FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES EX REL. ANITA 

SILINGO,

Plaintiff-Appellant,

v.

WELLPOINT, INC., an Indiana 

corporation; ANTHEM BLUE CROSS,

business entity, form unknown;

HEALTH NET, INC.; HEALTH NET OF 

CALIFORNIA, INC., a California 

corporation; HEALTH NET LIFE 

INSURANCE COMPANY, a California 

corporation; VISITING NURSE 

SERVICE CHOICE; MOLINA 

HEALTHCARE, INC., a Delaware 

corporation; MOLINA HEALTHCARE 

OF CALIFORNIA, a California 

corporation; MOLINA HEALTHCARE 

OF CALIFORNIA PARTNER PLAN, INC.,

a California corporation; ALAMEDA 

ALLIANCE FOR HEALTH, a business 

organization, form unknown;

ANTHEM BLUE CROSS LIFE AND 

HEALTH INSURANCE COMPANY, a 

California corporation; BLUE CROSS 

OF CALIFORNIA, a California 

corporation,

Defendants-Appellees.

No. 16-56400

D.C. No.

8:13-cv-01348-

FMO-JC

OPINION
2 UNITED STATES EX REL. SILINGO V. WELLPOINT

Appeal from the United States District Court

for the Central District of California

Fernando M. Olguin, District Judge, Presiding

Argued and Submitted March 8, 2018

Pasadena, California

Filed July 9, 2018

Before: Ronald M. Gould and Mary H. Murguia, Circuit 

Judges, and Jack Zouhary,* District Judge.

Opinion by Judge Gould

SUMMARY**

False Claims Act

The panel affirmed in part and reversed in part the 

district court’s dismissal of a False Claims Act suit against 

several Medicare Advantage organizations.

Under Medicare Advantage’s “capitation” system, 

private health insurance organizations provide Medicare 

benefits in exchange for a fixed monthly fee per person 

enrolled in the program. These organizations pocket for 

themselves or pay out to their enrollees’ providers the 

 * The Honorable Jack Zouhary, United States District Judge for the 

Northern District of Ohio, sitting by designation.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES EX REL.SILINGO V. WELLPOINT 3

difference between their capitation revenue and their 

enrollees’ medical expenses. The Centers for Medicare and 

Medicaid Services sets capitation rates based on risk 

adjustment data, including enrollees’ medical diagnoses, 

reported by Medicare Advantage health insurance 

organizations. The plaintiff alleged that the defendant 

Medicare Advantage organizations retained Mobile Medical 

Examination Services, Inc. (MedXM) to fraudulently 

increase, or at least maintain, their capitation payments for 

enrollees whose risk scores were set to expire and revert to 

the unadjusted Medicare beneficiary average. 

The panel held that the district court erred in dismissing 

charges of factually false claims, express false certifications, 

and false records based on the plaintiff’s use of group 

allegations. The panel concluded that the plaintiff satisfied 

Federal Rule of Civil Procedure 9(b), which requires that the 

circumstances constituting fraud be stated with particularity, 

by pleading a wheel conspiracy-like fraud in which MedXM 

was the “hub” and the defendant Medicare Advantage 

organizations were “spokes” that largely engaged in the 

same conduct.

The panel rejected the defendants’ argument that it 

should affirm the dismissal of the third amended complaint 

on the grounds that (1) the complaint failed to allege a 

sufficient factual basis to link MedXM’s misconduct to 

defendants’ actual submissions of claims or certifications to 

the Centers for Medicare and Medicaid Services; or (2) the 

complaint’s allegations about the Medicare Advantage 

organizations’ knowledge of the alleged fraud did not satisfy 

Rule 8.

The panel affirmed the dismissal of a reverse false claim 

count that the plaintiff did not defend in response to 
4 UNITED STATES EX REL. SILINGO V. WELLPOINT

defendants’ motions to dismiss. The panel reversed the 

dismissal on the pleadings of other counts and remanded for 

further proceedings on the plaintiff’s causes of action for 

factually false claims, express false certifications, and false 

records.

COUNSEL

Abram Jay Zinberg (argued), The Zinberg Law Firm A.P.C.,

Huntington Beach, California; William K. Hanagami, The 

Hanagami Law Firm A.P.C., Woodland Hills, California; for 

Plaintiff-Appellant.

David Jeffrey Leviss (argued) and Amanda M. Santella,

O’Melveny & Myers LLP, Washington, D.C.; Elizabeth M. 

Bock, Sabrina Strong, and David Deaton, O’Melveny & 

Myers LLP, Los Angeles, California; Poopak Nourafchan 

and Michael M. Maddigan, Hogan Lovells LLP, Los 

Angeles, California; David J. Schindler, Latham & Watkins 

LLP, Los Angeles, California; Anne W. Robinson, Latham 

& Watkins LLP, Washington, D.C.; Paul C. Burkholder and 

David Jacobs, Epstein Becker & Green PC, Los Angeles, 

California; Pamela A. Stone and Michael J. Daponde, 

Daponde Szabo Rowe PC, Sacramento, California; for 

Defendants-Appellees.
UNITED STATES EX REL.SILINGO V. WELLPOINT 5

OPINION

GOULD, Circuit Judge:

Qui tam relator Anita Silingo appeals the dismissal of her 

False Claims Act suit against several Medicare Advantage 

organizations. We reverse in part, affirm in part, and 

remand.

