Seventh Circuit Upholds Medicare Kickback Conviction

An appellate panel confirmed the findings of a federal jury on Monday, in a case accusing defendant Jacqueline Tuanqui of Medicare fraud. The defendant was charged with stealing money from the government in violation of several Medicare statutes in 2017. In 2019, a federal jury convicted Tuanqui of all ten counts, some of which were shared with co-defendants, and the court sentenced her to a total of 36 months in prison.

The defendant appealed five counts of her conviction arguing that “no rational jury could have concluded that her fixed monthly payments to a recruiter constituted illegal per-patient referral fees.” In a four-page opinion, the appellate court dismissed these contentions, holding that the jury was not required to find that Tuanqui made kickback payments on a per-patient basis.

The case arose from payments made by a home-healthcare business Tuanqui owned and operated from 2008 to 2015, which earned $12.4 million, about 90% of which was derived from Medicare claims. The federal government charged Tuanqui and several of her employees with conspiracy to commit healthcare fraud, violate the Medicare Anti-Kickback Statute, as well as substantive violations of the anti-kickback law.

At trial, after the government’s case in chief, the defendant moved for a judgment of acquittal on all counts. The court denied the motion, finding that the evidence presented was sufficient to sustain convictions. The jury returned a guilty verdict on all counts. The defendant subsequently challenged aspects of the evidence and trial, but to no avail.

In her appeal, the defendant argued that the denial of her post-trial motion for a judgment of acquittal as to the five counts against herself and co-defendant Susie Avellanosa, was improper on the basis that the government’s evidence was legally insufficient. Specifically, the defendant argued that because she paid Avellanosa a flat fee for Medicare referrals twice monthly, regardless of how many referrals Avellanosa returned, the payment did not meet the criteria for a kickback under the Anti-Kickback Statute. In other words, because the payment was not paid on a per-patient basis, it was legal.

The panel disagreed. It held that not only did the government “tell the jury that Tuanqui paid Avellanosa an illegal kickback in the form of a fixed bimonthly payment…  as a matter of law, paying for patient referrals violates the Anti-Kickback Statute regardless of how the payments are structured.” Because the counts were supported by “ample” evidence and because Tuanqui’s other arguments were “without merit,” the panel affirmed the federal conviction.

The defendant is represented by Clark Hill and the Law Office of Timothy J. Fiscella. The U.S. is represented by the Department of Justice and the United States Attorney’s Office.