Post-Acute/Senior Housing and Care

- Read less

Our full-service team is able to support senior housing and care industry participants in many areas, including:

Fund Formation, Fundraising, and Investment

We have worked with senior housing developers on all aspects of fund formation, including organization, structuring, fundraising, private offerings, and other issues. We have experience in formation of funds-of-funds, strategic investments in management entities, and the startup of fund managers. We have also helped in the formation of, and counseled clients investing in funds owning real estate, which has included the formation of real estate investment trusts. We frequently counsel organizations on issues such as identifying current market and best practices, evaluating fee and distribution structures, evaluating agreements with service providers, and helping with operational matters.

Acquisitions and Dispositions

Our lawyers work with senior housing sellers and buyers to negotiate terms, conduct due diligence, evaluate risk, work on tax structuring issues, analyze regulatory requirements, and coordinate the necessary regulatory approvals involved in the acquisition or disposition. We have experience with the sale or acquisition of individual facilities and multifacility, multistate portfolios. We offer a complete array of services in connection with the transaction, including the negotiation and preparation of letters of intent, due diligence, drafting and negotiation of purchase and sale agreements, regulatory assessments and filings, financing, and closing documentation.

Joint Ventures

Our team has significant experience structuring investments and negotiating the required legal documentation on behalf of developers, investors, and operators. In particular, we routinely represent equity investors in negotiating joint venture agreements for the development and ownership of individual senior housing facilities to facility portfolios. We are well-versed in issues relating to tax structuring, including allocations and distributions, corporate governance, buy/sell provisions, noncompetition and nonsolicitation provisions, and dispute resolution mechanisms. Our global platform provides a one-stop shop for all companies seeking to do business in the United States and around the globe on cross-border joint ventures and transactions.

Real Estate and Construction and Zoning and Land Use

Securing appropriate property rights for a complex real estate project is of fundamental and early importance to a project’s viability. Our lawyers are experienced in the requirements of real estate development projects, including site selection and due diligence; purchase and sale agreements for acquisition and disposition of land; leases; licenses; easement agreements for roads; transmission, substation, and related project easements; and development covenants. We also assist with securing site plan, subdivision, design review and other development approvals; title and survey review; and preparation and review of various real estate documents in connection with project financing.

We draft and negotiate contracts for all aspects of design, manufacturing, and construction efforts using a wide variety of delivery systems and innovative approaches. We advise in transactions locally and worldwide and provide services to design and build projects, including architect engineering, procurement, and construction; design and build; and turnkey. We represent a wide variety of clients including project owners, contractors, subcontractors, and engineers. We have also represented parties globally before numerous courts and tribunals in construction-related arbitration, litigation, and other dispute resolution matters. When circumstances require, our litigators assist with disputes involving protection of delays, disruptions, cost overruns, construction liens, warranties, and breaches.

Relevant land-use experience includes permitting, ongoing compliance, and enforcement of air and emissions regulations; water, stormwater, and wastewater regulations; hazardous materials; and recycling regulations. Further, in the context of corporate and property transactions, our environmental compliance lawyers seek to uncover weaknesses and liabilities that could lead to enforcement action later, including by conducting analyses of whether current practices conform to regulatory requirements.

Financing

Our firm has extensive experience in structuring, documenting, and implementing construction and permanent financing for senior housing and care projects. In addition to our traditional project financing experience, we have experience with structured finance, taxable and tax-advantaged debt, equity, and intercreditor arrangements, as well as tax increment financing, taxable and tax-advantaged debt, and EB-5 financing and securitizations.

Labor, Employment, and Workplace Safety

We counsel clients on the increasingly technical requirements of employment laws and regulations administered by government bodies, covering issues such as occupational safety and health, leaves of absence, immigration, prevailing wage, worker classification, and other compliance requirements. Our labor, employment, and workplace safety team provides advice, counsel, and training on employee handbooks and personnel policies, reductions in force, human resources audits, affirmative action issues, substance abuse, problem employees, workplace security, attendance and leave of absence issues, disability accommodation issues, management training, unemployment compensation, immigration issues, employment agreements, insurance coverage for employment-related liabilities, and sexual harassment training and investigations. They also handle all aspects of labor relations for workplaces that are the target of union organizing drives or are already represented.

