Williams Mullen has substantial experience in the long term care industry, with a particular emphasis on complex transactions. We have served as counsel to clients that embrace entrepreneurial and innovative approaches to expanding their business in this industry. In the course of these representations, we have partnered with our clients to develop unique transactional structures in order to reduce risk, improve profitability and facilitate the availability of institutional capital. During the past five years, we have participated in acquisitions, mergers, dispositions and financings for the long term care industry valued at more than $8 billion. We have developed transaction structures that have become industry-accepted models.
In addition to a blend of innovation, entrepreneurship, industry knowledge and strong partnerships with clients, the Long Term Care Industry Service Group draws upon the strengths and expertise of multiple practice groups for our clients’ benefit. Our multi-disciplinary team is comprised of attorneys in a number of practice areas, including health care, real estate, finance, tax, labor and employment, bankruptcy and litigation.
Members of our Long Term Care Industry Service Group advise clients on the following types of matters:
Long Term Care Transactions
Williams Mullen’s Long Term Care Industry Service Group represents investors and participants in the health care arena in a variety of corporate transactions ranging from mergers and acquisitions to private equity arrangements to corporate finance. Our attorneys focus on business results and are proactive in finding solutions for the diverse range of issues that arise in the course of such transactions. In addition to completion of the core transaction, such as an acquisition, we pride ourselves on our ability to negotiate and resolve issues among the differing constituents involved, such as tenant/operators, lenders, equity participants and regulatory authorities. We have acted in transactions involving assets ranging from a handful of facilities to publicly traded entities and have experience in dealing with businesses that are ancillary to the core business of long term care, such as hospice, therapy, home health and pharmacy.
Among the types of transactions in which our team has been regularly engaged are:
- Corporate restructurings and recapitalizations
- Acquisitions and dispositions of assets
- Stock acquisitions and dispositions
- Cash and noncash mergers
- Tender offers
- “Go Private” transactions
- Leveraged buyouts
- Holding company formations
- Spin-offs
- Liquidations
- Anti-takeover counseling and advice
Reimbursement, Certification and Corporate Compliance
A sound reimbursement strategy begins with proper planning. Members of the Long Term Care Industry Service Group advise clients on matters relating to planning their business expansions with a view to obtaining proper reimbursement and avoiding reimbursement pitfalls that lead to payor audits, or worse, False Claim Act investigations or qui tam suits. We help our clients conduct self-audits to identify and avoid Medicare and Medicaid compliance problems related to billing, cost reporting, coding, vendor contracting, and compensation and to establish or enhance a compliance plan so that it best protects against the rogue employee who will risk a client’s business for his short-term benefit. Our attorneys assist clients with Medicare and Medicaid audits and reimbursement appeals at all levels of the appeals process and with informal negotiations with intermediaries and auditors. We understand managed care contracting issues and can advise on the negotiation of managed care contracts or the developing Program for All inclusive Care for the Elderly, (PACE). Our experienced team stands ready to provide counsel should clients encounter difficulties with Medicaid and Medicare certification. In those instances, we can assist clients in the IDR process and advise on when to settle civil sanctions and avoid decertification.
In addition to the direct approaches described above, it can be beneficial for companies to work with our Government Relations Team, described below, which represents health care clients on a wide array of health issues, including Medicaid reimbursement. A strong government relations strategy can prove vital not only to ensuring your voice is heard when regulatory issues are being considered, but also when unfair audit practices or regulatory oversight is an issue.
Certificate of Public Need and Certificate of Need
When it comes to the ultra-competitive process of applying for a Certificate of Public Need (COPN) or a Certificate of Need (CON), a well thought-out strategy is critical. Williams Mullen attorneys have assisted clients with obtaining COPNs throughout Virginia. We have developed this expertise through work with a variety of clients and have close working relationships with health planning agency executive directors throughout the Commonwealth and with the Virginia Department of Health, Division of the Certificate of Public Need (DCOPN) staff in Richmond. We have drafted and lobbied on COPN legislation and regulatory changes.
In North Carolina, we have represented health care clients with CON and licensing issues involving the addition of new facilities, hospital beds, medical equipment and services. Our counsel in these matters runs the full cycle of the CON process from assisting clients with CON planning and consultation to appealing and defending the Office of Administrative Hearings (OAH) no-review determinations by the CON Section to litigating appeals from agency decisions on requests for declaratory rulings in the trial and appellate courts.
