Advising Healthcare Providers, Employers, Insurers and Other Participants in Healthcare Markets
Pierce Atwood’s broad and deep experience in laws and regulations concerning corporate organization, mergers and acquisitions, finance, insurance, information and technology, antitrust, employment and other areas assists healthcare institutions, networks, professionals, insurers and other entities in meeting the challenges of the current healthcare environment. For example:
- We guide clients through mergers, acquisitions, integration efforts, reorganizations, contract arrangements and other transactions, and address the contracting, due diligence, financing, competition, tax, charitable status and other issues inherent in them.
- Our extensive experience in healthcare related insurance matters gives us special insight into evolving payment models, accountable care organizations, joint venture arrangements and other risk-based programs.
- We advise providers, employers and others on compliance with the evolving regulations under the Affordable Care Act.
- Our technology and licensing team provides high level expertise on HIPAA and other privacy requirements, information sharing, data security and technology licensing.
As Maine’s healthcare marketplace has undergone substantial change over the years to meet the challenges of maintaining quality care in a state confronted with rising costs, large geography and low population density, Pierce Atwood has been instrumentally involved in key developments in that evolving landscape.
Areas of Expertise
Affordable Care Act Initiatives & Compliance
The Patient Protection and Affordable Care Act of 2010 (ACA) imposes a myriad of requirements on states, hospitals, other healthcare providers, insurers, employers and individuals. It also creates initiatives to address healthcare effectiveness and costs, including the operation of accountable care organizations (ACOs) and health insurance exchanges. Regulations under the ACA are being promulgated weekly. Pierce Atwood’s Healthcare Services Group can assist clients in understanding, complying with, and launching initiatives under the ACA.
We can provide advice and guidance concerning the full range of compliance issues emerging under the ACA, including formation and governance of accountable care organizations, rules and plans of operation of health insurance exchanges, the federal reinsurance regime, employer compliance with ACA mandates, compliance for group health plans and other covered plans, COBRA compliance, group layoffs and many other areas affected by the ACA.
Antitrust Issues in Healthcare
We provide clients with antitrust counsel experienced in all aspects federal and state law applicable to the competitive issues that face healthcare clients. Our experience in mergers and acquisitions, federal and state investigations and reviews, information exchanges, contract restrictions, exclusionary practices, competitive relations and other matters of relevance to competition in healthcare is extensive.
We assist clients in competitive analysis of mergers and acquisitions, management of due diligence and pre-closing activities, preparation of premerger notifications (HSR filings), and dealings with State Attorneys General (AGs), the Federal Trade Commission (FTC) and the Department of Justice (DOJ) in connection with the review and investigation of acquisitions. We also provide guidance to clients in connection with competitive issues relevant to the Maine Hospital Cooperation Act, certificates of need and conversion proceedings.
We have extensive experience in the wide variety of competition issues inherent in dealings with competitors, including limitations on the sharing of data and competitive information, joint venturing and joint purchasing arrangements, exclusionary practices, industry trade associations and other activities.
We provide guidance concerning competitive issues associated with contract restrictions, exclusive dealing arrangements, “most favored nations” clauses, other vertical exclusionary practices and the improper exercise of market power.
We also assist clients in responding to civil and criminal investigations initiated by the DOJ, FTC, state AGs, and other regulatory entities into matters involving competition, including in responding to subpoenas for documents or depositions and representing clients who are the principal targets of investigations.
Employment, Labor & Benefits in Healthcare
Pierce Atwood has been Maine’s leader in health care labor and employment for many years. We help health care and other clients manage the entire range of issues and risks associated with the employment relationship, such as protected class discrimination, harassment, whistleblower retaliation, failure to accommodate, leave management, wage-hour, defamation, confidentiality of patient and company information, hiring, drug testing, affirmative action plans, performance management, employee discipline and workforce reductions. We work with clients to develop prevention strategies, including in-house employment law training for managers and updates on developments. We defend claims in all administrative forums and in state and federal courts, including the Maine and New Hampshire Human Rights Commissions, the Massachusetts Commission Against Discrimination, and the EEOC.
We advise a majority of the Maine hospitals that have collective bargaining units. We provide representation in contract negotiations, arbitrations, unit determinations and other Board proceedings, as well as advice concerning contract administration and compliance and union avoidance.
