United States of America, ex rel. v. Mayo Clinic Ambulance

U.S. District Court, District of Minnesota January 24, 2025

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

United States of America and the State of Civil No. 22-602 (DWF/JFD)
Minnesota, ex rel. Ashley Mothershed,

Plaintiffs,

v. MEMORANDUM
OPINION AND ORDER
Mayo Clinic Ambulance,

Defendant.

INTRODUCTION
This matter is before the Court on Defendant Mayo Clinic Ambulance’s (“Mayo”)
motion to dismiss Relator Ashley Mothershed’s second amended complaint. (Doc.
No. 74.) Relator opposes the motion. (Doc. No. 83.) For the reasons set forth below, the
motion is granted in part and denied in part.
BACKGROUND
Mothershed is an experienced professional in ambulance coding compliance.
(Doc. No. 72, Second Am. Compl. (“SAC”) ¶¶ 4, 15-21.) Mayo is a Minnesota-based,
non-profit organization that provides ambulance transport services in both Minnesota and
Wisconsin. (Id. ¶¶ 25-26.) In November 2020, Mothershed began working remotely for
Mayo’s billing department. (Id. ¶¶ 12-14.) She worked for Mayo from November 2020
through June 2021, and then again from September 2021 through May 2022. (Id.
¶¶ 12, 14.) As a biller in Mayo’s billing department, Mothershed used information from
patient care reports to enter appropriate billing codes into Mayo’s RescueNet billing
software. (Id. ¶¶ 40, 133.) The information from RescueNet was first reviewed by
Mayo’s billing supervisors and then automatically inputted into the appropriate form for

submission to a government healthcare payor for reimbursement. (Id. ¶¶ 40, 135, 138.)
During her time with Mayo, Mothershed noticed that Mayo had a practice of submitting
allegedly false claims to federal and Minnesota-state healthcare payors. (Id. ¶ 2.)
Mothershed frequently reported the improper billing practices to her supervisors, but they
would tell her she was wrong and instruct her to continue billing in the same manner. (Id.

¶ 42.) On one occasion, Mothershed’s supervisor warned her to “drop her complaints or
else.” (Id. ¶ 143.) Similarly, one of Mothershed’s coworkers also raised concerns about
false billing practices and received similar push back from their supervisors. (Id. ¶ 146.)
Ambulance services providers may seek reimbursement from federal or
Minnesota-state healthcare payors so long as (1) the transport was medically necessary,

meaning that “the use of other methods of transportation is contraindicated by the
individual’s condition,” (2) they use the Centers for Medicare and Medicaid Services’
(“CMS”) billing codes, and (3) the billing code reflects the level of service that was
actually provided. 42 U.S.C. § 1395x(s)(7);

42 C.F.R. §§ 410.40

(e)(1), 410.41(c); see 
also CMS, Pub. No. 100-02, Medicare Benefit Policy Manual, ch. 10, §§ 10.2, 10.2.2 

(2018), https://www.cms.gov/regulations-and-                              
guidance/guidance/manuals/downloads/bp102c10.pdf.1                        

1    Minnesota’s Medical Assistance program follows the Medicare criteria for 
reimbursement of ambulance services.  Minn. Stat. § 256B.0625, subdiv. 17a(a).  The 
Mothershed alleges that Mayo had three schemes for submitting false claims:  
(1) failing to review whether ambulance transports were medically necessary; 
(2) inaccurately reporting the level of services provided by upcoding non-emergency 

transports to emergency transports; and (3) inaccurately reporting the level of services 
provided by upcoding basic life support (“BLS”) services to advanced life support 
(“ALS”) services.  (SAC ¶ 2.)  The Court describes each of these alleged schemes and the 
applicable regulations in further detail below.                           
I.   Alleged Scheme 1:  Failure to Consider Medical Necessity             

Government healthcare payors only reimburse ambulance transports that are 
medically necessary, meaning that “the use of other methods of transportation is 
contraindicated by the individual’s condition.”  42 U.S.C. § 1395x(s)(7).  Other methods 
of transportation are not contraindicated if “some means of transportation other than an 
ambulance could be used without endangering the individual’s health, whether or not 

such other transportation is actually available.”  CMS, Pub. No. 100-02, Medicare Benefit 
Policy Manual, ch. 10, § 10.2.1 (2018).  Medical necessity is presumed when the patient 
was transported in an emergent situation (such as an accident, injury, or acute illness), 



TRICARE/CHAMPUS and Federal Employees’ Health Benefits programs also have 
similar requirements to Medicare.  See

32 C.F.R. §§ 199.2

, 199.4(d)(3)(v); Off. of Pers. 
Mgmt., Frequently Questioned Services, https://www.opm.gov/retirement-    
center/publications-forms/benefits-administration-letters/2017/17-401a3.pdf (last visited 
Jan. 13, 2025).  Given the similarities, the parties have primarily referred to the Medicare 
requirements throughout their filings.  The Court does the same for the purposes of this 
motion.                                                                   
was unconscious, required emergency treatment during transport, or was bed-confined 
before and after the transport.

Id.

§ 20.
If a provider submits a claim to a government healthcare payor,2 they must

determine whether the transport was medically necessary. CMS, Pub. No. 100-04,
Medicare Claims Processing Manual, ch. 15, § 30.2.4 (2024),
https://www.cms.gov/regulations-and-
guidance/guidance/manuals/downloads/clm104c15.pdf. When a transport was not
medically necessary, the provider must include a “GY” modifier with the billing code.

Id. If a GY modifier is used, the government healthcare payor will deny the claim. Id.
Consequently, the ambulance entity must seek reimbursement from the patient or the
patient’s private insurance. Id.
Mothershed alleges that Mayo’s general practice was to not review medical
necessity, instead leaving the default billing assumption that transports were medically

necessary. (SAC ¶¶ 69, 73, 76.) During training, Mothershed was told by her trainer that
Mayo did not use GY modifiers. (Id. ¶ 78.) When Mothershed asked her trainer and a
supervisor if they had ever determined that a transport was not medically necessary, they
each said they had not. (Id. ¶ 79.) Mothershed repeatedly confronted her supervisors
about this practice and each time was told that Mayo did not review medical necessity.

(Id. ¶¶ 81-84, 95.) Mothershed was once instructed to add the GY modifier to a transport

2 Providers do not have to submit claims to government healthcare payors for
services that are excluded under the statute. CMS, Pub. No. 100-04, Medicare Claims
Process Manual, ch. 15, § 30.2.4 (2024). When they choose to submit such claims to a
government healthcare payor, they must use the GY modifier.
at the instruction of her supervisor because the patient specifically requested it. (Id.
¶ 77 n.5; see also Doc. No. 78 (“Sertich Decl.”) ¶ 17, Ex. 16.)
Mothershed provides four specific examples of this practice. Patient MN-2 was

transported to the hospital by Mayo after a 911 call. (Sertich Decl. ¶ 4, Ex. 3 at 2.) The
patient had tripped and fallen the previous day and reported back pain. (Id. at 4.) She
was alert, oriented, and able to stand and walk. (Id. at 4-5.) She was legally blind and
reported that her caretaker had left for the weekend. (Id. at 4.) Mayo billed the transport
without the GY modifier, indicating that it was medically necessary. (SAC ¶ 88.)

