affected by the hurricane so this is a special sitting in a wheel so you know where so we're a little you know i'm challenge in terms of being in new orleans in this space but the cooperation of council as we reset the cases i'm privileged to sit this morning with judges king and jones to hear these cases i believe in looking at all of your familiar with the usual rules the main one is to keep your voice up  as the court knows the heart of any conspiracy is an agreement and there must be proof in this case that dr gandhi agreed with someone to violate the law here not one witness testified that dr agreed with anybody but you know that it's boilerplate conspiracy law and we get tons of cases where there's no you know evidence over and over agreement whatever whatever you know about plate locks there's you know person that happened know all the ingredients inferentially can there be arguments about inferentially can you infer an agreement and here there's no evidence on that as well what the government tries to argue for inferentially argue that there's an agreement is first that dr gandhi was one of these go to doctors they use that term fourteen times in their brief and in two separate argument headings but it's a term that is made up by the government they asked that question of three different witnesses of d temple who said that she had seven different go to doctors not one of them was ganji the agent agent bradford then said she's heard that term before in general in these types of cases and finally nurse davis said never heard of it in this case some would you please from tell us what was the structure of the prosecution in other words what witnesses testified against these defendants sure so they were employees of c h h c doctors who testified a nurse who testified there was a number of people who testified statistician no one testified specifically about dr dungy well let me just try to home in on it a little bit more so there were no patients he said i signed up but i never got services correct none of these other doctors as i understand it have been associated directly with c h h c is that correct correct so there's no direct evidence of a missed deed by dr gunshy that is corrected that's correct and so what we're left with is certain arguments like dr gandhi didn't see the patients before she certify them that's one of the main arguments in the government's bri of course that's not evidence of a conspiracy even if true but but more importantly it's based on a false premise that she had to have seen the patients face to face before certifying and the rules are very clear that she need not and it's certainly not evidence of a conspiracy anyway and i'm one of the main arguments in the government's brief and a trial where that there were these ninety three blank forms that dr gandhi signed at the bottom and they may argue that this is evidence of fraud this  one of their main arguments and the reason this doesn't prove a conspiracy is because a couple reasons one there's no evidence that when it was ultimately filled out by c h h c that any false information was put on the so what the government would have had to show is that dr gandhi signed those blank forms knowing that c h h c would fill it out fraudulently or falsely and that just didn't happen by the way there's a case very very similar to this one from your sister did she give testimony suggesting that what she did here was similar to what she'd done you know otherwise or did she have any past history of doing these home and so yes she she she had a practice where she certified patients for home health and came and started working at c h h c the blank form issue took up a very small percentage of the overall patients ninety three out of the many hundreds that she had certified and if i could turn quickly to count four which is a subset of cactus a subs countless carolyn stuart for patient all of the evidence is regarding count four shows that this patient in dr gandhi's mind needed home health it's not a question of whether she was actually home bound or not the question is did dr gandhi believe she was homebound if they did the was there any evidence about what was wrong when a steward i think there was right absolutely judge there was twenty two hundred hundred page file showing all of her ailments including that she had a broken ankle well now wait a minute before you get to exercise you know that supposedly ird her or her treating physician testify right that this is critical her treating physician opinion she was not home bound because she rode her bike to meet the treating physician the problem was that riding of the bike happened in two thousand and sixteen the indictment talks about a certification back in october to december of two thousand and thirteen there was no indication in the file that mrs stewart had written her bike or anything else that would show she was not home bound in fact d decertified her did not reoccur for home health when she recovered from her ankle surgery and in fact also noted in the file that she had a vitamin d deficiency and recommended that she get follow up so it was clear dungy was reviewing the file carefully and was certifying or based on those twenty two hundred pages that were there and this is so important because the question is not at the end a debate about whether it was home down or not the only question is did the doctor dr johnson believe she was home bound and i don't see i don't think that's what the law is what's here so i take it you know because the medicare regulations are pretty clear about what supposed to be homebound and if a doctor quote only can only quote believe someone is homebound i'm not sure that's fish and so so for to for there to be a criminal violation she would have had to knowingly certify her if she did knowing knowing that she was not home bound in other words if she in good faith certified this woman believing she was home then and it turned out she wasn't that's not a crime and she was just like the other patients the doctor gun she did not personally see but she relied on a nurse court to use your language judge jones said there was no direct evidence by of a misdeed by a lame davis either there were eighteen government witnesses called at this case and the government was unable to produce a single piece of direct evidence against