Health Law Daily Conviction for health care fraud overturned for lack of sufficient evidence
Friday, February 26, 2021

Conviction for health care fraud overturned for lack of sufficient evidence

By Gregory Kane, J.D., M.B.A.

An office manager’s conviction for health care fraud was overturned for lack of sufficient evidence that the manager was aware of the fraud and willfully participated.

The conviction of a home health care provider’s office manager for conspiracy to commit health care fraud, conspiracy to pay or receive illegal health care kickbacks and aiding and abetting health care fraud was reversed and his sentence vacated because there was insufficient evidence put forth a trial for a rational juror to conclude beyond a reasonable doubt that the office manager acted with the knowledge that his conduct was unlawful (U.S. v. Nora, February 24, 2021, Higginson, S.).

The office manager was convicted alongside five codefendants for his involvement in a large home health care fraud and kickback scheme in connection with his employment at Abide Home Health Care Services, Inc. Four of the codefendants were doctors who referred patients and the fifth was the wife of one of those doctors who handled Abide’s billing. Essentially, Abide provided kickbacks to these doctors and others for patient referrals and for falsifying the home health care needs of patients to increase Medicare billing amounts. Abide also manipulated patient records to avoid suspicion.

The office manager began working for Abide as a full-time hourly employee in 2009 at 22 years old with a high school degree and some college credits. He was promoted to office manager in 2012 with an annual salary. There is no evidence he received other compensation besides that salary. The office manager handled patient intake and admissions and was entangled generally from an operational standpoint in each of the practices that were central to the fraud and kickback scheme. The office manager was found guilty at trial and sentenced to a concurrent sentence of 40 months’ imprisonment on each count, a downward variance from the Guidelines range, and ordered to pay restitution to Medicare in the amount of $12,921,797. He filed a timely notice of appeal

There is no dispute that the office manager worked at Abide while the fraud and kickback scheme took place. The counts levied against the office manager require the perpetrator to have knowingly and willfully committed these acts. The office manager argued throughout the trial and again in his appeal that he did not have the intent, knowledge nor awareness of an illegal health care fraud scheme or illegal health care kickbacks. No evidence was presented at trial that proved that he knew that payments to referrers constituted unlawful kickbacks. There was no evidence that the office manager understood that Abide’s various practices and schemes were fraudulent or unlawful. No evidence was presented that he received training on Medicare regulations and compliance sufficient to alert him to the unlawfulness of Abide’s conduct. A rational juror would need more to conclude that he acted willfully. While the office manager was in close proximity to the fraud taking place, that was insufficient evidence on which to convict him without additional proof of his knowing and willful participation.

The case is No. 18-31078.

Attorneys: Diane Hollenshead Copes, U.S. Attorney's Office, for U.S. Rachel Isabel Conner (Conner & Sothern) for Jonathon Nora.

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