Patient MN-6 was transported to the hospital by Mayo after a 911 call. (Sertich
Decl. ¶ 5, Ex. 4 at 2.) The patient had visited Mayo Clinic earlier that day, but after
returning home she began experiencing weakness and confusion and was unable to leave
her wheelchair. (Id. at 4.) Her husband requested that she be transported to the hospital.
(Id.) She did not receive any treatment while being transported and was simply taken to

the hospital for further evaluation and treatment. (Id.) Mayo billed the transport without
the GY modifier, indicating that it was medically necessary. (SAC ¶ 89.)
Patient MN-7 was transported to the hospital by Mayo after a 911 call. (Sertich
Decl. ¶ 6, Ex. 5 at 2.) When the ambulance team arrived, the patient was intoxicated and
rolling a cigarette. (Id. at 5.) The patient reported that he had been assaulted three times,

although he was uncooperative and did not indicate when he was assaulted. (Id.) He did
not appear to be in any acute distress or have any signs of bleeding or other trauma. (Id.)
He also reported that he had no medical issues but that he wanted to be transported to the
hospital. (Id.) Mayo billed the transport without the GY modifier, indicating that it was
medically necessary. (SAC ¶ 90.)
Patient MN-8 was transported to the hospital by Mayo after a 911 call. (Sertich

Decl. ¶ 7, Ex. 6 (“MN-8 R.”) at 2.) The patient had visited the hospital for routine tests
earlier that morning. (Id. at 4.) The patient returned home to wait for the results. (Id.)
When the results came back, they showed that the patient had low hemoglobin, so his
doctor told the patient to go to the Emergency Department. (Id.) The patient was not
experiencing pain at the time of transport. (Id.) He had no bleeding and was vitally

stable, alert, and oriented. (Id.) Mayo billed the transport without the GY modifier,
indicating that it was medically necessary. (SAC ¶ 93.)
II. Alleged Scheme 2: Upcoding Non-Emergency Transports to Emergency
When submitting claims, providers must report whether a transport was
emergency or non-emergency. Emergency transports are reimbursed by government

healthcare payors at a higher rate than non-emergency transports. See

42 C.F.R. § 414.610

(c).  A transport qualifies as an emergency response when the ambulance entity 
“respond[s] immediately at the BLS or ALS1 level of service to a 911 call or the 
equivalent in areas without a 911 call system.”

Id.

§ 414.605. “An immediate response
is one in which the ambulance entity begins as quickly as possible to take the steps

necessary to respond to the call.” Id. A 911 call is not required to meet the second
requirement, even in areas with a 911 system. CMS, Pub. No. 100-02, Medicare Benefit
Policy Manual, ch. 10, § 30.1.1 (2018). Instead, the phrase “is intended to establish the
standard that the nature of the call at the time of dispatch is the determining factor.” Id.
A call is an emergency “when, based on the information available to the dispatcher at the
time of the call, it is reasonable for the dispatcher to issue an emergency dispatch in light
of accepted, standard dispatch protocol.” Id.

Mothershed alleges that Mayo had a general practice of billing non-emergency
calls as emergency solely because an ambulance was dispatched immediately after
receiving a call. (SAC ¶¶ 47-48.) She specifically focuses on Mayo’s practice of
upcoding scheduled hospital-to-hospital transfers to emergencies. (Id. ¶¶ 47, 50-51.)
Mothershed was repeatedly instructed to bill this way, despite various conversations she

had with her supervisors about the practice. (Id. ¶¶ 59-63, 142, 154-57.) For example,
Mothershed was instructed by Mayo’s Regulatory Officer Tom Fennell to incorrectly bill
a patient transport to dialysis as an emergency transport. (Id. ¶ 61.) When she coded
non-emergency transports in accordance with her understanding of the regulations, she
was later forced to change the codes to emergency by her supervisors. (Id. ¶ 62.) She

was also directed to follow this practice at the billing department’s weekly Skype
meetings. (Id. ¶¶ 60, 63.)
Mothershed provides three specific examples of this practice. Patient DP-1 was
transferred by Mayo from one hospital to another for a hematology consult. (Sertich
Decl. ¶ 11, Ex. 10 (“DP-1 R.”) at 6.) The transport was a scheduled transfer and marked

as “No lights & sirens” in the report. (Id. at 2; SAC ¶ 65.) Just over one hour passed
between the time the call was received and when the call was assigned to a transport
team. (DP-1 R. at 2.) The patient’s chart did not otherwise indicate any emergency or
urgency of the call. (SAC ¶ 65; see DP-1 R. at 6.) The transport was ultimately billed by
Mayo as an emergency transport. (SAC ¶ 65.)
Patient DP-2 was transferred by Mayo from one hospital to another because the

first facility did not have an available room. (Sertich Decl. ¶ 12, Ex. 11 (“DP-2 R.”)
at 5.) The patient was suffering from congestive heart failure and COPD. (Id.) The
transport was a scheduled transfer and marked as “No lights & sirens.” (Id. at 2; SAC
¶ 66.) No symptoms were noted and the EMTs made no inquiry about the patient’s
symptoms during the transport. (SAC ¶ 66.) While only two minutes passed between the

time the call was received and when the call was assigned, the ambulance team arrived at
the first hospital just over fifty minutes after the call was originally received. (DP-2 R.
at 2.)
Patient DP-3 was transferred by Mayo from one hospital to another for an
endoscopic retrograde cholangiopancreatography requested by her physician, a procedure

that examines a patient’s pancreatic and bile ducts. (Sertich Decl. ¶ 13, Ex. 12
(“DP-3 R.”) at 4; SAC ¶ 67.) The patient did not report any pain at the time of transport.
(DP-3 R. at 4.) The transport was a scheduled transfer and marked as “No lights &
sirens.” (Id. at 2; SAC ¶ 67.) Only ten minutes passed between the time the call was
received and when the call was assigned. (DP-3 R. at 2.) The ambulance team arrived at

the first hospital about an hour and thirty minutes after the call was originally received.
(Id.)
III. Alleged Scheme 3: Upcoding BLS Services to ALS Services
When submitting claims, providers report the nature of the services provided,
which are typically either BLS or ALS. ALS services are reimbursed by government

healthcare payors at a higher rate than BLS services. See

42 C.F.R. § 414.610

(c).  BLS 
services are a lower tier of services, defined in the regulations as “transportation by 
ground ambulance vehicle and medically necessary supplies and services, plus the 
provision of BLS ambulance services.”

Id.

