                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           OCT 31 2016
                     UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES ex rel. JULIA                      No.   14-56816
ZEMAN,
                                                 D.C. No.
              Plaintiff-Appellant,               2:11-cv-05755-DDP-MRW

 and
                                                 MEMORANDUM*
UNITED STATES OF AMERICA,

              Plaintiff,

 v.

UNIVERSITY OF SOUTHERN
CALIFORNIA, DBA USC University
Hospital,

              Defendant-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                    Dean D. Pregerson, District Judge, Presiding

                      Argued and Submitted October 21, 2016
                               Pasadena, California




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: TALLMAN, PARKER,** and CHRISTEN, Circuit Judges.

      Julia Zeman appeals the district court’s order dismissing with prejudice her

qui tam action alleging claims under the False Claims Act against the University of

Southern California, d/b/a USC University Hospital (“USC”). Zeman alleges that

USC was “double billing” for overhead costs and, therefore, was presenting false

or fraudulent claims to Medicare. The government declined to intervene, the case

was unsealed, and Zeman proceeded on her complaint. The district court granted,

with leave to amend, two of USC’s previous motions to dismiss for failure to state

a claim. Its third such motion was denied, and the case moved forward to

discovery. Following Zeman’s introduction of a new claim during discovery—that

USC did not meet the exception for “provider-based status” justifying billing for

“facility charges”—the district court granted USC’s motion for summary judgment

and denied Zeman’s request for leave to amend her complaint. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      While the district court did not thoroughly address Zeman’s “double billing”

theory, the record supports the district court’s grant of summary judgment in favor

of USC. See Detrich v. Ryan, 740 F.3d 1237, 1248 (9th Cir. 2013) (en banc) (“In



      **
             The Honorable Barrington D. Parker, Jr., United States Circuit Judge
for the U.S. Court of Appeals for the Second Circuit, sitting by designation.
                                         2
cases where there is little doubt about the correct answer, we will sometimes

decide an issue in the first instance rather than remand to the district court.”).

Medicare allows hospitals to bill for facility fees without violating the “90 day

global surgery rule.” See Medicare Claims Processing Manual ch. 6, § 20.1.1.2.

Further, Medicare expects overhead expenses to be higher in hospital outpatient

departments compared to those in physicians’ offices because hospitals can furnish

comprehensive health care services more regularly and have additional legal

obligations. See 78 Fed. Reg. 43282, 43296 (July 19, 2013). Thus, not only was

USC allowed to charge for facility fees, Medicare expected Zeman’s cost of care to

increase once she began receiving services from USC’s hospital. There is no

evidence the additional billing was fraudulent and, therefore, summary judgment

was appropriate.

      Summary judgment was also appropriate with respect to Zeman’s claim that

USC did not meet the requirements for “provider-based status” under 42 C.F.R. §

413.65. In so holding, we need not reach whether Zeman provided sufficient

notice of this claim during discovery under Coleman v. Quaker Oats Co., 232 F.3d

1271, 1294 (9th Cir. 2000), as we find that Zeman provided no evidence of such a

violation. See Sec. Life Ins. Co. of Am. v. Meyling, 146 F.3d 1184, 1190 (9th Cir.

1998) (stating that a court “can affirm on any ground supported by the record”).


                                            3
      While Zeman alleges that USC failed to correctly code services, integrate

medical records, and publicly promote USC’s acquisition of the hospital, these

claims also lack support. First, it is clear that the radiology clinic was not hospital-

licensed at the time of the contested services. Therefore, the services were

correctly coded as being provided by a physician’s office. Second, medical

services and records were integrated among the orthopedic clinic, the surgery

clinic, and the hospital as required. Additionally, the records requested by Zeman

during this litigation were in the custody of USC Care Medical Group, Inc., an

independent physicians’ group.1 USC was not required to merge with this group to

satisfy the integration requirement and did in fact provide all records from the

clinics once they were acquired and in hospital custody. Third, public awareness

measures were in place, and USC provided undisputed evidence that the clinics

were adequately presented to the public as part of the hospital. The record

therefore demonstrates that USC met provider-based requirements and was entitled

to summary judgment.

      Finally, the district court did not abuse its discretion in denying Zeman’s

third request for leave to amend. See Cafasso, U.S. ex rel. v. Gen. Dynamics C4


      1
            This argument was not presented to the district court and is therefore
waived. See Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th Cir. 1992).
However, even if preserved, it is denied on the merits.
                                            4
Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) (standard of review). While district

courts should freely grant leave to amend, their discretion to deny such a request is

“particularly broad where [the] plaintiff has previously amended the complaint.”

Id. (quoting Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir.

1989)). Here, Zeman was given two prior opportunities to amend her complaint.

Additionally, the litigation had been ongoing for three years at the time of

summary judgment, providing Zeman with ample time to refine her pleadings.

Finally, since no evidence of a provider-based violation has been presented, any

amendment would surely be futile. Thus, the district court correctly dismissed

Zeman’s complaint without leave to amend.

      Each party shall bear its own costs.

      AFFIRMED.




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