opportunity to appear today and we represent the relator in this action kathy owsley who is a forty two year employed as a nurse twelve years with care connection of cincinnati and she submitted an initial complaint in an amended complaint i have i'm not sure what happened with the docket on the amended complaint i notice that the docket numbers from twenty one down are not listed nevertheless the respondents were served with the amended complaint all the briefing is related to the amended complaint and we have proceeded  argue the points that were raised by the amended complaint the dependents are a number of health care or companies as well as a billing consulting company called bassy and there it is essential to understand what fazoli's role in this was the diff the respondents the health care companies hired fa to make recommendations on something called an oasis form which is fundamental to all home health care agencies initially a registered nurse goes out and does this away cysts or outcome an companies brought back as he into the scene and onto the scene all of a sudden the initial classifications of the pace patients the initial payment system codes that were put into the oasis form began to change and they no longer reflected what the initial r n had seen or the initial healthcare worker had seen with these patients and the reason that additionally that this is important is because health anticipated payment and that provides some percentage of the average cost of care over a sixty dollars day period before a submission of the plan of care for that patient so the more extreme health care needs and services of the patient the more money is released in that initial a sixty dollars day period and fasc actually changed what the initial evaluators put sicker than she actually was well i think that as he's a stance a bill raul is it would be and i'm sure this is in their materials that they are assisting the home health care is agencies to get their coding right said that's what they're saying but the fact of the matter is because these this coding and we list a number of examples for example patient a had a leg wound the alter diagnosis included then additionally uncontrolled diabetes hypertension neuropathy and morbid obesity is obesity when there was no medical documentation to support those diagnoses patient be had an leg officer that on the oasis for became a malignant larynx cancer there's a part of the list that you that you just referenced which you have to have a diagnosis of morbid obesity if that as if people look at somebody and they were this is it lee obese but that require a medical bag misess your honor i appreciate i appreciate your question so much because the back to the matter is in this clears up something i wanted to address is that baz he never looked at these patients now you waiters looked at these patients not bezique bessie's offsite the the oasis forms are prepared by the initial evaluator and they are sent to bed as the arch type and fans he does a number of things with those forms such as what i've described and they also even go back and look at for example we have an example of a woman who twenty years fraud is only only happens when the claim is presented to the government right that's what our case is very clear that's correct and i think our complaint makes it clear our client was aware i mean that the request for interest paid a payment anticipatory payment when the next morning she was aware of the timing of that the patient a b c d e f g these are actual patient she knows medical records available for the court but you know when we did defend our our st amended complaint we did defend it but we did also request of the court found a deficiency that we be allowed to c the care connection of cincinnati but through you know through the course of her employment she saw this as a continuing process we did have some specific dates and there we certainly had a range of dates in there and you know her her time there and the anonymization doesn't take away the fact that these are actual patients mister mendenhall to follow up that question if i may  so as judge larsen points out it's submission of the claim that creates the fraud and i will grant you that your complaint alleges in considerable detail that there was what most people would call fraud going that and we don't have specific allegations about when to do a claims were submitted for patients a through g or otherwise so if you know it how would you if you're in our shoes how do we say that that element closer to the claims being submitted than our client was our client is maybe one more step removed but you but i think the difference here in the reason that you know the standard that maybe should be relaxing terms of having the exact claim if she will it was so experience she had twelve years with this company she saw the change that happened once fancy came and into play and she knew that these claims are submitted she knew  a specific false claim or if it's a far reaching claim a representative example of a false claim and it's not disputed in this case the relator does not do that there is not a single false claim identified anywhere in the four corners  bravery the only time that we're aware of that this court has ever deviated from the requirement that an actual false claim be submitted was specific to prayer because a prayer specific involvement in building related fields have a building if i may ask you a question about that you know mister bennett hall mentioned that the oasis is the foundation for reimbursement for medicare and as you may know c m s guidance with respect to the submission of these kinds of wraps requires that the that the that the patient data in the rap match the patient data in now is i understand the complaint the plaintiff here miss