UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA EX REL. MARK TROXLER, Plaintiff - Appellant,

v. WARREN CLINIC, INC.; SAINT FRANCIS HEALTH SYSTEM, INC., Defendants - Appellees. No. 14-5144 (D.C. No. 4:11-CV -00808-TCK-FHM) (N.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , PORFILIO , and PHILLIPS , Circuit Judges.

________________ _________________ Mark Troxler brought this suit under the False Claims Act (“ FCA”), 31 U.S.C. §§ 3729, 3730, alleging that defendants Warre n Clinic, Inc. and Saint Francis Health System, Inc. (collectively “clinic”) were fraudulently billing the government for services provided by no n-physicians. The district court dismissed the suit under Federal Rule of Civil Pro cedure 12(b)(6), and exercisi ng jurisdiction under 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### October 28, 2015
Elisabeth A. Shumaker Clerk of Court2 I Dr. Troxler worked at th e clinic from March 2010 thro ugh February 2011. He alleged that during that ti me, he observed and proteste d the clinic’s practice of having nurses and medical assistants collect pa tients’ “History of Present Illness” or “HPI.” Aplt. App., Vol. 1 at 6. Dr. Troxler averred that HPI information is necessary to select the proper billing c ode for “evaluation and management” or “E/M” services and must be suppor ted by a physician’s documentation. Id. at 10-11. He further alleged that by having non-physicians collect and document HPI information, the clinic wa s fraudulently obtaining reim bursements from federal and state Medicare and Medicaid programs. Dr . Troxler therefore brought this suit on behalf of the government under the FCA’s qui tam provisions, claiming the clinic was knowingly presenting false or fraudulent claims to the government for payment, and knowingly making or using false r ecords to obtain payment for false or fraudulent claims. See 31 U.S.C. § 3729(a)(1)(A), (B). 1
The district court dismisse d the suit under Rule 12(b)(6). 2 The court first described the FCA’s statutory framewor k, which “‘recognizes two types of actionable claims—factually false claims and legally fa lse claims.’” Aplt. App.,

1 An individual may prosecute such clai ms on behalf of the government under the FCA’s qui tam provisions a nd share in any recovery. See U.S. ex rel. Lemmon v. Envirocare of Utah, Inc. , 614 F.3d 1163, 1167 (10th Ci r. 2010) (citing 31 U.S.C. § 3730(b), (d)).

2 The district court did not reach the clinic’s alternativ e argument that the complaint was subject to dismissal under Fe deral Rule of Civil Procedure 9(b) for failure to plead the claims wi th particularity. Our dis position obviates any need to consider this issue.3 Vol. 2 at 220 (quoting U.S. ex rel. Conner v. Sali na Reg’l Health Ctr., Inc. , 543 F.3d 1211, 1217 (10t h Cir. 2008)). 3 Factually false claims, th e court explained, are those in which “‘the payee has subm itted an incorrect descrip tion of goods or services provided or a request for re imbursement for goods or serv ices never provided.’” Id. at 221 (quoting Conner , 543 F.3d at 1217). The court determined the complaint fail ed to plead a factually false claim because Dr. Troxler did not allege that anyt hing in the clinic’s claim forms was false, nor did he dispute that the services were actually provi ded. Moreover, he did not allege that the clinic faile d to document HPI informat ion or that the E/M billing codes were incorrect; rather, he merely alleged that the nurses and medical assistants who obtained HPI information were unqualified to do so. But because the complaint did not allege the clinic was obligated to identify who collected the HPI information, the court concluded the complaint failed to state a factually false claim. As for legally false FCA claims, the distri ct court explained th ey may be either express or implied and “require the relator to prove that ‘the defendant has certified compliance with a statute or regulation as a condition to government payment, yet

