IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-50818

UNITED STATES OF AMERICA, ex rel., INTEGRA MED ANALYTICS, 

L.L.C.,

 Plaintiff–Appellant,

v.

BAYLOR SCOTT & WHITE HEALTH; BAYLOR UNIVERSITY MEDICAL 

CENTER–DALLAS; HILLCREST BAPTIST MEDICAL CENTER; SCOTT &

WHITE HOSPITAL–ROUND ROCK; SCOTT & WHITE MEMORIAL 

HOSPITAL TEMPLE,

 Defendants–Appellees.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:17-CV-886

Before OWEN, Chief Judge, and HIGGINBOTHAM and WILLETT, Circuit 

Judges.

PER CURIAM:*

Integra Med Analytics, L.L.C., filed a qui tam suit1 on behalf of the 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

1 At the federal level, qui tam suits are those that are filed “for the person and for the 

United States Government” and “brought in the name of the Government.” 31 U.S.C. 

United States Court of Appeals

Fifth Circuit

FILED

May 28, 2020

Lyle W. Cayce

Clerk

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United States against Baylor Scott & White Health system and its affiliates

under the False Claims Act for allegedly using inflated codes to bill Medicare. 

The district court dismissed Integra Med’s claims. We affirm.

I

The Baylor Scott & White Health system and its affiliates (Baylor)

operate a network consisting of around twenty inpatient short-term acute care 

hospitals in Texas. A significant number of patients served by Baylor are 

covered by Medicare. Thus, Baylor regularly submits reimbursement claims 

to Medicare. In this case, Integra Med Analytics, L.L.C. (Integra Med) alleges 

that Baylor submitted $61.8 million in fraudulent claims to Medicare, in 

violation of the False Claims Act (FCA).2

Medicare reimburses hospitals like Baylor on a per-discharge basis, 

which means Baylor gets paid each time a patient stays at the hospital. The 

exact amount that Medicare reimburses primarily depends on a hospital’s

diagnoses of Medicare-covered patients. Medicare classifies similar diagnoses 

by putting them into a diagnosis related group (DRG). Each DRG is 

determined by several kinds of codes, including the principal diagnosis code

and secondary diagnosis codes. The principal diagnosis code is for the

“condition established after study to be chiefly responsible for occasioning the 

admission of the patient to the hospital for care.”3 Secondary diagnosis codes 

are for “all conditions that coexist at the time of admission, that develop 

subsequently, or that affect the treatment received and/or length of stay.”4 

§ 3730(b)(1). Thus, in qui tam suits, the government is the real party in interest. United 

States v. Tex. Tech Univ., 171 F.3d 279, 289 (5th Cir. 1999).

2 31 U.S.C. § 3729. 3 See Centers for Disease Control, ICD-9-CM Official Guidelines for Coding and 

Reporting, Oct. 1, 2011 at 88, available at https://goo.gl/DC55Wx.

4 See Centers for Disease Control, ICD-9-CM Official Guidelines for Coding and 

Reporting, Oct. 1, 2011 at 91, available at https://goo.gl/DC55Wx.

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Reimbursement can also be affected, to a lesser extent, by other hospitalspecific factors, such as market conditions in the hospital’s city.

Integra Med’s allegations specifically concern Baylor’s use of secondary 

diagnosis codes. The Centers for Medicare and Medicaid Services (CMS) 

publishes a list of secondary codes each year that can modify a claim to include 

a complication or comorbidity (CC) or a major complication or comorbidity 

(MCC). The inclusion of CCs and MCCs can add thousands of dollars to a 

Medicare reimbursement claim. Integra Med alleges that Baylor, led by its 

clinical documentation improvement (CDI) program, fraudulently used highervalue CCs and MCCs than were justified by actual medical diagnoses to 

increase its revenues. Integra Med contends that Baylor’s scheme had three 

main components.

