Roe decision leaves Ohio health providers scrambling

Abortion foes celebrated victory in a 50-year fight on June 24, when the U.S. Supreme overturned Roe v Wade and allowed states to severely restrict — or even eliminate — women’s access to abortion.

But for those who care for pregnant women, the ideological victory posed a swarm of burdensome questions they haven’t begun to answer.

Jason Sayat, a Central Ohio OB-GYN, said the Friday the decision came down started as any other. He and his colleagues juggled a full office load with duties in the labor-and-delivery ward.

“Then we were hit with the information that Roe v Wade was reversed,” he said, describing how through the rest of the day they dealt not just patients’ medical conditions, but also their fears about what the cancellation of a constitutional right to abortion meant for them.

Within hours, the confusion increased when Attorney General Dave Yost filed a motion to lift an injunction against a 2019 Ohio law prohibiting abortions after six weeks of pregnancy — a point at which as many as a third of women don’t even know they’re pregnant.

Sayat said “it really put things dramatically and quickly into focus in terms of how these restrictions were well in place within hours.”

The six-week ban is far from the only abortion restriction that could be coming down the pike in Ohio. One lawmaker says she has the votes and support of Gov. Mike DeWine to ban almost all abortions, even in the case of rape or incest.

The flurry of anti-abortion laws and proposals has Ohio’s major health systems on their heels.

Individual practitioners such as Sayat, who declined to name his employer, are saying they need to know that Ohio health systems will have their backs in the months ahead. But he said that as of last week, “we’re still waiting for directives.”

He explained that while the political debate over abortion tends toward the simplistic, caring for pregnant women in the real world is anything but.

For example, Ohio’s six-week law allows later abortions if there’s a “medically diagnosed condition that so complicates the pregnancy of the woman as to directly or indirectly cause the substantial and irreversible impairment of a major bodily function.” But who determines whether those conditions have been met? The Department of Health? The police?

“What this has all come down to is the violation or disruption of personal medical decision-making between the decisions of the patient and their trusted health care team or physician,” Sayat said. “It’s so individualized and complex that laws like this can’t apply to that. It’s not as black-and-white.”

And, he said, in situations where continuing a pregnancy is incompatible with the health of the mother, doctors and patients need to be able to make decisions “without fear of reprimand or imprisonment on felonious charges.”

The American Medical Association didn’t mince words in the wake of the Supreme Court decision overturning Roe v Wade.

The organization “is deeply disturbed by the U.S. Supreme Court’s decision to overturn nearly a half century of precedent protecting patients’ right to critical reproductive health care — representing an egregious allowance of government intrusion into the medical examination room, a direct attack on the practice of medicine and the patient-physician relationship, and a brazen violation of patients’ rights to evidence-based reproductive health services,” AMA President Jack Resneck Jr. said the day of the decision. “States that end legal abortion will not end abortion—they will end safe abortion, risking devastating consequences, including patients’ lives.”

Ohio’s major hospital systems — operating in a state dominated by anti-abortion officeholders — have been much more cautious in their public statements.

The Capital Journal last week asked them four questions:

  • Will your organization provide for out-of-state abortion care to your employees should they need it?
  • Will it defend practitioners making medically sound decisions — for example, terminating a pregnancy to protect the mother — to the fullest extent should they be accused of violating current or future restrictions on abortion in Ohio?
  • Are you concerned that current or future restrictions might make it more difficult to attract and retain talented practitioners?
  • Does your organization believe that, in restricting abortion, lawmakers and the courts are inserting their religious beliefs into the doctor-patient relationship?

Many responded by saying they don’t have any answers yet. Tausha Moore of Toledo-based ProMedica gave a typical response.

“Regarding your inquiry, we are in the process of evaluating recent changes to better understand the impact they will have on health care in the communities we serve,” she said in an email.

Marti Leitch of Ohio State’s Wexner Medical Center made a similar statement.

“Ohio State is closely examining the decision from the Supreme Court and changes in state law,” she said. “If necessary, the medical center and College of Medicine will make adjustments to be in compliance with the law.”

Dorsena Drakeford of Cleveland’s MetroHealth also said her system is also reviewing the situation.

Amanda Nageleisen of the University of Cincinnati Health System also said it was continuing to review the situation, but “We remain deeply committed to the sanctity of the patient-health care provider relationship and will balance patients’ and health care providers’ interests in accordance with all federal and state laws.”

It appears that a big question the state’s hospital systems are grappling with involves ending pregnancies when they’re deemed medically necessary.