owsley she's she's working directly with that away says state she seen that data and she seeing how the fazli associates change that data for purposes of the plans of care on which she signs off and then the next morning as she alleges wraps are submitted so given that the away says state of that she's reviewing has to match the rap has to match the oasis data that she's reviewing in other words the rap is going to incorporate that data why isn't she directly involved in the billing process she's working with number two she says she's the last set of eyes on the plan of care so she's looking at that too so i mean she's looking at in seeing alterations to the principal so what she then says is that this is information that is included in a rap sheet doesn't say what happens in the billing department to get this information so it's so i mean this case is different from cases where the fraud allegations are sort of you know pretty sketchy the you know the the fraud itself is not pleaded with particularities they do plead with considerable particulary that fazli associates is changing me away system without any basis for doing so they they allege that with great particular and that a waste to state a then has to be replicated in the wrap which is being submitted to the government the morning after she's done with the file so are we required to assume then as we look at the complain that in every instance where this is happening that the person who then takes the file from misess ousley is changing the zero waste estate up back to what the evaluating nurse removing what the alleged fraud by the fozzy associates so that the bill itself doesn't include this these alterations alleged in the complaint every time that's happening by the next morning is that what we're required to construe the complaint to to mean your honor honestly we have no information in the rectory which indicates what happens at bill alterations and you know in the plaintiff herself working towards submission of a rap you know doing the components that have to be included in rap why in the world is all this being done if not to submit bills based on this activity i mean isn't that just totally obvious that of course they're they're sending the raps in based on all this stuff where is there some other reason is there any other reason in the world someone would do away says coding other than to submit a medicare oh i don't think that there's a reason to do what is coding absent having some involvement with respect to interest me the physician doesn't have to sign off in writing before submission of the raf that's my understanding sec rect he or she does not your honor but that also means that if there's a change in the plan of care that the route gets amended or sent so i would suggest you that there's also not anything played in the complaint that indicates that in these instances again and i got to file that wraps were actually submitted because there's service were what the dates of requests what they took or requested payment may have been what the amount of the requested payment is that she worked up over a checklist a bill specific claims that she actually had specific information to indicate that notes were submitted on what date which dates of service for what amounts and that and had confirmation this was all done none of that appears in mister owsley complaint that's the level of specificity and the detail but missed out he doesn't know us here if i may just ask you one more quick question because obviously you're very knowledgeable about how this whole process works is there any alternative explanation if one takes the allegations in the complaint is true which obviously we must that what i call this up coding is happening fozzy associates and that it has no legitimate basis with  to explain this perhaps but i can't is that there's an effort to made to look at the patient in its entirety the patients physical condition its entire includes the patient's medical history that is what came in this based on it's not based on a specific incident that may have required a particular involvement but if if the complaint has alleged sufficiently that the own oasis data is being fraud is there any alternative explanation for that activity other than submitting a fraudulent bill to the government so you are just  respect to the oasis data is there any alternative is there any explanation other than defrauding the government with a with a fraudulent rat is there any alternative explanation for this activity alleged in the complaint i don't know what the explanation would be your honor if the argument is that she's alleged satisfactorily that there was a that fossett was falsifying data i mean again aren't parents i just have one more question which is how many well the complaint alleges that sixty percent of care connections patients are insured by government health care plans is that sound well i guess that's what the complaint alleges it doesn't matter whether there were things that are said for instance that miss alice just as happens nationwide has only ever worked in one place and the notion that this gets to go across the country with every every home health care facility there's  do your clients prepare always says you know data do they do that for for purposes of submitting bills to private insurers or is that only done with respect to bills submitted to the government your honor i don't know that i can answer that question maybe a tool that is utilized your respective a private private versus government  it's a it's a standard tool but i don't know that i could you answer that question ok that's fine that's fine all right well thank you sir we appreciate your argument and we'll hear from your code defense counsel thank you ron thank you only if we wait or alleges specific personal