Healthcare Matters

   A Complimentary Newsletter From:

Barmak and Associates, LLC  

Managing Liability for Long Term Care and Health Care Providers

Volume 16, Issue 2                   ADVERTISEMENT                            February 2015

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In This Issue
Resident on Resident Abuse
Contracting with Vendors
David Barmak, Esq.
Gerald V. Burke, M.D., Esq. 
Jo Ann Halberstadter, Esq.
Jo Ann Halberstadter, Esq.

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Resident on Resident Abuse

By: Jo Ann Halberstadter, Esq. 

 

On November 13, 2014, a 66 year old female resident of a Georgia nursing home strangled and killed her roommate.  She was charged with aggravated assault and felony homicide and held in the County jail pending further investigation.

 

On January 23, 2015, a 66 year old male resident of a Michigan nursing home pushed an 83 year old resident who suffered a head injury and died two days later.  The authorities held the perpetrator resident for evaluation before deciding whether to bring criminal charges.

 

In April 2014, a 56 year old male resident of a Texas nursing home beat to death his two roommates and was charged with murder.  The perpetrator resident is alleged to have a history of violent behavior.

 

In 2009, a 98 year old female resident of a Massachusetts nursing facility strangled to death her 100 year old roommate.  The perpetrator resident was deemed incompetent to stand trial due to her long standing diagnosis of dementia and was placed in a psychiatric facility.

 

All of the above incidents of resident on resident abuse involve different resident profiles and have different legal outcomes.  Until recently, resident on resident abuse was relatively unknown to the general public and received very little media attention.  However, that has started to change with the November 2014 publication of a Cornell University study highlighting the prevalence of mistreatment between nursing home residents.  The study found that approximately one in five nursing home residents are involved in at least one negative or aggressive encounter, ranging from verbal/physical abuse, inappropriate sexual behavior, or invasion of privacy.  The study also found that the residents most often involved in these incidents tend to be "younger, less cognitively and physically impaired and prone to disruptive behavior as compared to other residents." 

 

The Cornell study confirms two phenomena already well known to nursing home direct care staff.  Firstly, residents who engage in resident-on-resident abuse often have an underlying cognitive impairment or mood disorder that manifests in verbally or physically aggressive behavior.  Secondly, the behavior of these "abusive" residents is stressful and affects the quality of life of both residents and staff. 

 

Unfortunately, the Cornell study's concluding recommendations are not novel or innovatively helpful to the facilities and direct care staff who have to deal with these types of residents on a daily basis for years and years.  The study recommends implementing programs to educate and train nursing home staff to recognize, report, and deal with resident-to-resident mistreatment based on the individual needs and abilities of the residents. 

 

But, what if the general consensus of a nursing facility is that a certain resident, similar to the perpetrators in the above cited cases, cannot be dealt with or managed effectively and are seriously jeopardizing the safety and well-being of the other residents and staff?  It is extremely difficult to discharge or transfer a resident against his or her will and without adequate discharge planning/alternative living arrangements.  Because of this, perhaps it is time to consider adopting more in-depth and selective admission screening processes in order to preclude admission to individuals with a history of violent or extreme negative behaviors.  The potential resulting loss of revenue must be weighed against the overall safety, quality of life, and quality of care that a facility must provide to its residents and upon which it can stake its reputation and encourage good faith referrals.

 

To read the complete Cornell University study, click on the link below: http://weill.cornell.edu/news/pr/2014/11/study-highlights-prevalence-of-mistreatment-between-nursing-home-residents-pillemer-lachs.html


   
Contracting with Vendors
By: Gerald V. Burke, M.D., Esq.

 

During the course of the business side of healthcare we often find it either necessary or desirable to enter into a contractual relationship with a vendor for a product or service. This may range from the purchase of a one-time service or piece of equipment to a continuing relationship for products, services or both.

 

Based on the value and nature of the contract, a few dollars spent up front on a healthcare attorney performing a contract review and negotiating details to "shore up any loose ends" can be a wise investment that will pay handsome dividends in the headaches and expenses saved when a poorly constructed contract is executed with a vendor.  Remember, vendors are salesmen, first and foremost.  Their main goal is to "sell product".  Instillation, support and your ongoing satisfaction are secondary concerns once you have signed on the dotted line and they have the sale.  The only way to make sure that the vendor performs as he leads you to believe is to have in place a fair and equitable contract that will give you legal recourse if performance is less than was promised.  When such a contract has not been executed prior to entering into the deal, the buyer's only recourse is either to accept a disappointing product or service or resort to costly litigation, frequently with limited success.  Remember, while you know healthcare, the vendor knows sales and every way to maximize his profits.

 

What value should be the threshold to engage a healthcare attorney in these matters? While a fixed dollar amount that would warrant review by a skilled attorney is difficult to set, certainly amounts in excess of $20,000 warrant serious consideration.  However, even lesser amounts may justify the cost of an attorney review so as to avoid the inevitable roller coaster if one is "taken".  Never forget, the costs of a poor service or product provided by a vendor are not just in the upfront costs of the project, but also in terms of lost revenues and satisfaction due to ongoing, suboptimal performance.  The cost to repair a poor situation can make the initial costs seem small.

 

Vendors that want the buyer to sign off on a proposal, which then become the binding contract for the service are product, is an example of red flags to be avoided at all costs.  One frequently finds that these proposals are just that, proposals.  When fully evaluated, they are frequently vague, scant in details and open ended in costs.  There is frequently significant leeway regarding the vendor's responsibility regarding the product supplied.  Frequently, even the proposed costs of the project are ill defined.  A good contract is a very precise instrument that defines each parties' duties with appropriate penalties when those duties are note fulfilled.  A bad contract is vague, talks in generalities, or ignores conditions and terms all together.

 

One example of goods and services that healthcare providers are feeling forced into, frequently without a full understanding of what they are buying, is the purchase of an electronic medical records (EMR) system.  This is a product that the government and many insurers require the healthcare provider to maintain as a routine part of doing business, but most healthcare providers, especially physicians, have only the most rudimentary knowledge of the implementation, performance or maintenance of such a system.  This is an ideal situation for a healthcare attorney review of the contract and negotiating terms to optimally protect the buyer prior to committing to the contract.   By making sure that products, terms, costs, implementation schedules, IT maintenance services and penalties for failure of the vendor to perform are clearly defined, the buyer can be assured of getting what he needs and expects.

 

Contracting issues can occur with all vendors, regardless of size.  Ranging from the small, mom and pop, friend of a friend referred providers all the way though large, corporate conglomerates, contracting risks exist.  

  

If you have any questions regarding contracting with vendors , please contact Gerald V. Burke, MD., 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.
  
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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

www.barmak.com

  
  
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