Healthcare Matters

   A Complimentary Newsletter From:

Barmak and Associates, LLC  

Managing Liability for Long Term Care and Healthcare Providers

Volume 17, Issue 7                 ADVERTISEMENT                                July 2016

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In This Issue
Spycams and Employee Discipline
Unpaid Staff and Privacy Breeches
David Barmak, Esq.
Gerald V. Burke, M.D., Esq. 
Jo Ann Halberstadter, Esq.
Jo Ann Halberstadter, Esq.

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Spycams and Employee Discipline
With cameras becoming smaller and more advanced every year, the ability for people to successfully hide them in long term care resident rooms grows. While techniques to avoid cameras in the first place and addressing the inappropriateness of camera  placement with residents and families are very important, equally important is what to do with employees who are caught on camera acting inappropriately. Employee rights regarding recordings include not being recorded in areas where they would not expect it. Because the Health Insurance Portability and Accountability Act (HIPAA) rules make cameras in resident rooms highly risky, if not generally illegal, without proper resident/representative consent, employees can reasonably expect that there are no cameras in the rooms. However, this does not mean that an employee captured on video acting inappropriately is immune from discipline.

In fact, the opposite holds true. An employee caught on video acting inappropriately should be disciplined consistently with facility discipline policy. The video, even if captured inappropriately, is still evidence. The type of discipline will be proportional to the inappropriate conduct, and all responses to inappropriate conduct caught on video should be extensively documented. If the video is ever used in a subsequent lawsuit, demonstrating the facility's response to the conduct and the steps taken to prevent future infractions will be critical in building a defensive narrative for trial.

Should a resident or family member tell you they have captured video of an employee acting inappropriately, request a copy of the video for investigative and discipline purposes. If an arrangement is reached with the family that permits the camera to remain, and assuming HIPAA is satisfied and employees are informed to the extent required by law, then the family should agree to continue providing the facility with all video for proper monitoring and response. That is the only way that the video can be properly used to respond to any issues that arise and ensure an ongoing high quality of care for the resident.
 
If you have any questions regarding language policies, please contact our office at [email protected] or call (609) 454-5351.

Unpaid Staff and Privacy Breeches

With the advance of technologies quickly outpacing legal standards and provider policies, supervisors are constantly working to keep their employees up to speed on the Health Insurance Portability and Accountability Act (HIPAA) expectations and techniques for compliance. Often lost in the shuffle are those least likely to be educated on the subject despite having great access to protected information: volunteers and student interns.

These individuals have extensive access to protected health information. They interact with patients, have an understanding of different diagnoses and treatment plans, and are often in a position to observe information inadvertently left out by employees. Supervisors must ensure these individuals also have the training necessary to uphold the law and avoid exposing the provider to HIPAA liability.
 
There are several approaches to achieving this goal. Many providers simply treat volunteers and student interns as employees for HIPAA purposes. They sign confidentiality statements, they participate in trainings, and they are held to the same expectations as employees. Other providers prepare a shortened and more pointed confidentiality statement and hold a limited training more directed toward the person's actual role. Depending on the scope of that role and the nature of the provider's operations, either approach can be reasonable under different circumstances. For student interns in particular, providers can work with schools to provide more streamlined education in advance, potentially even at the school's expense. Any compliance work done by the school should be properly documented in accordance with the provider's compliance program.
 
Therefore, regardless of an individual's particular status it is important that sufficient effort is taken to close this potential hole for privacy breaches and keep all staff educated on HIPAA.

If you have any questions regarding language policies, please contact our office at [email protected] 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.
  
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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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