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 12, Issue 7                               ADVERTISEMENT                                                     JULY 2011

In This Issue
Compliance Programs Can Reduce Likelihood Of False Claims Lawsuits - Qui Tam Lawsuits by Residents
Do's & Don'ts Of Effective Documentation

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David Barmak, Esq. 
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Compliance Programs Can Reduce Likelihood Of False Claims Lawsuits - Qui Tam Lawsuits by Residents

The following story is based upon a lawsuit we handled involving an outpatient rehab clinic as well as numerous discussions with the US Attorneys' office and the NJ Medicaid Fraud Unit.  The story has been modified to take place in a nursing home because the lessons are transferrable. 


A physical therapist worked for Moosehead Physical Therapy*.  Moosehead Physical Therapy had a contract to provide inpatient rehab for Beavertail Nursing Home*. The physical therapist alleged that Moosehead's Director often met with the physical therapist and demanded that she change her documentation in order to increase the billing code for certain services rendered to the residents.  The physical therapist claimed that she always refused because she was aware that improper documentation could result in upcoding and improper payments for services rendered by the physical therapist.  Moosehead's Director, of course, denied ever pressuring the physical therapist into falsifying her documentation. The Director correctly acknowledged that false documentation and upcoding would violate federal and NJ laws that required Moosehead to bill only for services actually provided.  Eventually the Director fired the physical therapist.


The physical therapist sued Moosehad Physical Therapy for wrongful termination claiming that the Physical Therapy Director had fired her for refusing to falsify documentation that would have resulted in upcoding certain services rendered which, in turn, would have increased reimbursement.  She also simultaneously filed a NJ False Claims Act lawsuit and a federal False Claims Act lawsuit against only Beavertail Nursing Home claiming that the nursing home had benefited from years worth of fraudulent upcoding and unlawful reimbursement.


The wrongful termination lawsuit settled; however the NJ False Claims Act and federal False Claims Act lawsuits still needed to be addressed. Beavertail found out about these lawsuits, even though they were under seal, during the employment lawsuit settlement negotiations. The US Attorneys' office and the NJ Medicaid Fraud Unit ultimately declined to "intervene" or "take on" these false claims lawsuits. Their primary reason was the fact that Beavertail Nursing Home had an effective compliance program.


A nursing home is ultimately responsible for everything that takes place in its rehab department including the quality of care provided and the billing for services rendered; however, very few nursing homes actually oversee what the rehab department does. A compliance program can provide real protection for a nursing home and still allow the rehab department to function somewhat autonomously.


The key to persuading federal and state fraud units to walk away from a false claims lawsuit brought against your nursing home by a resident, family member or employee, is to have an effective compliance program.  Your compliance program must have the following basic components to be deemed effective: 

  1. You must designate a compliance officer and compliance committee;
  2. You must have effective communication between your employees and upper management, including some sort anonymous reporting system, like an 800 telephone number, to report complaints.
  3. You must create a system for maintaining complete and accurate medical record documentation.
  4. You must conduct effective compliance training and education for staff.
  5. You must require employees to promote and adhere to the elements of the compliance program as part of evaluating the performance of all employees.
  6. You must enforce the compliance program standards through well-publicized disciplinary guidelines.
  7. You must create an auditing and monitoring system. I strongly recommend that you insist that your rehab companies provide you a copy of their monthly internal audits as well as report on their audits during your quarterly QA meetings.
  8. You must respond to detected offenses and develop corrective action plans.
  9. You must periodically assess your compliance program.
  10. You must have policies and procedures, including a  statement of corporate philosophy

    and code of conduct.

For further information on how we can assist and guide you in developing an effective compliance program please contact us.


*Not the true names of the firms written about in this article.

Do's & Don'ts Of Effective Documentation


Do's: Keep Accurate Records


-      Time & Date Entry

-      Write Legibly

-      Identify the Problem

-      Document at the Time of the Event

-      Record Activities in Order of Occurrence

-      Records Activities Objectively

-      Fill in All Spaces

-      Complete Headings

-      Use Approved Abbreviations

-      Document Factual Information

-      Indicate the Reason for Correction/Change

-      Enter an Addendum to Correct Misinformation

-      Cross Out with Single Line

-      Initial Correction

-      Sign and Date Your Entry



Don'ts: Practices to Avoid


-          Do Not Chart Ahead of Time

-          Do Not Use White-Out, Erase or Obliterate Entry

-          Do Not Write Over Entry

-          Do Not Make Assumptions

-          Do Not Alter the Record

-          Avoid Using Labels to Describe Clients

-          Do Not Assign Causation to Events

-          Do Not Leave Blanks

-          Do Not Refer to Facility Issues

-          Do Not Use "Mistake" or "Error"


Medical Documentation Basics


-          Be Complete

-          Be Objective

-          Be Consistent

-          Be Accurate

-          Be Legible

-          Be Professional









Mission Statement - Reduce Your Risk Now

Our firm is dedicated to helping health care providers, in particular long term care facilities and their insurers, reduce costs by minimizing the risk of adverse events.


We do this by being proactive (pre-litigation strategies). This includes training and education of employees, review of policies and procedures, implementing communication channels, getting feedback through interviews and focus groups, and continuous monitoring and auditing. Vital to employee education is documentation training and effective communication training. 


If an adverse event occurs, our response is promptly reactive (pre-litigation strategies). Mandatory, non-binding mediation is utilized whenever possible. Our goal is to quickly resolve disputes before they escalate and require resolution through the judicial system. To avoid a repeat occurrence, we continue staff training and education with a focus on prevention, as well as review and revise policies and procedures for greater effectiveness.
If a lawsuit is filed, the risk that existed has been realized (litigation strategies). Defense analysis, expert witnesses, focus groups, and mock trials are all part of litigation defense. Finally, implement post-litigation risk management strategies to remedy the situation.

A comprehensive Compliance Program (also known as a Risk Management Program) focuses on early intervention through training, communication, and policy review. Monitoring and auditing are key elements to reduce medical liability exposure and improve patient safety.


Our firm offers numerous specialty risk management programs including a pharmacy risk management program which involves the review of skilled nursing facility pharmacy contracts and monthly pharmacy bills, assistance in renegotiating pharmacy contracts with an effort to obtain favorable pricing, evaluate Medicaid pending claims for credit after residents become Medicaid approved and/or evaluate pricing for Medicaid pass thru drugs.


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.


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Copyright, 2011.  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.