FILED
NOT FOR PUBLICATION
JUL 13 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS E. PARKER, Jr., Qui Tam No. 20-35825
Plaintiff for and on behalf of the United
States of America and the State of D.C. No. 3:18-cv-05395-RBL
Washington,
Plaintiff-Appellant, MEMORANDUM*
and
UNITED STATES OF AMERICA, ex rel;
STATE OF WASHINGTON, ex rel,
Plaintiffs,
v.
SEA-MAR COMMUNITY HEALTH
CENTER, a Washington Public Benefit
Corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Argued and Submitted July 6, 2021
Seattle, Washington
Before: HAWKINS, CLIFTON, and IKUTA, Circuit Judges.
Parker appeals from the dismissal of his False Claims Act lawsuit. We have
jurisdiction under 28 U.S.C. § 1291 and affirm the district court.
Parker claims that Sea Mar Community Health Center, a federal qualified
health center, is defrauding Medicaid through how it schedules and bills for oral
prophylaxis cleanings. Sea Mar moved to dismiss Parker’s lawsuit. Dismissal
under Rule 12(b)(6) may be based on either: (1) lack of a cognizable legal theory,
or (2) insufficient facts under a cognizable legal theory. Godecke ex rel. United
States v. Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th Cir. 2019) (quoting
Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988)). As False
Claims Act lawsuits sound in fraud, the complaint must satisfy Federal Rule of
Civil Procedure 9(b). Winter ex rel. United States v. Gardens Reg’l Hosp. & Med.
Ctr., Inc., 953 F.3d 1108, 1116 (9th Cir. 2020). Parker is required to plead “with
particularity the circumstances constituting fraud,” Fed. R. Civ. P. 9(b), and to
plead “‘the who, what, when, where, and how of the misconduct charged,’
including what is false or misleading about a statement, and why it is false,” United
States v. United Healthcare Ins. Co., 848 F.3d 1161, 1180 (9th Cir. 2016) (quoting
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Ebeid ex rel. United States v. Lungwitz, 616 F.3d 993, 998 (9th Cir. 2010)). We
review the district court’s dismissal of a case de novo. Winter, 953 F.3d at 1116.
Parker fails to state a legally cognizable theory that “unbundling” routine
dental cleanings from dental exams and billing the cleanings under the supervising
dentist’s National Provider Identifier (“NPI”) rather than the NPI of the dental
hygienist who performed the cleaning constitutes “a false statement or fraudulent
course of conduct.” United States ex rel. Hendow v. Univ. of Phoenix, 461 F.3d
1166, 1174 (9th Cir. 2006). Nothing in the statute, regulations or guidance
prohibits scheduling dental exams and cleanings in separate visits and billing each
as an encounter. Contra Wash. Admin. Code § 182-548-1450(3) (2017) (requiring
fluoride treatments and sealants be provided on the same day as an encounter-
eligible service). There is also nothing prohibiting billing under the supervising
dentist’s NPI. To the contrary, a dentist must supervise a dental hygienist
performing in-clinic cleanings, Wash. Admin. Code § 246-817-550(9), and the
billing guidelines note that “a dental hygienists may bill an encounter only when
s/he provides a service independently – not jointly with a dentist.” Parker fails to
plead a legally cognizable theory that the alleged billing and scheduling of
cleanings by Sea Mar are fraud against Medicaid as Sea Mar’s billing procedures
comport with Washington law.
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The complaint also fails to plead scienter as to the alleged fraudulent nature
of the unbundling and using the dentist’s NPI to bill cleanings performed by a
dental hygienist. As these practices are not prohibited by statute, regulations, or
guidelines, Sea Mar could not have submitted the claims with the “knowledge of
the falsity and with intent to deceive.” See Hendow, 461 F.3d at 1175.
Finally, Parker does not adequately plead the materiality of the alleged
wrongdoing by Sea Mar. It would be clear on the face of the Medicaid claims if
Sea Mar were scheduling cleanings separate from dental exams as the claim form
requires the procedure code for all services provided. As the Washington Health
Care Authority paid the claims without objection, there “is strong evidence” that
the alleged unbundling, even if below the standard of care, is not material. See
Universal Health Servs., Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989,
2004 (2016). It is also clear on the face of the claim forms that a dentist’s NPI was
being used to bill services typically performed by dental hygienists, such as dental
cleanings. Again, the Washington Health Care Authority knowingly paid these
claims. Plaintiff failed to adequately rebut the strong evidence that any alleged
false statements or fraudulent course of action was material to the government
payor.
AFFIRMED.
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