Post-Acute and Long-Term Care Services & Supports

Print PDF
Overview
Publications

Hooper, Lundy & Bookman includes some of the most pre-eminent practitioners in the area of post-acute care and long-term care services and supports.  Whether it is ensuring appropriate reimbursement from governmental payors or health plans and insurers, managing audits, investigations and legal actions relating to fraud, abuse and program integrity, fighting adverse survey, certification and enforcement actions or handling a major transaction such as mergers, acquisitions, asset sales, joint ventures and financings, our attorneys have the expertise and experience to best serve your needs. 

The firm’s practitioners who work in this area are at the forefront of policy developments by virtue of their work with national and state trade associations representing post-acute and long-term care providers.  If there is an issue that will affect providers in this area, our attorneys likely already understand the issue and its implications and how you can best navigate its challenges.  We pride ourselves on having a deep understanding of the legal and business issues facing post-acute and long-term care providers and our ability to serve as trusted advisors to our clients.  We have served and continue to serve each of the types of post-acute and long-term care providers described below.

Skilled Nursing Facilities

Skilled Nursing Facilities (SNFs) come in all shapes and sizes in how they are structured and the patients that they serve.  As the vast majority of SNFs are certified in both the Medicare and Medicaid programs, our firm has high levels of expertise in licensing and certification issues as well as all of the related reimbursement and post-payment issues that SNFs face in ensuring that they are paid timely and appropriately by governmental and third-party payors. 

With the increasing trend towards payment systems being moved to managed care, our attorneys are experts regarding the intricacies of negotiating health plan contracts on behalf of SNFs as well as enforcing the terms of those agreements.  We have tremendous expertise with respect to the operation of Medicare Advantage and Medicaid managed care plans as well as commercial plans and Accountable Care Organizations.  Given the nature of the patients served by SNFs, we have a specific focus on Special Needs Plans (“D-SNPs”) that are serving dually-eligible beneficiaries, either through the recently enacted Duals Demonstration Program or in markets that have not participated in the demonstration but have significant D-SNP penetration.  Our attorneys have also sought reimbursement on behalf of SNFs from health plans in non-contract situations, and other complex contractual situations such as circumstances where a contract has expired by its own terms.

While most SNFs participate in the Medicare and Medicaid programs, they may have slightly different structural aspects based on whether they are “free-standing” or “hospital-based.” Our attorneys are expert in these nuances as well as the additional reimbursement and regulatory issues that arise when SNFs provide subacute services through specialized units, either by entering into separate governmental contracts with Medicaid agencies or operating under existing hospital licensure.  With the trend towards managed care payment systems, our attorneys understand the nuances of these structures and patient populations and how they relate to managed care contracting.  This likewise applies to the operations of Special Treatment Programs within SNFs (SNF-STPs) and the unique state-county funding of these skilled nursing and mental health services under Medicaid.

Notwithstanding these differences, all SNFs face the growing challenges associated with audits and investigations by governmental payors and health plans.  Further, as these activities can produce take-backs from SNFs or produce administrative, civil or criminal filings under the elder abuse or false claims laws, providers need to ensure that their attorneys are fluent with these risks, the governmental investigators involved and can manage these investigations with these interests in mind. 

Our attorneys have vast experience in this area, having successfully managed countless investigations through their conclusion or through litigation brought by governmental entities or qui tam relators.  These have included audits and investigations handled by State Medicaid Agencies (in California the Department of Health Care Services and the Bureau of Medi-Cal Fraud and Elder Abuse), by the Centers for Medicare and Medicaid Services (CMS) and its contracted Medicare Administrative Contractors (MACs), Recovery Auditors (RAs), Zone Program Integrity Contractors (ZPICs), Supplemental Medical Review Contractors (SMRCs), the Office of Inspector General (OIG), the Federal Bureau Of Investigation (FBI)and the Department of Justice (DOJ).

We also have significant expertise with the numerous regulatory issues faced by SNF in their daily operations, as overseen by state licensing authorities (in California, the Department of Public Health) and CMS.  These include issues associated with transfer and discharge, self-reporting obligations relating to the delivery of care as well as the retention of overpayments, issues of capacity and informed consent and the myriad other daily legal issues that arise in SNF operations.  Whether it is counseling clients or directly handling these matters, we bring a wealth of expertise to these issues.

This is likewise the case with assisting SNFs with their compliance efforts and obligations.  We have drafted, reviewed and revised numerous SNF compliance plans and serve as advisors to compliance officers and internal SNF staff in resolving compliance issues.

As civil litigation is an increasing risk for the post-acute and long term care profession, our attorneys regularly manage complex litigation in both state and federal courts at the trial and appellate levels.  Our attorneys have managed numerous class actions and representative lawsuits brought under California's Unfair Competition Law (UCL), Business and Professions Code Sections 17200 et seq., the Consumer Legal Remedies Act (CLRA), and other broad statutory claims such as California Health and Safety Code section 1430(b).  Given our attorneys' vast experience in managing litigation specific to post-acute and long-term care providers, we also regularly assist providers in risk management and asset preservation strategies through corporate structuring advice and assistance in developing operational policies and procedures.

