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Long Term Care

LeClairRyan has the honor of serving for-profit and not-for-profit long term care facility owners, operators and management companies across the nation, including skilled nursing facilities, assisted living facilities, retirement communities and independent living facilities. We also represent suppliers of goods and services to the long term care industry, including home healthcare, pharmacy, dialysis, rehabilitation therapy, hospice and transportation companies. We are trusted advisors to our long term care clients, meeting their risk management, regulatory, employment, corporate, business, real estate, transactional and litigation needs. We partner with our clients to address their legal and business needs, implement action plans and accomplish their goals through a full spectrum of legal services. In addition, members of our team regularly contribute to LeClairRyan's Long Term Care Counsel blog and delve into topics related to corporate law, employment law, regulatory compliance, mergers and acquisition, real estate and litigation.  

Employment Services

The employment attorneys on our team understand the employment issues that our long term care clients face. We work with our clients to achieve a workplace free of distractions that interfere with the quality of services provided to residents. We provide advice and assistance with employee management issues as they arise and offer strong defenses when litigation occurs.

Members of our team advise and draft policies on drug testing, criminal activities of employees, advertising and hiring practices, privacy matters, employee personnel files, discipline and termination. We also draft employment agreements, multi-step disciplinary procedures, employment policies and employee handbooks. In addition, we conduct on-site investigations and interviews to obtain information related to employment issues. We also implement action plans and provide educational programs and sensitivity training.

We represent our clients in administrative agency proceedings and litigation related to the Americans with Disabilities Act, Age Discrimination Act, Title VII of the Civil Rights Act of 1964, Family Medical Leave Act, Fair Labor Standards Act, Equal Pay Act and a multitude of other federal and state employment laws. We guide our clients through discrimination complaints from the initial filing of a charge through the federal or state agency findings notices. We defend workers’ compensation claims to ensure that workplace injuries are accurately represented and that payments are appropriate. Our team has extensive litigation experience with wrongful termination, improper discipline, wage-hour and discrimination lawsuits. We also defend negligent hiring, negligent supervision and negligent retention claims.

Regulatory Compliance and Government Investigations

We are dedicated to relieving our clients of the myriad regulatory requirements placed upon the long term care industry so they can focus on providing care. To that end, we assist our clients with interpreting and analyzing federal fraud and abuse laws, including federal anti-kickback, self-referral, unfair trade practices, false claims and secondary payor issues. We conduct risk assessments for our clients and implement compliance programs to prevent government reviews.

Members of our team assist our clients with developing and implementing compliance programs in accordance with OIG guidelines, the Federal Sentencing Guidelines and civil duties under federal law. We perform compliance gap analyses of existing compliance policies and revise and draft policies as necessary to bolster our clients’ compliance programs. Our team reviews proposed and existing business arrangements to ensure compliance or minimize risks associated with fraud and abuse laws, including the Physician Self-Referral Law (Stark Law), Anti-Kickback Statute, civil monetary penalty laws, and the False Claims Act, as well as government and third-party payor reimbursement requirements.

We represent our clients in matters associated with government investigations and regulatory compliance, including transactional due diligence, internal investigations and governmental enforcement actions. Our attorneys have assisted our clients with Centers for Medicare and Medicaid Services, Food and Drug Administration and Occupational Safety and Health Administration audits and investigations. Members of our team are present for on-site investigations to ensure favorable outcomes and identify when regulators overstep their authority. We also represent clients in appeals of state and federal adverse findings.

Corporate Services

Members of our team understand how today’s economy has affected the long term care industry, allowing us to effectively work with facility owners and operators to create legal strategies and business solutions that protect our clients’ interests. Toward that end, we call upon our corporate services attorneys to assist in the structuring or restructuring of business entities to account for issues related to owners’ liability.

