We understand the goals and objectives of long term care owners and operators. We work with clients as business partners to solve problems. We have one goal – to make our clients' long term care businesses even better. Our Long Term Care Industry Service Team has substantial experience in the unique legal issues that govern the industry. We represent a wide array of both for-profit and non-profit long term care providers including skilled nursing facilities, intermediate care facilities for the developmentally disabled, continuing care retirement communities and other kinds of assisted living centers, and long term acute care hospitals. Our representation extends to suppliers of goods and services to the long term care industry, such as pharmacy, rehabilitation therapy, hospice, transportation and management companies. We also represent entities that assist long term care providers with operational risk management, regulatory compliance and staffing through unique business methods and patented processes. Our representative experience is vast and includes the following:
Litigation
Baker Donelson's Long Term Care Industry Service Team has experience throughout the U.S. in defending long term care litigation. We advise clients on risk management and litigation avoidance strategies. We defend the full gamut of claims, including abuse and neglect, medical malpractice, slip and falls and violations of federal and state regulations. We represent long term care facilities in survey appeals. We also manage litigation and discovery for our clients, overseeing other outside counsel in the defense of claims.
Our team members work with long term care facilities to develop policies, procedures and strategic plans designed to minimize and avoid litigation. If litigation becomes unavoidable, Baker Donelson employs early case resolution methods such as mediation, settlement or arbitration. Should the matter proceed to trial, our attorneys are licensed in more than 30 states and have tried cases in virtually every jurisdiction.
Our attorneys are proactive in monitoring legislation, court decisions and news that may affect the interests of our clients. We provide our long term care clients with the best, most effective and most efficient solutions to all their litigation-related needs.
Regulatory Advice
Our team provides regulatory advice under both state and federal law, including advice regarding participation in Medicare, Medicaid and other governmental reimbursement programs as well as state certificate of need laws.
Compliance Counseling
Our team regularly advises its health care provider clients in regard to compliance with the Medicare and Medicaid fraud and abuse laws, the Stark laws regulating physician self-referrals and state laws prohibiting kickbacks and physician self-referrals. We work with clients to develop effective corporate compliance programs to prevent, detect and correct fraud and abuse. Compliance counseling has included:
- Directing compliance base-line assessments and periodic updates;
- Legal review and analysis of operations and contracts; and
- Advising compliance officers on:
- Investigation of complaints received through the compliance communications process;
- Internal review of billing and coding questions;
- Review of proposed joint ventures and contractual arrangements for compliance with federal and state laws;
- Compliance with corporate integrity agreements (including preparation of annual reports);
- Repayment methods of federal funds (including discussions with federal intermediaries and carriers and, where appropriate, U.S. Attorneys and State Attorneys General);
- Conducting annual compliance review and updating of compliance documents; and
- Advising officers and directors on corporate responsibility and compliance.
We have assisted clients in making voluntary disclosures of billing errors to the Fiscal Intermediary or Department of Justice and in responding to enforcement initiatives by the Department of Health and Human Services, the Department of Justice and state Medicaid fraud control units. We have represented our clients in Administrative Law Judge hearings and have negotiated settlements and corporate integrity agreements with U.S. Attorneys and the CMS Office of Counsel.
Fraud and Abuse
Baker Donelson represents health care clients in fraud and abuse investigations conducted by the Department of Justice, United States Attorneys' Offices, the Office of Inspector General at the U.S. Department of Health and Human Services, and state Medicaid fraud enforcement authorities. These cases include assisting clients with internal investigations of possible violations, defense of grand jury subpoenas and proceedings, defense of search warrants, negotiations with prosecutors, and handling criminal pleas, trials and sentencing.
Baker Donelson trial attorneys have substantial experience in defending qui tam related cases, government-initiated False Claims Act cases and other civil enforcement initiatives, including licensing and exclusion from federal programs. We have significant experience representing corporations, officers, directors, employees and other individuals in internal investigations as well as in grand jury investigations and criminal trials.