We also work with a broad range of non-hospital providers in the industry, including home health agencies, long-term care facilities, physician practices, laboratory services, research institutions and insurers. We provide advice and representation to clients in connection with worker’s compensation laws and insurance, loss control, workplace safety and liability, compliance with OSHA requirements and administrative proceedings before the Maine Bureau of Insurance.
Our employee benefits team offers extensive expertise in the structure of executive compensation plans, and the design, implementation and termination of the broad range of employee welfare benefit plans. Because of our experience, we can offer a unique and balanced perspective on the provision of affordable benefit packages that maintain employee morale while complying with a myriad of federal and state laws, including COBRA, ERISA, HIPAA, GINA, ACA and anti-discrimination laws.
Government Relations for Healthcare Clients
Our experienced Government Relations team provides healthcare clients with the resources necessary to successfully monitor, navigate and influence matters of public policy, legislation and regulation that may have significant impacts on their businesses. We put strong advocacy skills, extensive relationships, access to legal expertise and command of the political process to work for our clients. Our team is aided by the past experience of Andrea Cianchette Maker as the public affairs director for a substantial healthcare provider organization.
Being informed and able to educate are key skills to successful lobbying. The Government Relations team is attuned to policy trends and maintains close relations with the Governor’s office, leaders and rank and file members of the Maine Legislature and regulators who affect and implement public policy. We are at the Legislature daily when in session, and we know the players who are likely to be engaged on particular issues. Using our credibility and expertise, we are able to presents clients’ positions and concerns effectively. We also monitor proposed legislation and rulemaking for many clients, including trade associations, providing summaries and status reports, prioritizing key impact legislation and implementing strategies to influence outcomes.
Our work in healthcare governmental relations work has included Medicare and Medicaid issues, pharmacy benefit matters, guaranteed access reinsurance, healthcare data sharing, nonprofit conversions, hospital cooperation act and other matters.
Pierce Atwood’s depth of experience in insurance matters extends back many decades, and includes:
- Formations of mutual and stock insurers and reinsurers
- Mergers and acquisitions of insurers
- Demutualizations (conversions) of insurers
- Tax advice and tax litigation for insurers
- Negotiation of provider contracts with health insurers
- Insurance defense litigation of all types
- Insurance coverage matters
- Reinsurance treaties for insurers
- Reinsurance broker agreements
- Insurance agency licensing, carrier agreement and acquisitions
- Bulk reinsurance transactions and liquidations
- Change of control proceedings for insurers
- Insurance regulatory and licensing advice
- Administrative proceedings before the Bureau of Insurance
- Drafting insurance legislation
- Corporate governance
- Capital formation (including preferred stock issuance and New Market Tax Credit financing)
- Permitted (“closely-related”) business activities of insurers
- Technology acquisition and licensing, data sharing arrangements, data security and privacy matters
Much of our insurance industry expertise is directly related to health care or directly transferable to health care. As such, our insurance experience provides us with unique capabilities in providing advice to health care systems, insurers, providers, agencies and others in all aspects of health-related insurance, as the businesses of health insurance and health care providers continue to become more entwined.
Our attorneys have played leading roles in the fundamental changes in Maine’s health insurance landscape over the past two decades, including:
- Representing Anthem in its acquisition of Blue Cross/Blue Shield in Maine in a groundbreaking “conversion” transaction that involved extensive Bureau of Insurance proceedings, successfully defended before the Maine Supreme Court.
- Representing the majority of carriers in all health insurance rate proceedings before the Maine Bureau of Insurance, as well as subsequent litigation challenging agency decisions.
- Representing Anthem in multiple proceedings before the Maine Bureau and courts related to Maine’s Dirigo Health Association and resulting assessments.
- Lead counsel to an association of pharmaceutical benefit management companies challenging Maine’s PBM law.
- We also helped solve Maine’s historically challenging workers compensation problems when we took the lead in organizing, from scratch, Maine Employers Mutual Insurance Company (MEMIC), which now has assets of approximately $900 million, and for which we continue to serve as outside general counsel.
- Most recently, we acted as counsel to the Maine Guarantee Access Reinsurance Association (MGARA), organizing it from the ground up, and continuing to provide it with legal guidance.
