TAMPA — The federal judge in the fraud trial of four former WellCare executives gave jurors an unusual set of instructions on Thursday afternoon:
Have a nice 10-day break.
Jurors, who have been deliberating for six days, have yet to reach verdicts in the complicated, nearly three-month-long criminal trial against the four men. Some jurors had already made vacation plans for Memorial Day week, so U.S. District Judge James S. Moody Jr. allowed them to take off Friday and all of next week.
The jury is scheduled to reconvene on June 3.
Moody and lawyers in the case acknowledged the long break was highly unusual. But it reflects the difficulties jurors face in a trial that has featured numerous spreadsheets, health care acronyms and diagnostic codes.
Two of the 14 jurors were moved to alternate status last week. One of the two admitted to nodding off during the proceedings; the other was observed closing her eyes on several occasions.
Former chief executive officer Todd S. Farha, former chief financial officer Paul L. Behrens, former vice president William Kale and former vice president Peter E. Clay each face charges of conspiracy to commit Medicaid fraud, making false statements and health care fraud. Clay also faces two counts of making false statements to federal agents.
Jurors have sent up two notes to the judge. The first one asked if unanimity was required on each charge, for each defendant. (The answer is yes.) The contents of the note sent to Moody on Wednesday were not disclosed, and defense lawyers asked Moody to release the full note.
Moody said no.
The defense also asked if the judge would reveal any partial verdicts so they could move for mistrials on those charges where the jury was deadlocked. Moody said no to that, too, saying that he told the jury to let him know if they reached an impasse. So far, he said, they have not.
Prosecutors did not speak during Thursday's hearing, but the defense team said it worried that the long break carried a high risk of exposure to news coverage or questions about the case from co-workers or family members.
Moody did not comment on that point, but later warned the jurors they should not read or talk about the case.
Federal prosecutors say the four defendants orchestrated a scheme to keep public dollars that should have gone back to the state. According to the March 2011 indictment, WellCare took Medicaid money from Florida's Agency for Health Care Administration with the understanding that if it did not use 80 percent of the funds set aside for behavioral health services, the difference was to be returned to the state.
But, prosecutors say, WellCare executives conspired to inflate what they actually spent to reduce the amount they had to return. That strategy involved the creation of a new company, which WellCare's two Florida HMOs paid for behavioral services, to inflate costs, court documents say.
Defense attorneys say that the expenses were legitimate and that the state Agency for Health Care Administration knew all along about the arrangement but failed to give WellCare any guidance.
Jodie Tillman can be reached at [email protected] or (813) 226-3374.