united states x ray clawson v laboratory corporation of america setting out the pleading standard required of a complaint brought under the false claims act specifically as it relates to allegations of the submission of a false claim to the government ms chase who is a licensed clinical social worker who had been employed by life path hospice for a period of about twenty years and served in various positions  life path and on various committees both for life path and for a group of defendants corporate defendants that provided hospice services and that is services to patients who are supposed to be terminally ill and near the end of their lives in the complaint ms hospice allege that the hospice providers had admitted and retained patients knowing that they did not qualify for the medicare hospice benefit  allegations of the false claim was presented you don't have a date but you just assume you would have yes this object matter since my specific claim yes sixty two and sixty six talk about discussions about the patients followed by the allegation that you don't have specific claims that the judges point there's these discussions in the years these general allegations but there is no specific fraudulent claims governed by date time place et or versus blue cross blue shield of florida from one nine hundred ninety four it seems to specifically require the type of detail and rule nine in a false claims act that i just mentioned  ike i can move back to cooper in a moment but i do want to be clear what clawson says your honor in clawson in fact there was a dissent in clawson because the majority of the panel in clawson said hey this competitor of lab is a general conclusory allegations that though that should have been submitted the dissent had taken issue with that as suggesting that that amount of detail was actually required in order to state a claim and the majority panel said no no no no in a footnote this is footnote number twenty one we're not saying that's required in every case we are saying that this is one way that the relator in this case could have met the pleading allegation but did not and in fact the court subsequent authority has been clear that that level of detail is not required the mastic case specifically says it despite the lack of any judge murphy  short term an exemplar of including the six circuit requires that level of detail in order to state a claim the eleventh circuit though has been clear that while that certainly will do it it's not absolutely required and the district court what that interpretation of the pleading standard would change this is the standard that this court has applied since clawson and convert the eleventh circuit standard to something much more can't what is present in the just add to it i think this is a circuit split is understood and has been understood in briefing to the supreme court is the fourth circuit six circuit and eight circuit on one side that's of effectively requiring exemplars of claims in the complaint  exceptions were on the other side and the eleventh circuit fifth circuit d c circuit ninth circuit seventh circuit first circuit are all on the side of that is not absolutely required in every case and in here in fact that what cost and said actually said was required in the relator could not provide in that case was some indicia of reliability for the conclusion that claims were submitted to the government and in this case we have alleged quite understand clawson laid out what we all agree on and that was my first question that nine be applies to false claims act allegations and it seemed to me that cooper simply refined the standard by saying you've got to state x where they occurred who engaged in them  time place substance of the alleged fraud think things of the yes and that's an important distinction you have to allege that those particulars of the fraud not necessarily the false i mean itself which is a component overall component of the fraud what you've got to do and the case law everywhere except the fourth six and eight circuit has been consistent on this this is you've got to state some reason for believing that these things ultimately got submitted to the government and in this case we would submit that there is ample and issue a reliability based on the allegations that eighty percent of the patient you didn't you didn't allege any conspiracy claims either did y an agreement with particularity because you didn't have any of the specificity required by rule nine in the false claim right i mean that's what your district judge found yes yes and it's  but conspiracy well i think for a number of reasons your honor is and you did you need to do that because what you're still going to have to identify what the damages are that are  paid in this case there's not one patient when claim to one of the patients should not have been but we do we do have allegations of a patient who is out of the country that's in the complaint we have allegations of specific patients w being referred from one of the referral defendant jr say that were dictated to be keep were going to keep him were not we're not going to retain them irrespective of medicare eligibility and that those those claims were  one b is the makes or uses types claims and you did not organize your complaint that way is there is there or do you have any tips for me for viewing your complaint in that frame or yet so the present not the way the present my work as is alleged in discussing the relict regulatory framework is that these patients receiving the hospice benefit would are build on a per diem basis so you basically put in these which patients are admitted and retained without with eligibility or beyond their eligibility and then we break out the specific allegations about particular documentation with the documentation that would be go to the makes or uses  subsection of the statute the patient records in terms of the documentation the patient visits and how the patient's condition is described the written plans of care which were of unique product of the medicare regulations that are required in here were not is representing the referral defendants and he would take five minutes and counsel for all of the independent all the individual defendants are in the courtroom but are not planning to argue there is a long line of cases from this court but cooper but certainly clawson to jalali that emphasizes the importance of the nine b standard and the particularities of pleading