ready for argument now in the case of united states against on conduct the government relied upon did not actually violate the law today i will address how the government propounded and the court adopted and erroneous legal theory as to what is required to certify a patient as being under the care of a physician for purposes of a valid home health care certification and even if the court with correct on the law the government propounded and the court adopted a loss calculation methodology that allowed medicare to claim it suffered a monetary loss of two point eight million dollars without any evidence that it had paid for any unnecessary services and to clarify before proceeding just to reiterate from the brief mr john does not challenge the loss calculation of four hundred seventy thousand that is related to over billing for patients and i'm going to rest on the grease regarding restitution which is in the same amount as the two point eight million unless this court has questions in order to authorize home health care a physician must sign a certification that such services are were required because the patient is confined to his home a physician has established a plan of care and periodic leave reviews the plan and such home in the briefs for the sentencing hearing the government adopted the position that the quote under the care of a physician requirement could only be satisfied if a physician personally met with the patient that contention  your honor i think if i'm understanding or if your question correctly the court asked counsel for the for the government multiple questions about couldn't you establish that someone was under the care of a physician  and that that was simply not correct because the requirement that a doctor meet with the patient or someone meet with a patient before certified came into effect in two thousand and eleven under the affordable care act prior to that there was no such requirement of a face to face meeting in order to certify a patient as being under your care and even when the when that requirement went into effect which was generally first of twenty eleven someone other then the doctor a nurse practitioner for instance could conduct that meeting and the doctor could rely upon it in certifying and so one of what we find so troubling in this case is that what was not before the court chris had all of these questions about who can't you know about a patient's health care status from something other than a visit and certify that they're under your care and the and the prosecutor answers no to that but in sacked that was in accurate the medicare benefits policy manual also states that quite  specifically that it is not required for coverage that the physician who signs the plan of care see the patient and that is under the definition of under the care of a physician that provision was not provided to the court so it's troubling that the provision is not provided to the court the court has a lot of questions in which it seems to think maybe what the government is saying is not correct and then ultimately it does adopt that position but as a matter of law that position was incorrect and a physician's failure to meet with a patient simply does not standing alone render a health care certification fraudulent and in fact i would also point out to the court that the indictment here in the plea that mr john when he pled guilty was that he knew patients he certified patients that's who about who he knew were not homebound or had never met the patient in hand and this is the part that was read out of the entire sentencing hearing and was not familiar with their health status now that and part and part about was not familiar with their health status comports with the law which allows a doctor to find out about someone's health status through other means there's also i think a really big irony here in the government's brief where they cite the apples case out of the fifth circuit and the end i mean as we point out that's an unpublished opinion from another circuit but in that case the court actually acknowledges that a doctor at least in the fifth circuit could become familiar with another person's health care by corresponding with the patient so the fact standing alone that dr john did not meet these three hundred five people is not enough to show that his certifications for fraudulent and because that is the only basis on which the court found the certifications fraudulent that a court commit be to rescind without any further hearing on last calculation and the four hundred eighty seven thousand to which mr john does not contest in the alternative even if the three hundred  certifications were fraudulent the court's improper last calculation methodology also requires fake terror in re sentencing the prosecutor has the burden of proof of a status in monetary loss and here the methodology adopted required no evidence that medicare suffered a financial loss the government admitted it did not know whether any of the three hundred five certified patients received and there for medical care paid for unnecessary services government took the position literally and we put this in our brief it as well that maybe they were humble maybe they weren't and that simply didn't matter because it was the government's position that it suffered a loss because it would not have paid on certifications if it had known they were fraudulent but that's not a statement of loss i mean hopefully most people are not going to pay out on the bill if they think there's something fraudulent about it medicare's mandate is to pay for services for patients who are truly homebound and the government had to have the burden of eliciting evidence that the hans conduct actually caused it to pay for an assertive says and it did not do that in this case additionally the last methodology probably assumed without any evidence unlawful conduct by the home health care agency it's another words mr de haan is being held responsible for home health agencies bill without any proof because we don't know anything about these three hundred five people  agree with you though i think it that you can't assume that you say hunger yeah ok go ahead well what where we are legend is i'm croppers there was no evidence and there has to be for causation and and legal causation of loss to medicare and if you end it when the government comes in and says it doesn't matter whether these people were homebound or not the government is saying we don't have to pay for necessary services it doesn't matter of the services were provided by a nurse practitioner or some other profession with no code that can be used to build for certifying a patient for home health care and he could rely on a visit by a nurse practitioner to tell him about the person's health care status and then he could certify for home health care and then the home health care agencies would submit bills and what the last calculation is based upon the theory that all of the services provided by the home health care agencies were unnecessary without any evidence as to whether they were they were so in the end in essence even if the mr de haan certifications were improperly done or fraudulent the law should still be measured in terms of whether medicare provided unnecessary courts took a small number of patients and narrowed that small number down to a subset of three hundred five patients now that's three hundred five patients the district court found represented patients that were not under their fenton's care when the could have been under got to don's care without even billing medicare for any medical services could a nurse practitioner under the supervision have been provided this is  no your honor and i would like to court know that during the did the sentencing hearing there was evidence that came out the dr de haan that early on in the stage had a nurse practitioner but throughout the proceeding he did not have any nurse practitioners or p a s assistance who