your honors i represented a judge short a person who made every effort to develop a legitimate marketing business and her activities were  gentleman and should not be found to have been illegal under the anti kickback statute saw i have two arguments to make and i made the man trial aventura what she did was not illegal and if someone were to think it was illegal then they should and i violate the statute which requires an element of because it's both complex and it's broad so mr cliff ellie i can understand that people in general might not might not understand why the anti kickback law forbids paying per patient referral but i thought it's george did even testify that she got five hundred dollars every time a patient she referred was dimiter readmitted and i also would like you to address the fact that even though other people may be in the chain there might need to be a doctor to certify that's not enough to relieve somebody of their responsibility under the law if you're lucky your honor i don't think the law is that clear certainly miles the miles case which i would like to talk about a little bit later they were seated right now three hundred dollars per patient it's and you know this is not just about the amount of the remuneration because that could always be adjusted civil lady during an audit it's about should she have gotten paid or not and both agents testified that her services were arrested she stated that she began receiving pain and simply asked you now in around november twenty seventh and that she was paid five hundred per patient and that she realize that it was illegal to be paid per patient and that alone it would seem would be sufficient the pole of the conspiracy conviction i mean what's the trial court wrong both miles and the patel case from this circuit have a statement which is what is the purpose of the anti kickback statutes and according to both of those  cases the purpose is to ensure that the doctor uses independent judgments and they have to pay patient care is not for my just now the patel decision goes a little further but the focus is on the doctor the doctor is in control and is in control because they certify so freston sympathy tell the doctor got paid for his examinations and all the legitimate things it dead and which led to a certification of medicare services and then got paid five hundred dollars i think per patient just because of the referral when my client didn't get paid have they may have benefits which they can claim how many of them went to other doctors or other service providers who knows well my dear but mind you that's not what she got indicted for though the mail appeared ninety came to her she spoke with up she probably spoke to a lot more but ninety she felt qualified elderly and were home by out so she refers them to rise nerd roger sun's out of doctor and on fifty five of the ninety only sixty one percent the doctor agreed and certified sult clearly she is not the relevant decision maker because the doctors acted independently and the people even though she is recommending just like the premier people dead in miles recommended this service provider they could have gone anywhere once they got the doctor's prescription not let me address the judge or road nurse comment about she admitted there's four important events here months later she sees this book on line and she sends an e mail saying she is concerned then starting in march of twelve the cooperator start recording her and he waits all the way until july thirteenth to say why do you want checks while a person that willfully wants to violate a statute they don't accept checks and you won't find another case in the system were kicked that are paid by checks only in this case so she contract it's legal so then on a week later she goes there again and he says well did you consider what i said about taking checks in addition to cash if you want to you know you're leaving  paper trail do you wanna still take checks and she says yes i want checks her last three payments were checks now a week later she was arrested and they say to her did you know that it was illegal to be paid  patient while her nell had just told her it was illegal to be paid by per patient july thirteenth he comes right out and tells or sheesh the question is did she know it was illegal to be paid per patient which i arguments right in the district judge doesn't buy them one of the employee right the other is the under served areas but that there's no evidence that they've actually jumped at the hoops to be in under served area all with the language for her referrals clearly was not based on value which is what happened in vernon when they got to the patient advocate got the percentage and didn't do anything to earn it just like in legitimate work and earned her five hundred now where in the statute that it's does it say you can be paid per patient as long as you're providing real services per patient to be the safe harbor well most first of all services safe harbor the contract which was written by raj nurse director of marketing who did not appear as a witness even though he had those plea agreements and could have said well you know she is the only one they had this contract she is your only one that got paid by check and the check stubs which were found in raj ners offices said business promotion marketing expense so how could a nap be a legitimate cost of doing business well again she's being paid by the patient i'm looking at the medically underserved safe harbor and maybe she could have produced step maybe there was evidence that this was a federally qualified health center but that's a specific statutory thing and i don't see where this is a personal service contract that does not take into account their advertising agencies it was sacked in advance it was fixed it was fair market value which is what one of the e mail sat by her now this is what all the agencies pay and who is going to pay somebody for her son on mailers and talking to people that never produces a client's lebia like paying a salesman for showing up who doesn't sound the cars no one is going to do it it's a piecemeal business and that and how can you make a crime based on how the remuneration was calculated the real question is should they have gotten any overall it narrowed and the people are kind of making miles and run with it and soon it comes along it's definitely on our own you know that's too much we are right we are right there with miles the only thing is might client spoke with the patients were the miles people spoke with the physicians but both of them are before any sort of the cations and they don't impact or influence the doctor's  you can't get paper patients she says well you're sending me mixed signals well what does that mean xcept you're talking you're giving me double talk first you tell me it's legal it's can be nice or tell me it's not legal is that really is that she made the admission and the admission only goes back to july thirteenth prior to that she was never asked in april and not and may of two thousand and twelve when you were charged did you believe it was illegal she now that her actions were lawful he had been that he was working you know acting on