United States v. Kamal Patel

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 14-2607

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KAMAL PATEL,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 12 CR 491-5 — Robert M. Dow, Jr., Judge.

____________________

ARGUED DECEMBER 5, 2014 — DECIDED FEBRUARY 10, 2015

____________________

Before FLAUM, EASTERBROOK, and KANNE, Circuit Judges.

FLAUM, Circuit Judge. Dr. Kamal Patel is a Chicago-area

physician who commonly prescribes home health care ser-

vices for his patients. After federal investigators learned that

Patel had been receiving undisclosed payments from Grand

Home Health Care (“Grand”), a home care provider used by

some of his patients, Patel was charged with six counts of

violating—and one count of conspiring to violate—42 U.S.C.

§ 1320a-7b, otherwise known as the Anti-Kickback Statute.

2 No. 14-2607

In relevant part, the Statute makes it illegal to “knowingly

and willfully solicit[] or receive[] any remuneration (includ-

ing any kickback, bribe, or rebate) … in return for referring

an individual to a person for the furnishing” of health care

services paid for, in whole or in part, by a federal health care

program. Id. § 1320a-7b(b)(1)(A).

During his bench trial, at the close of the government’s

evidence, Patel moved for a judgment of acquittal, arguing

that he had not “referred” any patients to Grand because

there was no evidence that he steered or directed his patients

to Grand; rather, the patients independently chose Grand as

their provider after Patel prescribed home health care. The

district court rejected Patel’s argument, holding that, even if

a patient had initially chosen Grand, Patel “referred” the pa-

tient to Grand when he certified or recertified that the pa-

tient needed care, that the care would be provided by Grand,

and that Grand could be reimbursed by Medicare for ser-

vices provided. This certification and recertification occurred

each time Patel signed a standardized Medicare form, Form

485, for one of his patients.

On appeal, Patel argues that the district court erred by

holding that the certification and recertification, via Form

485, of patients for treatment constitutes a “referral” under

the Anti-Kickback Statute. He also argues that even if those

certifications were referrals, there was insufficient evidence

to conclude that Patel was paid “in return for” certifications,

as required by the statute. We affirm.

I. Background

Patel is an internal medicine specialist who treats approx-

imately twenty elderly patients per day and prescribes home

No. 14-2607 3

health care services to about ten patients per month. One of

the approximately 10–20 home health care providers used by

Patel’s patients is Grand, a Chicago-based company. Around

95% of Grand’s patients are Medicare beneficiaries; Medi-

care, the parties have stipulated, is a federal health care pro-

gram as defined in the Anti-Kickback Statute. In 2002 or

2003, Grand experienced a significant decline in business

when some of its partners left to form a competing company,

taking most of Grand’s patients with them. Prior to that time,

Grand had received patients from Patel, but this ceased fol-

lowing the partners’ departure. To counteract this downturn,

Grand’s owners, Nixon Encinares and Maria Buendia, initial-

ly tried introducing themselves to numerous doctors in the

area, including Patel, in an effort to attract business. After

this approach proved unsuccessful, the Grand owners begin

offering to pay doctors for referrals of Medicare patients.

Encinares approached Patel, specifically offering to pay

him for “referrals.” According to Patel, he did not say any-

thing in response to the proposal and “didn’t agree with”

Encinares. Buendia and Encinares, on the other hand, testi-

fied that Patel said something to the extent of “okay” or

“yeah” in response to their offer. 1 During a second meeting

with Patel, Encinares and Buendia offered to pay Patel for

referrals on a per-patient basis. After making this offer,

1 The district court, acting as trier of fact, concluded that it was unneces-

sary to resolve this factual dispute. The dispute was immaterial to Patel’s

guilt on the six counts of violating the Anti-Kickback Statute. And, even

if Patel did not verbally agree to the arrangement, the district court con-

cluded that he was also guilty of conspiracy because he later manifested

his involvement in the conspiracy by accepting payments from Encinares

while certifying and recertifying patients to Grand.

4 No. 14-2607

Grand began providing home health care services to about

2–4 of Patel’s patients per month; a majority of Patel’s pa-

tients continued to use other providers.

