Healthcare Matters

A Complimentary Newsletter From:

Barmak and Associates, LLC

Managing Liability for Long Term Care and Health Care Providers

Volume 17, Issue 6 ADVERTISEMENT June 2016

In This Issue

Staffing Insufficiency: Whose License Is Really At Risk?

How Would You Answer This Question?

Foreign Languages In The Workplace

David Barmak, Esq.

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

Jo Ann Halberstadter, Esq.

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Staffing Insufficiency: Whose License Is Really At Risk?

Licensed Nursing Home Administrators (LNHA) are professionally and personally responsible for providing quality care to residents. A LNHA's license and home are at risk if she/he knows or should have known that insufficient staffing or incompetent staffing are causing residents to needlessly suffer.

The LNHA's responsibility is to comply with the law. The Federal Omnibus Budget Reconciliation Act (OBRA) statute and regulations issued under it require nursing facilities to provide sufficient staff so their residents attain or maintain their highest practicable physical, mental and psychosocial well-being.

The Office of Inspector General of the U.S. Department of Health & Human Services (OIG) identifies the issue of sufficient staffing as a risk area that must be addressed in an effective nursing facility's compliance program. It says sufficient staffing cannot be reduced to, or even measured by, a set of consistent objective criteria. How much staffing is "sufficient" depends upon a variety of factors potentially unique to each facility.

The OIG has stated that some nursing facilities have systematically failed to provide staff in sufficient numbers and with appropriate clinical expertise to adequately serve their residents. The OIG urges facilities, as part of their compliance programs, to regularly evaluate their staffing levels and patterns to determine whether they have sufficient staff, with appropriate competencies, based on the acuity levels of their residents. In other words, the OIG expects LNHAs to follow the law and do whatever is necessary to take care of residents. "Sufficient staffing levels", when reduced to a formula, are just fictions for show and tell. In the real world of liability, the only sufficient staffing levels are those that get the job done. Your liability for sufficient staffing levels is the gap between fiction and reality.

LNHAs must remember it is their license which is at risk if the law is not followed. It doesn't matter whether we're dealing with notifying the Department of Health about resident abuse or providing sufficient and competent staffing as required by OBRA.

If you have any questions regarding language policies, please contact our office at info@barmak.com or call (609) 454-5351.

How Would You Answer This Question?

WHAT IF you read in the morning newspaper that an attending physician to some residents living in your skilled nursing facility (SNF) has been arrested but not pled guilty (not yet) to allegations of fraud?

There are risks to the SNF if the physician committed fraud even if the SNF was unaware of the fraudulent behavior.There are numerous issues to consider; however, some of the top considerations include:

- Consider suspending the physician's attending

privileges;

- Consider transferring care for the residents from the

attending physician to the Medical Director;

- Consider reviewing all medical charts for the services

rendered by the attending physician.

Your goal is to determine if the physician was doing that which she/he has been accused of doing (e.g.; review to see that physician actually saw residents; and that the physician did individualized assessments and treatments).

It is important to remember that in the United States, we are considered innocent until proven guilty, however, you do not have the luxury of waiting until a court of law decides issues of alleged fraudulent behavior. It is critical to proactively take appropriate, reasonable, measured steps based upon the information available to protect our residents, our employees and our facility.

If you have any questions regarding language policies, please contact our office at info@barmak.com or call (609) 454-5351.

Foreign Languages In The Workplace

While it is well known that health care staff members can only speak English in front of patients and residents (unless they're serving as a translator), questions often arise about staff members speaking other languages when no patients or residents are around. Other staff members unable to understand the language sometimes feel uncomfortable, and they may complain to a supervisor. The question that arises most often is: can an employer require employees to only speak in English, regardless of who is around them? The answer favors flexibility for the employer to set whatever policies are most appropriate for that company.

The standard for being able to regulate language in a company is the "business necessity" rule. Employers cannot create an English only environment simply because they want to, or because they want to target particular employees. However, employers who wish to regulate language for a legitimate business necessity can do so. A common example of such a necessity would be fostering better relations among employees. Such a rule would have to apply to all foreign languages. Regulating the use of only one language could be problematic. Even if all employee complaints centered on a single foreign language, a broad policy would best protect employers from accusations of discrimination. A cohesive workforce is critical to the success of any company, and the law gives employers the ability to regulate languages to meet that end.

If you have any questions regarding language policies, please contact our office at info@barmak.com or call (609) 454-5351.

Barmak and Associates, LLC

Our law firm provides integrated regulatory, transactional, employment and litigation/advocacy services to skilled nursing facilities and other healthcare providers.

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

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