right you can begin now the police court first issue in his case that i'd like to discuss with the court is whether or not this prosecution should have even proceeded the appellate contends that mandates and texas law as probably good by the texas legislature in the texas medical board as to the testing to whether or not a patient needed home health care the laws as i did he say that any of these people were under his care when he didn't have any records for them had never talked to them i mean never mind the face to face i mean he had just was ear oh involvement with them at all how can that be the equivalent of care or you are i'm glad you asked that question and i was prepared to answer if you will look we gave you some exhibits this morning if you look to tap three and the definition of practicing medicine and providing  in texas practicing medicine or providing care means to diagnosis treatment offer to treat a mental physical disease or disorder or a physical deformity or injury by any system a method or attempt to affect  verifying that these people needed home health care because the federal law in a state law allowed the face to face meeting to be done by physicians assistants they are to on the top of a form eighty five they are then to put forth a diagnosis and the patient's treatments that they think that they need and their present condition after that is done you're on a that form is brought back to the physician who under texas law looks at the diagnosis treatment plan and everything that's up not you know under the supervision under the texas law and we gave you the administrative called statute with that means that is that person in order to be under the physician's kid a physician under state statu has to be fully competent and the physician has to believe that he is fully competent to perform those duties but doesn't a physician assistant under texas law register with a particular physician's name you can but not necessarily because physicians assistants can be independent as a matter of fact if you go into some of the hospitals right now they are their own entity s and so what that physician assistant that he worked he worked with dr daley he brought  to be satisfied with their qualifications and he was then they are allowed to go out and make the diagnosis treatment plan ok supervision is simply i've read your resume looks good to me i'm done that qualified they did do that and plus but we also said in our brief and that you see in exhibits that are before you is that if the physicians assistants after they did a valuations of the patients thought th were not qualified those are those who are to forty five were never delivered a doctor daily if the physicians assistants thought they were qualified they were delivered the doctor they said then how do you explain these two people that clearly didn't need home h counsel and that's why we said we wonder who should have been prosecuted in this case because all a physician does is when he gets to form eighty five he sees what's been certified by either the nurse or a physician assistant that's what's at the top of that for me to five and then after that determination of which state right somebody saw these patients right you're saying it's the physician assistant correct ok and how did he how was he you're saying he was fooled by them they pretended to be needing home health care but they didn't need he wasn't they he was getting a separate kickback of four hundred dollars a month i mean your argument these may be good arguments for why your client wasn't guilty but to put the proper posture back at the forefront the jury found your client was guilty so the question is just whether there's some basis sufficient to support that verdict and everything you're saying i think is going to the certification the health care fraud count i don't think any of this about the physician's assistants would excuse  kickbacks at four hundred dollars a month but but even on the health care fight can't the jury consider the fact that he was getting kickbacks four hundred dollars a month for signing these isn't that itself evidence of health care fraud even though they're separate offense and i beg to differ you're on to respectful and the reason that i beg to differ for that is the four hundred dollars for was for him to evaluate whether or not the patients required home health care ok it had nothing to do with following the claim with medicare it had nothing to do with the recruitment of patients to canada there is no reason to certify them for home health care unless medicare is going to be paying me if the people are private pay they can pay what they want and if they are fully running marathons but they want the doctor to come or they want that they are opposed to come to their and willing to pay for it nobody's going to care the answer here is and it's no to everybody the reason there's a certification for home health care is because of medicare your doctor your client knew that everybody knew that so how could he justify getting paid by the entity providing the home health care to certify them will doubtless of whether they need it or not that's not proper will fifth circuit law say is in order for you to have a kickback you have to have a remuneration for either inducing referrals or directly referring a patient that is just sort of black letter law that didn't happen in this case in this case he got paid four hundred dollars whether he signed one forty five or more a when that was fifteen forty five's a month  exhibit tab two at the very bottom for you because i don't have it in for me right now you said in your defense at trial was the four hundred dollars was for consulting services yes sir what evidence is there of any consulting that is talking to the physician's assistants talking to the patients talking to the home health care provider but how can he justify getting paid by the home health care agency for that and you've got to me is a real problem even if everything else is on the up enough because typically the way it works is that the patient pays the doctor and or medicare or the insurer for the patient pays the doctor not the health agency that's going to benefit whether you want to call it a referral and on benefit from the certification without that certification they're not going to provide the service because the patient isn't going to pay th stalls for what they decide they're going to treat the patient for understand forty five's do not dictate what the home health care agency does it only looks at the patients can buy without it there is not going to be home health care that gets paid by medicare period end of story there's no question about that and your client knew that so how can he justify or explain or claim ignorance of this scheme when he's accepting money from the health care agency to do a certification that will directly lead to payment for the services you you can violate the kickback statute of medicare and never lose a dime because the theory is these decisions whether or not they differ from medicare shouldn't be made based on a financial incentive that should be made based on an objective medical diagnosis i will give you the referred any patients and i will give you the webster's new collegiate dictionary nine seven new a decade long have some questions for the government about it