To qualify for Medicare-reimbursed home health care

services, a patient must be homebound and suffer from a

medical condition or constellation of medical conditions that

requires skilled nursing care or therapeutic services. A doc-

tor or nursing facility must initially determine that a patient

needs these services. Once this determination is made, the

patient or his caregiver must select a provider to furnish the

necessary services. Often, a treating physician or nurse will

discuss the merits of particular providers with patients. Pa-

tients who have previously received home health care ser-

vices often reselect their previous provider. After a provider

is selected, the patient or his doctor contacts the provider

and supplies important information, including the patient’s

name, his diagnosis, and his Medicare number. The provider

then assesses the patient’s condition and needs, and formu-

lates a treatment plan. To be reimbursed by Medicare for the

treatment, the provider must complete and submit to Medi-

care a Form 485 for each patient; Form 485 is a standardized

Medicare form that certifies that home care is medically nec-

essary and outlines a patient’s diagnosis, medications, treat-

ment plans, and goals. After filling out this information,

providers must procure the signature of the patient’s prima-

ry care physician on each Form 485 before the provider can

bill Medicare. A signed recertification form is necessary for

home care that lasts longer than the initial 60-day certifica-

tion period. Home health care providers can—and often

do—treat patients prior to receiving a signed Form 485, but

they cannot be reimbursed by Medicare until the Form has

been signed. By signing a Form 485, a physician certifies that

No. 14-2607 5

“the patient is confined to his/her home and needs intermit-

tent skilled nursing care, physical therapy and/or speech

therapy or continues to need occupational therapy,” and that

the physician has “authorized the services on this plan of

care and will periodically review the plan.”

Both before and after Grand began offering Patel kick-

backs, Patel used the following process when prescribing

home health care for a patient. First, Patel made the initial

determination that the patient required home health care

services. This initial decision is not at issue in this case—it is

undisputed that all of Patel’s patients who were treated by

Grand needed home health care. After this initial determina-

tion was made, a provider needed to be chosen. Patel did not

personally discuss the selection of providers with patients or

their family members, either as an initial matter or as part of

recertification. Rather, his patients discussed home health

care options with Patel’s medical assistant, Jeanette

Sungvoom. Patel did not tell Sungvoom which provider to

recommend. Sungvoom gave patients an array of 10–20 bro-

chures from various providers. The brochures were given to

Patel’s office by the providers, but it is unclear whether

Sungvoom and Patel included every brochure that they were

offered. One of the brochures provided by Sungvoom was

Grand’s, but the government does not contend that it was

included in the array because Grand had offered Patel kick-

backs. Each patient independently chose a provider from

those in the array. After a provider was selected, Sungvoom

called or faxed the provider with the name of the patient, his

diagnosis, and his Medicare number. The fax cover pages

from Patel’s office bore the subject line “new referral” and

the body of the faxes contained prescriptions for home

6 No. 14-2607

health care signed by Patel or by Sungvoom, with Patel’s au-

thorization.

If the patient selected Grand as his home health care pro-

vider, Grand would then send one of its nurses to assess the

patient and complete an “OASIS” form to document the as-

sessment. Grand would devise a treatment plan and fill out

most of a Form 485 for that patient. Grand often began

providing the proposed services before Patel signed the

Form 485. Encinares met with Patel on a monthly basis to

have him sign Form 485s. During these meetings, Encinares

paid Patel cash. The amount of cash was equivalent to $400

for each signed Form 485 representing a new admission to

Grand and $300 for each signed recertification. The district

court found that Patel would have signed the Form 485s for

each of these patients even if they had not selected Grand. It

noted, however, that on at least one occasion Patel indicated

over the phone that he was not ready to sign the forms for

patients who selected Grand until Encinares was able to

bring cash along with the forms. In her office, Buendia kept

handwritten notebooks keeping track of Patel’s patients be-

ing treated by Grand, as well as Grand’s payments to Patel.

Buendia and Encinares would refer to these notebooks each

month to determine how much money Patel was due. The

notebooks contain entries reflecting multiple payments of

over $1,000 to “Dr. Patel” or “Dr. P.” In addition to normal

cash payments, Patel was also at times compensated by

Grand in the form of incremental loan forgiveness for an

$8,000 loan Patel previously received from Grand.

The government began investigating Grand for health

care fraud in the spring of 2011. Encinares and Buendia

quickly agreed to cooperate in the government’s investiga-

No. 14-2607 7

tion of others taking part in their scheme by recording tele-

phone calls and meetings with those individuals. Encinares

recorded several phone conversations and three meetings

with Patel, which Encinares testified were typical of their

prior meetings. During these interactions, Patel frequently

sounded nervous. In their recorded meetings, Patel signed

Form 485s and Encinares gave Patel cash. During one rec-

orded phone call, on May 10, 2011, Patel said, “I was won-

dering if we could meet for paperwork today.” Encinares re-

plied by stating that money was “tight” for Grand, to which

Patel responded, “So you’re not ready for the paperwork

right now.”