 § 414.605.  In contrast, ALS, level 1 services 
are “transportation by ground ambulance vehicle, medically necessary supplies and 

services and either an ALS assessment by ALS personnel or the provision of at least one 
ALS intervention.”  Id.  Thus, to bill for ALS, level 1 services, ALS personnel must 
perform either an ALS assessment or intervention in response to the call. 
An ALS assessment “is an assessment performed by an ALS crew as part of an 
emergency response that was necessary because the patient’s reported condition at the 

time of dispatch was such that only an ALS crew was qualified to perform the 
assessment.”  Id.  An ALS intervention is “a procedure that is, in accordance with State 
and local laws, required to be furnished by ALS personnel.”  Id.  Only ALS personnel 
may conduct an ALS assessment or intervention.  Id.; see also CMS, Pub. No. 100-02, 
Medicare Benefit Policy Manual, ch. 10, § 30.1.1 (2018).  Only individuals trained at the 

EMT-Intermediate and Paramedic levels qualify as ALS personnel.

42 C.F.R. § 414.605

.  
Notably, this definition excludes individuals trained at the EMT-Basic level.  To qualify 
as an ALS crew, an ambulance team only needs one ALS-qualified member.  CMS, Pub. 
No. 100-02, Medicare Benefit Policy Manual, ch. 10, § 10.1.2 (2018).  Thus, an ALS 
crew could consist of one EMT-Intermediate or Paramedic and one EMT-Basic. 
Mothershed alleges that Mayo had a general practice of billing BLS services as 

ALS services.  (SAC ¶¶ 120, 124.)  Specifically, Mayo would bill services as ALS when 
an ALS crew responded to the call, even though no ALS assessment or intervention was 
conducted.  (Id. ¶¶ 126-28.)                                              
Mothershed provides two specific examples of this practice.  Patient LS-3 was 
suffering from diarrhea, abdominal pain, nausea, and vomiting.  (Sertich Decl. ¶ 9, Ex. 8 

at 5.)  An ALS crew was dispatched to respond to the call, consisting of one Paramedic 
and one EMT-Basic.  (Id. at 2.)  Dispatch marked the call type as “BLS.”  (Id.)  Upon 
arriving at the scene, the EMT-Basic performed an assessment of the patient.3  (Id. at 3.)  
No ALS interventions were conducted during the call.  (Id. at 4-5; SAC ¶ 126.)  Mayo 
billed the transport as ALS instead of BLS.  (SAC ¶ 126.)                 

Patient LS-5 was found on the floor not making sense and reported experiencing 
weakness.  (Sertich Decl. ¶ 10, Ex. 9 at 5.)  An ALS crew was dispatched to respond to 
the call, consisting of one Paramedic and one EMT-Basic.  (Id. at 2.)  Dispatch marked 
the call type as “BLS.”  (Id.)  Upon arriving at the scene, the EMT-Basic performed an 


3    Mayo contends that it is inappropriate for the Court to infer from the records that 
an EMT-Basic conducted the assessment when an assessment is listed as “By” an EMT-
Basic.  (Doc. No. 84 at 29.)  Further, Mayo asks the Court to infer the opposite:  that the 
crew member listed after “By” is only the one who documented the services, not the one 
who performed the services.  (Id.)  The Court rejects this argument.  All inferences must 
be drawn in the light most favorable to the complainant at this stage.  The inference that 
an EMT-Basic conducted the assessment is a reasonable inference based on the facts. 
assessment of the patient.  (Id. at 3.)  No ALS interventions were conducted during the 
call.  (Id. at 4-5; SAC ¶ 127.)  Mayo billed the transport as ALS instead of BLS.  (SAC 
¶ 127.)                                                                   

IV.   This Case                                                           
Mothershed brings this qui tam action on behalf of the United States of America 
and the State of Minnesota against Mayo under the federal False Claims Act (“FCA”) and 
the Minnesota False Claims Act (“MFCA”).  (SAC ¶ 1.)  She brings four counts, two 
under the FCA and two under the MFCA,4 all based on the three schemes outlined above.  

The United States of America and the State of Minnesota declined to intervene in this 
action.  (Doc. No. 25.)  Mayo now moves to dismiss Mothershed’s second amended 
complaint under Federal Rule of Civil Procedure 12(b)(6).  (Doc. No. 74.) 
                      DISCUSSION                                     
I.   Legal Standard                                                       

A.   Motion to Dismiss Under Rule 12(b)(6)                           
In deciding a motion to dismiss pursuant to Federal Rule of Civil    
Procedure 12(b)(6), a court assumes all facts in the complaint to be true and construes all 
reasonable inferences from those facts in the light most favorable to the complainant.  
Morton v. Becker,

793 F.2d 185, 187

 (8th Cir. 1986).  In doing so, however, a court need 

not accept as true wholly conclusory allegations, Hanten v. Sch. Dist. of Riverview 

4    Because the MFCA mirrors the FCA, the Court analyzes all counts under the FCA.  
See Olson v. Fairview Health Servs. of Minn.,

831 F.3d 1063

, 1069 n.6 (8th Cir. 2016).  
Count 3 mirrors Count 1, so the Court analyzes them together.  Count 4 mirrors Count 2, 
so the Court analyzes them together.                                      
Gardens,

183 F.3d 799

, 805 (8th Cir. 1999), or legal conclusions drawn by the pleader 
from the facts alleged, Westcott v. City of Omaha,

901 F.2d 1486, 1488

 (8th Cir. 1990).   
To survive a motion to dismiss, a complaint must contain “enough facts to state a 

claim to relief that is plausible on its face.”  Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570

 
(2007).  Although a complaint need not contain “detailed factual allegations,” it must 
contain facts with enough specificity “to raise a right to relief above the speculative 
level.”

Id. at 555

.  As the Supreme Court reiterated, “[t]hreadbare recitals of the elements 
of a cause of action, supported by mere conclusory statements,” will not pass muster 

under Twombly.  Ashcroft v. Iqbal,

556 U.S. 662, 678

 (2009) (citing Twombly,

550 U.S. at 555

).  In sum, this standard “calls for enough fact[s] to raise a reasonable expectation 
that discovery will reveal evidence of [the claim].”  Twombly,

550 U.S. at 556

. 
A court may consider the complaint, matters of public record, orders, materials 
embraced by the complaint, and exhibits attached to the complaint in deciding a motion 

to dismiss under Rule 12(b)(6).  Porous Media Corp. v. Pall Corp.,

186 F.3d 1077, 1079

 
(8th Cir. 1999).  The parties disagree about the scope of this rule.  Generally, “materials 
embraced by the complaint include ‘documents whose contents are alleged in a complaint 
and whose authenticity no party questions, but which are not physically attached to the 
pleadings.’”  Zean v. Fairview Health Servs.,

858 F.3d 520, 526

 (8th Cir. 2017) (quoting 

Ashanti v. City of Golden Valley,

666 F.3d 1148, 1151

 (8th Cir. 2012)).  This includes 
matters that are “integral to the claim.”  Miller v. Redwood Toxicology Lab., Inc.,

688 F.3d 928

, 931 n.3 (8th Cir. 2012) (quoting 5B Charles Alan Wright & Arthur R. 
Miller, Federal Practice and Procedure § 1357 (3d ed. 2004)).  The Court finds that all 
patient records and email communications described or alluded to in the complaint are 
embraced by the complaint.  The Court may rely upon these records as it sees fit without 
converting this motion into a motion for summary judgment.                

