| HEALTH CARE
PRACTICE
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Practice
Summary
A considerable share of LATSHA DAVIS YOHE & MCKENNA, P.C.’s practice focuses on addressing the challenges
faced by health care providers, particularly those in the
long-term care community. The health care industry is heavily
regulated, and these regulations are subject to frequent change.
The tremendous growth in the industry has been accompanied by an
explosion of government control and oversight. New regulations are
promulgated frequently. We have seen moratoriums on the
construction of nursing facility beds, increased scrutiny of
transactions and business relationships, intensified review of
billing practices, the development of managed care, reductions in
reimbursement, and a new emphasis on privacy protections. We
recognize a provider‘s need to effectively and efficiently adapt
to the evolving regulatory landscape. We are committed to
monitoring and analyzing the dynamic regulatory environment, and
to keeping our clients advised of changes affecting their
operations.
LATSHA DAVIS YOHE & MCKENNA, P.C. furthers its participation in every
aspect of the health care field by maintaining active memberships
in trade organizations and delivering educational seminars under
their aegis. The Firm is a member of the American Health Care
Association (AHCA), the American Association of Homes and Services
for the Aging (AAHSA), the Assisted Living Federation of America
(ALFA), the American Health Lawyers Association (AHLA), the
Pennsylvania Association of County Affiliated Homes (PACAH), the
Pennsylvania Association of Non-Profit Homes for the Aging (PANPHA),
the Pennsylvania Health Care Association (PHCA), the Pennsylvania
Assisted Living Association (PALA), the Pennsylvania HomeCare
Association (PHA), the Ohio Health Care Association (OHCA), the
Pennsylvania Society of Healthcare Attorneys (PSHA), the New
Jersey Association of Non-Profit Homes for the Aging (NJANPHA),
and Mid-Atlantic LifeSpan. Kimber L. Latsha, founding principal
and President of LATSHA DAVIS YOHE & MCKENNA, P.C., serves on the legal
committee for AAHSA, and also serves as Vice Chair of AHLA’s
Practice Group on Long Term Care and the Law, and has served as a
member of the Board of Directors of the Pennsylvania Society of
Healthcare Attorneys.
Some of our Firm’s particular areas of health care practice are
more fully discussed below.
Admission
Agreements and Policies
Admission agreements are a
valuable tool in the identification of responsible parties and in
defining their duties and responsibilities. A well-drafted
agreement will clarify the rights and obligations of the facility,
the resident, and the responsible party, and will minimize
disputes, which may arise in the future. A health care provider’s
admission agreements and policies must comport with requirements
imposed by oversight agencies and applicable anti-discrimination
laws. We have counseled providers in creating agreements which
have effectively addressed these issues for nursing, personal
care, and other long term care providers. We have participated in
the development of policies for health care providers governing
the admission, transfer and discharge of residents and patients.
Assisted Living
We have guided assisted living
providers in the organization and start-up of their business
operations. We counsel our assisted living clients through the
regulatory requirements governing licensure and compliance. We
have handled acquisitions of assisted living facilities, as well
as facilitating the addition of assisted living services to
existing operations.
Collections
Our command of the regulations governing
Medical Assistance eligibility gives us a unique understanding of
the interplay between collection issues and eligibility issues.
Our goal in all collection matters is to provide cost-conscious
and effective representation. To that end, we stress progressive
collection techniques in order to avoid the expense associated
with litigation. We provide guidance to clients in creating and
implementing pragmatic collection techniques at the operational
level; however, we recognize that it is not possible for a
provider to collect every debt. In the event legal action becomes
the best business decision available to a provider, our extensive
litigation experience in a variety of forums allows us to supply
authoritative representation to our clients.
