We are in the midst of the greatest senior “population boom” in history—and it is not only the numbers that are unprecedented. The way that this generation is aging is also unique. Demands for active lifestyles, intellectual stimulation, and broader community connection are paired with real innovation in the creation of housing and communities designed for this vital cohort. Hinckley Allen is highly attuned to the needs of those serving this market—particularly in the senior living sector, where so many of the disciplines our firm is known for intersect, such as: real estate, corporate & governance, health care, financing, taxation, and construction.
Solid Representation in a Dynamic Environment.
Our Senior Living team is proud to represent senior living facilities from traditional continuing care retirement communities to more innovative small home models as well as stand-alone nursing homes and assisted living facilities across the Northeast and beyond. We make sure our clients are well represented in all aspects of their businesses, from complex corporate structures to financing, development, and construction—right through to regulatory and administrative matters. We advise on resident issues and agreements, employee/labor law, payer matters (including fraud and abuse), healthcare regulation, and many other matters—so our clients can focus on managing their core businesses with confidence.
The broad array of services we offer to our senior living clients at all phases of their lifecycle includes:
Corporate Structures and Transactions
Establishing and managing an enterprise in the senior living industry often involves sophisticated transactions and agreements surrounding the establishment of an enterprise serving seniors. We ensure these transactions are executed efficiently and comprehensively. We advise on all legal matters, including:
- Nonprofit, for-profit, and hybrid nonprofit/for-profit joint ventures
- Branding and intellectual property rights
- Mergers and acquisitions
- Affiliations and partnerships (including among providers and payers)
- Tax-exempt bond and other financing arrangements
- Professional service agreements
Real Estate Matters
We represent senior living organizations in connection with real estate matters both regionally and nationally, including:
- Real estate expansion programs
- Land acquisitions
- Environmental matters
- Land-use permitting
Financing, Construction, and Development
Our lawyers represent lenders and borrowers in the full range of construction and real estate financing transactions, and asset-based lending throughout the United States, including:
- Complex multistate financings
- Large portfolios of properties regionally and nationally
Senior Living Operations
The daily operation of a senior living facility involves a myriad of legal matters—any of which can have a significant impact. We work diligently to protect our clients’ businesses in critical matters, including:
- Residency agreements
- Admissions policies and agreements
- Tax-exempt and charitable organization matters
- Corporate governance
- Labor and employment law
- Healthcare reform initiatives
- Healthcare delivery issues, including telemedicine, genomics, and clinical research matters
- Payer contracts
- Reimbursement issues
- Payment in lieu of property tax (PILOT) negotiations
Every day, senior living operations face new regulations and oversight. Whether you’re working to influence new laws, or facing court action around current regulations, our team is at your side. As the rules change and evolve, we work to make sure your interests are preserved and protected. We can help with:
- HIPAA/HITECH, Stark law, fraud, and abuse
- Affordable Care Act compliance and state law issues
- Regulatory investigations, repayment determinations, self-reporting, and settlement
- Legislatively mandated insurance programs
- Clinically integrated networks (e.g. FQHCs and other community health providers)
- Licensing and certificate-of-need matters
- Professional licensing board disciplinary matters
- Reimbursement program participation and payment issues
- Policy review and revision for federal and state law compliance
- Cy pres and mission-deviation petitions
Assisted Living Facility in East Greenwich, RI
We represented an assisted living facility for seniors in East Greenwich, Rhode Island in its formation and establishment. The facility is owned and operated by a nonprofit entity governed by a board comprised of representatives of two long-term care facilities (skilled nursing homes). We remain counsel to the organization and provide advice on a regular basis.
Formation of Parent and Subsidiary Corporations (Non-profit)
We helped a nonprofit corporation create a new parent company and potential new subsidiaries. The company operates a continuing-care retirement community.
Negotiation for Member-Substitution Agreement
We advised a continuing care retirement community and its parent company in negotiating a member substitution agreement with another continuing care retirement community and obtaining required regulatory approvals. The affiliation was completed in July, 2016 and we continue to advise the parent company regarding integration, tax-exempt bond financing, and governance matters.
Acquisition of Two Continuing Care Retirement Communities in Illinois
We represented a national senior living developer, investor, and operator in connection with its acquisition of two CCRCs located in Illinois. The facilities are owned and operated by for-profit entities and managed by a national senior living provider. We remain counsel to both communities and provide advice on a regular basis, including in connection with day-to-day operational matters and strategic planning.
Financing of Skilled Nursing Component of a Continuing Care Retirement Community
We represented a continuing care retirement community in connection with a multi-million dollar construction financing to fund the construction of its skilled nursing facility.
Restructure of Financings for a Continuing Care Retirement Community
Starting in 2001, we represented a national senior living developer, investor, and operator in connection with its development of a CCRC. The project was constructed in phases and we represented the CCRC in each phase of its financings and restructuring of its debt, including most recently in 2016 with a mortgage modification and mezzanine loan. We remain general outside counsel to the community and regularly assist with regulatory filings, disclosure statements, residency agreements, litigation assistance, employee and resident issues, and many other matters.
Merger of Assisted Living Facilities While Preserving Their Missions
Our team provided representation of a nonprofit assisted living facility during its merger with another assisted living facility—guiding the parties in structuring the affiliation as a merger whereby the surviving corporation reflected the combined missions and operations of the parties. We also assisted the parties with issues related to the integration of the operations of the two organizations and consolidation into a single facility. We continue to advise the parties regarding the development of a new continuing care retirement community project.
Complex Merger of Complimentary Health Care Providers
We represented a health and home care services agency and a visiting nurse and hospice care agency in their joint undertaking of a merger. In this role, we guided all parties in identifying their mutual objectives, and prepared all requisite merger agreements and documents. We successfully obtained regulatory approvals and completed the merger within 21 months of the commencement of negotiations.
Disaffiliation of a Home and Hospice Client
We helped a home and hospice care provider disaffiliate from a large healthcare system and provided representation during their conversion to a freestanding entity. We provided counsel during the negotiation of deal terms, representation before the Attorney General’s office on the proposed use of nonprofit foundation assets, and representation before the Department of Health for regulatory approval and transfer of ownership licenses.
Merger of Two State Affiliates of a National Health Organization
Hinckley Allen assisted two state affiliates of a national health organization in structuring their merger and obtaining necessary regulatory and judicial approvals. We helped our clients obtain regulatory approval in a contentious public hearing process before the state Department of Health for change of control and licensing of a healthcare facility. We secured approval from the state Attorney General for the transfer of charitable assets and modification of a charitable trust. We conducted successful negotiations with trust beneficiaries and prevailed in judicial proceedings to obtain court approval of a cy pres petition regarding the charitable assets and trust.
Healthcare Real Estate Experience
Hinckley Allen provides ongoing representation of a national senior living developer, investor, and operator consisting of four CCRCs with various real estate transactions, ranging from leasing, financing, acquisition, and disposition of real property, development, and other related matters.
Real Estate Financing Experience
We represented a Boston-based opportunity fund in negotiating a joint venture agreement for the development of a high-end residential community in South Carolina.
April 26, 2018
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