Practice/Industry Group Overview
From the development of new facilities and mergers and acquisitions to fraud and abuse counseling and general regulatory matters, long term care and senior services providers need legal assistance and counsel in many aspects of their business. Duane Morris' practice in this area is designed to meet these providers' specific needs and relies on significant involvement and understanding of the industry and the governmental agencies that regulate it. The firm's approach to representation of long term care and senior services providers involves a coordinated effort among lawyers with experience in relevant subject matters, including health law, corporate law, tax-exempt law, employment law, information technology law, real estate law and litigation.
Our practice is both transactional and regulatory. The firm's attorneys represent virtually all industry segments, including skilled nursing and rehabilitation facilities, continuing care retirement communities (CCRCs), assisted living and seniors housing communities, home care agencies, hospices and adult day healthcare providers. Our clients range from the smallest single-facility providers to some of the largest providers of long term care, assisted living and other senior services in the United States. We have a broad range of experience and knowledge in the long term care industry, including the following:
- Acquisitions and Sales
- Development and Financing of New Facilities
- Corporate Compliance, Risk Management, and Fraud and Abuse Counseling
- Government Audit and Enforcement Matters
- Administrative Litigation
- Reimbursement Matters
- Certificate of Need, Licensing and Change of Ownership
Attorneys in the group are active in state and national trade association activities, and serve on the legal committee of the American Health Care Association and the executive board of the American Seniors Housing Association.
Acquisitions and Sales
We have extensive experience in the acquisitions and sales of nursing homes, assisted living residences and other long term care providers. After defining our clients' desired objectives, we work with them to obtain the maximum long term benefit from the transaction. We represent both buyers and sellers of facilities, and coordinate closely with federal and state regulators on licensure matters related to the transaction. We are often involved in helping our clients identify sources for financing, and we have also represented lenders in the financing of health-facility acquisitions.
Development and Financing of New Facilities
Duane Morris attorneys have represented developers, owners and operators of both proprietary and nonprofit senior care providers, including nursing homes, assisted living facilities, CCRCs/life-care communities and independent living facilities, in the development and financing of new facilities. We also represent lenders making loans to long term care and seniors housing facilities for construction as well as acquisition. Our experience includes tax-exempt bond financing, including both qualified 501(c)(3) bonds and qualified residential rental facilities. In this regard, we have served as bond, underwriter, trustee and borrower's counsel. Many of these transactions include "taxable tails" and multiple series of subordinate debt.
Members of our Long-Term Care and Senior Services group work closely with the firm's Affordable Housing group on seniors housing projects involving both 4-percent and 9-percent low-income housing tax credits. The firm represented the first developer in New Jersey to combine 4-percent low-income housing tax credits with bond financing of an assisted living facility. These projects usually include multiple sources of "soft" debt, and our experience also includes conventional debt and equity transactions. Duane Morris lawyers are skilled in ensuring that the requirements of all programs are satisfied.
Corporate Compliance, Risk Management, and Fraud and Abuse Counseling
Duane Morris attorneys assist clients in a multitude of regulatory matters that rely on an experienced and practical legal perspective. To aid effective corporate oversight, we counsel our clients on risk management and establishment of sound corporate compliance programs, concentrating on health regulatory issues. We help create or review all manner of agreements with vendors, suppliers and independent contractors. For nonprofit providers, we help embed practices that comply with IRS good-governance regulations and state-designated charity care policies.
We routinely advise long term care and assisted living providers on matters relating to compliance with the myriad regulatory requirements affecting their day-to-day operations, whether it be HIPAA, the Deficit Reduction Act, the anti-kickback law, the False Claims Act or comparable state laws that present risk for civil or criminal liability. We assist clients in investigations conducted by state Medicaid Fraud Control Units, as well as the U.S. Department of Justice and U.S. Attorneys. Our objective in counseling our clients is to find practical, common-sense ways to meet compliance obligations. When needed, Duane Morris coordinates and conducts internal investigations, with an eye toward risk minimization. The firm's lawyers are well-versed in the changing self-reporting requirements and provide reasoned advice on approaching and disclosing potential problem areas to regulatory authorities.