Labor Relations
A major area of concern to nursing homes is labor union organizing. Several national unions are principally devoted to this sector of the economy and have traditionally enjoyed success in some parts of the country. In 2010, we will see a significant push by the union movement to amend the labor laws and regulations to better facilitate employee organizing. The likelihood of some successes with a more union-friendly Congress and White House is certain, if only via regulatory changes, so preparing for changes that may impact your biggest cost center is more critical now than has been the case for the last 20 years. Certain unions, such as the SEIU, have made it their mission to go after the nursing home industry and have done so with great success promising "Free Health Care for Health Care Workers."
There is no substitute for experience. When it comes to the SEIU and the UFCW, Williams Mullen has an in-depth knowledge of how these unions operate. Our attorneys have fought the SEIU in numerous campaigns and have negotiated labor contracts on behalf of clients who purchased nursing homes with contracts in place. Like the SEIU, the UFCW has also targeted the nursing home industry. Our attorneys have represented employers in opposing UFCW organizational campaigns and have represented several large employers who have collective bargaining agreements with both the SEIU and the UFCW.
Employment Law
As with any enterprise employing workers, nursing homes and rehabilitation facilities are subject to numerous federal and state laws governing the employment relationship. Starting at 15 employees and moving higher from there depending on the statute, nursing homes are subject to civil rights statutes enforced by the EEOC which prohibit discrimination based on race, gender, national origin or religion (Title VII), disability status (ADA) and age (ADEA). In addition, there are legal requirements governing employees’ leaves of absence, especially arising from various medical conditions. Here, the FMLA will often intersect with workers’ compensation statutes, the employer's own leave policies, and potentially even state and federal disability statutes.
Williams Mullen attorneys are experienced in advising nursing home employers in their employment law obligations in order to minimize litigation risk, defending lawsuits and charges, and managing union drives or negotiating contracts. Williams Mullen is also an industry partner in the field of employment law because of our experience and our ability to map out a strategy for our clients from the start.
Litigation
Members of Williams Mullen’s Long Term Care Facilities Litigation Team are experienced in helping assisted living facilities and skilled nursing facilities reduce and manage liability and, as necessary, defend claims of negligent care and treatment. Williams Mullen offers risk management services in the form of ongoing facility evaluations, as well as staff and documentation practices. In addition, our nursing home lawyers can provide training to help caregivers understand and focus on liability issues.
Should the situation arise where litigation is likely to occur, our attorneys can conduct timely and proper investigation and evidence gathering. If litigation is unavoidable, we are adept at aggressively defending our clients.
The Long Term Care Facilities Litigation Team has defended numerous long term care owners and operators in matters ranging from shareholder and insurance coverage disputes to malpractice claims. We have handled long term care facility lawsuits in numerous state and federal courts. In addition, depending on the circumstances and the client’s wishes, we are experienced in resolving cases prior to trial.
Government Relations
Combining a government relations component with traditional legal representation assures our clients a voice at every level of government, not just with judicial or regulatory officials. The attorneys and non-attorney professionals on our Government Relations Team assist our clients with crafting legislation and developing legislative strategies as well as helping them gain access to policy makers at all levels of government.
In the past, our attorneys and non-attorney professionals have helped write legislation creating the Continuing Care Retirement Community (CCRC) statute, allowing a client to successfully develop and operate communities in Virginia. We have also worked to amend the CCRC statute to allow greater ease of operation as well as expand CCRC residents’ access to Medicaid. We have strong relationships with the Virginia Department of Health and the Bureau of Insurance of the Virginia State Corporation Commission that allow us to work to resolve issues prior to formal action being taken, saving time and money so our clients can focus on the business of long term care. When regulatory action or rulemaking is necessary, our professionals have the ability and experience to represent our clients’ interests throughout the process, helping to limit costly penalties or fines.
Building on our experience in Virginia, our Government Relations Team is able to manage lobbying efforts on a national basis, developing a strategic legislative plan that can assist clients in maximizing their business potential. Just as importantly, we can use our legislative experience to defeat legislative efforts that threaten our clients’ businesses from a competitive or regulatory standpoint.
Given the heavily regulated nature of the long term care business, having an experienced and well-informed government relations team is an absolute necessity for success.
Daily Operations
Our attorneys routinely advise clients on matters related to tax, intellectual property, the Health Insurance Portability and Accountability Act (HIPAA) and federal fraud and abuse, anti-kickback and self-referral (Stark) laws. In addition, we provide counsel on contract management, government contracting, immigration and real estate matters.