UNITED STATES of America, ex rel. Michael DUNN, Plaintiff-Appellant
NORTH MEMORIAL HEALTH CARE; North Memorial Medical Center, Defendants-Appellees.
Submitted: Oct. 24, 2013.
Marion M. Reilly, argued, Corpus Christi, TX (Markus Clarence Yira, Daniel M. Homolka, Robert C. Hilliard, Catherine D. Tobin, on the brief), for Plaintiff-Appellant.
Lousene M. Hoppe, argued, Minneapolis, MN (John William Lundquist, Kevin C. Riach, on the brief), for Defendants-Appellees.
Before LOKEN, GRUENDER, and SHEPHERD, Circuit Judges.
SHEPHERD, Circuit Judge.
Michael Dunn brought a qui tam action against North Memorial Health Care and North Memorial Medical Center (collectively referred to as North Memorial),  pursuant to the False Claims Act (FCA), 31 U.S.C. § 3729, et seq. Dunn alleged that North Memorial knowingly submitted fraudulent claims to the government seeking payment for cardiac and pulmonary rehabilitation services that did not comply with Medicare regulations. Dunn claimed that as a result, the United States has erroneously paid North Memorial approximately two million dollars. North Memorial moved to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and 9(b). The district court  dismissed the complaint under Rule 12(b)(6). We affirm the dismissal on the alternative ground that Dunn's complaint does not meet the requirements of Rule 9(b).
The Medicare program was established by the Social Security Act of 1965 to assist qualifying patients with the payment of their medical expenses. The program authorizes payment for various services, including " hospital ... services incident to physicians' services rendered to outpatients." 42 U.S.C. § 1395x(s)(2)(B); see also 42 U.S.C. § 1395k(a) (authorizing payment to or on the behalf of qualified individuals for " medical and other health services" ). The program particularly requires outpatient cardiac and pulmonary rehabilitation services to be furnished " [u]nder the direct supervision ... of a physician or nonphysician practitioner." 42 C.F.R. § 410.27(a)(1)(iv). In order to
receive reimbursement for services rendered, health care providers must comply with Medicare regulations and submit reimbursement claims forms to the Center for Medicare and Medicaid Services (CMS), the agency which administers and regulates the Medicare program. North Memorial participates in the Medicare program as a health care provider and seeks reimbursement for outpatient cardiac and pulmonary rehabilitation services it provides at its hospital in Robbinsdale.
From October 1996 through August 2008, Dunn was the Administrator for Cardiovascular Consultants, an independent cardiology physician group providing services at North Memorial. In 2010, Dunn brought a qui tam action against North Memorial, alleging that, " throughout the time [he] worked for CVC and North Memorial, he observed that North Memorial was not operating its cardiac and pulmonary rehabilitation programs in accordance with the Federal Medicare Program." Specifically, Dunn claimed that North Memorial did not provide any physician supervision of the programs as required under the Medicare statutes and regulations, but rather staffed the programs solely with non-physicians.  Dunn further claimed that the forms submitted to CMS falsely identified four physicians as the supervising physicians, when in fact, none of the listed physicians ever provided any supervision to the cardiac and pulmonary rehabilitation programs.
Dunn alleged that despite his informing North Memorial officials of their noncompliance with the supervision requirement and fraudulent billing practices, North Memorial continued to submit misleading claims, causing " thousands of instances of fraudulent billing" from 1996 until the present. As a result, according to Dunn, the government has wrongfully paid North Memorial approximately two million dollars.
The district court granted North Memorial's motion to dismiss pursuant to Rule 12(b)(6), concluding that the complaint failed to state a claim ...