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 12                          ADVERTISEMENT                                               DECEMBER 2012

In This Issue
When Does Workplace Gossip Violate HIPAA?
Aaron Rubin Joins Law Firm and is Sworn Into the New Jersey Bar
Government Memos Regarding Certificates of Need are Protected from Public Release

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

Brandon Goldberg, Esq.

Jennifer Cohen

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Wishing A Happy Holiday Season to you and your Families from the Attorneys and Staff of the Law Offices Of

David S. Barmak, LLC

When Does Workplace Gossip

Violate HIPAA?

Consider the following facts:


Elayna and Sarah are co-managers at a nursing home. Elayna and Sarah used to work with Joshua, who Elayna sees at her daughter's high school basketball tryouts. Eager to catch up on the "who, what, when, where, and hows", Joshua asks Elayna if Sarah is still drinking at work. Elayna exclaims, "It's even worse!" Sarah's staff and Sarah hear the gossip and Sarah is mortified. Sarah immediately goes to Karen, the Vice President, and threatens to sue the nursing home unless Elayna is reprimanded and fired.


Does this gossip violate the Health Insurance Portability and Accountability Act of 1996 (HIPAA)?


HIPAA protects individually identifiable information, referred to as protected health information or PHI, including demographic data which identifies the individual and relates to:


(1) the individual's past, present or future physical or mental health/condition;

(2) the provision of health care to the individual; or

(3) the past, present, or future payment for the provision of health care to the individual.


In short, HIPAA protects patients' PHI. While hurtful, these statements do not constitute a disclosure of PHI under HIPAA. However, Sarah may be able to pursue legal action against Elayna, depending on whether additional facts are present or criteria is met.


Does this gossip violate the Compliance Program Code of Conduct / Employee Manual?


An effective compliance program should have a Code of Conduct and Employee Manual, which clearly delineate expected behaviors of staff, contractors, and vendors. These documents should require that staff behave ethically and professionally while they are at work. Employers may require that employees represent themselves in a professional and ethical manner in the community, as they are a representative of the company, thus making the requirement a 24/7 commitment. Should an employee violate the Code of Conduct and/or a provision of the Employment Manual, he or she may be disciplined, up to and including termination.


Does it matter that the allegation that Sarah drinks on the job is NOT true?


The veracity of the statement is irrelevant. Elayna's behavior is what is reprehensible. Presuming that there is a Code of Conduct or relevant provision of the Employee Manual in effect, Elayna may be disciplined for her actions.


What options does Karen have when dealing with Elayna?


Karen is best served to conduct an investigation, starting with a statement from Elayna as to what she did/did not say. If Elayna accepts responsibility for her alleged behavior, appropriate training, as a part of an effective compliance program, should be conducted. Disciplinary actions should be dictated by the Employee Manual, as well as past practices.


What options does Karen have when dealing with Sarah?


Sarah may have a valid cause of action against Elayna. Sarah likely does not have a valid cause of action against her employer. Karen may acknowledge that Sarah has the right to consult an attorney, if she so chooses.


Aaron Rubin Joins Law Firm and is Sworn Into the New Jersey State Bar

 Aaron Rubin


Aaron Rubin, Esq., a graduate of Seton Hall University School of Law, has joined the Law Offices of David S. Barmak, LLC.


While at Seton Hall, Aaron was an associate editor for the Seton Hall Circuit Review law journal, which published his comment on qui tam lawsuits in the Spring 2012 edition, as well as a member of the Seton Hall Center for Social Justice Civil Litigation Clinic.  Aaron also served as a judicial intern to the Honorable Garrett E. Brown, Chief Judge of the United States District Court for the District of New Jersey as well as to the Honorable William J. Martini of the United States District Court for the District of New Jersey.


Aaron was recently sworn in to the New Jersey State Bar.  He will be sworn in to the New York State Bar in Albany on January 24, 2013.


As an associate at the Law Offices Of David S. Barmak, Aaron focuses his practice on providing compliance and legal services to health care providers, including skilled nursing facilities.


Government Memos Regarding Certificates of Need are Protected from Public Release

Several weeks ago, a New Jersey appeals court ruled that government memos regarding certificate of need applications were not subject to the Open Public Records Act. That law makes many government documents available for public release. In the case, Ciesla v. Department of Health, the panel of judges ruled that government advisers need the freedom to exchange their opinions and ideas without concern for what the public response to them might be if ever released. Otherwise, they may feel hindered from offering full and honest guidance to each other and the senior policy makers. Therefore, the judges felt that the only product that could be released was the final decision and report itself.

The case originated with Hackensack University Medical Center's application for a certificate of need to open a small facility on the site of what was once Pascack Valley Hospital in Westwood. This plan was opposed by Englewood Hospital and Medical Center and The Valley Hospital of Ridgewood. Those hospitals requested the New Jersey Department of Health's internal documents regarding Hackensack's application, but the Department refused for the same reasons eventually upheld by the court.


This case will limit the ability of people and companies to challenge the issuance of a certificate of need. They will be unable to use government deliberations to attempt to find reasons to delay or stop the construction, expansion, acquisition, or merging of facilities. Therefore, once a certificate of need is granted, the user can expect an easier path forward.


If you have any questions regarding certificates of need, constructing new facilities, or merging with or acquiring existing facilities, please contact Brandon Goldberg 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 of products and services to those providers, 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, orthotists & 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 accurate care plans, incident and accident 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.