Jonathan Nora was convicted of conspiracy to commit healthcare fraud, conspiracy to pay or receive illegal healthcare kickbacks, and aiding and abetting healthcare fraud. He appealed to the Fifth Circuit Court of Appeals, claiming his convictions were not supported by sufficient evidence. The Fifth Circuit agreed, holding that the evidence was insufficient to find a “willful” violation of the Medicare Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b)(2) and 18 U.S.C. Section 1347, healthcare fraud. United States v. Nora, 988 F.3d 823, 825 (5th Cir. 2021)
Nora worked as a data entry clerk for Abide Home Health Care Services and was later promoted to office manager. The government suspected that Nora and other people working at Abide were committing healthcare fraud by billing Medicare based on care plans that authorized unnecessary home healthcare services. The home healthcare fraud and kickback scheme involved four physicians who served as “house doctors” and referred patients to Abide for home healthcare services. Abide would provide home healthcare services and bill Medicare accordingly.
Medicare will reimburse home healthcare providers if a patient is eligible for Medicare and meets certain requirements, which include that a patient is homebound, under a certifying doctor’s care, and is in need of skilled services. To ensure that a patient is eligible for Medicare reimbursement, a nurse visits the patient in their home, completes an Outcome and Assessment Information Set (OASIS), and develops a care plan that must be reviewed by the physician who prescribed home healthcare services. Service providers are reimbursed by Medicare based on the patient’s diagnosis, and reimbursement rates are higher for some diagnoses than for others. A false or erroneous OASIS entry can trigger a higher reimbursement rate.
The government claimed that Abide would calculate how much Medicare would reimburse them for a particular episode of home healthcare, and if the episode did not meet Abide’s “break-even point,” the case would be sent back to case managers to try to get the reimbursement score up. According to the government, these actions “fraudulently inflated Medicare’s reimbursement to Abide,” leading to the charges of conspiracy to commit fraud.
The government claimed that Nora engaged in three specific practices that were central to Abide’s healthcare fraud scheme.
First, by virtue of his role in assigning prospective patients to house doctors, the government contended that Nora was complicit in Abide’s scheme to bill Medicare for unnecessary services.
Second, Nora was involved in processing kickback payments to people who referred patients to Abide. Nora processed these payments, and evidence was presented which showed that Nora knew these payments were for patient referrals.
Third, Nora was allegedly involved in “ghosting” patients, a practice in which a patient who had been in Abide’s system for “a couple of years” would be officially discharged, but Abide would hold onto the patient and continue making home visits and not bill the patient for services rendered. After 60 days, the patient would be re-enrolled in Medicare. Because home healthcare is intended to be a temporary benefit, this practice would avoid a patient being flagged by Medicare for re-certifying a patient for too many episodes in a row.
Nora was convicted at trial and appealed his conviction, claiming that there was insufficient evidence to support the conviction.
It is illegal to “knowingly and willfully” defraud a healthcare benefit program or to pay any remuneration to induce someone to refer an individual to a healthcare provider for which payment may be made under a federal healthcare program.
When used in the criminal context, willful means an act that is undertaken with a bad purpose. To prove a defendant acted willfully, the government must prove that the defendant acted with knowledge that his conduct was unlawful.
At trial, Nora argued that he “did not have the intent, knowledge, nor awareness of an illegal healthcare fraud scheme or illegal healthcare kickbacks.”
On appeal, the court found that while the government had presented evidence of Nora’s role and work responsibilities at Abide, there was no evidence that showed that Nora acted with a “bad purpose.” While the government did present evidence that Nora had completed training related to compliance with Medicare regulations, the court found that a reasonable juror “would have to make a speculative leap about the content of these trainings and meetings—that they somehow alerted Nora to the unlawfulness of Abide’s practices and the actions he took to support them.”
Because there was insufficient evidence for a rational juror to conclude beyond a reasonable doubt that Nora acted with knowledge that his conduct was unlawful, the appellate court reversed the conviction and vacated his sentence.
Healthcare fraud is investigated by the Department of Justice (DOJ), the Department of Health and Human Services (DHHS) Office of Inspector General (OIG), and the Drug Enforcement Agency (DEA). Investigators may seek assistance from confidential informants, former employees, and others who have inside information about suspected federal healthcare fraud.
If you are under investigation or have been charged with healthcare fraud, you need an experienced federal criminal defense lawyer on your side.
Hope Lefeber has been defending people accused of crimes in federal court for more than 30 years. She has earned a reputation as a fierce defender of her clients’ rights and is highly respected by her colleagues in the federal bar, federal judges, and the people she represents.
If you are under investigation or have been charged with healthcare fraud, contact Hope Lefeber to schedule a free, confidential consultation to discuss your case.
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