With a recount pending in Virginia’s Attorney General race, Virginians will not know for several more weeks whether Democrat Mark Herring or Republican Mark Obenshain will be Virginia’s next Attorney General. This much, however, we know: regardless of which candidate ultimately fills the position, continuing the fight against fraud on Virginia’s public fisc using the Virginia Fraud Against Taxpayers Act will be among his chief tasks, and he would do well to make it a priority of his administration.
In that regard, the next Attorney General is fortunate in that he will inherit one of the nation’s elite Medicaid Fraud Control Units. This prominence is the result of many factors, including the MFCU’s leadership and the fact that Virginia was one of the first states in the country to adopt a statute based on the federal False Claims Act. Since the General Assembly passed the Virginia Fraud Against Taxpayers Act in 2002, the “MFCU” as the unit is known has, on average, returned more than $228 million per year to the public fisc by vigorously prosecuting health care fraud, which comes to more than $3.1 million per MFCU employee.
Without question, the next Attorney General will do well to encourage the unit to continue its winning ways. Health care programs are only one part of Virginia’s budget, however, and the next Attorney General should use the example set by the MFCU and create a special unit to vigorously investigate and prosecute non-health care fraud on the Commonwealth. There is absolutely no reason why a non-healthcare civil fraud unit could not obtain similar results, with the right leadership.
By definition, controversial topics are more interesting than uncontroversial topics, and it is unfortunate that when people think of “Ken Cuccinelli” and “Virginia Fraud Against Taxpayers Act” they are most likely to think of Mr. Cuccinelli’s controversial investigation of climate scientist Michael Mann, and not of his uncontroversial use of the same statute to recover non-health care funds stolen from the Commonwealth. While Mr. Cuccinelli did not take the step of creating a special unit to investigate and prosecute non-health care cases, he did focus on such cases to a greater degree than any of predecessors, and the Commonwealth is without question better off for it. A partial listing of those victories would include the 2012 settlement with Bank of New York Mellon for transactions it handled on behalf of Virginia Retirement Services, a recent jury verdict in California against manufacturer JM Eagle for selling defective plastic pipes to the Commonwealth, and a settlement with CA Technologies for false charges to Virginia government agencies for software updates.
Virginia’s state government is known nationally for its careful use of money, and the manner in which the monies recovered from civil fraud cases are used is no exception. In the past year alone, Mr. Cuccinelli was able to use $30 million recovered by his office in VFATA cases to cover gaps in state pension funds and $4.2 million to train sheriff’s deputies and police departments across the Commonwealth to better handle crises involving mentally ill individuals; and these are just two examples. In total, tens of millions more was distributed to local government officials to use for appropriate purposes, and that does not – repeat, does not – include the tens of millions of dollars the Office of the Attorney General was able to return to the Commonwealth’s General Fund.
Governments of every stripe – federal, state and local – are quick to point to a lack of resources to justify inactivity, and when governments refer to “resources” what they mean is money. To be sure, monetary resources are important. History demonstrates, however, that leadership is by far the most important resource if government is to be effective; history further demonstrates that a just a little bit of leadership goes a long way when applied in the right places. By demonstrating the leadership needed to create a top-notch affirmative civil enforcement unit for non-health care claims, the next Attorney General will no doubt be able to claim a string of accomplishments that far exceeds any of his predecessors, to the benefit of all Virginia taxpayers.
