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 14, Issue 7                   ADVERTISEMENT                     July 2013

In This Issue
MEET OUR LITIGATION TEAM
HIPAA UPDATE

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

  

 

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OUR LITIGATION TEAM IS
READY TO WORK FOR YOU!
 
No matter what situation you may encounter in the day-to-day operation of your healthcare enterprise, the litigation team at the Law Offices of David S. Barmak, LLC, is ready to assist you resolve the conflict. We can represent you in all areas of civil, administrative and criminal litigation.

Our team is experienced in all aspects of litigation and handles cases from the simplest to the most complex. We have successfully litigated matters including employment cases, contract disputes, torts and other malpractice matters, defamation cases and all types of commercial litigation including shareholders disputes and leasing issues. Our attorneys have also successfully resolved insurance reimbursement and fraud issues, administrative & licensure matters, hospital credentialing and privilege cases, fair hearings, regulatory compliance issues, and overpayment demands including statistical extrapolation cases and related claims.
  
The Barmak litigation group consists of Matthew R. Streger, Esq., who is the lead counsel on our team.  He has over 24 years of experience in healthcare as an attorney, healthcare provider and manager, author and lecturer. He focuses his practice on the legal needs of healthcare providers, including the litigation of complex healthcare matters. Matthew is admitted to practice in New Jersey and before the U.S. District of New Jersey and the Third Circuit Court of Appeals Courts.

Brandon C. Goldberg, Esq., is admitted to practice in New Jersey, Georgia and the District of Columbia. Brandon directs his services to regulatory compliance, liability defense, employee relations and corporate contracts for healthcare facilities, practice groups, professionals & businesses. Prior to joining the firm, Brandon was an associate at an Atlanta, Georgia law firm.
  
Aaron Rubin, Esq., is also a member of our litigation team. He is licensed to practice in New Jersey and New York. Prior to joining the firm, Aaron handled a wide range of civil litigation matters while working at a general litigation firm in central New Jersey. He focuses his practice on providing corporate compliance and legal services to healthcare facilities, providers & suppliers, practice groups and businesses.
  
Patricia D. McSherry is a paralegal who supports all the members of the litigation team. She has over 12 years of general business experience. Tricia has a B.A. from Rutgers University and has a certificate in Paralegal Studies from Montclair State University.
                
For further information on our litigation services contact Matthew R. Streger, Esq. at (609) 454-5508 or mstreger@barmak.com.
  
SIGNIFICANT CHANGE TO THE HIPAA BREACH NOTICE THRESHOLD
 
  
As discussed in last month's edition of Health Care Matters, the January 25, 2013 final Health Insurance Portability and Accountability Act of 1996 (HIPAA) rule made significant changes to the privacy and security regulations.  Perhaps most significant, however, is the elimination of a risk of harm threshold for when breach notice is required.

 

Under prior guidance, notice of breach was required when an assessment concluded that the disclosure posed a significant financial, reputational or other harm.  Fearing too much subjectivity in that standard, allowing covered entities to avoid notification, the final rule requires covered entities and business associates to notify individuals of a breach unless they can demonstrate a low probability that protected health information (PHI) was compromised.  In making this determination, the entity must conduct a risk assessment examining the following factors:
  
* Nature and extent of PHI involved, including the types of
   identifiers and the likelihood of re-identification;
* The unauthorized person who used the PHI or to whom the
   improper disclosure was made;
* Whether the PHI was actually acquired or viewed; and
* The extent to which the risk to the PHI was mitigated.
  
The burden is on the covered entity or business associate, if applicable, to show that no breach occurred.  If it is determined that a breach took place, notice of the breach must be provided to:
  
* Affected individuals, no later than sixty (60) days after
  discovery of the breach;
* Prominent local media, if the breach involves more than five
   hundred (500) persons in a state or jurisdiction;
* The Department of Health and Human Services, with notice to
   the individuals, if the breach involves more than five hundred
   (500) individuals
* In all other instances, notice must be provided to
   the Department of Health and Human Services within sixty
   (60) days after the close of the calendar year in which the
   breach is discovered.

 

No breach notice is required if the covered entity or business associate can demonstrate a low probability that the PHI was compromised.

 

In order to accomplish this, you must train your workforce on HIPAA's privacy and security requirements.  Business associates should be told of their roles and responsibilities regarding compliance, documentation and breach notification in a business associate agreement.

If you need any assistance in the creation or implementation of a HIPAA compliance program or if you would like assistance in the drafting, reviewing or editing of a business associate or related HIPAA agreement, please contact Jennifer Cohen, jcohen@barmak.com, at the Law Offices of David S. Barmak.
Law Offices Of David S. Barmak, LLC
Our law firm provides integrated regulatory, transactional, employment and litigation/advocacy services to healthcare organizations.
  
Clients:  Billing and Management Providers, Durable Medical Equipment, Prosthetics, Orthotics and Supplies (DMEPOS), Long-Term Care Providers, Geriatric Psychiatric Hospitals, Home Health and Hospice Organizations, Long Term Care Suppliers, Independent Provider Associations, Non-physician Providers, Physician Practices and Professional Organizations, Retail Pharmacies
 
Regulatory: Corporate Compliance Programs, Fraud and Abuse, Privacy, Health Information Technology, Facility and Professional Regulation and Operation. Medicare and Medicaid Payment and Certification, Tax-exempt Organizations
  
Transactional: General Counsel Services, Contracts
        
Employment: Wage and hour disputes, Equal opportunity employment laws, Employment contracts, Severance packages and release agreements, Restrictive covenants, Non-competition and Confidentiality agreements, Employee leave issues, Electronic monitoring and employee privacy, Layoffs, terminations and reductions in force, Policy and procedures documentation
  
Litigation/Advocacy: Civil litigation in business disputes, Contractual disputes, Employment disputes, Fiduciary disputes, Commercial lease disputes, Managed Care disputes, Guardian Proceedings, Licensing and regulatory proceedings, Professional License Proceedings, Medicare / Medicaid fraud proceedings
 
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
                                               www.Barmak.com
 
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.