In United States v. Nora, No. 18-31078, 2021 WL 716628 (5th Cir. Feb. 24, 2021), the court of appeals ruled that the evidence was insufficient to support a finding that the defendant acted "willfully," as required to support convictions for conspiracy to commit healthcare fraud, conspiracy to pay illegal healthcare kickbacks, and aiding and abetting healthcare fraud. Although the defendant may have understood that Abide Home Health Care Services Inc. (Abide) was making referral payments for new patients, there was no evidence at trial that proved that he knew these payments constituted unlawful kickbacks.
According to the court, the evidence did not prove that the defendant acted with knowledge that his conduct was unlawful either. The government did not present evidence that the defendant knew that any of the patients of the home healthcare service were not actually homebound or that he knew he was assigning patients to nurses and doctors who were willing to run afoul of regulations and risk their licenses. Witnesses for the government did not testify that the defendant understood the unlawful or fraudulent purpose behind Abide's practices.
Although Abide's "ghosting" practice was inherently suspicious, and even if a reasonable person should have known that it was unlawful, the court emphasized that would make the defendant guilty of negligently participating in a fraud, rather than prove she acted "willfully" in facilitating ghosting and the fraud it furthered. The "everybody knew" testimony and the claim that Abide had an adverse "culture" could bolster the case, but was not itself enough to convict the defendant of willful misconduct.
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