“While OhioHealth hospitals and clinics have not and do not provide elective termination procedures, we acknowledge that there are times when the life and safety of a patient may be threatened by acute medical complications, even early in pregnancy,” spokeswoman Stephanie Stanavich said in an email. “We will continue to offer care to our patients within the confines of any new regulatory landscape and always within the best practice standards of care.”

As the big hospital systems formulate their policies, Sayat, the OB-GYN, said he hopes they keep practitioners in mind.

“I think that the biggest part is that we as providers need to feel supported and feel like we have the resources to navigate the complexity of scenarios we’re presented with,” he said.

Ohio Capital Journal is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Ohio Capital Journal maintains editorial independence. Contact Editor David DeWitt for questions: Follow Ohio Capital Journal on Facebook and Twitter.

Ohio Medicaid director owned stock in companies she awarded huge contracts

Ohio Medicaid Director Maureen Corcoran won’t discuss them, but state ethics filings she submitted on Sunday showed that she continued to own stock in three huge health care companies last year — the same year she negotiated and signed billion-dollar contracts with their subsidiaries.

Outside ethics experts have said it’s a clear conflict of interest for Corcoran to own stock in businesses while deciding whether they get contracts to manage care for Ohio’s poor and disabled. But from early 2019 when Gov. Mike DeWine appointed her Medicaid director through the end of last year, her ethics filings have shown that she has owned at least $1,000 worth stock in CVS Health and UnitedHealth Group.

Both companies own pharmacy middlemen that have handled a huge volume of prescription-drug transactions for the Medicaid department, sometimes with controversial results. In 2017, for example, they charged taxpayers $224 million more for drugs than they paid the pharmacies that dispensed them.

Because of those and other problems with the pharmacy-benefit operations, the Medicaid department is abandoning the model under which they have operated. However, insurers owned by the same corporations got huge contracts as care managers as part of the same restructuring.

CVS’s Aetna received a billion-dollar contract to run OhioRISE, a program for children with complex behavioral health needs. And UnitedHealth is one of seven companies that will share $22 billion worth of Medicaid managed-care business over the next five years — the biggest public procurement in state history.

Corcoran’s filings show that last year she also owned at least $1,000 worth of stock in Humana, another insurer picked for a share of the managed-care business.

State ethics rules only require that officials such as Corcoran list all the stocks they own at least $1,000 worth of in a given year. So it’s impossible to know how heavily invested she is in those companies. Corcoran last year declined to file an affidavit disclosing her exact holdings in companies whose subsidiaries she was awarding contracts and she’s refused to make those disclosures voluntarily.

“Director Corcoran has complied with all laws at all times,” Medicaid spokeswoman Lisa Lawless said Monday when again asked how much stock Corcoran owned in the companies.

Corcoran disclosed her stock in CVS, UnitedHealth and Humana along with ownership in 277 other companies. They include several drugmakers and wholesalers. But while large amounts of Medicaid money might end up in their coffers, the Medicaid managed-care program in the past didn’t contract directly with them to purchase their products.

By contrast to Corcoran’s holdings, DeWine disclosed that he owned at least $1,000 worth of 70 stocks. They include drugmakers such as Merck and Pfizer, but not CVS, UnitedHealth or Humana.

Attorney General Dave Yost didn’t report ownership of more than $1,000 worth of stock in any company.

The Capital Journal has been reporting on Corcoran’s stock holdings in her department’s contractors since October, during a legal fight over the Medicaid procurement process. She’s refused to discuss them and her lawyers have complained in court documents about the coverage.

“The entire topic is a smear campaign intended to harass and embarrass Director Corcoran,” one filing said.

In another, Corcoran denied having any conflict of interest.

“I did not steer any of the Medicaid managed-care contracts towards or away from any applicant,” she said in a sworn affidavit, adding, “I did not knowingly have any conflict of interest related to the Medicaid managed-care contracts.”

Also in an affidavit, Corcoran swore that she wasn’t aware what stocks she owned “on any particular day or during any particular month.”

However, similar to her earlier disclosures, the one she filed at 9:22 a.m. Sunday swore that it had “been prepared or carefully reviewed by me, and constitute(s) my complete, truthful, and correct disclosure of all required information…”



Ohio Capital Journal is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Ohio Capital Journal maintains editorial independence. Contact Editor David DeWitt for questions: Follow Ohio Capital Journal on Facebook and Twitter.

