The Fifth Circuit recently vacated three healthcare convictions based upon insufficient evidence. The case is significant for what the Court did with the element of willfulness.

Jonathan Nora had been convicted of three crimes: conspiracy to commit healthcare fraud, in violation of 18 U.S.C. 1349; conspiracy to pay or receive illegal healthcare kickbacks in violation of 18 U.S.C. 371 and 42 U.S.C. 1320a-7b(b)(2); and aiding-and-abetting healthcare fraud in violation of 18 U.S.C. 1347. He challenged his convictions, arguing that the Government had failed to prove that his work was unlawful. In other words, the Government had failed to prove that he had acted “willfully” to defraud Medicare or to pay illegal healthcare kickbacks.

The case is significant because Congress amended 18 U.S.C. 1347(b) in 2010 to specify that “a person need not have actual knowledge of this section or specific intent to commit a violation of this section” to act willfully. The Court examined Nora’s conduct regarding the payment of referrals, “ghosting” patients,” and use of house doctors, and determined that while he might have participated in his company’s illegal practices, the Government failed to present specific evidence demonstrating he knew the activities were unlawful.

United States v. Nora