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: Virginia Qui Tam Law

The Maryland House of Delegates hears testimony on the Maryland False Health Claims Act of 2010

By Zachary A. Kitts

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Today the Maryland House of Delegates heard testimony on the Maryland False Health Claims Act of 2010. WBAL's Channel 11 News covered the story, including a quote from yours truly.

The House Committee heard the testimony of three panels who supported the legislation. The first panel was led by Lieutenant Governor Anthony Brown, and the heads of several Maryland agencies. All testified enthusiastically in support of the bill, which is one of Governor O'Malley's primary legislative goals this year.

The second and third panels consisted of qui tam lawyers in private practice and several healthcare providers. The second panel consisted of Pat O'Connell (who is a former Assistant Attorney General in Texas), Dan Miller (who formerly led the Delaware Medicaid Fraud Control Unit), and Jeb White (CEO and President of Taxpayers Against Fraud). Finally, Peter Chatfield (from Phillips & Cohen) and I closed out the favorable testimony.

Importantly, the second and third panels each contained an actual, bona-fide healthcare provider who spoke in favor this legislation. I have always been of the opinion that most healthcare providers are honest, and that the dishonest few enjoy an unfair competitive advantage over everyone else. Personally, I would have a big problem with that if I were a healthcare provider, and I would think other healthcare professionals would agree.

The simple fact is that false claims act legislation levels the competitive playing field between the dishonest few and the vast majority of providers who are law-abiding. I only wish more healtcare providers understood that.

Overall, while the Senate seemed more favorably inclined towards our testimony a couple of weeks ago, I think the House Committee was receptive.

Several Delegates brought up the topic of a full Maryland False Claims Act, instead of a healthcare-only bill. Needless to say, I found their logic compelling.

I do find it troubling that the House appeared so open to the idea of amending HB-525. Given that one of the major goals of this whole thing is to get the statute approved under the Deficit Reduction Act of 2005 (and thus qualify Maryland for an extra 10% of Medicaid fraud recoveries), it makes no sense at all (at least to me) to start cutting stuff out of the statute, adding "improved" provisions, and so forth.

In the first place, a legislature should never try to reinvent the wheel, especially in an area of law in which they have absolutely zero experience. Such efforts are almost certain to result in a disaster, and of course the healthcare proponents know that. Their goal, of course, is to change the statute such that it fails to get approval under the DRA of 2005.

If the law fails to get DRA approval, it quite simply will not have the same dramatic effect on Maryland's healthcare budget. Then, in a couple of years, the healthcare people can come back to the legislature and say "You see, we told you this wouldn't work. Let's just get rid of this nuisance law."

To me, Virginia's approach makes the most sense--we copied the federal False Claims Act word for word, with the only difference being that in Virginia complaints must remain under seal for a period of 120 days instead of 60 days. (The only reason we made that one change was because most Virginia courts are reluctant to grant continuances as a general rule.)

If you copy the federal False Claims Act word for word, there is no doubt about your law passing muster under the DRA. But there is another very important reason to do this, in my opinion. Namely, when you copy a federal statute word for word, you send an important message to your state judiciary about your intentions with this piece of legislation, because you incorporate the 147 year history of the federal False Claims Act.
Without the clear guidance that comes from 147 years of case law, you run a greater risk of having a state court make bad law, especially in the early stages.

I would like to thank Lt. Gov. Brown and his staff, as well as Inspector General Tom Russell and his staff for all of the hard work they have put into this--and make no mistake about it, they have worked very hard. If we get the law passed in Maryland this year, it will be because of them.

Notice I say "if it passes this year" because I now have no doubt that eventually every one of the 50 states will have a state false claims act, including Maryland. If the law does not pass this year, the question is not whether Maryland will ever have a false claims act, but rather how much money will be lost before she does.

Full post as published by Virginia Qui Tam Law on March 10, 2010 (boomark / email).