I

Medicare Advantage is a modern adaptation of the 

momentous 1960s-era program. Traditional Medicare uses 

a fee-for-service payment model, whereby the more services 

physicians perform, the more money they earn. After 

Medicare was enacted, however, experts came to realize that 

this payment structure encourages healthcare providers to 

order more tests and procedures than medically necessary. 

See Thomas L. Greaney, Medicare Advantage, Accountable 

Care Organizations, and Traditional Medicare: 

Synchronization or Collision?, 15 Yale J. Health Pol’y, L. & 

Ethics 37, 38, 41 (2015).

Medicare Advantage seeks to improve the quality of care 

while safeguarding the public fisc by employing a 

“capitation” payment system. Capitation means an amount 

is paid per person. Capitation, Black’s Law Dictionary 

(10th ed. 2014). Under Medicare Advantage’s capitation 

system, private health insurance organizations provide 

Medicare benefits in exchange for a fixed monthly fee per 

person enrolled in the program—regardless of actual 

healthcare usage. These organizations pocket for themselves 

or pay out to their enrollees’ providers the difference 

between their capitation revenue and their enrollees’ medical 

expenses, creating an incentive for the organizations to rein 

in costs. See Patricia A. Davis et al., Cong. Research Serv., 
6 UNITED STATES EX REL. SILINGO V. WELLPOINT

R40425, Medicare Primer 20 (2017), https://fas.org/sgp/crs/

misc/R40425.pdf.

Unfortunately, human nature being what it is, Medicare 

Advantage organizations also have some incentive to 

improperly inflate their enrollees’ capitation rates, if these 

organizations fall prey to greed. By design, Medicare 

Advantage is supposed to compensate these organizations 

for expected healthcare costs, paying “less for healthier 

enrollees and more for less healthy enrollees.” 

Establishment of the Medicare Advantage Program, 70 Fed. 

Reg. 4588, 4657 (Jan. 28, 2005). So capitation rates are 

based largely on an individual’s “risk adjustment data,” 

which reflect several factors that can affect healthcare costs. 

See 42 U.S.C. § 1395w-23(a)(1)(C)(i); 42 C.F.R. 

§ 422.308(c). Chief among these data are individuals’ 

medical diagnoses. See Policy and Technical Changes to the 

Medicare Advantage and the Medicare Prescription Drug 

Benefit Programs, 74 Fed. Reg. 54,634, 54,673 (Oct. 22, 

2009). Medicare Advantage organizations obtain diagnosis 

codes from healthcare providers after these providers have 

had medical visits with plan enrollees. See CMS, Pub. No. 

100-16, Medicare Managed Care Manual, ch. 7, § 40 

(2014), https://www.cms.gov/Regulations-and-Guidance/

Guidance/Manuals/downloads/mc86c07.pdf. In turn, 

Medicare Advantage organizations report the diagnosis 

codes that they receive to the Centers for Medicare and 

Medicaid Services (“CMS”) for use in the risk adjustment 

model that is the key to calculation of capitation rates. Id. 

The risk adjustment model deems a Medicare Advantage 

enrollee to be as healthy as the average Medicare beneficiary 

unless CMS receives updated diagnosis codes for the 

enrollee every year. See id. §§ 20, 70, 70.2.5, 120.2.4.
UNITED STATES EX REL.SILINGO V. WELLPOINT 7

With data for millions of people being submitted each 

year, CMS is unable to confirm diagnoses before calculating 

capitation rates. Instead, the agency accepts the diagnoses 

as submitted, and then audits some of the self-reported data 

a few years later to ensure that they are adequately supported 

by medical documentation. See 42 C.F.R. §§ 422.310(e), 

422.311; Contract Year 2015 Policy and Technical Changes 

to the Medicare Advantage and the Medicare Prescription 

Drug Benefit Programs, 79 Fed. Reg. 1918, 2001 (Jan. 10, 

2014). These audits have revealed excess payments for 

unsupported diagnoses steadily increasing over the last 

decade, reaching an estimated $16.2 billion—nearly ten 

cents of every dollar paid to Medicare Advantage 

organizations—in 2016 alone. See James Cosgrove, U.S. 

Gov’t Accountability Office, GAO-17-761T, Medicare 

Advantage Program Integrity: CMS’s Efforts to Ensure 

Proper Payments and Identify and Recover Improper 

Payments 1 (2017), https://www.gao.gov/assets/690/

685934.pdf; James Cosgrove, U.S. Gov’t Accountability 

Office, GAO-13-206, Medicare Advantage: Substantial 

Excess Payments Underscore Need for CMS to Improve 

Accuracy of Risk Score Adjustments 9–10 (2013), 

https://www.gao.gov/assets/660/651712.pdf.

