Healthcare Matters

   A Complimentary Newsletter From:

Barmak and Associates, LLC  

Managing Risk for Long Term Care and Health Care Providers

Volume 14, Issue 12                ADVERTISEMENT             December 2013

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In This Issue
Gifts from Residents & Family Member - Should they be Accepted?
Affordable Care Act Navigators
The Pervasive Threat of Drug Diversion

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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Happy New Year to you and your families from the attorneys and staff of
 Barmak and Associates, LLC
Gifts from Residents & Family Members - Should they be Accepted?
By: David S. Barmak, Esq.
I was recently at a nursing home and learned that a certified nursing assistant, ("CNA"), was charging a resident $5 per shower! Before we explore why this situation offends every fiber in our body, let's look at the reverse situation. What should a CNA do if a resident says: "Thank you for providing me with the best showers of my life. Here's $5. Happy Holidays." What if a family member says: "Thank you for taking care of my Mom so well. Here's $5." All nursing homes have policies that require the CNA to say to the resident or family member: "Thank you but I cannot accept your generous gift. It is my job to take care of you/your Mom and it is also my pleasure to do so." If the resident/family member is insistent and perhaps even feels slightly hurt or insulted by the CNA's refusal to accept the gift, then the resident/family member will be referred to the supervisor to discuss and alternative form of a gift - perhaps a fruit basket for the entire nursing unit or a contribution to the residents' fund or ... something that can be enjoyed by everyone and not just one employee.

But if the old adage is true, that "tis better to give than to receive", how can we enable the resident/family member to give unless we are willing to receive?  Therein lies the difficulty. We do not know what's really going on in the mind of the resident/family member. In other words, we don't know the real motivation behind the "gift."  Perhaps the motivation is NOT WHAT IT SHOULD BE: "I'm afraid if I don't give you a gift that you will not take care of me." "I'm frightened that if I do not give you money you will not give me a shower." "I'm concerned that if I don't give you a holiday gift that you won't properly care for my Mom."

We cannot read the minds of our residents and family members. Wouldn't that be nice! But we can't. Therefore when a resident and/or family members offers a CNA a personal gift, especially if it involves cash, it is impossible for anyone to tell if the motivation on the part of the resident and/or family member is one of gratitude or fear. To avoid any potential criticism of possible blackmail or coercion, it is best for our staff to NOT accept gifts from residents and/or family members. Perception often becomes reality. Our staff must do everything they can to protect their reputations. Gift giving during the year, especially during the holiday season, is a prime opportunity to ruin one's reputation or to polish it beautifully. We don't need to explain this concept to our staff on the basis of the Federal Anti-Kickback or Anti-Solicitation statutes; the Office of the Inspector General Advisory Opinions; our Compliance Program policies and procedures, etc. Very simply we can explain our policy in terms of protecting one's certification, license and reputation. Every employee I speak with intuitively understands the inappropriateness of accepting a gift from a resident and/or a family member. Couching the reasons in terms of protecting the employee helps support the message, the policy and the well being of our residents.



Affordable Care Act Navigators
By: Brandon Goldberg, Esq. 

There has been a lot of coverage in the news recently regarding the Affordable Care Act (ACA) navigators. Questions as to their training, conduct, and capability have been raised in numerous parts of the country. However, often people are not quite sure who these navigators are and what their job is.


Navigators are paid employees who assist people in signing up for insurance through the ACA exchanges. However, they are not directly employed by the government. Rather, they are employed by one of a list of organizations partnered with and funded by the state or federal government to provide navigator services. Depending on whether a particular state uses its own exchange or the federal exchange determines whether the organization would be affiliated at the state or federal level. Examples of such organizations are universities, chambers of commerce, and community health centers. Some navigators can also be affiliated with the insurance industry, but they cannot work for any insurance company whose plans are an option for the individual the navigator is helping.


