[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                         SEPTEMBER 7, 2007
                             No. 07-12055
                                                          THOMAS K. KAHN
                         Non-Argument Calendar
                                                              CLERK
                       ________________________

                     D. C. Docket No. 06-00540-CV-S

KENNETH MITCHELL,


                                               Plaintiff-Appellant,

                                  versus

BEVERLY ENTERPRISES, INC.,
a Corporation,

                                               Defendant-Appellee.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                      _________________________

                            (September 7, 2007)

Before TJOFLAT, BLACK and HULL, Circuit Judges.

PER CURIAM:
      Kenneth Mitchell appeals the district court’s dismissal of his qui tam action

against Beverly Enterprises, Inc. (Beverly). Mitchell alleges Beverly violated the

False Claims Act, 31 U.S.C. § 3729, by defrauding the United States through

fraudulent Medicare charges and noncompliance with its Corporate Integrity

Agreement (CIA) with the Office of Inspector General (OIG). The district court

found Mitchell failed to plead with the specificity required by Fed. R. Civ. P. 9(b)

and dismissed his claim with prejudice pursuant to Fed. R. Civ. P. 12(b)(6).

      Plaintiffs bringing claims against health plan administrators for improper

Medicare claims under the False Claims Act must comply with the particularity

requirement of Rule 9(b). United States ex rel. Clausen v. Lab. Corp. of Am., Inc.,

, 1307 n.11, 1308 (11th Cir. 2002) (reviewing de novo a district

court’s dismissal for failure to state a claim, applying the same standard used by

the district court). Those bringing claims on behalf of the government under the

False Claims Act for fraudulent claims must plead “facts as to time, place, and

substance of the defendant’s alleged fraud, specifically the details of the

defendants’ allegedly fraudulent acts, when they occurred, and who engaged in

them.” 

(quotations omitted). The directive to plead with particularity

“does not permit a False Claims Act plaintiff merely to describe a private scheme

in detail but then to allege simply and without any stated reason for his belief that

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claims requesting illegal payments must have been submitted, were likely

submitted or should have been submitted to the Government.” 

See

also Corsello v. Lincare, Inc., 

, 1014 (11th Cir. 2005) (affirming

district court’s dismissal of complaint that “provided the ‘who,’ ‘what,’ ‘where,’

‘when,’ and ‘how’ of improper practices, but . . . failed to allege the ‘who,’ ‘what,’

‘where,’ ‘when,’ and ‘how’ of fraudulent submissions to the government”). Rule

9(b) requires “some indicia of reliability . . . in the complaint to support the

allegation of an actual false claim for payment being made to the Government.”

. Plaintiffs need not prove their allegations in the

complaint but must provide particular facts so the Court is not “left wondering

whether a plaintiff has offered mere conjecture or a specifically pleaded allegation

on an essential element of the lawsuit.” 

& n.23 (noting the Court

cannot presume billing policies or assume claims were submitted to the

government without specific information in the pleadings). Failure to meet Rule

9(b)’s standards results in dismissal of the complaint. 

.

      In the qui tam portion of his Amended Complaint, Mitchell alleges that

Beverly submitted claims to Medicare for services that were never rendered, for

more reimbursement than that to which it was entitled, and for services which

were not medically necessary; and that Beverly violated the CIA by submitting the

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false claims, failing to investigate allegations of fraud and patient complaints,

failing to keep Mitchell’s complaints confidential, retaliating against Mitchell,

failing to comply with the CIA audit and claim review provisions, failing to

correct noncompliance, and failing to report fraud allegations and noncompliance

to the OIG.1 Mitchell’s complaint includes specific allegations of Beverly’s

policies but conclusory allegations that these policies “resulted in false charges

being submitted to Medicare.”

      Although the complaint alleges “Mitchell observed and particpated in a

billing process,” Mitchell provided specific facts only about the therapists’ billing

logs, not the actual claims presented to Medicare. As an attachment to the

complaint, Mitchell provided a page from one therapist’s billing log for patient

Esther Hollingsworth. He did not assert any specific facts beyond Hollingsworth’s

family’s allegations as to the accuracy of the billing log, and he failed to assert any

specific facts regarding the actual submission of the claim to Medicare. He states

“[t]he therapists would complete [billing log] forms, take the forms to the

[administrator], and then have that information entered and sent directly to

[Medicare] without any edits from an outside source or other management

official.” He alleges Beverly systematically failed to comply with the CIA but


      1
          Mitchell’s additional claim under the whistleblower statute is not before us on appeal.

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fails to make specific allegations about claims actually submitted to Medicare that

violated the agreement. He does not go past pleading “his belief that claims

requesting illegal payments must have been submitted, were likely submitted or

should have been submitted to the Government” by alleging specific facts as to

who submitted the bills to Medicare, how they were submitted, or when they were

submitted. See 

(emphasis added). “Underlying

improper practices alone are insufficient to state a claim under the False Claims

Act absent allegations that a specific fraudulent claim was in fact submitted to the

government.” 

.

      After reviewing the briefs on appeal and the record in this case, we agree

with the district court that Mitchell did not assert that Beverly actually submitted

false claims to Medicare with sufficient particularity and the required reliability to

meet the standard under Rule 9(b) for complaints under the False Claims Act. We

affirm the district court’s grant of Beverly’s motion to dismiss Mitchell’s claim.

      AFFIRMED.




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