justice and we're participating on behalf of the relator as they've seated ten minutes of their time we thought it was best for us to go st because we're primarily addressing the legal principles that we think should govern this case some of the court's indulgence the united states is participating in this appeal because the objective falsity requirement adopted by the district court has no basis in the text of the false claims act and in foot if adopted by this court would potentially immunize healthcare providers from false claims act liability when they knowingly bill for inappropriate  services so long as they produce an expert witness who asserts that such services were appropriate as would many because there's a difference between legal falsity an actual falsity i'm not sure that that's the distinction i would hang my hat on i think what i would go to your honor is that the simple proposition that a claim is false when it does not meet the eligibility requirements established by the government for paying the claim well that was sort of the point of my question because when i think actually false i think of a live report but under these regulations you could have a perfectly proper treatment right a person could be terminal but say that a true diagnosis and accurate diagnosis would be four months let's say but yet it still could be a false claims act if they don't submit the documents required by the the regulation is that the government's position i have to take out a little bit of it could still be false in other words the claim could still be ineligible for payment and again recognizing that there are two fundamental conditions of payment governing eligibility for hospice care and they're complementary and reinforcing the st is of course the certification by an appropriate position that there is a patient is terminally ill the nd reinforcing one  really important safeguard is that there be clinical information and other documentation that supports the medical prognosis and that's obviously to prevent of physicians from being sloppy in certifying some sort of fine without any basis in the medical record so  question then so is compliance with the sporty duckie titian obviously we're talking about p two a is that an independent condition of yasser arafat's precisely the point that i think that the th circuit either missed or did not give appropriate emphasis to i want to be careful how i characterize that opinion as i haven't had enough time to spend with that opinion and that condition of payment is found in forty two dollars c f r fourteen dollars b there's two independents certification requirements and i want to emphasize that it makes sense that there be a requirement that there be some supporting documentation in the medical records because certification of hospice is a really really big deal it means the patient is foregoing curative treatment and is owing only going to be taking power into treatment  wants to make sure that there's a real basis for putting these people in and of course to really profit motive on the hospice side i'm not saying i'm not impugning hospice providers but there is a profit motive for putting people into hospice let me ask you this question then so is the rule that a jury as to the element of falsity and i want to be very clear that that doesn't mean fact question as to ultimate liability this is there are multiple elements for false claims act for us then it's the st step in other words it clears the st hurdle in getting you to and part of the problem here is what the district court in below in this case did as the district court in the seroquel did was try to put things like whether a doctor has a reasonable basis for making the terminal prognosis into the box of that's more appropriately addressed in the box of knowledge whether the you know if the provider is submitting claims that having reasonable basis in other words the doctors have reasonable bases it's going to be very difficult perhaps impossible to show in those circumstances that the defendant has acted with the requisite c answer in submitting fall or fraudulent claims however the claims may well still be ineligible for payment one dollar additional point can i make just one more point about the ineligibility point is that this is something that c m s does that revealing an a l j determination that certain hospice claims despite having the certifications of terminal illness were nevertheless been eligible for payment because the documentation wasn't there to support the certification that's the sort of thing that c m s does and that's the sort of thing that a properly instructed jury with expert that guidance and testimony could also do a jury if you're really is it oversimplifying it too much to say you need two basic things you need a doctor's diagnosis and you need the documents to back it up that's correct not that not i don't think that's really oversimple from here we have a doctor's diagnosis correct but we've got another doctor expert witness challenging the backup  lot of the back challenge to the backup and and couple with that again what makes it a false claims that case as a pose to a case of you know ok doctor reasonable doctors can disagree is that you have at least allegations and some evidence and related counsels speak to this more that the term the certification were made without actually looking at the record they were sort of signed in ball that there was pressure from on high you know to charge to the negative in other words to get the people to look more problems here one side is that you know none of these cases the cartels of summary judgment the other side that none of them will ever make it to trial i'd like to know in practice how does the u s approach it opportunity to take charge of the cases or to prevent them from going forward is that is there any idea with that the numbers of the fraction of cases in which the us steps in and says no not only are we not getting involved we're not go case to proceed it's very hard to generalize on that there has been recent guidance published by the department of justice in january two thousand and eighteen that is public that talks about the government more aggressively exercising its authority under th em so the government takes very seriously the idea that the false claims act does in fact contemplate he declined key tam cases going forward and that's clearly part of the statute is that the government may decide in the exercise of its you know resources to not intervene and participate in a case but the case can still go for congress clearly wanted that but we do look at these cases there are a lot of cases so i'm sorry that that sounds like a dodge it's not it's just we do