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 6                           ADVERTISEMENT                                               JUNE 2012

In This Issue
The Importance of Accountable Care Organizations (ACOs) In Ensuring Referrals and Delivering New Patients / Residents
Merle Chinich, Barmak Law Firm Office Manager in the Spotlight
A Compliance Attorney Shares a Resident's Message
Developing Effective Lines of Communication

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David Barmak, Esq.
Matthew Streger
Matthew Streger, Esq.

Brandon Goldberg, Esq.

Jennifer Cohen

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The Importance of Accountable Care Organizations (ACOs) In Ensuring Referrals and Delivering New Patients / Residents

With the United States Supreme Court upholding the Affordable Care Act, also known as ObamaCare, Accountable Care Organizations (ACOs) can move forward to offer health providers a streamlined and more profitable method of caring for patients and residents. The Affordable Care Act provides exemptions for ACOs under several laws that would otherwise prohibit such coordination of care. This includes the Stark Law, which bans physician self-referrals, and the Anti-Kickback Law, which bans payments in exchange for patient referrals.
ACOs operate as a company that is legally separate from any of the member providers. It operates as director of care. For example, a patient leaving a hospital can expect to be sent to a long-term care facility that is in the same ACO as that hospital. Patients are choosing the ACO and not necessarily just the hospital, which allows the hospital to more affirmatively direct discharged patients to particular long-term care facilities.


Only hospitals, physician groups, and a limited number of other types of providers can form and lead ACOs. However, long-term care facilities, durable medical equipment companies, and some other types of providers may join and participate in these ACOs. The federal government has suggested that it will expand the types of providers that can form and lead ACOs, but until then, other providers can still participate.


With major sources of referrals joining into what are essentially alliances, it is important for all providers to begin marketing themselves as capable health entities to ally with. Those that do not market themselves effectively may find competitors down the road competing more strongly through ACO memberships. Several ACOs already exist in the northeast area, and major referral sources that are not a part of these already existing ACOs have begun planning for their own eventual network. It is important to act sooner rather than later in ensuring yourself a place in these developing networks.


Accountable Care Organizations: Where to Start


Try to remember the first time you interviewed for a job: you assessed your strengths and weaknesses; you tried to articulate your aspirations in the short, medium and long term; you researched the interviewee and the potential employer.  In short, you prepared for a discussion about how and why the potential employer and you were a perfect match.  


Accountable Care Organizations present the very same challenge - how to persuade the ACO that your organization is a perfect match with the ACO.  A huge difference between an  ACO and potential employers of yesteryear is an ACO constitutes more than just one organization. Sure, the ACO is a legal entity; however, it's the creation of a joint effort between two or more health care providers. An ACO will be very selective as to any provider/supplier with whom it contracts unless it controls and/or owns the provider/supplier.  


An ACO will demand that all providers/suppliers with which it contracts have a compliance program that protects the ACO and integrates into the ACO's compliance program; that providers/suppliers have clinical pathway protocols as well as data collection and management systems among many other things.


Where to start? A thorough self-assessment - a situation analysis - is the starting point: who, what, when, where, why and how. That's the starting point for business and marketing plans. That's the starting point for preparing for participation in an ACO.  Your first job and an ACO have one thing in common:  you must know yourself and your organization well enough to persuade a decision maker that the synergy is there to work together.

Merle Chinich, Barmak Law Firm Office Manager in the Spotlight



Merle has been the office manager at the Law Offices Of David S. Barmak, LLC for 10 years.  Previously she was an administrator at Berenden Fluid Power located in Rahway, New Jersey. In addition to her duties of office manager, Merle is the "personality" behind the voice that answers the majority of incoming calls to the law office.  She is truly "a jack of all trades" whose overall skills help keep the office work flow moving while making necessary appointments, reservations and travel arrangements for members of the firm. Merle is always willing to pitch in and help any department that needs an extra hand to complete a project. Merle attended Upsala College, is the proud mother of 2 and grandmother of 6.  She resides in Monroe Township.


A Compliance Attorney Shares a

Resident's Message

A resident in a nursing home wrote a note and gave it to me as I did in-service training.


The note read:


"Dear Lord, thank you for this home, this very special home. One that is full of love and care! It's not a castle, or a mansion! Just a simple place where there is love and care."


I was given this note by a resident at Oxford Nursing Home in Brooklyn. She had a broad smile as she indicated that the home she was referring to was Oxford. She has been a resident for four years and she is in her seventies.


I shared her note with the staff on each of the units as I provided training on documentation. Nurses and aides thanked me for passing on this note because too rarely do they have a chance to hear a positive and loving perspective from residents off their units.


One of the great values of a bee is the cross pollination as it flies from one flower to another. I have often thought of the role of a salesperson going from account to account being similar. As a compliance attorney, providing in servicing on how to reduce risk, do education of staff in nursing home after nursing home and shift to shift, there is also a cross pollination going on. I find that one of the greatest values that I or my associates can bring to a nursing home is information to staff. Information about new laws and regulations is critical. Information about how a professional colleague at one nursing home is dealing with a situation and presenting it to a professional colleague at another nursing home is invaluable.


During a time when economic recession has reduced budgets for nursing homes to send employees to seminars or to even participate in association meetings, because of reduced monies for travel and dues, more reliance is placed upon vendors and professionals who visit multiple nursing homes to provide information for staff as to what other staff are doing at other nursing homes.


Nursing and other healthcare professionals find themselves at times in truly thankless jobs. It's very nice to share a breath of fresh air from a resident who does not need to convey thanks but chooses to.  This resident's note is indicative and reflective of the real care and efforts that are taking place at many nursing homes which very few people outside of a particular unit, outside of a particular nursing home, and outside of our healthcare industry are ever aware of and appreciate.

Developing Effective Lines of Communication

By March 23, 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.


Effective lines of communication in a compliance program require that communication go in two directions. First, it is essential that information regarding what the compliance program is and what employees' obligations are be communicated effectively. In order to accomplish this, information must pass from the management, compliance officer, and compliance committee to the employees by way of an education and training program.


Second, information must pass from employees and independent contractors to the management, compliance officer, and compliance committee. In order to develop these open lines of communication most effectively, employees should be able to ask questions of the compliance officer or the employee's supervisor regarding the compliance program. A hotline number may also be utilized by employees and independent contractors to report problems. The hotline number should be publicized and made available to all employees and independent contractors. Efforts should be taken to protect anonymity and, if the caller is known, precautions must be taken to protect the whistleblower from any retaliation.


If you or a colleague would like additional information regarding developing open lines of communication or other substantive requirements of an operational compliance program, please contact Jennifer Cohen, Esq. at 609-454-5351 or



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.


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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.