Today Maryland Governor Martin O’Malley signed the Maryland False Health Claims Act into law, bringing to a close one of the most heated legislative battles over a state false claims act in recent memory.
Of the nearly two-hundred bills signed into law today, Governor O’Malley signed the Maryland False Health Claims Act first–a symbolic gesture which showed the importance of this law for Maryland’s future fiscal health in these financial hard times.
And now, the battle shifts elsewhere. As readers of this blog are aware, a number of changes were made to the Maryland False Health Claims Act during the legislative process. These changes do things like create new affirmative defenses, make the assessment of double or treble damages discretionary, and so forth.
In short, each of these changes takes the Maryland statute a step further away from the federal False Claims Act. I have previously discussed my suspicions behind the current trend of lobbyist-suggested changes on this blog, but time will tell how this pans out.
In terms of whether the Maryland statute will be successful, the state does have a number of factors in its favor. First, they have a real lawyer at the helm in the form of Attorney General Doug Gansler. General Gansler has federal and state prosecution experience, including prosecution of consumer fraud cases and complex financial criminal matters–and these two areas of practice are excellent training for False Claims Act prosecutions.
Second, but not less important, is that General Gansler will have the support of Department of Health and Mental Hygiene Secretary John Colmers. Secretary Colmers (and his Inspector General Tom Russell) were both on the front lines of the Maryland FCA fight, and he will no doubt make sure his agency cooperates with General Gansler fully.
Although it may seem strange at first, in some states the state agency responsible for Medicaid administration actually pushes back on efforts to enforce the law by state Attorney General. Inter-agency rivalries and jealousy are a fact of life in government work–moreover, in some situations, government agencies will be slow to cooperate in situations where the prosecution could show part of the agency in a negative light. This problem can be minimized when the top leadership of an agency is in favor of vigorous enforcement. Secretary Colmers is definitely in favor of vigorous prosecution, so General Gansler will not have this problem to deal with.
The law becomes effective on October 1, 2010.