of presentment here which is really where the the district court below focused its dismissal order on but before i dive into the details of that i just want to take a moment to briefly talk about the general nature of the allegations here which is the scheme alleged by dr been an asset is that trinity health vastly overpaid five particular physicians and the result of that was that these physicians made on lawful referrals to the trinity health system there were some unnecessary surgeries that resulted in that trinity health submitted claims to the government associated with these referrals that's the general gist of government as this court knows from the scruby and they are decisions that the standard in this circuit is that you know order to allege resentment sufficiently under rule nine be related needs to either submitted and that's our argument here is that the st of many complaint provides sufficient allegations to allow the court to infer that claims were actually submitted and in particular trinity health received approximately one hundred and fifty million dollars a year from medicare and that that constituted twenty eight to twenty nine percent of the revenues in the trinity health system you know and i submit to this court that it allied on the fact that in the sixteen years they had sixteen years of fraudulent transactions of course they had they presented claims to the government i think we said that was that was insufficient to responses to that your honor one our claim is factually different and distinct delegations are distinct and also at the time joe she was decided that this court had not decided that they are and so joe she very clearly says that the complaint there fails because there were alleging years and years where every five transaction was fraudulent is not sufficient no i'm not saying that of course one point that's what you just said of course but that's that's absolutely a misinterpretation of their because they are couldn't roll that i agree with that  acknowledges what happened there was that they are essentially surveyed the decisions around the country and obviously judgement as well familiar with ruby having been the author of it but having surveyed the decisions around the country concluded that there is a way to successfully meet the ninety standard that is not just representative examples they are is not setting out of rule with an exception it's saying that there are different ways to get to the same place and to get back to your question just looking about joshi there's also a factual distinction there that applies to scruby as well that's essential here which is that in bo ruby and in joshi felt that the underlying theory of falsity right depended to some degree on what the bills actually said what the statements of the government w be the issue was that these particular breathing treatments that were being provided were being provided by people who are entitled to a higher reimbursement rate when they were lower their individual be able to provide the treatments at a lower rate and so in order for that theory to get all the way through to prove a claim you would need to know what the actual bills said right what was actually submitted to the government here are theory of falsity is is much more categorical in that it doesn't you don't know about the aig claim or the plan and i'm not a claim i thought your yeah well that it's not more categorical it can't be  claims it can be i disagree with that your honor in the sense that you can make a hit we're talking about the present ministry issue right and the question i don't know what you mean when you say present  where we're dealing with whether you whether you the complaint pled that there was a claim made to the governor and so again to get back to my point and call or otherwise are made by a phone call or otherwise exactly in our allegation here is that every claim for services that's associated with the referral came from these particular doctors is tainted because it's a patient of the stark statute or the anti kickback law that's our theory of falsity at the present main argument is that trinity receives so much money from the government i understand all that and there's no specificity and whatsoever i don't i don't know what when it gives for to the government for services referred by the five doctors identified in our complaint you know that's a no one hundred univers why this plane of if he had the years of experience that we're talking about why he couldn't make the basic contents of particular claims dancer's he doesn't have access to the billing department he was a trauma surgeon i don't we know well you can say that he didn't allege that but we certainly allege what is the nature of his even though it wasn't in joshi because now we have there it's not a requirement in this court that you play to represent example is clearly what the financial arrangements don't qualify for the safe harbor under either star or the anti kickback law and that's i struggle with how that's enough well i think one could look at the decisions decision which was trinity cites to repeatedly it's enough because what dr nasa has alleged is certainly enough to establish that the compensation was well outside of fair market value and that takes the compensation for these five individuals that are specifically identified that takes that financial arrangement out of the safe harbor and we provide allegations both of their salary and we provide allegations about what a benchmark is we have national survey regarding the benchmark salaries for these particular specialties and we're able to allege that every one of these five doctors is beyond the th percentile of those and some of them are almost twice allowed what would be the safe harbor what would allow them to stay there but a bona fide employment arrangement is an exception to the stark rule and anti kickback law and so you're just it's still just sounds like a very general inference i don't think so we're specifically alleging what these doctors were paid as well as what the benchmark is for what they should have been paid and that there were paid grossly beyond and even beyond and i would also say your honor that with regard to your concern that the complaint is insufficiently precise we also support that with very specific allegations of the sort of surgeries which are the logical consequence of the compensation scheme that we allege was that just a one doctor  little bit of time for rebuttal thank you identified any representative examples of claims he says barring that the task goes to has he plaid reliable and disha but note that that's only part of what they are says they are says that  amount of total reimbursement that trinity receives from medicare in a particular year and then a five the percentage of trinity's total revenues that that come from from medicare and then he says that the scheme affects every claim for payment and so and so that should be enough but that basically boils down to what he's alleging as well trinity participates in medicare and because they participate in medicare surely they would reimbursement that trinity may have received from medicare has nothing to do with the five physicians who he alleges in this case that the trinity over ever paid the fact the trinity may have received one hundred million dollars or whatever indication that that physician even treated many medicare patients the case that we believe is best for us on this