'Rogue': Legal expert says there's a growing problem among the judiciary

In a case that might be seen as throwing stones from a glass house, Ohio Supreme Court Justice Pat DeWine earlier this month tore into four of his colleagues when he wrote a dissenting opinion.

“With each iteration of these cases, it becomes more evident that a rogue majority is simply exercising raw political power,” DeWine wrote. “No one should be deceived.”

A constitutional law expert said the use of such uncivil language is improper — and a growing problem among the judiciary.

And it was coming from someone who might not have been writing in the first place. Ethics experts have said that DeWine shouldn’t even be sitting in the case because his father’s a party to it.

DeWine wrote his dissent as a four-member majority of the state Supreme Court rejected a fourth set of maps submitted by the GOP-controlled Ohio Redistricting Commission as unconstitutionally partisan.

The commission is operating for the first time this year. It was created by a constitutional amendment that passed in 2015 with 70% of the vote.

The vote took place in what is regarded as one of the most gerrymandered states.

Over the past decade, Republicans have won most statewide races by roughly a 54-46 margin. Yet the GOP controls 65% of the state House and 76% of the state Senate, partly as a result of maps the Republican-controlled legislature drew in 2011.

In passing the constitutional amendment, most voters likely thought they were voting against extreme partisan gerrymandering. Indeed, the amendment says legislative maps must be drawn in a way that “shall correspond closely to the statewide preferences of the voters of Ohio.”

But in his opinion, Justice DeWine said that the Supreme Court could only order up new maps if it found violations of other provisions in the amendment, such as one requiring that legislative districts be compact.

“There is nothing in the Constitution that gives this court authority to order the commission to create a new district plan based on (a finding of excessive partisanship),” DeWine wrote.

The only remedy for that, he said, is to again fight it out over new maps in four years.

In making his argument, Justice DeWine took another shot at the court’s majority, which consists of three Democrats and a Republican.

“But if anything is clear at this point, it is that the majority has long ago forsaken any concern about the actual words of the Constitution — it simply demands a General Assembly — district plan that achieves its policy goals,” he wrote.

Mark Brown is a Capital University constitutional law professor who has been following the redistricting battle closely. He didn’t think much of DeWine’s analysis.

“I don’t find his interpretation of (the relevant section of the state Constitution) particularly persuasive,” Brown said in an interview. “It’s an argument. I don’t agree with it, but it was an argument that has been made in the case and it’s one that he embraced. So be it. That’s what law’s all about.”

But what the law’s not all about, he said, is the disparaging language DeWine used in describing his colleagues. Brown said judicial use of such language is still unusual, but is unfortunately becoming more common.

“Over the past 30 years, it’s gotten pretty ugly … with justices saying the things Justice DeWine said,” Brown said.

Referring to one word DeWine deployed in his dissent, Brown said, “‘Rogue’ — You’re accusing somebody of being dishonest.”

Justice DeWine didn’t respond to several emails sent to the Supreme Court.

But as he accuses the majority of going “rogue,” DeWine is ruling in a lawsuit against the Ohio Redistricting Commission. That’s a group in which his father, Gov. Mike DeWine, is part of the 5-2 GOP majority.

Several ethics experts have said that Justice DeWine has a clear conflict of interest in the case and should recuse himself. The justice has recused when questions of contempt have arisen, but contends that his father isn’t participating in the case as an individual, but as a member of a commission.

Be that as it may, Brown, of Capital University, concurred with the ethics specialists.

“This is something that should not occur,” he said. “I’m not an ethics teacher, but I’m a constitutional law professor and in constitutional litigation, this is something that should not occur.”

For now at least, the case doesn’t seem to be headed toward resolution.

Asked by a Republican group to intervene, a federal panel voted 2-1 last week to order that if the redistricting commission can’t draw a constitutional map by May 28, it will impose one that the Supreme Court has adjudged to be unconstitutionally gerrymandered.

So far, Gov. DeWine and the Republican majority are refusing to meet with the two Democratic members of the redistricting commission. They could be trying to run out the clock in hopes that the federal court will impose a map they’ve already tried — and failed — to get past the Supreme Court.

The American Civil Liberties Union on Monday asked the state Supreme Court to hold the Republican members of the redistricting commission in contempt for ignoring its order to produce another set of maps by May 6.

Justice DeWine will recuse from any contempt proceedings. But if another set of maps is submitted and he opines on them, Brown said DeWine should keep his language civil.

