two issues one would be the issue of materiality whether or not we adequately pled the element of him of materiality in the false claims context in pleading we filed the st of many completing and the nd would be whether or not if if i if i'm incorrect in that in the court finds that i've not adequately pled that that i should be granted leave to amend so as to permit me to do so or to permit me the opportunity to do so  and i would show how that would be the judge's ruling that the judge ruled on that that that i that was a no an amendment would be futile and i would like to show where that is not the case when we filed the statement of facts that presents a claim that is plausible on its face since it also dealt with fraud i should do so with particularity which i also did i included in there what i thought  sufficient elements of each of the four elements of the false claims act including materiality primarily that the issue was that these case management targeted case management activities were being conducted by people who were not minimally qualified to do so under the laws and statutes and regulations of the state of mississippi and that that had a direct bearing on what they should be  now it also goes to the fact that case management and i know that there is some disagreement about this book case management i believe forms an essential element of the contract here what the state of mississippi did is the state of mississippi stepped outside and and abrogated its responsibilities to the the medicaid the poor completely to these two companies so there is a do up of enjoy do up if you are a i if you are a poor person in mississippi if you from a mile drive if you're a poor person in mississippi and you need any case management only two places you could go to get it and that was either magno you health care or united health care mississippi and during a period of time the people that were furnishing that to you which you didn't have a choice about who you got it from were given  t were not qualified to give it now the case management the requirement to be an aryan as opposed to an lpn is a material one both with respect to payment and with respect provision that or are federal so i see a far or something that mandates that are in perform those risks and not aware of any federal mandate that does that your honor so where i we're talking only about compliance with mississippi statutory authority in the discharge of these duties yes or ok in fact let me address that directly i furnished to the court in a route twenty eight j letter  action which i think is is dispositive on this case on what it does we don't have to question yourself about whether the court would opine whether it's material to comply with the state statute own the minimum qualifications for the the case manager we have this instance where the case mad in missouri the the health and human services oh i g linn and call back money asking us to take judicial notice of that yes yes they call back money from the th case management because it did not comply with the state case not only was the contract continued after this was brought to the government's attention but then it was renewed yes they seem inconsistent to me is there a particular reason why i think serious want to miss in mississippi case when it was unsealed my client was working at united health care miss of mississippi and when it was unsealed and this fraudulent practice was exposed the practices instantly stopped evidence of continued payment becomes it transforms from evidence of him materiality into evidence of strong materiality when it's when what happens is when the when the practice is exposed they change their practices to get back in compliance with the state law and that's why the and and and so if it causes a change in their conduct and i think that's that take take so one of my weaknesses and turns it into my strings were federal government has shown by its action not an opinion but by its action that it considers violations of the state law of import in producing in providing these services to state recipients to be so material that it him the the other thing that i think gives us value is is the very essence of this contract is case management now no they've said a lot of things about about other aspects of their relative aspects of the contract and that's true but when someone goes on medicaid the st thing that happens the very st contact is a phone call it's an initial phone call from the case manager in which the case manager conducts an interview in the interview with the interview dice is it it sets forth the plan of what we're going to do from that point forward how you feeling trouble breathing what kind of  pressure and whatever your ailment and the case manager at that point in time initially undergoes a series of planning and diagnoses and trying to get on a course that maybe they send him to this doctor and this doctor but that's how the that's how the hope process begins is that case management and if someone is they are that it does not have sufficient critical thinking skills so as to to do that then so that's one i think is part of the essence of the contract that that goes to and secondly with respect to the minimum that the qualifications the licensing requirements the least did it sures someone that i have at least done certain things to i have the minimum qualification to be in a log in allows me to charge commensurate with that it has a direct relation to to to money paid if i'm not if i don't have such a degree and i misrepresent myself as the people did here to have such a degree then the money i receive from that you make it so common sense arguments i can't say they're foreign to the court but nonetheless what seems to be relevant is what did the government think was material not what you can convince us are good analogies so you're indicating now some things outside the record that might indicate at the federal government to do these things to be material what is in this record now to support that these were material failures to comply with their obligations i have nothing in  go start replacing facts and proof i guess i'm an overall you know i'm used to play now a geisha and and then having discovery and have the opportunity to discover things like that  i can't be at both sides at one time there was an act there is an action that we took in sending those two letters there are some some inferences that can be drawn but the inference is that are drawn that the that the lower court drew and that this court is asking whether it can draw perhaps our inferences that are in favor of the defendant not in favor of the plain under the presence of the  the facts that are plea and the inference is that to be drawn from those facts should be viewed in the light most favorable to the plaintiffs not unlike most favored to defendant and if as here there are other explanations and i have suggested possible