Reality Checks: How to Approach Healthcare Transactions Without Triggering FCA Liability

Host Jonathan Porter is joined by Husch Blackwell partner Hal Katz to discuss healthcare transactions in the context of the False Claims Act (FCA) and other regulatory frameworks applicable to the healthcare industry. As evidenced by the recent torrent of state- and federal-level laws aimed at healthcare, no industry is asked by its regulators to jump through so many hoops as healthcare when it comes to acquisitions, business combinations, and joint ventures. In this episode, Jonathan and Hal explore how healthcare business leaders can approach transactions without triggering an avalanche of legal liability.Our discussion begins with a brief primer on how the Stark Law and Anti-Kickback Statute intersect with the FCA. Jonathan and Hal then apply this framework to healthcare transactions, reviewing and building on concepts from an August 2024 article they published in Healthcare Business Today, including scenarios frequently encountered as the healthcare industry continues to consolidate and reconfigure.The discussion then dives into a few specific lawsuits and enforcement actions to illustrate how healthcare transactions are a species all to their own with unique risk profiles and regulatory obstacles. Jonathan and Hal wrap up the episode by providing some practical suggestions for healthcare leaders who are engaged in or contemplating transactions, especially around calculating and documenting the valuation of businesses and managing communications between buyers and sellers.Jonathan Porter BiographyFull 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.Hal Katz BiographyFull BiographyBased in Austin, Texas, Hal provides healthcare clients with guidance on corporate, transactional, regulatory, and public policy matters. With over 30 years in practice, he has witnessed firsthand the evolution of the healthcare industry that continues to reshape the business and approaches of healthcare delivery. He represents for-profit, nonprofit, and governmental entities, including medical groups, hospitals, technology companies, behavioral health organizations, private equity funds, academic medical centers, and health plans. Since 2011, Hal has served the American Bar Association’s Health Law Section in a variety of leadership posts— including as its Chair from 2020 to 2021—and currently serves as Chair of its Strategic Solutions Committee. Additionally, from 2017 to 2018, he chaired the Health Law Section of the State Bar of Texas.