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David Barmak, Esq.
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Matthew Streger, Esq.
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Brandon Goldberg, Esq.
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Jennifer Cohen, Esq.
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Aaron Rubin, Esq.
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1 Hour
Webinar Replay
Employer Responsibilities Under the Patient Protection and Affordable Care Act
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1 Hour
Webinar Replay
HIPAA & HITECH Update: What You Need to Know
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| LAW FIRM ANNOUNCES CHANGE IN NAME TO REFLECT GROWTH EFFECTIVE DECEMBER 1, 2013 | |
The Law Offices Of David S. Barmak, LLC announced that as of December 1, 2013 the name of the firm will be Barmak & Associates, LLC.
David S. Barmak, Esq., founder, stated that the name change reflects the growth of the firm from a single attorney to a staff of six attorneys.
The firm's growth coincides with the complexity of increased federal and state oversight of healthcare providers, including mandatory fraud, waste and abuse compliance programs for skilled nursing facilities. More than ever, healthcare providers must look to experienced healthcare attorneys to navigate the growing sea of federal and state statutes, rules and regulations.
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| Unpaid Staff and Privacy Breaches |
With the advance of technologies quickly outpacing legal standards and provider policies, supervisors are constantly working to keep their employees up to speed on Health Insurance Portability and Accountability Act (HIPAA) expectations and techniques for compliance. Often lost in the shuffle are those least likely to be educated on the subject despite having great access to protected information: volunteers and student interns.
These individuals have extensive access to protected health information. They interact with patients, have an understanding of different diagnoses and treatment plans, and are often in a position to observe information inadvertently left out by employees. Supervisors must ensure these individuals also have the training necessary to uphold the law and avoid exposing the provider to HIPAA liability.
There are several approaches to achieving this goal. Many providers simply treat volunteers and student interns as employees for HIPAA purposes. They sign confidentiality statements, they participate in trainings, and they are held to the same expectations as employees. Other providers prepare a shortened and more pointed confidentiality statement and hold a limited training more directed toward the person's actual role. Depending on the scope of that role and the nature of the provider's operations, either approach can be reasonable under different circumstances. For student interns in particular, providers can work with schools to provide more streamlined education in advance, potentially even at the school's expense. Any compliance work done by the school should be properly documented in accordance with the provider's compliance program.
Therefore, regardless of an individual's particular status it is important that sufficient effort is taken to close this potential hole for privacy breaches and keep all staff educated on HIPAA.
If you have any questions regarding staff education on HIPAA, please contact Brandon Goldberg, Esq. at 609-454-5351 or bgoldberg@barmak.com
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| Providers: The Anti-Kickback Statute, and the False Claims Act | |
Healthcare providers beware! In the 2010 Patient Protection and Affordable Care Act (PPACA), the Anti-Kickback Statute (AKS) was amended to render AKS violations per se violations of the False Claims Acts (FCA). Pursuant to the FCA, whistleblowers, who are called "relators," may file a qui tam, or whistleblower, suit on behalf of the United States government. Relators are permitted to receive a portion of any of the proceeds from the lawsuit, whether the government ultimately chooses to intervene in the suit or not. Consequently, since 2010 there has been a marked increase in qui tam suits brought against providers by employees alleging violations of the AKS.
A recent qui tam suit involved the Cincinnati-based Omnicare, Inc., the largest supplier of pharmaceuticals to skilled nursing facilities (SNFs). In 2011, a former long-time Omnicare employee, Donald Gale, filed a qui tam suit, under the FCA, alleging that Omnicare violated the AKS. Gale claimed that Omnicare engaged in an illegal "swapping" arrangement where it unlawfully offered SNFs heavily discounted prescription drugs for residents covered by Medicare Part A a federal benefit program that pays SNFs a fixed fee per resident, per day, for the first 100 days of a resident's stay - in exchange for the SNFs referring residents covered by Medicare Part D, for which Omnicare would then bill the full price of the prescription drugs and pharmacy services.
The parties litigated this suit in federal court for a number of years. On October 23, 2013, the parties announced that they had reached a settlement. The terms of the settlement pending approval by the Department of Justice, requires that Omnicare would pay the United States government $120 million to settle the claim while not admitting any wrongdoing.
As is evident from this case, providers need to be vigilant and proactive by instituting a comprehensive fraud, waste and abuse compliance program with regular audits to minimize the possibility of wrongdoing and to support a good-faith effort to comply with federal and state laws and regulations. Moreover, providers must take all reports of noncompliance very seriously. A competent compliance attorney should be retained to ensure that if a red-flag is raised, the compliance attorney can make all efforts to conduct the investigation under the attorney client privilege.
If you have any questions regarding comprehensive fraud, abuse and waste compliance programs, please contact Aaron Rubin, Esq. at arubin@barmak.com or (609-) 545-5351.
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| A Reader Asks How Often do we Need to Check Employee Backgrounds |
November 4, 2013
Dear Editor:
How often do we need to check employee backgrounds to make sure our employees are not "excluded" from participating in any healthcare service for which the federal government pays our nursing home? And, by the way, what are the consequences if we "miss" an exclusion?
Thank you,
Confused and Anxious
Dear Confused and Anxious,
You are not alone in feeling confused and anxious! Nevertheless, the guidelines are very clear. I'm referring back to an Office of Inspector General ("OIG") Special Advisory Bulletin issued on May 8, 2013, entitled the Effect of Exclusion from Participation in Federal Health Care Programs. It addressed the scope and frequency of screening employees and contractors against the OIG's List of Excluded Individuals and Entities (LEIE) to determine if they are excluded from participation in federal health care programs.
First issue: when you check the LEIE, maintain documentation of the names searched so that you can verify later, if needed, the results of potential "hits" and to show that you performed the screening properly. The OIG recommends that all of an individual's names be searched, including a person's maiden name.
Second issue: there is no statutory or regulatory requirement as to how frequently you must check the LEIE. Please note that the OIG updates the LEIE monthly so it would seem reasonable to screen all employees and contractors monthly in order to minimize allegations of an overpayment and Civil Monetary Payment ("CMP") liability; however, monthly is not required. You may recall that in January 2009, Centers for Medicare and Medicaid Services ("CMS") issued a State Medicaid Director Letter recommending that states require healthcare providers to conduct LEIE screens monthly. In 2011 CMS issued final regulations requiring states screen all enrolled providers monthly.
Third issue: the LEIE lists only exclusion actions taken by the OIG. The LEIE does not include the General Services Administration's ("GSA") Excluded Parties List System which affects a person's ability to participate in other federal government procurement or non-procurement transactions. The OIG does not have authority to impose CMP on the employment of a GSA debarred person.
Fourth issue: the LEIE does not include exclusions listed with the National Practitioner Data Bank and Healthcare Integrity and Protection Databank.
Hope this clarifies your confusion and allays the part of your anxiety from not being clear about this critical issue.
Thank you,
Editor
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| 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
www.barmak.com
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