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 13, Issue 34                            ADVERTISEMENT                                                                   APRIL 2012

In This Issue
Are Arbitration Provisions in SNF Admissions Agreements Enforceable?
How To Select The Compliance Officer
Rhonda Duer, Barmak Law Firm Paralegal in the Spotlight
Calendar of Events
Reminders

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David

David Barmak, Esq. 

Allison

Allison Whitehead, Esq. 

Brandon

Brandon Goldberg, Esq.

 
Jennifer Cohen

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Click on Attorney's Name 

Are Arbitration Provisions In SNF Admission Agreements Enforceable?

Happy Acres Nursing Home has a long standing policy of including mandatory arbitration provision in its admission agreement. This provision requires a resident and / or family to accept binding arbitration to resolve disputes involving the resident's well being and precludes lawsuits. Enforceable? According to a recent U.S. Supreme Court decision, there now is a likelihood of enforcement in state courts depending upon the form and procedure utilized by Happy Acres Nursing Home.

    

The U.S. Supreme Court has upheld a West Virginia law that allows nursing homes to use pre-dispute arbitration agreements with residents. These arbitration agreements are generally used to try to prevent residents and/or their families from suing the nursing homes in professional liability cases.  In the recent case, [Marmet Health Care Center, Inc. v Brown 561 US (2012)], the Supreme Court ruled that the Federal Arbitration Act (FAA) preempted a Supreme Court of Appeals of West Virginia decision.

The FAA basically dictates that arbitration agreements generally are enforceable and take priority over any state law to the contrary. The only exceptions involve situations of duress (where individuals are forced to sign agreements under pressure) or are deemed contracts of adhesion (the agreement unfairly favors one party). The case originated from three medical malpractice law suits filed by the families of three residents who alleged that the nursing homes' negligence had resulted in the death of their family member. In each of the three cases, the families had signed contracts that required them to use arbitration to settle their claims rather than settle their claims in court.  The case made its way up to the West Virginia Supreme Court of Appeals where the court had declared that all pre-dispute arbitration agreements that applied to personal injury and wrongful death claims against nursing homes were invalid as a matter of state law governing public policy.

 

The U.S. Supreme Court decided otherwise holding that the West Virginia court's ruling violated the FAA and was in clear conflict with earlier precedents set by the U.S. Supreme Court.

  

The U.S. Supreme Court's decision still leaves arbitration agreements open to challenge based on general contract grounds such as fraud, duress or adhesion.  Issues such as appropriate verbiage, opportunities to rescind and cancel, inclusion in or out of the primary admission agreement, consideration and other critical details must be carefully considered prior to blanket inclusion of mandatory arbitration provisions in nursing home admission agreements.   

 

 

How To Select The Compliance Officer

By March 2013, skilled nursing facilities are required to have an operational compliance and ethics program. Each month, we are reviewing a key element to implementing an operational and effective program.

 

One of the most prevalent questions that we receive is: "Who should serve as our compliance officer?"  The answer to this question is very important.  After all, while the written policies and procedures may be the body of the compliance program, the Compliance Officer makes them come to life.

 

Initially, the Compliance Officer is charged with establishing a compliance program by establishing a compliance committee, implementing policies and procedures, assisting in compliance trainings, and establishing a system for monitoring.  However, the Compliance Officer's job does not end there; he/she must take an active role in ensuring that the program runs smoothly.  For example, the Compliance Officer must oversee accurate documentation of trainings and monitoring, recognize areas for improvement, make appropriate revisions to the program, and report to the owner or Board regarding compliance activities on a regular basis.

 

What attributes are important for the person who is appointed to serve in this important role? The Compliance Officer must:

  • Be detail orientated;

  • Have superior organizational skills;

  • Have the authority and drive to undertake the implementation and enforcement of the compliance program; and

  • Most importantly, be highly respected and trusted by all employees, at all levels of the organization.

If you or a colleague would like additional information regarding appointing a compliance officer or other substantive requirements of an operational compliance program, please contact Jennifer Cohen, Esq. at (609) 454-5351 or jcohen@barmak.com.

