which we submit drastically changes the standards for employees to be able to bring claims under the false claims act against their employers when they have reasonable belief that fraud is being committed and evidence that fraud is being committed but they simply have no access to the physical claims they are being submitted for payment we submit that this district court order should be reversed because that the circuit and  statute do not anticipate that you have to work in the billing department and have access to those bills in order to support a false claims that claim we further submit that this court should reverse the district court so that protected activity under the false claims act is not being read to be synonymous with the unsealing of the false claims act complaint and that the defendants cannot simply set forth another illegal purpose for firing  relator so as to prevent effect question going to the jury now i think it's important to start with what the defendant did not argue in their brief they did not set forth a reasonable or legal way by which paramedics can bill for breathing treatments as a separate bill bill ancillary services under the medicare benefit they do not argue that the scheme that the relator set forth is legal they do not argue that they didn't receive extra payments or that the regulations allow for it what they have argued in its entirety as it pertains to the underlying false claims that substantive complaint is that we don't have the bills so we can't plead fraud or counsel in fairness to them don't they really argue that you didn't know legit anything about it don't you have to to make some allegation about payment we do we make allegation about payment and how paid in our complaint we what we don't have are the physical bills by patient to demonstrate that the answer was each ancillary bills being paid by medicare we have pervasive conduct that shows you don't get that and you keep making reference they don't have the bills but here's my question is that they certainly had knowledge of who the patients were that they performed the breathing treatments on say for example and they know generally what dates those occurred and there's no allegations of that either you know they haven't gone or said well we were asked to provide breathing treatments on these dates to these particular people or on these particular ambulance runs that we perform them and the information them believe believe they were billed right instead this is a motion on the pleadings and so it just says you didn't plead it such that we can identify defendant why are they wrong they're wrong because it's easy to identify at the chain when it comes to the breathing treatments specifically and i'll talk about those separately from the mislabeled employees from the breathing treatment specifically they plead that soon as builders changes the policy which is in november of two thousand and fourteen the paramedics are going in on every night and every weekend and performing every breathing treatment in patient hospital and that those are being done so as to increase and they've admitted it has a payment impact increased the bills that are being submitted to insurance including medicare so they have played it starts in november two thousand and fourteen and it continues at least until the firing of  counsel hospital still do uncompensated care i don't need to inject that because i don't know the other side did but it's in my mind so you should know about it and of course they mess up billing many other ways hospitals do so how do from your perspective how much do you have to plead so we know there is some connection the payment because as you know this is false claim sackfuls plame in there in what the ex about so so so help me on that well first off there could be no other logical reason i can think of no other logical reason to take the nurses off of the floor of the hospital send them to cover the emergency room than the people from the emergency room to perform the breathing treatments which they're less qualified to to perform if it's not for are told that it's for billing purposes and then bruce musgrave specifically tells them it's for cost reimbursement purposes for kushal porton purposes at the time the change is made is that your best allegation in the complaint i have many  go that way and it's a terrible question for you i understand no but i'm sincere here is that what we should really look at to say yes but he did plead payment submission well we also set forth how they plead it or how they submit the bills we set forth that for all the other costs one hundred one percent reimbursement and that for these costs they would be ancillary payments so additional payments outside of that one hundred one percent we also put forth the reasons why we believe it's billed the paramedics are providing pro bono services as the as the court is implying they're being asked and trained to enter their time which we plead in our complaint into the software that is used to generate th bills not only are they asked to enter their time they're asked to enter their time in thirty minute increments no matter how long it took to put in thirty minute increments just so happens thirty min increments is the amount of time needed to be able to bill separately billable ancillary service for an outpatient you can never build them in patient they can't build a paramedic as a separately billable and slayer's an inpatient but they're having them just so happens to comply with this fact that you have to have this thirty minutes to be able to bill it to the to the outpatient standards you don't have the any argument from the defendant that this is proper or that this is legal or that there is an innocent explanation all they say is we don't have those separately billable ancillary provisions of services to each of these patients now they rely on the idea that we need to identify patients i don't think that's accurate they are sets forth that you don't need he wasn't doing any of the billing he was saying that over a sixteen year period all of these prescriptions all of these providers all of these things were fraudulent and he had no inside information for if he did he wasn't the one providing the services and he wasn't the one doing the bills fayer comes in and says ok well we did say that we rule it on joshi but they are saying is if you can explain the scene the scheme and then you have reliable and dish room you have them read the treatment and then they bill it separately we identified the paramedics providing the services two of the paramedics that are related in this case provided services under that scheme they complained about the scheme to the nurses they asked why are we doing this why are the nurses being pulled off of floor why are we removing the r n and having the paramedics come from the e r to do these breathing treatments it makes absolutely no sense and they're told well it's for billing and cost reporting purposes  d they threatened to fire them and then they actually did it they they actually have no logical reason for committing the having the paramedics do the breathing treatments they're left left qualified than  a registered nurse we've submitted the rules and regulations which would prevent why a registered nurse wouldn't be doing the breathing treatments because then the hospital have to