that's the issue of whether you have to actually pick the patients pick the provider as opposed to just do a certification that's what i thought you were saying a kickback violation requires showing that medicare was defrauded no the kid read violation requires that you either refer to patient directly recruiting a patient to or received an inducement to refer a patient there's nothing in this record that shows that any of that ever occurred let me ask you when things are running out of time if we were to agree with you on some of the counts but not all of the counts does there need to be a response and if we agree if we disagree with you on count one which was the sixty three month conspired to commit medicare fraud through his agreement with shooty the owner of candide home health to defraud medicare by submitting fraudulent form for eighty five authoriz unnecessary home help services in order to pilfer from medicare's purse and b indictment further charged that dr daley received a legal kickbacks specifically four hundred dollars a month in exchange for his fraud to it signatures which effectively referred medicare patients to candide for home health services now based on the overwhelming evidence establishing these allegations the jury rightfully get it is argument is maybe he wasn't a very good supervisor if you will of this physician assistant but all he's required to do is check the resume and get the stuff from the physician assistant look through it it looks good sign off he's good to go so he's not part of any fraud of the physician assistants going in these people are either lying to him and saying they're homebound or he's just not really doing his job but he's saying is how is dr daley accountable for that statute or regulation or texas law for that matter which is irrelevant it charged him based on his agreement with shooty to submit fraudulent form forty five and then his agreement was to review the work of this own you are have you pronounce it and signed off where appropriate which apparently was every time in his mind and so while again not something i would if i was advising a doctor of how to run his practice i would advise him to run it that way but how is that criminal short that's the argument first i just want to answer a question that was posed to opposing counsel you asked where it was in the record if he signed every form in front of him that's an oral way six seventy eight in which testified that he signed every form for eighty five now back to the supervision point these are all arguments that he made to the jury this goes to his consulting services defense that it was merely an agreement that for four hundred dollars a month he would review these form forty five's and you know he would sign them if they qualified and again at or away six seventy eight every one of them qualified were here on appeal and the juror and the question is could a reasonable jury have discredited that defense easily easily it could have done so i mean by itself with the evidence of the checks chewies testimony was sufficient shooty testified she heard about dr daley from other home health agencies that operated frog to only as somebody who would sign a form for five for money she set up a meeting with him and she testified about this meeting it lasted fifteen minutes he asked her no questions nothing about her background her qualifications about the agency given his arguing that he was relying on good faith on these physicians systems i mean the best evidence your honor is the fact that they were i mean they were under his care but i mean the patients that the patients were not under his care when you do it this definition of has yeah the texas definition of providing care is simply irrelevant it's simply irrelevant to this matter the relevant term here is not providing care under texas law it's under the care of a physician that is the relevant term they're different and what did the jury hear what was the evidence presented the evidence presented was that under the care of a physician which is not defined by medicare means an established patient physician relationship and what the witnesses including the doctors uniformly testified is this means that you have met the patient at some point in history so putting aside the face to face meeting that that the affordable care act made express even before even before the affordable care act you were still doctor in minnesota and we looked at each other and talked and i gave my symptoms and he gave a diagnosis and all of that that would not be i would not be under his care that's your  i mean i think if you had a virtual meeting like you're talking about that might suffice for a stablish in a relationship i mean here what the evidence showed though was that these patients never met i mean they had no your actually went and i'm a little bit suspicious about a bill let's say you actually went and met these people and they were lying in bed moaning and whatever and you concluded they really were homebound and so advised dr daley who then signed a forty five would say that still not good enough the physician supervision and there was no evidence whatsoever that dave or nora was under dr daley's supervision i mean this was just it was you know this was  w that's correct and what do you make of this argument that supervision requires simply reviewing someone's resume making sure they're all five i don't fundamentally disagree i mean it would even under texas law i mean there is a requirement that to practice under two practice medicine as a physician assistant you have to register your license under the physician's license and vice a versa and that  happen here and i have a few questions about the kickback statute there's part a part of the think defense counsel saying it wasn't a kickback because he wasn't the one who got the patients going to this particular home health care provider they already decided to go to this home health care provider he just provided the necessary certification which of the statute part a is about referrals part b is about recommending services and you try to defend the verdict by saying well it certainly fits within b you also argue fits with an a but i think your primary argument is that bits within b and the indictment did charge a and b but it looks like the jury was instructed only on some part a's so don't we have to decide whether the burdett can be supported under the part a if the jury was indeed instructed simply under eighteen yes but you said that it was our primary argument was that we was based on the recommendation yes we put that first right we rely on them equally i mean this was referral by his son to referral in the government's view have to be to a particular provider or can just be certifying that you need home health care i mean particular exactly so and that of the government relied on is is that it's his signature on such an initiative that with every four eighty five so let's say you know my elderly dad needs home health care and i go find the girl or the excellent home health care agency and then we ask the doctor this doctor you know is he qualified is he certify you know sign off whatever the doctor is going to sign up on excellent home health care but that was it at our suggestion my dad and me so when that always be the case it i mean again so you're saying that's a referral