To combat the “incentive for [Medicare Advantage] 

organizations to potentially over-report diagnoses,” 

Medicare regulations require risk adjustment data to be 

produced according to certain best practices. Contract Year 

2015 Policy and Technical Changes to the Medicare 

Advantage and the Medicare Prescription Drug Benefit 

Programs, 79 Fed. Reg. 1918, 2001 (Jan. 10, 2014). Every 

diagnosis code submitted to CMS must be based on a “faceto-face” visit that is documented in the medical record. 

Medicare Managed Care Manual, ch. 7, §§ 40, 120.1.1. 

Medical records must be validated by qualifying 
8 UNITED STATES EX REL. SILINGO V. WELLPOINT

“physician/practitioner signatures and credentials.” Policy 

and Technical Changes to the Medicare Advantage and the 

Medicare Prescription Drug Benefit Programs, 75 Fed. Reg. 

19,678, 19,743 (Apr. 15, 2010). Further, electronic medical 

records must meet special signature requirements and use 

software that is “protected against modification.” CMS, 

Pub. No. 100-08, Medicare Program Integrity Manual, ch. 

3, § 3.3.2.4 (2018), https://www.cms.gov/Regulations-andGuidance/Guidance/Manuals/downloads/PIM83c03.pdf.

1

Medicare regulations also establish several data 

certification requirements. Most important here, it is an 

express condition of payment that a Medicare Advantage 

organization “certify (based on best knowledge, 

information, and belief) that the [risk adjustment] data it 

submits . . . are accurate, complete, and truthful.” 42 C.F.R. 

§ 422.504(l)(2). We have explained that a certification is 

thus false “when the Medicare Advantage organization has 

actual knowledge of the falsity of the risk adjustment data or

demonstrates either ‘reckless disregard’ or ‘deliberate 

ignorance’ of the truth or falsity of the data.” United States 

ex rel. Swoben v. United Healthcare Ins. Co., 848 F.3d 1161, 

1169 (9th Cir. 2016) (citing Medicare+Choice Program, 

65 Fed. Reg. 40,170, 40,268 (June 29, 2000)). The 

organization also is required to “[a]dopt and implement 

an effective compliance program, which must include 

measures that prevent, detect, and correct non-compliance 

with CMS’ program requirements,” such as written 

standards of conduct, the designation of a compliance 

 1 Though this chapter was recently updated, the relevant section has 

existed in the same form for several years. See, e.g., CMS, Pub. No. 100-

08, Medicare Program Integrity Manual, ch. 3, § 3.3.2.4 (2012), 

https://web.archive.org/web/20120410201053/https://www.cms.gov/Re

gulations-and-Guidance/Guidance/Manuals/downloads/PIM83c03.pdf.
UNITED STATES EX REL.SILINGO V. WELLPOINT 9

officer, and other listed minimum requirements. 42 C.F.R. 

§ 422.503(b)(4)(vi). The importance of accurate data 

certifications and effective compliance programs is obvious: 

if enrollee diagnoses are overstated, then the capitation 

payments to Medicare Advantage organizations will be 

improperly inflated.

The Medicare Advantage capitation payment system is 

subject to the False Claims Act. Originally enacted during 

the Civil War, the False Claims Act was intended to 

“forfend[] widespread fraud by government contractors.” 

United States ex rel. Hopper v. Anton, 91 F.3d 1261, 1265 

(9th Cir. 1996). The Act’s qui tam provisions allow a 

person—called a “relator”—to bring suit on the federal 

government’s behalf, and then share the recovered damages 

and civil penalties with the government. See United States 

ex rel. Kelly v. Boeing Co., 9 F.3d 743, 745–47 (9th Cir. 

1993). Liability attaches upon proof that a false claim for 

payment was made, regardless of whether the government 

suffered actual damage. United States ex rel. Aflatooni v. 

Kitsap Physicians Serv., 314 F.3d 995, 1002 (9th Cir. 2002).

II

Anita Silingo is a former Compliance Officer and 

Director of Provider Relations for Mobile Medical 

Examination Services, Inc. (“MedXM”). MedXM employs 

physicians, nurse practitioners, and physician assistants to 

conduct in-home health assessments of Medicare 

beneficiaries. Silingo alleges that from 2010 to 2014, 

MedXM contracted with the defendant Medicare Advantage 

organizations to provide up-to-date diagnosis codes and 

medical documentation for enrollees who otherwise may not 

have had an eligible medical encounter during a calendar 

year.
10 UNITED STATES EX REL. SILINGO V. WELLPOINT

In August 2013, Silingo filed an initial complaint against 

MedXM and the defendant Medicare Advantage 

organizations under the False Claims Act. In May 2014, 

Silingo filed her first amended complaint. The United States 

then declined to intervene, and in January 2015 Silingo filed 

a second amended complaint.

The crux of the complaint is that the defendant Medicare 

Advantage organizations retained MedXM to fraudulently 

increase, or at least maintain, their capitation payments for 

enrollees whose risk scores were set to expire and revert to 

the unadjusted Medicare beneficiary average.

First, Silingo claims that MedXM used inappropriate 

software so that it could edit health records to exaggerate

medical diagnoses. Silingo alleges that MedXM’s in-home 

health assessment reports were prepared in Microsoft Word 

templates that are not “protected against modification,” and 

were signed by merely typing in the medical examiner’s 

name, which is not an acceptable electronic signature. 