point and the standard that we would ask this court to apply is that they are case in allegations that the clinic itself that submitted fast claims to the government she also made allegations that patients from her clinic went and received services from hospitals and that those hospitals al alleged relating to planned parenthood clinics even though she couldn't identify a representative example claim the fair court still held that as the as the manager of the related to that hospitals may have submitted false claims because she didn't have any personal firsthand knowledge about how hospitals so net claims she didn't have access to the hospitals billing system she didn't have knowledge about how the hospitals submitted claims so how would a doctor in this situation do that who e if the plan or not let's assume doesn't have access to the billing system that structure is doing the medical side of it how could how could a doctor submit enough in a complaint to meet that pleading standard a good example of that your honor would be that the  dicken minnesota district court case that applied they are there later and that can was also a physician the district court in that case found that the doctor had plaid reliable and disha because in his he plaid that he had had conversations with the office manager of the particular health care facility and that he had talked to other administrators and based on those conversations had knowledge as to how the hospital submit a claim so the answer would be if a physician or whoever the relator is isn't able to identify representative example claims they would still have to gather some information about what the health care  i'm not aware i can't cite to the case when the government joins the suit as the federal government the government obviously has access to all of the claims that a particular provider may have plaid and so just as a practical matter in an intervening fast claims that case it's much easier for the united states to satisfy the nine b pleading burden than it is for reuter as the case law has developed there are reasons for that the courts have held that for a later to come into court where they haven't suffered any injury in fact if they're going to get to come into court and get to maintain a fast claims act lawsuit on behalf of the government they have to be satisfied that the government has been harmed or injured in some way by identifying an example claim or pleading by some they have to meet the notice requirements of rule nine b maybe they don't the united states yes the united states is and what has put the fanfare notice that's right so it's not just hey we got here's a record showing that this and that he says has submitted claims that's right and there are numerous cases where defendants have challenge that the government hasn't adequately plat the fraud scheme but it is easier for the government to satisfy the submission of claims requirement given that they that they have possession of the claims i want to note for the court that it's not just me that has did not put a plea the submission of claims to the government he hasn't sufficiently plaid an underlying fraud scheme oh yes some allegations of how can you say there's not a scheme your honor we say that there's not a scheme because ninety nine eternity every year has to list its top five highest compensated so physicians so why is it that doctor been asa believes just these five physicians were over ever compensated it's also not enough for him to just plead the amount of compensation that they are saying and to say that's higher than and then other physicians on on average receipt without providing some more factual cont mainly how much did these physicians work his allegation is that trinity was paying physicians for their referrals i think you would acknowledge that it's perfectly fine for trinity to pay physicians that fair market value for the services they provided we don't know anything about what services did these doctors provide it was a very specific complaint has a very specific allegations about different procedures and were different procedures used which obviously gets a higher prospective payment under some of these systems you know that's the i think that's theoretically possible well compared to strictly so we got the facts here strobe he says at least it's comes individuals at the health care company who directed the breathing treatments he plaid statements the relator is put statements by the supervisors that that changes were being made with these brain breathing treatments so that they could be billed at higher rate stripy also allege that management instructed them to build these breathing treatments for thirty minutes those are the facts that are lacking here as it relates to the underlying fraud scheme you have any of those details no names of anyone in hospital management happens to be the statute of limitations under the claims act there's no indication of if there is a scheme when did the scheme start that these five physicians actually even work at the hospital over over this entire period of time is is lacking in there and then is in those details and i'm happy to address any other questions from from from this court but if there are nine what we would ask is that this court affirm dismissal of the underlying court's decision not only because it fails to plead the submission of fast claims but also because it has an adequately plaid any underlying fraud scheme thank you thank you know you're on i now want to talk briefly about their addiction case which counsel referred to and there the court ultimately was satisfied that the allegations met nine b because the doctor who was there  later had conferred with other doctors to understand what the particular coding was that they were putting in each bill so the doctor there was able to allege here's the i c d nine code in the seat p t code that goes in each and every know on the basis of that the court said well that's enough you've done enough to represent to me that you have some personal knowledge about the way that these that these treatments were built but what  isn't in dick and what the relator there did not have was any personal knowledge about how those bills were then transmitted to the government in that sense it's no different than the case here because the case was not appealed i'm assuming that's correct i think you're right it's a different court decision not gonna go and so in that sense they can in this case are similar in that the relator is able to allege all of the knowledge that is required to falls and that's what the court was looking at and can now just briefly counsel referred to the fact that the doctors at issue in this case the compensation appears on the form nine hundred and ninety to the extent that he's suggesting that there's some type of slippery slope argument here some concern that just anybody could come in and make these kinds of allegations and give themselves a false claim t complaint that that's actually really something that is provided for in the public disclosure bar of the false claims act the false claims act has a very specific provision that says you can't just come in and make an allegation based on things that are in the public record you got to have something beyond that they have not advanced that argument in their motion to dismiss so presumably if they had if they thought they had that was a legitimate argument they would have thank you anderson thank