On November 13, 2012, the government filed a 42-count

indictment against Patel, Encinares, Buendia, and others al-

leging violations of the Anti-Kickback Statute. Patel was

charged with six counts of violating the Statute and one

count of conspiracy to violate the Statute. A three-day bench

trial began on June 10, 2013. The next day, at the close of the

government’s case in chief, Patel filed a motion for a judg-

ment of acquittal on all counts, arguing that he had not

made any “referrals” to Grand. The district court took the

motion under advisement and continued with the trial.

On February 19, 2014, the district court denied Patel’s

motion for judgment of acquittal and found him guilty on all

counts. Patel was sentenced to serve eight months’ impris-

onment and 200 hours of community service, and was re-

quired to forfeit $31,900 of kickback payments. After sen-

tencing, the district court granted Patel’s motion for bond

pending appeal.

8 No. 14-2607

II. Discussion

A. Definition of “Referring”

The Anti-Kickback Statue is designed to prevent Medi-

care and Medicaid fraud. According to the Health Resources

and Services Administration, the Statute was enacted to

“protect the Medicare and Medicaid programs from in-

creased costs and abusive practices resulting from provider

decisions that are based on self-interest rather than cost,

quality of care or necessity of services.” Health Res. & Serv.

Admin., Program Assistance Letter 1995-10, Guidance on the

Federal Anti-Kickback Law, available at

http://bphc.hrsa.gov/policiesregulations/policies/pal199510.h

tml (last visited February 2, 2015); see also United States v.

Borrasi, 639 F.3d 774, 781 (7th Cir. 2011) (explaining that the

Anti-Kickback Statute was “designed to help combat health

care fraud”). The Statute has another purpose as well—to

protect patients from doctors whose medical judgments

might be clouded by improper financial considerations. See

Health Res. & Serv. Admin., supra (“The law seeks to … pre-

serve freedom of choice and preserve competition.”).

The provision of the Anti-Kickback Statute at issue in this

case states:

whoever knowingly and willfully solicits or re-

ceives any remuneration (including any kick-

back, bribe, or rebate) directly or indirectly,

overtly or covertly, in cash or in kind—in re-

turn for referring an individual to a person for

the furnishing or arranging for the furnishing

of any item or service for which payment may

be made in whole or in part under a Federal

No. 14-2607 9

health care program [shall be guilty of a felo-

ny].

42 U.S.C. § 1320a-7b(b)(1)(A). This appeal requires us to in-

terpret the meaning of the term “referring”—which is not

defined in the statute—and specifically to decide whether

Patel referred his patients to Grand each time he signed

Form 485 certifications and recertifications, thereby allowing

Grand to be reimbursed by Medicare for services provided

to those patients.

Patel argues that, in the context of the Anti-Kickback

Statute, the word “refer” means to personally recommend to

a patient that he seek care from a particular entity. In Patel’s

view, a physician does not refer a patient when the patient,

with no input from the physician, independently chooses a

provider. Therefore, because there is no evidence that Patel

ever urged any of his patients to use Grand, he argues that

he cannot be guilty of violating the Statute. 2 The govern-

ment, in contrast, argues for a broader reading of the term

2 Under this theory, Patel would also be innocent of conspiracy to violate

the Anti-Kickback Statute even if he had agreed to be paid in return for

certifications and recertifications, as this would not be a conspiracy to be

paid in return for referrals. However, under Patel’s theory, Patel could

still be guilty of conspiracy if he agreed to be paid in return for recom-

mending his patients to Grand, but never actually carried out this plan.

The district court did not determine whether Patel entered into such an

agreement because the court found Patel guilty of conspiracy for a dif-

ferent reason: certifications and recertifications are referrals, meaning

that Patel manifested his agreement to an illegal conspiracy by accepting

payments in exchange for these certifications. Because we ultimately

agree with the district court’s legal determination, as well as its factual

conclusion that Patel was paid in return for referring patients, we also

agree with the district court’s conclusion on the conspiracy count.

10 No. 14-2607

“refer,” which includes not only a doctor’s recommendation

of a provider, but also a doctor’s authorization of care by a

particular provider. Under this reading, Patel referred his

patients to Grand by signing Form 485 certifications and

recertifications. We agree with the government’s interpreta-

tion.