Medicare Program Integrity Manual, ch. 3, § 3.3.2.4. Once 

in the hands of MedXM’s coders, these reports were 

allegedly modified to delete information showing little risk

and insert new information to support diagnoses with higher 

risk scores. According to Silingo, MedXM then saved these 

reports as PDF files and submitted them to Medicare 

Advantage organizations as support for inflated risk 

adjustment data. Silingo asserts that all of MedXM’s health 

assessment reports violated CMS’s requirements for 

electronic medical records, and that more than half of them 

had been tampered with in this manner.

Next, Silingo claims that MedXM’s fleet of mostly nurse 

practitioners and physician assistants were not legally 

authorized to make conclusive medical diagnoses, so their 
UNITED STATES EX REL.SILINGO V. WELLPOINT 11

examinations could not support the risk adjustment data that 

was submitted. Before 2012, MedXM allegedly contracted 

directly with these healthcare providers without ensuring 

that they practiced under the supervision of licensed 

physicians. From 2012 to 2014, MedXM allegedly had 

contract physicians fraudulently sign standard care 

agreements with these non-physician providers without 

properly supervising their work.

Silingo also claims MedXM systematically fabricated 

complex diagnoses that its medical examiners could not have 

possibly confirmed during an in-home assessment. The 

complaint identifies a variety of ailments—such as chronic 

obstructive pulmonary disease, hepatitis, and inflammatory 

bowel disease—that allegedly cannot be diagnosed without 

a spirometry test, biopsy, follow-up blood test, or other 

invasive procedure that MedXM’s examiners were 

unequipped and unauthorized to perform in a person’s home. 

Instead, Silingo alleges, MedXM’s medical examiners and 

coders simply recycled prior diagnoses and medical histories 

in the updated health assessment reports.

Further, Silingo claims that MedXM regularly produced 

diagnostic information that was not the result of face-to-face 

medical encounters. By her estimation, in-home health 

assessments took about 45 minutes plus travel time and 

could be performed only within an 11-hour window, so 

MedXM’s medical examiners realistically could not perform 

more than 13 in-home health assessments per day. But 

Silingo alleges that many examiners consistently reported 

more than 15 assessments per day, with some reporting as 

many as 25. Silingo contends that these examiners boosted 

their assessment numbers by sometimes submitting identical 

vital statistics (age, weight, sex, and so on) for hundreds of 

enrollees, and only “correcting” these suspicious data entries 
12 UNITED STATES EX REL. SILINGO V. WELLPOINT

when requested by Medicare Advantage organizations, by 

collecting information over the phone or having MedXM’s 

coders forge new data.

A company offering in-home health assessment services 

has no intrinsic reason to overstate its findings. Rather, as 

Silingo alleges, MedXM went to the trouble of editing and 

forging medical records to provide its clients with more 

lucrative diagnosis codes—earning the Medicare Advantage 

organizations higher than warranted capitation payments.

Silingo contends that the defendant Medicare Advantage 

organizations made false claims for payment by submitting 

MedXM’s risk adjustment data to CMS for several years, 

either with actual knowledge that the data were invalid or 

with reckless disregard or deliberate ignorance as to their 

validity. In doing so, the organizations allegedly violated the 

certification requirements of 42 C.F.R. § 422.504(l)(2), 

which is an express condition of payment. And Silingo 

contends that the failure to catch MedXM’s widespread 

fraud is evidence that these organizations did not have the 

effective compliance programs required by 42 C.F.R. 

§ 422.503(b)(4)(vi), which is not an express condition of 

payment.

Silingo advanced six theories of liability under the False 

Claims Act. She first charged that defendants violated 

31 U.S.C. § 3729(a)(1)(A) by making, or causing to be 

made, a claim for payment that is “factually false.” Mikes v. 

Straus, 274 F.3d 687, 697 (2d Cir. 2001), abrogated on other 

grounds by Universal Health Servs., Inc. v. United States ex 

rel. Escobar, 136 S. Ct. 1989 (2016). A factually false claim 

is one in which “the claim for payment is itself literally false 

or fraudulent,” United States ex rel. Hendow v. Univ. of 

Phoenix, 461 F.3d 1166, 1170 (9th Cir. 2006), such as when 
UNITED STATES EX REL.SILINGO V. WELLPOINT 13

the claim “involves an incorrect description of goods or 

services provided or a request for reimbursement for goods 

or services never provided,” Mikes, 274 F.3d at 697.

In addition, Silingo contended that defendants violated 

§ 3729(a)(1)(A) by making claims that were “legally false.” 

Id. There are two cognizable theories of liability for legally 

false claims: express false certification and implied false 

certification. Express false certification involves an entity’s

representation of compliance with the law as part of the 

process for submitting a claim when it is actually not 

compliant. United States ex rel. Ebeid v. Lungwitz, 616 F.3d 

993, 998 (9th Cir. 2010). By contrast, “[i]mplied false 

certification occurs when an entity has previously 

undertaken to expressly comply with a law, rule, or 

regulation, and that obligation is implicated by submitting a 

claim for payment even though a certification of compliance 

is not required in the process of submitting the claim.” Id.; 

see also Escobar, 136 S. Ct. 1989 (validating the implied 

false certification theory).

