1. Home
  2. |Insights
  3. |Not Better Late Than Never: Timing Requirement is Material to Payment

Not Better Late Than Never: Timing Requirement is Material to Payment

Client Alert | 1 min read | 06.15.18

On June 11, 2018, in U.S. ex rel Prather v. Brookdale Senior Living Communities Inc., the Sixth Circuit reversed dismissal of a False Claims Act suit against the country’s largest senior living provider because the relator had sufficiently alleged materiality. The qui tam suit was brought by a former nurse who alleged that physician certifications of patient need for home-health care were not signed until months after the care had been provided, in violation of 42 C.F.R. § 424.22 which requires that such certifications be completed at the time a plan of care is established or “as soon thereafter as possible.”

Applying the factors that the Supreme Court identified in its Escobar decision, the Sixth Circuit held in a 2-1 decision that the relator sufficiently pleaded that the timing requirement in § 424.22 was material by alleging that it was an express condition of payment and referring to guidance documents suggesting that compliance with the timing requirement went to the “essence of the bargain” between the defendants and the government. Notably, the lower court had drawn a negative inference on materiality because the complaint contained no allegations about the government’s past practice vis-à-vis claims that did not comply with the timing requirement in § 424.22. The Sixth Circuit found that this was “one step too far” because although past government actions are relevant to the materiality analysis, they are not dispositive.

Insights

Client Alert | 8 min read | 10.01.25

BIS Issues “Affiliates Rule” to Dramatically Expand Applicability of Entity and Military End-User Lists

On September 29, 2025, the U.S. Department of Commerce Bureau of Industry and Security (BIS) announced a sweeping Interim Final Rule (IFR), (the “Affiliates Rule”) expanding which entities qualify as Entity List or Military End-User entities, thereby subjecting those entities to elevated export control restrictions under the Export Administration Regulations (EAR). U.S. export restrictions applicable to entities on the Entity List, Military End-User (MEU) List, and Specially Designated Nationals and Blocked Persons (SDN List) now apply to foreign affiliates that are, in the aggregate, owned 50% or more by one or more of the aforementioned entities. An entity that becomes subject to these restrictions because of its ownership structure will be subject to the most restrictive controls that attach to any of its parent entities, regardless of ownership stakes....