look at these cases carefully and sometimes  i can say this at a general level sometimes the reasons for not participating in a case not intervening in taking the case over have nothing to do with the merits they may have might have to do with this all of the walls or it could be with the size or difficulties proving you know substantial damages that we just don't think it's worth our resources for taking so you run the gamut let me ask you this question so the district court provided the full city could be found where the records were altered information was withheld from  fine physician or physician was not exercising medical judgment how's that different from the six it's paulus i'm so i don't much sure that the district court spelled it out that way i think the th circuit's i agree there were there was some evidence of you know alteration records etc and i just actually wanted to know what your thoughts were polis cases it relates to that i we think that analysis is wrong that sort of just because you get ultimately to battling doctors i mean if the doctors are battling over whether the evidence in the record is sufficient to support the paternal prognosis in other words one doctor says you kno reasonable position could actually think that this person who is seventy years old and has you know some ailments but not any ailments indicating morbidity you know that's that's a perfectly reasonable fact dispute for a jury to referee as it doesn't  and so i think that's sort of my answer is that paul is recognizes that impulse had i think the difficulty with that case is poss had some indicia larger and issue of fraud by that cardiologist in that case but what i really want to emphasize is that they will later or the united states in his hospice care he says we don't have to show that the physician was lying when they made that certification we have to show as to the faults of the element that the claim was ineligible for payment and that means it can mean it if certainly i circuit just decided to guess that it came in early this morning but i want to answer you about something at page twenty eight i don't expect you to have the decision i've got to but this th circuit appears to read this hospice care provision regarding the normal course of the individual illness so this is i tell a size in this passage so the th circuit reads this as we've delegate is this decision to whatever they've decided is reasonable now i don't know that i've ever seen a chevron type delegation of power to a private party it seems a little jewish potentially odd but tell me how the united states understands that language and the role of the physician or medical directors clinical judgment regarding the normal course of illness and why i think you alluded earlier why we should understand that is really just going to knowledge and not going to whether or not the claim is false in the st place does this affect other provisions such as whether the government get reimbursement for an innocent mistake how would our reading affect the the way that these false claims and reimbursements happen sure well let me start there's a lot there but let me start with the delegation we flatly reject i don't think i don't i'm not sure that's what the th circuit was saying but it can't be right that we're delegating the authority out to the physician we there is no question that cmos recognizes that making prognoses of terminal illness is thing and that you could be wrong and that reasonable people can disagree at the margins of that there's no question about that and i'm sure you're going to hear a lot about that from the defense side but it's in part because of that that there are two conditions of pain not just we don't just treat the physicians certification of terminal illness as conclusive we actually require there to be documentation to back it up and i would like to point the court to one other place it's deep in the federal register but just the courts can look it up seventy nine federal register  one or two pages that are guidance on determining but and fisheries eligibility for hospice and one of the things the i'm says in that guidance is we expect that documentation supporting a six month or less life expectancy is included in the beneficiaries medical records and available to max that's the medicare contractors when requested and the point is this is a belt and suspenders thing you want a physician exercising reasonable mental medical judgment to you know say that someone i think someone is terminally ill it's a very important decision so you want now it says that the rd line of a case thirty two dollars the government seeks to elevate the significance of the regulation supporting documentation requirement asserting the eligibility and it quote turns on whether the clinical information other documentation is in the record that is still w arguing and we still think that's right so again i said you know there's some good and some bad in this era care it's unclear what on remain and you know the practical effect of the test is that they're going to know how much that's going to hampe on the man improving the claims in that case but we do think that the court misunderstood the hospice eligibility requirements and we don't want this court to make the same error in that respect so that he has i hope that answers your question there's very roundabout way i've been up here for a very in the company if the court were to adopt the th circuit as sarah care to its decision requiring more more than just a difference of opinion of medical judgment then here your honor we have that more and we have more than even the more that they had in a sarah care just a quick note about the legal standard defendant say that the district court's findings factual findings should be reviewed on a clearly erroneous standard that is wrong your honor it should be  physicians had lied about their clinical judgment or even that their judgments were unreasonable or wrong and in that case quote indeed the government's own witness conceded that trial that two doctors using the clinical judgment could come to  different conclusions about a patient's prognosis and need to be right or wrong that is clearly not the case here your honor related expert dr j's testify over eighteen times that quote in my opinion any reasonable physician who took the same care that i did and was knowledgeable about the requirements would also agree close quote with him that certain patients were not hospice eligible me ask you a question to  disagreements regarding the underlying medical records and what they mean and that should be enough to go to a jury to decide i'm saying that that's not enough if more is required we have that more and much