W.Va. AG not accepting he caused budget gap

By John O'Brien | Jun 4, 2010


CHARLESTON, W.Va. (Legal Newsline) - West Virginia Attorney General Darrell McGraw is appealing a federal judge's ruling that he caused a hole in the budget of the state's Medicaid program.

McGraw filed a notice that he was appealing the U.S. Court of Appeals for the Fourth Circuit May 25. U.S. District Judge Joseph Goodwin sided with the federal Centers for Medicare and Medicaid Services in March, ruling the state owed CMS $446,607 from McGraw's 2004 settlement with drugmaker Dey, LP.

Goodwin's ruling affirmed a decision by the Departmental Appeals Board. The state's Medicaid program is largely federally funded.

"West Virginia's theory in pursuing the pharmaceutical companies was built around inflated reimbursement rates that the State paid to pharmacies - which are 'providers' and which West Virginia's complaint labeled as such (claiming that Dey caused the State to 'overpay substantially' when it 'reimbursed providers for the drug')," Goodwin's decision says.

"The overpayments in this case were paid to providers pursuant to the Medicaid program. (CMS) is entitled to its share of those recovered overpayments regardless of the source of the recovery."

The settlement with Dey was worth $850,000.

McGraw sent $100,000 of the settlement to his Consumer Protection Fund, while none of the settlement funds went to the state Department of Health and Human Resources.

Goodwin recently stepped down from a similar case. CMS is owed $2.7 million from McGraw's 2004 settlement with drugmaker Purdue Pharma, the DAB has ruled.

Chief Deputy Attorney General Fran Hughes has admitted to the Legislature that the Purdue Pharma money was not given to the state DHHR, which administers the Medicaid program, because CMS would then be able to claim a share -- "We have arranged a methodology that has prevented the federal government from coming back and seizing money," Hughes said.

Hughes formerly served as general counsel for a national consulting firm that specialized in Medicaid financing.

CMS had sought more than $4 million, but the DAB adjusted its calculations to consider the more than $3 million in attorneys fees earned by private attorneys hired by McGraw to pursue the case, which alleged Purdue Pharma misrepresented the addiction capabilities of the painkiller OxyContin.

Rather than give the settlement funds to the state agencies named as plaintiffs, McGraw used the money from the settlement on substance abuse programs around the state, as well $500,000 to the University of Charleston for a pharmacy school.

McGraw argued that there was a fourth plaintiff - the affected individuals in his state he was representing in his parens patriae capacity.

"We find no merit in this argument," the Departmental Appeals Board wrote.

"It is not evident from the record that the State was, at the time of settlement, seeking damages on behalf of individual consumers."

McGraw did give $250,000 of the settlement to the state DHHR.

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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