Healthcare Matters

   A Complimentary Newsletter From:

Barmak and Associates, LLC  

Managing Risk for Long Term Care and Health Care Providers

Volume 15, Issue 1                       ADVERTISEMENT                            January 2014

Like us on FacebookView our profile on LinkedInFollow us on Twitter  


In This Issue
What SNFs and "The Wolf of Wall Street" Have in Common
New Proposed Rules for Emergency Preparedness
NJ Gender Equity Law Now Has Posting & Notice Requirements
David

David Barmak, Esq.

 

Matthew Streger

Matthew Streger, Esq.

 

Brandon

Brandon Goldberg, Esq.

 

Jennifer Cohen

Jennifer Cohen, Esq.

 

Aaron Rubin

Aaron Rubin, Esq.

 

  

 

Click on Attorney's Picture for More Information 

 

AN EFFECTIVE HEALTHCARE COMPLIANCE PROGRAM: ESSENTIAL FOR SEPARATING THE SHEEP FROM THE WOLVES

What Skilled Nursing Facilities and the "Wolf of Wall Street" Have in Common

By: David S. Barmak, Esq.

WHAT IF Jordan Belfort, the "Wolf of Wall Street", (subject of the recently released Martin Scorsese film based upon a memoir about Belfort's exploits as a crooked broker), had chosen to own skilled nursing facilities (SNFs), ostensibly providing care for residents instead of owning a brokerage company and selling penny stocks?  Imagine if Belfort, instead of starting the brokerage firm Stratton Oakmont and defrauding investors with fraudulent penny stock sales during the 1990's had begun his career as an administrator in training, eventually becoming licensed and owning a hundred SNFs?  His chances of having been caught, going to jail and making restitution for Medicare and Medicaid fraud would have been very slim prior to the passage of the Patient Protection and Affordable Care Act.  Had he started with his first SNF in the 1980's, he might still be earning millions of dollars. 

 

Healthcare fraud might easily be the most lucrative crime with the least likelihood of getting caught in the United States.  The Patient Protection and Affordable Care Act has not changed criminal opportunities but has significantly increased the likelihood of being caught and prosecuted. 

 

Healthcare and investment fraud have a primary commonality: both are white-collar crimes and as such, are viewed by regulatory agencies as interchangeable.  It is critical to differentiate the sheep (the SNFs that make honest mistakes) from the wolves (the organized criminals - regardless of the industry - that intentionally commit crimes).  An effective compliance program is essential for conveying this differentiation. 

 

A Quick Primer On White-Collar Crime

 

White-collar crime has its origins in the social struggles stemming from the transition from an agrarian society to an industrial society.  The conflict between the "haves" and the "have-nots" for wealth and control, and the laws created to regulate protection for the "have-nots" from the "haves" are the genesis for white-collar crime.

 

Legislation was created to try to protect consumers from the obscene finance industry frauds perpetrated by Jordan Belfort.  Belfort, however, was a babe in the woods compared to Michael Milken (He was indicted for racketeering and securities fraud in 1989 for inside trading during which he earned $1 billion in a four-year period during a 17 year career . He served 2 years in jail and repaid $600 million dollars. He was reported to have an estimated net worth of around $2 billion in 2010) and Ivan Boesky (He collaborated with Milken.  He inspired the famous fictional Wall Street movie character Gordon Gekko.  Boesky spoke at the School of Business Administration at Berkeley commencement in May of 1986 and was quoted as saying:  "Greed is all right, by the way. I want you to know that. I think greed is healthy. You can be greedy and still feel good about yourself." Sadly but telling people in the audience reportedly laughed and applauded following Boesky's speech.)

 

The Patient Protection and Affordable Care Act like its predecessors the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 and the Deficit Reduction Act of 2005, focuses on protecting consumers by targeting Medicare and Medicaid fraud.   

  

Regulatory Enforcement's Perspective 

Of White-Collar Criminals

 

If legislation concerning white-collar crime stems from the conflict between the "haves' and the "have- nots", enactment of such laws is just the beginning of societal reform. The conflict then extends to the enforcement process. Regulatory agencies are focusing on white-collar criminals not street criminals. Our judicial system double standard starts here.  SNFs reasonably assume that regulatory agencies like the Office of Inspector General (OIG) view SNFs as attempting to provide their residents with quality care, employing hundreds of workers, while still turning a profit (proprietary) or a surplus (non-profit), therefore deserving the benefit of the doubt when ferreting out criminal intent from civil mistake.  NOTHING COULD BE FURTHER FROM THE TRUTH!

 

All regulatory agencies have one responsibility - deal with corporate crimes - which leads to viewing those who commit corporate crimes as white-collar criminals. Forget that "our industry" claims to have an inherent value of caring for people.  Belfort allegedly rationalized his "pump and dump" penny stock fraud as providing some investors with the potential to work their way out of financial debt (to date only 10% of the $110 million of court mandated restitution moneys have been paid to the 1,513 clients he defrauded).   

  

Essential Value Of An Effective Compliance Program

  

So what does Belfort have in common with the majority of Skilled Nursing Facilities?

