nurse practitioner presser has a long detailed background in the field of d n a and mental health patients services with experience at some of the more prominent clinics in no wisconsin we're here because of the bills in it and i think that is one misinterpretation of the language of that paragraph which speaks of the process in which services are provided and ultimately no way under the analysis and as we've set forth in the brief which would lead one to conclude that it is vague that it leaves open the prospect that medicaid was never built particularly and in this instance where the court for some reason and focusing on that paragraph did not follow the directives in this circuit that the complaint in its entirety is to be review and that we've set forth in great detail that one obviously to review it in its entirety two to review it in a light most favorable to the to the relator here and the complaint sets forth i mean paragraphs thirteen through fifty describe the mandated policies that are set forth and this is important to keep in mind factually here that this is an inner da and mental health clinic that experience clinicians are providing services in and then there are mandated policies that are set forth in great detail putting acacia exactly on notice of what this specific fraudulent conduct is and that is setting policies and directives to be applied across the board to all patients that come in that in essence mandate and encourage that there be unnecessary procedures and unnecessary medical services and billing opportunities that arrive from those specifically as set forth requiring appointments points where not necessary requiring urine drug screens where not necessary taking singular services events and making them duplicative turning them into multiple billing opportunities but that's not all that the complaint set forth in the context obviously rose press or in her role as a clinician does not have access to the billing records and the long line of cases  but where you set forth with specificity the types of conduct committed and set for so that the plausible and in this instance really the only plausible inference is that the medicaid program was built because in addition to the other allegations as setting forth we have an admission against interest on the part of the owner of the kaisha and that is that almost all of the keisha's patients were title nineteen or medicaid recipients mr knight yes i know in reading the complaint and your brief yes it seemed to me that these claims could be divided into two very distinct groups those where your client suppress reason able to point to the use of it the wrong code the deliberate use of the wrong code where she knew it was the wrong code and was told by the boss to use the wrong isn't there a difference there seems to me that there may well be a policy in who'll mind be it would say you need more than your you or your personal judgment and experience to point the finger at for the following reasons that one when with regard to the code disputes certainly there's no question in that regard but with regard to the other directives involved that are issued by a layman owner from a business standpoint for example to set up a procedure by which you have people that are monitoring on a regular basis and medical necessity is is certainly something that you have to sign on into particular participate in the medicaid program requiring then that any any patient who wishes to find out any information from a clinician has to call have a transfer did new york and then is told to schedule an appointment to come on in with out any clinical determination at all on the propriety of that that is based on her own experience and her long history involved and the fact that that's been ordered by a layman business owner for administrative reason it is in those cases ok there isn't as far as the records show a room for a difference of opinion as to whether you should call a patient in before things other than her own experiential situation her judgment is too she wouldn't do it the boss says these people have to be called in she doesn't that i submit to you is very different than was told me to use false code that is different judge but again i look to the end result the one counselor i want her to oh i wonder if that difference isn't a difference for a leader a case in the both instances at least if you have the patient in the circumstances and the claims for payment sufficiently identified for rule nine b purposes you may have a different case in terms of the strength of the evidence of fraudulent intent i agree but that's that's something that can be pled generally under rule nine could i direct your attention to a procedural question let's assume for purposes of argument that the district courts that the bar that that was established in the district court is correct for pleading would if you had an opportunity to file another amended complaint would you be able to satisfy that would you be able to to plead specifically for example that one or more of the four patients john an medicaid or medicare patients one we would and two i certainly since the district court look to the subject to their own circumstances i might revise that language also yes that's all been determined at thirty k shopper rates that about seventy five eighty percent medicaid there is there are fifty seven in fifty six fifty seven fifty eight would indicate the vast majority of patients would get medicaid at that time anyway but the reason i'm asking is because i frankly i'm kind of mystified by the decision by the reasoning that led to the district court's refusal to allow any member here if if i've got this straight it looked like your original complaint cited the correct language of the prohibition on false claims in thirty seven twenty nine would use the pre two thousand and nine designation it was eighty two after the two thousand and nine amendment it became a one b i did any of it and it was pretty clear that you were invoking federal jurisdiction properly on the original complaint yes that's directive to enter in inappropriate code clearly on any group of patients she would know the name of that concluded specifically that ms presser did not allege her claims and