even though the doctor wasn't even involved a mask is a pain and we just went and found this excellent home health and that's enough of the seventh circuit he particular provider so doesn't our case law require involvement in selecting the provider when that selection was already made here before the sort of occasions when we arrived i don't think miles can be read that broadly i mean miles also says that the anti kickback statute is quote designed to ensure that a doctor's independent judgment regarding patient care is not compromised by payment from medicare service providers so if anything i think miles confirms referred home health care so that's an important distinction and the other distinction is that doesn't the payment have to be made in exchange for the service cation said here if dr daley was giving a lecture to the home health change i mean i don't want to you know i don't want to bind the government to you know facts that are not before you know that are not present here i mean here or what it was was he was signing the form for eighty five i mean this is the charge basis it was for his signature on these form for eighty five that section twenty six that referred patients to candide for home health services so in the hypothetical you discussed where you know the doctor speaks to some association and somebody cons and says you know here's some money you did a great job but i say oh he was paid to give the speech and maybe by a particular health care agency paid him to give a speech to some group or you know some orientation or whatever that was clearly proper in the sense that he's allowed to be paid for his time in giving the speech would that by itself be good now i don't think so i mean again i mean those these are not the facts here i mean well one thing you may know is that when we write an opinion believe it or not the next guy thinks that they need to look at that and be guided by it and so yes we have to think about narrowing principles or broadening principles and how that might be re down the road so i understand justice in the particular case is the key but when we write it opinion we were recognized that others may be guided by it and look to it for god so to me there needs to be a bit of a limiting principle on the notion that if we have a payment and we have a doctor and health care agency we're done right i mean absolute i mean here what it is is it's signing in exchange for a referral to a particular home health agency that is the purpose behind the signature you know so when the meeting you know it or in the in the lecture that you gave that you know there's isn't that at that moment that expectation that they're going to s says it has to be in return for the certification so isn't that the limiting principle whether you like my hypo yes to yes i agree i want to get back on the on a kickback statute you mentioned the patel case of the seven  circuit and it extensively discusses part of the statute and says largely based on the purpose of preventing kickbacks that this type of conduct should be covered my problem with patel is it doesn't acknowledge that there's a part b to the statute and if b would cover this as you argue then doesn't that undermine the view that we should read part ada also cover of so i have in my research i did not see a lot of you know cases focusing on the part b it's mostly under just the part a the referral now there's i believe in the government's brief there's a seven circuit one thousand nine hundred ninety six i believe it's united states versus poland in which they talk about how you know it's the terms are somewhat synonymous recommending specific services versus referral i mean i think the difference between the two you know probably would be if you know if a doctor is saying you know you're in a meeting you know you say you're seeing a doctor and the doctor says hey i i think you need you know home health services disobey really good for you but the problem though is that probably the next st he's going to say and by the way you should go to candide home health i mean practically speaking a lot of times a referral is also going to be a recommendation but he also covers services divorced from i mean not listening a patient  even the hospital should buy a new x ray machine from this company corona that b and b that would be kept that would be that would be a big yes that's correct so you know and just on back on to tell me the facts of patellar are different i mean it's actually i mean they're the patients actually needed home health care was undisputed they were homebound they did require it and it was just i mean but this doctor remuneration the doctor was getting paid and that was sufficient and the government is by virtue of signing section twenty six he is referring the patient to candidate for home health and to tell goes through you know the broader definition prefer and the referral in the medical context you know for example i hurt my knee and i go to see my doctor and but i've got a family friend who's an orthopedic surgeon but my insurance you know requires the physicians referral in order for me to go yeah i've come up with it but it's still refer to by signing the paper the physicians still refer i tell you doctors are already skittish and i need to be even more skittish their argument is dr daley was in accordance with state law but they have no evidence of that in the record ok and the court has to decide this case based upon the record that's in front of him and the record that's in front of it he used a qualified p mean we can do it but we like to know when we're doing yes you probably would go on and i would agree to that because i would say that the case that binds this court is united states versus davis one thirty two fed third ten ninety two comma ten ninety four which was not happen in this case quickly about your affordable care act argument which most people know is a bomb the care it imposed a new requirement that you had to document a face to face encounter before signing his form basically but how why do you how do you get from that to saying that before that you didn't need to have the face to face encounter because that's what the statute says you're on and where the new law is you have to document yes the artist defacing kind of how do you get from that to saying that means you've never even had to have the face to face encounter whether it's documented or not before obamacare was messed up with reporting for a second to get   and what happened with that is even when they changed the law the legislature was in congress abated it until health and human services could make the appropriate rules it was for massed along those rules and none of these patients that we're talking about in this case even came under the new law they came under the old law those new rules did not go into effect until juju lot of first two thousand and sixteen and the secretary of health and human services sa and i quote to issue it as states and providers are implementing the rule appropriately we are delaying compliance with the rule for up to one year if the legislature has met otherwise that the legislature has and that to use so you have a window that is the rule that you're referring to the documentation documentation because before that all they had to do was sign a forty five and that's what the l