Long-term care and senior living
In recent years, the long-term care and senior living industries have seen increased regulatory pressure, market-driven consolidation and a shift in consumer demands and the types of services expected. As the environment for long-term care and senior living has grown more complex, so have the associated legal issues.
McDonald Hopkins brings national experience, developed over several decades, representing numerous healthcare providers, including independent senior living, assisted living and skilled nursing facilities, and continuing care retirement communities (CCRCs). Our experience and expertise ranges from day-to-day operations to out-of-the-ordinary transactions, such as a sale or reorganization.
Our services to long-term care and senior living clients include:
- Accreditation and licensure - McDonald Hopkins can counsel clients in all aspects of regulatory matters, including disclosure requirements and change in ownership for assisted living and skilled nursing care facilities. We have the experience working with governmental agencies and are able to guide our clients through complicated regulatory matters at the state, federal and local levels.
- Benefits and qualified retirement plans - Long-term care and senior living facilities face employee benefit issues similar to other businesses. We advise clients in all the following areas:
- Designing retirement plans, including those that can maximize benefits to targeted groups
- Assisting healthcare clients in dealing with day-to-day administrative issues
- Advising clients in connection with qualified plans, tax deferred annuity plans, health insurance benefits, and other employee fringe benefits
- Representing clients before the IRS or the Department of Labor in benefit plan audits
- Advising clients in connection with compliance with ERISA and the Affordable Care Act, including compliance with employer mandates
- Corporate governance and planning - Our attorneys can assist with ongoing corporate governance as well as planning for expansions, restructurings, and other changes. We have the expertise to advise on all options as well as the tax consequences of each option. Depending on the decisions made, McDonald Hopkins’ corporate attorneys can assist in the preparation of organizational documents.
- Financing - We regularly assist clients with financing matters, including tax-exempt bond financing, bank credit facility borrowing, and day-to-day working capital facilities.
- Fraud and abuse - A significant portion of our practice involves compliance with the Medicare and Medicaid anti-kick-back laws, Stark I and II laws, and similar state laws. We assist our clients in developing arrangements that fulfill the business objectives of the venture while eliminating or minimizing fraud and abuse risks. Our lawyers also assist clients in both criminal and civil defense actions involving alleged violations of fraud and abuse laws.
- HIPAA, data privacy and network security - Our attorneys have a wealth of experience advising clients on best practices for data privacy, security, storage and disposal, data breach notifications, and complying with state and federal notification laws, including the Health Insurance Portability and Accountability Act (HIPAA) and the Health Information Technology for Economic and Clinical Health Act (HITECH). We have a comprehensive approach to data privacy and network security designed to limit an organization’s risk and exposure, to minimize the risk of data breach and respond with immediate and appropriate actions when a data breach occurs.
- Labor and employment - We representation our long-term care and senior living clients in employee disputes, advise on compensation for executives, directors, and officers, and assist with drafting and implementing HR policies and procedures.
- Litigation - McDonald Hopkins attorneys have experience in assisting long-term and senior living clients litigation matters relating to employment, breach of contract actions, white collar defense, antitrust litigation, commercial litigation, intellectual property litigation, product liability, tort, and corporate compliance.
- Mergers, acquisitions/sales, joint ventures, and other consolidations and combinations - Our lawyers have extensive experience assisting clients with recapitalizations, mergers, sales/acquisitions, joint ventures, and other forms of consolidations and combinations of businesses. We often take the lead in strategic planning, due diligence, negotiation of transactions, financing arrangements, licensure and regulatory compliance.
- Payor disputes and reimbursements - The firm provides counsel to providers in payment controversies with private and commercial payors before the fiscal intermediaries, the Provider Reimbursement Review Board, Recovery Audit Contractors, Administrative Law Judges and Medicaid Integrity Contractors. We regularly advise clients on reimbursement matters, represent them in negotiations with payors and assist clients in the review and negotiation of hardware/software and billing contracts. We advise clients extensively regarding Medicare, Medicaid, TriCare and commercial reimbursement matters.
- Real estate - The firm assists clients in real estate matters related to formations, sales, acquisitions, leasing and related financing matters, including providing counsel in all types of financings where real estate is the collateral, working with local agencies regarding zoning, and obtaining the necessary approvals from state and local governmental agencies.
- Restructurings and workouts - We provide a multi-disciplinary approach to the problems that are inherent in a restructuring of a long-term care and senior living facility. We have experience in a broad range of insolvency-related issues, including sales of distressed businesses, refinancing, workout and bankruptcy, both in the for-profit and nonprofit sectors.
- Risk assessment and management - We offer a comprehensive set of services, including reviewing expenses, contracts between providers and third parties, operations, policies and procedures.
- Tax-exempt matters - Our attorneys work with a variety of nonprofit organizations, including providers and professional associations. We assist tax-exempt providers with matters such as the structuring of business relationships with private individuals or taxable entities and the limitations imposed on contracts for use or management of facility space constructed or improved with the proceeds of tax-exempt bonds, assist clients in establishing tax exempt foundations, and have served as hospital counsel for several tax-exempt bond issuances. In addition, we have significant experience representing nonprofit clients before the IRS. Our attorneys have assisted 501(c)(3) health systems in obtaining IRS Office approval of evolving healthcare structures.
- Representation of a large CCRC in negotiating its separation from a large hospital system and commencing operations as an independent entity. In this representation, the firm also negotiated the terms of various financing agreements, which included $14.28 million of hospital facility bonds and approximately $36 million of bank financing.
- Development of HIPAA and fraud and abuse compliance plan for hospitals, long-term care facilities, physicians, laboratories and other healthcare facilities and providers.
- Restructuring a CCRC, resulting in the successful confirmation of a chapter 11 plan of reorganization.
- Representation of a creditors’ committee for a CCRC that filed for chapter 11 relief, which included negotiating with parties in interest to secure a distribution to the unsecured creditors and the continued operation of the CCRC.
- Representation of long-term care facilities, hospitals and physicians in employment litigation, including claims of race, age, sex and handicap discrimination.
- Representation of long-term care facilities, hospitals, physicians and other healthcare facilities and providers in the defense of professional liability and tort claims.
- Sales of assisted living facilities to various purchasers.
- Representation of two Ohio-based distressed nursing facilities in the successful sale and transition of operations.
- Preparation of residential contracts of long-term care facilities.