In a setback for WellCare Health Plans, a federal judge in Tampa ordered the government Tuesday to turn over company documents to the lone whistleblower still fighting for a hearing.
U.S. District Judge James S. Moody agreed to permit attorneys for Sean Hellein to depose an unnamed executive from WellCare, in addition to the government's expert witness, after examining the documents.
Moody also agreed to a stay in the criminal trials of three former WellCare executives accused of massive Medicaid fraud in 2003-07.
Hellein, who now works for a non-profit plan in Atlanta, said after the hearing that Moody's rulings were "wonderful."
The judge gave prosecutors 60 days to go through the documents to find any materials that could legitimately be withheld as privileged information. Then Hellein's attorney, Barry Cohen, will have 150 days to go through them and conduct depositions.
At that point, if no settlement has been reached, the sides could present evidence to the judge.
Hellein, who had worked in the finance department at WellCare, has estimated the theft from Florida alone at $300 million and the total take at over $400 million. The False Claims Act would permit the government to recoup not only the amount stolen, but double or triple damages.
But WellCare has persuaded state and federal prosecutors that it cannot afford that, and a tentative settlement of $137.5 million was reached last year.
Only Hellein has held out, demanding evidence of the company's limited ability to pay.
Assistant U.S. Attorney Charles Harden argued Tuesday that the government is the proper party to decide on WellCare's ability to pay. He said Hellein had no right to hold up the settlement, since all of the states, the other whistleblowers and the Justice Department's Civil Division were all satisfied with the agreement.
As the primary whistleblower -- the one who first tipped off the FBI and who wore a wire to the workplace to help investigators gather evidence -- Hellein stands to gain a portion of the settlement likely to be 15 percent or more.
Harden portrayed Hellein as motivated by greed, saying "he has a purely personal financial motive in this."
But Hellein has said in the past many times that he wants only to see justice done, and that he plans to donate a substantial part of the award to charity.
His attorney, Cohen, argued Tuesday that WellCare's chief executive was given a $1 million bonus and many in its top ranks are making a fortune selling stock. WellCare's stock has soared over the past year, in part because of expectations that Medicaid expansions will be a bonanza in coming years. But part of the optimism grew from an expectation that the cloud hanging over WellCare with the unfinished fraud case was about to end in a settlement.
That expectation soured with Judge Moody's pronouncement.
In May, the Tampa-based company filed a document with the Securities and Exchange Commission that announced it had signed a “corporate integrity agreement” with the Inspector General of Health and Human Services that called, among other things, for internal and external reviews for five years.
The Inspector General’s sign-off was crucial for WellCare, since it has no commercial business and exclusively contracts with Medicare and Medicaid programs.
The company’s announcement said all other governmental entities – the Civil Division of the U.S. Department of Justice, the U.S. Attorney’s Offices in Tampa and Connecticut, and nine state governments including Florida – had signed the agreement, as well.
If the settlement ends up at $137.5 million, Florida would receive about $23 million of it, according to earlier filings.
WellCare settled its criminal case with the Florida Attorney General’s Office and the U.S. Attorney’s Office in Tampa two years ago, agreeing to pay $80 million. That settlement agreement said the company defrauded Florida Medicaid of $40 million by misstating what it actually spent on care for low-income adults and children.
-- Carol Gentry, Editor, can be reached at 727-410-3266 or Carol.Gentry@HealthNewsFlorida.org.