of the false claims act both the federal and the wisconsin analog with the requisite specificity as required by rule nine b for at least one specific patient was submitted to the federal government for the responses in this presser contends on appeal that the court did not reach that conclusion based on the review complaint to the amended complaint as a whole and we would respectfully disagree the court carefully went through each of the factual allegations raised by ms press for her complaint what the court ultimately did though was focused on the most or set of allegations raised by ms presser in the amended complaint and those are the allegations found in paragraph fifty nine and sixty of the amended complaint which as mr knight said cited in both parties briefs and can be medicaid patients and we're subject to these general policies that would lead to fraudulent charges you soon enough i think if this court goes to its laws the decision which both both sides cite heavily in their briefs what the court there found was that of course in saying and we don't we don't disagree and we are not arguing that a plaintiff in this situation has to provide a specific invoice and attach it to the complaint we are not arguing that what the court said at the same time and in ruling as much though was that it's enough detail has to be provided specific detail lay out the specific nature of the two alleged fraud right so we go back to me so what's the answer my question and the answer to that he answered your question is if a complaint alleges that specific claims in your examples claims for specific individuals fell into this pattern of fraud and were submitted and were paid that i believe would be somebody if you say that they are medicaid patients is that enough i mean it's virtually inevitable that those claims are going to be submitted in that they will be paid right well in essence almost all the patients are medicaid patients so i'm just wondering why the lesbians rolls royce notion of using a little inferences some common sense isn't enough to to clear the bar and there's no specific allegation in this complaint that that any of the patients were medicare patients to support false claims anyway and title nineteen claims that would be submitted to the state of wisconsin and also paid in part by the united states government that qualifies none of the allegations the paragraphs relating to their particular patients that are identified in the amended complaint none of those allegations actually  point since freud was telling her that they really weren't set up for they were having trouble getting set up for medicare and they weren't set up for private pay the allegation in the complaint is that mr said that many or most of the patients for medicaid right almost all was the allegation and they were not that acacia was not set up to take private pay and that they were having difficulty getting approval and meeting medicare guidelines and criteria so presumably if there's money coming in it's probably medicaid money right i think the difference between those allegations and the ones that the court found sufficient in laws to be is that in laws the plaintiff the relator raised specific allegations about in that case it was about engine parts relating to the submission of claims for those specific parts to the government and payment in return for those pacific arts but he didn't have access to the payments he just knew that the cards were being delivered  could infer that the rolls royce was being paid for right as i understand it there was specific allegations about payments could i ask you about this procedural problem what do you think the jurisdictional defect was in the original com i think i think your honor properly characterized that judge step miller did did not believe that the original complaint i understand he didn't believe i mean ask each of you what's the jurisdiction problem in the original complaint i don't see one simply that the original complaint did not did not rely on did not specifically refer to a portion of the statute that would and you agree that's what the problem was that was the problem a two in one and a one b right i'd have to go back to just that most decision just would you agree with me that that's really not a fatal problem to a complaint  but it's i would agree with judge stan miller that it was a problem requiring an amended and so serious that one would do would refuse to allow the plaintiff any further opportunity after i mean we've all in the wake of nick all of us have been struggling to try to figure out what has to be alleged in complaints and this court has said a number of times in essence when a district judge says what needs to be there you need to usually need to give the plaintiff an opportunity for week lead to meet that judge's requirements unless it's obviously going to be futile i think i think the judgment about whether to confer an additional opportunity beyond the one that judge step miller granted here is a matter of discretion for the just report here judge step deliberately to decide i understand that generally my problem is that his rationale for denying further opportunity was based on a very mistaken notion of the nonexistent jurisdictional flaw in the original complaint well i think it was also based on the fact a complaint and been pending for a certain period of was in the original complaint yes your honor the arguments we raised in the first motion to dismiss obviously it was based off of a different operative complaint but they largely parallel the arguments that were made when you pointed those out to the other time that is correct and the other point i would raise in response to your original question the question you posed the to mr knight is that the issue of whether the district court was correct or within if properly within its discretion in denying lead to further reef lead i don't understand that to be an argument that the plaintiff has raised in its briefs certainly the plaintiff takes issue with the dismiss i think that judge stat miller obviously focused on paragraph fifty nine and sixty of the amended complaint and in his judgment the language of those two paragraphs which is substantially  support the allegations and