No. 20-2151 ___________________________

Susan Thayer, Qui Tam Plaintiff/Relator

Plaintiff - Appellant

v.

Planned Parenthood of the Heartland, Inc., formerly known as Planned Parenthood of Greater Iowa, Inc.

Defendant - Appellee ____________

Appeal from United States District Court for the Southern District of Iowa - Central ____________

Submitted: May 13, 2021 Filed: September 3, 2021 ____________ Before COLLOTON, WOLLMAN, and KOBES, Circuit Judges. ____________ KOBES, Circuit Judge.

Susan Thayer filed this qui tam action against Planned Parenthood of the Heartland asserting causes of action under the False Claims Act, 31 U.S.C. § 3729 et seq. She says that Planned Parenthood violated Iowa law by dispensing extra cycles of oral contraceptives without a physician’s order and that Planned Parenthood illegally billed Iowa Medicaid Enterprise (IME) for post-abortion related procedures. The district court1 granted summary judgment to Planned Parenthood on both counts. We affirm.

I.

Planned Parenthood of the Heartland is an Iowa non-profit that provides reproductive services to low-income patients through Medicaid, a joint federal-state program to reimburse health providers for services to eligible patients. Thayer was center manager for Planned Parenthood’s clinic in Storm Lake, Iowa from 1991 to 2008. She also worked as a clinic manager in LeMars, Iowa for four of those years.

Thayer says that from January 2006 to December 2008, Planned Parenthood submitted false claims to the Government and received reimbursement from IME for services and procedures contrary to Planned Parenthood protocols and both federal and state law. She filed this qui tam action in 2011. Neither the United States nor the State of Iowa intervened.

Early on, Planned Parenthood filed a motion to dismiss for failure to plead with particularity under Federal Rule of Civil Procedure 9(b). The district court granted the motion, and Thayer appealed. We reversed on two of the claims because Thayer “pled sufficiently particularized facts to support her allegations that Planned Parenthood violated the FCA.” United States ex rel. Thayer v. Planned Parenthood of the Heartland, 765 F.3d 914, 919 (8th Cir. 2014).

After remand and another motion to dismiss Thayer’s Third Amended Complaint, two claims remain. First, Thayer says Planned Parenthood dispensed oral

1 The Honorable John A. Jarvey, Chief Judge, United States District Court for the Southern District of Iowa.

-2- contraceptives prior to or without a physician’s order, knowing it was against Iowa law. Thayer specifically argues that Planned Parenthood violated its own protocols by changing prescriptions for and providing extra cycles of oral contraceptives without a physician’s sign-off. Second, Thayer claims that Planned Parenthood billed IME for abortion-related services in violation of both federal and state law. She says that through its coding and billing procedures, Planned Parenthood intentionally separated charges for services related to a previous abortion but submitted additional claims to receive reimbursement anyway.

After discovery, Planned Parenthood moved for summary judgment and Thayer cross-moved on several of Planned Parenthood’s affirmative defenses. The district court granted summary judgment to Planned Parenthood. The court first held that Thayer had not sufficiently pleaded her claim that Planned Parenthood ch