bundle those payments and we get less money if a nurse does the breathing treatment than if they come up with some other sort of ancillary staff to do the breathing treatment we've provided the regulations and the statutes which show that a paramedic is not a separately billable ancillary staff even if this was proper they are they are specially trained like a respiratory airbus so they couldn't be billed regardless we provided evidence that they're told it's for reporting purposes and then we provided all this other evidence that we've got we've got fraud going on in this hospital there's the human resources manager tell them i think the c e o is committing fraud their manager says i think the c e o is perpetuating fraud we've got these misla in and change his title from e m t to paramedic in the billing software in order to bill him as a paramedic when he wasn't a license paramedic and then immediate threat of firing the employees when they bring it to their attention and eventual actual firing of the employees and then we've got these you know that the district court called it gossip but we've got all this information about there's credit card fraud going on and guess what there's credit card fraud going on when you actually pull out all the documents no legitimate reason to be falsifying invoices to provide to the government unless you're trying to cover something up and i wish you the if you take a look at the actual she which isn't in in this record i don't believe but clearly altered and clearly altered invoices all of these things indicate that there's a there's evidence of fraud and so we believe that we've survived we've played it sufficiently research it's about a motion good morning may please the court alex santoso dorsey and whitney on behalf of crawford county memorial hospital which is a world hospital about seventy miles from here and bill bruce its c e o the false claims act is about claims and the allegations even charitably read identify two claims cost reports to medicare and actual reimbursement requests to medicare what irs cost report is even at issue in this case i've spent two years with this complaint i've listened to the argue argument today and i still don't know well the way it goes slowly appreciate your testimony but let's go slowly if you look at the thayer case it says a plausible inference that false claims were presented why doesn't the supervisor telling them as for that constitute a plausible inference that it was going to be a client i don't think that's sufficient under the standard i think that the court has to apply its common sense and the purposes of rule nine be the who what where when and how of the fraud and i just don't think that gets them there this idea that the supervisor what this court has been crystal clear it's not about policing private misconduct it's not even about policing misconduct that amounts to fraud the false claims act is about the submission of a payment that causes the government to falsely pay isn't what they have enough to say could have led but did not necessarily lead to that gets around the problem of you heard the previous case of nobody knows what they really get paid under medicare going well that i don't think the fair standard is satisfied and plant something particular details what are the particular details the actual fraud i don't think they make it on that prong and on the reliable indigent there's got was a would be needed in addition to what they've put some details about the date of the cost from the medicaid cost reimbursement report that would be useful what specifically was wrong on the medicaid cost reimbursement report going to the billing what patients are even at issue in this case and i thought they didn't if i had some patients seven and this is the famous patient a known to traitor no patient name is actually associated with that no date no further details about what this particular patient received by way of breathing treatments by treatment by someone who wasn't qualified or was tainted by credit card fraud or and i kickbacks at any of these other the praise of horribles that you see in the pleading that is the only example that even comes close to this court's precedents which require either representative as examples or particular details coupled with reliable and disha and i think that is fatal to the case and judge strand there was a suggestion that that judge her hand applied misapplied the standard  think the language was drastically revising the false claims act jurisprudence if you read his opinion what does he do he goes through joshi he goes through thayer he goes through miller all of the cases there's no there's no drastic reversion of what ninety means in the circuit what aid a means what the false claims act reach is so you have a very careful analysis by the court using the regular ordinary standard that was put forward in cases like joshi this case is just like joshi we disagree the notion that joshi's distinguishable joshi is right on point that there's one case the court should read it's joshi there you had a provider who didn't  didn't have any visibility into the billing aspects of the hospital at issue much the same way here there you had a motion to dismiss filed in the court saying it's not sufficient to simply suggest and sort of into it that all must must of this must have gotten back to the united states government it must have been paid by the united states government this court said no that's insufficient so when the district court says this is speculation conjecture and gossip what he's done is he's looked at the case law the standards that this court has applied he's applied them faithfully he's looked at the complaint where he can find absolutely no no representative examples i don't even think that patient a representative example that's their best argument i don't think that qualifies doesn't even identify the person which person we're talking about on what day what was provided did that person's claim actually get back to medicare or not we don't know we have none of those details we are criticizing the opening for not putting on of some kind of a full defense as to the legality on the question of the medicaid statutes in particular how could we and that's precisely what is all about where you could on this breathing scheme you could talk about breathing by nurses versus breathing by paramedics i don't think that's required number one but look at the court's precedents on nine b what is the point of ninety it's to quickly identify for the defendant who's being accused of fraud on the government an exceptionally serious accusation to quickly identify what specifically is wrong here and to respond to it now truth be told we will  respond if this case were to were to go back you can be sure we're going to respond to that summary judgment but the point is is that we can't be criticized and this gets right back to ninety's essential purpose who what where when how it matters and it matters because you have to be able to put defendants like bill bruce and crawford county memorial hospital on notice of what's going on here the other thing i'd like to point out unmentioned in the opening is this notion of upon information and belief now there's nothing wrong with upon information and belief pleadings what do you think the law isn't a circuit bonnie i'm glad you brought