Government Audit and Enforcement Matters
Duane Morris lawyers have extensive experience in representing long term care and senior services provider clients, as well as their ancillary service contractors, who are audited or investigated by government agencies. Our representations include encounters with state Offices of the Medicaid Inspector General and Medicaid Fraud Control Units and other divisions of state attorneys general offices, as well as the U.S. Department of Health and Human Services Office of Inspector General and the U.S. Department of Justice. We also support our clients in resolving qui tam or whistleblower matters.
We have negotiated settlements of government investigations that minimize the financial impact on our clients, and we have negotiated and counseled clients on fulfilling obligations under corporate integrity agreements. We also have handled Medicaid and Medicare audits, including carrier and fiscal intermediary matters, frequently analyzing whether the situation warrants self-disclosure and repayment of funds. We often handle internal investigations of client matters, to maximize privilege and confidentiality considerations. We have successfully negotiated with federal and state agencies for self-disclosure and voluntary refunds of overpayments. Our representations have allowed our clients to minimize the negative impact of government enforcement activity.
Duane Morris attorneys are adept at advising clients on issues that may result from federal and state regulatory actions. We represent clients in defending administrative actions involving adverse findings of quality of care relating to both Medicare and Medicaid Conditions of Participation. Our attorneys include former active registered nurses who can bring special insight to the defense of such actions. We are experienced in Medicaid informal dispute resolution methods, as well as evidentiary hearings with federal and state agencies. We have represented numerous clients where government agencies have imposed a denial of payment or made "immediate jeopardy" findings.
Other areas of classic administrative litigation where we have represented clients include involuntary transfer and discharge proceedings as well as allegations of abuse or neglect, which can result in civil, administrative and criminal litigation. Our combination of regulatory and litigation experience assists our clients in determining the most advantageous path to avoid such litigation.
Our attorneys have specific skill sets that benefit clients in the long term care industry. From licensed pharmacist/attorneys to former state and federal prosecutors and regulators, we understand and guide our clients on preventive actions to avoid litigation, and we have the in-house depth to respond should litigation result.
We have substantial experience with the federal Medicare administration agency, Centers for Medicare and Medicaid Services, and our attorneys have direct experience with Medicaid reimbursement matters in some of the largest states. With constant downward pressure on reimbursements, facilities need skilled advocates who can successfully challenge adverse decisions. Our comprehensive experience is also well-matched with our national coverage. With one of the largest healthcare practices in the United States, we often call on attorneys from our various offices to work through local issues for national players.
Certificate of Need, Licensing and Change of Ownership
We are accomplished in guiding clients through the certificate of need (CON) or change of ownership process and can address regulators' review factors. We assist our clients through the complete application process, including:
- Preparation of applications, including designing programmatic and demographic narratives;
- Developing answers that satisfy the agency's review factors (need, character and competence, and financial stability); and
- Negotiating difficult issues with regulatory authorities.
Our goal is to obtain the requisite approval for our clients in the shortest time possible. Among our attorneys are former state officials who know what state regulators require and, just as significant, how regulators prefer to work through these applications.
Articles Authored by Lawyers at this office:
CMS Updates 5 Star Ratings System for Nursing Homes with New Measures
Ari J. Markenson, April 07, 2015
As of February 20, 2015, the Centers for Medicare & Medicaid Services (CMS) has revised its 5 Star Rating System for nursing homes. The changes to the system involve adding two new nursing home quality measures for antipsychotic use into the Quality Measure Rating, Increasing the number of...
Civil RICO Actions on the Rise to Combat Healthcare Insurance Fraud
James J. J. Ferrelli, March 25, 2015
Over the past several years, insurance carriers have aggressively pursued civil suits against doctors and other medical providers in an effort to fight healthcare insurance fraud. Besides theories of liability based upon common law claims such as fraud and unjust enrichment, insurers have more...
