eat into my time i want to make sure that it's clear that this is a case not about health care so this is a home post agency that went through a paper audit there's no allegation of the doctor's claims there's none of  the services that were provided guys why i'm wondering i'm just a little bit confused about given that home health care services provide like therapists the nurses and so forth that have to be certified by a doctor as we heard just just  this last case how can they know that the person isn't in need of home health care if they're going relying on a doctor's certification well so so i think it's important to look at this case in the context of when the services were provided we're talking about two hundred million six hundred and twenty two thousand and nine this was at a time before medicare regulations in sort of the manuals had changed and involved actually a friendly question i'm trying to understand how paul valley health care is supposed to know that the doctor certification is wrong i don't know how there is to supposed in this i don't even understand this whole set up the assuming that we don't have fraud collusion kickbacks and all the stuff that was argued in the last case how does it make sense that the doctor certify someone home valley provides a service but then medicare it can come back later and undercut what the doctor did i mean is that what happened here are my misunderstanding i'm just i'm a little bit confused about the overview to get picture of this that's not supposed to happen is that what happened here but that's what what happened here and so going back to what i what i was saying about two thousand and six to two thousand and nine what was supposed to happen is that the z pig health and integrity was supposed to come in an audit palm valley's paper audit their medical records prepared by the nurses that go out into the home contemporaneous with the services that it linder to audit the the records and then decide whether or not pum ballina conditions of payment based on the documentation what happened here though was not only was there a paper audit but then above and beyond the contractor sent out individuals into beneficiaries homes years after the fact and we're topping about older folks we're talking about people that are in the eight and ninety's sent out investigators after reviewing the documentation sent them out to interview these beneficiaries interview their they're there they're their families and then determine based on where they're supposed to talk to when your you with these interviews are relevant and i agree they might not carry the day they might not in and of themselves be enough but you go talk to the patients say what do you remember about five years ago i mean it's certainly relevant whether it's you know you might be able to impeach it or cast doubt upon it how's that to actually go ask the person who is getting the services what was going on five or six years ago what was your condition what did you what were you doing every day so on the monday the things that  that i want to want to clarify for the court here is that this was supposed to be a paper audit i understand if there's an allegation of fraud on or stay in it sort of there is some kind of issue that additional resources of the government have to be spent to send out contractors into the field that's not some supposed to happen and that was most hardened i mean you're saying the government can't send out people to further investigate were no i'm not saying that at all if there is in a reason or a justification or a basis for that the government may very well do that in a support heard there are investigations where patients are interviewed and that is take into to some sort of interesting one  when the government there could have said no we don't want to look at this criminally but we're going to do a medicare could do a civil audit and investigated that way so i mean just because there wasn't a criminal prosecution here doesn't mean the government can investigate whether there's problematic can you know your liberty is not at stake so the protections aren't as great is there that's always the case and from over civil procedure yes i understand but what you have in effect is an interview that's conducted outside of the scope of the medical records and then that interview  is the sort of the the dialogue that is controlled by trying to understand something more fundamental i i completely understand the concept that they can do an investigation particularly if there is a concern about fraud and maybe can uncover a fraud but assuming argue en that's not the situation here because nobody's said it is then i don't understand why the home health care entity cannot simply rely on a doctor's before eighty five the certification saying miss x needs four weeks of two times a week leg therapy and you take that document and you send your nurse and your nurse documents i went twice a week for four weeks to ms x s house and i gave her the leg therapy that's your paper audit if that part is true the nurse provided the service how can it be palm house fault that the doctor was wrong and actually she couldn't come into the office if she tried harder that's the part i'm trying to understand that may be just totally me but i don't get the big picture here because it seems like you have to get a doctor certification why can't you rely on that what am i missing right you have to get a doctor certification i don't know that there's anything amiss here other than this this audit and the way that this overpayment assessment was made was outside and above and beyond what should've happened which which is you have a proper doctor certification you have medical records and then are reviewed and that determine work conditions of payment met and that's not what happened here what happened here was health integrity went outside of the doctor's medical decision authority outside what was in the records when and conduct an independent investigation that you really don't have an op an opportunity to add to to challenge and they determine an overpayment not based on some sort of what was supposed to happen which is  you don't have an opportunity in any way shape or form to go back and say wait a minute how did you why did you go back to this eighty nine year old person and ask him two years later if they could drive of course they're going to see that they can drive with the documentation of a valid doctor's order and the documentation supports that and in fact in most of the homebound denials that were made by the by the government here the beneficiary the beneficiary was properly certified bought by the doctor to qualified  investigator not looking at the proper certification not looking at what medical records held because they did that above and beyond investigation and were able to use that evidence that that because they have to rely on the doctor and but if they can't rely on the doctor