We review issues of statutory construction de novo. Unit-

ed States v. Berkos, 543 F.3d 392, 396 (7th Cir. 2008). When in-

terpreting the meaning of undefined statutory terms, the

“cardinal rule is that words used in statutes must be given

their ordinary and plain meaning.” Sanders v. Jackson, 209

F.3d 998, 1000 (7th Cir. 2000). To determine the plain mean-

ing of words, we frequently look to dictionary definitions. Id.

We also consider the construction of similar terms in other

statutes, id., as well as the purpose of the statute being inter-

preted. Id. at 1002.

Patel’s central argument is that the most common usage

of “refer” in the medical context is a doctor’s recommenda-

tion that a patient see a particular specialist or provider, and

that this is the behavior that Congress targeted when it en-

acted the Anti-Kickback Statute. Indeed, one dictionary de-

fines “referral” 3 as “the process of directing or redirecting

(as a medical case or a patient) to an appropriate specialist or

agency for definitive treatment.” MERRIAM-WEBSTER

DICTIONARY ONLINE, available at http://www.merriam-

webster.com/medical/referral (last visited February 2, 2015).

3The Statute uses the word “referring,” but both parties frequently dis-

cuss the base form of that verb, “refer,” as well the noun form, “referral.”

We agree with the parties that these terms are interchangeable for the

purposes of our analysis.

No. 14-2607 11

Another defines it as “the directing of a patient, usually by a

general practitioner, to a consultant or institution for special-

ist treatment.” OXFORD ENGLISH DICTIONARY ONLINE, availa-

ble at http://www.oed.com/view/Entry/160858 (last visited

February 2, 2015).

But although Patel’s proposed definition of “referral” is a

common usage of the term, it is not the only common usage.

Often, people use the word “referral” to describe a doctor’s

authorization to receive medical care, even when the doctor

is not the one choosing the provider of that care. For exam-

ple, in Illinois, a physical therapist cannot provide treatment

without a physician’s “referral.” 225 Ill. Comp. Stat.

90/17(1)(V). A “referral,” in turn, is defined as “a written or

oral authorization for physical therapy services for patient by

a physician.” Id. 90/1(6) (emphasis added). Presumably,

many patients in Illinois visit their doctors seeking physical

therapy and with a specific therapist already in mind. In

such a case, the patient does not need a recommendation

from his physician, but still needs a referral—that is, an au-

thorization—before he can be treated by his chosen thera-

pist.

This more expansive definition of “referral” is frequently

used in the medical context. Indeed, in this case, Patel’s own

office often identified a patient as a “new referral” when fax-

ing new patient information to Grand, even though Patel

had played no part in the patient’s selection of Grand.

Courts, including our own, often employ this usage of the

word. See, e.g., Moran v. Rush Prudential HMO, Inc., 230 F.3d

959, 963 (7th Cir. 2000) (ERISA plaintiff sued HMO after

HMO-affiliated primary care physician denied her “request

for [an] out-of-network referral to consult with” a specific

12 No. 14-2607

surgeon chosen by the plaintiff); McElhone v. Sebelius, No. C

12-06090, 2014 WL 1048583, at *2 (N.D. Cal. Mar. 14, 2014)

(“Plaintiff also requested an out-of-network referral to Phys-

iatrist Sherman Tran at Stanford Medical Center.”); Nealy v.

U.S. Healthcare HMO, 711 N.E.2d 621, 622–23 (N.Y. 1999)

(“When Dr. Yung informed him during one or both of these

visits that he should see a cardiologist, Mr. Nealy requested

a referral to Dr. Green … . Dr. Yung allegedly assured his pa-

tient that he would submit a request to U.S. Healthcare to

approve an out-of-plan referral … .”). Patel contends that

these cases 4 do not support the government’s position be-

4 The government argues that our decision in United States v. Polin, 194

F.3d 863 (7th Cir. 1999), forecloses Patel’s proposed definition of “refer-

ring,” but we disagree. According to the government, the word “refer”