paragraphs fifty nine and sixty support that conclusion there are no details provided about what specifically mr  presser that led her to conclude that keisha was specifically billing the federal government for its services there are no details about what it was that her experiences at other clinics not acacia led her to believe that specifically billing the federal government falsely there are no allegations that specific allegations that affirmatively assert that acacia did a specific patient's bill was falsely submitted to the government prepayment and likewise pressers allegations and paragraph fifty nine and sixty eight do not affirmatively search that occasion actually submitted any specific false claims to the federal government there simply is no link between the alleged practices within the clinic and the smiths submission of specific false bills to the federal government or to the state of wisconsin set forth in the complaint and i think what the district court concluded based on the absence of those kind of specifics was that the critical allegations about who was being billed really don't amount to anything more than an educated guess an assumption and the lack of specificity on that point highlights that critical flaw in the amended complaint and that kind of vague speculation is categorically insufficient to state a claim one of the false claims act six twelve ball and certainly under the heightened pleading requirements of ninety and the other allegations that are cited the other paragraphs that are cited by counsel for ms press or in the appellate briefs they don't provide any more specificity about who was being billed for specific patients and then paragraphs fifty nine or sixty and many of them don't amount to anything more than the type of threadbare conclusory allegations that it paul tells us are insufficient to state a claim but it's based on those policy reasons and given the absence of specifics in paragraph fifty nine and sixty and elsewhere in the complaint about who was being billed that the district court was correct in concluding  that the complaint should be dismissed if the complaint had said that all the patients were medicaid patients who did tell us a satisfactory who was being billed if if the complaint had said every single patient education was a medicaid patient and that medicaid was in fact being billed for all of those patients that it was it exclusively a medicaid operation that i think would come closer to to the situation and b but even in laws be the pork the court i think relied quite heavily on the fact that there were specific allegations about specific parts and the details about those parts being submitted or invoices for those parts being submitted to the government and being paid and that simply as is absent from the complaint in this case well the stones but paragraph fifty nine does mention the government right absolutely it mentions the government and i don't think the fact that that they were in a conjunctive and was used was lost on the just report but i think in context of of the absence  of specifics about a basis to conclude or infer that it was the federal government being billed in that complaint that just took or properly read that  basically a list of of possible pay or how the or for these patients who have you read it with fifty seven which says almost all are medicaid patients meaning that both the state and the federal governments are being built there is what i think is absent from the complaint simply because someone is eligible or on title nineteen does not end up meaning that that is the sole payer for that patient or the only place that a clinic like  tonight the repeated position of the defendant throughout has banned you have to link to a specific bill and that just flies in the face of must be in a long line of cases after interpretation that and  linkage to a specific bill particularly in instances where you don't have access to tie the service to a particular bill well unless we did have i think five specific i mean let's be honest in the general principle but yet at more specificity and then it's like what we have here is one in this instance we have specific policies that are imposed over the objection of clinicians and not and without a medical basis for imposing them and then that those are directed throughout through a patient population that is primarily medicaid recipients and then they are directed to follow in that regard so based on the allegations this is an instance i think looking at smush which in the homebound health care one where the argument again there was made that it's impossible to ascertain you know what if the specific false claims involved they look at what is plausible and there is only one plausible result here this is an entity that based on twenty years experience as a nurse practitioner in in a already a and mental health clinics i had access to the information with regard to the annual revenue stream while she was in there and you dad as double what she would have practitioners in terms of medication there's a number and then assistance in that regard medical the system and i just trying to see how divorced ms press or was from let's say the billing department i mean was it next door as it did not even on the she is not in a position to view the billing practices of the clinic nope she is not and that you know i thought that we had set forth in there the is it correct th false claims act is violated when a full screen is submitted whether or not it is paid yes it is violated when a false claim is made at the obviously whether the claim if it's material and it's submitted in would be material of that decision we can point those alleged that the key issue was billing medicaid and medicare we do we do and in this instance looking at bloom and a number of others with regard to the notice requirements of nine b and the purpose of nine be the allegations are not big if acacia knows exactly what what the fraud they're accused of is and that's mandating these policies resulting in billing the government there is no costly discovery or that has to be undertaken here and it's simply a matter of producing the records that they've already produced of the government thank you i think it's a night