In a miracle of bad timing, Jim Swoben managed to lose out on a share of the $322 million recovery against SCAN health Plan by being both too early and too late in filing his qui tam action.
During his days as a data encounter manager at SCAN, Jim suspected the company had been double-billing Medicare and Medicaid for years. He expressed his concerns within SCAN. When he refused a job reassignment, he was fired. In 2007 he alerted his state senator, who referred it to the State Controller. That office opened an investigation and sent Jim a copy of the report. Then he filed his suit, in 2009. The suit was eventually resolved with a $322 million settlement.
So Jim should be entitled to a 15% to 25% cut, right? Wrong. His suit was too late because the False Claims Act bars suits filed after a “public disclosure”—a term that includes governmental reports. But wait! State and local government reports don’t count as public disclosure, right? True, but that’s only as of 2010, when the Affordable Care Act changed the rule. Back in 2009 2010 state and local government reports—like a State Controller’s report–still counted as public disclosure. So Jim filed too early to get the benefit of that change.
On August 28 a federal court denied Jim’s last gasp at claiming a piece of the recovery. U.S. ex rel. Swoben v. SCAN Health Plan, No. 2:09-cv-05013 (C.D. Calif.)
The story couldn’t be any sadder for Jim, right? Wrong. Turns out that during the six years of litigation, Jim had turned down California’s offer to settle with him for $28 million.
Jim should have called upon a savvy health care attorney like Norman G. Tabler, Jr., to guide him through this maze of regulations.