should be interpreted broadly because, in Polin, we agreed with the gov-

ernment’s statement that “refer is to recommend, is to turn over, is to

make a selection, is to give the business away.” Id. at 866. For multiple

reasons, we are unpersuaded. First, no part of this expanded definition

clearly encompasses Patel’s actions in this case; rather, they mostly have

to do with recommending that a patient see a particular provider. Sec-

ond, we did not adopt this definition in Polin—we merely said that the

government’s counsel had “aptly summarized” the term. Id. Finally, this

language is taken out of context. In Polin, the defendants had paid mon-

ey to a pacemaker sales representative—a non-physician—in return for

the representative’s referral of patients. Id. at 864. The indictment reflect-

ed the language of § 1320a-7b(b)(2)(A), which criminalizes paying kick-

backs for certain “referrals.” The defendants claimed that they had been

charged under the wrong subsection of the Statute, arguing that only

physicians can make “referrals.” Instead, they argued that they should

have been charged under subsection (B) of the same statute, which crim-

inalizes “recommendations,” which non-doctors can make. We held that

these subsections were not “separate subsections that address ‘different

and non-overlapping’ types of conduct,” and thus that both subsections

could apply to doctors or non-doctors. Id. at 866. In referencing the gov-

ernment’s suggested definition of “referring,” we were merely stating

No. 14-2607 13

cause, in each of them, the physician was involved in the se-

lection of a specific provider prior to treatment, regardless of

who identified the specialist in the first instance. That is fac-

tually incorrect. In each of these cases, the doctor was not

involved in the selection of a provider—the patient inde-

pendently chose a specific provider. All the physician did

was authorize care by the patient’s chosen provider. Patel is

correct that it does not matter who first identifies the care

provider; what matters is whether the doctor facilitates or

authorizes that choice. In each of the above cited cases, the

doctor acted as a gatekeeper—without his approval, the pa-

tient could not receive treatment from the provider the pa-

tient had selected. Exercising this gatekeeping role is one

way that doctors refer their patients to a specific provider.

Both parties point to the definition of “referral” in a re-

lated federal statute, the Stark Act, 42 U.S.C. § 1395nn, for

support. The Stark Act is a civil statute that prohibits refer-

rals of health services for Medicare and Medicaid patients to

entities in which the physician or a member of his family has

a financial interest. It defines “referral” to include “the re-

quest by a physician for a consultation with another physi-

cian” and “the request or establishment of a plan of care by a

physician which includes the provision of [health services].”

Id. § 1395nn(h)(5)(A)–(B). Regulations interpreting that defi-

nition, in turn, define “referral” to include “the request by a

physician for, or ordering of, or the certifying or recertifying of

the need for, any designated health service for which payment

may be made under Medicare Part B.” 42 C.F.R. § 411.351

(emphasis added). Under this definition, Patel’s certifying

that “refer” and “recommend” are synonyms—precisely what Patel ar-

gues in this case.

14 No. 14-2607

and recertifying of patients by signing Form 485s would

seem to constitute referrals. Patel argues, in contrast, that the

Stark Act definition provides support for his reading of the

Anti-Kickback Statute. First, he argues that Congress needed

to expressly define “referral” so broadly in the Stark Act be-

cause the ordinary meaning of the term is much narrower. In

contrast, according to Patel, Congress intended the word to

have its “ordinary,” narrower meaning in the Anti-Kickback

Statute, and therefore did not feel a need to further define

the term. But it is equally possible that Congress defined “re-

ferral” in the Stark Act as it did because Congress believes

that is what the word means. At the very least, the Stark Act

definition suggests that Congress considers the govern-

ment’s broad reading of the term “referral” to be a permissi-

ble one. Patel’s second argument regarding the Stark Act is

that the purpose of that Act supports a broader definition of

“referral,” while the purposes of the Anti-Kickback Statute

do not. He argues that in the context of a self-referral (the

target of the Stark Act), an expansive definition of “referral”

is necessary because a self-referring physician has an ongo-

ing financial interest in the health care provider that treats

the patient. But Patel also had an ongoing financial interest in

the treatment of his patients by Grand—he received a kick-

back for every recertification he signed.

Dictionary definitions and the construction of a related

statute leave us with two plausible readings of the Anti-

Kickback Statute. Upon considering the Statute’s main pur-

poses, however, we are convinced that Congress intended

the Statute to extend to the certification and recertification of

patients for government-reimbursed care. The central pur-

pose of the Statute is to prevent Medicare and Medicaid

fraud. Patel contends that there was no harm to the Medicare

No. 14-2607 15

system in this case, as the government concedes that every

one of his patients that went to Grand actually needed home

health care services. But this is irrelevant 5 to our legal inter-

pretation of the meaning of the statute, because even if the

Medicare system suffered no losses in this instance, the dan-

ger of fraud at the certification and recertification stages is

quite clear. At the certification stage, a physician could re-

fuse to certify a patient to a patient-chosen provider unless

the provider paid the physician a kickback. This behavior

could increase the cost of care. It could also contravene the

second purpose of the Anti-Kickback Statute—protection of

patient choice—by interfering with the patient’s choice if the

selected provider refused to pay.