elaine davis no doctor testified that elaine davis participated in any agreement of any kind with them or about any criminal conduct by her or even that  davis had knowledge of any criminal conduct the reality of home health care is that not every fraud in home health care reaches all the way to the top and the government could not accept the reality that in this instance the fraud in this case and there was fraudulent conduct by different doctors those doctors testified but that fraud why weren't they indicted they were indicted in other kind of their case in other cases they were not by the other indictments in fact it was the fact of the that dr murray was indicted that caused a lane davis to fire him and that's why he was terminated when she learned that he had been indicted for home health care fraud she terminated him immediately what we have in this case is the government has attempted to paint this picture of a fraud orchestrated by own lane davis relying on circumstantial evidence but the inferences that the government would have this court draw are are either not justified by the evidence or they are just flatly unreasonable first elaine davis didn't have this open set of a doctor she never hired her own set of doctors only davis didn't hire any of these doctors she left medical decisions to people who were qualified to make them and these rubber stamp doctors and that's the government's term didn't bill thirty four million dollars for services that were never provided the government did not show a single instance at this trial of a service that was not provided and remember the government had over seventeen hundred patients that it could choose from because that was christian's entire patient base that it could choose from and cherry picked for that it said well these patients weren't home bound the jury rejected three of those patients out of hand and the fourth patient it was clear that elaine davis had nothing to do with that patient and the biggest misrepresentation of all by the government and it did it for christian over seven and a half years and i said to the jury look here's the average for episodes of care and look at what christian did well that number was four times as great naturally because we're dealing with seven and a half years the fact is christian home health care was ranked twenty seventh in louisiana in terms of the average number of episodes of care does that make the other twenty six companies guilty of fraud automatically and it is only makes the government guilty of defrauding the taxpayer with using our money would agree with that but it is only if you believe the government's montra in this case which is home health care is not designed to be a long term solution it's only if you believe that montreux that you start to look at the case that what but that's a position that is not justified by chapter seven of the medicare regulations it's not justified by the c f r and it's not justified by statute yes elaine davis paid referral fees she did so because she believed it was legal actually judging the heart instructed the jury as to the circumstances under which it was legal to pay referral fees and with you have to remember this was not a case involving kickbacks it was an anti kickback statute case they were never charged in the indictment so what does that leave this court with well it certainly doesn't leave it with a conspiracy with dr gandhi which is what she was convicted of she'd only spoken to dr gandhi at most twice in her life and i understand that circumstantial evidence is what is a vailable if you are going to prosecute conspiracies not everybody writes the conspiracy down but the inferences we draw have to be reasonable and they have to be justified and what we had in this case was a very talented group of prosecutors who specialize in prosecuting health care fraud who came in and painted this c e o of fraud and then they put elaine davis in the middle of it and they said oh she's the head of this company she must have known what was going company's stuff functioning there with it shut down it was shut down the day the government came man unannounced and they seized all of the bank accounts they seized all of the records and they threw every one of the patients out on the street i asked the f b i agent what was your plan of care for all of the patients of christian response what a plan of care that was the government's approach to this case the only possibility in this case is that home health care has a structure where the people who are closest to the patients can commit fraud they can doctor their notes and then as you go up the chain of supervision you believe that what is happening beneath you by your employees and went to the lower people get out of this fraud they are paid on a per patient visit by the company and so they were getting their biweekly paychecks that's what they got they were able to make a living by defaulting on what were they ballot i mean you have said that all the services were provided and so is the fraud and they agencies having handled patients who were not eligible for home health care is sat where you not eligible at all but somebody went out and took their temperature in their blood pressure every other week or so they were certified as eligible the nurses treating them knew that they were not eligible and that's the woman who testimony of two nurses listen jackson kimberly celeste seen both testifying that no skilled certainly generally speaking skilled services were not provided because the vast majority of their patients weren't homebound they could leave their home or they could get out they could perform the services that were being provided for them on their own which also how come they continued to work for the city the nurses your honor it's very you know she the nurses were not only getting their monthly salary which they depended upon but they were also receiving a referral fees from mrs davis up one hundred dollars per patient so the more patients that they recruited the more money that they could make i don't remember that being a big point in your brief yes your honor i would point to the team spirit contests as well in addition to the referral fees on the team spirit contest was orchestrated by mrs davis where she  all of the other medicare fraud cases and government is to be