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Continuing Care Retirement Communities, Long Term Care, Assisted Living

Whiteford, Taylor & Preston's Continuing Care Retirement Community Industry Group provides legal advice and representation to owners, operators and managers of continuing care retirement communities (CCRCs) throughout the United States.  In addition, we represent assisted living, comprehensive nursing care and other senior living facilities.

We know the senior living industry and are active in national and state-wide industry organizations to remain current with the evolving legal, business and other issues of the long-term care market. Our experience encompasses all of the legal issues, transactions and disputes, including the areas of healthcare and regulatory law,  that are unique to the industry. This practice is a special focus of our firm's healthcare, corporate, nonprofit, tax, real estate, community  association and litigation attorneys.

We provide a wide range of services for CCRCs and other long-term care providers dealing with the everyday issues encountered by all businesses, together with those that are unique or specific to this industry and its providers.  As this environment has become more complex, so have the associated legal issues -- issues that we address on a regular basis.

Our CCRC clients include both nonprofit and for-profit entities and range from stand-alone CCRCs to some of the largest CCRC systems in the country. We represent our clients in:

  • Healthcare and other regulatory matters
  • General counsel services
  • Corporate governance and planning
  • 501(c)(3) status and nonprofit tax issues
  • Labor and Employment matters
  • Mergers, acquisitions and divestitures
  • Taxable and tax-exempt financings
  • Debt restructurings
  • Real estate and Environmental issues
  • Federal and state tax matters
  • Employee Benefits (ERISA)
  • Commercial, Regulatory and Tort litigation 
  • Bankruptcy

Healthcare and other regulatory matters 

WTP counsels its CCRC, assisted living and other senior living clients in all aspects of healthcare and other regulatory issues, including:

  • CCRC registration
  • Residence and care agreement submissions
  • Disclosure statement requirements
  • Change in ownership and healthcare regulatory matters for assisted living and skilled nursing care

Dealing with government agencies at any level may seem confusing and, at times, intimidating. At other times, however, working collegially with government agencies can provide our clients with a path to significant business opportunities.  It is difficult to imagine an aspect of the business of operating a CCRC that is not subject to government oversight and regulation.  Therefore, it is important for attorneys who advise CCRC clients on regulatory matters to be well versed in numerous regulatory fields.  Our depth of experience allows us to serve that need for our clients. 

For example, created as part of the Affordable Care Act and developed by CMS, the Bundled Payments for Care Improvement Initiative will test four models of bundled payments.  This initiative is part of an effort to improve outcomes and reduce costs by coordinating care.  For nursing homes, this Initiative means that payments will be bundled for a medical event that begins at a hospital and subsequently includes post-acute care.  The focus of this Initiative is a new payment model that will include financial and performance accountability for episodes of care.  Therefore, the need for nursing homes to begin to develop strategic alliances with hospitals and other providers will be a key component in positioning nursing homes for the delivery of quality result-oriented coordinated care.

The Balanced Budget Act and other changes have forced long-term care providers to understand and meet:

  • The challenges of the Prospective Payment System (PPS)
  • Managed care contracting requirements and opportunities
  • The need to create and document a comprehensive compliance program
  • The possible combination of Medicare and Medicaid payments under an Integrated Care System (ICS)
  • The need to attract strategic partners and capital
  • The need to develop innovative financing and organizational structures for long-term care facilities

Under the Health Insurance Portability and Accountability Act (HIPAA), as amended by the HITECH Act, new challenges are emerging to provide protections for safeguarding health information in a dynamic information-sharing environment. Our CCRC lawyers work closely with the attorneys in our Cyber Security, Data Management and Privacy practice to stay on top of the fast-changing requirements and help our clients avoid costly breaches.

We have the experience to navigate our clients through even the most challenging and complicated regulatory matters at the federal, state or local level.  We focus on avoiding problems before they arise at the agency level and, if problems do arise, to remedy or minimize the effect of those problems promptly.  In those situations requiring that we turn to the courts to correct government action, our litigators are prepared to represent our clients through all phases of the litigation and appeals process.

