requirements set forth the nine b we have enough here on this record to warrant a denial of it will be six motion to dismiss with has been no discovery whatsoever and many of these cases get dismissed because there isn't  particularity required by the courts however we are in a little bit of a different different situation here because the relate of himself has personal knowledge of conversations that went forth in what was referred to as quote evolution project meetings in which there was a kind of hazard agreement between the city and the department of health to allow these claims to go through in the city of new york actually maybe you could expand on that a little bit and it was not clear to me how your client was alleging that the city  and the health and hospitals corporation was itself involved in the submission of the medicare medicaid claims to the federal government look like the state was running that yes so let me let me deal with that if i can  it could have that duplicates could have been screened out that on an eligible providers could have been identified that all kinds of things would happen and so i didn't see exactly how the city itself was involved in the submission in a meaningful let me explain it in the let me also cite to your decision interest if i can here's the way that the claims get processed in the city as you know there are these local districts via the social service law that prove that deal with medicaid case generally within new york in new york city because we have so many people on medicaid we have a different system h r a it's a city agency is the agency the process is all claims they process claims not just for health and hospital not for related companies but even for private physicians those go through a system called the many med and more which you obviously all read and then that system itself leaves out it codes and it codes are essentially codes that set forth potential problems with the claim they can be paid they can read that but i would expect your client having worked for the state would know exactly what was submitted by the state ultimately and and but the defendants here are the city right but the city is the one that's giving the the city is the one that's providing the forms to the state and the state system for winning folding them forward i'm not suggesting that the state like churches where there were direct there were directions to falsify the records that were submitted to medicaid for payment and there were very detailed allegations about those instructions to falsify seems to be a large gap here between the initial submissions and the ultimate request for payment i would suggest to you that if you look at the allegations in the complaint i think it's ninety two thousand one hundred and four dealing specifically with the evolution meetings the gap is filled in because my client is not employed by the city obviously spurred by the dio age but he talks about situations where there are actual conversations he's not a higher level employee as a kind of a lower level employee with this is discussed and there's a discussion between high level city employees and high level state employees to process these claims now it was standing the fact that in five of the cases that we've identified these claims may not be eligible for payment at all so we and i would also point out to you that with respect to the possibility that those claims could have been properly paid this is what you said in the fact that it could have been doesn't mean that it is and i'm quoting directly this is it sixty five f thirty at eighty five quote while it can be hypothesized as am or indirectly suggests that am or at the pleading stage which is exactly where we are here so i'm not suggesting to you that even the decision that was me here doesn't have some rationality to look i believe that health care is a fundamental right nobody agrees with me but we shouldn't have people decomposing on our streets i work three minutes from here but it's not ok to process claims that might not be process of all in terms of paying them merely to perpetuate a system that's working for other people that's what the kite him claim is designed to avoid and i would point out to you that the city in its brief says and i quote this is on page eleven a claim is false or fraudulent if it is quote an improper claim aimed at extracting money the government otherwise would not have paid question and studies your decision in mike's isn't this a situation where the the federal government is paying fifty percent generally being fifty percent of the medicaid benefits twenty five dollars state twenty five dollars city should they at least be told about that to me this is the situation covered directly by the supreme court's decision in the escobar case which says in the nd paragraph and i'm quoting specifically liability can attach when the defendants emits a claim for payment that makes specific representations about the goods and services provided but knowingly fails to disclose the defendant's noncompliance with the statutory regulatory or contractual requirement and doesn't it come and get refined to focus on material violations and not just any violation and that therefore a a course of conduct in suggesting it is all i'm suggesting is that the pleading stage we're not talking about you know ten thousand dollars or one hundred thousand dollars within ten one million dollars we're talking about hundreds of millions if not billions of dollars the notion that i'm sorry i went over my time  yes the notion that billions of dollars in claims were ministerial defects that were corrected doesn't seem to me to be correct as just a matter of common sense and we did and i asked i won't go over my time we did lay out in the exemplar portion of the complaint the claims the dates the amounts to the penny based on e m d n y downloads that were taken directly from the website this is not a  good morning my name is joseph willie i represent the city of new york and new york city health and hospitals corporation they're the crux of the relator nd amended complaint here is really that that new york state department of health which is the relator is employer the state medicaid agency which is not a defendant here paid medicaid claims submitted by health care providers in the city of new york that were not eligible for payment because the state had assigned certain edit codes to those claims at some point in time making them according to the without more does not mean that the claim was not payable or will not become pale and certainly does not mean that a claim submitted by a provider was false the state applies and it commits to a claim to communicate certain information proper to the provider which might include to flag an error that can result in a denial or pending of a payment providers can sometimes address the air and if it isn't there and resubmit the claim the complaint there's not much that the provider did not correct or otherwise addressed the alleged error in fact the complaint does not specify anything about the chronology of the application of edit codes on clients particularly whether the other was resolved and still on the claim at the time the state department of health paid the client but what about  old navy case what goes to the plausibility of of a strong inference of fraud includes whether there are alternative explanations are not considered or it could be an error you know there are no