commended for pursuing fraud there are no no patients testifying that normally there are be a bunch of patients t bonuses are minimal i mean i'm not sure about this referral fee but the bonuses are minimal the amount of money the doctor gunshy got out of this was one thousand dollars per month which is a pittance compared to the other on schemes were and mrs davis and her entire family worked for the agency and they collected a million dollars over something like five years for four family members and again that's a that's a pittance compared to the millions that are involved in these other schemes and yet you want to you know you've your honor i not go after them in a civil way instead of trying to put her in prison your honor i'd have two responses first  the question is not what how does this compare to other fraud schemes it's whether the evidence was issued to support the juries or it may be but if you can convict on progressively less evidence incriminating the particular defendants then that's a bad thing let me address your honor's question this way then identify think what are the six best pieces of evidence against dr gone she and then i can adin if i some additional ones as to mrs davis i'll go through them briefly and then i'll try to to flesh them out for the court but you don't deny the generally delegation is that she is signing off on blank forms additionally honor dr gone she as well as the other doctors i gained access to medicare beneficiaries for which they could build medicare part b for example with the ninety three face to face forms that were blank a doctor gone she billed medicare part b more than three hundred thousand dollars for services that were not provided because you say ninety three playing form to use a service is not provided you have to prove all that you are the blank forms that recovered from that from death but you have to i mean i sort of agree with him point forms is one thing but was there false information on the forms your honor dr gandhi with signing these forms without any information not only a sheet as she had testified about i'm sorry that she testified that she was signing blank forms without any information or was an information that was gleaned from you know a nurse practitioner who went out and saw case was the doctor got you know get davis in terms of the conspiracy because otherwise you're looking you know didn't see any predisposition no prior connections with this operation you know your honor allien datsun testified that generally speaking the home health care operates as getting patients from their primary care doctors people who are familiar with the patient a medical director isn't supposed to be hired to refer patients or said i don't care doesn't prohibit that doesn't your honor it did there is not a direct i mean i'm not saying this is good but what i'm saying is just in medicare doesn't prohibit operating  health care agency that way i mean if i go to the hospital the doctor who takes care of me no longer takes care of me in the hospital because there is a hospitalist and i don't like that either but that's the way it works your honor but that's not w this is the way they do it in drug conspiracies right she was explaining to make your rules what's right and what is permissible under medicare how health care is supposed to cost not impermissible to have the medical director certif the patients instead it's impermissible if they are certifying teachers in exchange for money and it without seeing the patients and that's what was occurring in this case your honor it may have been a closer case if if there was any evidence that dr  she certified one hundred patients in a year and she was getting a thousand dollars a month that means she was getting at at most assuming she did nothing else you know a hundred twenty dollars per patient your honor not only that that's correct but not only that she's getting access to these been officiers who are medicare beneficiaries she then in terms bills medicare part b for services  it's not rendered not reader for example your honor all of the how did you prove that they're at their ears and that's not part of a conspiracy anyway that would have been grounds for a separate medicare fraud not for conspiracy with  yes your honor and all the credibility determinations are drawn in favor of the jury's verdict in here that the jury rejected you don't prove a concert how do you prove a conspiracy between a and b if you when the only of the only find doctors who are also medical directors were acting for example dr murray it testified that she signed but did not date medicare forms dr gone she did the same thing she signed but did not date they said this is basically am let me finish by explaining how she was acting like the other doctors and i'll continue on to the rest of the evidence she was signing forms that were blank and dated that those were recovered from her office not only worse which she's signing those form s for some of those those patient two hundred patients i'm sorry with no indication that she has reviewed any of their records mrs coo g s or anyone else's nodes showing that she's the inference being she's unfamiliar with the patients she only has thirty files which have any of her own personal notes additionally your honor i would point the court to our government exhibit twenty nine that's dr gandhi's personnel file at christian she spoke with a person at  christian in two thousand and fifteen at the end of the conspiracy she says that she's been looking at the rules and she has to be able to show that she's reviewed no it's part of a case and she then asks for a list list of patients that she certified for question and how and patient nodes just in case she needs to show how she is providing oversight suggesting she doesn't know who she is certifying that's nonsense how many doctors can remember if they're taking care of hundreds of patients how many are going to recall every person's name your honor point isn't that she has to go to recall them it's that she doesn't have a record of them in her office because she's just signing off on documents without actually reviewing them she doesn't have her own notes at all or how many  doctors when you say her own notes doctors have been required to keep all their notes in computer files for about ten years now so dr gandhi