today when the court is presented with the review of false the false claims act case in which the judge misapplied rule nine b and misconstrue the applicable medicare conditions of payment the basic the most basic aspect of medicare home care coverage is that a physician must certify several things before the coverage the services can begin the first thing th happen in a did not happen on a widespread basis the defendants in this case basically signed up they're assisted living facility residents for home care provided by their corporate sibling and provided all the services after the care is over then they go to the doctor and say sign the certifications that stands the sequence own it's head and it violates medicare conditions of payment that are material to the government's decision to pay the couldn't there be a verbal order and then the certification later on the regulations do not provide for a verbal order as a respects to the certification it does provide for a verbal order on the plan of care in this case we have alleged specific examples where there was no verbal order of a plane of care much less even if even if you could argue that a verbal certification is ok there were verbal orders along those lines i thought there were two specific patients where you  of the claims that we submitted did you plead that yes where would we find in the complaint they say no doctor certify that the that the patients made the certification until after the episode was complete certification is the right that's different than the verbal order well what i'm trying to figure out is is if we disagree with you on basically what is a timing question when these forms have to be signed by a doctor is there anything left to the to this case we're not talking simply the fact that the signatures weren't obtained in time and that's part of the problem in the case i think well the with respect to patience and a and b we had the actual documents in front of us and there is nothing about a verbal order of any account and in order for a verbal order to be effective it has to be documented in the plan of care and there simply did not happen i thought the certifications could be done at the time the plan of care is established or soon there after as possible that is correct so you've been telling us it had to be done before the care was given but that's not true well the the regulations allow for leeway for a certain number of days not in not infinitely you know as soon thereafter as possible right and so the theory of the other side is that there is one year as i understand  to make the certifications what's wrong with that well if you accept that argument then the assume then at the time the planet cares established over soon thereafter is possible is a no it's easy and you're strictly dealing with the statutes if it's if the theory is one year why the knowledge because your is not at the time the planeteers establish it's what language can you give us the exact language which says it has to be done at the time the plan of care is i think you just said established what what is suspect are we looking at we're looking at forty two c f r four to four point two two we're two four point two two yes and what  that it has to be done before the care then you write out or as soon thereafter well the pope of the regulation is the policy of the government but that that may be but it you are saying in answer to judge moore well if if what she's saying is correct it's writing out one provision but if you're saying if what you say is correct it's writing out another provision what i'm saying is that is that true or is that or is not true and so saying it has to be done before the care is true to the language of saying it can be suppose it can be furnished as soon as practicable there after if it's going after the care i'm sorry i'm just repeating the language so what if it's there after it's possible me and what does it mean i think it means it recognizes the reality of a situation where doctors have busy schedules and you can't you know you don't want delay because you can't get in to see a doctor and so there is a little bit of time there in the face to face encounter documentation it says that the face to face can take place up to thirty days after the care is started in so in that kind of a situation it gives them the leeway we know it doesn't have to start before they care it doesn't have to occur before the care started because it can it can be up in the face to face can occur thirty days later and then would that then trigger the or soon thereafter is practical after that i would think that the if the if the face to face can occur thirty days later the certification can take place at that time the but the disagree with you on these timing questions and whatever that additional consideration you just said it in that i think we've now refuted is there anything left other than a and b a well and and a and b is only because you say the record doesn't reflect there was verbal authorization in order to bill i rap you're not saying there wasn't verbal authorization you are saying the record doesn't reflect there was verbal authorization i'm saying there wasn't a verbal law the reason that was there was not a formal authorization out as your client know that because she has the records of those claims those particular climbs and there's nothing there's no verbal or at all in there in order to be effective but let's just listen a second isn't there a distinction between saying there wasn't one or the paperwork doesn't reflect one i agree that she can look at the paperwork and say there it doesn't reflect there is one but she doesn't know that there really wasn't one and that there was a scheme to send these things in without one that might might have occurred but wasn't documented in order to be effective it has to have been documented and we believe under the circumstances of the case there will be amnesty to demonstrate that the doctors one involved in all in the front and  you go for your documentation of the verbal order to a particular regulation which as i understand it is forty two c f r for a nine point four three which says that the verbal order has to be recorded in the plan of care and has to describe the services to be provided and so forth so that that essentially saying that a person not a doctor has to put it into the record and has to write it has to be attested by the person who this is also a case so the regulations and the got it from c m s says that the the position is supposed to give the order before the carrier starts to to get the ball rolling there is a little bit of leeway in the regulations to account for the reality of this earth and dr schedules but it certainly doesn't give them up until a year after the care was provided with respect to raps and i can say that the nature of the prospect of payment system is the claims aren't hill unless there has been around every one of these claims was in a discrete category of the hill claims project this is not all of their claims either just the narrow band of claims of the whole thing project and all of them involved around there would be no claim to be held if there were say that the information that we brought it in the complaint gives the defendant more than sufficient information to form a responsive pleading and using the information in our complaint with the computer system that we talked about  complaint the spreadsheets and all that there is no question to a certainty that bill knows