Health Care Compliance 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 10                           ADVERTISEMENT                                    OCTOBER 2012

In This Issue
Corporate Compliance Audits and Investigations: The Protection Afforded by the Attorney-Client Privilege
Step 7 To An Effective Compliance Program: Responding Pomptly to Detected Compliance Violations and Developing Corrective Action Plans
Nursing Home Ruled to Not Have Charitable Immunity From Lawsuit

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

Brandon Goldberg, Esq.

Jennifer Cohen

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We are pleased to announce that we have changed the name of our newsletter to Health Care COMPLIANCE Matters to reflect concentrated support for our clients in response to increased attention to fraud, waste & abuse, and privacy & security compliance requirements and enforcements by federal and state authorities.


Corporate Compliance Audits And Investigations: The Protection Afforded by The Attorney-Client Privilege

What is the Attorney-Client Privilege


The attorney-client privilege is one of the oldest privileges available to protect a client's confidential communications with his attorney. A client may, under the protection of this privilege, refuse to disclose confidential communication with his attorney; however, only the communication itself is privileged. Even then, it does not protect facts that are discoverable from other sources.

The Importance of the Attorney-Client Privilege
when Conducting Corporate Compliance Audits and Investigations


It is critical that the attorney-client privilege be available when conducting corporate compliance audits and investigations. When audits or full-blown investigations take place in the presence of suspected improprieties, both management and the attorney must ensure, as best as possible, the Office of the Insepector General cannot seek the documents it uncovers.


Examples of Information to Protect


Documents that both management and the attorney might want to protect from discovery by the Office of the Inspector General include, but are not limited to, the following:

  • Notes of interviews;
  • Reports submitted by the attorney or the Corporate Compliance Officer summarizing interviews;
  • Audit worksheets;
  • Employee responses to questionnaires;
  • Lists of documents that have been investigated by the attorney;
  • Final investigative reports

Step 7 To An Effective Compliance Program: Responding Promptly to Detected Compliance Violations and Developing Corrective Action Plans

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.


Any violation of the compliance program or applicable state and federal laws may result in harm to a facility's reputation in the community as well as its legal status as a nursing facility. Therefore, any and all alleged violations must be addressed. The Compliance Officer and/or senior management should promptly and confidentially investigate the allegations to determine whether a violation did occur.


If the allegations are proven true, the Compliance Officer and/or senior management should take the necessary steps to correct the problem. Depending on the violation, these steps may include repaying overpayments to the government and/or referring the case to criminal and/or civil law enforcement. Every instance should also be met with reeducation as well as a plan of correction, which will aid the facility in ensuring that it does not experience repeated occurrences of the same violation.


If you or a colleague would like additional information regarding responding promptly to detected offenses and developing corrective action plans or other substantive requirements of an operational compliance program, please contact Jennifer Cohen, Esq. at 609-454-5351 or

Nursing Home Ruled to Not Have Charitable Immunity From Lawsuit

A New Jersey appeals court has rejected an argument by a nursing home that it should be shielded from liability in a wrongful death case because it is a charity. Charities cannot be sued for certain types of simple negligence to beneficiaries of the charity and the nursing home in this case tried to establish itself as a charity based on its subsidies for indigent residents and its willingness to accept Medicaid-eligible patients. Although the trial judge agreed with the nursing home's argument, the appeals court did not. The appeals court found that the trial judge failed to conduct a fact-sensitive analysis and relied too much on the nursing home's assertions, despite a lack of evidence supporting those assertions.


Of particular note was the appeals court's assertion that charitable immunity should be granted on a case-by-case basis and that the analysis "looks beyond an entity's benevolent acts." The case was then sent back to the trial judge for a closer factual analysis, but the appeals court's decision significantly limits the possibility of nursing homes being able to use this approach in future litigation.


If nursing homes are indeed unable to avoid litigation through this procedure, then ensuring adequate documentation and evidence for trials becomes even more important. In health care cases, it is often necessary for a provider to prove its innocence. That is often even more so the situation when it involves the nursing home industry. Although other methods of avoiding litigation remain, the criteria of a nursing home in how it selects its resident population does not appear to be such an avenue going forward.


If you have any questions regarding ways to establish adequate documentation procedures, please contact Brandon Goldberg at


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 & HITECH 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 therapists, pharmacy consultants, information technology specialists, nurse practictioners, administrators, orthodists & prosthetists and EMS professionals, 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.