did not have her own it's a computer files either and there's no suggestion she does have to be started find these people for home health care and basically what you're trying to say is that the medical director is required to be the primary caregiver for the patient who's certified and do medicare regulations require that medicare regulations require that if you're certifying someone for home health care you have to be i mean i know that's what they aspired to but do they require that medicare requires  when you certify it as someone for whom health care that the patient is under your care that the person needs skilled services and that the patient is homebound in fact on the face to face form and asks for the reasons that a patient is homebound and dr guns you can't just sign off on that because their records she is the one who has to make the medical determination that is why would i go back again to this business about the the nurse practitioner medicare does not prevent any doctor from going through a nurse practitioner to make that certification is that not correct your honor medical requires that the doctor just answer me yes or no it does not i can't even talk to my own doctor anymore in many cases without going through the nurse practitioner and the doctor relies on what the nurse practitioner does know this is in private practice does medicare prohibit  else that somewhere on that form otherwise the doctor his just sort of that they are relying on someone else's to nurse practitioner is there enough burma to requirement under rules that even if the docket and person to do they've got  the doctor must personally do it end of story you don't personally do it king's x but in fact the language does allow someone other than the doctor you know to do it i mean it's flap there so if that's the if that was the or the prosecution says obviously the evidence shows the doctor did not personally do it and you're not helping me understand how this how it's criminal  no your honor she did not testify any single aside from i mean even mr or didn't testify right so not not a single patient testified that they were not home bound at the time that they were receiving services correct testimony what the vast majority of these patients were not homebound that was from both nurses both testifying doctors all of whom testified that the divest majority of these christian patients were not home bound but additionally your honor it it was that dr g correct that no doctor testified about her guilty knowledge dr murray testified that she had him come into her or her office and offered to pay him money to sign forms after he had already been terminated as a medical director that his testimony is that record twenty five forty an indictment says others as well as the jury instructions that's record on appeal number forty five thirteen and forty one ninety one both of those both the indictment and the jury instruction says others i believe there's a supreme court case rogers vs the united states three forty us three sixty seven coconspirators on even required to be named and so when you're saying others this does relate to some of the testifying folks from christian another direct piece of testimony against miss davis is qualifications ms davis immediately asks whether whether mr mcgee can bring in patients from another home health care company i said came out on cross examination that company was fraudulent based on mark moore said don't worry about it we have told her own set of doctors identifying sort of this group of doctors that she that she's relying on criminalizing about that she has her own set of doctor do well which could mean that we will independently by a christian that showed two things one it showed why misstate was needed her own set of doctors her own words and to explain that misstatement either knew or was deliberately ignorant and there was a deliberate ignorance instruction and not knowing six up there again the government three so give him six and give me the lorcan to cover the ground here thank you ana please the court i'd like to start with this idea that because dr started certifying patients when she worked at sea change see that that somehow fraud that people went from zero percent to twenty six percent of government's exhibit one thirty three and i think this is the main problem with the government's argument they assume guilt based on certifications certifications by themselves in a vacuum is not fraud what the government must prove is that these patients were in eligible when they were certified and that gandhi knew they were ineligible the fact that are very important are so for the ninety three out of the many hundred where there's a blank form she relied on her nurse practitioner which is permitted by medicare she's  certification of all these people was based on information gleaned from the nurse practitioner yes your honor and and so that it's clear on those ninety three forms attached to those blank forms are the nurse practitioner notes which are an issue and by donji and this is critical they're vend given to see h h c and they are filled out correctly based on what's in those notes they're like to them know yes your honor and this is so important in other words all that we're talking about here is a record keeping debate between the government in the defense the doctor in this case on a very small percentage didn't fill out all the identifying information the face to face one instead what she did was she clipped the nurse practitioner next to them and michele the nurse practitioner notes and c h h c filled out those ninety three forms with the information that was attached no fraud is alleged with the information that was filled out nothing illegal or fraudulent is on those ninety three forms to show a false information or be that the patients were ineligible and i think the best example of this is carolyn stuart count for work this was a blank form piece dr got to not only you can see reviewed the nurses notes by signing them but she makes a notation in the file and this is so important that carolyn stewart had a vitamin d deficiency and please send her in for follow up which is direct evidence that she reviewed it looked at it noticed the deficiency and said come on in so that we can address this so important for who put in that file that her