basically concede it seems to me that there is nothing in this complaint that sets out specific details of an actual claim that was made let me ask you about just tell me with your view of this complex so paragraph one hundred saying for example and one specific instance a patient traveled out of the country for three weeks but was never discharged from life path life plath then bill medicaid for care provided to this patient even during three week absence from the service area what else needs to go into that paragraph to make it survive in your view of an false claims act a that is a conclusion as to the billing but there is nothing in this complaint to end until you just tell me i mean what do you have to have all i think and at a bare minimum there is not a single case from this court where the relator did not have knowledge of actual billing practices this case if you have to have a i think you need to actually have specifics about the claim because under your master's place but just saying if you don't mind if you would stay focused on the this clime i mean he says there's this patient who did this thing and which resulted in medicaid being bill for three weeks when he was in the patient when receiving services what else needs to go into that aircraft to make it survive in your view of the false claims that i think that the relator needs to have some knowledge of the billing practices because your honor the claim needs to say what services were provided whether they were necessary unnecessary whether there was miscoded in these are all things in mast edge that the escort says that these are things that need more particularities if it is what services were provided or if unnecessary services were provided those are the types the things that would have to be in this well gentlemen that are the definition if the patient one even there and medicates can bill for it then i mean when the answer you would whenever medicaid was a bill for what you need to know particularly the patient's name you would need to know what was being billed for  even the claim fails under your in this circumstance i think you need to identify who that is i think you need to have particulars as to what services were provided you need to have specifics as to a claim not  blank allegation that a claim was submitted for an unknown patient at an unknown time we buy a relator that the complaint reveals has no knowledge of billing practices of this i mean the only four cases i'm aware of that fall outside the mainstream of this court's precedent which is clawson of course c e o adkins all of those cases are pretty strict about the specificity that needs to be involved in the public practice yes your honor sat in on billing meetings but my problem here is to speak for myself she so far removed from all of that in this kind of  correct is it your position that false claims that can only be brought by the president of a corporation or vice may know your honor but and certainly your own cases show that's not true but you have to be in a position where you have actual knowledge of billing practices this woman is extremely far removed from having knowledge of billing practices and they essentially say that in their own briefs and so this is not a nuance case by case advancement of the law that they're asking for this is a major jump from anything this court has and it's precedent based on how far removed this woman is from having any knowledge of billing practices and she is basically asking you to do an of logical leap that because i have a identified some allegedly improper practices there would be no reason that they would not have billed and this court's precedent says that that is not a proper inference that we will not assume that we will not presume that in in the hopper case it was inescapable allegedly that if this scheme happened that a false claim was presented but the relator couldn't give any billing knowledge to show that that was true just alleged it was inescapable that if this scheme happened there'd be no reason not to present the claim in this court said that's not enough we will not infer we will not presume we will not assume that a false claim was presented you need did have specifics you need to have a reliable and disha and nobody in this related position  having been a district and having had these seal keep tam cases on my docket for five years i'm totally understand the instinct of the district as to say i'm tired of all these amendments i don't want to see this case anymore because you know we have to report cases that are older than three years having said that i am sympathetic to the argument that they should have been allowed to  time after the complaint became public and therefore subject to adversarial testing why am i wrong about that ok there are a few ways i can respond first they never ask to amend through a motion they never told the district judge what they would actually do in an amendment there was never a proposed complaint provided so there wasn't a motion to him in there wasn't ever an explanation of what we could do to amend never a proposed complaint but even beyond also think it's not an abuse of discretion to look i think the judge use that argument to say that you have amended four times here again before adversarial test for adversarial testing but that's where the no change in the law comes into play is if the law was in flux or if this district judge made a major leap that would have been surprising to this relator then maybe you could find an abuse escrow that sounds like a f arranged this reasoning is i was exercising my discretion i also find it to be futile so i think the orders arranged the way i'm presenting it but i don't disagree solo amendment would cause undue prejudice to the opposing party not argued three where amendment would be futile maybe maybe not i just don't see how demonstrating  unsealing violates any of the provisions of the court course solo case unless it is futility and i don't think a fine point has been put on that argument i think it is futile but i also would refer your honor to the atkins case where a discussion of failure to give leave to amend also is at the end of the decision and that's where these ideas of never asking for leave to a man and not giving a proposed complaint not telling the district judge how it would be fixed and candidly in the briefing here having not told this panel how they would fix it i mean there's no explanation of