Buchanan Ingersoll & Rooney health care attorneys have a history of helping the senior care industry, including nursing facilities (NFs) and assisted living facilities (ALFs). Representation of clients and interests in New Jersey, Pennsylvania, Virginia, Florida, Ohio, Michigan and other states is routine for our attorneys, and the firm's areas of representation and types of matters handled include the following:
Reimbursement
At the core of the NF business is the receipt of Medicaid and Medicare funds for services rendered. Our team includes reimbursement attorneys who formerly represented Medicaid programs in New Jersey and Pennsylvania. Recently, we have:
- Increased Medicaid reimbursement through rate appeals and court actions totaling $9.5 million for New Jersey providers.
- Negotiated with the Medicare Intermediary regarding improper activities by an outside therapy provider and change of ownership issues.
- Negotiated with New Jersey Medicaid for the coverage of medically needy NF residents for hospice benefits.
Regulatory Matters
A number of our attorneys are particularly familiar with the intense scrutiny of NFs conducted by the federal and state governments due to their prior experience representing government agencies. Our experience includes:
- Representing NFs in responding to surveys on a daily basis such as assistance with the plan of correction preparation, filing of informal dispute resolution (IDR) requests and documents, and participating in the IDR process when permitted.
- Eliminating deficiencies, through hearings and negotiations, reducing scope and severity findings, and reducing civil monetary penalties and other sanctions in Pennsylvania, New Jersey, Florida and other states, including the elimination of a $500,000 ban on payment for new admissions.
- Obtaining certificates of need, bed transfer rights and other relief under State regulatory schemes, including representing the plaintiff in the only case in New Jersey in which one NF successfully overturned an entire batch of beds awarded to multiple applicants.
- Routinely representing NF administrators and other professionals before state licensing boards.
- Representing providers in Health Insurance Portability and Accountability Act (HIPAA) enforcement actions.
Business Formation
We have experience working with clients to choose the correct business vehicle to achieve their goals, including:
- Developing proprietary and non-profit health care systems to permit expansion and acquisitions.
- Creating limited liability companies, limited partnerships, joint ventures or corporations to best meet the client's needs.
- Accessing the firm's tax attorneys to assure that the vehicle selected is the most tax advantageous.
- Addressing liability insurance concerns by implementing a program of restructuring to best insulate the client's assets.
- Restructuring clients experiencing financial distress through bankruptcy proceedings or otherwise.
Project Development
We draw upon the firm's experience in construction and lending to assist our clients in developing and redeveloping senior projects such as:
- Developing assisted living facilities.
- Financing and refinancing facilities under HUD, state housing programs and federal tax credit programs.
- Representing facility borrowers and lenders with regard to conventional loans, tax exempt and taxable bonds issued through state and local authorities.
- Developing continuing care retirement communities (CCRCs).
Mergers and Acquisitions
We regularly represent buyers and sellers in both stock and asset sales of facilities and ancillary service providers. Examples include:
- Representation of a new regional NF chain in its purchase and roll-up of more than 50 facilities east of the Mississippi.
- Sale of a specialty NF in New Jersey that commanded the highest per bed price ever paid in the state.
- Asset sales of nonprofit NF facilities to both proprietary and non-profit acquirers.
- Preparation of master leases and individual leases for multiple and single facility arrangements.
- Assist sales of nursing facilities and assisted living facilities in bankruptcy proceedings.
- Sales and purchases of institutional pharmacies, adult medical day care centers, home health agencies, hospices, DME companies and hospitals.
- Represented two national LTC Pharmacies in the merger of their institutional pharmacy business into one entity with regard to all state and federal regulatory work, including securing all change of ownership, license, certificate and/or permit approvals for the individual pharmacies of each entity (141 institutional pharmacies in 41 states).
Operations
Our team brings years of industry experience. One attorney previously served as general counsel to a national leading NF provider. On a daily basis we handle questions and issues for NF, ALF and CCRC clients pertaining to a wide range of operational issues. These issues include:
- Drafting and/or reviewing contracts with vendors, outsourcing service providers or managed care organizations.
- Developing in-house ancillary services such as pharmacy, hospice or home health.
- Preparing and revising of admissions agreements, including negotiated risk.
- Drafting and/or reviewing facility policies and procedures in all areas, including incident review, investigation and quality assurance.
- Handling involuntary discharge situations.
- Advising on patient consent, power of attorney and guardianship matters.
- Assisting facilities on how to efficiently comply with the technical, privacy and security requirements of the Health Insurance Portability and Accountability Act (HIPAA) and Part D Medicare.
Labor and Employment
Drawing on our 45 employment attorneys, we represent our senior care clients in:
- Day-to-day human resources and benefits advice.
- Union negotiations, grievances, union organizing campaigns and NLRB complaints.
- The preparation of state specific employee handbooks and policies.
- The defense of wage and hour complaints.
- Responding to OSHA inspections and sanctions.
- Actively defending employment discrimination complaints before State and Federal agencies and courts.
Fraud and Abuse
Many nursing facilities are under increased pressure to guard against allegations of fraud and abuse in the Medicare and Medicaid programs. Our attorneys have experience in dealing with questions under Federal and State false claims and anti-kickback laws, as well as many other statutes and regulations governing NFs and ALFs. We can assist facilities with regard to the:
- Development and implementation of corporate compliance plans.
- Representation in Medicare/Medicaid audits regarding overpayments.
- Response to grand jury investigations, OIG investigations and Medicaid fraud unit investigations.
- Litigation, negotiation and settlement of government claims.
Litigation
As noted elsewhere in this profile, many of the areas of law applicable to the senior care industry may ultimately involve litigation. Our health care attorneys, who litigate many matters, are supported by over 100 commercial, professional liability and employment litigators in the firm. On behalf of our clients, we have pursued litigation involving:
- Contract claims against vendors and service providers.
- Claims against insurers to provide coverage or defense as well as overseeing malpractice defense where punitive damages are claimed.
- Collections involving large accounts receivable particularly where Medicare or Medicaid eligibility is in question.
- Construction litigation, including toxic mold issues.
- Penalty and sanctions appeals.
- Certificate of need and licensure actions.
- Defense against civil fraud claims.
- Employment discrimination defense.
- Defense against whistleblowers and qui tam actions.
- Antitrust litigation.
Professional Liability Litigation
Our attorneys are skilled litigators who have tried dozens of cases to verdict and regularly represent long-term-care, assisted living, continuing care, and other related senior care facilities and their parent corporations in complex, multi-party cases. A sample of recent experience includes:
- Litigated cases in numerous states, including Pennsylvania, New Jersey, New York, Delaware, Connecticut, Maryland, Ohio, Vermont, Rhode Island, Oregon, South Carolina, and Oklahoma.
- Achieved favorable results for clients utilizing early case resolution including mediation, arbitration, and direct negotiations with claimants
- Won the enforcement of numerous arbitration agreements
- Won arbitration verdicts in favor of skilled-nursing facilities, in matters relating to falls, pressure ulcers, burns, and neglect and abuse
- Obtaining defense verdicts and/or trial victories for long-term care providers involving claims of wrongful death, custodial abuse and neglect
- Won a jury verdict for the defense in a complex nursing home litigation against a prominent plaintiff’s firm