allegations that the city and the state agree that actually false claims or incorrectly paid claims should be submitted should be paid and that the state should then claim federal medicaid matching funds for that expenditure isn't that the nature of the complaint the relator is allegations about the evolution meeting so called yes there are vague references to things that the city about you know denying payment on claims would financially harm the city or providers in the city of new york but there are no specific allegations that the rest of what any of you know any statements made by a city employee that the city employee encouraged the state to commit fraud to pay claims that were not entitled to be paid and then to claim federal medicaid matching funds it's important to keep in mind here that the way the state medicaid program works is there was a federal statute that applies to the state the state has to pay providers in accordance with  state law and if the state makes a payment that is in title to federal medicaid matching funds the state can claim f f p or federal financial participation for that state expenditure now  the complaint alleges that the state department of health knowingly paid the providers claims that were not entitled to payment because of the existence of the other go that's the allegation that the state agreed to do that or  you know determined that it would do that notwithstanding be at it if that was in the crowd then it's up to the state to decide whether it can now claim federal medicaid matching funds for that expenditure to a provider there are no allegations that the city of new york or the health and hospitals corporation which by the way health and hospitals corporation is not alleged to have even been present at these evolution project meetings  but there are no allegations that the city or health and hospitals corporation caused the state to submit a false claim to the federal government for f f p there's no allegation whatsoever that they had any discussion about that and given that the allegation is that the state knowingly paid the provider claims incorrectly then of course the state was in a position to knowingly submit a claim for a st period and you know while it knowingly paid the claim so in that sense it's not at all like the feldman case that i'm going to do is counsel alluded to in the feldman case the city had been delegated a specific function by the state to make eligibility determinations for certain categories of services and the allegation there was that the city had created incorrect or false eligibility lists and provided those to the state medicaid program and then the state relying on that false eligibility the lowest paid the claims to the providers and then it was you know cause to submit a false claim for of of pia to the federal government that's not the allegation here allegation here is that the state anything question there yes what is actually being alleged in this complaint i take it that what is alleged here is a conspiracy between the city and the state in other words it seems to can you comment on that aspect of the complaint yes your honor yes there are some sort of loose comments throughout the complaint the nd amended complain about a conspiracy between the state and the city for the state to pay me providers claims that are not entitled to payment there are no allegations that there was any actual agreement no occasion to as to what anyone from the city actually said who knows who those people were and and again the allegation is that the state made those made those payments to providers knowing it and so even if it were true that the city had encouraged the state to pay claims if improperly the state then is in a position to decide whether it can now claim federal medicaid matching funds for that expenditure and i say improperly i say because of the existence of an adequate maybe the state decided to pay the claim because they have been applied incorrectly or because the provider had to resolve the whatever the error was you know sometimes adults are applied incorrectly in a provider may challenge the the denial and there are no allegations or of this is just an assumption that if there is an edit applied at some point during the claim process it must be an incorrect at's not a specific those are specific facts that lead to a strong inference of fraud was committed thank you i think we have the argument we have mr isaac on rebuttal you have three you've asked me questions relative to the the documents on the back of the complaint i just want to point out to you and i want to give you the page references to try to make your lives easier because you have cases sixty seven to ninety four and then ninety five dollars to one hundred and twelve dollars those are not potential claims those are not possible claims those are paid claims those are claims that were actually paid there isn't a word by name if you look in the complaint the reason is because most of the time they appeared by conference call and this is not and what does the complaint say about the city actually the city's actions with respect to each of those it says that it was there was a sensually a plan in place to ensure that these men out there with respect to these particular claims there's nothing you're saying there's an overarching plan or conspiracy and then these are several example examples of claims that had  red and that the city and the state knew exactly that these claims were potentially not subject to being paid again you know what was the federal government in a position to waive this i mean timeliness is something for example that can be waived right i agree  hundred percent and maybe they would but maybe they would here's the nightmare scenario i was taught when i st started practicing impel war a one million years ago that there's a fundamental difference between judges and lawyers lawyers or or might they look at the use microanalysis the they push the position of their client but judges have a higher responsibility they have a macro view of the the thing they have to figure out what their decision is going to do and how it's going to affect the system here's my nightmare scenario let's say that i lose three nothing here seven years later someone actually does an investigation in terms out that everything that the relator said is absolutely true my position is that not that if you reverse give me a deposition if all of the possibilities because my adversary spoke to he said possible this is possible that potus will true let me find out i don't have a case but don't throw me out of the pleading stage with allegations like this dealing not with small amounts of money i just added up billions of that doesn't apply just to this case it applies to any case and i mean what you say you would have would have commanded much firmer ground would have been on much firmer ground before the supreme court's cases that impose these requirements for pleading i mean it's always true that that that people bring a case in and plead the the complaint before they have all the facts they need discovery and the supreme court said tough luck you've got to have enough at least in the complaint stage to pass the tests of these cases may respond just commute like a one hundred that's one hundred percent correct but i'm also asking you to factor in the documents i have at the case on the calendar today but we're going to take a brief break before we hear argument in that case