Operating skilled nursing and assisted living facilities presents a variety of challenges — from managing facilities across multiple states with unique regulatory requirements and overseeing complex supply chains to addressing a myriad of labor relations issues and adhering to robust compliance requirements in a highly regulated industry.
Saul Ewing attorneys guide companies and organizations in the long-term care industry that seek protection for their businesses and reputations, advising them on the many legal issues they face, including:
- Corporate transactions, such as mergers and acquisitions, public offerings and finance deals
- Health care regulatory compliance
- Bankruptcies and restructurings, such as out-of-court workouts and acquisitions
- Labor and employment disputes
- Executive compensation
- Government investigations and enforcement defense in federal and state administrative, civil, and criminal matters
Saul Ewing attorneys advised on these select long-term care representations:
Transactions and Financing
- A county in the sale of a county-owned nursing home and associated real estate, including addressing legal issues involving real estate, environmental compliance, employment, financing, licensure transfer and regulatory matters.
- A large owner, operator and developer of continuing care retirement communities in the United States in closing a $30 million transaction for one of its affiliates. The transaction involved the refinancing of existing debt and was expedited to lock in low interest rates.
- An operator of nursing care facilities and provider of health care services as bond and borrower’s counsel in the public offering of $50 million of bond anticipation notes. The deal will enable the entity to finance the construction of a new $30 million assisted living facility on its Pennsylvania campus and to refinance all of its existing debt. In addition, we helped the client create a “Planned Community” under the Pennsylvania Uniform Planned Community Act, obtain a $6.6 million loan from the Pennsylvania Department of Community and Economic Development, obtain a commitment from the U.S. Department of Agriculture for $40 million of permanent financing for the project, and obtain a $1.5 million line of credit for working capital.
- A large owner, operator and developer of continuing care retirement communities as bond and borrower’s counsel in the United States in connection with a multi-state public finance transaction aggregating $167.81 million. The financing involved the issuance of five separate series of tax-exempt bonds across Pennsylvania, Delaware, Florida, South Carolina, and North Carolina via both public offering and direct placement. This financing was an integral part of management’s efforts to reinvest in its communities and refinance certain outstanding debt.
- A five-star nonprofit senior care organization in the sale of one its long-term facilities and real estate holdings. Our team assisted the client in facilitating bidder interviews, responding to various Letters of Intent for the bidder group, and ultimately selecting a buyer and negotiating a successful asset purchase agreement all while navigating through the COVID-19 pandemic.
Health Care Regulatory
- Clients in advising on compliance with federal and state health care laws and regulations.
- Clients in handling licensure, survey and certification issues, and certificate-of-need matters.
- Clients in working with their privacy and security officers to comply with HIPAA and other pertinent laws relating to the confidentiality of patient information.
- Clients on compliance with federal, state, and local laws and regulations, including with regard to storage, dispensing, and use of medical cannabis.
- Clients in drafting, negotiating, and reviewing contracts with direct service and ancillary service providers, including, but not limited to, laboratory service, medical director and nursing agreements.
- Clients in providing advice and drafts of policies and procedures related to COVID-19.
- Clients on reimbursement issues as well as CARES Act and state funding issues.
- The official committee of unsecured creditors as co-counsel in the bankruptcy cases of the owners and operators of approximately 140 eldercare facilities in 10 states that provide skilled nursing care and other medical services to patients.
- A retirement community in an evaluation of restructuring options and advice on an out-of-court restructuring.
- A senior living center debtor as local counsel in a Chapter 11 case.
Labor and Employment
- A New Jersey nursing home and a Pennsylvania group of nursing homes as outside labor counsel in all employment matters, including hiring, offer letters, compensation, discipline, termination, policy development, complaint investigations and separation issues. We also defend the organization in various harassment and discrimination claims in various administrative agencies and state and federal court.
- A client in advising on employment issues arising from the sale of a New Jersey nursing home.
- A religious-based continuing care retirement community in advising on and documenting deferred compensation plans for senior executives under Code Section 457.
- A religious-based continuing care retirement community in advising on "excess benefit transactions," including providing assistance so that our client can qualify for the "rebuttable presumption of reasonableness."
- A client in reviewing executive compensation disclosures on Schedule J of Form 990.
- An employer in negotiating and drafting senior executive employment agreements and severance agreements to comply with Code Section 457.
White Collar Defense, Internal Investigations, and Government Litigation
- Long-term care businesses in responding to investigations conducted by governmental authorities, including, but not limited to, state Departments of Health, Centers for Medicare and Medicaid Services, U.S. Department of Health and Human Services Office of Inspector General, and U.S. Department of Justice.
- A large skilled nursing facility chain during a four-year investigation, resulting in a settlement agreement with the state attorney general without the filing of litigation against our client.
- Multiple employees as "pool counsel" in a statewide criminal grand jury investigation into a nursing home and its staff related to allegations of understaffing.
- Multiple nursing facilities in a federal grand jury investigation arising during the COVID-19 pandemic.
- A nonprofit health care entity serving seniors with lifelong disabilities in an investigation of alleged patient neglect and abandonment by an alcoholic employee, resulting in successful termination and criminal prosecution of the employee with no charges brought against the entity.
- A nonprofit health care entity in an investigation of a former employee who committed theft from the company and its assisted living/group home patients, including undertaking efforts to obtain restitution.
- Two employees of a state Department of Health in a state grand jury investigation relating to allegations of understaffing and poor standards of care.
- The former compliance officer of a company providing therapy services to nursing home patients in parallel civil and criminal investigations conducted by the U.S. Attorney’s Office.
- The executive of a nursing home chain in a federal grand jury investigation into allegations of fraudulent billing and a kickback scheme.