Silingo next raised a false records claim under the 

following subparagraph, § 3729(a)(1)(B). Such a claim 

imposes liability where a party “knowingly makes, uses, or 

causes to be made or used, a false record or statement 

material to a false or fraudulent claim.” 31 U.S.C. 

§ 3729(a)(1)(B).

Silingo also alleged a violation of the False Claims Act’s 

“reverse false claim” provision, § 3729(a)(1)(G). That 

provision “is designed to cover Government money or 

property that is knowingly retained by a person even though 

they have no right to it.” S. Rep. No. 111-10, at 13–14 

(2009), reprinted in 2009 U.S.C.C.A.N. 430, 441.
14 UNITED STATES EX REL. SILINGO V. WELLPOINT

Finally, Silingo accused defendants of conspiring to 

violate the False Claims Act. See 31 U.S.C. § 3729(a)(1)(C).

In February 2015, defendants separately moved to 

dismiss Silingo’s claims. Silingo opposed defendants’ 

motions, but did not defend her count for reverse false 

claims. The district court held that the factually false claim 

cause of action against MedXM was well-pleaded under 

Federal Rules of Civil Procedure 8 and 9(b) because Silingo 

sufficiently alleged that MedXM caused false claims to be 

submitted to CMS. But the court dismissed Silingo’s 

abandoned reverse false claim count and conspiracy claim 

with prejudice, and dismissed her four remaining claims 

against the defendant Medicare Advantage organizations 

without prejudice. In the district court’s view, the latter 

claims were defective for using an impermissible “grouppleading.”

Silingo filed a third amended complaint in October 2015. 

This time, Silingo separately pleaded her allegations against 

the Medicare Advantage organizations seriatim. Defendants 

promptly moved to dismiss the new complaint, and while 

these motions were pending, MedXM settled out of the case. 

The district court then dismissed Silingo’s claims against the 

Medicare Advantage organizations with prejudice on the 

ground that the allegations “remain undifferentiated.” 

Silingo timely appealed the dismissal of her causes of action 

for factually false claims, express false certifications, false 

records, and reverse false claims.

III

We review de novo a district court’s dismissal of a 

complaint under Federal Rule of Civil Procedure 12(b)(6), 

“accepting as true all well-pleaded allegations of fact in the 

complaint and construing them in the light most favorable to 
UNITED STATES EX REL.SILINGO V. WELLPOINT 15

the Relator[].” United States v. Corinthian Colleges, 

655 F.3d 984, 991 (9th Cir. 2011) (citation and alterations 

omitted). We review for abuse of discretion a district court’s 

denial of leave to amend a complaint. Id. at 995.

In the usual case involving dismissal of a complaint, we 

must evaluate whether the factual allegations, together with 

all reasonable inferences, state a plausible claim to relief. 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Rule 9(b), however, requires that “[i]n alleging fraud or 

mistake, a party must state with particularity the 

circumstances constituting fraud or mistake.” Fed. R. Civ. 

P. 9(b). To satisfy this requirement, a pleading must identify 

“the who, what, when, where, and how of the misconduct 

charged,” as well as “what is false or misleading about [the 

purportedly fraudulent] statement, and why it is false.” 

United States ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 

637 F.3d 1047, 1055 (9th Cir. 2011) (quoting Ebeid, 

616 F.3d at 998). This heightened pleading standard serves 

two main purposes. First, allegations of fraud “must be 

specific enough to give defendants notice of the particular 

misconduct which is alleged to constitute the fraud charged 

so that they can defend against the charge and not just deny 

that they have done anything wrong.” Bly-Magee v. 

California, 236 F.3d 1014, 1019 (9th Cir. 2001) (quotation 

marks and citation omitted). Second, the rule serves “to 

deter the filing of complaints as a pretext for the discovery 

of unknown wrongs, to protect [defendants] from the harm 

that comes from being subject to fraud charges, and to 

prohibit plaintiffs from unilaterally imposing upon the court, 

the parties and society enormous social and economic costs 

absent some factual basis.” Id. at 1018 (quotation marks and 

citation omitted).
16 UNITED STATES EX REL. SILINGO V. WELLPOINT

IV

To satisfy Rule 9(b), a fraud suit against differently 

situated defendants must “identify the role of each defendant 

in the alleged fraudulent scheme.” Swartz v. KPMG LLP, 

476 F.3d 756, 765 (9th Cir. 2007) (citation and alterations 

omitted). In other words, when defendants engage in 

different wrongful conduct, plaintiffs must likewise 

“differentiate their allegations.” Id. at 764 (citation omitted).

This rule is illustrated by Destfino v. Reiswig, 630 F.3d 

952 (9th Cir. 2011). There, plaintiffs alleged that 

29 individuals, 10 businesses, and a church formed an 

intricate tax avoidance scheme, but the complaint did not 

“set out which of the defendants made which of the 

fraudulent statements/conduct.” Id. at 954, 958. We 

explained that in a situation like that in Destfino, with 

different actors playing different parts, it is not enough to 

“lump” together the dissimilar defendants and assert that 

“everyone did everything.” Id. at 958 (quoting Swartz, 

476 F.3d at 764–65). More is required to plead the 

circumstances of a fraud with particularity.

