Keep McCollum away from WellCare settlement, lawyer says

John O'Brien Oct. 6, 2010, 4:41pm


TALLAHASSEE, Fla. (Legal Newsline) - A Florida lawyer with financial ties to a federal settlement with WellCare says state Attorney General Bill McCollum is not doing enough to drive the figure up.

Barry Cohen, of Tampa, filed a petition with the state Supreme Court Friday asking it to rule that McCollum can not act in the best interest of Floridians because of past contributions from the company to McCollum and members of the Republican Party.

Cohen says the proposed $137.5 million settlement reached by the federal government, which decided to intervene against some of the defendants in the case but not all, is too small.

"In the instant case, Attorney General Bill McCollum knew or should have that the campaign contributions provided to him were intended to 'purchase' influence," Cohen wrote.

"Of course he didn't really think that they were giving him and the Republican Party over $2.6 million because they believed that sanctimonious gobbledygook on TV."

McCollum is the head state's Medicaid Fraud Control Unit and never elected to intervene in the case.

Cohen is representing Sean Hellein, a former financial analyst at WellCare who is the whistleblower around whom the case is built.

In False Claims Act actions, whistleblowers generally receive 15 percent to 25 percent of the amount recovered. Attorneys may represent whistleblowers on a contingency fee or fees can be negotiated separately as part of the settlement.

Cohen says the proposed settlement is not worth enough. In his complaint, he asks for three times the estimated amount of damages. His estimate is $400 million to $600 million, putting his request over the $1 billion mark.

He also asks for maximum civil penalties, interest and the maximum award for Hellein.

WellCare is alleged to have defrauded Florida's Medicaid and Healthy Kids programs by inflating expenditures so it would not have to return money.

In Florida, the 80/20 law permits health care programs to keep 15-20 percent it uses to cover overhead costs but must spend the rest on patient care. Anything left over that is not spent on patient care is returned to the state.

Cohen's 50-page petition says McCollum has long been against state and federal false claim laws. It also chronicles what Hellein feels were McCollum's efforts to have the 80/20 law overturned.

They started, Cohen wrote, with Gov.-elect Charlie Crist, then the state's attorney general, making Dr. Andrew Agwunobi as secretary of the state's Agency for Health Care Administration in 2006. Agwunobi was a board member at WellCare.

Agwunobi sold his stock in WellCare, but Cohen notes the whistleblower suit had been pending for six months before he did so. Agwunobi received nearly $1 million in the sale, Cohen says.

"McCollum knew all these relevant facts about Dr. Agwunobi when he took office (in 2007)," Cohen wrote.

"Despite·knowledge of Dr. Agwunobi's conflicts, McCollum did not criticize or challenge the appointment of Dr. Agwunobi, seek to limit his involvement in matters related to WellCare or challenge his later involvement in legislation designed to save WellCare millions. McCollum's willful blindness to Dr. Agwunobi's actions begs the question as to why McCollum did not object."

WellCare wanted to plug a $23 million hole by eliminating the 80/20 law, Cohen says. It did not happen, thanks to a veto by Gov. Crist.

Cohen blames McCollum because he says the AG "turned a blind eye" toward the legislation.

He also says McCollum, who is challenging federal health care reform, has been an advocate for health care companies during his time as a public servant.

Cohen says McCollum received $9,000 from WellCare, its subsidiaries, affiliates and "alter egos" in 2006. He also claims more was earmarked for him when it was donated to the Republican Party.

McCollum only has a couple months left in office. His run for governor failed in the Republican primary this year.

McCollum's office says it is "waiting further direction from the court."

For a legal argument, Cohen turned to the United States Supreme Court's Caperton decision from 2009, which ruled that West Virginia Supreme Court Justice Brent Benjamin was required to recuse himself from the $50 million case of a campaign supporter.

Massey Energy CEO Don Blankenship spent millions through a political action committee to support Benjamin in 2004.

"Although not factually identical to the instant case, Caperton·has a heavy bearing on this matter because both cases involve the disqualification of powerful public officials," Cohen wrote.

"While every campaign contribution does not suggest a probability of bias, the instant case, like Caperton, should be considered an "exceptional case" and an "extraordinary situation."

In a footnote, Cohen wrote a possible preview of what may happen if his petition is not granted.

"Even though Caperton concerned due process, if McCollum were allowed to proceed and make a decision regarding the proposed WellCare settlement, his decision could be challenged on due process grounds," he wrote.

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