carol versus a health care foundation as we did below paying for patient referrals is illegal it's unlawful under the any kickback statute paying for patient referral services is not the district court conflated those two concepts and in our view committed reversible error in granting summary judgment below now we also i'm looking at the plain text of these acts and having a hard time with your argument that any kickback statute allows any amount paid by an employer to a bona fide employee for employment and the provision of covered items or services that's correct the ry white act permits funding of core medical services that's correct a phrase that includes early intervention services true which include referrals of individuals with hiv aids to appropriate providers of help and support services including to entities receiving funding under the ryan white act for the provision of such services  that's correct your honor and if i may then respond and perhaps clarify for the court the ryan white statute by virtue of the terms that you just read out loud to find referring patients into care as a service as a core medical service as an early intervention service the any kickback statute recognizes the existence and need in appropriate circumstances to provide referral services and specifically and explicitly recognizes the distinction between providing those services and paying the cost of those services and buying the referral itself and paying for the referral itself specifically i know employee i mean there's no there's no dispute rodriguez is an employee there's no dispute your honor and i'll get to that because that's that's a fair point and it's the interplay between the referral services that are authorized under both statutes under the any kickback statute and the ryan w statute and the employee safe harbor the employee safe harbor protects payments made to bona fide employees if and only if they are made to that employee for the provision furnishing of a reimbursable item or service so what happened in the district court below in our view is that the district court first misinterpreted the ryan white statute to authorize the payment for the referral itself as opposed to the performance of a referral service and then that error in our view paved the way for the second error which was to interpret the employees safe harbor to protect that payment on the ground that what they paid for was a reimbursable item or service under the ryan white statute what we are saying what we've argued in our brief is that there is a chasm between paying for a referral and actually paying for the service of referring patients into care that is a huge difference under the any kickback statute that's the reason why under the referral services safe harbor if you pay for the referral you're not protected by the safe harbor you're protected by that safe harbor if you comply in addition to the disclosure requirements of that safe harbor if you comply with the requirement that you're paying only for the cost of the service and not for the referral itself were it otherwise the any kickback statute would be entirely eviscerated so our argument with respect to the grant of summary judgment below and as you know we've also argued that the district court committed error in its application of rule line b i don't want to i don't want to be remiss in  mentioning that because the reason why we're having this discussion with respect to that very narrow issue on the summary judgment below is because all of the other claims and kickback allegations and health care programs medicare medicaid where essentially taken out of the case through what we believe was an unduly restrictive application of rule line b in a in a manner that we believe was inconsistent with the circuits precedent and inconsistent with the detailed allegations of the thirty minute complaint but i wanted to say that because i did want to focus on this first given given the press of time so with respect to your honor's point that is or essential position that the court misinterpreted ryan white to permit payments for referrals in other words capturing program business for it for for the organizations own benefit as as a reimbursable item or service when in fact the language defines it as a service and is the statute is defining it as a service there's no basis in law or common sense in our view for interpret in that in a way that would contradict the any kickback statute requirements and the safe harbors requirements under the any kickback statute if you pay for a referral and that individual is then provided services that are paid for by federal health care program and there's no dispute on this appeal that ryan white is a federal health care program then you violated the any kickback statute and you know interestingly that the and as the as as the court is aware the government below adopted that same interpretation of ryan white and we believe it was erroneous and we believe the district court essentially adopted that iranians interpretation but as you also know the government general position is that you can't pay for referrals and have that protected by the employee safe harbor even when the employees bonafide because there are two parts to the safe harbor first bona fide and second the money has to be paid to the employee for the provisional furnishing of a reimbursable item or service office of inspector general right or as the government says they're right and i'm drawing the sting as it were because i know that's going to come up that they filed the statement of interest below and that's why i wanted to make make make the point that i just it which is that the government's general position with respect to federal health care programs other than ryan white to go to the point we're making before about the employee safe harbor is that that safe harbor does not protect payments that are made even to bona fide employees that are solely for the referral that are not tied to the services of the employee you can have incentive compensation no problem you can have a bonafide employed physician at a hospital or a group practice and pay them out of a bonus pool they can be paid a percentage of collections not a problem protected under the employee safe harbor because it's tied to their services which you cannot do what the government has stated in the medicare medicaid context numerous times is that you can't pay for the referral you can't capture the business you can't game the system that you're not allowed to do the reason they took a different position below was only because they interpreted the ryan white statute as allowing that uniquely among federal health care programs paying for the referral and what we're trying to say is that when you read the statute it doesn't say that it says it's a service and kickback statute contemplated the provision of referral services impose very specific requirements for the provision of referral services to ensure that you are in pain for the referral that you aren't undermining patient freedom of choice that you want encouraging anticompetitive behavior in the marketplace and they did not they did not do that here white by virtue of the salary he was getting for connecting patients to care that is correct but what we are saying is that the bonus checks the bonus program that was paid separately from the salary that was issued entirely separately and only for self referrals to age chef that is what violated the any kickback statute we're not challenging the legitimacy of the salary that is now we're saying violated the any kickback statute in the false claims act we are arguing that would violated the