B.   Pleading Standard Under Rule 9(b)                               
In addition, because Mothershed brings her claims under the FCA, her complaint 
must meet the heightened pleading standard under Rule 9(b).  United States ex rel. 
Dunn v. N. Mem’l Health Care,

739 F.3d 417, 419-20

 (8th Cir. 2014).  Rule 9(b) requires 
that a party pleading fraud or mistake do so with “particularity.”  This heightened 

pleading standard does not extend to mental conditions such as intent or knowledge.  
Fed. R. Civ. P. 9(b).  Instead, mental conditions “may be alleged generally.”

Id.

 
To satisfy Rule 9(b), a complaint must plead the “who, what, when, where, and 
how” of the alleged fraud.  Freitas v. Wells Fargo Home Mortg., Inc.,

703 F.3d 436, 439

 
(8th Cir. 2013) (quoting Summerhill v. Terminix, Inc.,

637 F.3d 877, 880

 (8th Cir. 2011)).  

When a complaint alleges a systematic practice under the FCA, as Mothershed has in this 
case, there are two ways in which a relator can meet this standard.  The traditional 
method is pleading “some representative examples of [the defendant’s] alleged fraudulent 
conduct, specifying the time, place, and content of [the defendant’s] acts and the identity 
of the actors.”  United States ex rel. Thayer v. Planned Parenthood of the Heartland,

765 F.3d 914, 917

 (8th Cir. 2014) (alterations in original) (quoting United States ex rel. 
Joshi v. St. Luke’s Hosp., Inc.,

441 F.3d 552, 557

 (8th Cir. 2006)).  Under the second 
method, as described in Thayer, “a relator can satisfy Rule 9(b) 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.’”

Id.

 (quoting United States ex rel. 
Grubbs v. Kanneganti,

565 F.3d 180, 190

 (5th Cir. 2009)).  The Thayer method applies to 
a narrow category of cases where the relator can show familiarity with particular details 

of the alleged scheme.

Id.

The parties disagree about whether Mothershed should be allowed to plead under
the second method. In Thayer, the relator alleged that Planned Parenthood was
submitting false or fraudulent claims for Medicaid reimbursement. Id. at 915. The
relator was the manager of two of Planned Parenthood’s clinics and oversaw its billings

and claims system. Id. at 917. In her complaint, the relator pleaded her firsthand
knowledge of the schemes as someone with access to the billing system, including
“names of the individuals that instructed her to carry out these schemes,” the period
during which the schemes took place, participating clinics, and the “methods by which
these schemes were perpetrated.” Id. at 919. Therefore, the Eighth Circuit found

sufficient indicia of reliability to allow the relator to plead by showing particular details
of the alleged scheme rather than providing representative examples. Id.
Here, Mothershed’s position is directly analogous to the relator in Thayer. She
worked in Mayo’s billing department, she was familiar with its billing practices, and she
alleged particular details of the schemes based on her firsthand experience. Thus, the

Court concludes that Mothershed can meet the Rule 9(b) pleading standard either by
pleading representative examples or particular details of each alleged scheme supported
by sufficient indicia of reliability.
II. Counts 1 and 3
To prove a claim under

31 U.S.C. § 3729

(a)(1)(A), a party must show:  “(1) the 
defendant made a claim against the United States; (2) the claim was false or fraudulent; 

and (3) the defendant knew the claim was false or fraudulent.”  Olson,

831 F.3d at 1070

 
(quoting United States v. Basin Elec. Power Coop.,

248 F.3d 781

, 803 (8th Cir. 2001)).  
The knowledge element may be met by showing that a person (1) “has actual knowledge 
of the information,” (2) “acts in deliberate ignorance of the truth or falsity of the 
information,” or (3) “acts in reckless disregard of the truth or falsity of the information.”

31 U.S.C. § 3729

(b)(1)(A).  Deliberate ignorance covers “defendants who are aware of a 
substantial risk that their statements are false, but intentionally avoid taking steps to 
confirm the statements’ truth or falsity.”  United States ex rel. Schutte v. SuperValu Inc.,

598 U.S. 739, 751

 (2023).  Reckless disregard covers “defendants who are conscious of a 
substantial and unjustifiable risk that their claims are false, but submit the claims 

anyway.”

Id.

  The knowledge element does not require proof of specific intent to 
defraud.

31 U.S.C. § 3729

(b)(1)(B).                                      
There are two categories of falsity under the FCA:  factually false and legally 
false.  Olson v. Fairview Health Servs. of Minn., No. 13-cv-2607,

2015 WL 1189823

, 
at *7 (D. Minn. Mar. 16, 2015).  Factually false claims are those where the defendant 

submits “an incorrect description of goods or services provided or a request for 
reimbursement for goods or services never provided.”

Id.

 (quoting Mikes v. Straus,

274 F.3d 687, 697

 (2d Cir. 2001)).  Legally false claims are those “where a party certifies 
compliance with a statute or regulation as a condition to governmental payment.”

Id.

 
at *8 (quoting Mikes,

274 F.3d at 697

).  This kind of false certification can be express or 
implied.

Id.

Mothershed’s three theories appear to fit into the factually false category.
(See SAC ¶¶ 6, 218, 236.)

Mayo argues that Mothershed’s claims under this section of the FCA and MFCA
fail because she did not sufficiently allege the falsity element or the knowledge element
for any of the three alleged schemes. (Doc. No. 84 at 8-9, 18.) The Court addresses this
argument for each scheme below.
A. Failure to Consider Medical Necessity

Mothershed alleges first that Mayo had a general practice of failing to review
ambulance transports for medical necessity, and as a result, Mayo submitted many
transports to government healthcare payors for reimbursement that were not eligible for
reimbursement. Mothershed provides four representative examples of this practice and
alleges the scheme based on her own particular knowledge.

Starting with falsity, Mayo argues that Mothershed’s representative examples do
not demonstrate falsity because they all involve situations where ambulance transport is
presumed to be medically necessary. (Doc. No. 84 at 20.) Each example Mothershed
provided involves a 911 call where the patient was experiencing some kind of injury or
acute illness, all situations where medical necessity is presumed under CMS guidance.

