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From Health Law Daily, January 15, 2019

Executive order for Medicaid fraud prosecution did not lapse after governor’s term

By Jeffrey H. Brochin, J.D.

A 1987 executive order signed by former Colorado Governor Romer authorizing the Attorney General to prosecute Medicaid fraud and patient abuse cases across the state did not lapse at the end of Governor Romer’s term, but rather provided continuing authorization for the Attorney General to prosecute those cases, the Colorado Court of Appeals has ruled. Absent some clear limitation on the effective lifespan of an executive order, or some limitation in the terms of the executive order itself, an executive order remains in effect until modified, rescinded, or revoked (State of Colorado v. Salgado, January 10, 2019, Tow, J.).

MFCU Executive Order. On March 4, 1987, then-Governor Roy Romer promulgated Colorado Executive Order No. D 0017 87, requiring the state’s Attorney General, through the Medicaid Fraud Control Unit (MFCU), to investigate and prosecute Medicaid fraud and patient abuse cases either in his capacity as attorney general, or when so designated, acting in the capacity of a special deputy district attorney. The 1987 Executive Order has never been repealed, rescinded, or modified.

Felony neglect case. In December 2017, the MFCU filed a felony charge involving neglect of an at-risk adult against an employee of an assisted living facility. The Jefferson County District Attorney filed a notice asserting that the Attorney General lacked legal authority or jurisdiction to file and prosecute the case; specifically, the District Attorney argued that the executive order was an unconstitutional exercise of legislative power by the Governor, that the executive order did not authorize the Attorney General to prosecute cases in her own name, and that the executive order had been superseded by legislation.

The district court rejected the third argument and did not address the second. It then found that although Governor Romer had the authority to require the Attorney General to investigate and prosecute Medicaid fraud and patient abuse cases during his terms as governor, reliance on the 1987 order to confer authority in 2018 would be an unconstitutional exercise of legislative power by the executive branch. It further found that a former governor cannot require the current Attorney General to act, and the district court dismissed the charge against the employee. The Attorney General appealed, and the employee responded.

Executive orders remain in effect. The appellate court began its review by stating the general rule that executive orders validly issued pursuant to legislative or constitutional grants of authority remain in effect until revoked, modified, or superseded by later authority, and remain in effect beyond the expiration of the term of the governor who issued them. They further noted that in at least one case, a Colorado court had given present effect to an executive order that had been issued by a governor no longer in office at the time the executive order was invoked.

No temporal or spatial framework. The district court appeared to agree with the District Attorney’s position that there must be some "temporal and spatial framework" to a gubernatorial delegation of prosecutorial authority to the Attorney General. However, the appellate court found no authority dictating that executive orders must expire after the governor who issued them leaves office. Nor did they find authority suggesting that such executive orders must expire after the lapse of some undefined period deemed sufficient by a court.

Based on the foregoing, the court agreed with the great weight of historical treatment of executive orders across the nation, holding that absent some clear limitation on the effective lifespan of an executive order, or some limitation in the terms of the executive order itself, an executive order remains in effect until modified, rescinded, or superseded, and it does not expire merely because the issuing governor is no longer in office. Accordingly, the 1987 Executive Order was found to properly authorize the Attorney General to prosecute cases of Medicaid fraud and patient abuse in Colorado, and the district court judgment was reversed and remanded for reinstatement of the felony charge.

The case is No. 18CA0885.

Attorneys: Philip J. Weiser, Office of the Attorney General, for The People of the State of Colorado. Antony Noble (The Noble Law Firm, LLC) for Jasmine Eloisa Salgado.

Companies: The People of the State of Colorado

MainStory: TopStory CaseDecisions CMSNews FraudNews MedicaidNews ProgramIntegrityNews ColoradoNews

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