First, Integra Med contends that Baylor trained its physicians and CDI 

employees to “upcode” MCCs. According to Integra Med, Baylor trained its 

physicians to focus on key words, provided lists of high-value MCCs to 

physicians to reinforce that training, and emphasized that using certain terms 

would increase their performance pay. Integra Med also contends that Baylor 

had its CDI employees seek opportunities to use higher-value secondary codes.

Second, Integra Med alleges that Baylor pressured physicians to alter 

their original diagnoses by providing documents and asking them to “specify” 

or change their diagnosis if the diagnosis did not include CCs or MCCs. 

According to Integra Med, these clarification documents that requested 

physicians to “specify” their diagnoses would often “suggest either specific 

revenue-increasing CCs or MCCs or provide options listing several possible 

CCs and MCCs.” Integra Med contends these clarification documents “reveal 

a clear intent towards influencing doctors to code higher-paying CCs and 

MCCs.”

Third, Integra Med alleges that Baylor provided unnecessary treatment 

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in order to code high-value MCCs. Specifically, Integra Med contends that 

“Baylor purposefully placed and kept post-operative patients on ventilator 

support” when it was medically unnecessary. Integra Med bases this 

allegation on the fact “that Baylor patients undergoing major heart surgery 

were placed on mechanical ventilation [at rates] over twice the national 

average.”

Integra Med analyzed inpatient claims data for the 2011-2017 period

from CMS to discover that Baylor had been claiming certain MCCs 

significantly above the national average for other hospitals. Specifically, 

Integra Med found that Baylor coded for the MCCs of encephalopathy,

respiratory failure, and severe malnutrition at much higher rates than other 

hospitals. Integra Med contends that its statistical analyses show that 

Baylor’s higher rate of coding cannot be explained by patient characteristics, 

county demographic data, the patient’s attending physician, or regional 

differences. According to Integra Med, its “analyses prove that the excessive 

rates of [certain] MCCs can be directly attributed to [Baylor’s] fraudulent 

activity as opposed to external factors, indicating that the fraud was known by 

the system and was intentional.”

Besides statistical data, Integra Med also relied on several statements 

from a former Baylor medical coder in concluding that Baylor had defrauded 

Medicare. According to Integra Med, this medical coder recalled a then-Baylor 

executive “telling CDIs things that were totally not true” as a part of a

“deliberate effort to promote the coding of MCCs.” This medical coder also 

allegedly received specific instructions on how to code. Integra Med claims 

that this medical coder quit her job with Baylor because she was unable to 

work where she “was continually getting directives to compromise her 

integrity.” Integra Med also relied on certain statements about increasing 

hospital revenues from a former Baylor executive’s social media.

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Based on these statistics and statements, Integra Med sued Baylor 

under the FCA in federal district court in April 2018. After Integra Med 

amended its complaint twice, Baylor moved under Federal Rule of Civil 

Procedure Rule 12(b)(6) to dismiss Integra Med’s complaint. The district court 

granted Baylor’s motion to dismiss, holding that Integra Med’s complaint 

failed to state a particularized claim for which relief could be granted as 

required by Federal Rules of Civil Procedure 8(a) and 9(b). This appeal 

followed.

II

To survive a motion to dismiss an FCA claim, Integra Med must plead 

the following four elements: (1) “a false statement or fraudulent course of 

conduct;” (2) that was “made or carried out with the requisite scienter;” (3) 

“that was material;” and (4) “that caused the government to pay out money or 

to forfeit moneys due (i.e., that involved a claim).”5 Integra Med’s case on 

appeal hinges on whether Integra Med sufficiently pleaded facts showing that 

Baylor’s claims were fraudulent. Thus, we will examine each of Integra Med’s 

bases for its claims, including its statistical data generally, the documents it 

has gathered from Baylor, statements by a former Baylor medical coder, and 

the claim that Baylor provided unnecessary medical care to boost its Medicare 

reimbursements.