signature was on the bottom of those not on those nurse notes and that ultimately the blank form that she signed on the small percentage of cases was filled out accurately medicare could  disallow certification minors like our reliance on nurse practitioners could it not and your honor and if this case shows anything it shows that the government would like that to happen but this case is not not a good celestin two nurses who said that services were provided critical here is that these two nurses weren't dr gandhi's nurses and they were asked pacifically do you know anything about dr gandhi's patients and what do they say no we had nothing to do with dr  and we don't know whether they were eligible or not so those two nurses who testified that way have nothing to do with dr donji finally the last argument that the government made was that she acted in a way similar to dr murray of course this is exactly the type of evidence that courts do not allow for conviction saying one defendant looks a lot like another guilty defendant but here she doesn't look anything like dr murray dr murray came in after the fact and signed those forms and here's what's important because there is no conspiracy between elaine davis and dr dungy but my time's almost up i just like to say dr gunn gee i have constituted this record so much and the law so much this is one of those rare cases where i'm up here arguing for someone who is innocent and i believe that and i would ask the court to review the government's arguments just because not say that lightly i don't your honor i don't say that lightly she is ari larson may it please the court the government just told you that the vast majority of the patients said christian were not homebound over six hundred doctors and i asked both of them specifically on cross examination now when you failed to provide services or now you're testifying you failed to provide services was there anything in your notes that reflected that no did you ever tell davis that you were providing these services no because they didn't communicate with elaine davis they had a supervisor and in one instance one of them was supervising the other and they were covering up for each other elaine davis wasn't part of their little fraud ok what about the ripper all fees the referral fees your honor the contest the infamous contest that the government dwells on the flyer for the contest says as follows patients will only be counted toward your total number if they are medicare eligible and ready for a meet it admission and services provided by christian home health and christian hospice service that that's the team spirit deal what about a hundred dollar refer fees she believed it was perfectly legal and then they were paid only to bona fide employee and it's not illegal it's it it's not illegal and the hundred dollars frankly wasn't even the market rate for the city of new orleans that was a third referral fees and the million dollars your honor if you divide that out by the number of davis who work there and the number of years for this conspiracy it comes out to less than twenty thousand dollars a year that's what the the million dollars adds up to what we have in this case and the tax returns are in evidence they were put there by walter davis jr some years this company made money some years this company lost money this wasn't about greed this wasn't the classic home health care rip a ship's company people taking millions of dollars for things that weren't happening a lame davis spent her life building this company she worked for six years without a salary so that she could buy this company it was a family business in every sense of the word elaine davis who has never been in trouble one day in her life did her best to run a good home health care company this is a difficult difficult industry and she was surrounded by people who frankly it doesn't draw the top of the medical profession in every instance who may have been for frame where there was a market want a better word for you know these services it's out of my right timeframe was yes post katrina home health care was basically some of the only medical services of vailable and the demographics for the new orleans population i was questioning liane dotson about that i said well did you look at the demographics for new orleans to see how they were different the number of patients admitted for psychiatric katrina new orleans was eight times the national average you don't think that has an impact on the number of people for home health care this conspiracy was sent two thousand and seven forward right it to pass nine two thousand and seven i believe your honor what we have is and to talk about murray who is now after the fact all of a sudden the government is saying the no no the conspiracy is with mary it really isn't with guns a letter creates a problem with the conviction indictment but the first time that elaine davis ever spoke to dr murray in her life and that her testimony and his testimony was when she called him to fire him if that's the beginning of the conspiracy it's off to a pretty rocky start this instance in which they said well she told dr murray to sign these forms she called him into her office yes she did because these were forms for his patients and he had neglected to sign them because he had been out of town for an entire month they had sent two previous requests to dr murray saying dr murray you certify these patients those homebound you need to sign your four eighty five he was out of town he finally gets back he finally gets called in and he signs the forms for his own patients and if you look at the forms and had she fired him yes because he'd been indicted was he still a doctor and eligible to certify patients for home health care absolutely he was doing nothing wrong in fact he was doing exactly what the law required him to do and then finally the government mentions that you know you don't say that as a legal matter the conspiracy could have named donkey but in fact been married as quote others i'm assuming that that is a possibility but i'm not sure how it would play out in that the government argue that no they simply argued this vast conspiracy including these doctors that elaine davis was orchestrated and the conviction they end up with is with d and figure it all out so case will be submitted thank you