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 5                            ADVERTISEMENT                                       MAY 2012

In This Issue
Matthew R. Streger, Esq. Joins Law Offices Of David S. Barmak, LLC As Senior Associate
Conducting Effective Compliance Training and Education
Is Your Copy Machine a Security Risk?
NJ Nurses Held Exempt from Overtime Pay by NJ Appeals Court
Calendar of Events

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David Barmak, Esq. 


Allison Whitehead, Esq. 


Brandon Goldberg, Esq.

Jennifer Cohen

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Matthew R. Streger, Esq. Joins Law Offices Of David S. Barmak, LLC As Senior Associate

We are pleased to welcome Matthew R. Streger as the firm's Senior Associate. Matt will handle litigation matters as well as transactions for the firm's healthcare provider clients. In the health care field he is experienced in all aspects of litigation, including professional board cases, medical staff issues and reimbursement and regulatory compliance issues.  In addition, he handles insurance litigation, employment cases, contracts and Anti-Kickback and Stark issues, among other matters.


Matt is a former nationally registered paramedic with twenty-four years of experience.  He was named a Rising Star by Super Lawyers 2012 NJ Edition, and received the New Jersey State Bar Association's Young Lawyers Division "Service to the Bar Award" for 2012.



 Mathew R. Streger, Esq.


Matt has written numerous articles, columns and contributed to various textbooks in the medical and legal communities.


He sits on the editorial advisory board of "Emergency Medical Services" Magazine and previously served on the EMS Advisory Board for Primedia Workplace Learning.  He was a member of the Task Force on Emergency Medical Services Leadership at the George Washington University Homeland Security Policy Institute, and was a facilitator and subject matter expert for the Federal Emergency Management Agency on the "America Responding - Needs Assessment of Emergency Response to Terrorism Training for Fire and Emergency Service Personnel" report to Congress. Matt is a frequent lecturer for the legal and medical communities at the local, state and national levels, including for the New Jersey State Bar Association and ICLE.  He is member of the New Jersey State Bar Association, Young Lawyers Division and the Health and Hospital Law Section and is a member of the American Health Lawyers Association.


Matt received his Juris Doctor from Seton Hall School of Law, a Master of Public Administration with a concentration in Emergency Services Management from Clemson University and a Bachelor of Arts in Public Administration from the City University of NY, John Jay College of Criminal Justice.  He is admitted to practice in New Jersey, the U.S. District of New Jersey and the Third Circuit Court of Appeals.





Conducting Effective Compliance

Training and Education

By March 2013, skilled nursing facilities will be required to have an operational compliance and ethics program. To support that transition, each month we will review a key element to implementing an operational and effective program.


Written policies, procedures, and standards are the cornerstone of a compliance program; however, having policies and procedures is only a beginning step toward the goal of having an operational and effective compliance program. These policies and procedures should serve as a resource for the ongoing education of staff.


According to the Office of the Inspector General's (OIG) recommendations, the Compliance Officer should follow three steps in setting up effective training for staff:

  1. Determine who needs to be trained;
  2. Determine the type of training that best serves the provider's needs (e.g., seminars, in-services, distribution of newsletters, etc.);
  3. Determine when and how often education is needed and how much each staff member should receive, based on position.

While guidance regarding the frequency of training and education is flexible, the OIG does set out a few recommendations:

  1. New employees should be trained as soon as possible;
  2. There must be at least annual trainings for staff involved in coding and billing.

If you or a colleague would like additional information regarding this or other substantive requirements of an operational compliance program, please contact Jennifer Cohen, Esq. at



Is Your Copy Machine a Security Risk?

Justin Schwartz MPH, Director of Healthcare IT Solutions Board Member of the NJ Chapter of ACHCA

Does your company keep sensitive data such as Social Security numbers, credit reports, account numbers, health records, or business secrets?


According to the Federal Trade Commission (FTC), the nation's consumer protection agency, your information security plans should cover the digital copiers your company uses. If the data on your copiers gets into the wrong hands, it could lead to fraud and identity theft. Today's generation of networked multifunction devices, known as "digital copiers", are "smart" machines that are used to copy, print, scan, fax and email documents. Digital copiers require hard disk drives to manage incoming jobs and workloads, and to increase the speed of production.


The hard drive in a digital copier stores data about the documents it copies, prints, scans, faxes or emails. If you don't take steps to protect that data, it can be stolen from the hard drive, either by remote access or by extracting the data once the drive has been removed. It's wise to build in data security for each stage of your digital copier's life-cycle: when you plan to acquire a device, when you buy or lease, while you use it, and when you turn it in or dispose of it.


Evaluate your options for securing the data on the device. Typically, these features involve encryption and overwriting. Encryption is the scrambling of data using a secret code that can be read only by particular software. Digital copiers that offer encryption encode the data stored on the hard drive so that it cannot be retrieved even if the hard drive is removed from the machine.  Overwriting, also known as file wiping or shredding, changes the values of the bits on the disk that make up a file by overwriting existing data with random characters. By overwriting the disk space that the file occupied, its traces are removed, and the file can't be reconstructed as easily.


Finally, think ahead to how you will dispose of the data that accumulates on the copier over time. Plan now for how you will dispose of the copier securely. For example, you may want to consider placing a sticker or placard on the machine that says: "Warning: this copier uses a hard drive that must be physically destroyed before turn-in or disposal." This will inform users of the security issues, and remind them of the appropriate procedures when the machine reaches the end of its usable life.


