Allegations of Medicare Advantage Fraud: A Deeper Dive

Whistleblower suits target insurer titan.

It’s been a busy couple of weeks for at least one of the two whistleblower cases proceeding against UnitedHealth Group in federal district court over allegations of Medicare Advantage fraud. I will refer to this case as the Swoben action because it was initiated by whistleblower James Swoben, a former data manager of Scan Health Plans.

To set the stage for these latest developments, let’s begin with a brief review of the recent procedural history of the Swoben case:  

• In March, the United States joined part of Mr. Swoben’s whistleblower case. Although Mr. Swoben had named several Medicare Advantage plans as defendants, the federal government only joined as it pertained to the UnitedHealth Group defendants – and even then, regarding some but not all of Mr. Swoben’s claims against United. 
• In May, the United States filed its own complaint-in-intervention against the United defendants only.  
• The United defendants responded by filing a motion to dismiss the government’s complaint. 

On Oct. 5, presiding U.S. District Court Judge John F. Walter issued an order granting United’s motion to dismiss the government’s complaint. Although he dismissed some of the claims with prejudice, for others Judge Walter gave the government leave to amend its complaint to strengthen its allegations.

However, rather than seeking to amend its complaint, on Oct. 12 the United States filed a notice that it was dismissing its claims against the UnitedHealth Group defendants. The dismissal was made without prejudice, which means the government could seek to revive its allegations at a later date. 

Last week, on Oct. 18, Mr. Swoben also filed a notice of dismissal – this one seeking to dismiss the remaining defendants in his whistleblower case. Mr. Swoben’s dismissal was made without prejudice as well and preserves his right to later refile. That same day, the United States consented to Swoben’s dismissal of these defendants. The impact of these two dismissals appears to be that there are no longer any active claims in the Swoben case, and the matter is now effectively dismissed. 

According to Law360, although the United States has declined to comment on its dismissal in the Swoben matter, a spokesperson for the U.S. Attorney’s Office in Los Angeles did note that the government is still litigating another whistleblower lawsuit in the Central District of California involving allegations of Medicare Advantage fraud. The government joined this lawsuit, which was initiated by whistleblower Benjamin Poehling, in February of this year and filed its complaint-in-intervention in May. Mr. Poehling worked for UnitedHealthcare Medicare and Retirement in Minneapolis on matters involving United’s Medicare Advantage plans. On Sept. 28, presiding Judge Michael W. Fitzgerald denied United’s motion to transfer the case to the District of Columbia, where it is pursuing a case against the Centers for Medicare & Medicaid Services (CMS) under the Administrative Procedures Act. 

In short, while the Swoben case appears to have reached its conclusion, the government’s case against UnitedHealth Group with Poehling continues.