because medicare could come in five years later and undercut that i don't understand how the home health care karajan seeking work maybe i'm just a that's why i'm maybe missing a major point here and that's the way that it is this wasn't really addressed in the briefing and it bothered me because i felt like we talk about whether there's evidence that and this person says i was fine well that is some evidence that they were fine but i'm moving back to say why is the home health care person liable for the doctor's misunderstanding of their own patient that's what i'm trying to understand what am i missing there your honor i did that and that is i think exactly the problem with these cases that palm valley is not expected do you are way low noise out of our this court on these very issues on the billing issues where the home health care people didn't play cards with the patients but didn't give they recognize the patient didn't need what the doctor certified  and they keep showing up even though they knew there was nothing wrong with the patient that's not what happened here but in response to judge change quests there are cases where they have but this that's not happening that's a different question sure if i show up and somebody just finished their marathon and i'm supposed to be giving them therapy because they're homebound i would have a problem with that i get that but it's butt out but do we have that here i mean this is what i'm supposed to we don't have fraud we don't have collusion we don't have it so what do we have the government what the the way it's supposed to work is you have a health care provider submit their medical records and the pay your they're not supposed to say well the patient was that the medical decision was wrong what what the payer says is based on the documentation you didn't meet our conditions of pain we don't see that use you met this in this in this and in the records as we see from you we decide not to pay that claim the pay you were the government is not all over payments going here's a whole administrative apparatus to deal with over alleged over payments for medicare there's no intent requirement and there's no right you know to show fraudulent and on the provider medicare providers are and it doesn't have to be home health care i mean if  hospital medicare decides that a hospital was unnecessarily doing x rays on people or m r i zone people there's this whole administrative from that that this whole apparatus exist you don't like the result in this case but that this apparatus exist to decide when there's overpayment in which doesn't require a finding of fraudulent intent right but hospital could have done all these m r i and if five years later medicare comes in and shows those weren't those were necessary we know some doctor at the hospital obviously order i but that was not necessary that that hospital would have to pay back medicare right and that's the way it works and one of the reasons upon mally has decided to pursue this appeal is because this audit kill company so this is a twelve million dollars payment the way that home health care works is you have episodic payments so it's paid for two months of care average amount of payment is about three thousand dollars i notice your honor i heard earlier in your honor saying the home health is more expensive but it's not because it takes the place of an institutional setting of care or takes the place of the patient going to the doctor going to the doctor two or three times a week into you have a nurse come in for twenty dollars twenty five dollars a pop you have a nurse come in and care of the patient and keep them out of the hospital and so anyway the point is is that you have two months of parents paid on that set so i'm pushing procedure in many places online or on was is there i know at the end of the day medicare wants this big repayment from you your client is are they sticking we're koopman because i think all the the pro pieces you cite with due process where there's been problems with due process because of delays in the perceiving it looks to me like they're all recoupment cases where the government's not just saying at the end of the day you owe us x one million dollars but they're actually withholding they're taking away from your current billings and giving holding money you might otherwise be entitled to is the recoupment aspect to this case or is the government just asking at the end of this whole proceeding if they when you write us a check there is a recruitment aspect to this case have you have to sort of render care to the community in order to exist in the st place as a medicare certified health care provider so i think they are operational but i think they're serving the patient too just to stay alive but but going to your point about do due process one of the one of the issues brought before the court is and i realize that i'm out i'm in a time but the district court went to the district court had found escalation is not a proper sort of to the violation those cases are parties currently in agency proceedings that are seeking in the agency proceedings to either compel an immediate hearing or to have her koopman temporarily suspended before they get an able ga hearing that's quite different from what plaintiffs are doing here which is after having five levels of administrative review and raising nothing to call into question the reliability of that review or seeking to have an overpayment termination permanently set aside merely because statutory deadlines were violated and that's not doesn't look like a due process clause claim that this court has recognized and indeed this court has made clear as other courts have that there's no procedural due process clause claim from the mere violation of a statutory deadline  agree with ms martin that this is not a case involving fraud or collusion or kickbacks or anything that we heard in the prior case the allegations of parking also didn't make any such finding your honor ok and the point that the judge owen referenced of knowledge by the home healthcare provider that the person was actually running marathons are fine any indication of that well i think so you're on a middle hurting there are thousands i don't want to go that far but to go to your earlier concern about how a home health agency is supposed to know this is a continuing relationship your honor home help periods are sixty days and then there's research occasion for further days and of course palm valley was audited in the st place by medicare because they ranked number one in the state of texas for continuous episodes of home health care treatment they had five or more what until you have a demented patient living at home who refuses to move into assisted living or some other place and isn't able to travel on his own and so on and so forth and so they provide therapy and the person gets a little bit better they stop the therapy gets bad starts falling again so they they