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An Open Letter to Bob McDonnell and Ken Cuccinelli (as well as all other Potential 2009 Candidates for Attorney General of Virginia)

Now that Senator Cuccinelli (R-Fairfax) has announced his intentions to run for Attorney General of the Commonwealth next year, I figured the time was right for this open letter.   

Sen. Cuccinelli has a sterling opportunity before him to embrace the Virginia Fraud Against Taxpayers Act and make it part of his campaign.  While Bob McDonnell has silently taken steps to support and strengthen the VFATA and the world-class attorneys in his office that prosecute these matters, he has failed to accept the credit for it publicly for reasons that escape me. 

Since taking office as Attorney General, Bob McDonnell has improved upon a Medicaid Fraud Control Unit that was already first-class.  The OAG obtained approval for the Virginia Fraud Against Taxpayers Act from the United States Department of Health and Human Services Office of the Inspector General, thus qualifying Virginia to relieve an additional 10% of the recoveries from all Medicaid fraud prosecutions.  See my previous post: The Deficit Reduction Act of 2005 and the Virginia Fraud Against Taxpayers Act: One Year Anniversary.     

On Bob McDonnell’s watch, Virginia has recovered literally hundreds of millions of dollars using the VFATA, and before his term is out the number will probably have a “b” after it (i.e., a billion dollars).   

So why, with his campaign for Governor in full swing and with the Commonwealth pressed for money in this economic downturn, has McDonnell not been talking about the VFATA?  I can’t ever remember a politician before Bob McDonnell who failed to take credit for his work, especially when he or she was seeking election to a higher office.   

There have been mentions, of course.  An excellent /files/116785-109034/CVS_Settlement_Agreement.pdf”>settlement with CVS Pharmacy on the order of $37 million dollars, of which more than $15 million went to several states.  One of these states was Virginia.

Press releases by the various state Attorney Generals indicated that Kentucky relieved $1.36 million; California received $3.4 million; and Massachusetts received $3.7 million. States without a False Claims statute certified by the HHS Office of the Inspector General received the following: North Carolina, $900,000; Missouri, $929,987, and Maryland, $830,490.

Noticeably missing from the list is Virginia.  On the day the CVS settlement was announced, most state AGs–being the elected officials that they are–did press releases to announce the good job they had done for their respective states.  Virginia’s Attorney General, however, did a press release to announce the continuation of an anti-gang initiative in the Shenandoah Valley.

I could not find a press release from the OAG indicating that this settlement even took place.  With our OIG-approved Fraud Against Taxpayers Act, Virginia’s share will of course be more than Maryland’s share–which would put the recovery in the seven figures–but my point is something else entirely.

I’m not trying to knock anti-gang initiatives, and I am certainly not trying to knock the Shenandoah Valley.  What I am pointing out is that the OAG could and should do a better job of promoting its successes using the VFATA.  Such efforts could lead to more interest on the part of the Virginia Bar in the VFATA, and in turn to more information flowing into the OAG.

The OAG did press releases for a Pennington Gap dentist who pled guilty to Medicaid fraud, and also for a Giles County physician who pled guilty to similar charges.  Meanwhile, the Commonwealth has recovered tens of millions of dollars from big pharmaceutical companies as part of nationwide settlements, without so much as a whisper.  

I find it interesting that McDonnell would want to trumpet small cases against individuals for stealing money from Medicare and Medicaid, and ignore the tens of millions recovered from large pharmaceutical companies who stole money from the Commonwealth. 

To do so ignores the hard work and dedication of Virginia’s world-class Medicaid Fraud Control Unit and the entire Office of the Attorney General.  But it also ignores the possibilities for the Commonwealth if civil case filings under the VFATA were increased. 

It is true, of course, that McDonnell is hostile to trial lawyers, and that he can be said to be in favor of tort reform.  I must say, however, that if his hostility to trial lawyers plays any role in his failure to promote the VFATA, he should make it clear now. 

Meanwhile, Sen. Cuccinelli, if you are serious about not only winning the Office of Attorney General, but also about fulfilling your duties, you should make the Virginia Fraud Against Taxpayers Act one of your chief campaign planks. 

If you don’t, someone else surely will.
Zachary A. Kitts

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