Healthcare Matters

A Complimentary Newsletter From:

Barmak and Associates, LLC

Managing Risk for Long Term Care and Health Care Providers

Volume 15, Issue 11 ADVERTISEMENT November 2014

In This Issue

NJ "Ban the Box" Law and Long Term Care Facilities

Shadow Counsel for Professional Liability Litigation

David Barmak, Esq.

Gerald V. Burke, M.D., Esq.

Jo Ann Halberstadter, Esq.

Click on Attorney's Picture for more Information

NJ "Ban the Box" Law and Long Term Care Facilities

By: Jo Ann Halberstadter, Esq.

Beginning March 1, 2015, New Jersey employers will have to revise their employment applications to remove any questions about the criminal history of the prospective applicant. On August, 11, 2014, Governor Christie signed into law "The Opportunity to Compete Act"[1], effective March 1, 2015, which makes it illegal for New Jersey employers to ask verbal or written questions during the initial employment application process about the criminal record of a person who is applying for employment. The law will apply to all employers with 15 or more employees doing business in New Jersey, including job placement and referral agencies. An employer who violates this act shall be liable for a civil penalty in an amount not to exceed $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation collectible by the Commissioner of Labor and Workforce Development in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999".

New Jersey is one of thirteen states to have passed such statewide legislation, often referred to as a "Ban the Box" law because it requires employers to remove from their employment applications the check box that asks if an applicant has a felony or criminal history. The "Ban the Box" campaign is growing nationally and numerous cities, counties and states have passed their own version of the law. In enacting the Opportunity to Compete Act ('The Act"), the New Jersey legislature states that the purpose of the law is to assist people with criminal records to reintegrate into the community, become productive members of the workforce, and to provide for their families and themselves thus reducing risk of recidivism and improving the economic viability, health, and security of New Jersey communities.[2]

The Opportunity to Compete Act ("The Act") bars covered employers from inquiring about an applicant's criminal record throughout the initial employment application process including any language in advertisements for employment that might preclude or dissuade persons with criminal records from applying. The Act defines "initial employment application process" as "the period beginning when an applicant for employment first makes an inquiry to an employer about an prospective employment position or job vacancy, and ending when an employer has conducted a first interview, whether in person or by any other means, of an applicant for employment."

However, the Act explicitly states that it does not prohibit inquiries, whether verbal or written, into an applicant's criminal record after the initial application process has concluded nor does it prohibit an employer from refusing to hire an applicant based upon the applicant's criminal record unless the criminal record has been expunged or erased through executive pardon. Thus, NJ employers may require an applicant to answer questions regarding criminal background as long as the employer makes it clear to the applicant that the initial employment application process is completed and the applicant is being considered for employment. A safe and legally unambiguous way for an employer to communicate this to an applicant is to make an offer of employment conditional upon the outcome of a criminal background check. Under the Act, the employer would have the right to rescind the conditional offer based upon the applicant's criminal record "as long as the refusal is consistent with other applicable laws, rules and regulations." Thus, employers need to be careful that a refusal to hire based on criminal conviction does not violate The New Jersey Law Against Discrimination (N.J.S.A. 10:5-12) and/or Title VII of the Civil Rights Act of 1964 (Civil Rights Act of 1964 � 7, 42 U.S.C. � 2000e et seq. (1964).

The real issue for NJ long-term care providers is whether they would qualify for one of the exemptions specified in the Act. The Act provides that it does not prohibit an employer from inquiring into an applicant's criminal record during the initial employment application process if: a) the employment sought is for a position in law enforcement, corrections, the judiciary, homeland security or emergency management; b) the employment sought is for a position where a criminal history record background check is required by law, rule or regulation, or where an arrest or conviction by the person for one or more crimes or offenses would or may preclude the person from holding such employment as required by any law, rule or regulation, or where any law, rule, or regulation restricts an employer's ability to engage in specified business activities based on the criminal records of its employees; or c) the employment sought or being considered is for a position designated by the employer to be part of a program or systematic effort designed predominantly or exclusively to encourage the employment of persons who have been arrested or convicted of one or more crimes or offenses.[3]

While the Patient Protection and Affordable Care Act ("ACA") directs the Department of Health and Human Services ("HHS") to create a national program to "identify efficient, effective, and economical procedures for long term care facilities and providers to conduct background checks on a statewide basis for all potential direct access employees"[4], it does not specifically mandate or require long term care facilities to conduct such criminal background checks[5]. However, federal regulations for the Centers for Medicare & Medicaid Services, Department of Health and Human Services state that a long term care facility must "not employ individuals who have been found guilty of abusing, neglecting, or mistreating residents by a court of law." [6] Thus, it would appear that the prohibitions set forth in 42 CFR 483.13 would qualify NJ long term care facilities for exemption under the Act because the employment sought is for a position "where an arrest or conviction by the person for one or more crimes or offenses would or may preclude the person from holding such employment as required by any law, rule or regulation" (emphasis added).

Nonetheless, as of March 1, 2015, it would be prudent for long term care facilities in New Jersey to exercise caution and "ban the box" on their employment applications. Facilities should continue to diligently perform criminal background checks on all prospective employees prior to actual employment.

If you have any question regarding the "NJ Ban the Box" law, please contact Jo Ann Halberstadter, Esq. at jhalberstadter@barmak.com or call (609) 454-5351.

