Health Headlines –February 23, 2026

Highlights from the 2026 FBA Qui Tam Conference

The Federal Bar Association held its annual Qui Tam conference last week on February 19-20 in Washington, D.C. Over the course of two days, the panels brought together high-level government officials and key members of the defense and relator’s bar to discuss recent developments in the space, highlighted by a keynote speech by Brenna Jenny, Deputy Assistant Attorney General for the Commercial Litigation Branch of the Civil Division of the Department of Justice.

During her keynote, Ms. Jenny noted the factors she considers in weighing the importance of potential enforcement cases, including patient harm, systemic risk to federal programs, and distortion of eligibility for funding. She acknowledged that while qui tam enforcement often took significant time, she did not consider delay in cases or the continued payment of claims by government payors in the interim as meritorious defenses, though changes in intervening case law or loss of evidence during case delays could be. She cautioned companies that relied on standard industry practices, as she did not consider that to be an excuse for violating the law. Ms. Jenny also highlighted the Department’s limitations in considering or utilizing agency regulatory guidance in deciding which enforcement cases to bring. In doing so, she cited a string of Department authorities including Attorney General Pamela Bondi’s February 5, 2025 Memorandum titled “Reinstating the Prohibition on Improper Guidance Documents,” prior versions of the Justice Manual from the first Trump administration containing language limiting consideration of such regulations, and President Donald Trump’s April 9, 2025 Memorandum “Directing the Repeal of Unlawful Regulations.”

Ms. Jenny also discussed the increased data analytics capabilities the Department employed to more quickly evaluate the merits of allegations, using as an example tracking of physician prescription data to find outliers and tie allegations to patient harm. She noted that while data mining relators can provide the Department with helpful analyses and identify potential fraud, they did not replace “true” whistleblowers, whom she considered the primary source of specific inside information to fix information asymmetries between the government that operates programs on a huge scale and program participants. Ms. Jenny also noted the Department’s openness to utilizing its authority to dismiss qui tam cases, and her adoption of formal processes to assess whether dismissal was appropriate at the time the Department of Justice decided to decline to intervene in an action.

Finally, Ms. Jenny concluded her keynote by highlighting the increased volume of Department investigatory activity focused in key enforcement areas, including managed care, drug pricing, illicit patient copay or financial assistance, trade fraud, and discrimination cases, which she noted were receiving expedited treatment. This final enforcement area was also the subject of a panel during the conference titled “Illegal DEI as an FCA Trigger” in which Ms. Jenny participated. During that panel, she discussed practices that would trigger enhanced scrutiny, including the use of protected traits such as race or sex in hiring, promotion, or leadership training program participation, as well as demographic goal setting for workforce and management evaluations based on reaching those goals.

Other notable panels during the conference included:

• FCA Year in Review;
• A panel focused on increasing FCA enforcement based on cybersecurity non-compliance or misrepresentation;
• A panel on emergency medicine based enforcement, a panel on the constitutionality of qui tam suits and the arguments presented to the Eleventh Circuit in the Zafirov case, including advocates from oral arguments in the case;
• A panel discussing damages calculations in false certification cases;
• A panel discussing the viability of data mining cases;
• A panel of state prosecutors focusing on the increasing role of Medicaid Fraud Control Units and multi-state cooperation to supplement federal enforcement as well as additional causes of action and remedies available to relators who include state law FCA analogues in their complaints.

Reporter, Hamilton Craig, Washington D.C., +1 202 626 8976, hcraig@kslaw.com

HHS OIG Releases Advisory Opinion on Commonly Owned Urgent Care Centers and Clinical Laboratory

On February 18, 2026, the HHS Office of Inspector General (OIG) posted an advisory opinion on the management and operation of a clinical laboratory and affiliated urgent care centers under common ownership (OIG Advisory Opinion No. 26-02). Based on the facts given by the Requestor who solicited the opinion, OIG concluded that the proposed ownership and operation of the urgent care centers and affiliated clinical laboratory would not by itself run afoul of section 1128B(b) of the Social Security Act (better known as the Federal anti-kickback statute) so long as the affiliated laboratory was not in a position to induce referrals or be given preference when physicians at the urgent care centers are ordering testing for their patients, and therefore not be grounds for the imposition of civil monetary penalties under section 1128A(a)(7) or exclusion from federal health programs under section 1128(b)(7).

The federal anti-kickback statute makes it a criminal offense to knowingly and willfully offer, pay, solicit, or receive any remuneration to induce, or in return for, the referral of an individual to a person for the furnishing of, or arranging for the furnishing of, any item or service reimbursable under a Federal health care program. The statute has been interpreted to cover any arrangement where one purpose of the remuneration is to induce referrals for items or services reimbursable by a federal health care program.

