By: Brandon C. Goldberg, Esq. 

September 23, 2014 is the deadline for all HIPAA business associate agreements (BAA) to be up-to-date with the newest regulations. The changes that have been instituted include making business associates more responsible for breaches they cause as well as requiring subcontractors to also safeguard protected health information. New business associate agreements should now be in place with all covered vendors laying out all the new terms of agreement. 

One of the most important reasons to have new BAAs in place is that a great deal of responsibility is shifted from the provider to the business associate. Although providers still maintain ultimate responsibility, business associates are now responsible to a much greater extent. This will cause them to be more careful in preventing issues and more proactive in resolving issues. The provider will no longer be left standing alone if a breach occurs. 

It is critical that business associates be put on notice as to their HIPAA requirements and compliance program requirements. An updated BAA is required under the new rules to accomplish this. Providers should be wary of doing business with vendors unwilling or unable to meet these new requirements.

 

If you have any questions regarding the new HIPAA regulatory requirements or what should be contained in your new BAAs, you can contact Brandon Goldberg, Esq. at 609-454-5351 or bgoldberg@barmak.com. 

A nursing home administrator told the nursing home's bankruptcy receiver that she wanted to buy four brown leather recliners for the nursing home's common area. Once she was given the go ahead, she purchased the recliners; however, she used moneys held in trust by the nursing home for the residents' personal use.  The amount totaled to $1,691.69.  None of the residents' family members or guardians were consulted before the purchase was made. The administrator could face up to 40 years in prison and fines of up to $40,000 if convicted of her residents' financial exploitation.

 

A son steals hundreds of thousands of dollars from his elderly mother's retirement accounts and spends the money at casinos.  When he doesn't pay his mother's rent, she's evicted from her assisted living facility.

 

The trusted advisor of an elderly man with Alzheimer's and Parkinson's diseases makes over 100 withdrawals from the man's bank account but fails to make nursing home payments on his behalf for months.

 

What's going on here?  Financial exploitation of our skilled nursing and assisted living residents.

 

Sadly, we've all seen too many vulnerable seniors fall prey to family members, fiduciaries, con artists and professional advisors who steal their life savings and their dignity - and these crimes are on the rise!

 

The Federal Consumer Financial Protection Bureau (CFPB) recently released a new manual that is designed to equip assisted living and nursing home staff with the know-how to prevent and spot the warning signs of elder financial abuse. The manual - Protecting Residents from Financial Exploitation: A Manual for Assisted Living and Nursing Facilities - focuses on financial abuse committed by residents' friends and family members. The manual also discusses common senior scams.

 

CFPB's recommendations for nursing home staff:

 

Prevent financial exploitation and scams by educating staff, residents, and family members about warning signs and precautions;

 

Recognize, record, and report financial abuse as early as possible using a model protocol and a team approach; and

 

Get help from first responders in the community.

 

Financial crimes against elderly nursing home residents have bolstered compliance enforcement efforts like the establishment of the Health Care Fraud Prevention and Enforcement Action Team (HEAT), created by the U.S. Department of Health and Human Service (HHS) in 2009, or State Medicaid Fraud Control Units, established in 2012.

 

According to the National Long-Term Care Ombudsman Resource Center, most perpetrators of crimes against elders are family, friends and caregivers. This holds true when the elders are living in nursing homes and assisted living facilities.

 

Section 6703(b)(3) of the Patient Protection and Affordable Care Act of 2010 has focused attention on seniors' financial exploitation by requiring nursing facilities that received at least $10,000 in federal funds during the preceding year to notify law enforcement officials with "any reasonable suspicion of a crime."   "Crime" can include abuse, neglect or misappropriation of a resident's property. The report must be made no later than 24 hours after forming the suspicion (or within two hours in the case of serious bodily injury). Nursing homes must develop and maintain compliance policies and procedures, post a notice for employees indicating their rights under this law, including that no facility may retaliate against any individual who lawfully reports a reasonable suspicion of a crime.