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 10                  ADVERTISEMENT             October 2013

Like us on FacebookView our profile on LinkedInFollow us on Twitter  

In This Issue
Separating Claims of Harassment from Legitimate Management
CMS Issues New Instructions Regarding CPR Policies in Nursing Homes
Matthew R. Streger, Esq. to be Featured Speaker at 2013 NJ Statewide Conference

David Barmak, Esq.


Matthew Streger

Matthew Streger, Esq.



Brandon Goldberg, Esq.


Jennifer Cohen

Jennifer Cohen, Esq.


Aaron Rubin

Aaron Rubin, Esq.




Click on Attorney's Picture for More Information 



             1 Hour

   Webinar Replay   


 Employer Responsibilities Under the Patient Protection and Affordable Care Act



             1 Hour

   Webinar Replay   


 HIPAA & HITECH Update: What You Need to Know


1 Hour Webinar


 Wednesday, November 13, 2013 at 1:00 PM EST


Strategies For Making Allies out of Government Surveyors and Union Representatives


Presented by:

Brandon C. Goldberg, Esq.     



Separating Claims of Harassment from Legitimate Management    

By: Brandon C. Goldberg, Esq.


A certified nursing assistant (CNA) is in the facility break room a little too long - again. The charge nurse, frustrated, storms into the break room and yells at the CNA to "get back to the unit". The CNA yells back "I'm sorry but I had to make a personal telephone call." The charge nurse, seemingly oblivious to the 5 other employees in the break room, angrily points her finger at the CNA saying, "this is the 3rd time this week!" and threatens to "write her up" for insubordination because the CNA "again" did not tell the charge nurse that the CNA was taking a longer break than she was allowed. As the charge nurse storms out of the break room, the CNA complains bitterly to the 5 other employees in the break room, who saw it all, that she is going to file a complaint with her union against the charge nurse for "unlawful harassment".

Harassment occurs when someone is made to feel intimidated, insulted or humiliated because of their race, religion, national origin, age, gender, disability, or some other personal characteristic specified under antidiscrimination legislation. Unlawful harassment can also occur if such behavior creates a hostile or intimidating work environment.

Harassment can include, but is not limited to, behavior such as: telling insulting jokes about particular racial groups; sending explicit or sexually suggestive emails; displaying offensive or pornographic posters or screen savers; making derogatory comments or taunts about someone's race or religion; and asking intrusive questions about someone's personal life.

Employers must be aware of their responsibility to ensure that the working environment or workplace culture is not racially or sexually "hostile". Potentially hostile working environments include where crude conversations, innuendo or offensive jokes are part of the accepted culture and where pornographic materials are displayed. An employee has the right to complain about the effects of a racially or sexually hostile working environment, even if the conduct in question was not specifically targeted at them.

In contrast to harassment in the workplace, legitimate comment and advice (even if negative) from managers and supervisors regarding the employee's or a group's work performance or work related behavior is perfectly appropriate.

If the charge nurse was motivated by race, religion, national origin, gender, etc. to act in a manner perceived by the employee as "harassing," then the charge nurse is "unlawfully harassing" the CNA. If, on the other hand, the charge nurse is blind to personal characteristics protected by law and is simply trying to do her job, however ineffective she might be, then her behavior is not harassment and is not unlawful.

If you have any questions regarding separating claims of harassment from legitimate management, you can contact Brandon Goldberg, Esq. at 609-454-5351 or

CMS Issues New Instructions Regarding CPR Policies in Nursing Homes

Please click here: to find a CMS memo regarding nursing home CPR policies. With a decrease in the average age of residents, an increase in short-term rehabilitation, and an increase in the cultural diversity of resident populations, CMS has distributed a new policy requiring 
facilities to administer CPR to residents experiencing cardiac arrest in accordance with the residents' advance directives or in the absence of advance directives or a DNR. Facilities can no longer implement default no-CPR policies and must always have CPR-certified staff available. If you have any questions, please contact Brandon Goldberg, Esq. at 609-454-5351 or


Law Firm Attorney to be a Featured Speaker at the 2013 New Jersey Statewide Conference on Emergency Medical Services

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 Emergency Medical Services (EMS) in Atlantic City, November 14 - 16th. 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 area one year ago and resulted in the cancellation of last year's symposium.

Law Offices Of David S. Barmak, LLC      


Our law firm provides integrated regulatory, transactional, employment and litigation/advocacy services to healthcare organizations.


Representative Clients: 

Entities:  Skilled nursing facilities; Home health agencies; Hospice agencies; Hospitals.


Providers: Physicians; Therapists; Orthotists and Prosthetists


Suppliers:  Durable medical equipment; Long-term care pharmacies; Retail pharmacies.


Businesses: Billing; Management service organizations; Independent provider associations


Regulatory Issues: Corporate Compliance Programs (Fraud, waste & abuse; Privacy & Data Security; Employment); Healthcare facility; Licensed Professionals; Medicare & Medicaid (certification, survey and reimbursement); Auditing (legal; clinical; administrative; and reimbursement).


Transaction Issues: General Counsel Services; Contracts.
Employment Issues: Wage and hour; Equal employment opportunity; Discrimination; Whistle-blowing; Employment agreements; Severance packages; Employee release agreements, Non-compete agreements; Non-solicitation agreements; Confidentiality agreements, Employee leave issues, Electronic monitoring and employee privacy, Employee separation (suspensions, terminations and reductions in force); Documentation.


Litigation/Advocacy: Contracts; Employment; Fiduciary issues; Commercial leases; Payment (Managed Care Organizations; Medicare; Medicaid); Guardianship; Professional and facility licensing; Healthcare regulatory; Fraud and privacy issues.
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

Register to Receive Our Health Care Matters Newsletter

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.