Conte v. Kingston NH Operations LLC

585 F.Supp.3d 218

Nicole CONTE, Plaintiff,

v.KINGSTON NH OPERATIONS LLC, Defendant.

1:20-CV-0647 (GTS/CFH)

United States District Court, N.D. New York.

Signed February 7, 2022

ROBERT W. SADOWSKI, ESQ., SADOWSKI KATZ LLP, Counsel for Plaintiff, 800 Third Avenue, 28^th Floor, New York, NY 10004.

DOVE BURNS, ESQ., STACEY PITCHER, ESQ., OBERMAYER REBMANN MAXWELL & HIPPEL, LLP, Counsel for Defendant, 9 East 40^th Street, 4^th Floor, New York, NY 10016.

DECISION and ORDER

GLENN T. SUDDABY, Chief United States District Judge

Currently before the Court, in this qui tam action filed by Nicole Conte ("Plaintiff" or the "Relator") against Kingston NH Operations LLC ("Defendant"), is Defendant's motion to dismiss Plaintiff's Complaint for failure to state a claim pursuant to Fed R. Civ. P. 12(b)(6). (Dkt. No. 22.) For the reasons set forth below, Defendant's motion is granted.

I. RELEVANT BACKGROUND

A. Plaintiff's Complaint

Generally, in her Complaint, Plaintiff asserts seven claims against Defendant: (1) a claim for presenting false claims for payment under the False Claims Act (the "FCA"), 31 U.S.C. § 3729(a)(1)(A) ; (2) a claim for the use of false statements under the FCA, 31 U.S.C. § 3729(a)(1)(B) ; (3) a claim for presenting false claims for payment under the New York False Claims Act (the "NYFCA"), codified at Finance Law § 189(1)(a); (4) a claim for the use of false statements under the NYFCA, codified at Finance Law § 189(1)(b); (5) a claim for retaliation in violation of 31 U.S.C. § 3730(h) ; (6) a claim for retaliation in violation of New York Finance Law § 191; and (7) a claim for retaliation in violation of New York Labor Law § 741. (Dkt. No. 1 [Pl.’s Compl.].)

Generally, in support of these claims, Plaintiff alleges as follows. Defendant operates Ten Broeck Center ("TBC") for Rehabilitation and Care in Lake Katrine, New York. (Id. at 2.) TBC is a for-profit healthcare facility that offers rehabilitation and long-term nursing care. (Id. ) Specifically, TBC provides its residents with nursing and subacute rehabilitative clinical services, "including post-operative subacute care, 24-hour skilled nursing [care], long-term care, physical, occupational and speech therapies seven days per week." (Id. ) TBC's residents include Medicaid and Medicare beneficiaries, which allows for TBC to submit claims seeking payment to both Medicaid and Medicare. (Id. )

Medicaid is a health care program that provides health insurance to the indigent, blind, disabled, and indigent families with dependent children. (Id. at 8.) Medicaid is administered by the Centers for Medicare and Medicaid ("CMS") at the federal level; at the state level, Medicaid is administered by a state-specific agency. (Id. ) Under federal law, states can expend funds on behalf of Medicaid beneficiaries to pay for goods and services, including (a) drugs, (b) hospital services, (c) physicians’ services, and (d) rehabilitation and long-term nursing services. (Id. at 8-9.)

On June 19, 2019, Plaintiff was hired as a Talent Acquisition and Onboarding Coordinator at TBC. (Id. at 5.) In this role, Plaintiff was responsible for overseeing the recruitment and hiring process of new nursing employees (including Certified Nursing Assistants, Licensed Practical Nurses, and Registered Nurses), managing the onboarding and development of new nursing staff, and submitting background checks of all new employee hires.¹ (Id. ) During the COVID-19 pandemic, Plaintiff's ordinary responsibilities changed so as to include tasks such as arranging for TBC's nursing staff to be fitted for N95 masks, and updating patients’ families by posting pictures and videos of residents (with their consent) to TBC's Facebook website. (Id. )

At some point, Plaintiff informed TBC's administration that the facility should implement basic safety and protective procedures. (Id. at 12.) In response, TBC's employees were supplied with paper masks, but were not given "meaningful education or training as how to [properly] use them." (Id. ) Initially, TBC's administration instructed Plaintiff to schedule N95 mask-fitting appointments for only TBC's nursing staff, and not for its housekeeping staff, nutrition staff, and other employees who had regular contact with TBC residents. (Id. at 13.) Before COVID-19 being detected in any of TBC's residents, Plaintiff witnessed TBC staff incorrectly donning their paper masks (i.e., not covering their nose), and notified TBC's Administrator, Katie Perez ("Ms. Perez"), of this noncompliance.² (Id. at 14.) Ms. Perez did not act on the information being relayed to her by Plaintiff.³ (Id. )

On April 24, 2020, the first case of COVID-19 was confirmed at TBC. (Id. at 13.) Soon after, Plaintiff asked TBC's Director of Nursing, whether all 350 of TBC's employees needed to be fit for N95 masks—to which TBC's Director of Nursing answered in the affirmative. (Id. ) This process required TBC employees be fitted for masks at an off-site location, which often occurred at medical clinics and urgent care centers located throughout the region. (Id. ) As a result, this process proved to be extremely time consuming and tedious. (Id. ) To expedite having all TBC employees be fit for an N95 mask, on numerous occasions Plaintiff requested assistance from TBC's Director of Human Resources, Meaghan Cragan ("Ms. Cragan"), to no avail. (Id. at 13-14.)