The standards of training, including examinations, vary from state to state, and they are conducted to a large extent organization to organization. While some guidelines do exist, a lot of the process is conducted locally and on the state level. Although navigators are supposed to be fair, honest, and unbiased, there have been allegations recently that some navigators have encouraged individuals to lie in order to get better insurance premiums. While the vast majority of navigators are likely people just trying to help others obtain insurance plans, a few bad apples can reflect poorly on the entire process and demonstrate a need for more standardized training and qualification evaluations.


If you have any questions regarding the roll out of the Affordable Care Act, please contact Brandon Goldberg, Esq. at 609-454-5351 or


The Pervasive Threat of Drug Diversion
By: David S. Barmak, Esq. 

I once represented a physician before the Board of Medical Examiners.  My client's goal was to persuade the Board that his license should be reinstated. The Board had previously taken away his license for having abused OxyContin.  My client had claimed to have successfully undergone drug treatment and was ready to responsibly practice medicine. 


During the hearing, a member of the Board confronted my client with proof that my client had filled a prescription for himself for OxyContin. This would have been unlawful because he did not have an active license. My client claimed that he had been unaware until he went to the pharmacy that he had a blank prescription in his wallet. I felt like I was in a Perry Mason TV show - my client being the witness on the stand who recants his testimony under cross examination to the stunned amazement of the attorney.  My client's answers were a complete reversal from his earlier claims, and they were not entirely sensible. Upon further cross examination, my client even claimed to have unused prescription pads in his attic. This was my first encounter with a professional drug addict. I couldn't believe a professional, a physician no less, could succumb to losing his license and then ruin his opportunity to get it back. 


The OIG has reported that there is a prescription drug epidemic involving drug diversion.  Often, drug diversion involves criminal enterprises and networks. In addition to patients, providers, and pharmacies, these networks may include patient recruiters, money launderers, and street dealers and gangs. 


Institutional providers are frequently confronted by drug diversion and abuse of controlled substance issues.  Drug addiction among health care workers is a well-known issue. Health care professionals, with easy access to controlled substances, sometimes unlawfully obtain them for personal use and/or sale. A common investigation in both hospitals and skilled nursing facilities involves potential diversion of narcotic drugs. Thousands of nurses, physicians, and pharmacists have been sanctioned by their licensing authorities for drug addiction and diverting patient drugs to personal use. It is estimated that 15 percent of pharmacists, 10 percent of nurses, and 8 percent of physicians have prescription drug abuse problems.

Drug diversion and abuse in hospitals and skilled nursing facilities involves numerous scenarios:  A health care provider may divert controlled substances either directly from the facility's supplies or from patients.  Health care providers may give a patient part or none of the prescribed dose while documenting on the patient's chart that the full dose was given.   Drugs may be stolen from available drug supplies and patient records falsified to reflect that the patient did receive the drugs.  As great as the harm is to the healthcare providers who abuse drugs, their substance abuse also puts patients' lives at risk.  These risks include the administering of a smaller-than-prescribed dose, substituting saline for the patient's medication, or withholding medications from patients for their own use. The impact is potentially horrendous:  patients may not receive relief from their pain and may achieve less than full recovery.  Indeed, improper doses of prescribed medication may have very tragic consequences.  Quality of care is also a serious concern: a healthcare provider's use of drugs while working may impair his or her ability to perform properly.


These situations all present significant regulatory and litigation risks. Healthcare facilities that handle controlled substances must comply with DEA Title 21 CFR Part 1300 regulations relating to security, records, inventories, orders, prescriptions, disposal, wasting, return, and accounting for controlled substances to minimize the risk of diversion. Failure to do so could negate any efforts by your attorneys to mitigation your damages in the event of a government investigation or lawsuit. For additional information about requisite procedures to include in any substance abuse prevention program please contact Aaron Rubin, Esq. at (609) 454-5351 or 


Barmak and Associates, 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.
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This newsletter has been prepared by Barmak and Associates, 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

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