Health Law For more than 50 years, Gallagher lawyers have helped shape health care in Maryland by representing a wide range of health care institutions, including hospitals and hospital systems, long-term care facilities, home health and hospice agencies, academic medical centers, continuing care retirement communities, multi-specialty physician groups and other tax-exempt and for-profit health care organizations. Our lawyers also serve on a number of health care entity boards, including Mercy Health Services, Healthcare for the Homeless and Johns Hopkins Medicine. Whether serving a client in a general counsel or special counsel capacity, our service is always responsive, thorough, and timely, and is based on decades of experience in the health care industry. We are proud of our long-standing, collaborative relationships with clients, advising them in all aspects of their operations, including, among other areas: Corporate matters and governance; Corporate structuring, mergers, affiliations and joint ventures; Corporate compliance programs, compliance reviews and investigations, education and training, and representation of clients before governmental agencies, including the HHS Office of Inspector General; Hospital and physician relationships, including physician practice acquisitions, recruiting and employment, all in the context of the federal anti-kickback statute, Stark law and state referral laws; Health planning and licensure issues, including obtaining certificates of need and other regulatory approvals, such as licensure, certification and The Joint Commission accreditation; Medical staff matters, including ensuring that the Medical Staff Bylaws and operations meet TJC and CMS requirements, and hospital/medical staff relations and disputes; and Medicare, Medicaid, and payor reimbursement regulations and policies; Financing of health facilities, including conventional loans, tax-exempt and taxable bond financing, and tax-exempt and taxable lease financing; Tax-Exempt organization issues specific to the health care industry; Human resource issues in the health care industry; Real estate matters; Litigation and risk management; and Insolvency-related matters for health care providers including problem loan workouts, recovery of collateral and assets, bankruptcy litigation, and other financial disputes. Health Care-Related Business and Corporate Transactions Since the 1970s, Gallagher has worked with health care clients on major strategic corporate matters. In the late 1970s, at the request of members of the United States Congress, the law firm worked with the U.S. Public Health Service to convert a public hospital in Baltimore to a private hospital under the ownership of a newly-formed non-profit corporation. Several years later, Gallagher led the new hospital’s board and senior management in negotiating an affiliation, and ultimately a full asset merger, with Johns Hopkins Health System. Since that early experience in a hospital merger transaction, the firm has participated in the increasingly complex corporate world of the health care industry. Gallagher’s lawyers have represented the firm’s health care clients in every type of corporate transaction, including mergers, acquisitions, affiliations of every type, joint ventures, management service arrangements, corporate restructurings, development of physician enterprises, creation of Medicaid managed care networks, and development and implementation of capital plans. Our hospital-physician joint ventures have included ambulatory surgery centers, endoscopy centers, imaging centers and other ancillary services. The firm’s health care clients include both tax-exempt and taxable entities, and the firm’s tax lawyers regularly advise our health care clients on tax and tax exemption issues. Representative examples of our corporate work include: Representing a community health care system, Gallagher developed the structure for a multi-phased transaction in which an academic medical center initially acquired a minority interest in our client, an affiliation which will, through stages, ultimately result in a full asset merger after several years. The transaction involved substantial commitments of capital by the academic medical system and we worked with our client to develop enforcement mechanisms to ensure that those commitments are fulfilled. Gallagher represented a Catholic hospital in its negotiations to join one of the largest regional health care systems through a full asset merger. We developed a mechanism for permanent enforcement of our client’s right to operate a Catholic hospital, even as a member of a non-Catholic health system. We represented a regional medical center in a joint venture with a community health care organization and an academic medical center to create a provider network for the purpose of contracting with a Medicaid managed care organization. We then represented the joint venture for several years in its ongoing operations and in the ultimate merger into another provider network. Since the late 1980s, we have represented a local community health system in its development of a physician enterprise that currently employs more than 150 doctors, both primary care physicians and specialists. The strategy began with simple practice development loans, moved to the creation of a free-standing physician organization in the form of a limited liability company which had significant physician ownership and two other community hospitals as investors. After a complete reorganization in 2000, Gallagher’s health system client achieved its goal of a fully integrated multi-specialty client physician practice organization. Gallagher advised a two-hospital community health system on all aspects of its opening a single, new regional medical center, including obtaining the CON, financing the construction of the new medical center, and reorganizing the system to satisfy the requirements of the state licensure agency, CMS, and The Joint Commission. Gallagher represented a health system in connection with the acquisition of a 450-bed long-term care facility. We worked with the same client to establish a joint venture with another non-profit organization to develop a continuing care retirement community on the 32-acre campus of the long-term care facility. We represented a leading non-profit social service organization in developing an inner-city primary health care center that provides free services through a consortium of four large local health care institutions. Compliance and Federal Health Care Programs Gallagher has worked extensively with its health care clients in the compliance area, as described below. Gallagher has assisted