knowledge that relates directly to billing practices supporting a strong reference false claims were in fact submitted the dissent in that case in a bind he has tried to focus on the last part of that requirement a strong inference that claims were submitted but the majority insisted upon as well the specific personal knowledge relating directly to billing practices and that is because as the court has noted the f c a focus is liability specifically on the submission of false claims pr predator the complaint alleged the dates of submission of our a p s but what's the big deal i mean what's the big deal with dates i mean let's say she she says let's say hypothetically another complaint doesn't know you want to know like what's the fraud that i'm accused you know what's the conduct where i've committed fraud that's that's right isn't that really what this ninety's going after as opposed to it was february rather than november claims that are that are supposed to have been submitted here because there are no details here to allow us to do that so that purpose of money be absolute unavailable to us but more importantly and remember this  if you had the names of patients a three g would that satisfy your your question or your concern about we don't know what we did wrong if you know which patients they are you know what they're saying fuzzy associates did to the file does that answer your because as i mentioned the c m s guidance says that the patient data in the rat has to match the patient data in the oasis which is what she's working on so why isn't that involvement in the billing process because what she's looking at him complaining about is incorporated directly into the rap well your honor to do things to think at least two things that we don't know the in a bind if the court talks about meeting every step of the process up to the end and i think were later admitted they were one step away they're actually multiple steps away and the complaint itself identifies them paragraphs fifty seven to fifty nine that in numerous instances the nurse looking at this says no that's actually not accurate it needs to be revised the complaint acknowledges that when these relator is hands that doctor has not yet submitted reviewed d no you're right your honor the regulations don't require that the position have reviewed before it submitted but it also certainly doesn't prohibit the doctor have reviewed before submission we don't know what further revisions may have been made is his client's complaint that fozzie works at the whole record including past reports the full medical record and if the full medical record of a patient indicates that that patient suffers from diabetes even though a particular oasis report by a particular clinician at that time may not reflect that fact that fact would be significant to the care provided to that patient and it should reflected and it doesn't need to have been observed by that one clinician that's why fozzy is engaged to make sure that the full record is reviewed and all of that is reflected on an oasis even if one particular clinician doesn't have view of all that is relevant here and so we don't know whether the clinician in the doctor looked at it and said oh my gosh good thing that he caught that or maybe it was a mistake maybe the fuzzy cutter was looking at two files at the same time and that was caught and change was made we don't know that we don't know anything about what happens after we've read the letter owsley his hand and we know that there is a time to pass as we know that fallacy is it's looking at these records and coding them or making additional codes this is just my own information is there communication by in between  our brief and i believe it's record forty four dollars gash one and it's a template that fonzie uses and what the template shows is that fozzie has notes at the end indicate the changes that have been made and explains why and for example and example is given if a patient has trouble moving around walking and the question is can the but if they need to get a glass of water to take their medicine and they can't get to the sink then they need assistance and that's what file let's yes let me interrupt you and ask you a different question related to something you just say it so let's take a different hypothetical that puts down their spouse they also show what record it references to come to that determination i think you're either we don't have actual records of what we have suggested the same template is it an example that there is an explanation of how they arrived at that recommendation so again diabetes would be based upon the patient's medical history not a particular  that is only the clinician's job it's only b h a jay's job as he can only make recommendations based upon what they think the more accurate coding would be and the complaint again a paragraph fi understanding that the physician who is supposed to eventually sign off on the plan of care is that person who who is dispositive as to the oasis data it would be  plan of care and the oasis but the people who the people who had seen the patient at that time have an opportunity to do the view and correct if that's necessary and at the at the end of the day that's what's critical here is that because there are these two additional steps between when when it needs does ozzy and any claims submitted if a claim is submitted we have an satisfy the requirement advised to take it all clear that what happened here is a generalized statement at the end of the opposition is not adequate the harper decision came down four months before the opposition was slavin this case and mister mendenhall was counsel at harper case so he knew that  practice in other circuits yes yes yes your honor i didn't understand that our role this is my understanding is our