other explanations for the continued payment for these services then i think i should be entitled to explore that so in your remaining time i see you running a little bit short here why don't you cover the issue of whether what would you what would you put in an amendment yes or to overcome the futility of fighting for that to me and if i would permit it to me and i would do what i did in the other one that got passed a motion to dismiss on this issue i would include the violations of the statutes the violations of the regulations the violations of the of the letter agreement from the the nurse's  run sealed and i would then include the attach as an exhibit proofs actual evidence which is not something i'm not used to doing what would be the the they report from  and for the activities that are addition is case there is not one contract doesn't require it that we went through a little while ago so you're saying that his pleading is based on no obligation by statu regulation contract but not in the bible and no there's nothing that will support this that's exactly right the contract is a two hundred dollars page plus contra the case management section constitutes five pages of that contract and in that section of the services as coordination of care primarily administrative in nature and in the case measured section the contract for example doesn't mention the word nursing it doesn't mention the word nursing assessment doesn't mention the word diagnosis it's all administrative is ministre of coordination of care type services there's simply no requirement a contract that a case manager be a registered nurse or any kind of nurse for that matter the federal regulation says that case managers must it must have qualifications that are reasonably related to the to the population they're serving the missouri oh i g opinion that was provided on monday of this week close to federal regulation to say just that what's important about them in missouri oh i ga report is and that record the orgy found that missouri had violated its own state plan that set out requirements for case managers it up plan not just the state plan not statute or regulation the state plan and then that now is the staffing practice that you all employee or have employed relative to this k i don't know if it's the same or not we covered a little bit of that when your opponent was  at the podium but how is the use of the l p n's us case manager is not a violation of the mississippi statutes of the state board of nursing standards well a couple things there's no link between our contract in the section the contract states that the case manager will do a health risk assessment and it says that the purpose of that health risk assessment is to determine what the care management or case management needs are for the patient the same section of that contract states that the treatment plan for the patient must be done by the other members primary care physician in other words the case manager isn't doing the treatment plant the doctor has the section says that in the contract and so but the  of the phrase health risk assessment and then assumes or imposes that to mean the same assessment is stated in the nursing board statute the regulations that's the only link the contract doesn't doesn't say anything about nursing is a case where you say that's not really a term of art  industry term it's just a term that is being associated with two different duties that's right that's right and so the case management function in the contract is is not associated with the nursing boars the sta regulations i would i would submit to you that even if it were the nursing board does not require case managers to have an orange license or degree the nursing board doesn't specify any specific educational requirements for case managers it's just education and heat and we're lately using the term right now case management and is what's going on with magnolias usually lp and does it fit within what the statute requires orange to do by whatever label impose requirements on nurses on the level of knowledge they must have for nursing treatment clinical nurse in treatment there is no clinical nursing treatment under this contract these are accord nadirs of care and administrative they call in and make sure the patients got an appointment scheduled or they make sure that the patient follows up when they're supposed to it's a cord nation of care and so the problem here is the link between the case management as contemplated by the contract is not made except for b exhibits and they claim they claim that the district court erred by not looking at those exhibits but one of those exhibits exhibit in in the in the record is magnolia's in rowley handbook the plaintiff has pled that in the in rowley handbook  magnolia says our case managers are ends or social workers the plaintiff has said that that handbook in his right is submitted to the division of courts ever allowed to be published back in when the contract started and also that the  handbook has to be approved every year before it's published again to the members what that tells us is magnolia told the division of medicaid way back in two thousand and ten that they were going to use someone other than aryans for case management  social worker and so we know that the division is known from the very start that we weren't using just nurses for us of course social workers have no medical training social workers don't treat patients manically they don't do any kind of nursing assessment or materiality got lost in the shuffle the motion to dismiss in that case was on every element or at least three of the four elements of a false claims that case judge grows gave about two sentences of analysis to the materiality contradicted by the contradict djoser then it by contrast rejected some of those claims and because they were directly contrary contradicted by the plain language of the contract the plaintiff attached to the complaint and so for those reasons  i don't know that that case is misguided as to us and in this one i would say that the most most important thing here for this case is that plaintiff has pled to the division of medicaid was notified twice in two thousand and eleven by letter of noise alleged misrepresentations separately they inform the federal government and played in their complaint that they gave the government enough information and documents and material evidence to do a thorough and and quick investigation i think the government's view on materiality is telling what they think about those alleged misrepresentation and how that goes materiality is evidenced by their response their response was to continue paying hundreds of millions of dollars under the contract via the cap rate and to reward the contract now three times including in two thousand and seventeen again to magnolia the contract language for case management doesn't change there's no requirement for nursing