the amounts that were billed and the amounts that were paid by medicare for every one of those klein's in exhibit give the patient name we give the date the episodes of care the days of treatment we give the the facility where the care was provided we give the  in the same floor with the billing personal but zooming that that satisfies the billing requirement how does that satisfy the falsity requirement from what you've just said because that we know that there was no sort of occasion at all until after the episode was complete so if we disagree with you on that requirement which is what one of the things we've been talking with you about then is there something else that makes those of us know if you're agree that the care can be certified after the after the care has been provided retroactively then those care those claims would not be false we have all of your claims you saying that the scheme here was that no doctored authorized any of this stuff and they just find some doctor later or are you saying that there was or probably might have been a doctor involved and that doctor didn't sign it into later we're saying that he knew the distinction i'm drawing now i think so and we're saying that no doctor who makes the requirements of certification which means you can't have financial interest in the into t no  doctor the do the need for home care and all those requirements until after the care was over and already given and so in other words the doctors that did certify them you're saying had nothing to do with the developing of the planet care  they weren't even around at that time well i don't know that they're not around at that time were saying predicted this patient well they did not establish a plan of care correct ok did you allege that the doctor who certified did not the plan of care well i thought you'd be essence of your claim was the doctor certified afterwards well the part of the certification includes that the plane of care has been established so the certification that you're attacking the contents of the certification i'm saying there was no certification at all as opposed to timely certification and at least a lot of these occurred later so we understand you're arguing that it incurred at the wrong time but are you saying that dr just lied or that the doctor didn't lie but the timing was in violation of the regulations i'm not saying this is a doctor i'm saying that they did not order the treatment until after the treatment was provided and are you saying that they didn't review the plan appear before certifying it and determined that that was appropriate insufficient and met their the various requirements in home health care and then whether or not they had a doctor at that time or not the doctors did not certify or established plans of care until after the care was provided and this is all in your complain it is a timing issue after the core dismiss the first amended complaint with leave to amend the relator revamped her complaint and added a new theory of liability relating to the to the had ended rather what the complaint alleges is that the doctor didn't sign the certification fast enough and that the doctor didn't complete the face to face documentation fast enough how much time does the doctor have that term means other than to say the agency has up until one year after services and to submit the claim we're not taking necessarily taking a position in this case as to the specific time saying as long as it's obtained before you file the final request for payment satisfy the regulations that that is correct that for billing purposes is long as the surf occasion is obtained before the claim is submitted that would be considered sufficient and the certification here certify that the doctor established the plan of care no it's certified is that the doctor agrees to the of care that was put together the regulations say the plan appears to be put together in collaboration between the therapist and the nurses and the physician the doctor is not necessarily an expert in setting fine that that the plan of care was appropriate for that for that particular patient but the plan of care does not have to be approved or developed before the certification by a doctor that's correct in order to bill a erap the agency must have sent the plan of care to the physician but for billing purposes the physician doesn't have to provide his or her that is and i believe that the court has and has noted this allegations relating to verbal orders only comes up with respect to patient a patient b the complaint does not allow adage lack of verbal orders as part of some overarching scheme the complaint says that a is a representative example of providing care to patients where the actual care provided doesn't match the diagnosis of the patient which really isn't a theory that's even being pursued anymore by the by the p patient b is listed as a representative example of a patient where the defendants billed before they had that the physician certification as far as the allegations were good relating to patient and patient b we would first  argue that the plaintiff has an adequately plaid present moment with respect to those two claims and then secondly the way that the plaintiff has described the verbal order allegations continually changes with the second  its briefing on appeal is that there was no verbal order at all and we would we would suggest that each of those allegations touches on different regulatory requirements and we're not really sure what the plaintiff is alleging is the plaintiff saying that the doctor never gave the verbal word or at all is the plan saying that the verbal came but it was never documented in the record is the plaintiff saying that the verbal order came but it wasn't documented by a nurse or registered nurse what which is what's required in the in the regulation basically if the court just looks at what is in the second in the complaint relating to verbal workers it is pleading a conclusion it is pleading that there wasn't a properly attested of verbal were but it hasn't the the complaint doesn't allege pacific allegations to explain explain the been the basis for that on the certification requirements that we've been discussing does the government spell out the form in which the certification takes or do the providers prepare their the government doesn't specify the form that the certification has to take the government that c m s is specified what has to be included in the certification so they do say what the doctor has to certify that's correct and do they say the doctor has to certify that the doctor did the things that the real terrorists saying didn't happen in this case i'm not sure i'm following with respect to the things that  didn't happen in the case what the c m s are saying that these certifications were both untimely and he's alluding to the fact that there are faults so we were trying to figure out what is the falsity is that because they weren't involved at all or because they were involved but they didn't document until later that's what we're trying to figure out so it just seems to me that if c m s says what you have to certify then that is a pretty good reflection what the doctor had to do but i would agree with putting another way it does seem sort of odd that if there are certain things that had to happen at a certain time that they would have asked them the doctor to certify i would i would agree with that set forth and for you to see a far for twenty four point twenty