provide the therapy again and so on and so forth and you can have are calling people because of bad and i think that that goes to the thoroughness of the council's discussion here your honor the counsel looked at the start of care for the beneficiary they looked at the whole health care episode immediately preceding the one that was always been looked at the one that was audited in they took into account the fishier interviews and those asked about the dates in question in addition to looking at the beneficiary now which is still relevant given that as your honour's mentioned st case a lot of these conditions or degenerative and the beneficiary interviews although not the only thing relied on by the council certainly were relevant to the undercurrent of they did know that these people did not need a home health care is that really the answer to my question about how this works because it's it's it's complicated in my view that you all can just come back after the fact require doctor medicare statute which provides for waivers a lower payment to terminations if the provider could not reasonably have known that the services were provided ok that was the statute that was invoked by the th circuit in the caring hearts decision that the appellant's rely on your hon and so if this some states like that exist there is a statute that recognizes exactly you know that's the answer is you need to show you didn't know and then reasonably could well have known your honor couldn't have known perhaps in this case because it's all a gray area i mean you would have to admit this this definition of homebound lends itself to some gray areas it does your honor in this it's not you know takes a village it's it it lends itself to some great years here and i think in this case because this is an administrative proceeding there's of course the substantial evidence standard and the council of payment of the question is whether the payments are reasonable and necessary under the medicare statute it's plain to spurn to demonstrate that they know when they signed up for medicare that this is part of the deal they may be subject to an overpayment proceeding yes your honor and of course congress has explicitly allowed medicare to give these overpayment determination they were challenging the substandard of determination as they have in this court i guess that i was just been trying to understand over human thank you for helping me with that certainly i'm happy to direct the rest of my presentation any other specific questions of the court may have the countess opinion here is eighty six pages long it's quite thorough and the district court looked at that thoroughly so i don't have anything further unless the court has any specific questions thank you thank you very much substantiate that that it sort of met the can conditions of payment and that it should have been paid and again in two thousand and six to two thousand and nine in this goes to the caring hearts the decision was that it was supposed to show was a valid d cert certification and then evidence that the patient exhibited a condition that made it hard to leave the home and these other additives of of considerable taxing effort and inability to leave the home those were not mandatory requirements at the time now they became mandatory requirements but by the time the council made their decision in the medicare benefit policy manual but at the time two thousand and six to two thousand and nine what was required was a valid doctor's certification and palm valley's notes must have shown that condition that made it hard for the patient to leave the home and in the decisions that we have from the council that go to homebound status there's not one instance where that medical condition was not shown it's that the zeke then went above and beyond outside of of the record so to speak to conduct these these these interviews and find additional evidence  obligations that has to follow a doctor's order when a doctor let's say from from a hospital st patient to a home home health palm valley then can't say we'll make you know dr you're wrong the patient is not home bound they don't need home home health care that's not the therefore are you can waive the overpayment so the doctor could have been wrong but you had no reason to question that or not know that was wrong and therefore you would still get paid how come you live in a circuit i'm i believe that we did raise that argument may not have been to to this court but we did raise that argument in from just from my experience with palm valley in the in the other cases that deal with those once an overpayment is determined it's hard for provider to show then then that they really didn't know or they didn't have reason to know that the certain services were medically unnecessary once an overpayment is determined it's almost sort of a well you have no payment you must have known she should have kno resources to go interview these people and their families and so i encounter the interview to me and they get in a five to extract why they had individual cases and you all your client could have gone back and presented different evidence it would seem to me sampling and saying it's invalid because in it we can show it because we are interviews of these people show something different than the after the fact interviews that were conducted here and your honor i think that what what happened in this case was the documentation was strong at least strong enough in home values mind to show that one there was a valid doctor's order into that the patient possess just somebody could actually write in the file the patient possesses this and follows doesn't mean that that's happening on the ground in the government certainly has a right and i hope as a taxpayer they do to do spot checks and so i or these people is just what's really happening and if there's a discrepancy as to what's in the written record based on what people are telling them then somebody needs a hearing in that what you got your client so one week we have a doctor that really verifies that the patient is homebound and has this medical condition so it's not just the home we don't always know that that's accurate and it's possible that the doctor document doctor be shining it it's possible that the record could be overstating it there's an audit and the audit says it's overstated this patient is not as bad off as the doctor and your record reflect it seems to you still have the opportunity to prove no our records work wrecked by strong interviews or the patient patient sampling and that's what well some and that's what paul malley tried tried to argue is that are are records made contemporaneous with the care are are correct and they stand on those records and unknown individuals going out into the can community questioning medicare beneficiaries about their their benefits that is not in any way shape or form sort of calendar to the record we have your argument thank you