According to the Requestor, the proposed arrangement is as follows:

• The Requestor is a management center affiliated with four urgent care centers operated through various management companies and one affiliated professional corporation, which the Requestor does not own pursuant to applicable state law prohibiting the corporate practice of medicine.
• The Requestor sought to operate an independent clinical laboratory, which would be owned through a separate entity under common ownership with the Requestor, and the laboratory would not be owned by any entity in a position to influence laboratory referrals at the urgent care centers.
• Usage of the affiliated clinical laboratory would not be required by the providers at the urgent care centers, the management of the urgent care centers would not track referrals to the laboratory from the urgent care centers, and no part of the compensation received by any providers at the urgent care centers would be dependent on referrals to the clinical laboratory.
• Moreover, providers would be offered a choice of laboratories to refer patient testing, and the electronic health record system utilized by the providers at the urgent care centers would allow providers to order from several laboratories not give preference to the affiliated laboratory over unaffiliated competitors.
• No part of the compensation of any of the providers at the urgent care centers would be tied to orders from the laboratory, and no remuneration would flow from the laboratory to the urgent care centers either directly or indirectly.
• The laboratory would not provide phlebotomists or other employees to the urgent care centers to collect specimens.
• Finally, patients at the urgent care centers would be informed that the laboratory is an affiliate of the urgent care centers, and the laboratory would accept specimens for testing only when consistent with payor contracts and the patient’s insurance coverage.

According to OIG, the Federal anti-kickback statute would not be implicated in the proposed arrangement because: (1) the providers and suppliers at the urgent care centers would not be tied to services ordered from the laboratory, (2) no remuneration would flow from the laboratory to the urgent care centers or any of its providers or suppliers, and (3) it would not pay any remuneration to the urgent care centers or its providers or suppliers from revenue derived from laboratory services.

If, on the other hand, remuneration was paid to referral sources to induce or reward the referral of laboratory specimens, OIG cautioned that the anti-kickback would be implicated and sanctions and penalties could apply. OIG gives example of several types of “abusive arrangements” in which management companies that own or are affiliated with clinical laboratories can funnel kickbacks to providers or suppliers, including: “sham investment opportunities, sham consulting arrangements, and the provision of free personnel or equipment.”

As with all OIG advisory opinions, OIG Advisory Opinion No. 26-02 warns against reliance on the opinion by anyone other than the requestor, and notes that it is limited in scope to cover only the proposed arrangement outlined by the requestor and has no applicability to any other arrangements. Nevertheless, the Opinion can be helpful to others in helping to structure their arrangements to avoid liability under the federal anti-kickback statute.

OIG Advisory Opinion No. 26-02 can be found here.

Reporter, David Tassa, Los Angeles, +1 213 442 8848, dtassa@kslaw.com

Upcoming Events

Understanding Supplemental Medicaid Opportunities via the Medicaid DSH Program

• March 4, 2026, 1:00 – 2:00 P.M. ET
• Virtual

Supplemental Medicaid programs provide critical funding to hospitals that care for low-income and Medicaid patients. Unfortunately, many hospitals do not receive the full amount they are due, largely because of a lack of legal strategy.

This roundtable uses the Medicaid Disproportionate Share Hospital (DSH) program as an example to explore how supplemental Medicaid programs are structured, tailored state by state, financed and regulated. The discussion will also explore case studies and various ways to assist clients with navigating these programs, which are especially important considering the recent Medicaid financing changes mandated by the One Big Beautiful Bill Act.

You do not have to be a client to attend, and there is no charge. RSVP by March 3. For questions, contact Sydney Forte.

35th Annual King & Spalding Health Law & Policy Forum

• Thursday, March 12, 2026, 8:00 A.M. ET
• Atlanta, GA

Join us for our annual forum focusing on the foremost legal and political developments impacting the healthcare industry. This full-day program will feature thought-provoking sessions and a keynote address from award-winning legal affairs correspondent Nina Totenberg, whose deep knowledge of the inner workings of the Supreme Court will provide attendees with rare insights into today’s judicial headlines.

Highlights include:

• Leading practitioners providing policy and regulatory enforcement updates and other industry developments, including insights from in-house counsel on their priorities for the coming year 
• What’s next in strategic priorities for nonprofit health systems
• Perspectives from a former U.S. attorney on key issues facing the healthcare industry
• Regulatory and legislative impacts of the current administration on the healthcare industry 

Attendees will also enjoy multiple networking opportunities, including a reception following the sessions.

The registration fee for the full program is $95. For questions, or for information about registering, contact the K&S Events Team.

King & Spalding Reception at the AHLA Institute on Medicare and Medicaid Payment Issues

• Thursday, March 19, 6:00 – 8:00 P.M. ET
• Baltimore Marriott Waterfront, 700 Aliceanna Street, Baltimore, MD
  Laurel Room, 4th Floor

Join us for cocktails and conversation at AHLA’s Institute on Medicare and Medicaid Payment Issues.

For questions and to RSVP by March 12, contact Monique Wharton.

Editors: Chris Kenny and Ahsin Azim

Issue Editors: Kasey Ashford and Will Mavity