that up information and belief pleadings what do you think what do you think the circuit is on that another reason why joshi is so important also look at the pardons case those are the two cases that say when you're going to do that and it's fine to do that but when you're going to do that you have to state the source of the in from i'm quoting from parlance the source of the information and the reasons for the belief the source of the information and the reasons for the belief now if a false claims act claim turns on the submission of a claim to the government that medicare costs report or that individual patient bill that was somehow fraudulent where's that information in this case it's not there you will i commend the complaint you look at the complaint and see if you can find either the source of the information and the reasons for the belief you will not find those as to the medicare costs reports and the reimbursement claims you just won't now that's a separate fatal defect if they're going to use upon information and belief complete type pleading then this court has been very clear that those are the two things you have to do and they didn't do that here we also in our brief mention issues of materiality and santer i'd like to very briefly touch on those they would provide an independent basis for affirming judge grants decision of course failure on one element failure to plea one element of a false claims act claim which whichever of the elements would be sufficient to affirm on the question of materiality there are simply no plausible facts that c m s even relied or cared about the building they have to say something about materiality there was a supreme court case from a couple of years ago called escobar has been interpreted by this court recently in the miller case i believe judge bend i think you wrote that decision and ask a bar the supreme court says materiality matters it is a rigorous standard it is a demanding standard you have to show that the fraud actually would have affected payment is there anything in here about well in the mine run of cases that's the supreme court's language as an example it's one of the ways one can show materiality is there anything in the complaint that in the mine run of cases c m s doesn't pay bills that contain the fraud that relate or is a legit curd nothing there's nothing in the the complaint about materiality zero that's in the statute and it's emphasized by the cases decisions the court's decision and  i would like to talk just for a minute i see my time is getting short about the retaliation claim again and drastic we're being accused of a drastic revision of the the court's precedents not so she heart and miller they set forth the standard for how to plead and how to prove or tally f c a retaliation claim in the circuit we fully embrace those standards the district court here said that these claims fail and e adverse action was caused soley by their f d a activity and that is fatal to their claim of retaliation this court has been crystal clear that it is a single purpose test it is not a dual purpose test as was argued in the brief i think there's a cite to a district court case that's not the law in this circuit this is an issue that's been covered that the f ca's retaliation claim is about  policing retaliation not just generally it's not some f l essay type common law retaliation claim it's about specific types of retaliation and it's limited to retaliate when it comes to a false claims alleged that there's all sorts of other stuff going on alleged that there's other stuff going on at appendix page thirty seven related christie allege that in may two thousand and fifteen that was alleged that he had called a patient fat and that was a basis for his dismissal in july two thousand and fifteen trader had permitted in on an authorized nurse to care for a patient that's appendix forty paragraph one eighty three that's directly from the complaint so by their own pleading they have shown that they can't satisfy this court's test the sole purpose test they provided additional reasons  why the hospital's decision was not retaliatory at least not under the false claims act retaliation provision thirty seven thirty section age now as to strew b you see a similar pattern stripy of course got through the motion to dismiss at least as to the retaliation claim and got to summary judgment and there there was undisputed evidence that strew be had been removed from her status pursuant to the hospital's policy she hadn't worked for six months and the hospital has a policy in effect since two thousand and thirteen that if you don't work for six months if you're unable to work in this case she was unable to work because of medical issues if you're unable to work then we have to have an end point in the hospital reasonably applied as policy and under the under this court's sole purpose test that cannot be as a matter camera thank you your honor i did look quickly paragraph twenty seven i think you is where we pledge that the paramedics were informed in writing that the change for breathing treatments was for billing purposes and then told by bruce musgrave their supervisor was for cost reimbursement purposes  there we did identify the one patient patient a little bit of a red herring we identified it as to demonstrate why we believe that they were falsely increasing the number of patients that were getting services the there is no need to identify every patient or representative patients that receive breathing treatments on nights and weekends from november to two thousand and fourteen to the firing of the of the paramedics we did identify two employees who were up with a reason even if it's illegal they can so they win a summary judgment and we see some of that that's just not the case it's a fact question this isn't a question of whether or not the jury came to the wrong decision or a fact  came along decision it's whether or not we've established a fact question a genuine issue of material fact as to whether or not these people were fired for engaging in protected activity otherwise all they they could do is just fire them as soon as they start investigating because they won't have filed there for their false claims that complained yet or they could just cut their hours and then fire them for not having enough hours as they did a mystery or they could just wait for a few months after the complaint is unsealed and then make up a reason that they fired them these are fact questions it deserved to go to a jury whether or not it was a reason that they were fired was because of their investigation or because of some other reason you agree to solely motivated you're black you're fired and that's my reason you can't do that you can't come up with another legal reason and then fire them for it when the underlying reason was that and say look i had two reasons that's what they're doing to jonathan christie have two reason one you know they should they try to bring up this idea that he was gay and that they were there were derogative drastic derogatory statements made towards him during this time about his sexual preference you can't do that and then say look we fired it because he was gay not because he was investigating fraud that that wouldn't be proper in addition your honour's the the dismissal and the summary judgment both were relying upon this idea that