On the other hand, a complaint need not distinguish 

between defendants that had the exact same role in a fraud. 

We recently addressed this issue in United States ex rel. 

Swoben v. United Healthcare Ins. Co., 848 F.3d 1161 (9th 

Cir. 2016), which we decided a few months after the district 

court dismissed Silingo’s complaint. Swoben involved 

allegations of Medicare Advantage organizations—

including several of the defendant organizations here—

submitting false certifications of the accuracy, 

completeness, and truthfulness of the risk adjustment data 

they provided to CMS. Id. at 1166–67. In a bit of deja vu, 

these Medicare Advantage organizations faulted the 
UNITED STATES EX REL.SILINGO V. WELLPOINT 17

complaint there for using “collective allegations to refer to 

the defendants rather than differentiating among them.” Id.

at 1184. We dispensed with this argument, holding: “There 

is no flaw in a pleading . . . where collective allegations are 

used to describe the actions of multiple defendants who are 

alleged to have engaged in precisely the same conduct.” Id. 

A good claim against one defendant did not become 

inadequate simply because a co-defendant was alleged to 

have committed the same wrongful acts.

To better understand Swoben’s ruling, consider an 

analogy. In the taxonomy of conspiracy theories, a “chain 

conspiracy” is one in which “each person is responsible for 

a distinct act within the overall plan,” while a “wheel 

conspiracy” involves “a single member or group (the ‘hub’) 

separately agree[ing] with two or more other members or 

groups (the ‘spokes’).” Conspiracy, Black’s Law Dictionary 

(10th ed. 2014). Broadly speaking, if a fraudulent scheme 

resembles a chain conspiracy, then a complaint must 

separately identify which defendant was responsible for 

what distinct part of the plan. By contrast, if a fraudulent 

scheme resembles a wheel conspiracy, then any parallel 

actions of the “spokes” can be addressed by collective 

allegations.

Applying Swoben here in light of these related 

principles, we observe that Silingo has pleaded a wheel 

conspiracy-like fraud in which MedXM was the “hub” and 

the defendant Medicare Advantage organizations were the 

“spokes.” Each of the defendant organizations allegedly had 

separate contracts with MedXM, and each of them allegedly 

passed on MedXM’s inflated diagnosis information in the 

same way. These organizations thus miss the mark when 

they implore us to consider that they are “unrelated, 

dissimilar defendants with no relevant business connections 
18 UNITED STATES EX REL. SILINGO V. WELLPOINT

to one another and that [they] differ in size, geography, and 

member populations.” Because the Medicare Advantage 

organizations are largely “alleged to have engaged in 

precisely the same conduct,” there was no reason (and no 

way) for Silingo to differentiate among those allegations that 

are common to the group. Swoben, 848 F.3d at 1184. 

Silingo’s charges of factually false claims, express false 

certifications, and false records should not have been 

dismissed due to her use of group allegations.

V

The defendant Medicare Advantage organizations 

contend that we should nevertheless affirm the dismissal of 

the third amended complaint based on arguments that the 

district court did not reach. We may affirm the dismissal on 

any ground supported by the record, even if the district court 

did not rely on that ground. Corinthian Colleges, 655 F.3d 

at 992. The defendant organizations offer two such grounds: 

(1) that the complaint did not allege a sufficient factual basis 

to link MedXM’s misconduct to their actual submission of 

claims or certifications to CMS; and (2) that Silingo’s 

allegations about their knowledge of the fraud did not satisfy 

Rule 8.2 We address these points in turn.

 2 The defendant Medicare Advantage organizations also argue that 

as to the implied false certification claim, Silingo did not plead facts with 

the requisite particularity to show that the organizations lacked the 

compliance programs required by 42 C.F.R. § 422.503(b)(4)(vi). We 

need not address this argument, however, because Silingo has abandoned 

this claim on appeal by not challenging its dismissal “clearly and 

distinctly in the opening brief.” McKay v. Ingleson, 558 F.3d 888, 891 

n.5 (9th Cir. 2009).
UNITED STATES EX REL.SILINGO V. WELLPOINT 19

A

The defendant Medicare Advantage organizations first 

contend that the complaint provides inadequate detail of 

their submission of false claims. When alleging a scheme to 

submit false claims, a plaintiff must provide “reliable indicia 

that lead to a strong inference that claims were actually 

submitted.” Ebeid, 616 F.3d at 998–99 (quoting United 

States ex rel. Grubbs v. Ravikumar Kanneganti, 565 F.3d 

180, 190 (5th Cir. 2009)). We do not require the complaint 

to identify representative examples of actual false claims, 

though that is one way to satisfy the heightened pleading 

requirement. Id.