behalf of the government at some point similar do you think to the safe house robbery cases where crime is manufactured or at least they are rather than avoid it no your honor i don't think it's like  in march two thousand and seven about the concerns she had developed about the legality of their conduct and up until that time i think would be difficult for the government to show that she was acting willfully in that particular period the problem the conduct was a beagle and she continued to do it nonetheless and she was continued to do this when the government began reporting in march two thousand and twelve and she continued to try to accept this money into expect this money even after that july thirteenth two thousand and twelve reporting now defense counsel misrepresented some of the backs of that she lied twenty thirteenth two thousand and twelve recording she said that the defendant wanted that the discussion was about how the defendant wanted all the payments in cash i'm sorry that she wanted the payments and checks and that she talked about that in the recording the recording transcript is actually very different she says when referring to the payments that it could all be in cash and that she wanted the payments in cash to just that both sides knew that what they were doing was illegal and then she continued nonetheless that wasn't the last recording there were additional courting as usual discussion of the receiving payments on a per patient basis for the patient should refer so the chronology is very different than what defense counsel present represented and it shows that in that even if she did not act will believe in that early time period two thousand and ten early two thousand and eleven she was acting willfully by the time of each of the counts of conviction and if she knew what she was doing she was acting willfully by late twenty seven onwards so in terms of the miles case  about that case i think there are some key distinctions again between what was going on miles and what was happening here now the majlis case first of all that involved a marketing company this simply showed up to doctors offices and dropped out advertising brochures about about the services of the home hoping to see it was marketing on behalf of so so i take it it's the government's position that she got paid some number some amount of money per year for scouring doctors offices or dropping off brochures about their agency in the population this zip code or whatever that all would have been fine  think it would be much more like what happened in the miles case that the morally just simply advertise it to idiots but rather than what about though i mean how how literally does the government take this notion that there can't be consideration of the volume of patients or the volume of users of the home health service or what have you anything really i mean anything at all related to volume like yes your your advertising efforts were worth it because we're starting to get some interest and you know what well i think under the miles decision the volume it's it is not so much the volume is the volume tied to the referrals that's right so payments don't violate the act because all they're doing is giving the materials to the doctors and connecting the doctors and the agency when the doctors reach out right yes in the miles case the doctor was the one who made the decision oh my patient might benefit from home health services oh i will send them to this agency that i just received a brochure of so why wasn't that very close to what happened here ninety people after she scoured through them show up the doctors don't just rubberstamp it the doctors could have said to people out of the ninety or good candidates for the services that this company provided because there's two there's not just one decision at play here the first decision and the one the defendant did have control over is which agency the patient go to in the first place this is not a situation where the defendant talked to the patient but talking to her doctor about whether home health services would be useful if you consider rosner this was a case where as we just saw from the one patient testify at trial the defendant got the patient's name the defendant made a choice about which he just see to send the patien know which agency was going to come she didn't make a decision about this so the defendant was the one who made the decision first decision about which agency would get the pace and that agency then got the doctor to sign off on the whole health services that wanted paid for that's a different issue but the issue that she had been but if she had been paid by the patient made some level i feel so we're talking about these elderly homebound maybe partially suffering from her own doctor that if patients have doctors patients should be trying to medical professionals to make these decisions based on the best interest of the patient they shouldn't the whole the point into kickbacks statute is to protect don't know your honor it depends on how the what the doctor relationship with the patient is and how it's funded and what kind of time pressure is put on the doctor and so on and you're offering a model of counseling that say that if whoever the referring person is the doctor the physician's assistant kind of a freelancer a bike is george is getting people to go based on money versus based on medical needs then incentives are out of line we want people to get effective medical care now this may be a very romantic view of the way the medical profession works these days but i thought that was the notion that you didn't want doctors saying you know i'm taking i'm referring you here because i'm going to get a kickback whether it's for physical therapy or whether it's for home health care or whether it's for anything else you want the doctor to be deciding on the merits and th tool that the government has adopted yes rather  point defendant counsel talked about how the compensation that defendant received was not the extent that's incorrect she was paid on a per patient basis that was the arrangement throughout the time thing with the whole book introduced or just these excerpts your honor the defendant herself on her in her case and her direct examination she introduced and admitted into evidence the whole book and she testified that she had legal now even if he had done so she admitted that later that year by late twenty levon she knew the conduct was illegal so there would have been no effect even if he had testified to the extent that given it would've liked nineteenth there's no question she says to her digit consider what i told you last week and she says no no i did not i do not want to change i still want ch clear as a bell and as far as the in the guy the only reason for that was to show that she was trying the fall out she goes on line she buys this book the first chapter is all about the lot it's tour the other three hundred fifty pages is all about how to run a marketing outfit and she gets ideas from there and she testified i went through the and x i was a little concerned but you know thank you very much for thank you thanks as well to the government will take the case under advisement