Monday, May 11, 2009

Wellcare - Deferred Prosecution Agreement

Back in October 2007, WellCare Health Plans, Inc. in Tampa was the subject of a search by government agents. (see here and here) Last week, the company entered into a deferred prosecution agreement. (see Bloomberg here).  A DOJ Press Release outlines the obligations of WellCare under this agreement.  It includes "consent to the civil forfeiture of $40,000,000," "pay an additional $40,000,000 in restitution to the Florida Medicaid and healthy Kids programs," "retain and pay an independent Monitor," and as usual for deferred prosecution agreements, cooperation in investigations, in this case investigations of "Wellcare executives and employees responsible for the alleged fraudulent conduct at issue."

But like so many of the recent deferred prosecution agreements, the DOJ plays a powerful position in the company's future.  In this case the U.S. Attorney's Office gets to select the "independent Monitor."  And if the "Monitor resigns or is unable to serve the balance of his or her term, a successor Monitor shall be selected by the USAO. . ." Additionally, a breach of the agreement rests in the sole discretion of the prosecution, although they do give the company time to respond to claims of a breach.  And "[r]egardless of whether the USAO pursues criminal charges against WellCare upon any breach of the DPA, any monies paid to the USAO at any time by WellCare will not be returned to WellCare and WellCare will make no claim upon such monies."  So much for contract law. (see here)

Deferred Prosecution Agreement here.


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Deferred and more absurd, non-prosecution agreements are becoming progressively common, with the exception of the USDA office in PA.

Corporate integrity agreements are as void of efficacy for deterrence as warning letters issued by the FDA's DDMAC for criminal marketing. It's the same as a law enforcer identifying a criminal and yelling, "Stop!....Or I'll say stop again. Some corps. have 2 or three CIAs, which screams contradiction. The autonomy of such corporations frightens me greatly.

Posted by: Dan | May 21, 2009 5:35:35 PM

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