United States District Court, E.D. New York
MEMORANDUM DECISION AND ORDER
M. Cogan, District Judge.
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.
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.
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
following allegations are taken from plaintiff's amended
complaint and are presumed true for purposes of this motion.
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
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
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.
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.
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
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
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 ...