services there's no requirement for nursing functions or clinical treatment of the case managers i think that's telling to our case today we know that the federal government doesn't doesn't impose a requirement for case managers to be aryans we know that from the federal regulations that are cited in the missouri opinion that say there are no specific requirements for education or license of case managers just that they have to be reasonably related their experience has to be recently related to the populations they're serving we also  federal government would think this is material in mississippi the use of bill p and his case managers while simultaneously allowing europeans to treat to be case managers in other states those two things just just are difficult to materiality in this case escobar gave us not dispositive factors one was an express condition of payments not present in this case or no express condition of payment one was the government's consistent refusal to pay that's not present in this case we know the government has has paid since two thousand and ten for this service by all peons and continues to do so today we know the federal government has indorsed that because they're paying in other states for lp in this case managers  by the same token as guard tells us that where the government regularly plays claims despite knowledge of the alleged misrepresentations is strong evidence of the materiality that's where we are in this case the government's  thousand and ten they were notified of this in two thousand and eleven and every year since then they have the enrollee handbook but we tell them specifically where we may use social workers i e not nurses not not clinical staff to do the job and they continue to pay and continue to reward the contract i would the minute just eleven more quick point on the actual contract it's important to note that no your is is  an administrator of the state medicaid program and that they administer the coverage services which is a defined term in the contract a medicaid enrollees cover services are delineated in the contract and according to the plan isn't in the complaint they're the primarily clinical in nature things you would think of with your normal insurance company makes a decision but within it the contract would make no is that the legislature is that the division of medication not welcome to the decision about whether or not to contract with magnolia who makes that claims are submitted it's a capitated model where magnolia receives a set fee on a per member per month basis for every member they sign up so for example if if i were a magnolia member they may receive one hundred dollars for me as a because the idea that this case management function would be so material or so so central that it forms the essence of the bargain for the entire contract is just not supported in handed down in june of two thousand and sixteen the complaint was not served until june of two thousand and seventeen there was no request for leave to in the end in those eleven minutes much to replete escobar secondly  you would go against both those cautions the record is bare and mr walker said so just now the record is bears of support for materiality judge and rightly found that what we're left in with is a garden variety br contract case that quite frankly would not survive a motion to dismiss under contract law because of the plain language of the contract and then to allow this case to go forward on the record the court has before today would essentially be allowing bit all contracts and this i'm reading from a grave all contracts include a delicate language in respect to sections dealing with the division divisions to mislead vision of medicaid policies and procedures which quote the contractor shall comply with all the political policies and procedures of division specifically including without limitation all policies and procedures applicable to each category of covered service for the mis camp program which are covered by the state plan all of which are hereby cooperated by reference then it goes further to say this the contractor shall maintain at all times during the term of this contract adequate staffing sufficient to serve the needs of enrollees as specified in this contract rip rip proposal and in accordance with both appropriate standards of post passionately and self pressure to care and then finally with respect to case management it says this medical management staffing shall be at a level that is sufficient to  that's a specific reference to do case management mississippian rowley's needs i think it's in its help him the one who is going to be giving the case management on behalf of the state of mississippi not of it that's like we can't make any since we've got to kept a right we does that mean the way they structure their contract means i can't see them for fraud they can get away with fraud of course not and also we have to apply escobar a the good we have to apply escobar to this case another controlling case and it does seem to me escobar coming off a costa talking about language similar to what you're discussing and the mere fact that the government might be able to refuse to pay for saying isn't controlling it's whether they do we've used to pay because of violations of certain terms and and the provisions where we are all pleading is for you to show us something in any case it's more than just speculation that the so this minimum licensing requirement and minimum education is so fundamental to the provision of of medical services that it must be material that we found is material and  that's what i would rely upon there in a in a in addition you know i say the the the notion that they can that they can perform these services for a large portion of the people in this is zippy and not comply with mississippi law is just is just about that's committing fraud and sick when somebody calls you on the telephone this is going to happen more mourners call what this could be more telling nursing is going to be more telep doctoring there's going to be more things there is and as these towns continue these problems are going to grow more and more and more when that person picks up that phone they have no way of knowing what education that person has they have no way of knowing what degrees they have they assume that they since they are visited with the authority of the state that they at least care the minimum qualifications of a state employee would do that and say well it's timely it ball and oh by the way in one particular statutory cause of action called the false claims act and with one particular element of that the element of materiality we've got to we've got to start proving we've got get proof we've got good evidence and we've got to get all this other stuff and that's why i think that this is the syria law is so confusing both to the circuits and to the district court and to the practitioners quite f