NEWS AND VIEWS FOR PTs
A complimentary newsletter from
MAILLY INGLETT & BARMAK, LLC
Educators and Consultants to Physical Therapists
MAY, 2010 - Volume 1, Issue 5 |
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| Employee's Privacy Rights Are Limited When Using Company Computers |
The New Jersey Appellate Court has ruled that an employee has a limited right to privacy when using his/her employer's computer for personal matters, reversing the trial judge's decision that agreed with the employer finding no privilege and holding that the employee waived any right to privacy by virtue of the express language in the Employee Handbook.
In Stengart v. Loving Care Agency, Inc et al the Appellate Court found that the employee had a legitimate expectation of privacy when she accessed her personal email account from the company's computer in order to communicate with her attorney despite the employer's broad electronic communication policy which disclaimed any expectation of privacy and stated that communication using the company computer became company property while permitting only occasional personal use.
In reaching its decision, the Court acknowledged the broad company policy in the Employee Handbook, yet found that it simply went too far. The Court formulated a new rule that employers can only access employee personal email communication and internet usage if there is a legitimate business reason to do so.
As a result of this decision employers need to revisit their Employee Handbooks and electronic communications polices making certain that polices are clearly expressed and unambiguous that the company computers are for company business and that all communications made using the company computers are accessible to the company and will not be considered "private." Also employers may need to exercise restraint in monitoring employee use of electronic equipment in the workplace.
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| Repeat Violators of New Jersey's Wage, Benefit and Tax Laws May Face New, Severe Penalties Effective July 13, 2010 |
This new law effective July 13, 2010 provides that once a company has failed - for even one employee - to maintain all required records regarding wages, benefits, taxes or other contributions due, it will face not only the ordinary fines or penalties but it will now have to face an audit from the New Jersey Department of Labor and Workforce Development (NJDOL) within 12 months after the initial determination.
If this subsequent audit reveals that the company has again failed to maintain records and pay wages, benefits or taxes the NJDOL can direct other governmental agencies to suspend or revoke state issued licenses held by the company. The NJDOL has the discretion to decide how long any suspension will be and the only protection offered to businesses is a right to a hearing before any final orders take effect.
The new law prohibits companies who have had their licenses suspended or revoked to reopen utilizing a new name. It also covers successor companies and broadly includes the suspension of such companies as well.
In addition the law states that employers cannot discharge or discriminate against an employee because he/she made an inquiry or complaint under this law to his/her employer. If they do they will open themselves up to severe penalties including paying all legal costs, all wages and benefits lost, plus punitive damages equal to two times the lost wages and benefits and the employer is required to offer reinstatement to the discharged employee.
In addition, under this new law, all New Jersey employers will be required to post a notice in a form prescribed by the NJDOL and provide every employee with a written copy of said notice that will include information as how an employee may contact a NJDOL representative to report violation of the law. This notification requirement applies to every business not just those found to have violated the wage, benefits and tax laws. With the passage of this new legislation it is very clear that there are no run-of-the-mill employee wages, benefits or tax complaints or any such thing as a routine NJDOL audit.
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| For Your Information - Q & A | |
Question:
Is it illegal to have an aide apply US or ESTIM to PTs if we do not bill the modality and/or get reimbursed for it?
Answer:
It really is irrelevant who the payer is, or whether the services are billed at all; the NJ regulations expressly prohibit PTs from allowing an unlicensed person to administer any modalities. We would again encourage you to review the white paper we have prepared on this topic. Reference:N.J.A.C. 13:39A-2.4 Delegation by a physical therapist to unlicensed persons
(b) A physical therapist shall not authorize or permit an unlicensed person to engage in the following activities: 5. Administer any modalities.
Question:
Can a PTA be left alone in a clinic for a 1 hour period for a 1 time event if the supervising therapist has to leave for a doctor appointment that day and they are in verbal communication by phone? It would be the last hour of the day and therapist would not leave before that last patient arrived and treatment plan for that day approved.
Answer:
While this question is one of interpretation, and only the NJ Board of Physical Therapy can make such interpretations, the key issue is really not how long the PT is left unsupervised, but why. The NJ regulations, previously cited and reposted below, make provision for "unanticipated absence" of the supervising PT.
As such, if the absence of this PT was unanticipated in the eyes of the Board, then they would likely assess whether the other provisions of this regulation were properly followed, including the PTA being familiar with the patients being treated unsupervised. Also, if this appointment was known in advance, it is unlikely that the board would consider this absence to be unanticipated.
Reference:
N.J.A.C. 13:39A-7.1 Supervision requirement; licensed physical therapist assistant
(e) In an emergency situation which causes the unanticipated absence of the supervising licensed physical therapist, a licensed physical therapist assistant may continue to render services to only those patients for which the licensed physical therapist assistant has previously participated in the intervention for established plans of care not to exceed the regularly scheduled operational hours of that particular day.
(f)Every effort shall be made by the licensed physical therapist and/or the licensed physical therapist assistant to obtain direct supervision in the care described in (e) above.
Question:
I have a worker who has been out on Workers Compensation for months. She holds a critical position and I want to fill that position with someone else. In fact I need to fill that position with someone else. Can I?
Answer:
New Jersey law does not require that an employee's job be held open for an employee out on workers compensations for as long as it takes that employee to recover from a work related injury.
Please note: There are numerous other New Jersey laws that must be considered when determining whether or not to replace this employee.