[1] N.J.S.A. 34:6B-11 et seq. http://www.njleg.state.nj.us/2014/Bills/PL14/32_.PDF

[2] N.J.S.A. 34:6B-12(2)(j) available at http://www.njleg.state.nj.us/2014/Bills/PL14/32_.PDF

[3] N.J.S.A. 34:6B-16(6) (emphasis added) http://www.njleg.state.nj.us/2014/Bills/AL14/32_.PDF

[4] Patient Protection and Affordable Care Act, Title VI, Subtitle B, Part III, Subtitle C, Section 6201. http://www.hhs.gov/healthcare/rights/law/

[5] The Centers for Medicare & Medicaid Services, National Background Check Program (NBCP) for Long Term Care Facilities and Providers Frequently Asked Questions (FAQ) available at http://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/backgroundcheckqanda.pdf

[6] 42 CFR 483.13

Shadow Counsel for Professional Liability Litigation

By: Gerald V. Burke, M.D., Esq.

Shadow counsel is a separately retained secondary lawyer to supplement or monitor a primary lawyer's efforts. Shadow counsel in litigation matters is one of the common areas in which this role is especially helpful.

The value of shadow counsel is being recognized in situations ranging from making an appearance in small claims court to issues being conducted in the executive boardrooms of major corporations. Anytime third-party interests are involved in a matter, shadow counsel can be of immeasurable benefit. Rule 1.8(f) of the American Bar Association Model Rules of Professional Conduct states that "A lawyer shall not accept compensation for representing a client from one other than the client unless: 1) the client gives informed consent; 2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and 3) information relating to representation of the client is protected..." A potential conflict of interests is seen every time a third party is paying for litigation. An example is the primary concern of insurance companies in limiting their financial liability in litigation, a desire that can adversely affect the welfare of the client/litigant Frequently the client/litigant is not even aware that this is occurring.

A conflict of interest between third party payors and the insured litigant is commonly seen in the defense of professional liability claims. Professional liability insurance companies frequently employ legal defense firms repetitively, permitting them to establish a dominant financial position with the law firms. This permits the insurance company to have possible undue influence in the course of the litigation while defending the health care provider. Common examples of this undue influence range from dictating dramatically reduced fees to the defending attorney to actually dictating to the attorney the course of the litigation and the legal theories to be employed in the defense of the healthcare provider. Frequently this results in a defense attorney, at the direction of the insurance company, trying to convince the healthcare provider to settle a highly defensible claim if tried. While this results in control and limiting the potential payout to the insurance company, it also results in higher premiums being paid by the healthcare provider, assuming that they are still insurable. This is a reality that is rarely discussed with the healthcare provider prior to obtaining their consent to settle. Even worse, healthcare providers are opting for professional liability insurance policies that take the decision to settle completely out of the healthcare provider's hands, leaving it at the sole discretion of the insurance company.

While pressured settlements are a common conflict, they are far from the only issues faced by the defendant health care providers during the attorney/client relationship. Defense attorneys pressured by finances to carry large volumes of professional liability defense cases (frequently having over 200 open cases at any given time), the approach to the individual defense become cookie cutter, routine and mundane. There is no time to learn and understand the facts of the case as it develops. This frequently results in the enactment of legal maneuvers that eventually dramatically adversely affect the outcome of the litigation. A few examples include failures to identify and include all potentially culpable parties in the litigation, having one attorney defend several defendants in the litigation even though each defendant has different interests and culpability, and generally not adequately explaining the machinations of the legal process to clients so that they can optimally assist in their defense. These and other factors often results in a suboptimal defenses being conducted on behalf of the defendant healthcare provider.

Shadow counsel has the ability to monitor every step in the litigation process and assure that a course optimal to their client is pursued. This includes optimally educating the client to the legal process so that it is no longer a scary, emotional rollercoaster ride. Instead the healthcare provider's experience is that of an organized and logical process which they can understand and then optimally participate in. With early involvement of shadow counsel an issue may even be resolved before a claim is filed. Once a claim has been followed, shadow counsel can assure that a proper claim has been filed that requires a response, evaluate the quality of a claim and, if a true deviation from the standard of care has occurred, make sure all additional parties are included in the litigation that will be to the benefit of the client. Shadow counsel also assures that optimal legal strategies are considered and employed; realistically apprises the clients of the status of their involvement in the litigation, and provide accurate, unbiased assessments regarding the strengths and weaknesses of a case to the defendants so that the clients are empowered to make a realistic decision regarding settling or trying a case. If settlement is pursued, shadow counsel can assure that their client's liability is minimized. If trial is conducted, they can assist in the litigation. At all times, through shadow counsel's involvement in the litigation, the defendant is empowered to be able to make it's own decisions regarding the litigation and not rely on being led through the process by the insurance company's appointed defense attorney.

The benefits derived from insightful shadow counsel involvement in the litigation process will result in both short and long term savings to the defendant healthcare provider. There is a dramatic reduction in the emotional stress of the litigation as the defendant is empowered with legal knowledge through each step of the litigation process. There will be long-term financial savings by achieving lower financial awards against the defendant. This results in not only lower professional liability insurance premiums, but, also, helps to maintain insurability. These savings over time will more than offset the expenses of the shadow counsel services provided.

If you have any questions regarding shadow counseling, please contact Gerald V. Burke, M.D., Esq. at gburke@barmak.com or by telephone (609) 454-5351.

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.