what we would do and in fact on page one of their brief they say that it's an impossible pleading standard and obviously other cases show it's not impossible but it may be impossible for there relator and they say it's impossible and i see my time is up i think we got  to the complaint until the fourth amendment complaint some six years after the initial filing not a single patient who was referred by any of the referral defendants is identified in the complain this relate or has any basis to know any of the things about which she's speaking about the referral defendants she was not an employee of the referral defendant by the time the statute of limitations period pat there's no allegation she has any insight into the activities of the referral defendants after that time and the theories of kickbacks that are spawn in the complaint and of course this is all in the course of like four or five paragraphs as to each of the referral defendants are simply allegations of the way the regulations work or the way that hospice works with pejorative badge of tubes in conclusion relabels added to them with respect a and sunrise for example there's a reference to the fact that the patients are referred and they receive services under hospice that are not been covered by the referring agency that's the way hospice works and then she says but that's a kickback because they're able to take off these ineligible patients from their rolls what without any allegation about which patients are ineligible there's no basis for us defense and there's no basis on which the court can conclude that there was any kickbacks so there's no indicia of reliability there at all your honor asked about leave to to repleat we think it's very significant again that with respect to the referral is three of them aren't even added until after the united states has declined to intervene these are afterthoughts at six years after the case has been pending after she's already amended three times but importantly by that time what she does know is that the united states is not intervening and that she's going to have to carry this on herself she has every incentive to put everything she has in that complaint and she adds very little of anything in terms of substantive allegations against the referral defendants and i think adkins really does stand for the proposition that if the relator is going to come and say oh but i should have been allowed another time to go at it will in more time there has to be some indication of what the relator would add there was no just as in adkins there was no motion or fifty nine or sixty for leave to to file an amended complaint there was no attached proposed amended complaint and even in the court of appeals referenced in the complaint and there is no such allegation there are no specific patients it is clear that there is a conclusion reallocations there were ineligible patients that were referred but there are no specific patients that are referenced and with respect to the one patient that was identified the one who went to europe for three months first of course to be in hospice means only that your life expectancy is six months it doesn't mean that you're not able to enjoy the few weeks that you have a remaining that you wouldn't be able to go and take advantage of that and of course there is no reason to believe that this relator has any access to billing to know whether life path would have billed for the services while the patient was out of the country there's a conclusory assertion to that effect but there's no indication of reliability that she has any insight into whether that would have happened or not but with respect to the referral defend it's enough to say that there's no allegation that that patient was referred by them at all there is simply no basis to believe that this outsider has any insight into any of the referral defendants practices or policies that would allow her to say with reliability that there were false claims made with reference to their patients the court has said that where someone is an outsider the standard is hard but that is appropriate because of the reputation damage that offend it has when somebody just throws out an allegation of fraud hoping that with discovery they may be able to find something to prove it if there are no questions thank your  we're we're both nurse practitioners and they're the basis of the indicia of reliability for their allegations that false claims were submitted were in the kit in one case participation in weekly meetings about the patients which we allege in the complaint and mistakes did participate in as part of the inner disciplinary group that servicing the patient where they discuss all the medicare documentation they're having to provide including on medicare forms most of these things are done actually done on medicare forms and the other one was simply a conversation with her supervisor this and we also cited all notice on along the same submitted was conversation with the owner of the company the clinic basically said that virtually all of our patients are medicare patients that was it but i mean for just going back to the paragraph that i am asked your colleague about the  patient who is out of the country i mean there's no allegation in the complaint about how your client knew that her or gather that information is there  well and so that it's pretty clear that's not and we think about it with a cup of the company of any size that's a really onerous requirement because you're not going to have somebody who is out there providing the services that knows that the eligibility is being fudged that the documents are being falsified and the person that in there pushing the button sending the actual bill and that he can ask just on the amendment question yes is there somewhere in the record where you gave the district court information about what your amendment would say we didn't articulate precisely may have stated generally that we would flush out certain details and what we could do is flesh out details of these specific meetings and what was your way the way they happened about the discussing the patients we could also flesh out details about the audit that we mentioned in the complaint by the medicare fiscal intermediary which kind of begs the question if claims weren't submitted to medicare what is the physical intermediary already but we can flesh out details on that in terms of the specific claims and patients that were taken