If the court’s majority says the maps are wrong, “That should be the end of it,” Brown said. “I think it’s unfortunate (if) the rest of the justices won’t let that go and they start hurling insults.”



Ohio Capital Journal is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Ohio Capital Journal maintains editorial independence. Contact Editor David DeWitt for questions: Follow Ohio Capital Journal on Facebook and Twitter.

Ohio elections official says Dems might wreck voting integrity and touts Trump -- who’s suspected of election fraud

Ohio’s top elections official on Sunday tweeted that if Democrats win in Ohio they might undermine secure elections. Then he boasted of an endorsement from someone who is himself under investigation for possible election fraud.
It might demonstrate the needle Ohio Secretary of State Frank LaRose is trying to thread as he runs on a record of conducting secure elections while touting the endorsement of former President Donald Trump, who has relentlessly and falsely denigrated the security of American elections. It might also demonstrate how much more polarized things are in the wake of the Trump presidency.

LaRose ran in 2018 touting his bipartisanship, and promoting congressional and state legislative districts that don’t unfairly favor one party over another.

But this year, he’s been part of a Republican majority on a new redistricting commission. The constitutional amendment that created the commission prohibits extreme gerrymandering, but LaRose joined the majority in producing four sets of legislative maps that the Ohio Supreme Court rejected as unconstitutional because they are too partisan.

In response, LaRose went after the referees. Earlier this month, he said the Republican chief justice who voted with three Democrats on the court had “violated her oath of office” in ruling against him and that he “would be fine with” her impeachment.

That came after LaRose took to Twitter twice in February to make sweeping, misleading attacks on the press.

In one, he said “Here they go again. Mainstream media trying to minimize voter fraud to suit their narrative.

He was claiming that the news organization The Hill had minimized voter fraud in a story. But it was about, in part, a LaRose press release that said his office was working to “keep election fraud exceedingly rare,” and that an investigation found that a vanishingly small 0.0005% of votes might have been fraudulently cast in Ohio’s 2020 election.

On Sunday, LaRose tweeted that Ohio elections are secure under his leadership, but that might not stay the case if a Democrat is elected as secretary of state in November.

“Ohio’s become THE leader for election integrity,” he tweeted. “But that can all become undone if the Democrats win.”

And, fresh off a rally by former President Donald Trump in Delaware on Saturday, LaRose added this, “President Trump knows that — and he’s given me his full support. Join the team and chip in to help our campaign.”

Trump, of course, talks a lot about election integrity. But there are reasons to suspect that he’s not all that concerned with protecting it.

For starters, he’s under criminal investigation in Georgia for possible election fraud. Facing a loss on Jan. 2, 2021, Trump called Georgia’s Republican secretary of state and said I just want to find 11,780 votes… “— one more than he needed to win the state. The chief executive also vaguely threatened that it was a “criminal offense” if the secretary of state didn’t do what he wanted, according to a recording of the call.

Mark Meadows, Trump’s chief of staff, is also under investigation for potential voter fraud; this time in North Carolina, where he is suspected of registering to vote in the 2020 election using a mobile home address where he’d never lived.

In addition, Trump’s 2020 electoral challenges have been thrown out by more than 60 judges — including some he appointed — and his vice president and attorney general both told him he’d lost. Even so, Trump contemplated declaring martial law, seizing voting machines and appointing fake electors to maintain his grip on power.

Then Trump encouraged supporters to come to Washington, D.C. on Jan. 6, 2021, and told them to march to the Capitol as Congress was certifying his loss to Joe Biden. During a violent, hours-long attack, Trump resisted calls to tell his supporters to go home. Five people died as a result of the attack.

In the aftermath of that trauma, Trump continues to falsely insist that he won in 2020.

Despite all that, the Ohio Secretary of State continues to tout Trump as an authority on election fraud. LaRose’s office didn’t respond to repeated questions this week asking if LaRose believes Trump’s claim that he was the victim of a stolen election — or if LaRose believes that Trump legitimately lost.

LaRose’s office did respond to a question asking how Democrats might jeopardize Ohio’s election security.

At the state level, in 2020 Democrats sued (to) force the state to accept e-mailed absentee ballot requests, risking insecure attachments to be sent to county boards’ computer systems across the state,” LaRose spokesman Rob Nichols said in an email, adding that Democrats also wanted “(t)o do away with signature matching requirements on absentee ballots, so any ballot would be accepted, even if the signatures didn’t match.”