Beyond the risks associated with operating in this challenging area, our attorneys have significant experience in assisting post-acute care and long term care providers regarding a myriad of business transactions, including mergers, acquisitions, asset sales, joint ventures, financings, real estate transactions, private placements and syndications, health plan and other commercial contracting, and other transactional matters.  Not only do our attorneys have the expertise to draft and negotiate the necessary documents to support the transaction, they have a thorough understanding of the due diligence process related to SNF operations and all of the necessary regulatory approvals that need to be obtained from governmental entities to make the transaction operational.  We have extensive contacts within the federal and state regulatory agencies that can greatly assist with a transaction going smoothly and meeting our clients’ needs.

Intermediate Care Facilities for the Mentally Retarded

Intermediate Care Facilities for the Mentally Retarded (ICF-MRs), known in California as Intermediate Care Facilities for the Developmentally Disabled (ICF-DD) also come in many shapes and sizes.  Our attorneys are familiar with all of the different licensure categories operating in this area (in California, the ICF-DD, ICF-DD/H and ICF-DD/N and ICF-DD/CN licensure categories) and the unique issues that each of the types of facilities face in their work with developmentally disabled patients requiring habilitative, nursing and continuous nursing services.  We have significant expertise as to the licensing and certification of these facilities as well as their reimbursement by State Medicaid Agencies.

Institutions for Mental Diseases

Institutions for Mental Diseases (IMDs) present unique issues as to Medicaid reimbursement by virtue of the ages of the patients served by these SNFs and other facilities and the “IMD exclusion.”  We have significant experience handling reimbursement issues in this area, including the application of the “IMD exclusion,” county funding of services as well as state funding for “ancillary” services.  Moreover, as with any facility caring for patients with mental health issues, the issues associated with self-reporting are significant and challenging.  Our attorneys have a high degree of expertise in this area.

Assisted Living, Board and Care and Residential Care Facilities

Our attorneys represent a wide array of owners and operators of senior care communities, including assisted living, board and care and congregate senior communities.  We regularly assist providers regarding operational issues, licensure issues with the California Department of Social Services, and regulatory compliance.  Our attorneys have managed scores of business transactions for senior care providers, including mergers, acquisitions, asset sales, joint ventures, real estate transactions, management contracts and other transactional matters.  We not only draft and negotiate the necessary documents to support the transaction, but also assist our clients through the due diligence process and with all of the necessary regulatory approvals that need to be obtained from governmental entities to make the transaction operational.  We have extensive contacts within the Department of Social Services and other state regulatory agencies that often prove to be beneficial with a transaction and generally meeting our clients’ needs. 

Continuing Care Retirement Communities and Multi-Level Facilities

Our attorneys represent a wide array of owners and operators of continuing care retirement communities (CCRC) and multi-level facilities.  We regularly assist providers regarding operational issues, licensure issues with the numerous state agencies with over-lapping jurisdiction of such unique providers, and regulatory compliance.  We assist clients in negotiating resident contracts, vendor contracts, management contracts and compliance with reporting obligations to state agencies related to reserve requirements and operational accounting.  We have extensive contacts within the Department of Social Services-Continuing Care Contracts Branch and the host of other state regulatory agencies necessary to effectively meet our clients’ needs. 

Rehabilitation Agencies and Comprehensive Outpatient Rehabilitation Facilities

Rehabilitation Agencies and Comprehensive Outpatient Rehabilitation Facilities (CORFs) face a variety of certification and reimbursement issues from governmental payors.  This has included significant program integrity activities by MACs, ZPICs, RAs and SMRCs as to rehabilitation delivered to residents of SNFs under Medicare Parts A and B as well as medical review (MMR) regarding certain Part B claims for services delivered to SNF patients.  In addition, the trend towards managed care has resulted in the development of an alternative payment model that has impacted the manner in which these entities are reimbursed and how they deliver rehabilitation services.  Our attorneys are experts in this area and can assist with respect to these issues.

There are numerous other legal issues that arise when rehabilitation agencies contract with SNFs to provide rehabilitation services to patients that are covered by Medicare.  Whether the issues arise under Parts A, B or C, our attorneys are highly experienced in the billing, reimbursement and related fraud, abuse and program integrity issues currently under scrutiny with respect to the delivery of rehabilitation services.  We have been involved in handling numerous audits and investigations relating to the medical necessity of rehabilitation services as well as the frequency and duration of services under both Parts A and B.  In addition to the contractors referenced above, these have also included the OIG, FBI and DOJ.  We have likewise handled administrative, civil and criminal litigation matters involving the delivery of these services in the post-acute and long-term care area.

