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 8                  ADVERTISEMENT             August 2013

In This Issue
New NJ Domestic Violence Law Expands Unpaid Leave Rights for Employees
Indepdendent Pharmacist Consultants
EMS Convention
Spy Cams and Employee Discipline

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Aaron Rubin
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New NJ Domestic Violence Law Expands Unpaid Leave Rights for Employees
The newly implemented New Jersey Security and Financial Empowerment Act (SAFE Act), effective on October 1, 2013, provides employees with up to 20 days of unpaid protected leave in a 12 month period when the employee or the employee's child, parent, spouse, domestic partner, or civil union partner has been the victim of domestic violence or a sexual offense. Employers with 25 or more employees are required to comply with this law. Employees are eligible if they have worked for the employer for at least 12 months and have worked at least 1,000 hours in the 12 month period immediately preceding the leave.
The purpose of the leave is to provide the employee with the time to address issues relating to the incident(s), including:

* Seeking medical attention for, or recovering from, physical or psychological injuries caused by domestic or sexual violence to the employee or covered family member;
* Obtaining services from a victim services organization;
* Obtaining psychological or other counseling for the employee or covered family member;
* Participating in safety planning, temporarily or permanently relocating, or taking other actions to increase the safety of the employee or covered family member from future domestic or sexual violence or to ensure economic security;
* Seeking legal assistance or remedies to ensure the health and safety of the employee or covered family member; or
* Preparing for, attending, or participating in any civil or criminal legal proceeding related to or derived from the incident(s).
If the need for leave is foreseeable, employees are required to give written notice to the employer as far in advance as is reasonable and practical under the circumstances. Employers can request documentation verifying the need for leave. Documentation could include:

* A restraining order or other court documentation;
* A letter from the prosecutor documenting the incident(s);
* Documentation of the conviction of the person responsible for the incident(s);
* Medical documentation of the incident(s);
* Certification from a certified Domestic Violence Specialist or the director of a designated domestic violence agency or Rape Crisis Center that the employee or covered family member is a victim of domestic violence or a sexually violent offense; or
* Other documentation or certification of the domestic violence or sexually violent offense provided by a social worker, member of the clergy, shelter worker, or other professional who has assisted the employee or covered family member in dealing with the incident(s).
The employee can choose to use, or the employer can require the employee to use any or all accrued paid time off during any part of the 20 day leave. Additionally, if the situation also qualifies the employee for leave under FMLA and/or NJFLA, those leaves would run concurrently with leave under the SAFE Act.
Employers are required to display conspicuous notice of employee rights and obligations pursuant to the SAFE Act in a manner prescribed by the Commissioner of Labor and Workforce Development. This notice has not yet been released by the Commissioner.
If you have any questions regarding SAFE Act compliance or other employment law issues, please contact Brandon Goldberg, Esq. at 609-454-5351 or
Independent Pharmacist Consultants
In the October 11, 2011, Federal Register Proposed Rule, the Centers for Medicare and Medicaid Services (CMS) recommended that consultant pharmacists be required to be independent from LTC pharmacies, pharmaceutical manufacturers, distributors or their affiliates. CMS voiced concern that the lack of independent consultant pharmacists enabled some LTC pharmacies to provide consultant pharmacists to nursing homes at below the LTC's cost and below fair market value. CMS noted that "such arrangements have the potential to directly or indirectly influence consultant pharmacist drug regimen recommendations."

 Moreover, CMS indicated that consultant pharmacists' lack of independence from an LTC pharmacies' interest could lead to recommendations by consultants that steer nursing homes to recommend or use certain drugs for their residents. This in turn could result in LTC pharmacies overprescribing medications, prescribing drugs that may be inappropriate for LTC or geriatric residents, or the use of unnecessary or inappropriate medications. These likely potential outcomes could in turn pose significant health-related consequences to some nursing home residents' health and safety.

 As of this date, CMS has decided not to finalize the independence requirement, pending further study of the issue. That said, CMS has made it clear that it remains convinced that problems associated with conflicts of interest persist throughout the LTC setting. As a result, CMS stated that broader changes to LTC pharmacies, beyond requiring consultant pharmacist independence, are necessary to ensure quality of care and patient safety.
Even in those states, such as New York and New Jersey for example, that have acted proactively and already require independent consultant pharmacists in nursing homes, there is nevertheless the need to monitor the integration of pharmacy information.  An effective compliance program can serve to maximize efficiencies and to highlight and communicate potential liabilities to ensure full compliance with applicable federal and state laws.

 Accordingly, CMS stated that it expects the full LTC industry to immediately take real and concrete steps to improve transparency and reduce the prevalence of both the prescribing of unnecessary drugs and drug overutilization in nursing facilities. CMS noted that these problems are of particular urgency with regard to off-label use of atypical antipsychotics. Consequently, CMS stated that it plans to implement requirements for nursing facilities in order to prevent problems associated with conflicts of interest.

 If you have questions regarding LTC pharmacies and related statutes and regulations, please contact Aaron Rubin, Esquire at 609-454-5351 or



Matthew R. Streger, Esq., Counsel at the Law Offices of David S. Barmak, LLC, will be a featured speaker at the 2013 New Jersey Statewide Conference on EMS in Atlantic City, November 14 - 16,2013.   Mr. Streger will be speaking on "The Ethical Dilemma: Ethics Outside the Box", "EMS Legal Mythbusters" and "Swimming with Sharks: A Litigation Primer".  This conference is the largest symposium of EMS providers in New Jersey, and this year will focus on the response to Superstorm Sandy which impacted this state one year ago and resulted in the cancelation of last year's symposium.


Spy Cams and Employee Discipline
With cameras becoming smaller and more advanced every year, the ability for people to successfully hide them in long term care resident rooms grows. While techniques to avoid cameras in the first place and addressing the inappropriateness of camera  placement with residents and families are very important, equally important is what to do with employees who are caught on camera acting inappropriately. Employee rights regarding recordings include not being recorded in areas where they would not expect it. Because HIPAA rules make cameras in resident rooms highly risky, if not generally illegal, without proper resident/representative consent, employees can reasonably expect that there are no cameras in the rooms. However, this does not mean that an employee captured on video acting inappropriately is immune from discipline.

In fact, the opposite holds true. An employee caught on video acting inappropriately should be disciplined consistently with facility discipline policy. The video, even if captured inappropriately, is still evidence. The type of discipline will be proportional to the inappropriate conduct, and all responses to inappropriate conduct caught on video should be extensively documented. If the video is ever used in a subsequent lawsuit, demonstrating the facility's response to the conduct and the steps taken to prevent future infractions will be critical in building a defensive narrative for trial.

Should a resident or family member tell you they have captured video of an employee acting inappropriately, request a copy of the video for investigative and discipline purposes. If an arrangement is reached with the family that permits the camera to remain, and assuming HIPAA is satisfied and employees are informed to the extent required by law, then the family should agree to continue providing the facility with all video for proper monitoring and response. That is the only way that the video can be properly used to respond to any issues that arise and ensure an ongoing high quality of care for the resident.

If you have any questions regarding hidden cameras and employee discipline or any other employment law issues, please contact Brandon Goldberg, Esq. at 609-454-5351 or
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
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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.
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