law was the separate bonus program that was specifically implemented to generate sulfur for us to the organization because no organization no matter what whether it's for profit or not profit whether they're involved in otherwise meritorious medical services or not nobody is allowed to game the system by purchasing referrals for itself at the expense of others and at the expense of patient freedom of choice and we  the bonuses paid regardless of the funding source whether it was the funding source was the ron white program or medicaid medicare that is correct your honor and that's why we sort of in some ways in this artificial a narrow world when what i'm talking about this because of the ruling be a tough environment application on the motion to dismiss which we think was wrong as well but that is correct so this bonus program operated agnostically with respect to the payer source whether was medicare medicaid ryan white if they connected a patient two times to an a t f facility that's when the bonus was was paid out if the patient when elsewhere they did not get the bonus now interestingly every witness on both sides testif that except for one e h f witness jamesville a quest who started the program the bonus program in florida and it had started earlier in california but he had started it in and florida and he testified that  inception in its concepts in the bonus program was intended to pay the bonus to the linkage coordinator no matter where the patient went and which is very interesting because everybody else testified that's not in fact how it worked and that's not in so so we are not making the argument that h f could not have appropriately for clinical reasons for example referred a patient that was tested and tested positive for hiv to its own service centers we've not made that argument and because the ryan white program does contemplate under one roof comprehensive service provision and the argument had been made that well but if you interpret it the way the relate is or interpret it that that would not be possible that's not so you can refer to yourself in an appropriate case for clinical reasons perhaps it's closer to your criticism is that they are the they only refer to themselves right well m criticism is that they're paying bonuses to ensure that they only come to themselves but we're not saying that if you're not paying for the referral you couldn't for a non remunerative purpose for a clinical purpose for an appropriate purpose refer to your own service center and i would preserve the goal of the riaa why program for allowing the possibility of under one roof comprehensive service provision what we're saying is you can't buy him you can't buy you can't buy the referrals you can't game the system by buying the referrals to ensure that your capturing an exclusive stream a program business for yourself that's the essence of what the any kickback statute stands against and there is nothing in the wording of the ryan white statute that would allow that public policy imperative to be overridden that's that's really what we're what we are saying and we believe it obviously applies to more than the john doe claims in the complaint that it applies to all of the ryan white your honour's and may it please the court and murphy on behalf of affably aids healthcare foundation this case begins and ends with one simple fact there is no dispute that the linkage to care services that age after vides are covered services under the ryan white act indeed they're not only covered services but a core component of the ryan white acts public health mission so the united states explain below that brings this case squarely  within the employee safe harbor to the entire kickback statute because congress expressly excluded from the statutes reach payments made to employees employed bonafide employees employed in the provision of can services that are covered by a federal health care program here we don't have a dispute over whether the linkage to care specialists or bona fide employees and we don't have a dispute over whether the services that they're providing are covered by a federal health care program these claims thus fail as a matter of law because they simply don't state a violation of the statutes that have been invoked here i could talk a little but i think it's important to put this case in the context of the ryan white act because that's really what this case is about you know it's quite different from any of the other cases courts have been confronted dealing with referral payments in the employer context we've got a statute here that is is unique among i think federal health care programs and that it's designed to deal with a particular disease and specializes in providing funding and services for that disease because of the public health risk that it presents and that's why linkage to care and referral service are and always have been explicitly covered by this federal statute because that is a core component of what the federal government's trying to achieve here ensuring that individuals who test positive for hiv not only get the care that they need but get the care that will help ensure that this disease doesn't skinny just respond to the argument they make that a point well taken out of the ryan white act but you were also saying these bonuses when the funding was not under the ronald while you were at that that makes absolutely no difference on the ryan white act covers the provision of linkage to care services regardless of whether the ultimate care that the individual is going to receive is covered by medicare or medicaid or  whatever federal program it may be because the the linkage to care service is covered by ryan white and so even if you know alternately they may get services from h f or somebody else that's covered by a different federal program all that matters is whether the payments that are being made to the employees are payments for a service that's covered by a federal health care program and here it's covered by ryan white regardless of what the kind of insurer is that is is going to pay for wear whatever other types of care a patient may receive in the course he says you're not paying for the serve you're paying for the referral i don't see how that's a meaningful distinction under the ryan white act i mean the service that's covered under the ryan white act is referring people to the care that they need and i mean i do want to be clear you know that what we're talking about in a ryan white is something much more than simply handing people a sheet of paper that says here are some places you could go get care in what's being provided here is is a service of helping individuals understand helping them know the type of care they need tell them where to get it work with them to overcome financial barriers emotional barriers practical barriers you know linkage to care specialists will help them set up the appointments for him to go to the appointments with them so so what's going on here is much more than simply you know we referred somebody somewhere and that's that's the end of it but that said i mean that the ryan white act specifically uses the term referrals as what it is covering as early intervention services so i don't know how you can really you know divorce the referral but it does cover from some sort of other referral that it supposedly doesn't cover it covers referrals and that just makes this case in our view a very easy case a very narrow case it is completely controlled by this particular statute that's here you know obviously there's broader issues about that courts have confronted about when referral payments are and aren't covered