Acquisitions, Sales and Development of Long Term Care Facilities
The acquisition and sale of long term care facilities requires specific knowledge of business and regulatory issues to accomplish the transaction while protecting the parties from unanticipated delays and potential liabilities. Health care acquisitions involve both traditional business issues and the vast array of licensure, certificate of need, reimbursement, anti-kickback, billing and other related health care areas. Anticipation of potential issues by experienced counsel can save the client time and expense, and often head off problems in a transaction.
Our team has the experience to put together the pieces of this complex puzzle. Our experience includes asset and stock acquisitions, joint ventures and a myriad of other combinations.
We also have the experience necessary to meet the challenges involved in the development and construction of health care facilities. Developers can benefit from counsel experienced in the overlapping (and often conflicting) maze of real estate, land use, finance, certificate of need and other regulatory issues specific to health care facilities. The development process also requires extensive experience in leasing and business organizations.
Financing of Long Term Care Facilities
Our team members work with lenders and borrowers to navigate around the pitfalls and take advantage of the opportunities involved in financing transactions for long term care facilities and other health care facilities. Our attorneys have served as counsel to lenders and borrowers on a wide range of financing transactions including traditional mortgage financing, securitization/CMBS (commercial mortgage-backed securities), equipment leases and loans, accounts receivable financing, sale-lease back transactions, Fannie Mae and Freddie Mac loans, and seller financing of facilities. We have also assisted tax exempt organization clients in borrowing funds through the issuance of tax exempt bonds, including bond authority approval, trust indentures, loan agreements, security agreements and other bond documents.
HUD-Insured Financing Transactions
Baker Donelson is one of the few law firms in the nation with a practice dedicated to assisting lenders and borrowers in HUD-insured loans. Our attorneys have been counsel in over 150 HUD-insured loans for lenders and borrowers totaling more than $700 million. We have the experience that borrowers and lenders require to navigate around the pitfalls and opportunities involved in HUD transactions, including HUD-insured financing transactions under Section 232 of the National Housing Act for nursing home and assisted living facilities, transfers of physical assets of facilities with existing HUD financing, and acquisitions of HUD-foreclosed properties. Our attorneys have relationships with HUD attorneys and staff in more than 25 HUD Hubs and field offices throughout the nation, having closed HUD loans on site in Los Angeles, Boston and many HUD offices in between. We have extensive experience representing non-profit and for-profit health care providers through the HUD lending process. We acted as borrower's counsel in the first and only large portfolio of HUD Section 232/223(f) loans for health care facilities to close in the U.S., which included approximately 75 facilities in 24 states. We have acted as lender's counsel in over 70 HUD new construction and refinancing loans, including multiple Section 232 HUD loans throughout the country and several loans under HUD's new LEAN program.
Bankruptcy
Our team has extensive experience representing lenders and servicers on defaulted seniors housing loans. We have been involved in the largest long term care bankruptcies throughout the country, and have handled workouts involving long term care properties in over 35 states and several countries. The team routinely handles litigation and transactions relating to bankruptcy, insolvency, loan workouts, receiverships, collections, repossessions, foreclosures, lien disputes and other matters affecting debtor/creditor relationships in the seniors housing market.
We work closely with clients in matters regarding transactional issues with debtor/creditor implications, including matters involving asset securitization. We regularly represent both buyers and sellers of assets in connection with sales arising out of bankruptcy, insolvency and liquidation proceedings.
Labor & Employment
Our team regularly counsels long term care employers on strategies of litigation avoidance, compliance with federal and state labor and employment laws and litigation in state and federal court of various forms of claims, including wage and hour, non-competition, breach of contract, employment discrimination and wrongful termination. Our team also regularly handles claims brought before the Equal Employment Opportunity Commission, the federal Department of Labor and state and local agencies.
In addition to employment compliance and litigation avoidance and/or defense, our team's knowledge extends to the traditional labor front, where unions are increasingly targeting health care employers with organizing efforts. Our team regularly provides valuable guidance to our clients on how to minimize the threat of union organizing activity.
Our team's knowledge also extends to various other special areas governing long term care employers, including ERISA compliance and litigation governing all forms of employee welfare benefits plans, immigration matters such as the applications for and receipt of labor certifications for regional and nationwide companies, and OSHA compliant safety and health procedures and programs.