A

We first examine the statistical data presented by Integra Med, 

reviewing whether it sufficiently shows that Baylor’s Medicare reimbursement 

claims were fraudulent. “[A] complaint filed under the False Claims Act must 

5 United States ex rel. King v. Solvay Pharm., Inc., 871 F.3d 318, 324 (5th Cir. 2017) 

(quoting United States ex rel. Longhi v. United States, 575 F.3d 458, 467 (5th Cir. 2009)).

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meet the heightened pleading standard of Rule of 9(b).”6 Federal Rule of Civil 

Procedure 9(b) provides, “[i]n alleging fraud or mistake, a party must state 

with particularity the circumstances constituting fraud or mistake.”7 

Although the particularity Rule 9(b) demands “differs with the facts of each 

case,”8 it does generally require that a complaint detail “the who, what, when, 

and where . . . before access to the discovery process is granted.”9 Rule 9(b)’s 

particularity requirement supplements Rule 8(a)’s demand that “a complaint 

must contain sufficient factual matter, accepted as true, to ‘state a claim to 

relief that is plausible on its face.’”10 Rule 8(a) prohibits any claims that are 

merely conceivable rather than plausible.11 A claim is merely conceivable and 

not plausible if the facts pleaded are consistent with both the claimed 

misconduct and a legal and “obvious alternative explanation.”12

Here, Integra Med’s statistical analysis is consistent with both Baylor 

having submitted fraudulent Medicare reimbursement claims to the 

government and with Baylor being ahead of most healthcare providers in 

following new guidelines from CMS. In 2007, CMS reduced the standardized 

amount paid out to hospitals for Medicare reimbursement claims but increased 

the number of secondary diagnoses identified as CCs and MCCs, and coding 

6 See, e.g., United States ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 185 (5th Cir. 

2009) (first citing United States ex rel. Russell v. Epic Healthcare Mgmt. Grp., 193 F.3d 304, 

308-09 (5th Cir. 1999), abrogated on other grounds by United States ex rel. Eisenstein v. City 

of New York, 556 U.S. 928 (2009); and then citing United States ex rel. Karvelas v. Melrose–

Wakefield Hosp., 360 F.3d 220, 228 (1st Cir. 2004), abrogated on other grounds by Allison 

Engine Co. v. United States ex rel. Sanders, 553 U.S. 662 (2008)).

7 FED. R. CIV. P. 9(b); see also Kanneganti, 565 F.3d at 185-86.

8 Hart v. Bayer Corp., 199 F.3d 239, 247 n.6 (5th Cir. 2000) (citing Guidry v. Bank of 

LaPlace, 954 F.2d 278, 288 (5th Cir. 1992)).

9 Id. (alteration in original) (quoting Williams v. WMX Techs., Inc., 112 F.3d 175, 178 

(5th Cir. 1997)).

10 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 

U.S. 544, 570 (2007)); see also Kanneganti, 565 F.3d at 185.

11 Iqbal, 556 U.S. at 680 (quoting Twombly, 550 U.S. at 570).

12 Id. at 682 (quoting Twombly, 550 U.S. at 567).

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more CCs and MCCs can increase hospital reimbursements.13 In response to 

public comments expressing concern that the new rules would lead to lower 

reimbursements, CMS stated that it expected reimbursements to increase 

under the system.14 CMS believed it was “clear” that hospitals would “change 

their documentation and coding practices and increase case mix consistent 

with the payment incentives that are provided by the” then new coding

system.15 In fact, CMS encouraged hospitals to adopt CDI programs “in order 

to increase reimbursement” and highlighted an article touting the 

effectiveness of CDI programs at increasing Medicare reimbursement rates.16 

CMS unequivocally stated in its guidelines that, “[w]e do not believe there is 

anything inappropriate, unethical or otherwise wrong with hospitals taking 

full advantage of coding opportunities to maximize Medicare payment that is 

supported by documentation in the medical record.”17

The conclusion that Baylor was simply ahead of the healthcare industry

in following CMS guidelines is supported by the data in Integra Med’s own 

complaint. Integra Med’s complaint shows that the rate at which non-Baylor 

hospitals were using the MCCs for encephalopathy, respiratory failure, and 

severe malnutrition was increasing every year. These increases were causing 

the MCC usage rates of both Baylor and non-Baylor hospitals to converge. 