Healthcare Entities: Organization, Operation & Governance
Pierce Atwood’s exceptional capabilities in corporate law, nonprofit organizations, mergers and acquisitions, financing and commercial transactions enable us to provide high level and detailed guidance to healthcare clients based on decades of experience.
Merger and acquisition transactions, including in the healthcare area, have long been a core of Pierce Atwood’s practice. We regularly take the lead role in major M&A matters, negotiating and structuring the deal terms, managing the due diligence practice, coordinating with underwriters, documenting the transaction and taking it through closing. Our multidisciplinary teams provide expertise in all transaction related areas, including antitrust, regulatory approval, technology transfer, employment and employee benefits, environmental, real estate and federal and state taxation. Our work in the healthcare field includes hospital, medical practice and medical service provider acquisitions, as well as health system integration.
We regularly advise nonprofit healthcare organizations on matters involving organization, bylaws, governance, fiduciary obligations, conflict of interest and planning and development.
Our extensive expertise in commercial law and contracting of all kinds provides healthcare clients with deep resources concerning contractual arrangements, including supplier agreements, employment contracts, management contracts, nondisclosure and noncompetition agreements, technology licensing, data sharing agreements, joint purchasing arrangements, and operating agreements.
Healthcare Financing & Bonds
Pierce Atwood provides unique strength and experience to healthcare institutions in the areas of public and private finance, tax exempt bond issuance, bank financing, capital markets, tax increment and new markets tax credit financing, and other financing mechanisms.
We have a high level of expertise in tax exempt bond financing, and have handled exempt financings for many of the hospitals in Maine, including through the Maine Health and Higher Education Facilities Authority. We have developed system-wide shared financing and funding arrangements for healthcare systems with multiple affiliates, and worked out a unique approach to debt service reserve funding for the issuance of $285 million in tax exempt healthcare system bonds.
Our extensive experience in conventional bank financing and in capital markets enables us to assist health care clients in structuring lending and equity arrangements to meet their capital and operating needs. We regularly work with underwriters in major financings and acquisitions, and our experience in municipal finance, tax increment financing, economic development and new markets tax credit financing allows us to structure other creative financing arrangements for our clients.
Healthcare Information Technology & Data Analysis
Contact: Peter Guffin
Information technology and data analysis are central to the operation of healthcare businesses today. Whether clients are acquiring and implementing electronic medical records systems, patient web portals or cloud-based services, or performing research and analysis using health care data, they are confronted with a variety of legal considerations. Many of our healthcare clients are on the forefront of deploying information technology, including one of the first (and largest) health information exchanges in the country using clinical data.
We provide healthcare clients with a broad range of expertise in software procurement and licensing, technology implementation, data use and research license agreements, technology collaborations and joint ventures, technology outsourcing arrangements, Internet issues, cloud-based services, protection of intellectual property rights and dispute resolution and litigation. We also have expertise regarding compliance with the requirements of E-SIGN (Electronic Signatures in Global and National Commerce Act) to ensure the validity and enforceability of electronic records and transactions.
Immigration Counsel for Healthcare Clients
Down East CommunityHospital
Houlton Regional Hospital
Maine Medical Center
Maine Medical Center Research Institute
Martin’s Point Health Care
We provide comprehensive immigration services to healthcare organizations and healthcare professionals. We have been helping healthcare clients navigate immigration and global mobility issues for more than 25 years. We serve as general outside immigration counsel for more than a dozen healthcare organizations in New England, including Maine's largest healthcare organization, as well as healthcare organizations serving remote and rural HPSA/MUA communities.
Our immigration group partners with medical directors, human resources personnel, recruiters, in-house counsel, physicians, and other healthcare professionals in obtaining temporary and permanent visas. We have a substantial background in all work-related visa classifications and provide strategic guidance to healthcare clients at all stages of the employment relationship. Our experience working with healthcare clients on legal, regulatory and employment-related immigration issues allows us to provide strategic advice and cost-effective immigration solutions. Our applications account for a significant share of all Conrad 30 approvals in Maine and for virtually all of the Flex 5/Flex 10 approvals in Maine.
Litigation for Healthcare Clients
Pierce Atwood’s large and seasoned team of litigators is capable of handling virtually any dispute resolution and litigation matter in the healthcare area. We regularly litigate cases in federal and state courts and before administrative bodies around the country. We also work with our clients to develop strategies to resolve disputed matters in ways that will avoid lawsuits or enforcement proceedings.
