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 12                             ADVERTISEMENT                                                 DECEMBER 2011

In This Issue
Medicaid Recoupment BEWARE
National Labor Relations Board Requires Posting of Notice of Employee Rights by January 31, 2012
Implementation of the New Jersey Violence Prevention in Health Care Facilities Act due by March 6, 2012

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David Barmak, Esq. 


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Brandon Goldberg, Esq.


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Medicaid Recoupment BEWARE

A Description of an Event Involving a Family Member Abusing a Resident:


Jennifer was a Medicaid resident admitted to our client's nursing home for long term care with  complications from a traumatic brain injury which required a tracheotomy and a feeding tube.  She was also in a coma and was totally non-communicative, non-responsive and dependent with all activities of daily living.  On a Saturday night after visiting hours had ended, the nurse assigned to Jennifer's care saw the husband still in the room with his wife.  The nurse gave him a verbal report on how Jennifer was doing and continued on her rounds. 


About an hour later, the nurse noted that the door to Jennifer's room was closed.  She knocked and entered the room to find the husband alone with his wife.  The nurse reported that the bed was raised to chest level, her legs were spread with her ankles hooked over the bed rails and her gown was pulled up around her waist.  The nurse observed the husband penetrating his wife's vagina with an ungloved hand.  The nurse insisted on finding out why this was happening.  The husband became angry and ordered the nurse to go away.  He told the nurse that everything was fine. The nurse turned around and walked out the door. 


Even though the nurse was a recent graduate of nursing school, she had the good sense to immediately call the nurse supervisor.  The nurse supervisor told the nurse to call the Director of Nursing who was at home. The Director of Nursing told the nurse to check on Jennifer to make sure she was ok but to do so only after the husband left. The Director of nursing questioned the appropriateness of intruding on the couple because they were married.




Now when we were notified, our immediate concern was to protect Jennifer. The initial issue was whether or not Jennifer was being abused by her husband.  Sexual contact, even between spouses, requires mutual consent. Because a comatose spouse is unable to give consent, it seemed to me the husband was criminally assaulting his wife. 



Even if there was doubt about the assault, the nursing home and the nurses had a legal responsibility to protect Jennifer.  The nurses should never have allowed the husband to continue to stay in the room with Jennifer. The nurses were required by NJ law to report the husband's actions to the police and let the police decide if a crime had been committed. Recent federal legislation also requires that if there is suspicion of a criminal act against the elderly, including serious injury or assault, the nursing home must call the local police and the Department of Health.



Now what if the nursing home had permitted the husband to continue to visit his wife behind closed doors, despite reasonable suspicions that he was abusing his wife because the DON thought that marital relations trumped all other rights? Aside from the legal and ethical need to err on the side of protecting the resident by calling the police, we were concerned that the nursing home's continued silence and inaction would lead to allegations of substandard quality of care.


The Patient Protection and Affordable Care Act (PPACA) requires State Medicaid agencies to contract with Recovery Audit Contractors, also known as RACs, to identify and recover overpayments to healthcare providers.  RACs are not only expected to reduce Medicaid costs but to advance the quality of care and promote public health. RACs attempt to do this by identifying improper payments resulting from incorrect payments, non-covered services including services that are not reasonable and necessary, incorrectly coded services and duplicate services. Compliance audits are conducted to also ensure that healthcare providers are providing appropriate care and billing with respect to Medicaid's specific coverage, documentation, billing, reimbursement and    - please note - quality of care requirements.


From a Medicaid liability perspective, we figured that a Medicaid RAC auditor would easily discover this situation and demand the repayment of all Medicaid moneys paid to the nursing home for Jennifer's care. 


The PPACA also mandated the creation of State Medicaid Fraud Units. The NJ Medicaid Fraud Unit investigates and prosecutes fraudulent activities by healthcare providers. This includes complaints of patient abuse or neglect by healthcare providers.


Healthcare fraud used to require intentional conduct and abuse of patients; however, under recent legislation, namely the Fraud Enforcement and Recovery Act of 2009, fraud includes a failure of compliance systems and controls.  Intent is no longer considered paramount to proving healthcare fraud.  Patient abuse is now considered to include practices that are inconsistent with sound medical or professional practices. 


