Expanding Anti-Kickback Liability to Third-Party Marketers: United States v. Anderson

Introduction

The Court of Appeals for the Eleventh Circuit’s decision in United States v. Nelly Anderson (11th Cir. Jan. 3, 2025) tackles two interlocking questions of federal criminal law: first, what circumstantial and direct evidence is necessary to sustain a conspiracy conviction under 18 U.S.C. § 371; and second, whether the federal Anti-Kickback statute, 42 U.S.C. § 1320a-7b(b)(2)(A), reaches payments to non-provider agents who refer Medicare patients. The defendant, Nelly Anderson, was a principal owner and officer of Dial 4 Care, a home-health provider reimbursed by Medicare. A federal grand jury indicted her for (1) conspiracy to defraud the United States and pay kickbacks, (2) two substantive counts of paying kickbacks, and (3) two counts of falsifying records. Following a jury verdict convicting her on the conspiracy and kickback counts (and acquitting her on the record-tampering counts), Anderson challenged the sufficiency of the evidence on appeal. The Eleventh Circuit affirmed, holding that ample evidence supported both the conspiracy and substantive Anti-Kickback convictions.

Summary of the Judgment

The Court’s per curiam opinion affirmed Anderson’s convictions on Counts 1 (conspiracy to defraud and pay kickbacks), 2 and 3 (substantive Anti-Kickback violations). Key holdings include:

• The government presented sufficient direct and circumstantial proof of a kickback agreement between Anderson and her third-party marketers.
• Under the Anti-Kickback statute, “any person” includes non-provider marketers; recruiting Medicare patients in exchange for fixed referral fees constitutes illegal “remuneration” to induce referrals.
• Evidentiary sufficiency is judged by viewing all evidence in the light most favorable to the verdict and allowing any reasonable inference to support guilty findings.

The court rejected Anderson’s arguments that no formal agreement existed and that the statute did not apply to non-provider referral agents. Her convictions on Counts 4 and 5 (falsification of records) were already reversed by acquittal, and her sentence—38 months’ imprisonment—was not challenged on appeal.

Analysis

1. Precedents Cited

• United States v. Wilson, 788 F.3d 1298 (11th Cir. 2015): Established the de novo standard for reviewing sufficiency-of-evidence, viewing evidence in the light most favorable to the verdict.
• United States v. Gonzalez, 834 F.3d 1206 (11th Cir. 2016): Defined elements for § 371 conspiracy convictions—agreement, knowing participation, overt act.
• United States v. Toler, 144 F.3d 1423 (11th Cir. 1998): Held that conspiracies need not be formal; circumstantial proof of a “meeting of the minds” suffices.
• United States v. Sosa, 777 F.3d 1279 (11th Cir. 2015): Clarified that a defendant need not know every detail—only the essential nature of the conspiracy.
• United States v. Vernon, 723 F.3d 1234 (11th Cir. 2013): Interpreted the Anti-Kickback statute broadly to cover commission-style payments to third parties.
• United States v. Young, 108 F.4th 1307 (11th Cir. 2024): Reinforced that the statute applies even when the payor or payee is not a licensed prescriber or provider.

2. Legal Reasoning

The court’s reasoning unfolds in two parallel tracks:

1. Conspiracy (§ 371)
   • Agreement: Testimony from marketer Denisse Hanley established an understanding that Dial 4 Care would pay fixed, per-patient fees in exchange for referring Medicare patients—despite a sham hourly-rate contract.
   • Participation: Anderson hired, supervised, and directed the marketers’ invoicing practices; she signed the checks and instructed Hanley on how to manipulate recorded hours to conceal the true kickback nature.
   • Overt Acts: Each referral invoice and corresponding check qualified as overt acts in furtherance of the scheme.
2. Substantive Anti-Kickback Violations
   • “Remuneration” Element: The per-patient fees ($300–$500) paid to marketers plainly fell within “any remuneration, including any kickback.”
   • “Any Person”: The court rejected the narrow view that only licensed providers qualify; third-party marketers are “any person” under the statute.
   • Inducement: Hanley recruited exclusively Medicare patients and would not have been paid if services were refused or terminated, demonstrating a direct inducement to refer.
   • Willfulness: Anderson’s instructions to alter invoices upon government inquiry showed her deliberate effort to obscure unlawful payments.

3. Impact

This ruling carries significant implications:

• It cements that the Anti-Kickback statute’s reach extends beyond licensed professionals to any agent or marketer whose compensation is tied to federal health-care referrals.
• It underscores courts’ willingness to sustain conspiracy convictions on circumstantial evidence of informal agreements and routine business documents.
• Health-care entities and their third-party contractors must reassess marketing-fee arrangements to ensure compliance or risk criminal exposure.
• Future litigants will find the Eleventh Circuit’s articulation of sufficiency standards a robust template for challenging or defending conspiracy and kickback charges.

Complex Concepts Simplified

• Conspiracy to Defraud (18 U.S.C. § 371): An agreement between two or more people to commit an unlawful act—no formal contract is required; a “meeting of the minds” inferred from actions suffices.
• Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)(2)(A)): Prohibits knowingly offering or paying any money or other benefit to induce referrals for services paid by Medicare/Medicaid. The term “any person” covers all actors, not just providers.
• Circumstantial Evidence: Indirect proof, such as patterns of invoices and checks, that a fact exists. If a jury can reasonably infer guilt from such evidence, it meets the sufficiency threshold.
• Willfulness: A conscious, deliberate intent to break the law. Altering invoices to hide improper payments is strong proof of willful misconduct.

Conclusion

United States v. Anderson solidifies a broad interpretation of federal anti-kickback and conspiracy laws. It reaffirms that criminal liability can attach when non-provider agents receive referral-based compensation, and that juries may infer informal agreements from consistent business practices and documentary evidence. Entities operating in the Medicare and Medicaid environment must scrutinize marketing and referral payments to avoid the pitfalls this precedent illuminates.