Patient MN-2 had suffered a back injury the previous day and reported pain resulting
from that injury. Patient MN-6 was experiencing weakness and confusion, and was
unable to leave her wheelchair, which would qualify as an acute illness. Patient MN-7
indicated that he had been assaulted, which would qualify as an injury or accident.
Patient MN-8 was experiencing low hemoglobin and needed to go to the emergency
department, which would qualify as an acute illness. Although these examples are not the
strongest showings of medical necessity, they appear to meet the presumption in CMS

guidance. Because these examples do not demonstrate that Mayo submitted transports
that were not medically necessary as medically necessary (i.e. without the GY modifier),
Mothershed has not sufficiently alleged falsity through her representative examples.
Mothershed could also plead details of the scheme based on her personal
knowledge, but again, the pleading falls short of sufficiently alleging falsity. Mothershed

alleges a general practice of failing to consider medical necessity. This practice of failing
to do something misses a logical step. To show falsity under this kind of theory, a relator
must demonstrate that the defendant is submitting an incorrect description of goods or
services. Mothershed shows that Mayo does not review for medical necessity, but she
does not make a final connection between that practice and false claims being submitted

to the government. As the CMS guidance explains, not all claims are submitted to
government healthcare payors, so it does not follow that failure to review for medical
necessity resulted in false claims being submitted to government healthcare payors.
Furthermore, the email discussion Mothershed describes—which Mayo provided—
demonstrates that Mayo was familiar with the modifier and using it in instances where a

patient asked Mayo to submit a claim to Medicare that Medicare should not reimburse.
Falsity must be pleaded with particularity, and this is not enough for the Court to
conclude on the falsity element.
Upon finding that Mothershed has not sufficiently pleaded the falsity element, the
Court does not further address the knowledge element. Mayo’s motion to dismiss is
granted as to this theory. The theory is dismissed without prejudice.

B. Upcoding Non-Emergency Transports to Emergency
Mothershed alleges second that Mayo upcoded non-emergency transports to
emergency transports, and as a result, government healthcare payors reimbursed Mayo at
a higher rate. An emergency transport requires two things: (1) an immediate response;
and (2) a 911 call or the equivalent. Mothershed offered three representative examples as

well as detailed allegations based on her personal experience. The three representative
examples are sufficient to allege falsity. In each of these examples, the patient was
transferred from one hospital to another. The transfers were scheduled and marked as
“No lights & sirens.” Mayo appears to have relied on the “immediate response” portion
of this definition to justify marking the transfers as emergency. While a few of these

examples were within the time range that could be considered immediate, that is not the
only requirement. The second requirement revolves around the nature of the call at the
time of dispatch. For all three of the representative examples, the nature of the call was
marked as scheduled and no lights or sirens were recommended. Viewing the facts in the
light most favorable to Mothershed, by indicating that non-emergency transports were

emergency transports, Mayo submitted claims for reimbursement that had an incorrect
description of the services. Thus, Mothershed sufficiently alleges falsity.
As for knowledge, Mothershed alleges many conversations with her supervisors at
Mayo about the problems with this billing practice. Her supervisors ignored her
suggestions and told her to keep billing this way, even at times telling her to go back and
change her codes. These actions demonstrate, at a minimum, a reckless disregard
because Mayo was aware of the substantial and unjustifiable risk that they might have

been submitting false claims, but they ignored those warnings by Mothershed. Thus,
Mothershed sufficiently alleges knowledge.
C. Upcoding BLS Services to ALS Services
Mothershed alleges third that Mayo upcoded BLS services to ALS services, and as
a result, government healthcare payors reimbursed Mayo at a higher rate. ALS services

may be billed when ALS personnel perform either an ALS assessment or an ALS
intervention. Mothershed offered two representative examples where no ALS assessment
or intervention was performed but Mayo still billed ALS services. Specifically, an
assessment was conducted by an EMT-Basic, which would be considered a BLS
assessment, and no separate ALS intervention was performed. Without an ALS

assessment or intervention, these transports should have been submitted as BLS services
and reimbursed at a lower rate. Mothershed has sufficiently alleged falsity under
Rule 9(b).
As for knowledge, Mothershed has shown that Mayo’s supervisors reviewed these
claims and that she repeatedly confronted them about the false billing practices. As

described above, this demonstrates at least reckless disregard because Mayo was aware of
the substantial and unjustifiable risk that they might have been submitting false claims,
but they ignored Mothershed’s warnings. Mothershed has sufficiently alleged
knowledge.
III. Counts 2 and 4
To prove a claim under

31 U.S.C. § 3729

(a)(1)(B), a party must show:  “(1) the 
defendant made a ‘false record or statement’; (2) the defendant knew the statement was 

false; (3) the statement was material; and (4) the defendant made a ‘claim’ for the 
government to pay money or forfeit money due.”  United States ex rel. Miller v. Weston 
Educ., Inc.,

840 F.3d 494, 500

 (8th Cir. 2016).  A claim under this section of the FCA 
differs from the previous section because it requires the making of a false statement or 
record that is subsequently submitted as part of a false claim.           

Mayo argues that Mothershed’s claims under this section of the FCA and MFCA 
fail for the same reasons as Counts 1 and 3, but also because Mothershed did not 
sufficiently allege the existence of a separate “false record or statement” and these counts 
are entirely duplicative of Counts 1 and 3.  (Doc. No. 84 at 8-9.)  The Court agrees that 
Mothershed fails to sufficiently allege a separate false record or statement and, moreover, 

Counts 2 and 4 are completely duplicative of Counts 1 and 3.              
The “false record or statement” requirement of § 3729(a)(1)(B) means that there is 
a separate false record or statement that is distinct from the false claim itself.  See, e.g., 
United States ex rel. Oliver v. Parsons Corp.,

498 F. Supp. 2d 1260

, 1278 n.20 (C.D. 
Cal. 2006); see also United States ex rel. Strubbe v. Crawford Cnty. Mem’l Hosp.,

915 F.3d 1158, 1166

 (8th Cir. 2019) (describing that there must be a connection between 
the false record or statement and the false claim made to the government).  Mothershed 
does not particularly allege what the separate false record or statements would be in this 
case, and instead makes general statements that the billing forms count as false records or 
statements, as well as “false supporting materials,” “internal billing forms,” and “false 
certifications.”  (See SAC ¶¶ 229, 233.)  The billing forms submitted to government 
healthcare payors for reimbursement are the false claims themselves, so Mothershed must 

allege, with particularity, a separate false record or statement.  She does not explain what 
she means by supporting materials or false certifications.  Internal billing forms could 
perhaps refer to the RescueNet software, however, she does not make this clear.  This is 
not sufficient pleading under Rule 9(b).                                  
Furthermore, these two counts are entirely duplicative of Counts 1 and 3.  The 

D.C. Circuit has explained that § 3729(a)(1)(B) is “designed to prevent those who make 
false records or statements to get claims paid or approved from escaping liability solely 
on the ground that they did not themselves present a claim for payment or approval.”  
United States ex rel. Totten v. Bombardier Corp.,

380 F.3d 488, 501

 (D.C. Cir. 2004); see 
also United States ex rel. Brooks v. Stevens-Henager Coll.,

305 F. Supp. 3d 1279, 1305-06

 (D. Utah 2018) (“The primary purpose of § 3729(a)(1)(B) is to remove any 
defense that the defendant did not personally submit, or cause to be submitted, a false 
claim for payment.”).  Mothershed has not alleged any facts suggesting that Mayo could 
escape liability under § 3729(a)(1)(A) through this type of defense.  Therefore, the Court 
finds that Counts 2 and 4 are entirely duplicative and dismisses them without prejudice.