We have also assisted rehabilitation providers develop and implement compliance plans in response to the increased scrutiny in this area.  Our attorneys are often called upon to advise clients in this area on compliance issues.

Home and Community Based Services

We have served the broad array of home and community-based service providers, including hospices, adult day centers (called community-based adult services in California), home health agencies, and other personal care services.

Hospices.  Hospices face a variety of certification and reimbursement issues from governmental payors.  In addition, the trend towards managed care has created some additional complication for hospices when they deliver services to patients in SNFs.  Our attorneys are experts in this area and can assist with respect to these issues.

There are numerous other legal issues that are currently challenging hospice providers.  Hospices are currently the subject of a significant amount of Medicare and Medicaid audits and investigations questioning the medical necessity and duration of service provided to patients as well as compliance with “face-to-face” requirements.  These have included investigations undertaken by State Medicaid Agencies (in California, the Department of Health Care Services), by CMS and its MACs, RAs and ZPICS and the OIG, FBI and DOJ.  Our attorneys have significant experience in managing these audits and investigations as well as representing hospices in response to threats of administrative, civil and criminal exposure.

Home Health Agencies.  Increasingly, governmental programs and other healthcare payors are focusing on home health services as an alternative for higher acuity care settings.  These home health agencies operate under significant and complex government regulation and scrutiny.  Our attorneys are expert in assisting home health agencies navigate these regulatory mazes.

Managed care entities have increasingly shown interest in contracting with home health agencies.  We have assisted in the development of an IPA-model for home health agencies for managed care contracting.  We have also advised numerous home health agencies in their review and negotiation of managed care contracts. 

Adult Day Centers.  Adult day centers, called community-based adult services in California, are a rapidly growing segment of the long-term care spectrum.  We have long supported adult day centers to challenge rate reductions from State Medicaid programs.  As more of these Medicaid programs transition to managed care systems, we have assisted adult day centers analyze and negotiate managed care contracts and are available for disputes with managed care plans.

Personal Care Services

Personal Care Services have been part of the long-term care continuum for many years in a number of states, including California.  With the expansion of Medicaid managed care to cover Managed Long-Term Care Services and Supports (MLTSS), these services are becoming an even more important part of the delivery of long-term care along with a variety of “wrap around” services.  Our attorneys understand the structures of these programs and how they relate to the overall delivery of services.  We have represented public authorities involved in the provision of these services and our attorneys have expertise as to the reimbursement and delivery of these services.

Durable Medical Equipment and Medical Supplies

Providers of Durable Medical Equipment and Medical Suppliers that serve SNFs and other long-term care providers face a number of challenges associated with competitive bidding and reimbursement with respect to the Medicare and Medicaid programs.  We have assisted DMEPOS with the competitive bidding process

Along with these challenges, these providers have come under increased scrutiny regarding their billing practices by State Medicaid Agencies, CMS and its contracted DMERCs and RAs.  Our attorneys are experts in DME and Medical Supply reimbursement and have tremendous experience in assisting these providers in audits and investigations and administrative, civil and criminal actions resulting therefrom.  In addition, we are often called upon to counsel providers in this area in order to avoid compliance issues.

Trade Associations

We currently serve as General Counsel for the California Association of Health Facilities (CAHF), the largest trade association representing the interests of SNFs and ICF-DD facilities in California.  As general counsel, we advise CAHF as to any and all legal issues associated with its business operations.  A number of our attorneys serve on various standing committees of CAHF and are regular speakers at CAHF conferences.

In our role as General Counsel to CAHF, we also advise and represent CAHF on legal matters, including those arising before the California legislature the administrative agencies overseeing these facilities (the Department of Health Care Services and the Department of Public Health) as well with the California Department of Justice.  We also represent CAHF before CMS and other federal agencies.  Our attorneys often testify before the California legislature and participate in drafting key portions of legislation as well as rulemaking comments to proposed rules impacting CAHF members issued by DHCS, DPH and CMS.

We also represent the interests of CAHF and its members before state and federal courts throughout California.  Over the years, our attorneys have handled major pieces of litigation on behalf of CAHF and its members on any number of significant issues related to reimbursement, regulatory, civil liability and labor law.  More recently, we have been working extensively with CAHF on California’s expansion into Medicaid MLTSS as well as its participation in the Dual- Eligible Demonstration.  That work has included significant interface and work with the health plans participating in these programs.

In addition to CAHF, our attorney have represented the American Health Care Association on a number of matters related to reimbursement, program integrity and managed care.  We participate in a number of standing committees of AHCA.

Beyond CAHF and AHCA, we have represented several state associations in the post-acute and long-term care areas as to reimbursement and program integrity.

Other Publications

For media inquiries, please contact Barrett McBride at 916.456.5855.