of it and i'd like to go through what that more is and the the same review and come to a different conclusion as you and he answered no and in the end he said that all physicians would agree with him he said quote i would as i said before expect some dissenting opinions but the vast majority would what's the purpose of examining c enter materiality was age those are stopgap so once you determine the falsity issue by the jury looking at the two opinions in the medical records that you have here is is not to his question a debate between physicians expressing honest different opinions you've got in your view a clear misstatement of of the person's a prognosis an expert here saying that no risk is reasonable physician could disagree with his opinion that wasn't the case in the serac ok ne does say that multiple times with toward the end of his cross he seems to sort of i don't know if you withered under cross or what but there is sort of an admission that the other side focuses on here which your response to that you are the expert with question over twenty two times about the character that is excessive and then the we specifically objected to that to those additional questions physician could disagree with him that was his final summation testimony so you have a few snippets that defendants have cited and you have over eighteen examples where he said the exact opposite that no reasonable position could disagree but you can't reconcile those it's it does seem to which seems to be a war with itself and some well you've got a huge amount one way and a very small number snippets the other in a very confusing and and badgering exchange with counsel and that's not that's only one example of of the more that's care and i like to go into the others we have more buckets of of facts that show that the position was not exercising his subjective clinical judgment all right you're going through the facts but do you want to just do you but i what i'm saying is that if more is required we have the more and we have more than even what was in the sarah care decision for instance we have testimony from four different witnesses that medical directors didn't attend meetings very good at crossing their t's and dotting their i's but they're really really good at determining who's in title to hospice care ok so they've got the treating physician they've got the director of the facility saying yes person's eligible at the end of every month they put the paperwork together post hoc you know they're not doing it the right way but if they put all the paperwork together and the people works accurate in the in the the diagnosis is correct are you saying that's a false well that's not what happened here i said it's partly little bits i'm hypothesizing that that might be ok that might be ok but they aren't so it's not a gotcha game of oh you did this on a thursday instead of a tuesday right with whether or not two things were we should be concerned about th country should be concerned about is the prognosis accurate and correct and have think back that up because we can't just accept the doctor's word because of the doctor blesses it is hospice eligible if you can't look behind that then we run the risk of doctors just saying that all the time we have to determine whether or not the doctor is exercising his subjective clinical judgment and he's not looking at the way we know that is by looking to the documentation right now you also look at his behavior was he at that meeting if you want to see entering a falsity is no no there's no way he could have exercised a clinical judgment there's no way he could have said that the patient was ritually hospice eligible if he didn't even look at the records if he wasn't even there and so and so really  accurate even if they all had fewer than six months to live it's still a false claim if you don't provide clinical information and other documentation that support the medical prognosis or if you fail to provide a brief narrative explanation of the clinical findings that support the life expectancy of six months or less corrupt you're addressing those questions in reverse that nd requirement was not implemented until the end of two thousand and nine which post dates this litigation the clinical narrative required so b three doesn't even documentation that doesn't say that the diagnosis is wrong you're saying no documentation is fine now your honor what i'm saying is st it's undisputed that each died in and by the way prognosis their prognosis of terminal illness it's undisputed that they are also supported by clinical records the issue of the government and relays are saying if they look at those records and they disagree with the certifying position so because the reg says it has to support the medical prognosis correct information not enough to just source and paperwork have paperwork has to actually through analysis support the medical prognosis correct and your position as i understand it is it's reasonable minds can disagree about whether that documentation supports the prognosis it can't going to be true that's been the case throughout this litigation until we got to this appeal judge the mandal held that the complaint that there is no indication that there is not that th the records are not exercising their public judgment to let me ask you this is is good for city told to sponsor it's the liability of it it's dispositive in this case well let me ask you this question then if we followed the district court's paradigm here and scott the in three f that opinion as objectively unreasonable and there's a reason for that could you tell me where the objective comes from i don't see it was to issue your honor that's correct it's not in the statute at least eight circuits have applied that that legal analysis and the false claim that including the rd circuit not understand as we're unpublished opinions but they were correct that in order for an opinion to be false it's got to be objective we are reasons ok tell me where in the statute regulations i find support for there is no nothing in the statute that uses the word subjective ok interpretation of the law is applied so why should we go that route none of those authorities bind us tell us why we should be persuaded because the false claim that punishes palpable lives it doesn't pump it doesn't punish errors it doesn't punish the enter that sort isn't the problem with a lot of these decisions that they're conflating c n n with falsity not miss case it would be the case f there was an allegation that the physician didn't believe it to be true in this case theories and to recognize that we see enter does independent work here how is your position consistent with his complaint is consistent so