3 The relevant provisions of the FCA provide for civil penalties and treble damages against a defendant wh o “(A) knowingly presents or causes to be presented, a false or fraudulent claim for payment of approval; [or] (B) knowingly makes, uses, or causes to be made or us ed, a false record or statem ent material to a false or fraudulent claim[.]” 31 U.S.C. § 3729(a)(1). The scienter element is established if the defendant has “(i) actual knowledge of the information; (ii) acts in deliberate ignorance of the truth or falsity of the inform ation; or (iii) acts in reckless disregard of the truth or falsity of the information,” although “no proof of specific intent to defraud” is required. Id. § 3729(b)(1); see U.S. ex rel. Burlbaw v. Orenduff , 548 F.3d 931, 945 & n.12 (10th Cir. 2008).4 knowingly failed to comply with such statute or regulation.’” Id. (quoting Conner , 543 F.3d at 1217). The court recognized that an express false certification claim arises when “‘a [defendant] falsely certifies compliance w ith a particular statute, regulation or contractual term, where complia nce is a prerequisite to payment.’” Id. at 221-22 (quoting Conner , 543 F.3d at 1217). But an implied false certification claim “requires only the presentation of a fa lse or fraudulent claim for payment or approval without the additional . . . requireme nt of a false record or statement.” U.S. ex rel. Lemmon v. En virocare of Utah, Inc. , 614 F.3d 1163, 1168 (10th Cir. 2010) (internal quotation marks omitted). When analyzing these implied false certification claims, the focus is “‘on the underlying contract s, statutes, or regulations . . . to ascertain whether they make compliance a pr erequisite to the government’s payment.’” Aplt. App., Vol. 2 at 222 (quoting Conner , 543 F.3d at 1218). The district court concluded that the co mplaint failed to allege either an express or an implied false ce rtification claim. An express false certification theory failed, the court ruled, becau se there were no allegations that the clinic certified its compliance with any legally binding authority . A single paragraph in the complaint alleged the clinic “repeatedly and falsely certified their continued compliance with Medicare guidelines while kno wingly rendering services not in compliance with Medicare guidelines and while knowingly subm itting false records or statements for payment related to such servic es rendered.” Aplt. App., Vol. 1 at 20, ¶ 47. But this conclusory statement, the cour t held, failed to identify a ny statement or certification5 of compliance with any legally binding authority. Although Dr. Troxler cited a provision of the Department of Health and Human Services’ Evaluation and Management Services Guide , the district court determ ined this document had no legally binding effect and even if it did, there was no indication in the complaint how the clinic certified its compliance with it. 4 Apart from that, the court noted that Dr. Troxler did not identify any false certif ication premised on the requirements of a statute, regulation, or contract. This was fatal to his theory of an implied false certification, the court explained, because w ithout an underlying statute, regulation, or contract, there was no authority to make compliance a pr erequisite to the government’s payment.
II We review the district c ourt’s dismissal de novo, Lemmon , 614 F.3d at 1167, and agree that Dr. Troxler failed to plead a plausible FCA claim. The complaint fails to state a factually false claim because there are no allegations that the clinic submitted anything false to the government or that the services were not actually provided. Dr. Troxler sugge sts the reimbursement request s were false because only physicians can certify whether se rvices are medically necessary, see Aplt. Br. at 17 (“reimbursements . . . are ma de only for services that are medically necessary” and

4 The “Medicare guidelines” that Dr. Troxl er referenced in his complaint are the 1997 Documentation Guidelines for Eval uation and Manageme nt Services, see Aplt. App. , Vol. 1 at 10 ¶17, 20 ¶ 47, which are a ppended to and appear to be part of the Evaluation and Management Se rvices Guide, see id. at 57-145. The clinic attached these ma terials to its motion to dismiss, and the parties do not dispute their authenticity. See Jacobsen v. Deseret Book Co. , 287 F.3d 936, 941 (10th Cir. 2002).6 are inappropriate “when a physician’s documentation fail s to support the medical necessity of a[n] . . . E/M se rvice”), but there are no allegati ons that the services were unnecessary. Rather, the co mplaint alleges that HPI in formation was collected by unqualified personnel. But as the district court recognized, absent allegations that the clinic was required to identify who collected HPI information, th e complaint fails to state a factually false claim. Likewise, the complaint fails to state a legally false claim. There are no allegations to support an expr ess false certification theory because the complaint does not identify any expressly fa lse certification or statemen t. Nor does the complaint identify a statute, regulation, or contract requiring that only physicians collect HPI information as a prerequisite to payment. This deficiency defe ats an implied false certification theory because without an underlying legal authority to make compliance a prerequisite to payment, there can be no false certification. See
Conner , 543 F.3d at 1218. Although Dr. Troxler alludes to the 1997 Documentation Guidelines for Evaluation and Management Services , Aplt. App., Vol. 1 at 96; Aplt. Br. at 22, he does not allege—and we find no indication—that these guidelines legally mandate and conditi on payment of services on a health-care provider’s certification that HPI info rmation was collected exclusively by physicians. Moreover, without a statutory, regulatory, or contractua l obligation to make this certification, it is implausibl e that the allegations satisf y the scienter requirement because there was nothing with which the c linic could have knowingly certified its7 false compliance. 5 Under these circumstances, the district court correctly dismissed the complaint. Accordingly, having reviewed the partie s’ appellate materials, the relevant legal authorities, and the reco rd on appeal, we affirm the district court’s judgment for substantially the same reasons stated by the district court in its decision dated November 5, 2014. Entered for the Court

Gregory A. Phillips Circuit Judge

5 Dr. Troxler reiterates his ar gument that a provision of the Evaluation and Management Services Guide allows “ancillary staff” to collect and document certain information. Aplt. App., Vol. 1 at 70. He insists that this expressly enumerated allowance for non-physicians to collect specific informati on must mean that other information, including HPI information, ca n only be collected by physicians. But even if we could read this negative in ference from the omission of language in the Evaluation and Management Services Guide (which we do not), the district court correctly recognized that this guide is not legally binding. Indeed, it expressly says that it is merely a “reference tool” a nd “is not a legal document and does not grant rights or impose obligations.” Id. at 58.