Our corporate services attorneys can assist our clients with acquisitions and sales of single or portfolios of assisted living, skilled nursing and independent living facilities and negotiate transfer agreements. We also provide financing services to assist clients with bridge and permanent acquisition financing, including mezzanine financing, and with financing and re-financing of HUD-insured loans. We work with HUD to resolve issues related to acquisitions, sales, refinancing and restructurings of long term care facilities. Our attorneys assist with obtaining certificates of public need, provide change of ownership guidance and assist with real estate transactions and zoning. Our team also drafts lease agreements for facilities and other contracts for facility services.

Litigation

Our litigation attorneys understand that our clients are increasingly becoming the focus of litigation as the over-70 population grows. We are dedicated to protecting our clients from litigation, and, when necessary, defending them through the litigation process. Members of our team offer training sessions to educate clients and their staff on emerging risk management issues and litigation trends. We are first-responders to our clients and address crisis situations immediately and implement action plans.

Our team members have successfully defended a variety of matters, including allegations of resident/staff rape, premises liability and building code violations, and theft of resident property. In addition, we have obtained favorable results through summary dismissal or trial in cases involving failure to monitor, medication errors, resident-on-resident assault, elopement, pressure ulcers and resident falls. We also represent healthcare professionals before tribunals such as medical staff credentialing committees and state licensing boards and appear before administrative law judges on matters related to reimbursement and taxation. We understand the demands of litigation on our clients and strive to reasonably resolve matters through alternative dispute resolution. Throughout the litigation or dispute resolution process, we consistently provide our clients with well-reasoned case analyses and updated case developments.

Representative matters:

