certification case like this one when right by invoking the term preview or are you getting then to you implying the issue of materiality and how it may apply in the analysis we are going to need to deal with whether implied certification is a viable theory well saying that we believe we believe it is but we don't believe that this case you have to reach provisions upon which you rely and refer to in your pleading judge i would quote the court to our brief pages twenty one through twenty eight but also to forty to see if our part for twenty two and for twenty three but to answer your question the the this is a medicare advantage case and medicare advantage was a historic departure from the way that medicare was delivered to the public by the federal government prior to medicare advantage the government was the sole marketer it was the sole deliverer of men the medicare program in this particular case with a government that is it set up a private sector a privatization i understand all that what  suggesting in my in my last question to you is you you're satisfied to rely upon express will sort of which we have recognized in this in the circuit so in in looking at the complaint because we are reviewing the grant of a motion to dismiss i'm curious about what kind of a nexus has been played here between the marketing provisions and practices you allege took place and some claim for payment judge each month since this is a capitalization case where the provider gets paid not for the services rendered but for the insurance provided when they enroll a patient in their role a citizen they get paid every month in advance whether or not they provide actual services every single month they must certify to the medicare advantage regulations which include the marketing guidelines and the marketing guidelines are expressly stated in the c f r site that i gave you and are pled in the complaint and it's played in the satisfied or conformed with all the regulations that's correct of a medicare advantage program well then what constitutes the fraudulent claim if all i have to do is i have to say i have complied with all the regulations i've got a thousand rowley's so you can pay me on the basis of my satisfy all the regulations where is the fraud the fraud is in the fraud is in the conduct the claim is in the enroll so when they don't adhere to those regulations when they provide that's exactly correct especially by god i mean that's a real good congress and well others that i don't know if they lose all their incomes i mean misspoke they clearly lose what they got as a result of kickbacks they clearly lose what they got  program just like the critics of private social security privatization sister already say that a bunch of hucksters will be banging on doors chasing people down supermarkets paying bribes and therefore they should be privatization and what the proponents of those programs like medicare advantage say is it please the court deal with the miller from the department of justice on behalf of the united states the united states has a strong interest in the proper application of the false claims act to medical services tainted by kickbacks because kickbacks undermine integrity of federal health care programs do you have a case that says kickbacks is is is or failure to abide by the kickback statue a sufficient basis for false claims act i have three your hon thirty one and thirty two of the joint appendix where the compliance discussion of compliance with the and take it back how to how do we know that i guess we have to accept the complaint is true but how do we know that a payment like that resulted in any specific not forgotten are you taking a position did you take a position you're making brief as to whether or not the specific pleading in this case had with respect to both the marketing provisions and we did not take a position with regard to the marketing regulations because the district court didn't reach the question the district court said you don't have a specific claim for payment you're out on the market really which i'm i'm curious about how far this can reach and whether or not there is a need for some kind of limiting if for example we were to adopt as numerous course have a number of courts have an implied full the fact that the materiality isn't it isn't a question about getting a particular government official to testify oh yes if we'd known we would kick them out it's a question of whether it would be material to the decision there may well be hapless government test well it's not that i know i think it's a valid if you're there because somebody paid money to get you there i think i think that's right well that's that's what i'm getting at that's a term of art that is that is used in this regime and so i'm wondering whether in fact someone is validly enrolled because they meet some kind of objective criteria for a woman or whether they are not valid lee and roll next your position because of some pain that comes from activity improper activity that takes place during the course of the process it is the case that we think the enrollment is tainted i also think you could analyze the express or vacation theory if you if you want to use that theory the statute requires the defendant to make or use of all statement so they made  even possibly rod that they're asking this court to basically adopt a in expansive view of liability on of the false claim well i thought it was very narrow if you if you pay money to get enrollees explanation of what the violation of the a kickback statute is there's no allegation this is a twelve b stage this is just a broad statement in the complaint isn't it isn't the plaintiff allowed to but of all of the fear in the course of this company certainly of course but under its ball and they have to plead some plausible violation of the anti kickback statute that then results in the presentation of a false claim to the united states i thought actually a specific sum was ma perhaps twenty seven thousand dollars sounds familiar the specific payment made and the statement made no forget me by the way remember that i am contributing or something like that there are allegations in paragraph fifty nine sixty three talk to say i true i'm only saying that those are the specific statements gave in the complaint yes and if you look at precisely those allegations and in the attachments to the to the complaint exhibit c to the complaint i believe this is pages  and forty one in the in the joint appendix at the agreement that is being discussed with respect to reliance medical center there was this preferred provider agreements i think it's called partner p c p agreement that basically said we will pay our preferred providers premiums for for having enhanced quality for or engaging in certain coordination of care activities and so on and so forth dollars and i say either way we need some of your patients to enroll in our program we would appreciate it very much not only facts that you have sent out a violation of the kickbacks that you would have to have a violation that th no you have to plead a knowing and willful violation that's right out of dick ball is it is it possible to have a kickback that's not is it possible to have a kickback i'm sorry that's not knowing i mean i would know it wouldn't have and affirm and to the kickback in of itself at least imply some knowledge or intent i suppose so it's in the most limited sense but but the supreme court has said in the call that that intent must be pled consistent with the strictures of rule eight along with everything was under seal for i believe about ten months before the united states declined to intervene after the united states declined to intervene or later the plaintiff in the case then took another two months to actually draft an amended the first amended complaint is that is the complaint that is before this court it was the amend the complaint that was served on the united health and that is the subject