The Fifth Circuit Court of Appeals has reversed the defendant’s conviction in United States v. Jonathan Nora, 988 F.3d 823 (5th Cir. Feb. 24, 2021) – a case wherein Nora was convicted of conspiracy to commit health care fraud, payment of illegal kickbacks, and aiding and abetting health care fraud.
The government had indicted 23 individuals in connection with a scheme involving Abide Home Health Care Services, Inc., a home health agency. Many co-defendants pleaded guilty prior to trial, including Abide’s owner, Lisa Crinel. Crinel was one of the government’s star witnesses at trial. Nora and five co-defendants stood for trial.
According to the allegations, Abide employed four physicians aw house doctors who referred patients to Abide for home healthcare services. Another employee, Paula Jones, processed Medicare billing for Abide. Nora was an office manager.
The case against Nora focused on his job duties, including scheduling nurse visits, physician appointments, and processing vouchers for referral payments. The government further alleged that Nora’s job duties, coupled with testimony from a co-defendant that “everyone in the office knew” there was fraud, was sufficient to convict.
The government alleged that Abide billed Medicare for home healthcare services for beneficiaries who did not need such services, but who had been fraudulently certified to receive them. The government also alleged Abide paid physicians, directly or indirectly, to refer patients. The government alleged Abide disguised the payments as compensation for services.
During her testimony, Crinel explained that Nora worked for Abide as an office manager, up through the date the government executed a number of search warrants. In this role, Nora coordinated new patient intake and admissions. His tasks included fielding calls, verifying insurance coverage, assigning nurses to conduct evaluations and make home health visits, and helping with data entry.
Nora also contacted potential patients identified by recruiters to ascertain their interest and eligibility for home healthcare services. If a patient expressed interest in home health services, but her doctor did not approve it, Nora would inform the patient that she would have to see a different physician to obtain approval. If the patient remained interested in Abide’s services notwithstanding her own doctor’s recommendation, Nora would offer to assign the patient to one of Abide’s house doctors for a separate evaluation of her eligibility.
Nora’s responsibilities entangled him in various aspects of the kickback scheme. First, Nora connected prospective patients with the “house doctors” who referred patients to Abide for home health services. The government alleged that this made Nora complicit in the scheme. The government also alleged that Nora processed the patient referral payments, which it characterized as illegal kickbacks.
All five defendants were convicted and appealed, but Nora appealed separately.
In his appeal, Nora argued that his convictions were not supported by sufficient evidence. The Fifth Circuit agreed, finding the evidence presented at trial did not prove that Nora understood Abide’s various practices and schemes to be fraudulent or unlawful, and thus there was insufficient evidence to conclude that Nora acted with “bad purpose” in carrying out his responsibilities at Abide.
The Fifth Circuit concluded that, even under the court’s extremely deferential review of jury verdicts, there was insufficient evidence put forth at trial for a rational juror to conclude beyond a reasonable doubt that the defendant acted with the knowledge that his conduct was unlawful. The court further found that the government had failed to prove the defendant acted “willfully” with respect to each count. The court vacated the defendant’s sentence.
The court further noted that while one witness testified that “everyone” knew about the home health services scheme, she provided no other details. The court could not determine whether everyone in the office knew about the practice, or whether everyone knew the practice violated Medicare regulations. The court acknowledged that the practice of providing services while not billing Medicare was inherently suspicious. However, even if a reasonable person in Nora’s shoes should have known (or at least suspected) that this practice was unlawful, the court reasoned that would only make Nora guilty of negligently participating in a fraud. It did not prove that Nora acted “willfully” in facilitating the practice or the fraud.
The opinion can be found HERE