  • Employment
    • Represented skilled nursing facility in sex discrimination/termination suit 
    • Obtained summary judgment in nurse’s age discrimination termination suit against skilled nursing facility
    • Represented skilled nursing facility in age discrimination suit and obtained favorable settlement
    • Counseled nursing home clients on numerous employment matters, including employee leave, discipline policies, terminations and separation packages
    • Drafted reasonable suspicion drug and alcohol testing policies for nursing home clients and trained management employees on policy implementation
    • Handled and represented nursing home clients in employee discrimination and retaliation charges before the EEOC and state agencies resulting in no cause findings
    • Drafted and updated employee handbooks for nursing home clients
    • Obtained favorable settlement for nursing home client in contentious employment discrimination and retaliation case
    • Conducted training sessions for management employees on best practices for employee discipline and performance evaluations
  • Regulatory
    • Provided advice on HIPAA privacy and security 
    • Assisted rapidly expanding long term care company with comprehensive compliance review of recently acquired facilities
    • Represented healthcare clients in government surveys and investigations
    • Counseled healthcare clients on healthcare regulatory issues related to fraud and abuse, Anti-Kickback Statute and Stark Law
    • Assisted hospice provider with collection difficulties involving Centers for Medicaid and Medicare Services (CMS)
    • Represented healthcare clients in government reimbursement audits and appeals (RAC, ZPIC, and other Medicaid and Medicare contractors)
    • Represented nursing home during state/Medicare survey that threatened to close facility
    • Oversaw confidential major CMS investigation of billing practices at large skilled nursing facility company
    • Oversaw series of hospice investigations and subsequent administrative actions, such as payment suspensions, throughout Southern California
    • Represented healthcare clients in managed care contracting, disputes and appeals
    • Represented healthcare clients in Medicare and Medicaid revocation and termination actions
    • Oversaw adult protective services inspection of assisted living facility related to locks on resident room doors constituting elder abuse
  • Corporate Services
    • Handled sale and change of operators of various long term care facilities
    • Advised clients on various financings in long term care industry, including, debt, equity and accounts receivable financing
    • Advised assisted living facility in obtaining county zoning approval to operate memory care facility
    • Handled certificate of public need matters for assisted living facilities
    • Drafted contracts for long term care facilities and other health care clients, including services agreements, medical director agreements and vendor contracts
    • Advised assisted living facility with a memory care wing in obtaining site plan approval for building modifications
  • Litigation
    • Defense verdict in a nursing home litigation over wound care related to leg amputation on a resident with diabetes-related gangrene requiring further amputation
    • Successfully handled claim for nursing home involving 93-year-old resident who suffered serious injuries from fall in shower despite caregiver assistance
    • Favorably obtained indemnification and additional insured coverage for claim involving injuries to resident who fell while in care of independently contracted physical therapist
    • Obtained defense verdict against alleged negligence leading to a fall at rehabilitation facility
    • Handled wrongful death and conscious pain and suffering claims arising from death of 81-year-old diabetic resident allegedly due to providing prescription Metformin to resident
    • Settled claim related to paraplegic resident sliding off shower bed and sustaining lacerations for $40,000
    • Obtained settlement of matter related to fall causing cervical vertebra fracture, dysphagia, pressure ulcer and death against skilled care facility for $75,000
    • Obtained decision that opt-out state statute targeting arbitration clauses is violation of the Federal Arbitration Act
    • Implemented immediate crisis intervention plan to address rape of dementia resident by CNA
    • Defended claims by 92-year-old nursing home resident who sustained a fractured pelvis when she fell in her room. Allegations include poor patient monitoring and liability for delay by facility to provide her with medical attention.
    • Handled wrongful death claims concerning 75-year-old resident following his hospitalization due to severe pressure ulcers being treated by contracted nursing care while residing at insured’s facility
    • Defended claims involving 58-year-old aphasic resident alleging to have acquired sexually transmitted disease at facility. Male caregiver and male co-owner were tested and results were negative. No other males work at facility. Resident was taken from facility by family for 1-2 days and could have acquired STD while away from facility.
    • Handled matter involving death of 74-year-old resident allegedly arising out of failure of Foley catheter care leading to infection and urine retention
    • Settlement of elopement case with resident hit by a train for $135,000
    • Defense of insured home health care company in matter in which plaintiff fell while being assisted to her wheelchair while in client’s home
    • Obtained defense verdict against alleged negligence in failing to prevent 15 falls in 41 days resulting in multiple injuries to 58-year-old alcoholic
    • Defended client against allegation that plaintiff developed pressure ulcer as a result of inadequate care. Case was non-suited.
    • Defense of death claims arising from wandering of elderly Alzheimer’s patient who walked away from skilled nursing facility
    • Handled injury claims by visitor against assisted living facility arising from slip and fall on ice outside facility
    • Settled of pressure ulcer/wrongful death case against skilled care facility for $90,000
    • Obtained defense verdict for assisted living facility in matter involving a resident who fell and broke her arm and shoulder at the facility
    • Handled claims involving 91-year-old resident admitted to hospital with ulcers to heel, knee, buttocks and coccyx. Allegations include failure to evaluate, monitor and provide appropriate care by nursing home staff.
    • Obtained defense verdict against allegation that patient choked to death on food while unattended
    • Defended claims allegedly related to death of resident following improper administration of Ativan medication
    • Internal investigation of alleged pain medication theft and claims alleging negligence and infliction of pain and suffering on patient who did not receive prescribed drugs
    • Defended assisted living facility in which resident suffered fractured hip after being found on floor next to bed
    • Obtained defense verdict in matter involving independent living community where 92-year-old plaintiff, who was ambulating without her walker, alleged community owed her duty of supervision
    • Defended long term care facility in matter involving resident who fell out of fourth-floor window
    • Settled death case for $125,000 after re-insertion of G-tube without radiographic guidance causing tube feedings to deposit into peritoneal cavity
    • Defended long term care facility against claim that resident’s above-the-knee amputation became infected with maggots
    • Defended client against allegation that plaintiff was attacked by detox patient after discharge and that facility failed to warn her of threats by patient. Prevailed on non-suit after jury selection.
    • Obtained defense verdict for nursing home in wrongful death lawsuit in which resident allegedly choked while eating due to lack of supervision
    • Defended client against allegation that abuse suffered while resident was at nursing home caused severe mental distress. Plaintiff non-suited case.

Contact

  • 973.491.3520
  • 540.510.3037