Or, consider a patient who goes to his physician seeking

authorization to visit a certain provider. If that physician will

receive a kickback for a certification to that provider, he will

have an incentive to certify the patient even if he thinks that

the care is unnecessary or believes that the patient-chosen

provider is substandard. All of these same concerns arise at

the recertification stage as well: a doctor being paid for each

recertification will be incentivized to authorize unnecessary

further care and to ensure that the patient continues to use

the same provider, even if that provider gives poor care.

Additionally, as the district court noted, if Patel is correct

that only steering a patient to a particular provider consti-

tutes a referral, a physician would be free to accept a kick-

back each time he recertified a patient for treatment by a

5 There is no allegation in this case that Grand provided subpar treat-

ment to any patients certified by Patel or that those patients suffered any

tangible harm. This is also irrelevant to our legal determination.

16 No. 14-2607

previously selected home health care provider. This outcome

was recently rejected by the Eleventh Circuit in United States

v. Vernon, 723 F.3d 1234 (11th Cir. 2013). In Vernon, the de-

fendant argued that a patient could not be “referred” to a

provider within the meaning of the Anti-Kickback Statute if

he was already a patient of that provider. The court rejected

this argument, stating that it “would lead to the absurd re-

sult that the first kickback payment for a referral is unlawful,

but future kickback payments for the same patient are law-

ful because they are not for an initial ‘referral.’” Id. at 1256.

Such a result is undesirable because the possibility of a kick-

back for each recertification incentivizes the physician to

keep recertifying, even if further treatment is unnecessary or

if treatment by a different provider would be in the patient’s

best interest. Patel argues that Vernon is distinguishable from

this case because the patients in Vernon did not choose or

even know the identity of their provider. Thus it was the de-

fendant, a “patient advocate,” who continued to choose

where to fill her clients’ prescriptions whenever she filled a

prescription at the pharmacy paying her kickbacks. Patel ar-

gues that he, in contrast, played no role in his patients’ initial

selection of Grand or their decision to continue using Grand.

True, but Patel chose whether his patients could go to Grand

at all, which we think is just as important. Patel acted as a

gatekeeper to federally-reimbursed care. Without his per-

mission, his patients’ independent choices were meaningless.

Regardless, Patel’s proposed distinction from Vernon does

not eliminate the absurdity that can result from his proposed

definition. Even if the patient makes the initial choice of a

provider, a physician could take advantage of his power to

veto that choice at the certification or recertification stage,

harming Medicare, the patient, or both.

No. 14-2607 17

These concerns persuade us that, in passing the Anti-

Kickback Statute, Congress intended to criminalize the re-

ceipt of kickbacks in return for a physician’s certification or

recertification, through a signed Form 485, that a patient re-

quires Medicare-reimbursed care. The word “referral” is

commonly used—including by Congress in the Stark Act—

in a way that extends to such authorizations. Moreover, a

narrow definition of the term would defeat the central pur-

poses of the Anti-Kickback Statute.

Patel offers a number of other arguments in favor of his

proposed reading of the Statute, none of which we find con-

vincing. First, he points out that the word “referring” must

be read in the context of the rest of the statutory subsection,

which criminalizes the solicitation or receipt of a bribe in re-

turn for “referring [a patient] to a person” for medical care. 42

U.S.C. § 1320a-7b(b)(1)(A) (emphasis added). This, he ar-

gues, indicates that Congress meant to address only situa-

tions in which a doctor recommends a specific provider, not

a situation where the patient independently chooses a pro-

vider after the physician issues a generic order for treatment.

But this is beside the point—Patel was not convicted for

writing a generic order. Rather, he was convicted because he

authorized his patients’ treatment by a specific provider—the

Form 485s signed by Patel specified Grand as his patients’

caregiver and recipient of Medicare funds. Whether these

actions were referrals is a separate question from whether

they were referrals to a person. And the fact that Patel’s pa-

tients independently chose the “person” from whom they

wanted services does not mean that Patel’s subsequent certi-

fications, assuming they were referrals, were not referrals to

that person.

18 No. 14-2607

Patel’s next argument is that it makes no sense to call a

certification a “referral” when it is made weeks after the pa-

tient began receiving treatment from the selected provider,

as occurred in this case. This scenario, however, makes sense

once one considers the main purpose of the Anti-Kickback

Statute—to prevent kickbacks from influencing the provi-

sion of services that are charged to Medicare. It stands to rea-

son that the Statute should apply to the actions—certification

and recertification—which directly allow Medicare to be

charged. Even if treatment has begun, a doctor deciding

whether to sign a Form 485 wields just as much power over

Medicare costs and his patients’ health as a doctor deciding

where to direct his patient.

