Healthcare Matters

   A Complimentary Newsletter From:

Barmak and Associates, LLC  

Managing Risk for Long Term Care and Health Care Providers

Volume 15, Issue 4                     ADVERTISEMENT                            April 2014

Like us on FacebookView our profile on LinkedInFollow us on Twitter  

In This Issue
Preparing for the Worst
Healthcare Provider Compliance and Privacy Officers Need to Modify Fraud and Privacy Compliance Programs to Address New Risks Associated with Accountable Care Organizations

David Barmak, Esq.


Matthew Streger

Matthew Streger, Esq.

 Of Counsel


Brandon Goldberg, Esq.


Jennifer Cohen

Jennifer Cohen, Esq.


Aaron Rubin

Aaron Rubin, Esq.




Click on Attorney's Picture for More Information 


Preparing for the Worst
By: Brandon C. Goldberg, Esq. 

A few weeks ago, a shooting occurred at a retirement community in the Kansas City area. A daughter visiting her mother was shot and killed in the parking lot. Fortunately, this circumstance is very irregular; however, facilities and their staff must know what to do in the event of such an emergency.


All staff members should be instructed on how to respond to criminal activity. Policies should be established regarding calling the authorities and instituting a facility lockdown. Staff members should know where to go and how to continue safely caring for the residents during and immediately after a violent incident occurs. Resident care planning must focus on post-traumatic stress after any violent incident. 


Staff members should be instructed on techniques for staying vigilant and aware of their surroundings. Suspicious activity should always be reported, as it is better to be safe than sorry. Additionally, all shifts must be equally prepared to respond to violent incidents. Violent tragedies can occur at any time of day.


Security procedures for processing visitors should be established and maintained. All too often, entry into a facility is easy because enforcement of security policies is relaxed. People wandering a facility's halls without appropriate identification  should be politely but assertively questioned, and those responsible for security must always know when former employees are no longer permitted on the facility's premises. 


If you have any questions regarding safety protocols, please contact Brandon Goldberg, Esq. at or 609-454-5351.


Healthcare Provider Compliance and Privacy Officers Need to Modify Fraud and Privacy Compliance Programs to Address New Risks Associated with Accountable Care Organizations
By: David S. Barmak Esq. 

Current Status


Healthcare providers are developing strategies involving Accountable Care Organizations (ACOs). Their goals: to prepare for significant changes in our healthcare delivery and payment systems, to seek additional patient referrals, and receive greater reimbursement for providing high-quality and efficient care.


Fraud and privacy compliance issues can easily drop to the bottom of the priority list during this tumultuous and uncertain time that providers find themselves in.  The risk of exclusion from an ACO preferred provider program compounded by the increasing dominance of managed Medicaid would appear, on the surface, to dwarf fraud and privacy compliance program efforts to substantiate regulatory compliance.  Nevertheless, compliance issues are time bombs waiting to explode if not proactively identified and effectively addressed by compliance and privacy officers while the provider develops and implements ACO strategies.


Providers are devoting much of their time and energy on "partnering" with ACOs. Providers are focusing on developing and collaborating with provider-specific networks to maximize negotiating leverage with ACOs, (e.g.;, developing data sharing capabilities, infrastructure and care coordination processes. There are numerous critical legal issues that must also be addressed.


Compliance Programs


Compliance programs have, to date, focused on minimizing liability in a primarily fee-for-service reimbursement environment. ACOs are, however, as the Wizard of Oz said, "horse[s] of a different color".  Provider compliance programs must evolve from volume-based, fee-for-service reimbursement methodologies to more quality-based, efficiency-based and data-based methodologies. Whether a provider participates with an ACO or not, reimbursement systems demanding these methodology changes are on the horizon and compliance and privacy officers must proactively evolve their compliance programs for the potential liabilities these changes will bring.


A primary goal of an effective compliance program is to substantiate a good-faith effort by the provider to comply with laws and regulations. Compliance and privacy officers must look far ahead towards changing reimbursement methodologies and address associated risks through their compliance programs. To do otherwise will undermine the perception of a good-faith effort.


Anti-kickback Statute and Stark


These statutes address payments intended to induce referrals of healthcare services. Such payments may promote overutilization of appropriate services and / or unnecessary services, either way potentially wasting limited resources. A compliance officer must focus on limiting such improper activities and, in the process, collaborating with others within the provider's organization to ensure proper care is delivered and appropriately reimbursed.


A compliance officer's challenges are enormous.  ACOs are increasingly focused on a reimbursement methodology that rewards appropriate, efficient quality care. This reimbursement methodology emphasizes meeting quality of care requirements with  accurate documentation while  inherently deemphasizing overutilization. Healthcare provider compliance officers, however, must not only address these new reimbursement regulatory compliance requirements but must also continue to address fee-for-service regulatory compliance requirements.


Compliance Officer Responsibilities


Healthcare provider compliance and privacy officers must augment their compliance programs to reflect numerous new risks and potential liabilities from "partnering" with ACOs - new reimbursement methodologies (e.g.; shared savings programs such as the Medicare Shared Savings program); fraud and abuse waivers; ACO "preferred provider" participation requirements that may involve expectations of exclusivity and thereby trigger antitrust issues; data sharing and quality of care reporting; marketing materials and activities; communications and incentives to beneficiaries; privacy and data security requirements; as well as state insurance and malpractice laws.




If ACOs represent a river and healthcare providers dependent upon the ACOs represent tributaries, a fraud and privacy compliance program focused solely on the risks and potential liabilities associated with the tributaries will unlikely be deemed effective by federal and state regulatory authorities.


An "effective compliance program" inherently requires a good faith effort to comply with ALL applicable laws and regulations - those associated with both the river and its tributaries. ACOs represent the latest challenge for compliance and privacy officers in keeping their healthcare providers' compliance programs effective while demonstrating a good-faith effort to comply with laws and regulations. 

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

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.