 

From the perspective of intent - ABSOLUTELY NOTHING!

 

From the perspective of appearances in highly regulated industries - Unfortunately, a lot.

 

Our government places an extremely high priority on protecting helpless citizens from victimization by unscrupulous business people. Belfort showed all too clearly how investment and banking fraud can destroy the lives of innocent people.  The small list of SNFs accused of fraudulently receiving government monies (really our money) through the provision of substandard quality of care has, sadly and erroneously, given our legislatures and regulatory agencies the opportunity to superficially equate the Belforts of the brokerage industry with our entire healthcare industry, contrary facts notwithstanding.

 

An effective compliance program is THE BEST way to dispel this misguided perspective.

 

Our government clearly recognizes the importance of an effective compliance program.  When the Office of Inspector General (OIG) comes to a SNF, its first 3 questions are:  a) "Do you have a compliance program?" b) "Who is your Compliance Officer?"; and c) "Who is responsible for compliance?" (Answer: "We all are!")  When a SNF acknowledges or is adjudged to have committed wrongdoing, the OIG imposes a very burdensome and expensive corporate integrity agreement.

 

From the first moment on-site at a SNF, the OIG attempts to gauge if there's a corporate culture of good faith adherence to laws and regulations. 

 

An effective compliance program is the sine qua non of good faith. 

 

An effective compliance program guides the OIG's white-collar criminal perspective towards civil mistake and away from criminal intent.

 

An effective compliance program helps ensure that a SNF's employees really are uniformly and consistently operating in a law-abiding manner.  This is critical in steering regulators, faced with a significant behavioral error of any sort, towards a determination of civil mistake rather than criminal intent.  A SNF's employees and overall operations must be portrayed to regulators as operating in a legally compliant manner, thereby supporting the correct perspective that errors are really just mistakes, and not instances of intentional fraud.

 

An effective compliance program significantly and dramatically helps to separate and portray the explicit differences between the SNFs (sheep) passionately dedicated to providing residents with wonderful quality care while making a good-faith effort to adhere to the law; from the Belfort's (wolves) of our healthcare industry who manipulatively maximize profits with the tragic consequences of substandard quality of care with flagrant disregard for our laws and regulations. 

 

An effective compliance program is essential for separating the sheep from the wolves. 

 

 

New Proposed Rules for Emergency Prepardness
By: Brandon C. Goldberg, Esq.

The Centers for Medicare and Medicaid Services ("CMS") is proposing new rules for emergency preparedness requirements for Medicare and Medicaid participating providers.

 

These proposed rules would establish national emergency preparedness requirements for participating providers to ensure that they adequately plan for natural and man-made disasters and coordinate with federal, state, tribal, regional, and local emergency preparedness systems. It is also intended "...to  ensure that these providers and suppliers are adequately prepared to meet the needs of patients, residents, clients, and participants during disasters and emergency situations."

 

Despite many providers already being required to have such plans in place, CMS is concerned that there is a lack of uniformity and sufficiency in existing requirements and provider preparedness. In particular, CMS is focusing on four core elements: emergency plans, policies and procedures, communication, and training and testing. Their request for feedback is focused on three main areas: maintaining subsistence needs for residents and staff, the frequency of testing for emergency generators, and the frequency of reviewing and updating policies and procedures. CMS is also interested in comments on alternative approaches to implementation.

 

Although these rules are not yet in place, providers should begin arranging for a full review of their emergency preparedness operation. As the quantity and variation of disasters in recent years has increased, it is critical that providers have a sustained and adaptable plan in place.

 

Here is a link to the text of the proposed rule: http://www.gpo.gov/fdsys/pkg/FR-2013-12-27/pdf/2013-30724.pdf

 

Comments are due to CMS by February 25th. If you have any questions regarding emergency preparedness, you can contact Brandon Goldberg, Esq. at 609-454-5351 or bgoldberg@barmak.com.

 

 

New Jersey Gender Equity Law Now Has Posting & Notice Requirements
By: Aaron Rubin, Esq.

Effective January 6, 2014, businesses in New Jersey that employ fifty (50) or more employees are required to comply with the New Jersey Gender Equity law's notice requirements. Employers must (1) post a notice regarding gender equity in a conspicuous place accessible by all employees, (2) provide a copy of the notice to all employees annually, and (3) receive a signed acknowledgment from the employees each year.

 

Additionally, employers must provide employees with a copy of the notice upon an employee's request. Moreover, employers must receive acknowledgements from all employees, within thirty (30) days of issuing the notice, that they received and understood the notice. Such acknowledgements can be made both via a written acknowledgement or via an electronic acknowledgement form.

 

If you have any questions regarding the New Jersey Gender Equity Law, you can contact Aaron Rubin, Esq. at 609-454-5351 or arubin@barmak.com

  

 

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.
  
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 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

www.barmak.com

  
  
Register to Receive Our Health Care Matters Newsletter
 

Copyright, 2014.  Barmak and Associates, LLC.  All rights reserved.
No portion of these materials may be reproduced by any means without the advance written permission of the author.