Continuing Care Retirement Communities (CCRCs)
As a hybrid provider of a
continuum of services, CCRCs face legal and regulatory issues not
confronted by other free-standing, long-term care providers. We
bring to the table the knowledge and experience to aid our CCRC
clients in meeting these challenges and addressing operational
challenges, such as level-of-care transfers. We have a wide range
of experience in obtaining and maintaining a Certificate of
Authority from the Department of Insurance, formulating residency
agreements, and resolving the regulatory and structural issues
related to developing a CCRC. We also supply seasoned guidance on
compliance issues.
Corporate
Compliance and Fraud and Abuse
Health care providers have been
increasingly subjected to rigorous scrutiny of their compliance
with applicable state and federal laws and regulations. As the
civil and criminal penalties for noncompliance increase, so does
the need for an effective corporate compliance plan. We have
developed a highly skilled and knowledgeable corporate compliance
team in response to this growth in compliance activity. Our
attorneys have assisted numerous providers in developing and
implementing corporate compliance plans and have aided providers
in institutionalizing these plans. Our attorneys are well-versed
in current fraud and abuse issues and are regular lecturers on
these subjects. We have the ability to interface with federal and
state regulators, and we have been instrumental in resolving
disputes involving compliance matters before the Pennsylvania
Medicaid Fraud Control Unit (FCU) of the Attorney General, federal
fiscal intermediaries and carriers, and government agencies.
HIPAA and Privacy Issues
In 1996, Congress passed the
Health Insurance Portability and Accountability Act, in part to
address privacy concerns within the health care industry. HIPAA,
as the Act is known, imposes numerous requirements on health care
providers, such as nursing homes, in the way they collect, store,
share, and transmit protected health information. HIPAA
essentially addresses the protection of privacy in three separate
“rules.” The “Privacy Rule” places requirements on health care
providers to protect patient information in whatever medium it is
stored. The “Electronic Transactions Rule” is designed to
standardize the way that health care providers transmit
information electronically, so that the information can be
protected. Finally, the “Security Rule” will require health care
providers to meet standards designed to physically safeguard
patient information, and to ensure that the hardware/software
technology used by the provider adequately protects that
information.
We have assisted numerous health care providers in developing
HIPAA Compliance Plans which enable them to meet the rigorous
HIPAA standards. In addition, we have assisted providers in
conducting operational assessments designed to identify potential
risk areas of HIPAA compliance. Our attorneys are well-versed in
the complexities of the HIPAA standards, and are frequent
lecturers on the subject to the various industry trade
associations.
Transactional Matters
We handle a variety of transactional
issues specific to health care providers. These issues include the
formation, organization, and restructuring of entities to minimize
liability issues; conventional and tax-exempt financing matters;
real estate acquisition and development; merger and acquisition of
health care providers; sale and lease back transactions; REIT
financing; and long-term management arrangements. We have assisted
our clients in the regulatory process and change of ownership
matters including state licensure applications and Medicare
certification filings. We have been involved in transactions from
the purchase and sale of a single facility in a single state to
the acquisition of numerous facilities in multi-state
transactions. We assist our clients in properly structuring
transactions to meet their goals and comply with regulatory
requirements.
End-of-Life
Treatment Decisions
Rapid advances in technology
enable the preservation of life beyond its natural means. The
Patient Self-Determination Act and the Advance Directive for
Healthcare Act have been promulgated in an attempt to address
these technological advances. Responding to this legislation
requires providers to make delicate decisions about the withdrawal
of life-sustaining treatment in difficult circumstances. We help
providers develop practical responses to these challenges,
including the establishment of ethics committees. We also are
sensitive to conscientious objections and possible moral
constraints in instituting policies on the withdrawal of
life-sustaining treatment, particularly nutrition and hydration.
Federal Certification Surveys and State Licensing Inspections
As health care providers know,
there has been a tremendous increase in survey and enforcement
activity. The Centers for Medicare and Medicaid Services (CMS) and
state agencies, especially the Pennsylvania Department of Health (DOH),
have stepped up survey and enforcement as a priority in assuring
the delivery of quality health care.