nine the standard is stricter than the standard in other circuits that's my general understanding if st of do you agree with that and secondly if that's right would this complaint survive in any other circuit in other way like our standard might be out of step we might be more strict than any other circuit if that is true would this complaint survive in other circuit but not  here i don't think that this complaint would survive in other jurisdictions the standard is stated slightly differently in other circuits but i think also it's focused on the cla may be submitted we don't know well your honor we know that it we know that leave sir hands we know that things can happen and then we know that she does not have the information about a date being submitted or confirmation that a claim that she is referring to of course we 're looking at the claims that she's identified in her complaint she doesn't say that she has knowledge of any of them i don't mean to hijack the question so if you want to take like literally ten or fifteen seconds finish your answer to underscore that fozzie has not been sued in any other jurisdiction if one thought that this was happening throughout the country you would think that we wouldn't and we've never been sued in another jurisdiction and i think the outcome would be the same thank you thank you very much your honor to address a couple of quick things i also operate in other circuits and i currently have a case in the seven nd i'll tell you how the judge handled it he granted a motion to dismiss but in the grant without any motion he stated that we had an additional thirty days to file an amended amendment if we so desired so that is a a common occurrence you don't generally have to move for that  and i appreciate that your honor the st amended complaint was amended shortly after the federal government declined in or be it was not amended in response to the motions dismiss and i think i that timing of that is important in terms of whether it's an adequate time frame to amend a complaint we think we do deserve one amendment to deal with those emotions that those motions to dismiss and the outcome of that the the other thing is that i think that the complaint excel i think it's clear from the complaint itself and i i wouldn't i would assert that there are some you know princes  can be made we certainly indicated that we had many more examples than the one that we presented in the complaint we indicated we'd turn those examples over to the government you know and also these patients are cared for a long period of time so we do have additional information on many more patients that that could go into an amended complaint so we would like the chance to do that and to and to get a a broader range of information and perhaps we need a protective order for the more detailed information that we would be presenting to the corporal we could certainly manage that with the defendants the other thing that i think's important about the motions that dismiss is that this is really about you know a showing of prejudice you know again we didn't multiple e move the court for amendment after amendment we have one amendment after the  think that they can do that we are certainly not asking for a chance to amend for undue delay bad faith or dilatory motive and that we haven't had repeated failure to cure deficiencies and i will also say this about  the st amended complaint there were a couple deficiencies in that complaint and i wasn't part of the amendment but you know they had cited part of the statute at one point that had been changed and the citation was wrong so those changes needed to be made to cure a couple of deficiencies in that pleading regardless of what would what's happened on the case i do want to address ask here one question sir is mendenhall is there any basis at all in the complaint here for potential liability on the part any of these agencies other than c c c the one that for which ms owsley worked i don't see anything about ascension or any of these other gems the the other thing is that the the this pattern and i guess this gets to judge larson's question about the national scope of this was he has a training academy we are alleging that in their training academy they teach people corporate training that does extend nationally and we know you know from the from the indiana office that sent people from indiana to come into cincinnati to be trained so it certainly extends to the indian office but this is a way to and this is how ponzi develops in its business i believe it's a business plan they go in they tell the home health care agencies we're going to boost your reimbursements here's how we do it we do it through this specific training these are the methodology once you have implemented it boosts up so they do receive a benefit from the increased reimbursements their benefit is all these contracts that they get nationally ok any further questions from the other ju but it's just as well because it's sort of an ancillary issue i noticed that the complaint in this case has remained sealed apparently in the district court and i believe in ours in our circuit like many others we have strict requirements about when a document submitted to the court can be sealed if the court bases a decision on that document as obviously the court did with respect to the p letter five pages of the last and if you think that either corson's of a these complaints should remain confidential redacted or the whole thing which is kind of you know questionable you could explain why the relevant case for our circuit is called shane group versus blue cross blue shield of apologize i don't have a cite handy but it's easy to find i think it's two thousand and fourteen ok well thank you all again for your arguments and i think that's it for this morning so