General counsel services

Our business and corporate practice covers all aspects of our clients' day-to-day lives, whether they are nonprofit or for-profit entities. While members of the group have the experience to handle specialized transactions and events, our first and foremost focus is on serving as the equivalent of a CCRC client's "primary care" lawyer.  As primary care lawyers to our CCRC clients, we can offer "check-ups" to make sure each client is in compliance with corporate law requirements and formalities -- our reviews of corporate minute books and records can serve as either a regular maintenance item or as preparation for a more significant "procedure," such as a public debt offering or acquisition. We also offer "preventive medicine," such as training and advising corporate officers and directors on their duties and responsibilities. And, should a "specialist" be required, the group can serve as gatekeepers, seeing to it that a client gets the specialized advice it requires while maintaining oversight over the process.

Corporate governance and planning

Our corporate and tax attorneys assist our CCRC clients with their ongoing corporate governance as well as planning for expansions, restructuring, or other changes.  We draft corporate resolutions for board action, assist with legal issues that arise during board meetings, and ensure that the CCRC's corporate ship is moving smoothly.  When changes are being considered, our corporate and tax attorneys provide advice on the various options available to our CCRC clients, taking into account the applicable corporate and tax restrictions.

501(c)(3) status and nonprofit tax issues

The group's nonprofit and tax lawyers have significant experience in preparing applications for recognition of exempt (501(c)(3)) status and in responding to questions that might be raised by the IRS in connection with its review of an application.  Similarly, we have experience in seeking charitable exemptions for our clients with respect to various state and local taxes.  We advise our clients on:

  • Maintaining exempt status
  • Completing tax forms such as IRS form 990 and its various schedules
  • UBIT questions
  • Public disclosure requirements

In the event of a federal or state tax audit, we determine the most effective way to proceed either by providing advice to our client and/or its accounting firm, or by directly representing the client before the taxing authority.  

Labor and Employment matters

Our labor and employment attorneys provide a wide range of services to our CCRC clients, including:

  • Representing CCRCs in employee disputes in matters relating to union and labor issues, EEO claims, and severance negotiations
  • Advising CCRCs on FLSA issues, drafting and implementing HR policies and practices, position reorganizations, and EEO issues
  • Assisting CCRCs in recruiting foreign employees requiring visas and work permits
  • Advising nonprofit CCRCs on the compensation of officers, directors and executive staff with respect to potential intermediate sanctions issues

Mergers, acquisitions and divestitures

The group's mergers and acquisitions lawyers pride themselves on being "deal makers," not "deal breakers," and bring a pragmatic approach to the acquisition or divestiture process, without losing sight of the fact that our first responsibility is to protect and advance the interests of our clients and the CCRC's residents. Our experience includes numerous CCRC affiliation and de-affiliation transactions  and preserving restricted or charitable assets in such transactions.  Our record of hundreds of efficiently and successfully completed transactions involving public and private clients, in a wide range of industries and price ranges, including CCRCs, is evidence of the breadth of experience and our commitment to our clients.

Taxable and tax-exempt financings

Our public finance lawyers have served as bond counsel, underwriter's counsel, borrower's counsel, trustee's counsel and guarantor's counsel in over $2.5 billion of tax-exempt revenue bond issuances in the past decade, as well as other forms of financing, including various kinds of HUD financing transactions. These experiences result in our taking a comprehensive and creative approach on behalf of our clients, including CCRCs, in all forms of financing, both taxable and tax-exempt.  In addition, our experience includes significant involvement in interest rate swap and investment agreement transactions which are frequently a part of CCRC and other financings.

Debt restructurings

We have completed a wide range of out of court debt restructurings for CCRCs and other clients, including extensions and renegotiations of letters of credit, renegotiation of the terms of bank and other institutionally held bonds and extensive involvement in other circumstances where debt relief is needed. 