Moreover, for severe malnutrition, non-Baylor hospitals were coding it at a 

higher rate in 2017 than Baylor was in 2015. Similarly, for respiratory failure, 

non-Baylor hospitals were coding it at a higher rate in 2017 than Baylor was 

13 See Medicare Program; Changes to the Hospital Inpatient Prospective Payment 

Systems and Fiscal Year 2008 Rates, 72 Fed. Reg. 47,130, 47,135-39 (Aug. 22, 2007) (final 

rule). 14 See Medicare Program; Changes to the Hospital Inpatient Prospective Payment 

Systems and Fiscal Year 2008 Rates, 72 Fed. Reg. at 47,180-82.

15 Id. at 47,182.

16 Id.

17 Id. at 47,180.

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in 2011. These show that the healthcare industry as a whole was following 

Baylor in its trajectory and by 2017, other hospitals’ coding was within a few 

percentage points of Baylor’s.

These facts strongly indicate that a legal and “obvious alternative 

explanation” for the statistical data presented by Integra Med is that Baylor 

was simply ahead of the healthcare industry at implementing the Medicare 

reimbursement guidelines supplied by CMS.18 We note that this conclusion

does not exclude statistical data from being used to meet the pleading 

requirements of Federal Rule of Civil Procedure 8(a) and, when paired with 

particular details, Rule 9(b).19 Our conclusion merely means that statistical 

data cannot meet those pleading requirements if, among other possible issues, 

it is also consistent with a legal and obvious alternative explanation.20

Insofar as Integra Med purports to give specific examples of fraudulent 

claims, it also fails to meet the pleading requirements of Rules 8(a) and 9(b). 

Integra Med’s examples simply give some identifying patient information and 

pair it with a diagnosis. No example gives any indication about what makes it 

a false claim. The claims of falsity are simply conclusory.21 

18 See Ashcroft v. Iqbal, 556 U.S. 662, 682 (2009) (quoting Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 567 (2007)).

19 See, e.g., United States ex rel. Customs Fraud Investigations, LLC v. Victaulic Co., 

839 F.3d 242, 247-48, 258 (3d Cir. 2016) (concluding, in the Rule 8(a) and 9(b) context, that 

statistical data about the lack of markings on a company’s pipe fittings was sufficient to state 

an FCA claim for avoiding import duties when paired with an expert’s declaration analyzing 

the facts of that case, specific examples of unmarked pipes with photographs, a witness 

statement about receiving improperly marked pipes, and detailed records about the 

shipments at issue); Boykin v. Georgia-Pac. Corp., 706 F.2d 1384, 1390-94 (5th Cir. 1983)

(concluding, in the Rule 8(a) context, that plaintiff’s presentation of statistical data 

successfully stated a prima facie case of racial discrimination). 20 See Iqbal, 556 U.S. at 678.

21 See Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (“[C]onclusory

allegations or legal conclusions masquerading as factual conclusions will not suffice to 

prevent a motion to dismiss.” (quoting S. Christian Leadership Conference v. Supreme Court 

of the State of La., 252 F.3d 781, 786 (5th Cir. 2001))).