Rhonda Duer, Barmak Law Firm Paralegal in the Spotlight

Rhonda has worked as a paralegal for over 20 years with New Jersey law firms and has been with the Law Offices Of David S. Barmak, LLC for the past 3 years. Her experience with a variety of clients, adversaries, courts, governing bodies and regulatory

 

agencies is invaluable. She assists our legal staff with all aspects of litigation including legal research, document preparation, court filings, discovery demands and production and settlement. In addition, her background in drafting contracts, lease negotiations and the formation of legal entities among other of her duties has served our clients well.

 

Rhonda holds a Bachelor of Arts degree from Rider University and a Paralegal Certification from the National Academy of Paralegal Studies. She lives with her husband of 20 years and their 14 year old son in Hopewell, NJ.

Calendar of Events

Upcoming Events:

 

David Barmak, Esq., Brandon Goldberg, Esq., and Georgette Bieber, RN C, LNCC, will present "Accountable Care Organizations: Realistic Expectations for Skilled Nursing Facility Participation'" at the Leading Age NJ 2012 Annual Meeting and Exhibition, Tuesday May 8, 2012, 2:15 to 3:45 p.m. at Bally's in Atlantic City.

 

On May 9, 2012, David Barmak, Esq., will address the Medical Transportation Association of New Jersey at their Mid Year Industry Conference.

 

On May 23, 2012, Georgette Bieber, RN C, LNCC, Clinical Director at the firm, will present a webinar on "Preparing for DOH Inspections". This webinar, like all others the firm presents, will run from 3 to 4 P.M.

 

On June 7, 2012, David Barmak Esq., and Georgette Bieber, RNC, LNCC, will address the NJ Chapter of the American College of Health Care Administrators at their Annual Meeting. Mr. Barmak's address entitled "Legal Updates In Long Term Care" will discuss how to minimize the liability of being sued by residents and will include an update on the Medicaid Fraud Unit and potential liability; Ms.Bieber will speak on how to minimize liability from DOH inspections.

 

Past Events

 

David Barmak, Esq. gave a presentation,

"The Best Defense For a Skilled Nursing Facility is a Proactive One" at the 2012 Annual Conference of the NY Chapter of the American College of Health Care Administrators, held in Calicoon, NY, March 18 to 20th.

 

On Wednesday, April 18th, David Barmak, Allison Whitehead and Brandon Goldberg delivered a webinar for clients and contacts entitled: "Managing Employee Behavior: Progressive Discipline, Litigation Avoidance & Profitability". The webinar starts an ongoing series of webinars and conferences that the firm will deliver in three key areas: fraud and abuse compliance, employment law, and quality of care and clinical improvement.

 

Reminders

  

NEW DEADLINE: NATIONAL LABOR RELATIONS BOARD REQUIRES POSTING OF NOTICE OF EMPLOYEE RIGHTS BY APRIL 30, 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 April 30, 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 nlrb.gov/poster 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 and posting a set of workplace posters from a commercial printer.

 
         If you have any questions, please feel free to contact Brandon Goldberg at bgoldberg@barmak.com or 609-454-5351.

 

MONTHLY BACKGROUND CHECKS REQUIRED FOR

DEFICIT REDUCTION ACT COMPLIANCE

 

The Deficit Reduction Act of 2005 (DRA) requires that entities subject to this law conduct monthly background checks on "any current or prospective employees....contractors, or subcontractors who directly or indirectly will be furnishing, ordering, directing, managing or prescribing items or services" to be paid out of state or federally funded health benefit programs as part of the corporate compliance program to assist in preventing, detecting and addressing fraud, waste and abuse.

 

If you have any questions, please fee free to contact Brandon Goldberg at bgoldberg@barmak.com or 609-454-5351.

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 harassment and social networking.

 

The firm's compliance team includes experienced compliance attorneys, 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 regarding correct care plans, incident reports and therapy notes, review Medicare billing and audit PPS/Medicare/Medicaid insurance documentation.

 

The recipient may, if the newsletter is inaccurate or misleading, report the same to the Committee on Attorney Advertising.

 

This newsletter has been prepared by the Law Offices Of David S. Barmak, LLC for informational purposes only and is not intended to provide legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.
 
For more information, please contact us:
Telephone (609) 454-5351
Fax (609) 454-5361
 
Copyright, 2012.  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.