Nichols also criticized the John R. Lewis Voting Rights Act, a big election bill proposed by congressional Democrats that failed earlier this year.



Ohio Capital Journal is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Ohio Capital Journal maintains editorial independence. Contact Editor David DeWitt for questions: Follow Ohio Capital Journal on Facebook and Twitter.

Ohio's top election official lashes out at 'liberal media' over CBS Ukraine reporting

Ohio Secretary of State Frank LaRose has his hands full right now.

He’s part of a seven-member commission whose struggles to come up with legislative and congressional maps have resulted in an order to explain in person why they shouldn’t be held in contempt.

And in the absence of maps, the state’s top elections official is scrambling to figure out how to conduct a primary for which some absentee ballots must be ready in less than three weeks.

But that didn’t stop LaRose from taking time out last week to bash what he called the “liberal media” for a story reporting that the Ukraine crisis exacerbated inflation. It’s the second time this month that LaRose has made sweeping attacks on the news media in tweets that didn’t allow readers to view the original stories LaRose was referring to.

On Wednesday, hours before Russian President Vladimir Putin ordered his forces to invade Ukraine, LaRose tweeted a screenshot of a CBS News story headlined “The U.S. economy has been hit with increased gas prices, inflation and supply chain issues due to the Ukraine crisis.”

LaRose seemed to think that unfairly let U.S. Democrats off the hook for an inflationary trend that dates back to early 2020 and has increased to worrisome levels since Joe Biden became president at the beginning of 2021.

“This tweet really happened,” LaRose tweeted, along with a laughing emoji. “It’s astonishing the lengths liberal media will go to defend and distract from the failures of Democrats. The American people won’t be fooled.”

Viewers of the tweet couldn’t easily read the story for themselves because LaRose posted only a screen grab of the version CBS posted to its Twitter page. Published just before Russia started invading Ukraine, it said the inflationary consequences of the geopolitical tensions were already manifesting.

Although many Americans may prefer that the U.S. stay out of the conflict between Russia and Ukraine, the brewing violence and political fallout are already hurting their wallets,” the top of the story said. “The price of oil, which has been rising over the past year, hit an eight-year high this week as traders reacted to geopolitical tensions. Gas prices are likely to surge even further if the hostilities escalate or if U.S. lawmakers pass another round of sanctions, according to experts.”

The story went on to say that if an invasion did take place, things stood to get even worse. Gas prices were likely to surge higher and sanctions could squeeze flows of high-demand items such as microchips, the story said.

Hours later, just after the invasion started, U.N. Secretary General Antonio Guterres echoed those concerns, saying it could exacerbate, “the high prices of oil, with the end of exports of wheat from Ukraine, and with the rising interest rates caused by instability in international markets.”

CBS wasn’t the first to report that Russia’s saber rattling was worsening inflation. The previous day, the New York Times reported that “the rapid escalation in tension is sure to draw policymaker attention and could make for even higher inflation in the near term.”

More than a week before that, on Feb. 14, the paper reported on a basic ingredient of inflation already made worse by tensions over Ukraine.

“Oil prices have risen to well over $90 a barrel — their highest levels since 2014 — in recent days as fears of war have grown,” the story said.

LaRose’s office wouldn’t say why, when he slammed the CBS story, he didn’t post a link so people could read what it actually said.

The partisan press-bashing on social media might be seen as a departure for LaRose.

When he first ran for office in 2018, the Hudson lawmaker said he wanted to be a bipartisan secretary of state who would help draw districts that would allow candidates to run in the middle of the political spectrum, as opposed to its extreme fringes.

“I want to be part of a party that wins elections because we work harder, have better candidates and we have better ideas,” he told The Columbus Dispatch, adding that competitive elections would boost voter participation.

But heading into re-election this year, LaRose has repeatedly voted for election maps that the Republican-majority Ohio Supreme Court has rejected as being unconstitutionally generous to the GOP.

And LaRose’s attack on the media last week wasn’t his first of the month. On Feb. 3 he tweeted, “Here they go again. Mainstream media trying to minimize voter fraud to suit their narrative. The Hill uses a press release from my office to falsely claim ‘there’s nothing to see here – move along.’ WRONG!”

As with his tweet slamming the CBS News story, LaRose’s tweet slamming a story the news organization The Hill was a screen grab that didn’t include the part of the story he was objecting to. It referred to a Feb. 1 press release subtitled “Ohio’s Election System Works to Ensure Voter Integrity and Keep Election Fraud Exceedingly Rare.”