hospitals, nursing facilities and physician organizations in the drafting, adoption and implementation of corporate compliance plans, ensuring that plans are consistent with the policies and guidance of the federal government, including the Office of Inspector General. Our lawyers assist our health system and nursing home clients in implementing their compliance programs through appropriate training, education and advising on internal auditing programs. On behalf of our clients, we also engage third-party consultants to perform compliance reviews. We have led compliance trainings for hospitals, nursing homes, academic medical centers and physician organizations. When a compliance issue arises, we advise our clients on how best to investigate the matter (often leading the investigations) and provide legal analyses of the underlying issue. We provide approaches for resolving identified compliance problems and, in appropriate circumstances, we have assisted our clients in submitting refunds to governmental payors and in making voluntary disclosures. On a daily basis, we analyze business arrangements and transactions with respect to compliance with the federal anti-kickback statute and the Stark physician self-referral law. We also review transactions in light of the provider’s tax-exempt (or taxable) status. Our firm has extensive experience in nursing home survey matters and our lawyers have assisted nursing homes in responding to survey deficiencies and preparing corrective action plans. Gallagher serves as general counsel to several long-term care and assisted living providers who have facilities in numerous states on the east coast. Health Care Financing Gallagher assists health care clients through all phases of taxable and tax-exempt financings for capital projects, including capital expansion, renovation, equipment purchase and installation and development of infrastructure. We have been involved in many of Maryland’s largest tax-exempt bond financings. We have represented the University of Maryland Medical System in all of its financings since it was privatized in 1984. We have represented clients in major financings for new hospitals. In 2006, we represented a Maryland health system in the first HUD-insured tax-exempt financing for a hospital in Maryland. Our bond lawyers are familiar with every financing vehicle and work with our clients regularly to assess and implement strategies to maximize the effectiveness of their capital financing plans. Tax-Exempt Organization Law in the Health Care Sector Gallagher has been serving the legal needs of tax-exempt organizations in the health care sector for more than 45 years. Our clients include numerous health care entities, in addition to human services providers and an international relief organization. Gallagher’s attorneys have significant experience in all aspects of obtaining and maintaining tax-exempt qualification and public charity status. We also advise clients with respect to private inurement and private benefit issues, compliance with state nonprofit laws, private foundation rules, intermediate sanctions on excess benefit transactions, lobbying limitations, unrelated business income tax, executive and physician compensation, fundraising and charitable and planned giving techniques. Our tax attorneys are experienced in developing and analyzing models for corporate restructuring of exempt organizations and negotiating and documenting business relationships for our exempt clients, including joint ventures and strategic alliances involving both tax-exempt and for-profit entities. We have worked closely with clients to develop compliance procedures with regard to tax and nonprofit laws. Employment Issues in Health Care Our firm's employment attorneys counsel a range of health care institutions and various 24/7 residential facilities, on all aspects of the employment relationship, including: recruitment (affirmative action issues, advertising, interviewing, background checks); supervision, evaluation, promotion, discipline, termination of employees; reductions in force, separation agreements and releases; policy and handbook development; benefits and compensation (wage and hour laws, leaves of absence including FMLA, maternity); discrimination laws (compliance, defense of charges); sensitive matters investigation (e.g., sexual misconduct, employee dishonesty); grievance procedures and complaint resolution; enforcement actions (OSHA, EEOC, Department of Labor, etc.); in-service training for supervisors; references, personnel file documentation; electronic communication policies; employee privacy issues (surveillance, drug and alcohol testing, search and seizure); and medical examinations and inquiries (ADA, FMLA, disability coverage). Gallagher provides cost-effective and practical advice that strengthens employer-employee relations by treating employees fairly and achieving corporate goals. In most cases, we are able to help clients avoid employment-related litigation. When claims do arise, however, we vigorously represent our clients in local, state, and federal administrative agency hearings, and in state and federal court on a wide range of employment matters including allegations of sexual harassment, discrimination and wrongful discharge, violation of covenants not to compete, and overtime/wage payment violations. Our employment attorneys are also experienced in mediation, arbitration and all aspects of alternative dispute resolution. Health Care-Related Real Estate Transactions Gallagher has a large and active real estate practice and regularly represents health care clients in a variety of real estate transactions. Our extensive real estate experience combined with our knowledge of the health care industry enables us to provide effective advice to our health care clients in all real estate transactions. A sampling of our health care-related real estate experience includes: We have worked with several clients in connection with construction of major new hospital facilities in the past fifteen years. This work has included the development of the initial strategic plan, assembly of a site through acquisitions and ground leases, negotiation of design and construction contracts, and consultation and advice on land use issues. Gallagher recently assisted a client in the negotiation of a $350,000,000 recapitalization of senior living facilities, including continuing care retirement communities, in eleven communities, located in five different states. Gallagher also has extensive real estate experience for nursing home clients. Many of our clients have developed medical office buildings during the last 30 years. These have included free-standing