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McKoy v. Uliss

United States District Court, E.D. New York

July 11, 2017

CHANDRA MCKOY, Plaintiff,
v.
ALAN E. ULISS and ALAN E. ULISS M.D., P.C., Defendants.

          MEMORANDUM DECISION AND ORDER

          Brian M. Cogan, District Judge.

         This is an action under the False Claims Act, 31 U.S.C. § 3729, et seq. (“FCA”), and its state law counterpart, the New York False Claims Act, N.Y. State Fin. L. § 187, et seq. (“NYFCA”), in which plaintiff claims that defendants Alan. E. Uliss (“Dr. Uliss”), an ophthalmologist, and Alan E. Uliss M.D., P.C. (“Uliss P.C.”), a Professional Corporation owned by Dr. Uliss, terminated her in retaliation for her efforts to stop defendants' alleged fraudulent and unlawful conduct relating to improper billing practices.

         Plaintiff initially sought to pursue a qui tam action, but after both the United States and New York State governments declined to intervene, plaintiff filed an amended complaint dropping the qui tam action and only asserting FCA and NYFCA retaliation claims. Plaintiff, who was fired from her position with defendants, seeks reinstatement to the position that she would have had but for defendants' retaliation, with all fringe benefits and seniority rights, back pay, and actual damages, plus attorneys' fees and costs. She also seeks an injunction against defendants prohibiting them from any further violation of the FCA.

         Dr. Uliss has moved to dismiss plaintiff's amended complaint as to him under Federal Rule of Civil Procedure 12(b)(6) on the ground that neither the FCA nor the NYFCA provide for individual liability. He is correct, and his motion is granted.

         BACKGROUND

         The following allegations are taken from plaintiff's amended complaint and are presumed true for purposes of this motion.

         Plaintiff Chandra McKoy worked for Uliss P.C. as a medical biller for approximately fourteen months prior to being fired by Dr. Uliss. She alleges that Uliss P.C. fraudulently billed its patients for “each and every” ophthalmologic consultation attended. She also claims that Uliss P.C. regularly violated Medicare and Medicaid's legal requirements by submitting bills for reimbursement that either: (1) were for medical services that were never performed or unnecessarily performed; or (2) exaggerated the extent of services provided; or (3) charged certain services as “unbundled” services when they are required to be billed together. She claims that Dr. Uliss falsified records in order to cover up these practices, and that she was fired for trying to prevent him from continuing these fraudulent practices.

         Plaintiff alleges that even though there were two doctors employed by Uliss P.C. - Dr. Uliss and another part-time doctor - all patients were billed under Dr. Uliss' name. Plaintiff claims that on numerous occasions, Dr. Uliss had instructed her to include false information on the patient's Health Care Financing Administration (HCFA) form, which is submitted to Medicare and Medicaid for reimbursement, but she refused to follow his instruction and filled out the form correctly. According to plaintiff, after she inputted the correct information into the HCFA form, Dr. Uliss would make fraudulent and illegal changes, certify that the information was true, and then instruct plaintiff to submit the altered HCFA forms for reimbursement. Further, plaintiff claims that Dr. Uliss falsely certified to Medicare that Uliss P.C. was fully compliant with Medicare's Electronic Health Record (“EHR”) incentive program, but in reality he was only using this program for approximately half of his patients.

         Plaintiff claims that she told Dr. Uliss on numerous occasions that what he was doing was wrong and that, despite his instructions to the contrary, she always refused to falsify records as Dr. Uliss had desired. Plaintiff also claims that she frequently argued with Dr. Uliss about his false certification of compliance with Medicare's EHR program.

         As a result of plaintiff's complaints, in early November 2014, Dr. Uliss “froze her out” from any involvement in the EHR program and generally refused to talk to her. A few weeks later, Dr. Uliss called plaintiff into a meeting and fired her. Dr. Uliss did not criticize plaintiff's performance in the meeting. Rather, all that he said was he was “tired of billing on Sundays, ” which plaintiff alleges was a reference to Dr. Uliss having to alter and falsify the HCFA billing forms that plaintiff filled out correctly. Thus, plaintiff claims that she was fired due to her opposition and attempt to prevent Dr. Uliss from continuing his fraudulent billing practices.

         DISCUSSION

         Dr. Uliss seeks to dismiss the complaint against him as an individual defendant. Dr. Uliss argues that plaintiff cannot state a retaliation claim against him personally because there is no individual liability for retaliation under § 3730(h) of the FCA or § 191 of the NYFCA; only employers may be held liable for retaliation claims. Therefore, according to Dr. Uliss, because Uliss P.C. is plaintiff's employer, only it may be held liable. Plaintiff disagrees, and advances the following arguments in support of her claim that Dr. Uliss may liable in this case: (1) Dr. Uliss may be personally liable because the 2009 amendments to the FCA imposed individual liability on employees for retaliation; and (2) alternatively, even if the Court finds that there is no individual liability for retaliation, Dr. Uliss may still be liable because he qualifies as an employer under the FCA. According to plaintiff, because Dr. Uliss dominated and controlled Uliss P.C. and hired, supervised, and fired plaintiff, both Dr. Uliss and Uliss P.C. were plaintiff's employer.

         Dr. Uliss is correct that there is no individual liability for retaliation under § 3730(h) or § 191. See Krause v. Eihab Human Servs, Inc., No. 10 CV 898, 2015 WL 4645210, at *1 (E.D.N.Y. Aug. 4, 2015) (“Courts in this Circuit have repeatedly held that there is no individual liability under the FCA and the New York FCA.”); Monsour v. N.Y. State Office for People with Developmental Disabilities, No. 1:13-CV-0336, 2014 WL 975604, at *10 (N.D.N.Y. March 12, 2014) (“[A]n individual may not be sued under § 3730(h) or Section 191, either in an individual or official capacity; liability may only be imposed on employers.”); Aryai v. Forfeiture Support Assocs., 25 F.Supp.3d 376, 387 (S.D.N.Y. 2012) (“[S]ection 3730(h) does not provide a cause of action against individual defendants . . . .”); Fisch v. New Heights Acad. Charter Sch., No. 12 CIV. 2033, 2012 WL 4049959, at *4 (S.D.N.Y. Sept. 13, 2012) (“Section 3730(h) imposes liability only on employers.”).

         Plaintiff's argument that an amendment to § 3730(h) in 2009 imposed individual liability on employees for retaliation is not persuasive. Prior to the 2009 amendment, § 3730(h) read as follows: “Any employee who is discharged . . . by his or her employer because of lawful acts done by the employee on behalf of the employee or others in furtherance of an action under this section . . . shall be ...


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