ORDER

Based upon the foregoing and the record in this case, IT IS HEREBY   
ORDERED that Defendant Mayo Clinic Ambulance’s motion to dismiss (Doc. No. [74]) 
is GRANTED IN PART and DENIED IN PART as follows:                         
1.   Defendant’s motion is GRANTED as to Counts 2 and 4 of the Second 
Amended Complaint.                                                        
2.   Counts 2 and 4 of the Second Amended Complaint are DISMISSED    

WITHOUT PREJUDICE.                                                        
3.   Defendant’s motion is GRANTED as to Counts 1 and 3 under a theory of 
falsity on medical necessity.                                             
4.   Defendant’s motion is otherwise DENIED.  Counts 1 and 3 remain in this 
action based on Relator’s other two theories.                             


Dated:  January 24, 2025      s/Donovan W. Frank                          
                         DONOVAN W. FRANK                            
                         United States District Judge

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

United States of America and the State of Civil No. 22-602 (DWF/JFD)
Minnesota, ex rel. Ashley Mothershed,

Plaintiffs,

v. MEMORANDUM
OPINION AND ORDER
Mayo Clinic Ambulance,

Defendant.

42 C.F.R. §§ 410.40

(e)(1), 410.41(c); see 
also CMS, Pub. No. 100-02, Medicare Benefit Policy Manual, ch. 10, §§ 10.2, 10.2.2 

(2018), https://www.cms.gov/regulations-and-                              
guidance/guidance/manuals/downloads/bp102c10.pdf.1                        

1    Minnesota’s Medical Assistance program follows the Medicare criteria for 
reimbursement of ambulance services.  Minn. Stat. § 256B.0625, subdiv. 17a(a).  The 
Mothershed alleges that Mayo had three schemes for submitting false claims:  
(1) failing to review whether ambulance transports were medically necessary; 
(2) inaccurately reporting the level of services provided by upcoding non-emergency 

transports to emergency transports; and (3) inaccurately reporting the level of services 
provided by upcoding basic life support (“BLS”) services to advanced life support 
(“ALS”) services.  (SAC ¶ 2.)  The Court describes each of these alleged schemes and the 
applicable regulations in further detail below.                           
I.   Alleged Scheme 1:  Failure to Consider Medical Necessity             

Government healthcare payors only reimburse ambulance transports that are 
medically necessary, meaning that “the use of other methods of transportation is 
contraindicated by the individual’s condition.”  42 U.S.C. § 1395x(s)(7).  Other methods 
of transportation are not contraindicated if “some means of transportation other than an 
ambulance could be used without endangering the individual’s health, whether or not 

such other transportation is actually available.”  CMS, Pub. No. 100-02, Medicare Benefit 
Policy Manual, ch. 10, § 10.2.1 (2018).  Medical necessity is presumed when the patient 
was transported in an emergent situation (such as an accident, injury, or acute illness), 



TRICARE/CHAMPUS and Federal Employees’ Health Benefits programs also have 
similar requirements to Medicare.  See

32 C.F.R. §§ 199.2

, 199.4(d)(3)(v); Off. of Pers. 
Mgmt., Frequently Questioned Services, https://www.opm.gov/retirement-    
center/publications-forms/benefits-administration-letters/2017/17-401a3.pdf (last visited 
Jan. 13, 2025).  Given the similarities, the parties have primarily referred to the Medicare 
requirements throughout their filings.  The Court does the same for the purposes of this 
motion.                                                                   
was unconscious, required emergency treatment during transport, or was bed-confined 
before and after the transport.

Id.

§ 20.
If a provider submits a claim to a government healthcare payor,2 they must

(Id. ¶¶ 81-84, 95.) Mothershed was once instructed to add the GY modifier to a transport

healthcare payors at a higher rate than non-emergency transports. See

42 C.F.R. § 414.610

(c).  A transport qualifies as an emergency response when the ambulance entity 
“respond[s] immediately at the BLS or ALS1 level of service to a 911 call or the 
equivalent in areas without a 911 call system.”

Id.

§ 414.605. “An immediate response
is one in which the ambulance entity begins as quickly as possible to take the steps

healthcare payors at a higher rate than BLS services. See

42 C.F.R. § 414.610

(c).  BLS 
services are a lower tier of services, defined in the regulations as “transportation by 
ground ambulance vehicle and medically necessary supplies and services, plus the 
provision of BLS ambulance services.”

Id.

 § 414.605.  In contrast, ALS, level 1 services 
are “transportation by ground ambulance vehicle, medically necessary supplies and 

services and either an ALS assessment by ALS personnel or the provision of at least one 
ALS intervention.”  Id.  Thus, to bill for ALS, level 1 services, ALS personnel must 
perform either an ALS assessment or intervention in response to the call. 
An ALS assessment “is an assessment performed by an ALS crew as part of an 
emergency response that was necessary because the patient’s reported condition at the 

time of dispatch was such that only an ALS crew was qualified to perform the 
assessment.”  Id.  An ALS intervention is “a procedure that is, in accordance with State 
and local laws, required to be furnished by ALS personnel.”  Id.  Only ALS personnel 
may conduct an ALS assessment or intervention.  Id.; see also CMS, Pub. No. 100-02, 
Medicare Benefit Policy Manual, ch. 10, § 30.1.1 (2018).  Only individuals trained at the 

EMT-Intermediate and Paramedic levels qualify as ALS personnel.

42 C.F.R. § 414.605

.  
Notably, this definition excludes individuals trained at the EMT-Basic level.  To qualify 
as an ALS crew, an ambulance team only needs one ALS-qualified member.  CMS, Pub. 
No. 100-02, Medicare Benefit Policy Manual, ch. 10, § 10.1.2 (2018).  Thus, an ALS 
crew could consist of one EMT-Intermediate or Paramedic and one EMT-Basic. 
Mothershed alleges that Mayo had a general practice of billing BLS services as 

ALS services.  (SAC ¶¶ 120, 124.)  Specifically, Mayo would bill services as ALS when 
an ALS crew responded to the call, even though no ALS assessment or intervention was 
conducted.  (Id. ¶¶ 126-28.)                                              
Mothershed provides two specific examples of this practice.  Patient LS-3 was 
suffering from diarrhea, abdominal pain, nausea, and vomiting.  (Sertich Decl. ¶ 9, Ex. 8 

at 5.)  An ALS crew was dispatched to respond to the call, consisting of one Paramedic 
and one EMT-Basic.  (Id. at 2.)  Dispatch marked the call type as “BLS.”  (Id.)  Upon 
arriving at the scene, the EMT-Basic performed an assessment of the patient.3  (Id. at 3.)  
No ALS interventions were conducted during the call.  (Id. at 4-5; SAC ¶ 126.)  Mayo 
billed the transport as ALS instead of BLS.  (SAC ¶ 126.)                 