We agree with the district court, in its analysis of the 

claims against MedXM, that Silingo has carried her burden 

here. The complaint asserts that the defendant Medicare 

Advantage organizations contracted with MedXM to 

provide health assessment reports and diagnosis codes for at 

least four years. Silingo details “first-hand experience of the 

scheme unfolding,” describing MedXM’s in-home 

assessments targeting Medicare Advantage enrollees who 

would otherwise lack risk adjustment data for a given year. 

Grubbs, 565 F.3d at 192. For this population, the Medicare 

Advantage organizations would face lower capitation 

payments if they did not procure and submit updated data. 

See Medicare Managed Care Manual, ch. 7, §§ 20, 70, 

70.2.5. Conversely, if they submitted data that overstated 

health problems in the diagnosis codes given, that would 

result in higher capitated payments to them. And as part of 

their requests for payment, Medicare Advantage 

organizations must certify that the data they submit are 

“accurate, complete, and truthful.” 42 C.F.R. 

§ 422.504(l)(2). Taking Silingo’s allegations as true, as we 

must, we see ample circumstantial evidence from which to 
20 UNITED STATES EX REL. SILINGO V. WELLPOINT

infer that the defendant organizations submitted MedXM’s 

risk adjustment data and certified the data’s validity to CMS.

Indeed, “[i]t would stretch the imagination to infer the 

inverse.” Grubbs, 565 F.3d at 192. Perhaps it would be 

possible that some Medicare Advantage organization, after 

paying for MedXM’s services, might have discovered the 

fraud and then cut ties with the company and thrown out its 

data. But the organizations here are alleged to have had 

multi-year relationships with MedXM, apparently 

encompassing thousands of examinations. There is no 

reason to believe that these companies consistently paid 

MedXM for data that they desperately needed but, time after 

time, did not actually use.

The defendant Medicare Advantage organizations 

counter that Silingo did not sufficiently plead the “who, 

what, when, where, why” of their false claims, omitting 

allegations about their “claims filtering, verification, or 

submission processes or outcomes.” But these omissions do 

not justify dismissing the complaint for inadequate pleading. 

Rule 9(b) does not require a plaintiff to explain why a 

defendant committed fraud; the complaint simply must 

allege “the who, what, when, where, and how of the 

misconduct charged.” Cafasso, 637 F.3d at 1055 (quoting 

Ebeid, 616 F.3d at 998) (emphasis added). Whatever their 

internal processes, Silingo alleges, the defendant 

organizations ultimately did submit false claims and 

certifications.

B

The next argument of the defendant Medicare Advantage 

organizations is that Silingo’s allegations about their 

knowledge of the alleged fraud are not plausible under 

Rule 8.
UNITED STATES EX REL.SILINGO V. WELLPOINT 21

To plead the element of knowledge under the False 

Claims Act, a relator must allege that a defendant knew a 

claim for payment was false, or that it acted with reckless 

disregard or deliberate indifference as to the truth or falsity 

of the claim. Corinthian Colleges, 655 F.3d at 996; see also 

31 U.S.C. § 3729(b)(1) (defining the terms “knowing” and 

“knowingly”). Although the circumstances of a fraud must 

be pleaded with particularity, knowledge may be pleaded 

generally. Fed. R. Civ. P. 9(b); see also Corinthian 

Colleges, 655 F.3d at 996. A complaint therefore must set 

out sufficient factual matter from which a defendant’s 

knowledge of a fraud might reasonably be inferred. See

Iqbal, 556 U.S. at 678.

Here, Silingo plausibly pleads that the defendant 

Medicare Advantage organizations submitted false claims 

and certifications and used false records with actual 

knowledge, reckless disregard, or deliberate ignorance of 

their falsity. The complaint details a variety of ways in 

which the defendant organizations knew, or reasonably 

should have known, that MedXM’s risk adjustment data 

were invalid.

For one thing, Silingo claims that every health 

assessment report contained a typewritten signature only, 

violating the requirements for medical records underlying 

risk adjustment data. See Medicare Program Integrity 

Manual, ch. 3, § 3.3.2.4 (describing requirements for 

handwritten and electronic signatures); see also Policy and 

Technical Changes, 75 Fed. Reg. at 19,742 (“Medical 

records with missing signatures or credentials are scored as 

errors under [risk adjustment data validation] audit 

procedures.”). Similarly, Silingo contends that these errant 

signatures should have tipped off the defendant 
22 UNITED STATES EX REL. SILINGO V. WELLPOINT

organizations that MedXM was editing its examiners’ 

unsecured reports.

For another, Silingo alleges that other parts of MedXM’s 

health assessment reports provided additional reasons for 

suspicion. According to the complaint, MedXM’s frequent 

use of nurse practitioners and physician assistants as 

examiners was a “serious red flag” because these 

practitioners are commonly known to be limited by law in 

their ability to make diagnoses. MedXM’s diagnosis codes 

themselves could have revealed the fraud because, as Silingo 

alleges, many complex diagnoses cannot be confirmed 

during brief and non-invasive in-home assessments. And 

Silingo claims that duplicative patient data were sometimes 

sent to the defendant organizations before being “corrected,” 

which would suggest that something was amiss.