In his tweet LaRose didn’t specify any inaccuracies and it’s hard to see what he was objecting to.

The release by LaRose’s own office said its investigators found that just 0.0005% of the ballots might have been fraudulently cast in the 2020 Ohio election. It also quoted LaRose as saying “In Ohio, easy to vote and hard to cheat aren’t mutually exclusive.”

Even so, LaRose claimed it was the press that was minimizing voter fraud “to suit their narrative.”

In a follow-up tweet, Ohio’s top elections official gave a shoutout to former President Donald Trump’s relentlessly repeated falsehoods about fraud in the 2020 election.

Those lies are only part of the conduct by the former president that is widely seen as harmful to democracy.

In the election’s aftermath, Trump asked federal agencies to consider seizing voting machines. He also asked the Georgia secretary of state to “find” just enough votes to allow him to win there. And in the midst of the deadly Jan.6 attack on Congress, he leaned on Vice President Mike Pence not to certify Biden’s victory. Pence’s refusal prompted rioters to chant “Hang Mike Pence.”

Despite all that, in the follow-up tweet to the one in which he accused the media of minimizing voter fraud, LaRose said “President Trump is right to say voter fraud is a serious problem.”

LaRose’s office wouldn’t respond at the time when asked whether Trump’s conduct in the Georgia incident might itself constitute a form of election fraud — an issue Fulton County District Attorney Fani Willis is investigating.

Trump has been criticized by journalism organizations for making hundreds of baseless attacks on the press, “dangerously undermining truth and consensus” among the body politic.

But amid his own blasts at the Fourth Estate, LaRose’s office wouldn’t answer last week when asked if he believed Trump’s assaults are beyond the pale.

Ohio Capital Journal is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Ohio Capital Journal maintains editorial independence. Contact Editor David DeWitt for questions: Follow Ohio Capital Journal on Facebook and Twitter.

NOW WATCH: Georgia Senate condemns pro-Putin white nationalists in blow to CPAC

Georgia Senate condemns pro-Putin white nationalists in blow to CPAC

CVS sometimes forces people to use its pharmacies -- now the Supreme Court will weigh in

It's a practice long complained of in Ohio.

CVS Health and other massive corporations often use their pharmacy middleman subsidiaries to force people to get the most expensive class of drugs from the businesses' own mail-order pharmacies. Some call the practice “patient steering."

CVS and companies such as UnitedHealth and ExpressScripts/Cigna say the arrangements save patients money. But some patients, oncologists and other health providers say it threatens lives.

Now the U.S. Supreme Court is poised to weigh in. In a little more than a month, it will hear arguments in a California case in which AIDS patients are claiming the practice discriminates against them.

Known as “pharmacy benefit managers" or PBMs, the middlemen work with insurance companies or government programs like Medicare and Medicaid to facilitate prescription-drug transactions. They negotiate rebates with drugmakers, decide what drugs are covered and they determine how much to reimburse pharmacies that dispense drugs as part of their health plans.

But the function that's in dispute in the California case is how PBMs structure their pharmacy networks.

Each of the big three PBMs is affiliated with a major insurer and each is part of a corporation that is among the 13 largest in the United States. And the combined PBMs are estimated to control well over 70% of the pharmacy-middleman marketplace.

They're also frequently in direct competition with the retail pharmacies whose reimbursements they control. CVS owns the nation's largest retail chain and each of the big three owns a mail-order pharmacy for “specialty drugs" — the most expensive class of medicines, which can cost upward of $100,000 a year.

Increasingly, the big-three PBMs have been saying they won't cover super-expensive specialty drugs if patients get them at their oncology centers or their AIDS clinics. It's increasingly the case that the only way PBMs will cover them is if patients get them through the mail from a PBM-owned pharmacy.

Critics say the point is to pad profits, but the PBMs maintain that they do this to help their customers.

“To keep costs down, plan designs offered by pharmacy benefit managers often impose the most restrictions on 'specialty' drugs," CVS said in its petition asking the Supreme Court to take up the case. “These medications have special shipping, administration, or storage requirements; treat rare conditions; or are very expensive."

It added, “Pharmacy benefit managers often control the disproportionate costs and complexities of specialty drugs by contracting with specialty pharmacies that have expertise in the 'unique handling, storage, and dispensing' requirements of these medications. Increasingly, pharmacy benefit managers rely on specialty pharmacies that deliver by mail."