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B

1

We next examine whether Integra Med’s allegations that Baylor trained 

and pressured its physicians and CDI employees to “upcode” MCCs are 

sufficient to establish that Baylor was engaging in a scheme to submit 

fraudulent claims to Medicare. We conclude that they are not. In publishing 

the new DRG coding rules, CMS explicitly expected hospitals to work with 

their physicians and medical coders, including through training, to “focus on 

understanding the impact of the revised CC list.”22 According to Integra Med, 

Baylor trained physicians to focus on keywords, provided tip sheets reminding 

physicians of how to report high-value MCCs, had CDI employees look for 

opportunities where high-value MCCs might be present, and would sometimes 

send physicians documents asking them to clarify their diagnoses. Integra 

Med argues that these practices show Baylor was involved in a scheme to 

defraud Medicare. But CMS encouraged hospitals to employ practices like 

these after it implemented the new DRG rules.23 Far from a fraudulent

scheme, Baylor’s implementation of such practices is entirely consistent with 

the new DRG rules.24 

For example, Baylor’s use of tip sheets is consistent with the fact that 

coding and clinic terminology are often different. Tip sheets help hospitals 

align the two. Likewise, non-leading documents asking physicians to clarify 

their diagnoses are also consistent with implementing the new DRG rules since 

22 See Medicare Program; Changes to the Hospital Inpatient Prospective Payment 

Systems and Fiscal Year 2008 Rates, 72 Fed. Reg. at 47,182 (“[H]ospitals may focus on 

understanding the impact of the revised CC list, training and educating their coders, and 

working with their physicians for any documentation improvements required to allow the 

reporting of more specific codes where applicable.”).

23 See id.

24 Id.

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the new DRG rules moved hospitals away from focusing on general diagnoses 

and codes to frequently using more specific diagnoses and codes.25 Physicians 

were likely still accustomed to the old, more general system. These 

clarification documents had numerous suggestions, a simple box to check to 

decline clarification, and a disclaimer not to take implications from the fact 

clarification was asked for. Additionally, some of the clarification documents 

provided by Integra Med in its complaint show that clarification was requested

in instances in which physicians wrote down symptoms but failed to provide a

diagnosis for the cause of those symptoms. These clarification documents also 

did not ask leading questions. Considering diagnoses are critical for Medicare 

reimbursements and these specific clarification documents were not leading, 

they are consistent with Baylor engaging in legal activity.

Therefore, we conclude that these allegations are also consistent with a

legal and “obvious alternative explanation.”26

2

In its complaint, Integra Med also cites the statements of a medical coder 

who said that a then-Baylor executive told “CDIs things that were totally not 

true” as a part of a “deliberate effort to promote the coding of MCCs.” 

According to Integra Med, this medical coder said she was given specific 

instructions on how to code, and that medical coders “receive[d] pressure 

directly from . . . leadership to code unethically.” This medical coder also 

allegedly quit her job because she “was continually getting directives to 

compromise her integrity.” But these allegations fail to satisfy the heightened 

pleading standards required by Federal Rule of Civil Procedure 9(b) because 

they fail to state the content of these allegedly unethical and fraudulent 

25 See id. at 47,130-82 (Aug. 22, 2007) (final rule). 26 See Ashcroft v. Iqbal, 556 U.S. 662, 682 (2009) (quoting Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 567 (2007)).

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directives, trainings, and guidance.27 Thus, the district court correctly 

dismissed the claim based on these conclusory allegations.

C

We next look at Integra Med’s allegations that Baylor provided 

unnecessary treatment to patients in order to use higher-value MCCs. 

Specifically, Integra Med contends that “Baylor purposefully placed and kept 

post-operative patients on ventilator support” when it was medically 

unnecessary. The allegations here are based solely on the fact “that Baylor

patients undergoing major heart surgery were placed on mechanical 

ventilation over twice the national average.” These allegations do not 

withstand the heightened pleading requirements for fraud under Rule 9(b).

Integra Med fails to plead particular details of a scheme to defraud 

Medicare. Even when plaintiffs in an FCA case use statistics, which can be 

reliable indicia of fraud, they must still plead particular details of a fraudulent 

scheme for each claim.28 Here, Integra Med’s complaint contains a conclusory 

27 See Hart v. Bayer Corp., 199 F.3d 239, 247 n.6 (5th Cir. 2000) (concluding that to 

meet the pleading requirements of Rule 9(b) a complaint must state “the who, what, when, 

and where” of a claim. (quoting Williams v. WMX Techs., Inc., 112 F.3d 175, 178 (5th Cir.

1997))). Integra Med claims that the situation here is “strikingly similar” to the situation in 

United States ex rel. Integra Med Analytics, LLC v. Creative Solutions in Healthcare, Inc., No. 

