No. 13-1099 ___________________________

United States of America, ex rel. Michael Dunn

lllllllllllllllllllll Plaintiff - Appellant

v.

North Memorial Health Care; North Memorial Medical Center

lllllllllllllllllllll Defendants - Appellees ____________

Appeal from United States District Court for the District of Minnesota - Minneapolis ____________

Submitted: October 24, 2013 Filed: January 9, 2014 ____________ 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),1

1 North Memorial Health Care is a medical center and full-service health care provider with its primary hospital, North Memorial Medical Center, located in Robbinsdale, Minnesota. 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 court2 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).

I.

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).3 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

2 The Honorable Michael J. Davis, Chief Judge, United States District Court for the District of Minnesota. 3 Both parties agree that this provision governed North Memorial’s conduct prior to the 2010 enactment of 42 C.F.R. §§ 410.47 (concerning conditions of coverage for pulmonary rehabilitation programs) and 410.49 (concerning coverage for cardiac rehabilitation programs).

-2- (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 reh