We have extensive experience in class actions, employment, whistleblower, qui tam, false claims act, discrimination and similar cases of particular interest to healthcare entities. We handle the broad range of commercial litigation, including contract and business disputes, tort claims, construction claims, technology, data breach, and intellectual property litigation. We also counsel clients and litigate insurance matters of all kinds, including coverage issues, liability, and damage quantification.
We assist clients in federal and state investigations concerning statutory and regulatory noncompliance, competition laws, white collar crime and environmental compliance.
Privacy & Data Security of Healthcare Information
Contact: Peter J. Guffin
We have extensive expertise in the proper and secure handling of patient health information and other healthcare data. Our expertise includes privacy, data security and breach notification requirements under HIPAA and the HITECH Act, as well as state laws and regulations related to healthcare information. It also includes incident response, communications with governmental agencies, risk mitigation and litigation strategies.
To ensure that clients obtain the best practical advice on complex issues such as privacy policies, information safeguarding, record retention, data breach notification, e-discovery and other privacy and security issues, we have assembled a multi-disciplinary team with both legal and industry expertise. As a result we are able to combine our knowledge of the law in the areas of intellectual property, technology, healthcare, employment, and litigation with extensive experience in privacy and data security issues to help clients solve problems.
Related Practices: Healthcare Services
Our Environmental and Land Use Group provides a full range of environmental and land use services, including federal, state and local environmental permitting, site plan review, and zoning guidance. We represent clients in compliance matters and enforcement proceedings and in addressing issues relating to contaminated property. Our environmental team has also assisted health care and disposal facilities in complying with biomedical and pharmaceutical waste handling and disposal regulations. Working with our business group, they also assist health care clients in understanding and addressing environmental issues inherent in acquisitions involving facilities and real estate.
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Our construction law team can assist health care clients in construction project planning from design to completion of construction. Pierce Atwood has extensive experience in all aspects of construction contracting, including architect, project management, construction management, general contractor and subcontractor agreements and construction bonding. We can help manage issues that may arise during construction in ways that will avoid subsequent legal claims and disputes. We have extensive experience in litigating and arbitrating construction and design disputes in federal and state courts and before arbitration panels. We also represent clients in construction labor matters.
Bankruptcy and Creditors Rights
Our Bankruptcy and Creditor’s Rights team can serve the needs of health care clients confronted with serious financial distress, in dealing with other entities that are financially compromised, and in managing their credit relationships with others. We also work with clients to establish, maintain and execute on secured positions; manage executory contracts in bankruptcy proceedings; and protect their interests as general creditors.
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Taxation Matters for Healthcare Clients
Our Federal Income and State and Local Tax Groups provide healthcare clients with high-level, broad expertise in taxation matters.
Along with our Trusts and Estates Group, the Federal Tax Group provides counsel to tax-exempt healthcare organizations concerning all organizational and operational aspects of obtaining and maintaining federal tax-exempt and public charity status. We also advise clients concerning the potential taxation of unrelated business activities, tax inurement issues and “permissible healthcare related tax” matters. Along with our Employee Benefits Group, the Federal Tax Group provides guidance on the array of tax issues involved in compensation and benefits, deferred compensation, executive compensation and healthcare retirement benefits programs. Our federal tax lawyers also regularly work with transaction lawyers to structure mergers, acquisitions, spinoffs and reorganizations in the most tax-efficient manner possible.
Our State and Local Tax (SALT) Group provides assists healthcare clients in planning and disputes involving state and local real and personal property taxes, including exemption issues for hospitals and other entities, and sales, use and transaction taxes. For example, we have represented hospitals in preserving exempt property tax status where portions of facilities are used for for-profit purposes, and have resolved sales tax disputes involving equipment acquisition and leasing. We have also worked extensively to protect and promote the SALT interests of our clients at the Maine Legislature.
Members of the Federal Taxation and SALT Groups, often working with members of our Litigation Group, regularly handle contested tax matters before the IRS, state and local taxing entities, and state courts, U.S. District Courts and the U.S. Tax Court. We advise clients concerning IRS and state audits and appeals, working to develop strategies to resolve disputed matters where possible.