Fifth Circuit Axes Healthcare Fraud and Anti-Kickback Convictions, Demanding More to Meet Government’s Evidentiary Burden
As a counterweight to the government’s trend of aggressively prosecuting healthcare fraud, the Fifth Circuit recently reversed a defendant’s convictions for conspiracy to commit healthcare fraud, conspiracy to pay illegal kickbacks, and aiding and abetting healthcare fraud. See United States v. Nora, ___, F.3d___, No. 18-31078, 2021 WL 716628, at *2 (5th Cir. Feb. 24, 2021). Jonathon Nora was indicted in connection with Abide Home Health Care Services, Inc.’s fraudulent schemes using (1) “house doctors” to approve medically unnecessary care plans to bill Medicare; (2) an illicit pay-for-referral system; and (3) “ghosting,” i.e., the practice of “officially” discharging patients but “informally” continuing care and re-certifying them at a later date, to avoid Medicare scrutiny. The court’s reversal was based on its conclusion that there was insufficient evidence to conclude, beyond a reasonable doubt, that Nora acted with knowledge that his conduct was unlawful.