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 8                           ADVERTISEMENT                                                         AUGUST 2012

In This Issue
Patient Safety Act Clarified
Step To An Effective Compliance Program
The Affordable Care Act Places An Emphasis On Auditing

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

Brandon Goldberg, Esq.

 
Jennifer Cohen

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Patient Safety Act Clarified

Post -Event Investigations/Documents Confidentiality Protected

 

This past month, a New Jersey appeals court offered guidance on how facilities can protect the confidentiality of post-event investigative and analytical documents. Plaintiffs' attorneys have long sought access to this information for use in lawsuits. Facilities have argued that preparing these documents is critically important to preventing future events. But, if a facility knows that such information could be used against it in a lawsuit, then personnel will naturally be reluctant to engage in post-event analysis and documentation. To do so could very well mean preparing the very evidence to be used against them. The Applegrad case clarified that post-event analysis documents do not have to be released to plaintiffs' attorneys, but that this protection applies only under limited circumstances.

 

The New Jersey Legislature tried to address this matter when it passed the Patient Safety Act in 2004. The Act protects the confidentiality of post-event "root cause" analyses, ensuring that covered facilities can freely investigate and analyze events without worrying that the effort would later become evidence against them. However, just a few months before the Act was passed, a court case decision on the same topic was released. That case, the Christy decision, explained that there were situations when a facility would indeed have to release this seemingly confidential information, and that the facts underlying such internal analyses must be disclosed in litigation. The Act was passed afterwards, and it even mentioned  the Christy decision, but it did so in an ambiguous way. This resulted in conflicting legal standards on whether facilities could be forced to release information under the Christy decision or whether the information was entirely confidential under the Act.

 

The Applegrad decision endorsed the protections of the Act, ensuring that covered facilities could freely investigate events to help prevent future events. However, the decision also made it clear that in order for a facility's information to be protected by the Act, the facility must follow each and every detail of the Act. Any document or piece of information prepared outside of the Act's process is instead subjected to the Christy standard for release. That means that if a facility is not perfectly in compliance with the Act while conducting a post-event analysis, the information could be available to plaintiffs' attorneys as evidence in a lawsuit.

 

If you have questions regarding the compliance of your post-event policies and procedures, please contact Brandon Goldberg, Esq. at (609) 454-5351 or [email protected]

 

Step To An Effective Compliance Program

Enforcing Standards through Well Publicized Disciplinary Guidelines

 

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.

 

An effective compliance program should include guidance regarding disciplinary action for managers and employees who fail to comply with policies and procedures, standards of conduct, and/or applicable Federal and State laws and regulations. The compliance program should include a written policy statement which sets forth the degrees of disciplinary actions that may be imposed, ranging from verbal warnings to termination. The policy should also clearly set forth who will be responsible for imposing disciplinary measures.

  

It is critical that the written policies be published and disseminated and that staff members are properly educated on the consequences of noncompliance. Disciplinary actions should be applied in an appropriate, consistent, and fair manner. At the same time, enforcement and disciplinary procedures should be flexible enough to account for mitigating or aggravating circumstances.

 

If you or a colleague would like additional information regarding enforcing standards through well publicized disciplinary guidelines or other substantive requirements of an operational compliance program, please contact Jennifer Cohen, Esq. at 609-454-5351 or [email protected].

The Affordable Care Act Places An

Emphasis On Auditing

Compliance Program guidelines place balanced importance on several important factors: (1) the designation of a Compliance Officer and Compliance Committee, (2) developing effective lines of communication, (3) creation and retention of records, (4) conducting effective training and education, (5) including compliance as an element of employee performance, (6) enforcing standards through well-publicized disciplinary guidelines, (7) conducting  internal auditing and monitoring, (8) responding to detected offenses and developing corrective action initiatives, (9) assessing the effectiveness of a compliance program and (10) developing policies and procedures including a statement of corporate philosophy and codes of conduct.

 

All components are critical in supporting a provider's good faith efforts to adhere to compliance requirements.  Focusing primarily on one component to the exclusion of some or all other components produces less than the requisite effective compliance program; however, some components seem to have greater timeliness and therefore warrant emphasis than others. For example, in the early years of compliance program development, training was of critical importance, in large part because of the need for immediate and wide-spread awareness of the development and implementation of a compliance program.

 

Today, the auditing component of the compliance program must be emphasized among all other components as the Affordable Care Act highlights the critical importance of auditing a myriad of expanded and new risks areas.  Providers must still focus on all compliance program components in order to maximize the synergistic benefits in promoting good faith efforts to comply with laws and regulations; however, without adequate detection of continuously expanding risk areas, providers are hard pressed to identify, develop and implement policies and procedures, which form the basis for training staff, etc.   

 

The Affordable Care Act promotes a projected improvement and expansion of consumer protections, strengthening of Medicare and reduction of health care costs. A primary means to these ends is the improvement of government-wide efforts to fight fraud and waste. The Act places a particular focus on the effective use of auditing tools in health care facilities, and therefore, at this moment in time the auditing component must rank as the first among equals.

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 auditing and 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

www.Barmak.com

 
Copyright, 2012.  Law Offices Of David S. Barmak, LLC.  All rights reserved.
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