two that c m s views the physician as the gatekeeper in terms of deciding whether or not home health services can be paid for position has to certify that he or she actually met with the patient that's the face to face encounter met with a patient in a certifying that the patient is or was under the physician's care that the patient is or was home down and that the patient received skilled services that were called for so the doctors signing the certification has to be the one who had the face to face not miss not necessarily but but the the doctor who is providing  doctor who is providing a certification is required to have met with the patient face to face and that can't occur thirty days after that that's right lance it can happen up to ninety days before it can come thirty days after care has begun before thirty days after this ma'am so just to clarify again the doctor signing the certification has to be the one who had a face to face with a patient i think the regulations allow some circumstances where he different physician could sign but i don't think that's relevant to the allegations here so so i don't want to say absolutely but i would answer the question in order to complete the certification the doctor must have had a face to face encounter with the patient that regulation or that was added to the regulations in two thousand and ten because see a mass didn't want the doctor certifying based on having seen the patient a year a year ago or never never never having seen the patient at all  i'd like to just curious i understand how the realtor works in this claims department and she can go through and look to see what's in the file and what the dates are on certain things and make the claim that it does or doesn't meet the regulations i get that does the realtor claim to have any information as to whether that particular doctor did or did not have the face to face as opposed to when that occurred no no your honor as a district court found besides not pleading falsity this complaint should also be dismissed because the relator has an adequately allotted to that connection she has made allegations about lack of time with signatures she does not connect that to claims that  included in completing and case didn't we allude to the possibility of an exception to that the court has on multiple occasions alluded to the possibility of applying a relaxed standard in circumstances where the plaintiff is unable to plead and actual claim and why isn't this case that as the court as the sixth circuit has described the circumstances under which a relaxed standard would apply where standard arguably would have been applicable in all three of the cases that the six circuit sided to the relator had actual knowledge relating to the billing process for the defendant in two of those cases the relator actually worked in the billing department in the third case the relator was a nurse similar to the relator in this case but the relator in that case allege that she had had conversations with the office administrator who submitted declaimed and based on those conversations with the office administrator she was able to plead with requisite specificity that claims are actually being submitted all that the relator here has done is she has listed the person who was over have to actually demonstrate that you have a you have to demonstrate facts or plead facts to her why would the relator role in this process claims group or whatever it's called bill review of claims she was reviewing medical records to see if the medical records contained all the requisite parts that needed to be in there in the in the medical records so that the medical record could be released and taken to the access even though that was not a part of her specific duties are you saying that she didn't have access or that she didn't allege that she had access i'm saying that she does not allow any specific facts relating to relax the rule not nine the standard and what i'm saying is she has not had sufficient facts to be to be able to do that here if you look at what if you look at what she alleges about the wraps she says that they were  looking at the regulation the regulation sat as a wrap is supposed to be submitted as soon as services have started being provided the regulations as erap is to be built at that sixty percent that that does not constitute specific facts supporting the that claims were actually build am i right that if the this panel was to follow through on the intimation that maybe some of the requirements could be relaxed it would only be with respect to whether a claim had been submitted it wouldn't be any relaxation with respect to falsity that's correct on any cases that suggest you relax the other three requirements that's correct there are two separate build claims the district court did not reach the issue of whether she had been because it threw out the raps claims on the presenting an element the district court didn't reach the issue of whether she had satisfied falsity asked as to the raps claims but that was fully briefed and the this court is certainly within its rights to address those issues as well alternately what i would say is that what is significant here is the relator doesn't allege a single circumstance where the defendants ever submitted a claim without having first obtain the physicians or certification based on adequate face to face documentation and in those situations she information and the defendants in the court conceded that the particularities requirements were met for those crimes but the final that was so klein's she has personal knowledge defend this business practices with respect to billing of medicare home health claims she knows from working at it for fifteen months that's all she did every day she knows that all of these claims wraps had been billed she know in order to be hill they rap had to have been built this is a necessary thing the so she has enough knowledge in the context of this case particularly with respect to the prospect of payment system which has a certification requirements statute says that the the prospect of payment system has to be for certification requirements and she always is based on her personal knowledge direct knowledge that wraps were billed for all of the klein's without the requisite certifications now the  to the certifications themselves i was discussing with here fellow counsel the question of whether the circuit requirement of what the certification has to include is spelled out in the regulations he said yes you agree with that yes now does the certification the government requires say that they have to certify all of the things that you say are missing that were not done properly in this case yes so if we look at the certification requirements it will say that they had to certify things in the way in which you interpret the regulations as to who has to do what went it says the certification has to take prior to the services being furnished and c m s clarified based on his longstanding policy that it is not acceptable for home health agencies to wait until the end of a sixty day episode of care to obtain a completed certification the is crystal clear and the defendants know or with regulations main they did not obtain the certifications after the fact they got the doctors to start a file that does not change the fact that it was not properly the certification was not properly obtained thank you thank you for your argument the case to be submitted with the court called the next case