge".  While the investigator waits for the employee in charge, the company's employees must not alter, remove or destroy permanent documents or records of the company. Once an investigation begins, the destruction portion of any policy on record retention is suspended.  If the investigator presents a search warrant or warrant, the investigator has the authority to enter the premises, search for evidence of criminal activity and seize only those documents listed in the warrant. No staff member has to speak to the investigator but must provide the documents requested in the warrant. A copy of the warrant with the affidavit providing reasons for the issuance of the warrant must be obtained.


All staff members should notify the investigator that they request an opportunity to consult with the Compliance Attorney before the search begins and certainly before consenting to any interviews with the investigator. If the Compliance Attorney can only be reached by telephone, put the Compliance Attorney directly in touch with the investigator.   The Compliance Attorney will advise the investigator that the search is objected to, unjustified because the provider / supplier is willing to voluntarily cooperate with the government and that the search will violate the rights of the provider / supplier and its employees. Under no circumstances should staff obstruct or interfere with the search. If cooperation is required, then staff members should indicate that their cooperation does not constitute consent to the search. A log of all documents, with copies if possible, and the information contained in the documents given to the investigator, should be tracked. This is especially true if medical records are given to the investigator.  A parallel inventory of the documents seized is the ideal way to keep track of what documents are provided to the investigator.  If the investigator makes it difficult to copy and itemize documents seized during the search, the employee in charge must request an inventory of the seized documents before the investigator leaves the premises. A copy of the warrant should be annotated with the date and time that the search was completed as well as signed by the investigator with his / her full title, address and telephone number.


The employee in charge should remain with the investigator at all times. Investigators should never be left alone on the premises and no employee, other than the employee in charge, should be left alone with the investigator. 


It is essential, as part of an effective compliance program, that the employees of a provider / supplier be fully familiar with the appropriate procedure to follow should a government agent or investigator unexpectedly appear at your door. Your Compliance Attorney should be immediately notified, along with the President and Compliance Officer, any or all of whom will then take charge of the situation, direct employees and cooperate while minimizing both disruption and potential liability. 

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. 

He is the immediate past Chair of the Health & 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.
No portion of these materials may be reproduced by any means without the advance written permission of the author.