under the only law couldn't bill for this is what anyway and it's it's the evidence the three hundred five patien combined with the defendant's admissions that the district court looked at the defendant admitted that the home health agencies tell him which patients to certify and he certified them and the defendant emitted that he never actually met the patients and that he didn't wasn't familiar with their health status and that he knew some of the patients who were were that he sort of five for home health services were actually home and he was going to have problems with that now the medicare  benefits manual that the defendant refers to says the patient is expected to be under the care of the physician who signs the certification so it says there that they're expected to be under the care not under the care of a physician doesn't start at the time of certification and it says the next and says it is expected but not required that the physician will visit the patients well what that essentially saying is once a plan of care of this is established that  physician doesn't have to visit the the patient because the home health agencies are dealing with them but the prior sense says that is a patient is expected to be under the care of the physician who signs a certification so how can the defendant of science certifications claiming these recertification is out of more than seventy eight hundred certifications so we're talking about fourteen percent this is not every single patient that's a defendant certified this is a very small subset based on the extensive evidence that was unrebutted at the sentencing hearing not see when he certified and there was no billing record for the the face to face issue which the defense brings up is not relevant at all so when you say he did not see what we're talking about as they were not patients there under his care prior to the certification the face to face client came in later although there was a period of time of the scheme that it was in place but what ninety four c is saying is these are patients that the defendant has never billed for for business even though he certified  so they could not have been under his care and i would point this court to the patel decision this court in patel went through a pretty thorough analysis of that was an anti kickback statute case this court went through a very thorough analysis of what was required for  home health certifications and in patel this court noted that a doctor must initially determine patients need the services and you need the patient's primary care physician to sign the form forty five that's not what happened here the home health agencies here told the defendant here's what we want you to certify and he did it need mid and he's not their primary care physician because there's no evidence that he knows anything about these patients and that's what ninety to identify go through every single patients and say every three hundred five or all seventy eight hundred sort of occasions we have to go through and decide and say these people are home health care status home health care and these people don't that's not what the law requires that's not what the district court it was required to do and in this court even noted in his opinion you know precision is not required a reasonable assessment of loss is what is required the entire scheme also really involved him receiving money back from the nursing homes for  poor health agencies could fill or could do all these services and but they can't bill medicare or receive payment until he signs those forms so he was getting paid for the certifications for the home health agencies and with his certification were billing millions of dollars for our home health care and i would note that saying some of his hometown is part of the home health care program a nation you have to be under the care physician to certify is it that p determine whether or not the patient has it's a taxing effort to leave the home and whether they need some sort of skilled nursing so it's a combination so to say someone isn't home bound that is one part of the home health kids you know require and what we were focusing on is under the care of physicians part of that requires and there's no evidence that any of these three hundred five patients were under his care at the time that they were served on th her in response to a question you asked about the exhibits the exhibits do not eliminate the possibility of these ninety four a p and see that the nurse practitioner bill did visit the patient and he relied on it and that is at the worked for him at the various points of the not only your colleague is saying they're wrong and nursed back to the record reflects otherwise and the sites are in our brief on that issue bit but frankly even if there  were no nurse practitioners prior to two thousand and eleven he could learn about healthcare status through other means and the government has just stood up and said there's no evidence that he didn't learn about healthcare status through other means well that was part of his his indictment that was the government's burden that is precisely our point is they didn't meet a burden on that but putting aside that for a moment even if those health care certifications were fraudulent it's still the case that the government did not produce any evidence that people didn't need the services so again the prosecution comes up and says says well the agency's told told him who to certify and he certified ok testify to that that would apply to some people and let's be clear we're not saying that the court has to be precise on this but the fact of the matter is that the government is still assuming with no evidence that all of those three hundred five certifications were for people who didn't know you need care they are suing that the health care agency sent to mr john people he they they thought needed care or wanted to have approved for care he just signed off on it even if that's true where's the evidence those people didn't need care and the government suffered a loss if those people didn't were if the agencies are then billing for unnecessary treatment and there's just no evidence of that that was their burden of proof and that is really at the end of the day much of what this case comes down to the lack of meeting a burden of proof that that any conduct by mr john cost two point eight million dollars worth of loss and the other thing i would add is the government took the position that all these agencies where independent actors they took it in the position they're priests and they took it specifically when the court said are those agencies affiliated with m the government said no they were not and in fact it said no they are not and that's why you can't get sent off for conduct if they appropriately build well if you can't get set off if they provide for their independent decision to provide necessary care why is he liable if they provide the necessary care third independent actors where's the but where's the but for proximate cause in that theory i want to address one more point which is that even if this court does not agree with all of this or to han's reasons as to why none of this amount should he should be accountable for none of this amount remained at least on a limited basis we would ask for because the government calls that two point eight million dollars both a build and claimed amount but then when it comes to restitution they say it was paid so there's no clarification in this record as to which it is view all of that money there should be vacant or in re sentencing on just the four hundred seventy thousand because that is the only amount that was proven but if this court disagrees with that there should we would ask at least for a limited and for a hearing to clarify is that two point eight million just build because that's absolutely not a loss if it was just a build amount it should be at least reimbursed amount or was it paid and