medical office buildings owned and leased by hospitals, joint ventures with physician groups, ground leases of property to private developers and office condominiums. Our leasing lawyers regularly work with our health care clients on a variety of leasing matters and are knowledgeable about the compliance issues that arise in connection with leases from health care facilities to physicians and other providers. Litigation for Health Care Clients We have an active and diverse litigation practice. Our litigation attorneys have extensive experience in representing the firm’s clients at all levels of the federal and state courts, before administrative bodies, and before arbitrators, mediators and other alternative dispute tribunals. The firm regularly represents its health care clients in disputes involving many subject areas, including the following: Health care litigation, including disputes involving federal and state regulatory issues, including health planning (CON), licensing and certification, fraud and abuse allegations, medical malpractice, medical staff issues, and insurance coverage; Employment litigation, including claims of wrongful discharge, discrimination in employment, FMLA, ADA, violation of wage and hour standards, sexual harassment, and violation of non-compete covenants; Business litigation, including disputes about breach of contract, commercial leases, partnership dissolution, unfair competition, and breach of fiduciary duty; Creditors' rights and bankruptcy litigation, including the representation of secured and unsecured creditors, trustees and receivers in federal bankruptcy reorganization cases, state insolvency proceedings, loan restructuring, workout negotiations, and related litigation; Estates and trusts litigation including representation of nonprofit health care institutions named as beneficiaries in wills and trusts; Construction litigation, including bond claims, mechanic’s liens, subcontractor disputes, malpractice by design professionals, damage caused by construction delays, warranty claims, and negligence; Fair housing litigation, including claims of alleged discrimination in the lease and sale of residential real estate and claims involving the design and construction of accessible housing for the disabled; and Commercial real property tax appeals. Representative examples of our litigation matters include: Doe v. University of Maryland Medical System, 50 F.3d 1261 (4th Cir. 1995). In a published decision, Gallagher represented an academic medical center in defense of an employment discrimination lawsuit brought by an HIV-positive physician. Dr. Doe filed claims under the Rehabilitation Act and Title II of the Americans with Disabilities Act. Gallagher was able to convince the district court and the Fourth Circuit that Dr. Doe posed a significant risk to patients at the hospital that could not be eliminated by reasonable accommodation. The decision was affirmed upon appeal. Hopkins v. Silber, 141 Md. App. 319, 785 A.2d 806 (2001). In a published decision, Gallagher defended a urological surgery malpractice action involving contributory negligence by a patient. Gallagher lawyers successfully defended a regional hospital system against an antitrust claim. Gallagher was the law firm behind recent U.S. District Court and Fourth Circuit decisions to grant a community hospital's summary judgment motion against a physician complaining of the hospital's internal disciplinary processes. In Isaac Isaiah M.D. v. WMHS Braddock Hospital Corporation et al., Gallagher successfully argued for the hospital's immunity from liability under the federal Health Care Quality Improvement Act. In a ten-year legal battle that included three decisions by Maryland’s highest court, the Maryland Court of Appeals, one decision rendered by the Court of Special Appeals, five Circuit Court cases and three contested administrative proceedings, Gallagher helped to enable a major regional hospital to open a state-of-the-art cardiac surgery, research and training center in conjunction with the National Institutes of Health. We recently successfully defended a hospital in federal and state court litigation involving discrimination, wrongful discharge, and whistleblower claims brought by a former employee. We recently achieved dismissal for a hospital system in a real estate and fraud action involving the purchase of property and construction of a hospital building. We obtained summary judgment in the Eastern District of Michigan on behalf of a Yale University Medical School faculty member in a breach of contract and defamation lawsuit involving medical research. The U.S. Court of Appeals for the Sixth Circuit recently affirmed the judgment in favor of our client. We have conducted confidential internal investigations for two major hospital systems involving physician issues, and for a continuing care retirement community involving fraud by its former CFO. We regularly handle medical staff, quality, credentialing and risk management issues for our health care clients. Creditors' Rights and Bankruptcy in the Health Care Arena We represent health care systems, hospitals, long-term care facilities, and other providers in problem loan workouts, recovery of collateral and assets, bankruptcy litigation, and other financial disputes. We represent our clients in a variety of insolvency-related matters, including: Gallagher represented a hospital group in the bankruptcy case of a national emergency services provider. Our lawyers successfully objected to a post-confirmation settlement of the debtor’s claims against the purchaser of the debtor’s assets and liabilities, which sought to release claims of the hospitals. After prevailing in several contested hearings, we negotiated a favorable settlement and recovery of hundreds of thousands of dollars for the hospitals. Gallagher represented a secured lender in the Chapter 11 bankruptcy of a long-term care nursing facility, successfully negotiating cash collateral orders and a consensual plan of reorganization that paid full debt, including post-petition interest. Gallagher represented the landlord of a long-term care nursing facility in the Chapter 11 bankruptcy of the facility operator. Our lawyers prevailed at trial in establishing that our client was entitled to the valuable regulatory nursing home bed rights. Other Health Care Areas Our firm advises our hospital clients on clinical studies and we work closely with hospital IRBs. We regularly provide EMTALA guidance and have successfully represented hospitals facing EMTALA allegations. We similarly advise health care clients on the state and federal patient privacy laws, including HIPAA. Group Members