United States v. Kamal Patel, 2015 U.S. App. LEXIS 2099

Dr. Kamal Patel, a primary-care physician, regularly certified/recertified patients for Medicare-paid home health services by signing Medicare Form 485; some patients independently selected Grand Home Health Care ("Grand").
Grand’s owners paid Patel cash (~$400 for initial admissions, $300 for recertifications) and sometimes reduced a loan balance, and tracked payments in notebooks; payments were exchanged when Patel signed Form 485s.
Grand often began care before Patel’s signature but could not bill Medicare without the signed Form 485; Patel sometimes delayed signing until payment was brought.
Federal prosecutors charged Patel with six substantive violations and one conspiracy count under the Anti‑Kickback Statute, 42 U.S.C. § 1320a‑7b(b)(1)(A); after a bench trial the district court convicted and sentenced him.
On appeal Patel argued (1) signing Form 485s is not a “referral” under the statute because he did not recommend Grand to patients, and (2) evidence was insufficient to prove payments were made “in return for” those signatures.

Issue	Plaintiff's Argument (Patel)	Defendant's Argument (Government)	Held
Whether a physician’s certification/recertification (signing Form 485) constitutes a “referral” under the Anti‑Kickback Statute	"Refer" means a physician personally recommends or steers a patient to a particular provider; Patel did not do so here	"Refer" includes authorizing or certifying care by a specified provider (gatekeeping role); signing Form 485 that identifies provider qualifies as a referral	Court adopted government’s broader meaning: certification/recertification that enables Medicare billing is a "referral"
Sufficiency of evidence that payments were made “in return for” referrals (signatures)	Payments were for recommendations, not for the later signatures; forms were a convenient proxy and Patel would have signed anyway	Payments were exchanged at the time of signatures, amounts correlated to initial vs recertification forms, and recertification payments show payment was for signatures/authorization	Evidence sufficient: reasonable factfinder could infer payments were made in return for certifications/recertifications

United States v. Borrasi, 639 F.3d 774 (7th Cir.) (Anti‑Kickback Statute protects Medicare from increased costs and self‑interested provider decisions)
Moran v. Rush Prudential HMO, 230 F.3d 959 (7th Cir.) (physician authorization functions as a referral/gatekeeping act)
United States v. Polin, 194 F.3d 863 (7th Cir.) (discussion of "refer" and related statutory subsections in context of kickback prosecutions)
United States v. Vernon, 723 F.3d 1234 (11th Cir.) (rejecting argument that only initial referrals count for Anti‑Kickback liability)
Maracich v. Spears, 133 S. Ct. 2191 (Sup. Ct.) (rule of lenity applies only where grievous ambiguity remains)
Abramski v. United States, 134 S. Ct. 2259 (Sup. Ct.) (lenity not applied where narrower constructions are available)
Liparota v. United States, 471 U.S. 419 (Sup. Ct.) (purpose of rule of lenity: fair warning in criminal statutes)