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| Effective Compliance with Health Insurance Portability and Accountability Act (HIPAA) Requires More Than Initial Training | |
Although your facility/office may have had a Health Insurance Portability and Accountability Act ("HIPAA") Privacy training program there are a number of reasons why you should consider to hold both a refresher course for those already trained as well as training sessions for staff hired after the original training program. Your budget may be tight this year but money spent on training is assuredly less than the cost of questions raised if a complaint is made with the Department of Health and Human Services' Office of Civil Rights.
If litigation were to arise as a result of injury to a patient there is also a potential breach of privacy claim to be made by the patient's attorney. In this hypothetical case, the expected baseline of compliance with privacy will be HIPAA rules and regulations. If the practice can't prove that it met the minimum standards required by HIPAA, than a jury might find the practice did not adequately protect the patient's privacy. The jury will then have to decide if the breach of privacy is compensable.
The most effective way to defend a facility would be to have the Privacy Officer testify that the facility met the minimum guidelines required by HIPAA and perhaps more.
HIPAA requires effective protection of patient privacy. Clearly that requires on-going training. But if the Privacy Officer can attest to on-going training, updating policies and procedures, using an outside consultant/lawyer to ensure compliance through periodic auditing, and monitoring by the staff on a periodic basis, then it would be likely that a jury will, even if it finds there has been a breach of privacy, not find a reckless approach to protecting the patient's privacy, but a concerted effort to protect privacy and that "mistakes happen".
Primarily, the HIPAA regulations require "effective "compliance programs. Effective compliance can only be had by:
- Training new employees
- Retraining employees who have already been trained
- Continually updating policies and procedures
- Monitoring compliance
Litigation Results and Annual Surveys
With litigation now underway, the courts are interpreting actual compliance with the HIPAA regulations that took effect in April 2003.
Response to Requests for Patient's Records
Some clients have told us that they are no longer honoring subpoenas from lawyers for records. Instead, they insist on an explicit authorization from the patient or a court order. If you have questions as to whether you should require a subpoena or court order, you should consult your legal counsel.
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Mailly Inglett & Barmak, LLC | |
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Ken Mailly, PT, NJ Lic. # NJ40QAOO335900
Ken is a graduate of the State University of New York at Downstate Medical Center, and is completing his Master's in Public Administration at Seton Hall University, with a concentration in Health Care Policy and Management. He is also certified as an Ergonomic Specialist.
In addition to his graduate studies, with well over 2,500 hours of continuing physical therapy education, Ken has amassed an extremely diverse and extensive knowledge of the clinical practice of physical therapy, rehabilitation, and practice management. Ken's primary clinical focus is in orthopedics, chronic soft tissue disorders, and management of patients with bleeding disorders.
Along with this clinical knowledge base, Ken has devoted the last 10 years to the study of regulation, legislation, and reimbursement for physical therapy & rehabilitation services. He has served as an expert witness, on behalf of both plaintiffs and defendants, in numerous malpractice cases. He has also been consulted on state, federal, and third party payer inquiries regarding physical therapy and rehabilitation billing, regulatory, and legal issues.
Ken is a partner in Mailly & Inglett Consulting. His focus is on compliance with professional standards, state and federal regulations, as well as practice management strategies.
Barry G. Inglett, PT, CHT, Cert. MDT, NJ Lic # NJ40QA00146200
Barry is a graduate of Columbia University, a Certified Hand Therapist and a Credentialed McKenzie Therapist. He is a physical therapist and co-owner of Wayne Physical Therapy & Spine Center, a private practice established in 1977. Barry is also a partner in Mailly & Inglett Consulting, working with both physical therapists and Payers.
Barry is a guest lecturer for UMDNJ's Physical Therapy Program as well as a clinical instructor for several colleges including Columbia University, New York University, Temple University, Stockton State College, Kean College and the University of Medicine and Dentistry's Physical Therapy Program. He is also an instructor for HMW (Human Mechanical Wellness) Seminars, specializing in mechanically oriented treatment programs for the spine and extremities.
Barry has been retained by numerous insurance companies as well as the New Jersey Attorney General's Office offering expert witness testimony in physical therapy practice. He has been involved in utilization review and reimbursement issues in physical therapy for over 20 years. Barry also instituted, and was retained as the lead expert, in the largest PT fraud case in NJ history (Cobo v. MTF). He also served as a physical therapy consultant from 1997-2005 for Horizon Healthcare running the NJ Plus pre-certification program. Barry has served on the New Jersey Board of Physical Therapy for the past eight years and has also served as the Chairman of the Board of Physical Therapy.
David S. Barmak, Esq.
David S. Barmak, Esq. received a JD from Cornell University and a BA from Duke University. The Law Offices Of David S. Barmak, LLC was established in 1984. David is licensed to practice law and has clients in the states of New York, New Jersey, Pennsylvania and Connecticut.
David's legal focus is in the areas of corporate compliance, risk management, human resources and operational legal affairs.
David has a strong background in operations, having served as both the Associate Administrator and General Counsel for a large New York Certified Home Health Agency, initiating and directing a New York Licensed Home Care Services Agency as well as owning and operating a Durable Medical Equipment company. David also provides defense of enterprises, directors, officers and other professionals accused of misconduct.
For more information, please contact us:
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| © Copyright, 2010. Mailly Inglett & Barmak, LLC. All rights reserved. No portion of these materials may be reproduced by any means without the advance permission of the author. | |
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