As the district court noted, Patel “was a financial gate-

keeper as well as a medical one”:

Defendant’s patients could not initiate or con-

tinue treatment from Grand on their own;

without Defendant’s authorization and certifi-

cation, the patients could not receive treatment

from Grand, regardless of their preferences.

Even if Defendant had nothing to do with a pa-

tient’s decision to choose Grand in the first in-

stance, his signature on the Medicare-required

forms not only confirmed the patient’s decision

to go to Grand but also placed his imprimatur

on the need for services that would be billed to

and paid for by Medicare.

United States v. Patel, 17 F. Supp. 3d 814, 827 (N.D. Ill. 2014).

Given these considerations, it is irrelevant that Patel’s pa-

tients received treatment from Grand before he signed their

Form 485s. Even though care had begun, Grand could not

No. 14-2607 19

have charged Medicare for that care prior to receiving a

signed Form. The referral process, as far as Medicare is con-

cerned, continues until the Form is signed. Patel could have

withheld his signature in an attempt to extort larger pay-

ments from Grand. In fact, it seems that Patel once threat-

ened to do just that when Encinares lacked the money to pay

him. If Patel had decided not to sign the forms, Grand could

not have billed Medicare. In other words, the prospect of a

kickback gave Patel an increased incentive to charge Medi-

care for these services—exactly the type of incentive that

Congress sought to eliminate by passing the Anti-Kickback

Statute.

Patel also argues that the government’s broad definition

of “referring” would effectively eliminate the word from the

Statute. Under the government’s interpretation, he argues, it

would be illegal for a physician to receive any remuneration

from a person who treats the physician’s patients because the

government’s interpretation allows a doctor to be prosecuted

even when he does not direct a patient to go to the provider

making the payment. For example, Patel claims, a doctor

could be convicted if he is paid to give a speech at a hospital

and some of his patients are later treated by that hospital. 6

6 In Patel’s example, the doctor also “compliments the hospital in the

speech.” We assume Patel included this detail to suggest that the pa-

tients in the hypothetical choose to go to the hospital because of the doc-

tor’s compliments—in other words, because the doctor, in a way, rec-

ommended the hospital to his patients. However, Patel’s argument is

that we are reading the word “referring” out of the Statute completely. If

he is right, it should not matter whether the doctor recommends the

hospital to his patients or not. As we explain above, the doctor in Patel’s

hypothetical cannot be convicted whether he affirmatively directs his

20 No. 14-2607

This argument, however, completely overlooks the Statute’s

requirement that a kickback be paid “in return for” a refer-

ral. § 1320a-7b(b)(1)(A). Payments made for legitimate ser-

vices (such as giving a speech) cannot be construed as an il-

legal kickback. Borrasi, 639 F.3d at 780–81. Patel’s argument

simply has nothing to do with the scope of the term “refer-

ring.” The doctor in Patel’s hypothetical neither recommend-

ed the hospital to his patients nor acted as a gatekeeper for

his patients’ care there. The construction of “referring” that

we adopt here, in contrast, requires the doctor to do some-

thing that either directs a patient to a particular provider or

allows the patient to receive care from that provider. And

even if the doctor in Patel’s hypothetical had steered his pa-

tients to the hospital, the doctor could not be prosecuted be-

cause he was not paid “in return for” referrals.

Patel’s final argument is that the meaning of “referring”

in the Anti-Kickback Statute is ambiguous, and thus should

be interpreted in his favor under the rule of lenity. The Su-

preme Court has recently stated that the rule of lenity ap-

plies only if, “after considering text, structure, history, and

purpose, there remains a grievous ambiguity or uncertainty

in the statute such that the Court must simply guess as to

what Congress intended.” Maracich v. Spears, 133 S. Ct. 2191,

2209 (2013) (citation and internal quotation marks omitted).

The rule does not apply merely because a “statute’s text, tak-

en alone, permits a narrower construction.” Abramski v. Unit-

ed States, 134 S. Ct. 2259, 2272 n.10 (2014). No grievous ambi-

guity exists here. The definition of “referral” put forth by the

government is in common usage, including by Congress it-

patients to the hospital, merely compliments the hospital in a speech, or

does nothing at all that causes his patients to use the hospital.

No. 14-2607 21

self. Most importantly, we think that Congress intended for

the Statute to apply to certifications and recertifications for

Medicare-reimbursed care. To hold otherwise would defeat

Congress’s purpose in passing the statute.