However, many patients complain that especially when they have complex conditions that require equally complex drug regimens, mail-order service is vastly inferior to the services they get in-person from pharmacy professionals.

In 2018, Elvin Weir, a now-deceased cancer patient, described to The Columbus Dispatch how late or improperly filled mail-order cancer prescriptions had often delayed the rest of his treatment as his disease worsened. And officials at oncology centers said the arrangement disrupts the collaboration between their pharmacists and oncologists treating conditions that can be not only complex, but also change rapidly.

The plaintiffs in the original California case made much the same argument.

“For people living with HIV/AIDS, strict lifetime adherence to antiretroviral therapies (ART), consisting of complex combinations of pharmaceuticals consumed daily, is vitally important, and can be literally a life-or-death matter," the AIDS Healthcare Foundation wrote in a friend-of-the-court brief.

“For people living with HIV/AIDS, so-called specialty pharmacies and pharmacists that focus on HIV/AIDS and in-person treatment provide demonstrably superior care than do mail-order pharmacies and retail pharmacies," it added. “Coercing people living with HIV/AIDS into using only mail-order pharmacies is thus guaranteeing inferior care and worse health outcomes, and is disability discrimination by both intent and impact."

A panel of the 9th U.S. Court of Appeals last December said that among its mistakes, the lower court in the CVS case didn't acknowledge that face-to-face interactions with pharmacists were part of the benefits to which plan members are entitled.

The Ninth Circuit ruled that CVS's mail-order policy might discriminate against the disabled because it “burdens HIV/AIDS patients differently because of their unique pharmaceutical needs. Specifically, they claim that changes in medication to treat the continual mutation of the virus requires pharmacists to review all of an HIV/AIDS patient's medications for side effects and adverse drug interactions, a benefit they no longer receive under the program."

In its appeal to the Supreme Court, CVS is disputing the plaintiffs' legal argument that the mail-order policy violates the law because it has a “disparate impact."

In other words, the AIDS-afflicted plaintiffs are saying that even if on its face the policy applies equally to everybody, it's still illegal discrimination if it has a discriminatory effect against part of a protected group: the disabled. CVS, on the other hand, is arguing that so long as its policies aren't intentionally discriminatory, they're OK.

The law puts “federal-funding recipients on notice that intentional discrimination is illegal," its petition says. “Schools cannot discipline students with attention-deficit disorder more harshly on that basis. Towns cannot target group homes for individuals with disabilities with uniquely onerous zoning requirements. Employers cannot refuse to hire someone solely because she is in a wheelchair. And health plans and anyone else subject to (federal health care laws) cannot facially exclude patients with disabilities simply because they have disabilities."

“Courts do not need to rewrite (the law) and insert a nonexistent disparate-impact standard to accomplish Congress' goals," CVS argued.

The health care company noted that appellate courts have issued differing opinions in the matter. That, presumably, is the dispute the Supreme Court hopes to settle by taking up the case.

Oral arguments are slated for Dec. 7.

This report was originally published by the Ohio Capital Journal, an affiliate of the nonprofit States Newsroom, which includes the Louisiana Illuminator.

Louisiana Illuminator is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Louisiana Illuminator maintains editorial independence. Contact Editor Jarvis DeBerry for questions: Follow Louisiana Illuminator on Facebook and Twitter.

Ohio's top elections official rejects fraud claims – but refuses to comment on Trump

A spokesman for Ohio Secretary of State Frank LaRose said the office didn't want to get dragged in last week when a fellow Republican echoed former President Donald Trump's baseless fraud claims and called for an audit of Ohio's 2020 election.

But the state's top election official won't condemn Trump or say whether he'll support the former president if he runs again in 2024. And despite his assertion that “it's easy to vote and hard to cheat in Ohio," LaRose wouldn't comment on restrictions that forced large-county voters to wait hours to cast early ballots last year.

Former state Treasurer Josh Mandel is one of many Republicans eagerly trying to take up the Trump mantle in the race to succeed retiring U.S. Sen. Rob Portman, who is also a Republican.

Trump has lied relentlessly about his 7 million-vote loss in the 2020 election. His challenges have failed in more than 60 court proceedings and repeated reviews of the vote in states where the contest was close have upheld the legitimacy of President Joe Biden's win.

Even a highly partisan “audit" of Arizona's results last week confirmed Biden's victory there. But that didn't stop Trump from lying about it, too.