We take pride in our experience with the survey and enforcement
process. We have aided providers in responding to both federal and
state regulators and in resolving alleged deficiencies. We have
closely followed the survey and enforcement system for long-term
care, and have taught numerous educational seminars on the
enforcement systems. We have been instrumental in assisting
providers to successfully utilize the informal dispute resolution
process. We recognize the sound business sense of resolving survey
disputes professionally without relinquishing the merits of the
provider’s appellate rights. We bring to our clients familiarity
with the regulations, the survey process, the regulators, and the
administrative appeal process. We also provide advice to providers
in negotiating the maze of regulations involved in the Medicare
and Medicaid decertification, termination, and re-enrollment
processes.
General and
Corporate Counsel
We serve as general counsel for
health care providers. Our experienced attorneys routinely address
the general corporate and business issues which every business,
including health care providers, must confront. We have been
instrumental in restructuring some of our clients to better
position them for the risks and challenges of a
constantly-evolving health care delivery system, to enhance their
ability to participate in joint enterprises, and to diminish the
risk associated with expanding into new service areas.
Home Health, Adult Day Services, and Community-Based Services
Reimbursement programs are
forcing a shift in the health care delivery system from
institutional care to community-based services. We recognize this
trend, and have expanded our practice to include representation of
a number of home health, adult day care service, and
community-based service providers. Our attorneys can assist
providers to both acquire and develop home health agencies, adult
day services, and community-based service organizations. We have
actively guided clients through the often complicated and
rapidly-changing regulatory framework governing the delivery of
home health, adult day services, and community-based services.
Health Care Alliances
We have been instrumental in our
clients’ efforts to develop and implement both vertical and
horizontal alliances which help to assure a niche in the health
care marketplace and delivery system. At the outset, we assist our
clients in analyzing the merits of an integrated relationship with
another provider or multiple providers. As regulatory agencies
have begun to closely scrutinize the integration process, there is
an increasing emphasis from regulatory agencies upon providers to
demonstrate true integration in consolidation. Other issues facing
providers seeking to integrate services or form alliances include
governance, institution of cost controls and compensation. We are
able to guide our clients through the regulatory and governance
issues raised by these intricate relationships.
Long-Term
Care Bed Exception Requests
As providers of nursing care in
Pennsylvania know, the Pennsylvania Department of Public Welfare (DPW)
has limited the ability of a provider that participates in the
Medical Assistance program to increase its enrolled number of
nursing facility beds. Our familiarity with and proficiency in
demonstrating compliance with the bed exception criteria has
enabled our attorneys to be highly effective advocates for nursing
facility clients seeking to add new or additional beds to their
facility.
Managed Care
Pennsylvania has experienced significant
growth in managed care, especially with regard to the enrollment
of Medicare and Medicaid beneficiaries. As providers adapt to the
expansion of managed care and its increasing market penetration,
we are able to negotiate and structure relationships designed to
integrate our clients into selected managed care networks which
are beneficial to providers. We have helped our clients structure
contractual relationships with managed care plans and can advise
clients on the contractual nuances and risks associated with
managed care contracts.
Medicare/Medicaid
Reimbursement
In pursuing additional
reimbursement for our clients, our objective is to provide zealous
representation while remaining sensitive to the client’s business
considerations. Budgetary constraints at the federal and state
level combined with changing reimbursement systems have resulted
in reductions in reimbursement to providers participating in
Medicare and Medicaid. Our goal is to obtain payment for costs and
services to which our clients are entitled. We have successfully
litigated Medicare and Medicaid reimbursement appeals before the
Provider Reimbursement Review Board, DPW’s Bureau of Hearings and
Appeals, and the Pennsylvania Board of Claims. We have also argued
appellate court matters for our clients.
Strategic Planning
Our experience in the field of
health care law renders us uniquely qualified to provide strategic
planning for our clients. We are familiar with reimbursement and
regulatory frameworks and have assisted providers in planning to
take advantage of opportunities in the marketplace.
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