Taking all reasonable inferences in Silingo’s favor, see 

Iqbal, 566 U.S. at 678, there are still further grounds for 

concluding that the allegations of the defendant 

organizations’ knowledge, reckless disregard, or deliberate 

ignorance of the fraud is plausible. Even without the 

concrete signs detailed above, one would expect that a 

sophisticated company would notice when its contractor’s 

work is too good to be true. MedXM was allegedly 

obtaining worse-than-average diagnostic information from 

enrollees who did not otherwise visit a healthcare provider 

during a calendar year, and thus would not seem to be in such 

dire health. The defendant organizations’ materials show 

that the use of in-home assessments is controversial, with 

CMS repeatedly expressing interest in forbidding their use 

on the ground that they “contribute[] to increased risk scores 

and differences in coding patterns” between Medicare 
UNITED STATES EX REL.SILINGO V. WELLPOINT 23

Advantage and traditional Medicare.3 And all of these 

organizations had an incentive to pass along fraudulent data 

because, by overstating diagnoses, they could yield more 

revenue and profit under the capitated payment system—and 

it was not certain that they would get caught. That may not 

have been what was going on here, but the third amended 

complaint certainly states a plausible claim for knowingly 

participating in fraud, even as to the well-respected 

companies who are defending here.

It is no defense that Silingo’s core allegations against the 

defendant Medicare Advantage organizations are all alike. 

If a group pleading against similarly situated defendants can 

satisfy Rule 9(b), then it can also satisfy the lesser notice 

pleading standard of Rule 8. See Swoben, 848 F.3d at 1184. 

Silingo simply claims that all of the defendant organizations 

were equally put on notice by the warning signs that 

allegedly infected MedXM’s health assessment reports. 

These allegations, if true, give rise to the reasonable 

inference that the defendant organizations knowingly 

submitted false claims and used false records, or else acted 

 3 CMS, Advance Notice of Methodological Changes for Calendar 

Year (CY) 2015 for Medicare Advantage (MA) Capitation Rates, Part C 

and Part D Payment Policies and 2015 Call Letter 20 (Feb. 21, 2014), 

https://www.cms.gov/Medicare/Health-Plans/MedicareAdvtgSpecRate

Stats/downloads/Advance2015.pdf; see also CMS, Advance Notice of 

Methodological Changes for Calendar Year (CY) 2014 for Medicare 

Advantage (MA) Capitation Rates, Part C and Part D Payment 

Policies and 2014 Call Letter 22–23 (Feb. 15, 2013), 

https://www.cms.gov/Medicare/Health-Plans/MedicareAdvtgSpecRate

Stats/Downloads/Advance2014.pdf; CMS, Announcement of Calendar 

Year (CY) 2016 Medicare Advantage Capitation Rates and Medicare 

Advantage and Part D Payment Policies and Final Call Letter 144–45 

(Apr. 6, 2015), https://www.cms.gov/Medicare/Health-Plans/

MedicareAdvtgSpecRateStats/Downloads/Announcement2016.pdf.
24 UNITED STATES EX REL. SILINGO V. WELLPOINT

with reckless disregard or deliberate indifference of the 

falsity of these claims and records. See Corinthian Colleges, 

655 F.3d at 996. Because each Medicare Advantage 

organization must certify the validity of its data “based on 

best knowledge, information, and belief,” these same 

allegations also support Silingo’s express false certification 

claim. 42 C.F.R. § 422.504(l)(2); Swoben, 848 F.3d at 1169.

VI

Silingo also appeals the dismissal of her second amended 

complaint’s count for a reverse false claim. But she did not 

defend this claim in response to the motions to dismiss, so 

she may not revive it on appeal. See Carvalho v. Equifax 

Info. Servs., LLC, 629 F.3d 876, 888 (9th Cir. 2010). And 

the district court did not abuse its discretion in denying leave 

to amend here because amendment could not have revived 

this abandoned claim. See Corinthian Colleges, 655 F.3d at

995.

VII

For the reasons set forth above, we conclude that this 

case was mistakenly dismissed on the pleadings. Our 

decision rests on Silingo’s group pleadings, the primary 

focus of the district court decision and the parties’ appellate 

briefing and oral arguments. Although the defendant 

organizations also challenge Silingo’s additional allegations 

that are specific to each defendant, we see nothing to 

undermine our conclusion that the group pleadings alone are 

adequate.4

 4 At most, the defendant organizations contend that the allegations 

specific to Molina Healthcare, Inc. “contradicted [Silingo’s] more 
UNITED STATES EX REL.SILINGO V. WELLPOINT 25

Some discovery appears to have already taken place, but 

Silingo is entitled to continue taking discovery before her 

claims are resolved on summary judgment or at trial. We 

assuredly do not hold now that Silingo showed enough to get 

to trial, but rather only that her complaint is adequate to 

proceed to discovery. Accordingly, we REVERSE in part, 

AFFIRM in part, and REMAND for further proceedings on 

Silingo’s causes of action for factually false claims, express 

false certifications, and false records.

 general allegations elsewhere . . . for lack of oversight.” But the alleged 

contradiction concerns Silingo’s implied false certification claim, which 

is not at issue on appeal. See supra, note 2.