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 9                           ADVERTISEMENT                                    SEPTEMBER 2012

In This Issue
Compliance - Making Sure The Government Gives You Maximum Credit For Doing The Right Thing
Time Clocks and Overtime: Why Adherence to Policies Matter
Step 6 To An Effective Compliance Program Conducting Internal Monitoring and Auditing

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

Brandon Goldberg, Esq.

Jennifer Cohen

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Compliance - Making Sure The Government Gives You Maximum Credit For Doing The Right Thing

Last July, Jerry Sandusky, Joe Paterno's heir apparent as Penn State football coach, was found guilty of 45 of the 48 counts against him for sexual assault against children.  Sandusky was accused of assaulting eight boys over 15 years. There are also allegations that the former university president, former VP, former athletic director, and former head football coach (Joe Paterno) knew or should have known what Sandusky was doing and took no action to protect these young boys.


Massive penalties were handed down, including fines in the tens of millions of dollars, the vacating of all football victories since the late 1990s, a reduction in scholarships for football players, and a multi-year ban on playoff games.


It appears that the NCAA purposefully overreacted to make a point to all athletic programs and university officials. This reaction may be unprecedented in college sports, but it is quite common for government regulation of healthcare providers.


A former high level Department of Justice official liked to say that not having a compliance program is "an engraved invitation to charge" the company criminally. Both the Justice Department's list of discretionary factors and its sentencing guidelines highlight the importance of effective compliance programs. In numerous regulated industries, such as healthcare, compliance programs are a necessity.


Effective compliance programs help identify wrongdoing and wrongdoers. The Department of Justice will consider a company's compliance activity in deciding whether criminal charges, injunctive relief, or lesser actions are required. The existence of a compliance program will also influence the government's evaluation of the need for a monitor or a severe corporate integrity agreement. The sentencing guidelines reduce the fines for corporations with effective compliance programs. The existence of a compliance program and voluntary disclosure may also cap False Claims Act penalties and give the company a way to avoid debarment from Medicare, Medicaid, and other government programs.


Providers should conduct timely and effective internal investigations as a part of their compliance program after identifying a problem. Voluntary disclosures must also be used appropriately by facilities. Under the Affordable Care Act, also known as ObamaCare, an overpayment to a provider becomes a false claim sixty days after the provider discovers the overpayment. Therefore, such disclosures are a critical part of compliance.


If you have any questions regarding compliance programs, internal investigations, or voluntary disclosures, please contact David Barmak, Esq. at or (609) 454-5351.

Time Clocks and Overtime: Why Adherence to Policies Matter

Imagine a scenario where a CNA has had a busy day and has not been able to finish all of her paperwork. Her shift ends, and, being aware of the policy for punching out, she promptly heads to the time clock and punches out. She then returns to her floor, intending to finish her work for the shift. However, during her unofficial overtime, she slips on the floor and is injured. Is the facility responsible for workers' compensation? The answer is "yes." Although the CNA was officially off the clock, she was still performing her job duties in the facility. Therefore, the facility is responsible for her well-being.


Putting her injury aside, is the facility responsible for paying her overtime? The answer is again, "yes." She was performing her job duties, and even though she was working in violation of the facility's policy to leave the building after punching out, she was still working and therefore is entitled to payment for actual hours worked. If the facility fails to pay her overtime, the facility could be held responsible by the government for a wage and hour violation.


To prevent staff members from working before or after their shift has ended, facilities should ensure their policies and procedures clearly state what the expectations are regarding staff members working off the clock, what the procedures are for requesting overtime to complete tasks, and what the repercussions are for violations. Staff members who violate these policies and procedures are still entitled to their salary for actual hours worked and any workers' compensation payments if they are injured. However, discipline can still be carried out, and effective discipline can help keep the instances of unofficial overtime to a minimum.


If you have any questions regarding overtime policies, please contact Brandon Goldberg, Esq. at

or (609) 454-5351

Step 6 To An Effective Compliance Program - Conducting Internal Monitoring and Auditing

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.


It is critical to conduct internal monitoring and auditing to ensure that the integrity and reliability of a facility is not called into question. In order to do so, facilities should conduct regular compliance audits, which should focus on day-to-day operations, adherence to billing regulations, relationships with third parties, and compliance with Medicare requirements. The audits should be composed of reliable systems which verify that all facility operations (financial, quality of care, contracting, etc.) are consistent with applicable laws, regulations, and the facility's compliance program.


In designing an audit, one might consider the following:

  1. What should be audited?
  2. Who should audit?
  3. How should the auditor gather the requisite information?
  4. How should the auditor review the information or processes?
  5. How will findings be reported and to whom?
  6. How frequent should the audit be conducted?

If a deficiency is detected, it must be corrected; otherwise, the reputation of the facility may be damaged and the facility may be subject to legal penalties.


If you or a colleague would like additional information regarding conducting internal monitoring and auditing 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 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

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.