How Payment Suspensions Can Impact FCA Litigation

Host Jonathan Porter welcomes to the show Husch Blackwell partner Bryan Nowicki, a Madison-based member of the firm’s Healthcare group, to discuss payment suspensions involving the Centers for Medicare & Medicaid Services (CMS) and various state-level agencies, especially in the context of a government investigation. Even when temporary, these payment suspensions—literally, a turning off of government funds and reimbursements—can have severe consequences for healthcare enterprises whose operations depend heavily on an uninterrupted flow of funds.The overpayment and allegation of fraud standards that govern payment suspensions are somewhat erratic—or at least, erratically imposed—creating added concern for healthcare providers, especially in light of recent CMS comments that payment suspensions could be used more broadly going forward. Furthermore, the standards, such as they are, are fairly easy for the government to meet. In the healthcare context, where decisions based on clinical judgment often form the subject matter of government investigations, the poorly defined standards for payment suspensions can lead to crippling uncertainty for organizations that lack a plan for how to mitigate the consequences. Jonathan and Bryan discuss the typical process and scope of payment suspensions—whether the suspension involves all payments to an organization or whether it is limited to the issue under review—and how healthcare providers can develop strategies to resolve payment suspensions. The conversation pivots to consider case law and what lessons can be derived from recent litigation.Jonathan Porter | Full BiographyJonathan focuses on white collar criminal defense, federal investigations brought under the False Claims Act, and litigation against the government and whistleblowers, where he uses his experience as a former federal prosecutor to guide clients in sensitive and enterprise-threatening litigation. At the Department of Justice, Jonathan earned a reputation as a top white-collar prosecutor and trial lawyer and was a key member of multiple international healthcare fraud takedowns and high-profile financial crime prosecution teams. He serves as a vice chair of the American Health Law Association’s Fraud and Abuse Practice Group and teaches white collar crime as an adjunct professor of law at Mercer University School of Law.Bryan Nowicki | Full BiographyBryan has more than 20 years of litigation and regulatory experience, assisting clients on a nationwide basis with complex litigation, compliance, and business matters with a particular focus on hospice, home health agencies, palliative care organizations, hospitals, and skilled nursing homes. Working closely with clients, he develops practical strategies and remediation when they face issues including state and federal investigations, whistleblower complaints, audits, and federal fraud and abuse claims, among other areas.