of the motion to dismiss now as as motion to dismiss proceeded there was no effort on the part of of the relator to file a second amended complaint and as far as united health was certain that was the first point that was the first that's correct that them and they did not do that here and judge kugler expressly invited that he pointed out in the in the closing paragraph his opinion that under rule fifty nine they had the opportunity tendered proposed meant a complaint to the district court and so there was no complaint for the district court to two there was actually there was a request wasn't there or leave to file another complain there was a line or two in the opposition to the motion to dismiss that simply said if the if we haven't properly pled the statute we would ask does it make any sense to wait and see what the judge's decision is one of a and then requests leave to amend or i mean do you of course have to submit a proposal amended complaint well you do have to submit a proposed medic complaint that this court has said that and the local rules in the district new jersey require that that was part of the basis that the judge kugler relied upon and in denying we have to amend could i me ask you this could a a medical service company such as you your client participate in the program and receive full payment for it's in disregarded medicare regulations well if that's precisely the problem with the theory that is advanced by the appellant here is that if you say that is your argument even though there was there may be a disregard of many medicaid regulations pain you have to have some distinction between those regulations that are conditions of participation and those regulations that deal with conditions of pain that's what the the cases i'm my question relates to conditions of participation can you violate part of the medicare regulations concerning united's participation in the program and still get paid yes absolutely that's  confusion right but that's a classic example your honor of a factually false claim that the surgeon by submitting the claim to the medicare program for payment isn't representing i performed heart surgery on this patient and if he did not perform heart surgery if you perform some other surgery or no no surgery at all the claim is factually false to that's that's a classic condition  surgery you have to actually have performed the surgery well we're not as you suggest dealing here with the prototypical false claim discrete false claim which is why there is discussion in the briefing why i asked some questions about express full sort of occasion implied fals because it would seem that those theories have to be implicated where there is not right the more common the respondent can ignore any and all rules and regulations protists relative to participation and not be liable under the f c a is there no middle ground what if the government has a practice a known practice of treating certain conditions of participation set out in regulations as  for payment or nonpaying and that's no your honor i think then you don't we have something that could form the basis for liability in violation when i certainly think that you can have conditions or of yes and there's no evidence that that that was the case here there was no requirement of express certification i find it fascinating that mr beggarman argues that this is an expressed all sort of occasion case because there was no express all occasion alleged in the complaint all right so if that's the case then don't we necessarily get to the question of whether we should address this under implied full certification and it seems that this court has not previously adopted that there no you don't need to reach the implied sort of case in question because whatever you call this theory whether you call it materiality whether you call it express or vacation whether you call it implied sort of occasion however you want to  to look at it the complaint in this case does not meet the requirements that have been laid out in those cases even with respect to the kick the f a q that extension the complaint does not allege a if it does not plausibl in theory it's sufficient but you're your opposition is that it was a sufficiently play as correct nowhere in the complaint as it appear that there was a claim of a violation of the kickback the complaint  fairly allege facts supporting a violation of the going to kickbacks actually how about the paragraphs they did in the complaint concerning the payment of money in order to produce an rowley's for the program take take those allegations about reliance medical center at face value rather that reliance medical center received excuse me a payment of twenty seven thousand dollars in order for for america choice to receive information about dual eligible patients at that at that medical center that's not enough in another itself to allege a file ation of the a ticket back statute where is the allegation of a referral where is the allegation that subsequently payment was demanded for some patient who was improperly referred as a result of that kick that s referral to rule fifty nine would not be appropriate in this rule fifty nine deals with mending the pleadings i believe after judgment for the purpose of amending the facts not the conclusion allegations and all that was lacking in this complaint in regards to the kickback the area was now while we do mention the any kickback statute and you mentioned kickbacks and again not just twenty seven thousand dollars worth if you look at paragraph sixty one exhibit b the main the exhibit b actually totals five hundred thousand dollars in miscellaneous kickbacks they were given to a whole slew of doctors the twenty seven thousand just the most outrageous and we believe we'll allege that but that rule would not allow briefly i would just like to point out to the court that we have a ledge over five hundred thousand dollars a pickpocket and i refer you to paragraph thirty three fifty nine sixty one appendix page thirty two of forty two and exhibit b we have alleged false claims for payment were submitted that's false claims were submitted for payment and that's part of either page forty six we have alleged that these certifications that were submitted on a monthly basis were not only false statements but were conditions of payment and that's paragraph forty five forty six and forty eight appendix page thirty seven and thirty eight and judge opposed to saying that the the appellee who has been accused of these interior violations would have the court debate how many angels can dance on the edge of a pen or the top of the pen and what they want to do is going to beit that there is a clear line between conditions of payment and conditions of participation and i would respect there is a blurred line because if the violations are material in the air or bird there are many of the cases some of the cases do speak to such a distinction that's correct judge and i think we've met both distinctions in this case but what i want to say judge real issue is materiality and here we've alleged kickbacks and you have to go back to the how historically divergent this program is from the normal government i mean the nexus has to be between fraud and the payment dr court was wrong and should be reversed because we're not alleging that they didn't use number two pencils were alleging items that the testimony from the congress united states according to the congressional records i was of the highest priorities that's that's a public provided for certifications on a monthly basis and that these marketing regulations are not trivial and the kickbacks clearly aren't trivial you didn't say you didn't particularly use the int action as a violation of the false claims that they violated the false claims act because they violated the in kickbacks actually which is part of the marketing guidelines and regulations and as indicated between page twenty eight and twenty want to twenty