Patient LS-5 was found on the floor not making sense and reported experiencing 
weakness.  (Sertich Decl. ¶ 10, Ex. 9 at 5.)  An ALS crew was dispatched to respond to 
the call, consisting of one Paramedic and one EMT-Basic.  (Id. at 2.)  Dispatch marked 
the call type as “BLS.”  (Id.)  Upon arriving at the scene, the EMT-Basic performed an 


3    Mayo contends that it is inappropriate for the Court to infer from the records that 
an EMT-Basic conducted the assessment when an assessment is listed as “By” an EMT-
Basic.  (Doc. No. 84 at 29.)  Further, Mayo asks the Court to infer the opposite:  that the 
crew member listed after “By” is only the one who documented the services, not the one 
who performed the services.  (Id.)  The Court rejects this argument.  All inferences must 
be drawn in the light most favorable to the complainant at this stage.  The inference that 
an EMT-Basic conducted the assessment is a reasonable inference based on the facts. 
assessment of the patient.  (Id. at 3.)  No ALS interventions were conducted during the 
call.  (Id. at 4-5; SAC ¶ 127.)  Mayo billed the transport as ALS instead of BLS.  (SAC 
¶ 127.)                                                                   

IV.   This Case                                                           
Mothershed brings this qui tam action on behalf of the United States of America 
and the State of Minnesota against Mayo under the federal False Claims Act (“FCA”) and 
the Minnesota False Claims Act (“MFCA”).  (SAC ¶ 1.)  She brings four counts, two 
under the FCA and two under the MFCA,4 all based on the three schemes outlined above.  

The United States of America and the State of Minnesota declined to intervene in this 
action.  (Doc. No. 25.)  Mayo now moves to dismiss Mothershed’s second amended 
complaint under Federal Rule of Civil Procedure 12(b)(6).  (Doc. No. 74.) 
                      DISCUSSION                                     
I.   Legal Standard                                                       

A.   Motion to Dismiss Under Rule 12(b)(6)                           
In deciding a motion to dismiss pursuant to Federal Rule of Civil    
Procedure 12(b)(6), a court assumes all facts in the complaint to be true and construes all 
reasonable inferences from those facts in the light most favorable to the complainant.  
Morton v. Becker,

793 F.2d 185, 187

 (8th Cir. 1986).  In doing so, however, a court need 

not accept as true wholly conclusory allegations, Hanten v. Sch. Dist. of Riverview 

4    Because the MFCA mirrors the FCA, the Court analyzes all counts under the FCA.  
See Olson v. Fairview Health Servs. of Minn.,

831 F.3d 1063

, 1069 n.6 (8th Cir. 2016).  
Count 3 mirrors Count 1, so the Court analyzes them together.  Count 4 mirrors Count 2, 
so the Court analyzes them together.                                      
Gardens,

183 F.3d 799

, 805 (8th Cir. 1999), or legal conclusions drawn by the pleader 
from the facts alleged, Westcott v. City of Omaha,

901 F.2d 1486, 1488

 (8th Cir. 1990).   
To survive a motion to dismiss, a complaint must contain “enough facts to state a 

claim to relief that is plausible on its face.”  Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570

 
(2007).  Although a complaint need not contain “detailed factual allegations,” it must 
contain facts with enough specificity “to raise a right to relief above the speculative 
level.”

Id. at 555

.  As the Supreme Court reiterated, “[t]hreadbare recitals of the elements 
of a cause of action, supported by mere conclusory statements,” will not pass muster 

under Twombly.  Ashcroft v. Iqbal,

556 U.S. 662, 678

 (2009) (citing Twombly,

550 U.S. at 555

).  In sum, this standard “calls for enough fact[s] to raise a reasonable expectation 
that discovery will reveal evidence of [the claim].”  Twombly,

550 U.S. at 556

. 
A court may consider the complaint, matters of public record, orders, materials 
embraced by the complaint, and exhibits attached to the complaint in deciding a motion 

to dismiss under Rule 12(b)(6).  Porous Media Corp. v. Pall Corp.,

186 F.3d 1077, 1079

 
(8th Cir. 1999).  The parties disagree about the scope of this rule.  Generally, “materials 
embraced by the complaint include ‘documents whose contents are alleged in a complaint 
and whose authenticity no party questions, but which are not physically attached to the 
pleadings.’”  Zean v. Fairview Health Servs.,

858 F.3d 520, 526

 (8th Cir. 2017) (quoting 

Ashanti v. City of Golden Valley,

666 F.3d 1148, 1151

 (8th Cir. 2012)).  This includes 
matters that are “integral to the claim.”  Miller v. Redwood Toxicology Lab., Inc.,

688 F.3d 928

, 931 n.3 (8th Cir. 2012) (quoting 5B Charles Alan Wright & Arthur R. 
Miller, Federal Practice and Procedure § 1357 (3d ed. 2004)).  The Court finds that all 
patient records and email communications described or alluded to in the complaint are 
embraced by the complaint.  The Court may rely upon these records as it sees fit without 
converting this motion into a motion for summary judgment.                

B.   Pleading Standard Under Rule 9(b)                               
In addition, because Mothershed brings her claims under the FCA, her complaint 
must meet the heightened pleading standard under Rule 9(b).  United States ex rel. 
Dunn v. N. Mem’l Health Care,

739 F.3d 417, 419-20

 (8th Cir. 2014).  Rule 9(b) requires 
that a party pleading fraud or mistake do so with “particularity.”  This heightened 

pleading standard does not extend to mental conditions such as intent or knowledge.  
Fed. R. Civ. P. 9(b).  Instead, mental conditions “may be alleged generally.”

Id.

 
To satisfy Rule 9(b), a complaint must plead the “who, what, when, where, and 
how” of the alleged fraud.  Freitas v. Wells Fargo Home Mortg., Inc.,

703 F.3d 436, 439

 
(8th Cir. 2013) (quoting Summerhill v. Terminix, Inc.,

637 F.3d 877, 880

 (8th Cir. 2011)).  