this is again the c m per question in this case is not an issue the question is whether or not the clinical judgment  supported by the documentation if there is no evidence of that at that clinical judgment is not objectively reasonable then it's not false on a forgive me might my questioning must be unclear superficial as could a different way and maybe you can answer if i put it this way you have forty experts who say that this that they would not have reached this diagnosis and indeed that no physician would reach a stud notices you put up one expert with a medical degree from forty three medical school who says no i would i would reach this i would i would i would have made this diagnosis is that enough in every single case to defeat summary judge i positions judgment then yes that could that could establish balti that would be objectively reasonable in this case i do want to make an important point there are there are multiple opinions in this case the certifying position whose opinion is on challenge the medical director whose opinion as i'm challenging the defense expert who's who at the record supported terminal illness in all circumstances the only dissenting opinion your honor is the occasional opinion of the waiter's expert who testified clearly he would  sure so in particular in the hospice context the way that congress has legislated it and c m s is regulated they have deferred the decision to a physician and they haven't established any criteria that must be met there are other cases in the health care walks through several particular examples for instance you have there are nursing notes that indicate that they could walk without assistance and stop to push another witness and said let's go to my house or there's a c s who is emulating around the house there's someone who was claimed to have had dyspnea rest when the medical records states the patient was out of bed in wheelchair in exercising activity  unchurched smiling and laughing during exercise aren't those actual conflicts with what your positions certified st marker are they did not present that argument that record nd of all their own experts certified that particular of those patients you just identified report was in the record the arguments about the particular patients were not submitted to summary judgment let me let me back up a minute because i want to make the point that one dr j said some of these patients were appropriate but more importantly to your question your honor  have made the decision not to impose that type of criteria you can be able to walk and still be terminally ill you can go to church and be terminally ill in fact when i and when what about your doctors refusing to sign research occasion papers so your honor there is no evidence of that there is now p r p c s n e is there is an allegation in the complaint that patients at one point the position decided to remove them from hospice which isn't a perfect perfectly appropriate decision by the physician i do want to back up when you're saying that didn't happen that fit never happened that physicians attending physicians refused to sign recertification papers in this case that evidence wasn't to do this but even if it does it doesn't matter because what happened during a resort vacation  again do you believe this patient to be turmoil and if the position changes his mind as congress contemplates in the regulation that is appropriate i do if the if the attending physician says i don't think we should i'm not going to sign the research vacation paper you're saying the claim should still be paid f if the patient stayed on hospice after that absolutely not but in this case that decision was not made and once that decision was made the patient was removed from ha so that never happened to a p or p c s or you know your honor i do want to bring back one point that you raised about the fact that they identify that particular patients  patients could walk and talk so could dr james's patients and ask them that i said how many patients have you certified for hospice under the dementor criteria you could walk or who don't meet the criteria he said probably close to half because these guidelines are only one they're not binding on so i do want to make that point there are waivers also alleged in the complaint that patients could walk or talk and then they at deposition they said that is actually untrue so for example with patient a p they allege in the complaint this patient was clearly inappropriate for hospice no one could think otherwise because she could walk and she was gaining weight then we found out we identified a medical record created by just reading where she said the opposite that the same patient was wheelchair bound meaning she can't the allegations didn't bear out during discovery and that's what's important in this case mr paul mentioned that they have other evidence to support their claims judge the mandal reviewed the factual record and made that made these findings clear st he had then if i have the evidence that miss coleman testified about she was the longest tenure bill later by far of all time she took i have a great command of the facts so this is very helpful but i want to get a more basic problem which is your position seems  not on the idea that the district judge fundamentally is going to be deciding which expert opinions are reasonable or in the realm of reasonableness whereas our circuit precedent tells us that pat's a jury question to sift among them how is your position consistent with so in the false claims that i recognize that in certain malpractise cases that the credibility of an expert comes at this isn't that a it's also interesting to me and i should we draw a different line here because the expert there was no there was no disputed fact that the clinical judgments were not reasonable and he in judge and sorry dr jaysus testimony is clear on how would you create a disputed fact in your view because it's it seems there are questioning to both sides have pointed out where there are doctors use on one side of the question and doctors use on the other side of the question so if that doesn't is if that isn't enough just as sort of as a general principle and you've got to dig down deeper how how in your view would you create a genuine dispute here's how i do it in president supports it st i would call us free pause and now that benefit evidence in the it would be pointed to something in the record somewhere of the paula cough case as well so at the certifications that i'm performing the surgery because i see it quickly gen x drug and then you look at the record and you see something that conflicts with that verifiably that's where it would come up i do think though that the deaf