Certificate of Need, U.S. State Licensing, Provider Enrollment, and Health Care Regulatory Matters in the United States

We offer comprehensive support to assist our senior housing and care clients across the spectrum of their health care regulatory needs—from the structure of senior housing and care systems, to opening new facilities, acquiring or selling existing facilities, and providing ongoing regulatory advice thereafter. We provide advice regarding the legal processes for market entry under applicable certificate of need laws and requirements for initial licensure and expansion of services horizontally and vertically. We also advise clients in all regulatory aspects of the acquisition and sale of senior care facilities, such as structure, due diligence review, assessing the impact on existing licensure and assisting in obtaining state licenses and other government approvals related to the transaction, and assisting with the Medicare and Medicaid certification and enrollment process, as applicable. We also help clients gain governmental approvals for expansions and new services, including through licensure and certificate of need, depending on applicable state law, and request and obtain waivers from regulatory requirements, where applicable. For our clients with existing operations, we assist with internal investigation of sentinel events and regulatory compliance matters, and incident reporting requirements. We provide advice on relationships with other health care providers, including hospitals, pharmacies, physicians, and ancillary service providers. To the extent that senior care clients participate in Medicare or Medicaid or receive Medicaid waiver funds, our health care lawyers assist with the completion and submission of the initial enrollment forms associated with these programs, revalidation process, and changes of information. We also handle administrative appeals from adverse licensure, certification, governmental enrollment or certificate of need actions, Medicare and Medicaid payment denials, and related judicial appeals. Our lawyers also have extensive experience on the “corporate practice of medicine prohibition” doctrine and frequently advise clients on acceptable models for compliance or in negotiations with professional licensing boards.

HIPAA, Privacy, and Security

Our lawyers routinely counsel senior housing developments regarding HIPAA’s requirements in developing and implementing the protocols, policies, procedures, safeguards, and agreements required to protect health information, regardless of whether it is in electronic or other forms. We provide advice regarding protections under state laws for highly sensitive information such as mental health or substance abuse. In addition, we counsel clients about other applicable federal and state laws relating to security breach notification, secure transmission and disposal standards, and other privacy requirements.

Digital Health

Our lawyers have experience with the unique combination of privacy, security, intellectual property, and health regulatory issues involved in the development, licensing, management, and deployment of electronic health or medical records and electronic prescription systems, as well as the legal and regulatory challenges to making those records available to physicians on a regional basis. We navigate requirements for complying with federal and state privacy and security standards, prohibitions on payments for referrals, documentation requirements, and health care transactions requirements, as well as obtaining administrative approvals or certifications. We provide proactive guidance to clients on building legal compliance into their technology or service offering, where possible

U.S. Tax Structuring and Advice

Our tax team advises U.S. and international clients looking to establish operations in the United States on a number of U.S. state and local tax matters, including advising clients on necessary U.S. taxing jurisdiction registrations and qualifications to engage in business within U.S. jurisdictions. We provide advice as to sales and use, property tax, income tax, transfer taxes, and gross receipts or business and occupation tax consequences of the clients’ proposed U.S. activities. We work with our clients to structure operations to maximize potential state and local tax savings for the clients’ new domestic operations, as well as to minimize the risk that overseas operations may be adversely affected by U.S. state and local taxes. We identify and negotiate tax incentive agreements with state and local taxing jurisdictions in exchange for the clients’ investments in infrastructure and job-creating activities in the jurisdictions. If needed, we represent our clients in state and local tax disputes. In the tax incentives context, we have extensive experience advising domestic and overseas companies on locating and securing tax incentives in connection with specific projects in development.

Opportunity Zones

The Tax Cuts and Jobs Act includes a program called Opportunity Zones (OZ) that offers potentially significant tax incentives for investors to help to attract funding for projects and businesses in low-income areas.

Under the program, individuals and other entities can delay paying federal income tax on capital gains until as late as December 31, 2026 if those gains are invested in “Opportunity Funds” that invest at least 90 percent of their assets in businesses or tangible property located in low-income areas designated as OZs. Further, the gains on investments in the funds can be federal income tax-free if the investment is held for at least 10 years. The tax benefits could reduce the cost of capital for these projects, making them more viable, especially when paired with other development incentives like the New Markets Tax Credit. Our services include developing fund products to meet client needs and objectives; providing advice regarding the significant regulatory considerations related to organizing and operating Opportunity Funds; securities law compliance, including registering the fund sponsor as an investment adviser or qualifying for an exemption; complying with tax obligations for investments in Opportunity Funds; and determining and meeting the eligibility requirements for qualified OZ properties or OZ businesses.

Litigation, Dispute Resolution, and Government Action in the United States

We represent senior housing developments in connection with rulemaking and adjudications before state and federal administrative agencies and in connection with challenges to agency actions brought in state and federal courts. We assist clients interested in ensuring that agencies engaged in rulemaking and adjudications compile complete and balanced administrative records to assure protection of our clients’ interests in the event of later challenge. We represent clients when it becomes necessary to seek judicial review of agency actions, such as rules, formal adjudications, licenses, permits, and other informal adjudications. Our team has significant experience in litigating certificate of need cases, as well as penalty, exclusion, decertification, and other similar administrative or agency enforcement actions.