under other statutes and the doctors who are hang other kinds of vendors health care vendors or pharmacies or the unrelated kind of entities and their kickbacks associated with that that's a different kind of problem than paying an employee to do his job that that's absolutely right and you know and i think that you know the united states was correct when it said below that you just you don't need to get into any of the issues that you might confront in different contexts about who can be paid referrals what types of referral payments count because this is just that easiest employer safe harbor provision case you're ever going to encounter because the actual service that the federal health care program covers is the service of referring the individuals who test positive for hiv to the care that they need now i take them excuse me and your your contention is a referral is referral it doesn't have to be neutral it because i think that there's i hear you poets in this case the issue is well if they were neutral referrals we wouldn't be arguing that there's a violation but your your contention i guess is the terms of the act it simply do not make that distinction absolutely and it's not only  contention it was the united states position as well they specifically a pint on this issue below and agreed with us that there's nothing in the ryan white act that prevents so called self referrals to the contrary as as i i think i heard the relator is concede here today you know everyone agrees that congress explicitly contemplated the idea that it would be a good thing if all of these the forms of care and treatment and testing and all the services that someone who test positive for hiv you need are provided under one roof because that in and of itself furthers this critical federal mission of getting people to the care of the united states god below one stop shopping exactly exact and you know if you look at some of the legislative history about early intervention services in particular and about the ways congress has tried to ensure to keep in you know evolving the ryan white act in the funding it provides to ensure that it's cheating its objectives you know they noted that some of the barriers people have encountered is the difficulty of getting the services set up and that it makes it easier for them if the same person can do the testing then help them with the linkage and connect them to the care and all of that is available under one roof so you know what what what relator is are suggesting here is a theory that would really tremendously disrupt this federal regime that congress created in the unique context of the ryan white act and we do think the case in can be resolved on that i think that alone also deals with any concerns about whether they would have liked to broaden this chain clude other patients because it just wouldn't have made a difference even if they had some john doe's who one eligible for medicare or medicaid you would get the same result because no matter what you're always going to come back to the basic problem with their case which is that these referrals this linkage to care service is a service that's explicitly covered by a federal statute i explicitly covered by a federal health care program but does just to be clear i mean if a if medicare prohibits a payment you  just to be clear about what what would really be happening is if there's nothing first of all that i'm aware of in any statute that says you can't have this covered to the extent medicare and medicaid don't cover it that actually just reinforces the conclusion that the ryan white does because part of the eligibility for whether ryan white act funding covers something is whether it's not covered by another federal health care program so you know if you can if if linkage to care is not something for which you could receive federal funding under medicare or medicaid that just means ok you can always get it under ryan white act as long as you have you know a patient eligibility other other aspects of it satisfied so that's why in this context it makes no difference because there's there's still going to be that the linkage to care service itself is still going to be covered by the ryan white act and the other thing i just want to make sure that we're clear about here is i mean that the allegations here about whatever claims were false have nothing to do with the submission with with receiving federal funding for the linkage to care services or the bonuses the only claims that they've ever said they think are false are the ultimate submission of claims for later provisions of care by a chef is by by you know health care facilities and all of that that they've never challenge to the reimbursement or federal funding or any money that was received by state and these are federal  for purposes of providing the actual linkage to care services or the bonuses which you know were fully disclosed to the state had been paid for in many instances through state funding that is funding the state got three ryan white act so i think all of that just reinforces the conclusion that you know in this particular context we're not dealing with uncovering some nefarious scheme this is just the ordinary and intended operation of the ryan white act which does not in any respect  going on here but there are so there's contracts where basically the state or the county would get money from the federal government and then age have become such a subgroup through through them and i think here you know what strikes me as a particularly notable fact is i mean there's no dispute that the the payment of these bonuses was disclosed in these contracts there's also no dispute that the contracts actually obligate h f to provide these linkage to care services i mean that is that is part of what we have to do to keep receiving the funding here so it would be quite extraordinary to then say that there is some sort of federal law problem with us living up to the terms of the contracts through which we are receiving the federal first the notion that there's no meaningful distinction between paying for the service and paying for the referral is is difficult to reconcile to put it mildly i'm having a hard time understanding what it is well  let me try and help with that the anti kickback statute is all about outlawing and making a felony in fact paying for referrals ensuring that a referral comes to one provider over another  service a safe harbor this is not a stretch i'm not i'm not really going pushing the envelope here in interpretation the referral service is safe harbor explicitly requires as a condition of receiving protection against prosecution of the any kickback statute that you are not paying for the referral itself it recognises that there is an important public policy in benefit to referring patients into care but it cannot be done under circumstances that  an intention to corrupt patient choice or medical decision making and all of the other public policy imperatives underlying the any kickback statute which is why it requires that you not pay for the referral i also because i only have thirty seconds left i wanted to make the point that it makes a world of difference whether you're talking about medicare medicaid or ryan white the fact that ryan white pays for a referral service and you were saving a salary for that service does not mean that you can pay a one hundred dollars cash to an employee to or for a medicare patient which doesn't pay for furloughs or referral services and then submit services reimbursable by medicare and not violate the any kickback statute they're very different thank you court is adjourned for that week