position testimony of the physician would be important particularly your honor you bring up a malpractise issue of course the defendant is deposed and there's four ways to do it another good case is the graves case from the southern district of florida so that's a medical necessity case where it was alleged that the defendant was admitting fault diagnosis that's what they do they depose the physician and he agreed ok i'm looking at this record and there's no medical evidence to support my certification and that takes it away from this realm of a mere difference but that's a very rare situation i mean i think the concern you're hearing from all of us i've yet to hear your take is there are going to be a lot of cases in which the one the rollator gets one expert and the health care provider gets another expert and the norm in most of our law is that survives summary judgment and to a jury now the th circuit just came up the other way and that helps you but it's pretty unusual and it seems as if a lot of cases are going to get cut off i see mechanisms on the government side if we're concerned about floodgates of too many cases getting a jury the government can step in and stop some of these cases and the government doesn't want all these health care providers to be sued but if we go your way and cut these all off from a jury what's to prevent a lot of health care providers from having a house expert who is especially favorable to them testifying that this is a reasonable medical judgment and then a lot of district judges well meaning but nevertheless seeing ok we have reasonable we have reasonable i'm doctor i can't sort this out it gets cut off how do we what's going to keep that from insulating an enormous amount of practice from any meaningful scrutiny so it's two things one the government's administrative mechanisms the government is not permitted to pay services that are not reasonable necessary decision talked about that it's got a variety of mechanisms to make sure that services are not being walked me through the mechanisms that you think even if there's no pulls claims like liability are going to prevent and say i don't believe this this this was a terminally ill patient they were koop the payment from the hospice provider and at that point it's on the hospice to prove that terminal illness was in fact supported by the record so there is no concern about hospice providers getting paid for patients who are not terminally ill at the record doesn't support it that's appropriate at the administrative level and this circuit has talked about that the existence of the administrative regime particularly help your context and not expanding the implied certification theory expansively your honor secondly i do want to talk about the facts of this case because mr scarborough made the point well if you endorse this opinion it allows unscrupulous hospice providers to avoid liability if they can just get any medical director to sign off a patient sign off on a patient st of all that degrades the positions in this case that's what somebody does with discovery is for to test the premises of whether or not a hospice is in fact unscrupulous and having a prevail if we disapprove of the objective fall the standard because it's not supported by the text of the statute or the regulations the facts of the case don't support falsity in any manner regardless of its objective all there was was a difference opinion but more importantly the facts when when when when the other side is talking about the other evidence they have did not bear out what you have in this case when you look at the facts which judge the man with the still and he made his opinion not on some proclamation which this court does not need to do either all the question is whether judge mandel got it right when he held that the facts did not support the element of fault in this case well objective subjective falsity but your honor he did go on to talk about that because initially they focused on the false documentation correct but what the waiter said to avoid dismissal and this is important and and now i've got a minute left this is critically important at the motion to dismiss phase this was two thousand and sixteen that's serger this is different from a sarah care we're going to provide testimony we're not just going to while an expert you see their appeal the appeal says hey let us just rely on expert to get by that's not what they told judge man to get past think to get past her motion to dismiss what would the interdisciplinary team meetings were asking for a close one part on arguments that they did not present to the district court and one more piece that i would say about that is the evidence as judge mental distilled plainly refutes that based on for these five reasons the medical directors often did not attend meetings secondly there was company wide pressure to bring in the bodies in admit patients rd employees were instructed to alter medical records after the fact after the medical directors look at them showing that they did not have the proper documentation at the time they were reviewed rd employees were pressured to chart to the negative that means put information in the chart that would support hospice eligibility and exclude information that would undermine hospice eligibility th there were quarterly clinical record on if the company knew it had a problem with its documentation and it went and looked at them to see you know what the problem was and it found that eighty seven percent of time and one quarter there was not enough information in the record had to redo it the justice to mail did not look at all of the evidence he did not look at our response to the statement of their statement facts and he disregarded the counter statement of facts and all the record of evidence is before your honor's right now th label they call it when courts get suspicious of of nd guessing medical judgment in a false claims act arena and we understand why courts have that feeling because they're worried about imposing trouble damages also in fact liability however those sorts of things about a reasonable position they go to to get rid of the really you know quack sort of expert saying that no reasonable physician could have done this that's one thing the nd point that i wanted to make and i realize i'm very over time is that there are two false claims act provisions at issue here and one requires an expressed false a lack of documentation that's magic correct ron and that's what the issue is about that's what the dispute is is is there sufficient documentation to meet that nd requirement as a condition again thank you thank you to all counsel for the  very helpful argument will take the matter under