Fulfilling the physical and mental health needs of our growing, elderly population is a national priority. Americans today live longer than ever before, often surviving major, acute illnesses or injuries that proved fatal in the past. As a result, our elderly population often requires extensive health care services at the end of life.
The attorneys in our Long-Term Care Practice Area offer expert legal assistance to clients providing these vital services. Long-term care facilities constitute the firm’s single largest group of institutional health care clients. Our attorneys have thorough knowledge of this highly regulated industry, and are intimately aware of the complex and often daunting legal issues that pervade the business. We serve as either general or special counsel to more than 300 long-term care facilities located throughout New York State, including both non-profit and for-profit facilities.
Additionally, for almost 20 years, the firm has been retained by the New York State Health Facilities Association (NYSHFA), as well as individual long-term care facilities throughout the state, as special litigation counsel for complex Medicaid reimbursement rate challenges in the state and federal courts. We have also served as special counsel to other statewide associations in both litigation and advisory matters concerning long-term care.
HSE’s health care litigation team has achieved notable success for our long-term care clients, recovering more than $250 million since 1990 from the government in several groundbreaking legal actions challenging New York’s Medicaid rate-setting system. Whether advising health providers in the long-term care arena or advocating their interests in the courtroom, our attorneys actively partner with clients to achieve practical and valuable results.
Corporate Compliance Program
In today's zero tolerance environment, developing and effectively implementing viable corporate compliance programs is critically important to health care providers. Purely suspected instances of inappropriate practices often lead to intensive governmental investigations and the prospect of both criminal and civil enforcement actions. Our attorneys are experienced in assisting clients to comply with state and federal laws in fraud and abuse, anti-kickback, and the Stark requirements. We have aided dozens of long-term care facilities develop, implement, and update corporate compliance programs.
Additionally, the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) has spawned countless regulations intended to assure the privacy of individually identifiable health information. While the HIPAA rules are well intended, they present a myriad of challenges for health care providers. Our attorneys have lectured extensively on the HIPAA privacy and security rules throughout New York State, both before professional organizations (e.g., the New York State Bar Association and the New York State Chiropractic Association), and for individual clients and client groups (e.g., hospitals, long-term care facilities, and physician office practices). We currently provide advice and assistance to more than 40 long-term care facilities in the development of HIPAA compliance programs.
Reimbursement Appeals and Audits
As a routine matter, we proactively analyze reimbursement rate sheets, as well as the regulations upon which those rates are predicated, to identify appealable items. Working closely with facility accountants, our attorneys develop the factual and legal bases for successful administrative appeals. Once the appeals have been submitted to the agency for determination, we closely monitor the course of review.
Administrative appeals often languish within the Department of Health (DOH) review process. Where the administrative appeal requires no discretionary action by the agency, we have successfully compelled DOH to issue determinations by commencing Mandamus actions and obtaining court orders that require the agency to fulfill its ministerial duties. Our experience in assisting providers with administrative rate appeals in federal court – from the district courts to the Second Circuit – is unparalleled in New York State.
We also assist clients in challenging determinations by Medicare including advice respecting the appeal and hearing process under Medicare. We have successfully represented clients at Provider Reimbursement Review Board (PRRB) hearings challenging Medicare rate, methodology, and final settlement issues. As a result, we have developed a valuable working relationship with The Centers for Medicare & Medicaid Services (CMS) and PRRB representatives and counsel.
Audits and post-payment reviews can have an even greater impact on facility revenues than initial rate determinations. We routinely represent providers in Medicare and Medicaid audits and post-payment reviews. Our experience in these areas provides us a level of credibility with auditors and post-payment review staff that helps assure that our clients receive effective and timely reviews.
We routinely assist long-term care facilities in regulatory and operations matters, survey preparation, deficiency citation response, enforcement action response, credentialing, policy and procedure development, provider agreement review, analysis and negotiations, and various investigations. We also provide guidance related to resident issues involving admissions, medical records, and treatment decisions, as well as ancillary service issues (independent living apartments, adult day care, child care).
In addition, we routinely handle the sales and acquisitions of long-term care homes, as well as the development of new services/facilities for long-term care. Our experienced attorneys in the areas of real estate and public finance assist in assuring that all bases are covered.
Legal Advice on Local, State and Federal Laws
The practice closely monitors the statutes, rules, and regulations affecting the health care industry, including its institutional and professional health care providers. We routinely advise clients on the state of their compliance with existing and proposed regulations on reimbursement, medical records and confidentiality, allegations of professional misconduct, professional or institutional licensure, and other matters. In addition, the practice routinely tracks proposed regulatory changes that affect the health care industry, and actively pursue an ongoing dialogue with the governmental regulators.
Long-Term Care Litigation
HSE’s litigation practice for long-term care providers extends throughout New York State. We have achieved widespread recognition for our success in challenging state regulatory determinations before the state and federal courts. We have successfully defended Certificate of Need, antitrust, civil rights, and Title VII actions; challenged the Medicaid reimbursement methodology; appealed Medicare matters to the PRRB; and handled numerous breach of contract suits, injunctive actions, and challenges to administrative rules.