Moreover, the purposes underlying the rule of lenity do

not justify the rule’s application here. “Application of the

rule of lenity ensures that criminal statutes will provide fair

warning concerning conduct rendered illegal … .” Liparota v.

United States, 471 U.S. 419, 427 (1985). Patel argues that

adopting the government’s definition of “referral” will lead

to the prosecution of many unsuspecting physicians and will

lead others to fear that their actions are possibly illegal. This

argument, though, is tied up with Patel’s mistaken belief

that, if we affirm, doctors will be exposed to prosecution

when their patients use a provider from whom the physician

has previously received a legitimate payment. As described

above, however, this concern is overblown. In fact, the gov-

ernment’s definition only exposes doctors to liability for a

clearly delineated set of actions—receiving or soliciting

kickbacks in return for directing a patient to a provider, or

for certifying or recertifying patients for Medicare-

reimbursed care. Patel’s nervous behavior suggests he knew

that these actions were illegal. Other doctors should know

that this behavior is illegal as well—the Department of

Health and Human Services issued a Special Fraud Alert to

the health care provider community twenty years ago stating

that “[p]ayment of a fee to a physician for each plan of care

certified by the physician on behalf of the home health agen-

cy” is a form of illegal kickback. Home Health Fraud, and

Fraud and Abuse in the Provision of Medical Supplies to

Nursing Facilities, 60 Fed. Reg. 40,847, 40,848 (Aug. 10,

1995). The Department noted that such kickbacks threaten

22 No. 14-2607

patients’ freedom of choice and increase the cost of care—

precisely the reasons that we hold certifications and recertifi-

cations are “referrals” under the Anti-Kickback Statute.

B. Sufficiency of the Evidence

Finally, Patel argues that, even if he “referred” his pa-

tients to Grand when he signed their Form 485s, there was

insufficient evidence to demonstrate that he received money

from Grand in return for signing those forms, as required by

the statute. Rather, Patel argues, Grand paid Patel to induce

him to recommend to his patients that they choose Grand as

their home health care provider. In other words, Patel says

that he was paid for one type of referral (a recommendation),

but gave Grand an entirely different type (a certification); he

thus was not paid “in return for” the referral he actually

gave. According to Patel, the government needed to prove

beyond a reasonable doubt that Patel was paid in return for

his signature on the Form 485s, and it has failed to do so.

And although Patel admits he was paid at the same time that

he gave the signed forms to Encinares, and the payment

amount was perfectly correlated with the number and type

of forms, he claims that this was a mere convenience—the

forms functioned as a proxy for actual recommendations

made by Patel to his patients.

In reviewing the sufficiency of the evidence, we consider

the evidence “in the light most favorable to the government,

drawing all reasonable inferences in the government’s fa-

vor.” United States v. Lee, 558 F.3d 638, 641 (7th Cir. 2009). We

overturn a conviction based on insufficient evidence “only if

the record is devoid of evidence from which a reasonable

jury could find guilt beyond a reasonable doubt.” United

No. 14-2607 23

States v. Johnson, 729 F.3d 710, 714 (7th Cir. 2013) (citation and

internal quotation marks omitted).

Even accepting Patel’s premise that the government had

to prove he was paid specifically for his signatures, there

was sufficient evidence such that a reasonable factfinder

could conclude that Grand paid him for that reason. The

payments were literally exchanged for these signatures and

the payment amount was calculated based on the number

and type of Patel’s authorizations. Based on this evidence, a

reasonable factfinder could conclude that the payments were

made in return for the signatures. More importantly, the fact

that Patel was paid for recertifications—in addition to initial

certifications—strongly suggests that Grand was paying him

for his signatures, not for patient recommendations. If Grand

wanted to pay Patel for recommendations, why pay him for

both certifications and recertifications? Any payment due for

a recommendation could be fully paid upon certification;

recertified patients, by definition, were not new patients that

Patel had recommended to Grand. Presumably, Grand paid

Patel for recertifications because his signatures on those

forms were an added bonus to the company—Grand paid

Patel so that he would allow his patients to continue using

Grand.

Patel also suggests that he should not have been convict-

ed because he would have signed the certification forms

with or without the promise of kickbacks. This, however, is

irrelevant. The Anti-Kickback Statute prohibits a doctor from

receiving kickbacks that are made in return for a referral. It

does not require that the referral be made in return for a

kickback. A reasonable factfinder could conclude that Patel

“willfully and knowingly” received a kickback paid by

24 No. 14-2607

Grand because Patel gave Grand referrals; that was all the

government needed to prove.

III. Conclusion

We AFFIRM the judgment of the district court.