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Continued from page 26
Maryland enacted its own version of the False Claims Act, the Maryland False Health Claims Act, in April 2010. Te law became effective in October 2010.35
Te statute
as originally introduced, in January 2010, was very similar to the Federal False Claims Act.36
For example, it allowed
the relator to proceed with an action even if the State chose not to intervene.37
It did not provide for certain mitigating
factors, ultimately included in the version that has been enacted into law, in aiding the court’s determination of the amount to be owed by violators.38
Te statute that ultimately passed was Te original text of the
statute also allowed for compensatory damages and required payment of the relator’s reasonable attorney’s fees and reasonable expenses.39
more narrowly tailored and, in various ways, is less “relator friendly.”40
tit. 63, §§ 5053-5053.7; O.R.S. §§ 180.750 to 180.785; R.I. GEN. LAWS §§ 9-1.1-1 to 9-1.1-8; TENN. CODE ANN. §§ 71-5-181 to 71-5-185; TEX. HUM. RES. CODE ANN. §§ 36.001 to 36.132; VA. CODE ANN. §§ 8.01-216.1 to 8.01-216.19; WIS. STAT. ANN. §§ 20.931; and D.C. CODE §§ 2-308.13-2.308.21.
35 S.B. 279, 2010 Leg., 427th Sess. (Md. 2010). 36 Id. 37 Id. 38 Id. 39 Id. 40 Compare MD HEALTH GEN. § 2-601 et seq. with Maryland False Health Claims Act, S.B. 279, 2010 Leg., 427th Sess. (Md. 2010).
28 Trial Reporter / Summer 2011
Federal False Claims Act v. Maryland False Health Claims Act
Te FSA and the MFHCA have many similarities and
important differences. For example, the filing procedures provided by both statutes are very similar. Under both the FSA and the MFHCA, a relator must provide the government a written disclosure of all of his evidence of the fraud.41
Tis is
normally done in the form of a “disclosure statement” or narrative that is submitted to the United States Attorney General and the local United States Attorney’s office in FSA cases, and to the Maryland Attorney General in MFHCA cases. Under both statutes, the lawsuit is filed in the circuit court or federal court under seal, and the relator notifies only the government of the action so that it can effectively investigate the merits of the relator’s allegations.42
Additionally, both statutes provide
that during this “seal period,” initially 60 days for both the FCA and the MFHCA, but which can be extended by the court for “cause,” the government investigates and decides whether the case has sufficient merit to justify intervening and taking over prosecution of the case.43 Other similarities between the FCA and the MFHCA
include the fact that under both statutes, the court can award treble damages44
and under both, the relator’s award can be
reduced by the court if the relator has been found to either have helped and/or initiated in the violation.45
Both
statutes also prohibit retaliation against the relator and provide a cause of action to sue for such retaliation.47 Te FCA and MFHCA also differ in many ways, and quite
significantly. Most important, as explained above, the FCA can be used to get at any fraud on the federal fisc. Te MHFCA, as its name suggests, only deals with health care fraud. Te other major difference between the two statutes is that the FCA allows the relator to litigate her case even if the government declines to intervene,48
any action in which the State declines intervention.49
while the MHFCA requires the court to dismiss Te seal
provision in the FCA prevents disclosure of the qui tam case to anyone but the government; the MHFCA, by contrast, requires the state to notify the defendant if its investigation reveals that the defendant’s actions are continuing and such notification does not jeopardize any federal or state investigation.50
Additionally, under the
MFHCA, the relator, like a relator in an FCA action, can receive a 15-25 percent share of the reward received by the state.46
Te penalty provisions under the two statutes also differ: under the FCA, the
41 31 U.S.C. § 3730(b)(2); MD HEALTH GEN. § 2-604(a)(3)(i). 42 31 U.S.C. § 3730(b)(2), 3732(a) – (b); MD HEALTH GEN. § 2-604(a)(1), 2-604(a)(3)(ii), and 2-604(b)(1)-(2).
43 31 U.S.C. § 3730(b)(2) - (3); MD HEALTH GEN. § 2-604(a)(6). 44 31 U.S.C. § 3729(a)(1)(G); MD HEALTH GEN. § 2-602(b)(1)(ii). 45 31 U.S.C. § 3730(d)(3); MD HEALTH GEN. § 2-605(b)(1). Te language of the MFHCA is broader than the FCA.
46 MD HEALTH GEN. § 2-605(a)(1); 31 U.S.C. § 3730(d)(1). 47 MD HEALTH GEN. § 2-607; U.S.C. § 3730(h). 48 31 U.S.C. § 3730(c)(3). 49 MD HEALTH GEN. § 2-604(a)(7) – (8). 50 MD HEALTH GEN. § 2-604(a)(5)(III).
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