Federal and state tax matters

We provide sophisticated and comprehensive advice on federal and state tax matters of particular relevance to for-profit and nonprofit organizations, including CCRCs.  For example, we counsel and represent CCRCs and other seniors' housing and care providers on matters such as:

  • Obtaining and maintaining recognition of tax-exempt status
  • Unrelated business income analysis
  • Structuring of subsidiaries, affiliates and joint ventures

Members of the group have extensive experience in advising CCRCs and other for-profit and nonprofit organizations on a broad range of federal and state tax issues, including:

  • Advising clients on tax liabilities and exemptions available to them
  • Controversy matters
  • Administrative appeals
  • Litigation of state tax matters in state courts (including income and sales tax issues, nexus for income or sales tax purposes, property tax, utility and franchise tax issues)
  • Litigation of federal tax matters in federal courts
  • IRS audits of tax-exempt bonds and 501(c)(3)s

Real estate and Environmental issues

The firm's Real Estate Development, Leasing and Land Use group works closely with our CCRC group when a client needs a major real estate transaction.  The Real Estate lawyers are a multi-disciplinary team of attorneys practicing in the areas of transactional real estate, leasing, land use, environment, financing, bankruptcy and litigation. With extensive experience in virtually all types and variations of complex commercial real estate matters, our attorneys provide comprehensive, responsive legal representation and practical problem-solving advice. Services include:

  • Providing counsel in all types of financings where real estate serves as part of the collateral
  • Purchasing or selling land by nonprofit and for-profit entities
  • Drafting/reviewing all types of transactional documents, including leases, subleases, easements and cooperative use agreements
  • Working with local governments, or with local attorneys, to obtain subdivision or zoning approvals
  • Assisting facilities with obtaining all types of necessary approvals for modifications to existing buildings as well those related to expansion efforts
  • Providing guidance on environmental concerns and managing obtaining all related approvals

Employee Benefits (ERISA)

CCRCs face issues regarding employee benefits just as any other entity does, and our attorneys have the experience and knowledge to address complicated and sophisticated matters, including:

  • Advising CCRCs in connection with qualified plans, tax-deferred annuity plans, health insurance benefits, employee fringe benefits and welfare benefits
  • Representing CCRCs in correction with examinations of qualified plans by the Internal Revenue Service or the Department of Labor
  • Designing and reviewing deferred compensation plans for executives of CCRCs to ensure compliance with Section 409A of the Internal Revenue Code and (for tax-exempt CCRCs) Section 457 of the Internal Revenue Code
  • Advising CCRCs in connection with compliance with the Patient Protection and Affordable Care Act (ACA), including compliance with the employer mandate

Commercial, Regulatory and Tort Litigation

WTP attorneys have represented CCRCs in various litigation matters which arise out of the operations of a continuing care retirement community, including:

  • Assisting CCRCs in obtaining development, environmental, and zoning approvals by working with local politicians, reviewing agencies and neighboring property owners and community associations and in securing the support of local government in the pursuit of funding
  • Advising CCRCs on matters before state regulatory agencies including surveys, financial monitoring, regulatory disputes and state property tax appeals and other tax and audit matters before the IRS
  • Representing CCRCs in bankruptcy proceedings, both as creditors and debtors
  • Representing CCRCs and their professional employees in physician board and board of nursing hearings
  • Representing CCRCs in guardianship proceedings and in contract disputes with residents with respect to such matters as the timing and payment of deposits and refunds, the recovery and collection of unpaid fees, the quality of care and service and alleged premises liability and other personal injury claims
  • Advising CCRCs in contract disputes with vendors over such matters as quality of work, warranty claims and billing and payment issues

Bankruptcy

We have a large national bankruptcy and debtors' rights practice whose lawyers have handled several successful CCRC bankruptcies when consensual debt restructuring has not been an option.  This experience has focused on protecting the interests of the CCRC and preserving the rights of its residents.