morning judges good morning counsel the st case up this morning is nineteen dash two thousand two hundred and eleven advantageous community versus king counsel please prepared to argue counsel good morning we're and i'll just read you a little bit of plus or the documents were modified to show the bigger filing or other essential elements which was i would say i was state but the individual plaintiffs in this case their plaintiffs in this case were not sued how can they bring a malicious prosecution case when they weren't part of the probe the prosecution a don't we exactly because it was emotional i you know i see lots of arguments in the briefs but i don't see much in the complaint that gives much detail about the damage to the reputation and you know we've got to newspaper articles it says three but in my copy at least one of them just in there twice the same article but if you look at those articles they don't even name the individual plain fs and they they they actually are very negative towards the state about the probably the case so i have a hard time seeing how that is damage to reputation clearly established law that withholding of medicare caid reimbursement is a seizure you agree with no what they did was they actually went back with h no no no no no i'm asking i'm asking about the law is the law clearly established there isn't and i think what happened i'm asking about the district court's holding there's no as this is the court has this court ever recognized that there can be a th amendment malicious prosecution based on seizure of property you know i'm sorry i letters that are sent out on a routine basis by the department of health or human services department of the state of new mexico so what they did was like the data the names of the people the dates and the content of the information spread sheet  investigator for the attorney general's office went to the health and human services health suman services department and and they printed those using the xcel spreadsheet they were not copies of the original letters and so when the administration changed the letter had changed and i would point out that that letter had still has the state in new mexico seal state of new mexico and over on the left hand side in small thought is the new governor's name partly for the state of new mexico the assistant attorney general at the time when these documents were printed which i would point out was well over a year after the suit was brought by the assistant attorney general for the state of new mexico david hughes that gentleman did a fifteen month investigation after having a referral from the human services department and found that there are violations of the medical the medic brought act and that the us that the provider advantageous community services had failed to provide the documentation required under the contract that they signed with the human services division saying that the providers that they had and the criminal background history checks in place in other words it was the duty under the contract or adventure just to provide the state with that  required notice and under the medicaid fraud act to the individual cell l so given that that would be a technical violation of contract how does that become  for the billing you did where the service is actually provided as asserted is in other words is the fraud based purely on this what i will call technicality for our purposes or it was a rather assertion of fraud then that in and of itself well it was it was a broader assertion your honor and the reason the reason i say that is because in the deposition of david use your turn who actually filed this case and did the scene months worth of the best occasion he noted that and i'm a point out it's really important note that the letters that mr sanders and pages point out as the basis for the for the allegation of maliciousness by the state didn't even exist they did they were actually printed more than a year later by the investigator as the case was provided the letters and so i understand i understand but my question is let's say we didn't that's correct in terms of the violation of contract but is that the sole assertion of fraud d or was or were the services in fact not provided in fact your honor that the services may have been provided the department of health was finding and in analyzing that work and and hearing and and discussing the complaints against had been take years at the department of health level that advantages that missed appointments adventitious had  employees that had not met their qualifications required for these respite services because these are the most of all our boat people in the medicaid process people who absolutely have no way of determining whether or not they're being abused and so those complaints along with the fact that advantages had not produced the letters to the state under the contract in the end that they had violated some of the other provisions of the contract which are basically that they they had proper training that they did their people they missed appointments that's why the lawsuit was brought there were fifteen months actually three and three and three quarter years  department was vetting and looking over the shoulder of the state of new mexico because of medicaid fraud and new mexico was under the gun to continue to maintain its own medicaid programs and he during the discovery process how do you respond to advantages as argument that once once the altered letters did surface that the action was that the administration changed on the letterhead she was upset that they didn't properly look at the letters before they were dropped trying to be used in a deposition and i would point out that the assistant attorney general for the state in mexico immediately would through those letters never referred to them again the plaintiff's counsel brought this to judge here ling in judge ruling because of the power of the of the state obviously in bringing these kinds of cases dismissed the case outright instead advantages the state felt that that was an unusual unusually harsh action by the district court judge they just report judge and in fact appeal was really well basically went to the court of appeals to say the court of appeals what we would rather see has we'll throw this evidence out will be well will prove the violation of the medicaid fraud act by actual testimony the people who drafted the letters and certainly those people were still working at that time for state government they could have been brought on and testify in the words about that letter being drafted and sent ages so there was ample evidence available for the case to continue and for those letters to be thrown out as a matter of fact they were never ever referred to it by state counsel they were obviously thrown away and recognized as being printed from an excel spreadsheet that was decided the case was brought against us and so that case was appealed in separately to the new mexico court of appeals and that appeal was up at the parallel but the decision of behavioral health that would impact the in that case that the state was bringing against advantages was actually decided month after i believe it's three weeks a the contagiousness case was decided by the court of appeal so it was not settled law in new mexico that you could bill for services provided by a respite care provider that hadn't didn't have a hearing the case against adventitious so it didn't exist the law was unsettled as a matter of fact judge bashing our district court judge here in this case in her findings of fact in one of the summary judg order basically stated that this was a novel issue that it was an issue of st impression and that it occurred a month after the case ermey judge your wings ruling against the state was actually hurt so it wasn't such a law in new mexico the state had ample opportunity to continue its case and the evidence was still there and available by use of individuals to prove that the criminal history background check documents were not filed in a proper manner in compliance with medicaid fraud that's a good the district court and on the discovery issue the role fifty six the issue by failing to take proper account the declaration that was filed in support of the motion your honor not i think that this is really a false argument if one looks at the the actual docket filings in the in the federal court case you'll see that the advantageous file the letter three days before the summ judgment motion was actually decided by the by the used by the federalist court judge during that time period we filed our motion for summary judgment almost a year before judge the ashing ruled that we were granted summary judgment during that entire year plus all the months that were used prior to that time period advantages was given more than twenty thousand pages of documents as for former employees the state employees that i was bending had no access to the state's computers no access to their files we were given with the documents that we turned over district court judge granted the summary judgment right issue december judgment right that's correct that's correct they had they had that twelve months from january until december last at least another twelve months prior to that to conduct discovery didn't even issue rd party discovery subpoenas until late in that last twelve month period they issued yesterday had an extension until december dollars right that's correct your honor so they weren't out of time they could still done that but for the ruling that cut off the discovery period that have been granted by the magistrates meets a little confusing in the record what happened because the district court doesn't even mention the magistrate's order extending discovery and and the magistrate was very specific in that time period for the summary judgment motion with that was pending the district magistrate judge order numerous depositions and numerous documents to be turned over which was so there was a lot of additional discovery that was actually in the hands of advantages in that twelve month period so it was a bit like they didn't have any documents and didn't get anything they had copious information on this case and there were no smoking there was nothing left for them to see the state agencies that they subpoenaed argued that there was absolutely no ishall documentation available to them judge lester i have a follow up and the district court in its order indicates that advantage did not submit any affidavit or declaration in conjunction with its response nor did it make any effort to comply maybe that the court is confused here about what advantages actually did your honor i don't think they were confused at all i think the court recognized through the magistrate's order that there had been this enormous amount of discovery given and there were and there was no documentation that would show that they had any ability to identify any additional documents both the department of health and the a g s office  judge basically decided that there being no additional documentation and there being no affidavit describing with any specificity what so ever what additional documentation could possibly prove advantages this case as you argue it occurs to me why are we merely litigating at the federal level issues that have already been litigated the highest court st