SA-17-CV-1249-XR, 2019 WL 5970283 (W.D. Tex. Nov. 13, 2019). We disagree. In Creative 

Solutions, the employee witness interviews actually revealed the contents of a specific 

fraudulent scheme. Id. at *4. That opinion notes, “a physical therapist at Fairfield recalled 

being instructed to allot 15 minutes for evaluation, even though it required 45 minutes, with 

the rest of the evaluation session charged at therapy rates.” Id. (internal quotation omitted).

The interview responses given by Integra Med here, while alleging a vague scheme to 

“promote the coding of MCCs,” do not provide the who, what, when, and where of such scheme 

as required by Rule 9(b). The vague allegation here contrasts with the Creative Solutions

interview responses, which included the requisite particularity and specificity.

28 United States ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 190 (5th Cir. 2009) (“We 

hold that to plead with particularity the circumstances constituting fraud for a False Claims 

Act § 3729(a)(1) claim, a relator’s complaint, if it cannot allege the details of an actually 

submitted false claim, may nevertheless survive by alleging particular details of a scheme to 

submit false claims paired with reliable indicia that lead to a strong inference that claims 

were actually submitted.”); see also United States ex rel. Nunnally v. W. Calcasieu Cameron 

Hosp., 519 F. App’x 890, 893 (5th Cir. 2013) (“We established that a relator could, in some 

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allegation that Baylor was providing unnecessary treatment to its patients and 

supports it with a single statistic—that Baylor patients undergoing major 

heart surgery were put on a mechanical ventilator at a rate over twice the 

national average. Integra Med does not present sufficient particular details of 

this alleged fraud claim. The district court correctly dismissed the FCA claim 

based on Integra Med’s allegation that Baylor provided unnecessary treatment 

to patients to increase its Medicare reimbursements.

In conclusion, Integra Med has failed to meet its pleading requirements 

under Rules 8(a) and 9(b). The district court did not, as Integra Med contends, 

view the complaint in the light most favorable to Baylor—it simply correctly 

held Integra Med to the higher pleading standard required for an FCA claim.

III

Integra Med contends that the district court improperly held its 

allegations to a more rigorous scienter requirement than was required by the 

FCA. But we need not address scienter because the district court correctly 

dismissed Integra Med’s claims for failing to meet the pleading requirements 

required by Rules 8(a) and 9(b) for pleading the FCA’s element that there be 

“a false statement or fraudulent course of conduct.”29

Integra Med also contends that the district court improperly applied a 

probability standard at the pleadings stage instead of a plausibility standard. 

But regardless of whether the district court mistakenly applied a probability 

circumstances, satisfy Rule 9(b) by providing factual or statistical evidence to strengthen the 

inference of fraud beyond mere possibility, without necessarily providing details as to each 

false claim. This standard nonetheless requires the relator to provide other reliable 

indications of fraud and to plead a level of detail that demonstrates that an alleged scheme 

likely resulted in bills submitted for government payment.” (emphasis and citations 

omitted)). 29 United States ex rel King v. Solvay Pharm., Inc., 871 F.3d 318, 324 (5th Cir. 2017) 

(quoting United States ex rel. Longhi v. United States, 575 F.3d 458, 467 (5th Cir. 2009)).

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standard rather than a plausibility standard, our conclusion is the same.30 

Since “[we] may affirm the district court on any grounds supported by the 

record and argued in the court below,” any misapplication that might have 

occurred here would not require us to vacate or reverse the district court’s 

judgment.31

* * *

For these reasons, the district court’s judgment is AFFIRMED.

30 See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Where a complaint pleads facts that 

are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between 

possibility and plausibility of “entitlement to relief.”’” (quoting Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 557 (2007))).

31 Maria S. ex rel. E.H.F. v. Garza, 912 F.3d 778, 783 (5th Cir. 2019) (citing Doctor’s 

Hosp. of Jefferson, Inc. v. Se. Med. All., Inc., 123 F.3d 301, 307 (5th Cir. 1997)).

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