A January 7, 2016 decision from the Middle District of Florida tossing out the government’s complaint in intervention for failure to plead fraud with particularity underscores the important gate-keeping function of Rule 9(b) and the necessity of filing such motions, even where the government has attached sworn statements suggesting a scheme to secure payment based on false claims.

The complaint at issue alleged that the defendant ambulance company routinely exaggerated patients’ medical conditions on certificates of medical necessity in order to obtain higher reimbursement from Medicare. Attached to the complaint were affidavits from current and former employees who said that the majority of patients transported did not need an ambulance and that falsified reports were submitted to the company that would be payable by Medicare.

Granting the defendant’s 9(b) motion to dismiss, the court ruled that, notwithstanding these statements, “the [government’s] allegations stop short of describing what happened once the run reports were submitted to the [company] … for processing.” While the employees may have been familiar with the need to submit run reports which would be payable by Medicare (even if it allegedly meant the reports must be falsified), none was involved in the actual submission of claims to the government or the receipt of payment from the government. The court ruled that their statements thus did not demonstrate a sufficient degree of familiarity with the billing process as would provide the indicia of reliability necessary to meet the Rule 9(b) standard.