Now Republican officials are trying to initiate partisan reviews in other states such as Pennsylvania and Wisconsin that Trump narrowly lost. And Trump is even demanding one in Texas, a state he won handily. In response, Gov. Greg Abbott is scrambling to accommodate the former president.

Critics fear that the real purpose of all the “audits" is to delegitimize elections in the eyes of tens of millions of Americans even though actual evidence of substantial voter fraud is vanishingly rare. False fraud claims can also be used to justify restrictions on voting that would benefit Republicans, they say.

Not to be outdone by other GOP politicians seeking Trump's approval, Mandel upped the ante last week.

“Not only should we audit the vote in AZ, WI, MI, PA, GA — we must audit the vote in all 50 states," he tweeted. “Even in states like OHIO where Trump won by massive margins, he probably actually won by even larger margins were it not for the Democrat cheating."

Mandel didn't respond when asked what evidence he had to support his claim.

LaRose's office said it didn't want to be dragged into the matter when Mandel was asked on Twitter if he was claiming that the secretary of state had a hand in running a crooked election. And, to be clear, there's been no evidence of substantial fraud in Ohio's 2020 general election, which Trump won by eight percentage points.

But LaRose won't comment on the figure driving false election claims around the country. That would be Trump, who has a long history of crying “fraud" when things don't go his way.

The former president accused Texas Sen. Ted Cruz of fraud when Cruz beat him in the Iowa Caucuses in February 2016. The same year, when Trump beat Democratic nominee Hillary Clinton in the electoral college, he still said without evidence that the popular vote was rigged because Clinton won it by 3 million.

Then, in the run-up to the 2020 election, Trump repeatedly said the only way he would lose was if there was massive fraud.

Despite all the false claims attacking the integrity of American elections, LaRose's office wouldn't say this week whether the secretary of state voted for Trump in 2020. And, after all of Trump's subsequent lies about how he really won in a landslide, LaRose's spokesman wouldn't say if the secretary of state planned to vote for Trump if he runs again in 2024.

“Anyone who suggests that Ohio's 2020 election was anything less than the most successful and secure election on record is wrong," the spokesman, Robert Nichols, said in an email. “Just like every election, the 2020 presidential election already has been audited and revealed an accuracy rate of 99.98%. We're happy to help any Ohioan who may be unfamiliar with our safeguards understand the accessibility, accuracy, and security of how Ohio elections are administered."

Amid the blizzard of false fraud claims, Republican-led legislatures have passed dozens of laws and introduced hundreds more that create new hurdles to voting, particularly for the poor and minorities. Democrats in Congress have introduced legislation they say will prohibit those hurdles — as well as changes to election administration they say would make it easier for a future disgruntled candidate to overturn an election.

In a fundraising letter, LaRose on Monday said the legislation “will make our elections less secure" but it didn't explain how.

“It's honestly not even about protecting the vote, as they claim and their allies in the liberal media echo over and over," the letter said. “It's about appeasing their progressive base to score political points and raise money for their campaigns."

The letter added, “We've fought to ensure that it is easy to vote and hard to cheat in Ohio — because I understand the importance of free and fair elections."

However, there are serious questions about how easy it was to vote in 2020.

Pursuant to a Republican-passed law in 2006, Ohioans can vote in-person early, but they're restricted to only one voting location per county. In 2020, that meant hours-long lines in large counties such as Franklin and Cuyahoga, which — perhaps not coincidentally — tend to vote Democratic.

In addition, LaRose limited the number of ballot drop boxes available in 2020, when many were anxious to avoid polling places because of the pandemic.

LaRose claimed that he didn't think he had the legal authority to allow more than one box per county. But earlier this year, after multiple judges said he did have the authority, LaRose maintained the limitation, saying it's an issue for the legislature to decide.

The secretary of state has taken other steps that could be seen as thwarting the will of the voters.

In 2015, an amendment to the state Constitution to limit partisan gerrymandering passed with more than 70% of the vote. Among its provisions, it creates a bipartisan commission that is supposed to draw legislative districts that would result in a partisan makeup similar to the result of recent statewide elections.

Over the last 16 statewide elections, Republicans have, on average, won with 54% of the vote. But as a member of the commission, LaRose voted with a Republican majority for maps that, according to the GOP's own estimates, would create majorities well in excess of 60%.

The League of Women Voters, the American Civil Liberties Union and other groups are suing.

Ohio Capital Journal is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Ohio Capital Journal maintains editorial independence. Contact Editor David DeWitt for questions: Follow Ohio Capital Journal on Facebook and Twitter.