We have found the NJ Medicaid Fraud Unit to be very aggressive. We can easily imagine if the husband  had continued to abuse his wife, the Medicaid Fraud Unit would insist that the nursing home was complicit if it did not take all required steps to protect her once the staff became aware of the possibility of abuse.  The Fraud Unit could also claim that continued abuse represents substandard quality of care thereby transforming all claims for payment into false claims resulting in possible treble damages and penalties.


From a Medicaid repayment and fraud perspective, what if instead of an abusive husband we have a similar scenario with a professional employee like a nurse or nursing assistant who is sexually abusing one or more residents in a nursing home?


What if the nursing home knew or should've known that the employee was abusing residents, or if the nursing home had not done a mandatory background check as required by law? What if the nursing home didn't take advantage of its ability under the New Jersey Nurse Cullen law to get a reference from a former employer about the employee's possible previous professional misconduct with respect to adverse patient care or safety?


A healthcare provider's failure to learn of an employee's criminal background or to determine that an employee's license or certification has lapsed is a violation of law, is admissible evidence of substandard care and could ultimately constitute a false claim.  A failure to determine an employee's ineligibility to participate in the care of a Medicaid patient is also a violation of law and may constitute a false claim.      




A corporate compliance program has been affirmed over and over again by federal and state authorities as essential in protecting your patients. Your compliance programs must have a reasonable reporting requirement. All of your employees must be trained as to whom they report alleged fraud and patient abuse. Your compliance programs must have a Compliance Officer who will follow up all complaints to ensure that action is taken and that intervention is successful. To do less is to expose yourself to possible accusations of substandard quality of care and fraud by Medicaid recovery units.


National Labor Relations Board Requires Posting of Notice of Employee Rights by January 31, 2012


The National Labor Relations Act (NLRA) guarantees the right of employees to organize and bargain collectively with their employers and to engage in other concerted activity or to refrain from engaging in any of these activities.


The poster outlining these rights must be put in a conspicuous place where other notifications of workplace rights and employer rules and polices are posted.  It must be in place by January 31, 2012.  The posting requirement applies to all private sector employers including nursing homes with a gross annual volume of at least $100,000 and health care providers with a gross volume of at least $250,000.


The poster can be obtained at no cost by contacting the NLRB at its headquarters or its regional, sub-regional or resident offices.  Employers can also download the notice from the Boards' website at and print it out in color or black and white on one 11 by 17 inch paper or two 8 by 11 inch papers taped together. Finally, employers can satisfy the rule by purchasing the poster from a commercial printer and then posting it.

Implementation of the New Jersey Violence Prevention in Health Care Facilities Act due by March 6, 2012


Your violence prevention committee that should have been established previously is required to develop and maintain a detailed, written violence prevention plan that identifies workplace risks and provides specific methods to address them by March 6, 2012.  Besides the requirement of quarterly meetings of the violence prevention committee, other requirements imposed upon facilities and their violence prevention committees include an annual violence risk assessment; conducting violence prevention training; incident response, investigation and reporting; record keeping & past incident response.




Wishing A Happy Holiday Season To You and Your Families From The Staff Of The

Law Offices Of David S. Barmak, LLC

Law Offices Of David S. Barmak, LLC
Our firm is dedicated to helping health care providers, in particular skilled nursing facilities, manage risk through a comprehensive compliance program that focuses on early intervention through on-site training, communication, policy & procedure review, monitoring and consultation. The program includes on site training in the areas of, but not limited to, fraud & abuse, HIPAA privacy and data security, employment, emergency preparedness, workplace violence, clinical documentation, sexual harassmentand social networking.

The firm's compliance team includes experienced compliance attorneys, clinical nurses, physical therapy and pharmacy consultants who are available to assist clients with pre and post Department of Health (DOH) survey procedures, respond to DOH questions, prepare for re-inspections, minimize risks for deficiencies, offer support to Directors of Nursing and correct care plans, incident reports and therapy notes, review Medicare billing, audit and review PPS/Medicare/Medicaid insurance documentation.


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