Long Term Care / Senior Living

Overview

Arent Fox represents operators, owners, managers, developers, private equity funds and other sources of equity to the long-term care industry, as well as lenders to public and private businesses that operate skilled nursing, assisted living, continuing care, retirement and independent living facilities. We counsel numerous ancillary services providers, such as therapy companies, home health agencies, pharmacies, diagnostic clinics, durable medical equipment suppliers and providers of retirement housing and hospice care.

Transactions

Arent Fox has completed numerous long-term care transactions in recent years. We represent buyers and sellers of nursing homes, assisted living and independent living facilities, and a variety of ancillary service businesses in hundreds of transactions throughout the country. Arent Fox has handled some of the largest and most complex transactions in the long-term care industry, including:

• The $1.25 billion acquisition of Horizon Healthcare by Integrated Health Services.
• The $562 million sale/lease and manage-back of 20 Horizon Bay Senior Communities senior living facilities.
• The $255 million sale of Marriott Senior Living Services’ (MSLS) health care real estate holdings to a real estate investment company. This transaction included the sale of 21 assisted living, independent living and continuing care facilities in 13 states and the sale of a minority ownership interest in five partnerships owning five senior living facilities in four states.
• The sale, development and joint venture with an institutional investor and the financing of seven Sunrise Senior Living facilities on behalf of Sunrise Senior Living, Inc.
• The more than $1 billion in acquisitions and divestitures of ancillary service providers, including home health agencies, institutional pharmacies, hospices, contract therapy companies, mobile X-ray providers and home respiratory and infusion companies.

Real Estate

Arent Fox has represented sellers and purchasers in some of the largest real estate transactions in the senior living industry, and the practice has broadened to include regulatory and other areas. For example, Arent Fox’s representation of Horizon Bay Senior Communities in individual real estate transactions grew to include corporate, regulatory, trademark and other areas. Likewise, many long-term care and other senior living clients, initially attracted by Arent Fox’s national health practice, such as Sunrise Senior Living, Inc. have turned to Arent Fox to represent them in real estate transactions. Services include:

• Providing counsel on land use, development and title issues affecting senior living clients’ properties.
• Advising and negotiating master leases and management agreements on behalf of tenant and landlord clients for senior living facilities.
• Structuring and negotiating financing transactions for senior living facilities, including acquisition financing and refinancing transactions.

Regulatory

Health care is one of the most highly regulated industries in the United States, and Arent Fox has expertise in navigating this challenging landscape. Services include:

• Advising on regulatory implications of asset transfers, stock transactions, management agreements, sale-leaseback arrangements, the creation of new health care entities and vendor/service agreements.
• Assisting clients in satisfying applicable state licensure requirements, Medicare/Medicaid regulations, federal and state fraud and abuse standards, corporate practice guidelines and fee-splitting laws.
• Developing contacts in regulatory agencies across the country to obtain regulatory approvals for clients.
• Assisting clients with Medicare/Medicaid enrollment and reimbursement issues to minimize successor liability and cash flow problems.
• Counseling providers on federal and state survey and certification processes.
• Advising clients on preparation for surveys, exit interviews, analysis of deficiencies, informal dispute resolution, plans of correction, strategies for dealing with follow-up surveys, administrative sanctions and appeals.

Compliance

Arent Fox provides compliance counseling on federal and state health care regulation to meet clients' needs in assessment, adherence and avoidance. Services include:

• Counseling in fraud and abuse, including the civil and criminal defense of fraud-related allegations.
• Conducting internal investigations.
• Developing corporate compliance programs.
• Evaluating provider operations and offering suggestions for correcting deficiencies.
• Performing legal audits to determine if long term care facilities and affiliated entities comply with the requirements of Medicare and Medicaid programs.
• Analyzing vulnerabilities that result from coverage disputes.
• Reviewing survey findings.
• Evaluating patient quality of care concerns and licensing challenges.
• Performing compliance reviews of documents and assessments of compliance program issues.
• Providing training geared to long term care issues and performing “spot check” audits and due diligence compliance reviews for clients growing through acquisitions.
• Assisting clients with audits of security systems for electronic health information and ensuring compliance with Health Insurance Portability and Accountability Act (HIPAA) security standards.
• Offering a model compliance program that allows health care providers to implement the most important aspects of HIPAA privacy standards cost-effectively.

Operations

Arent Fox acts as primary outside general counsel to several of the nation's largest long-term care providers, and we are experts on the day-to-day operation of long term care facilities. Services include:

• Advising on billing and reimbursement, risk management, employment disputes, internal corporate governance and structure, managed care contracting, information technology, record management, construction, resource contracting and finances.
• Developing management agreements for the operation of nursing homes, assisted living facilities and other long-term care organizations.
• Counseling on liability and capital maintenance obligations.
• Transitioning operations of health care facilities from one operator to another.

Litigation

We represent clients before administrative and judicial forums dealing with survey and certification appeals, informal dispute resolution, coverage and reimbursement appeals, individual and institutional licensure hearings. Arent Fox has more than 70 litigators skilled in the arts of advocacy and dispute resolution and a team of trial lawyers who have won verdicts in state and federal courts throughout the country. We also have an active appellate practice and have successfully argued cases before state and federal appellate courts and the United States Supreme Court.

Bankruptcies, Restructurings and Workouts

Arent Fox has represented parties in virtually every relationship in bankruptcy reorganization and liquidation, as well as in the restructuring of debt through out-of-court workout agreements. We were appointed special counsel in the Integrated Health Services case, one of the largest and most complex reorganizations in the health care industry. We serve as bankruptcy counsel to a large regional nursing home operator and 26 of its subsidiaries and affiliates in bankruptcy cases pending in the United States Bankruptcy Court for the District of Utah.

Our secured creditor representations include Chapter 11 cases of Sun Healthcare Group and Mariner Healthcare Group. We have represented secured creditors of long-term care companies in Chapter 11 proceedings pending in bankruptcy court and have assisted them in restructuring relationships with reorganized debtors who have emerged from bankruptcy. We have also been actively involved in out-of-court workouts and restructurings involving long term care industry companies.