When a complaint alleges a systematic practice under the FCA, as Mothershed has in this 
case, there are two ways in which a relator can meet this standard.  The traditional 
method is pleading “some representative examples of [the defendant’s] alleged fraudulent 
conduct, specifying the time, place, and content of [the defendant’s] acts and the identity 
of the actors.”  United States ex rel. Thayer v. Planned Parenthood of the Heartland,

765 F.3d 914, 917

 (8th Cir. 2014) (alterations in original) (quoting United States ex rel. 
Joshi v. St. Luke’s Hosp., Inc.,

441 F.3d 552, 557

 (8th Cir. 2006)).  Under the second 
method, as described in Thayer, “a relator can satisfy Rule 9(b) 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.’”

Id.

 (quoting United States ex rel. 
Grubbs v. Kanneganti,

565 F.3d 180, 190

 (5th Cir. 2009)).  The Thayer method applies to 
a narrow category of cases where the relator can show familiarity with particular details 

of the alleged scheme.

Id.

31 U.S.C. § 3729

(a)(1)(A), a party must show:  “(1) the 
defendant made a claim against the United States; (2) the claim was false or fraudulent; 

and (3) the defendant knew the claim was false or fraudulent.”  Olson,

831 F.3d at 1070

 
(quoting United States v. Basin Elec. Power Coop.,

248 F.3d 781

, 803 (8th Cir. 2001)).  
The knowledge element may be met by showing that a person (1) “has actual knowledge 
of the information,” (2) “acts in deliberate ignorance of the truth or falsity of the 
information,” or (3) “acts in reckless disregard of the truth or falsity of the information.”

31 U.S.C. § 3729

(b)(1)(A).  Deliberate ignorance covers “defendants who are aware of a 
substantial risk that their statements are false, but intentionally avoid taking steps to 
confirm the statements’ truth or falsity.”  United States ex rel. Schutte v. SuperValu Inc.,

598 U.S. 739, 751

 (2023).  Reckless disregard covers “defendants who are conscious of a 
substantial and unjustifiable risk that their claims are false, but submit the claims 

anyway.”

Id.

  The knowledge element does not require proof of specific intent to 
defraud.

31 U.S.C. § 3729

(b)(1)(B).                                      
There are two categories of falsity under the FCA:  factually false and legally 
false.  Olson v. Fairview Health Servs. of Minn., No. 13-cv-2607,

2015 WL 1189823

, 
at *7 (D. Minn. Mar. 16, 2015).  Factually false claims are those where the defendant 

submits “an incorrect description of goods or services provided or a request for 
reimbursement for goods or services never provided.”

Id.

 (quoting Mikes v. Straus,

274 F.3d 687, 697

 (2d Cir. 2001)).  Legally false claims are those “where a party certifies 
compliance with a statute or regulation as a condition to governmental payment.”

Id.

 
at *8 (quoting Mikes,

274 F.3d at 697

).  This kind of false certification can be express or 
implied.

Id.

Mothershed’s three theories appear to fit into the factually false category.
(See SAC ¶¶ 6, 218, 236.)

31 U.S.C. § 3729

(a)(1)(B), a party must show:  “(1) the 
defendant made a ‘false record or statement’; (2) the defendant knew the statement was 

false; (3) the statement was material; and (4) the defendant made a ‘claim’ for the 
government to pay money or forfeit money due.”  United States ex rel. Miller v. Weston 
Educ., Inc.,

840 F.3d 494, 500

 (8th Cir. 2016).  A claim under this section of the FCA 
differs from the previous section because it requires the making of a false statement or 
record that is subsequently submitted as part of a false claim.           

Mayo argues that Mothershed’s claims under this section of the FCA and MFCA 
fail for the same reasons as Counts 1 and 3, but also because Mothershed did not 
sufficiently allege the existence of a separate “false record or statement” and these counts 
are entirely duplicative of Counts 1 and 3.  (Doc. No. 84 at 8-9.)  The Court agrees that 
Mothershed fails to sufficiently allege a separate false record or statement and, moreover, 

Counts 2 and 4 are completely duplicative of Counts 1 and 3.              
The “false record or statement” requirement of § 3729(a)(1)(B) means that there is 
a separate false record or statement that is distinct from the false claim itself.  See, e.g., 
United States ex rel. Oliver v. Parsons Corp.,

498 F. Supp. 2d 1260

, 1278 n.20 (C.D. 
Cal. 2006); see also United States ex rel. Strubbe v. Crawford Cnty. Mem’l Hosp.,

915 F.3d 1158, 1166

 (8th Cir. 2019) (describing that there must be a connection between 
the false record or statement and the false claim made to the government).  Mothershed 
does not particularly allege what the separate false record or statements would be in this 
case, and instead makes general statements that the billing forms count as false records or 
statements, as well as “false supporting materials,” “internal billing forms,” and “false 
certifications.”  (See SAC ¶¶ 229, 233.)  The billing forms submitted to government 
healthcare payors for reimbursement are the false claims themselves, so Mothershed must 

allege, with particularity, a separate false record or statement.  She does not explain what 
she means by supporting materials or false certifications.  Internal billing forms could 
perhaps refer to the RescueNet software, however, she does not make this clear.  This is 
not sufficient pleading under Rule 9(b).                                  
Furthermore, these two counts are entirely duplicative of Counts 1 and 3.  The 

D.C. Circuit has explained that § 3729(a)(1)(B) is “designed to prevent those who make 
false records or statements to get claims paid or approved from escaping liability solely 
on the ground that they did not themselves present a claim for payment or approval.”  
United States ex rel. Totten v. Bombardier Corp.,

380 F.3d 488, 501

 (D.C. Cir. 2004); see 
also United States ex rel. Brooks v. Stevens-Henager Coll.,

305 F. Supp. 3d 1279, 1305-06

 (D. Utah 2018) (“The primary purpose of § 3729(a)(1)(B) is to remove any 
defense that the defendant did not personally submit, or cause to be submitted, a false 
claim for payment.”).  Mothershed has not alleged any facts suggesting that Mayo could 
escape liability under § 3729(a)(1)(A) through this type of defense.  Therefore, the Court 
finds that Counts 2 and 4 are entirely duplicative and dismisses them without prejudice.

ORDER

Based upon the foregoing and the record in this case, IT IS HEREBY   
ORDERED that Defendant Mayo Clinic Ambulance’s motion to dismiss (Doc. No. [74]) 
is GRANTED IN PART and DENIED IN PART as follows:                         
1.   Defendant’s motion is GRANTED as to Counts 2 and 4 of the Second 
Amended Complaint.                                                        
2.   Counts 2 and 4 of the Second Amended Complaint are DISMISSED    

WITHOUT PREJUDICE.                                                        
3.   Defendant’s motion is GRANTED as to Counts 1 and 3 under a theory of 
falsity on medical necessity.                                             
4.   Defendant’s motion is otherwise DENIED.  Counts 1 and 3 remain in this 
action based on Relator’s other two theories.                             


Dated:  January 24, 2025      s/Donovan W. Frank                          
                         DONOVAN W. FRANK                            
                         United States District Judge

Reference

Status: Unknown