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 14, Issue 3                       ADVERTISEMENT                      MARCH 2013

In This Issue
Staffing Insufficiency: Whose License is Really at Risk?
Congratulations to Matthew R. Streger!
David Barmak, Esq. Invited to Teach Attorneys Nationwide on SNF Compliance Programs

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David Barmak, Esq.
Matthew Streger
Matthew Streger, Esq.
Brandon Goldberg, Esq.
Jennifer Cohen
Jennifer Cohen, Esq.
Aaron Rubin
Aaron Rubin, Esq.









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Licensed Nursing Home Administrators (LNHA) are professionally and personally responsible for providing quality care to residents. A LNHA's license and home are at risk if she/he knows or should have known that insufficient staffing or incompetent staffing are causing residents to needlessly suffer. 


The LNHA's responsibility is to comply with the law. The Federal Omnibus Budget Reconciliation Act (OBRA) statute and regulations issued under it require nursing facilities to provide sufficient staff so their residents attain or maintain their highest practicable physical, mental and psychosocial well-being.


The Office of Inspector General of the U.S. Department of Health & Human Services (OIG) identifies the issue of sufficient staffing as a risk area that must be addressed in an effective nursing facility's compliance program.  It says sufficient staffing cannot be reduced to, or even measured by, a set of consistent objective criteria. How much staffing is "sufficient" depends upon a variety of factors potentially unique to each facility.


The OIG has stated that some nursing facilities have systematically failed to provide staff in sufficient numbers and with appropriate clinical expertise to adequately serve their residents. The OIG urges facilities, as part of their compliance programs, to regularly evaluate their staffing levels and patterns to determine whether they have sufficient staff, with appropriate competencies, based on the acuity levels of their residents.  In other words, the OIG expects LNHAs to follow the law and do whatever is necessary to take care of residents. "Sufficient staffing levels", when reduced to a formula, are just fictions for show and tell.  In the real world of liability, the only sufficient staffing levels are those that get the job done. Your liability for sufficient staffing levels is the gap between fiction and reality.


LNHAs must remember it is their license which is at risk if the law is not followed. It doesn't matter whether we're dealing with notifying the Department of Health about resident abuse or providing sufficient and competent staffing as required by OBRA.








Congratulations to Matthew R. Streger, Esq.,

of the Law Offices Of David S. Barmak, LLC

who was selected as a Super Lawyers

Rising Star for 2013, marking his second-

consecutive year receiving this award.

Only 2.5% of attorneys in the state are

named to this list and only a handful of those

focus on healthcare law.



David Barmak, Esq., Invited to Teach Attorneys Nationwide on SNF Compliance Programs 



The Long Term Care Task Force of the American Bar Association's Health Law Section has invited David Barmak, Esq. to serve on a webinar panel explaining the ins and outs of Skilled Nursing Facility (SNF) compliance programs to a nationwide audience of attorneys. The program, to be held in May, will focus exclusively on changes in compliance under the Affordable Care Act and will offer attorneys the opportunity to understand how to construct, implement and maintain effective programs. With a March 2013 deadline for the adoption of such programs and subsequent deadlines occurring during the course of the coming year, the Bar has turned its focus to this critical topic to ensure its members are able to successfully guide their healthcare clients. With over a decade of experience in this field of law in particular, Mr. Barmak is looking forward to providing his colleagues with an understanding of healthcare compliance programs.





WHAT IF a  former hospital case manager approaches your company and promises an unlimited number of hospital referrals in exchange for 20 percent of the total receipts paid by Medicare or Medicaid. Sounds too good to be true!   But, wait a minute, and think back to Sky Masterson's (Guys and Dolls musical) well intentioned advice:


"One of these days in your travels, a guy is going to show you a brand-new deck of cards on which the seal is not yet broken.

Then this guy is going to offer to bet you that he can make the jack of spades jump out of this brand-new deck of cards and squirt cider in your ear.

But, son, do not accept this bet, because as sure as you stand there, you're going to wind up with an ear full of cider!"



CCH recently reported that a federal court in Oklahoma was confronted with the following facts:



Joint Technology, Inc., (Joint), a distributor of medical equipment, entered into an employment contract with Gary Weaver (Weaver) to solicit referral business from medical providers and health clinics. Joint paid Weaver an average of 20% of Joint's total billings.  Ultimately, Joint sued Weaver on the basis of the employment contract, claiming that Weaver breached the exclusivity and non-solicitation prohibitions within the employment contract prior to and after termination of his employment.



A contract is void if it violates a statute. 



Joint's employment contract with Weaver was void as a matter of law because it was in violation of the Medicare Anti-Kickback Act: a person who offers to pay remuneration to another person violates the Act if at least one purpose of the offer or payment is to induce Medicare or Medicaid patient referrals. The statutory exception is if the person is a bona fide employee.  The contract unlawfully provided for Joint to pay Weaver a commission on total billings but did not treat Weaver as a bona fide employee.  The contract explicitly stated that Weaver "shall not be deemed a servant or employee ... and the company has no control over the operations of the agent."  


As Sky Masterson cried out towards the end of Guys and Dolls:  "Daddy, I got cider in my ear!"


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.


The recipient may, if the newsletter is inaccurate or misleading, report the same to the Committee on Attorney Advertising.


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, 2013.  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.