analysis and filed suit it using the providence hospital defendants and integra severe problems hostile ascendance and a company that assists with their clinical documentation program a fraud specifically integra says they submitted medicare claims that fraudulent claims included three diagnoses that the patients actual medical condition did not warrant by their nd amended complaint integra had cut and pasted some allegations from the internet on websites about clinical documentation and it had added a handful of statements describing interviews with unidentified individuals none of which related to providence coding  applies and that's because integrity self in its complaint repeatedly describes as what gave it an indication of fraud it says that in multiple paragraphs of its complaint so i think integra would that i would point to the st is the one that the th circuit relied on in the baylor decision because providence was not the only hospital targeted by integra with its analysis of medicare claims data and  which is that the defendant was ahead of the curve at coding and the context matters here when c m s moved to this particular he meant system for in patient hospital stays for medicare patients expressively encourage explanations consistent with the facts alleged the plaintiff needs to identify quote something more to move across the line from possible or conceivable to plausible something showing that the other possible explanation is less likely to be true so i think if i if i could you use an analogy if d my athletes run faster than everybody else's it's possible that the or it's possible d that they're just better or harder working and that would be similarly both possible but in order to get to play in fraud you would have to do something more isn't that kind of the same argument on your side that is judge fox the rethink that's exactly right and they didn't do that something more but i'm all right that here they are statistical analysis activity is going to have some spread but your argument is not that we just happen to be at the top it's a be and to be better even want to say better more accurate more aggressive only within the to give you a concrete example of what i mean if you look at table eight of their complaint which is that page d r eight hundred and ninety two dollars it's a column it's a chart for the severe malnutrition diagnosis all of the claims that they say were fraudulent only coded by diagnosis code and if you look at the number of fraudulent claims they say worst admitted the highest one is one hundred and three that is one hundred and three claims over seven years from thirty four hospitals that works out to each hospital submitting a claim with this diagnosis combination once every two years the question about whether that is possibly because of better coding once every two years when that cation presents or that is a fraud scheme applied in a very very sparing form i think is statistics to try and prove causation you're on very sort of shaky territory and they are you just never do them no i'm not saying you could never but i'm saying it's certainly harder and there may specific facts though about one of the inputs how much height of a company was reporting and then you had specific facts about the output that pipe once it was being sold was not identified with a foreign place of origin even though it had been imported so the combination of those pictures of the pipes for sale the shipping manifest and the data analysis that an expert did or something that two of three judges on the rd circuit thought were sufficient to allow the complaint to go forward in doing that the rd circuit did something that is different from this court this court has that in the event case that an outsider does not get extra benefit of the doubt or a lower pleading standard they don't get an easier path because they're an outsider but the rd circuit and letting that statistical case go forward said because they're an outsider we're going to give them some benefit of the doubt if i can go back to the news media question for  just a moment it looks like you're encouraging the court to adopt a very sleepy definition of news media and just you know what is your best authority that your definition fits with the ordinary meaning of the phrase so your honor we provided at page forty eight of our brief dictionary definition of news and media that we think are consistent with the way the court approached defining terms in both schindler elevator and government vetoes the use of the public disclosure bar or if the government wants to go forward they can but the definition that we offered we think is the one that's consistent with the definitions of news and media as they as they occur in sort of an ordinary understanding and they avoid raising the problems that the supreme court focused on for example and in schindler when it tried to figure out if there was a narrower way to define report it would have excluded other things that were necessarily reports and there was no principled basis for drawing a distinction we think that's the situation here it's difficult to find a principled basis why when you do a google search one answer that comes up would trigger the public disclosure bar but you click on the very next link and it w severe malnutrition the gap between the defendants in this case and their peer hospitals is actually not significantly wigner then it was in two thousand and eleven and the other two diagnoses the gaff remains the same and it's the gap between the gap between the defendants and their peer hospitals is what shows that there's a significant difference and remember that the integra built into its analyses a conservative limitation only looking at a diagnoses where the defendants use them but we know that if you take large amounts of data and look at many many diagnoses over many many times some of the are going to be considerably different than others  is you know what have you done that's just more than set up this matrix and push a button and sue whoever is the i am you've identified one hundred and twenty five cases i didn't see that for any of those you've said and here's what they did wrong here's this guy and he was big and healthy and they gave him they called him severely malnourished or here are these three people that were ordinary so other than scraping the data what have you got to support your hypothesis right and i so i think you're getting at i think the nd reason that we think the baler core is he's got that decision wrong and why this court should hold differently here which is looking toward the factual allegations in the complaint and then dozens of paragraphs that tend to refute the alternative explanation that they're simply better than everybody else and those are what other than the jeff you know we're the greatest voters in the world i recognize you've got a lot of good stuff there but i don't see a single thing that relates to a real human beings case so when you say you have other things is there anything other than the jet discussion so the obviously this court and most patients whose diagnoses were misrepresented and that's that's the reasoning behind the standard adopted in this circuit as well as around the country that says that you don't need to identify specific false claims so long as you is that when you couple the statistical likeliness of the submission of false claims that's demonstrated by integris analyses with these specific factual allegations and again dozens of paragraphs three prong of aggressive training pushing specific m c c s leading queries pushing specific m c c s incentives and disincentives offered to employees pushing specific m c c s if you didn't have that you might not have a claim but the thing is the the the the witness interviews that i'm referring to is that in in connection with their interest their investigation the relator conducted multiple interviews of the defendants former lawyers and former employees of the defendant's clients and they gave they did with they didn't give specific names of patients but they gave specific information about how this was orchestrated just to defendants clients who do you mean like doctors that work at the hospitals or oh i'm sorry i mean  lawful if there are no factual allegations of you if the relator was unable to obtain or discover factual allegations that suggests that they were engaged in a fraudulent scheme right but also providence these documents were found i believe in providence as website and on top of that you have defendants you have defendants of former employees saying regard to the leading queries side of this team that they would the doctors would say and i'm quoting now doctors will just say whatever you ask them to say just to get you off is that and that's it's that type of specific allegation that type of i guess isn't that allowed so long as as the diagnosis supported by the medical record you have any evidence of providence problems doctor actually submit in a claim there are six statements in the complaint total that are attributed to interviews not a single one of them includes any facts about any providence doctor inserting any false diagnos when he referenced about someone saying a they would a doctor would say anything to just get the coders off his back was not from a providence hospital the statement that's in there that's completely vague about leading queries cents so that the reliance on interviews in the appeal brief is completely disconnected so the way this case was argued in the complaint and the way this case was argued below the   st bullet point under secondary diagnoses quote include all diagnoses which are treated or monitored nothing in here that says write something down if your patient doesn't have it and in fact they discuss twenty four different complications and co morbidities not just the three that are at issue in this case there is no context about how these were distributed something that was said when they were distributed that would say they don't mean what they say on their is training material for doctors that copyright date is two thousand and twelve on them these were prepared as as clinical documentation improvement was picking up speed because g m asked to change the reimbursement s judge fox you're exactly right to point out that there is no basis to say that any of those one hundred and twenty five dollars claims that are identified in the complaint are false that's why the baler court called that description completely conclu case but when you say that that chip she simply did twenty four diagnoses to be monitored did you ever look at yourself and see whether some or any or many of those other twenty one you were originally the law and we would be perfectly happy for this court to address to you which is simply to look at the defendants web site and the industry websites and not issue a ruling that speaks any broader event to those specific websites that are an issue that is what  done when internet materials have come up and we would be perfectly happy with that so for all of these reasons and the reasons in our brief we asked the court reversed the decision below and directed this complaint be dismissed very well thank you both of you