Consultants’ Communications Privileged from Discovery
Philip H. Lebowitz, March 25, 2015
In healthcare, companies often hire consultants to review billing and coding, privacy and security and a host of other technical issues that regular staff does not have the time or expertise to pursue. A recent discovery ruling in federal court in the Eastern District of Pennsylvania holds that...
HHS Moves to Limit In-Office Ancillary Services Exception
Matthew C. Jones, March 19, 2015
The Department of Health and Human Services (“HHS”) is once again targeting the In-Office Ancillary Services Exception (“IOASE”) to the federal Stark Law, in an attempt to produce cost savings in the U.S. healthcare system. The IOASE provides a limited exception to the Stark...
Health System Integration and Antitrust Laws on Collision Course
Philip H. Lebowitz, March 18, 2015
Health systems attempting to fulfill the mandate of integrating hospitals and physicians may find themselves accused of going too far. Although the Affordable Care Act, shared savings, gainsharing and other alternative payment methodologies have made integration of physicians, hospitals and other...
Virtual Credit Card Payments
Patricia S. Hofstra, March 18, 2015
On January 30, 2015, several healthcare organizations sent a group letter to CMS protesting the use of virtual credit cards by health plans to pay providers. In a virtual credit card payment (a nonstandard type of electronic funds transfer EFT), a health plan or its payment vendor issues single-use...
ACOs are More Important Than Ever for LTC Facilities
Amy E. McCracken, March 13, 2015
On January 26, 2015, the United States Department of Health & Human Services (HHS) announced its timeline for shifting Medicare reimbursements from volume-based criteria to value-based criteria. HHS has adopted a framework that categorizes health care payments according to how providers receive...
Antipsychotic Drug Use Can Lower Nursing Home's Five-Star Rating
Amy E. McCracken, March 13, 2015
The Centers for Medicare & Medicaid Services (CMS) is continuing its efforts to reduce the national prevalence of antipsychotic drug use in long-stay nursing home residents. Its initial goal of a 15.1% reduction in antipsychotic drug use was met, so CMS now seeks to reduce antipsychotic drugs...
Fees and Costs Awarded to False Claims Act Defendant
Seth A. Goldberg, March 13, 2015
A recent decision in the U.S. District Court for the Southern District of New York provides fair warning to qui tam relators who assert erroneous claims under the False Claims Act ("FCA") that they could be hit with legal fees and expenses pursuant to 31 U.S.C. § 3730, which permits...
Health Care Workers May Think Twice Before Becoming a Relator
Amy E. McCracken, March 13, 2015
The Federal False Claims Act (and many similar state false claims acts) allow an individual-called a "relator"-to file a lawsuit on behalf of the United States Government. If successful, the relator stands to collect a portion of the amount collected. Since the False Claims Act provides...
New CMS Payment Policy Will Negatively impact Healthcare Investors
C. Mitchell Goldman, March 13, 2015
I have been concerned about the difficulty of projecting revenue and determining valuations for new and existing healthcare companies based on risk based reimbursement models. My fears have not been allayed. Rather, they have been confirmed.
Real Estate Tax Exemption Issue Muddied Again
Philip H. Lebowitz, March 13, 2015
On December 23, 2014, the Commonwealth Court of Pennsylvania logged another frustrating mile down the confused and confusing road of property tax exemption for purely public charities. In Fayette Resources, Inc. v. Fayette County Board of Assessment Appeals, the Court overturned a lower court...
Top Three Problems with Text Messaging in Health Care Settings
Amy E. McCracken, March 13, 2015
1. Since most text messaging is not a secure form of communication, it raises HIPAA concerns if any protected health information is included in the text message. There is the possibility of a data breach in the transmission of the text message, as well as in the event of a lost or stolen phone.