At some point, Plaintiff contacted an outside company that was willing to come into the facility and take N95 mask measurements for all TBC employees. Plaintiff sought Ms. Perez's approval for the on-site mask fitting. (Id. at 14.) Ms. Perez approved Plaintiff's plan for on-site mask fitting, but instructed Plaintiff to exclude the dietary department employees from the group of employees to be fit for masks.⁴ (Id. )

After COVID-19 was detected at TBC, Ms. Perez instructed Plaintiff to obtain approval from her before posting any picture or video to TBC's Facebook account.⁵ (Id. at 15.) Eventually, the family members of TBC residents began to express concern regarding the health and safety protocols and precautions being implemented at the facility. (Id. at 16.) Ms. Perez instructed Plaintiff to write private responses to each inquiry informing family members that TBC was taking all necessary precautions to prevent the spread of COVID-19.⁶ (Id. )

On April 19, 2020, Ms. Perez informed TBC employees that three residents had tested positive for COVID-19. (Id. at 17.) After learning that COVID-19 had been detected at TBC, family members of TBC residents began to publicize that fact on various Facebook account pages. (Id. at 18.) Nonetheless, Ms. Perez continued to downplay the severity of the situation that was unfolding at TBC. (Id. ) On April 20, 2020, TBC distributed unfitted N95 to all of its employees. (Id. at 17.) That same day, Plaintiff began to work remotely from her home. (Id. ) By April 24, 2020, thirty (30) TBC residents had tested positive. (Id. at 18.)

On April 25, 2020, Ms. Perez requested that Plaintiff begin to work on improving TBC's public relations by providing news sources with pictures and videos that Ms. Perez had approved. (Id. ) On April 26, 2020, Plaintiff spoke with Ms. Perez through text message. (Id. ) Their conversation covered topics including masking, posting pictures and videos on TBC's Facebook account, COVID-19 positivity rate among TBC residents, what should have been done to prevent the transmission of COVID-19 within the facility, and the disciplinary action that TBC should impose on its employees who did comply with proper health and safety precautions such as mask-wearing and social distancing. (Id. ) Ms. Perez denied that anything could have been done to prevent the increased COVID-19 positivity rate among TBC residents, and took offense to Plaintiff discussing it. (Id. ) On April 20, 2020, TBC arranged for a cleaning company to enter and disinfect the facility for the first time since the COVID-19 pandemic had begun. (Id. at 22.)

Plaintiff did not work on April 27, 2020 and April 28, 2020, and decided to use sick time. (Id. at 18.) On April 28, 2020, Ms. Cragan requested that Plaintiff drop-off her work-issued laptop at TBC, so that other TBC employees could use it. (Id. at 19.) On April 28, 2020, Plaintiff wrote a letter to Ms. Perez outlining her concerns, complaints, and failures.⁷ (Id. at 20.) On April 29, 2020, Plaintiff was unable to log onto TBC's server and was also unable access her email account from her mobile phone. (Id. at 18.) Ms. Cragan informed Plaintiff that the TBC server was encountering technical difficulties. (Id. ) On April 30, 2020, Plaintiff learned that a shared password-protected document had been created that contained a list of TBC employees who had tested positive for COVID-19. (Id. at 19.) However, Plaintiff was not given access to this document. (Id. ) Ms. Cragan informed Plaintiff she was not given access to the document because it contained confidential information. (Id. at 19-20.)

On May 1, 2020, Plaintiff determined she had been locked out from accessing any TBC resident information, COVID-19 related information, and TBC's Facebook account. (Id. at 20.) Upon logging onto the TBC server, Plaintiff discovered that her saved Internet history and passwords had been erased. (Id. )

At some point, Ms. Cragan instructed Plaintiff to not contact her through text messaging in the future. (Id. ) Soon after, Plaintiff was able to access the server; however, her access was limited to information unrelated to COVID-19. (Id. ) As a result of Defendant's failure to provide its employees with proper personal protective equipment ("PPE"), failure to instruct its employees how to use the PPE, and the lack of enforcement of state-issued mask mandates and social distancing, numerous news reports and media outlets publicized the number of COVID-19 cases and deaths among TBC residents. (Id. )

On May 4, 2020, Plaintiff received a letter terminating her employment with Defendant. (Id. at 22.) The letter contained ...