NJ Nurses Held Exempt from Overtime Pay by NJ Appeals Court

In March of this year, the NJ Appeals Court ruled that registered nurses are exempt from overtime compensation under the

NJ Wage and Hour Law (NJWHL) even if they are paid on an hourly basis because they fall within the "professional" exemption. The case decision in Anderson v. Phoenix Health Care, Inc., A-2607-10T2, also held that, even if registered nurses were not exempt, a claim for overtime compensation might fail under the NJWHL's good-faith exception if the employer establishes that it conformed to the Division of Wage and Hour Compliance's "longstanding interpretation that registered nurses are not entitled to overtime so long as they are compensated in excess of the weekly minimum" salary required for the exemption, which is $400 per week.


Historically in NJ, an employer's obligation to pay overtime wages at a rate of one and a half time times an employee's hourly wage for each hour worked in excess of 40 hours per week has been part of its wage and hour law. The exception from this general rule are for workers employed in a bona fide executive, administrative, professional or outside sales capacity. This law was in effect until mid-2011 when NJ adopted the federal regulations under the Fair Labor Standards Act (FLSA).


The newly promulgated (FLSA) regulations define a "professional" as an employee: (1) whose primary duty consists of the performance of work that requires knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual or physical processes; (2) whose work requires the consistent exercise of discretion and judgment in its performance; and (3) whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical or physical work) and is of such a character that the output produced or the result accomplished cannot be standardized to a given period of time; (4) who devotes less than 20 percent of his or her workweek to nonexempt work; and (5) who is compensated for his or her services on a salary or fee basis at a rate of not less than $400 per week.


The new FLSA regulations, which NJ adopted, vary in their treatment of nurses paid on an hourly basis; the FLSA regulation say that nurses paid on a "salary basis" are exempt. The court in the current case made their decision under the old NJ wage and hour laws, which would have allowed for overtime pay for nurses paid on an hourly basis except if the nurses were paid at least as much as the weekly minimum, i.e., $400 per week. This reasoning leads to a difficult standard for employers.


As a result, it remains unclear whether in future cases that nurses paid on an hourly basis will be found exempt. If the NJ courts follow the FLSA regulations, as the new NJ regulations say they will, registered nurses paid on an hourly basis will not be exempt. If however, the decision in Anderson is followed, hourly paid registered nurses will be found exempt.



(1) NLRB Postpones Poster Requirement &

(2) NLRB Passes Rules Regarding Elections Procedures Effective

APRIL 30, 2012

(1) Since our last Health Care Matters newsletter, the NLRB has postponed the poster rule that was to have taken effect on

April 30, 2012. The requirement to post this "employees' rights" poster is now in limbo and we will inform you of any change. The NLRB's "Employee Rights" poster generally explains an employee's rights to join a union and take part in collective bargaining. It also states that union officials can't coerce a worker into joining a union, and that a worker has the right to not join a union.


(2) On the other hand, the NLRB did pass a new set of election rules reducing the time period between representation petition and election from an average of 38 days to 20 or fewer days. This rule was effective April 30, 2012. The new process applies to certification and decertification elections. The new rules defer important issues to post-election proceedings, and the complete denial of resolution of certain representation issues. In sum, the new rules give employers a limited window in which to respond to representation petitions that are in favor of unions. The Acting NLRB General Counsel's guidance is available at:


While the new rules may have the effect of emboldening unions in areas not previously targeted for organizing activities and increasing employee discourse, employers need to address the strength of their employee relations programs in preparation, such as by increasing the effectiveness and rate of their employee communications and participatory programs, including small and large group meetings. Employee communications options should include a variety of methods including electronic, social media, and video in addition to the usual pipelines of communication.


At the same time, it benefits employers to do the following, among other actions:

  • Scrutinize employment practices;
  • Inform and train supervisors and management personnel to reduce nagging employee issues that undermine morale;
  • Review employment policies and procedures so that they are in compliance with the law, particularly with regard to electronic communications, employee solicitation, premises access, bulletin board use and grievance resolution;
  • Evaluate any mandatory arbitration provisions for compliance with NLRB decisions and confidentiality policies attempting to restrict employee dissemination of wage and benefits data.

If you have questions with which we can help, feel free to contact Jennifer Cohen, Esq. at 609-454-5351 or


Calendar of Events

Upcoming Events:


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 discuss how to minimize liability under Department of Health surveys.


On June 20, 2012, David Barmak and Lew Bivona, CPA with

WithumSmith+Brown, P.C., will present a webinar for JAMES of NJ, the DME association on the topic of financial strategies for maximizing revenue and avoiding compliance issues such as fraud and abuse.


Past Events:


David Barmak, Esq., Brandon Goldberg, Esq., and Georgette Bieber, RN C, LNCC, presented a seminar on "Accountable Care Organizations: Realistic Expectations for Skilled Nursing Facility Participation'" at the Leading Age NJ 2012 Annual Meeting and Exhibition, Tuesday May 8, 2012 at Bally's in Atlantic City.


On May 9, 2012, David Barmak, Esq. and Matthew R. Streger, Esq. spoke at the Medical Transportation Association of New Jersey at their Mid Year Industry Conference.

Law Offices Of David S. Barmak, LLC

Our firm is dedicated to helping health care providers, such as skilled nursing facilities and other health care providers, and the suppliers to those firms, manage risk through comprehensive compliance programs that focus 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 David S. Barmak, Esq.:

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.