That’s privileged: Medicaid won’t say what it did to justify denying records
File photo by Justin Sullivan/Getty Images.
The Ohio Department of Medicaid is denying public access to oversight reports submitted by its billion-dollar managed-care contractors. But it won’t describe the process it used in determining that information in the reports qualifies as trade secrets.
That information is privileged, said a spokeswoman for the department, which claims to value transparency.
Even though some other state departments of Medicaid publish them on their websites, the Ohio’s Department of Medicaid last month declined to provide the Capital Journal with copies of “medical-loss ratio” reports in response to an open records request.
Managed-care contractors are required by the federal government to produce such reports to keep tabs on how much taxpayer money the companies are spending on healthcare, and how much they’re pocketing in the form of profit and administrative expenses.
Even though the reports are meant to keep tabs on contractors — each of which gets more than $1 billion a year from the Medicaid department — it appears that the department let those companies decide to keep them secret.
“Please note that the managed care organizations have identified that the reports are proprietary information and trade secrets under ORC 1333.61,” the department’s legal staff wrote in response to the records request. “As such, we are denying your request.”
Kip Piper, a Washington, D.C.-based Medicaid expert, last month said he couldn’t see how the reports could contain trade secrets. The information required for them are aggregate numbers — not specific data regarding pricing, patient encounters and the sort of information that is commonly associated with proprietary information.
“Withholding these routine, mandatory Medicaid MCO MLR reports is mystifying,” Piper said in a tweet. “This is not trade secret or proprietary data. Odd, troubling, ill-advised decision, frankly.”
Ohio Medicaid said that the reports had not yet been standardized among the states and that Ohio likely releases more relevant information through other channels than states such as Arizona do in the medical-loss ratio reports they publish. But the available Ohio information doesn’t appear to be as granular as in this MLR report by an Arizona Medicaid managed-care plan.
In any case, the Ohio Medicaid department has been unwilling to say whether it allowed its contractors to simply decide that the oversight reports should be kept secret. It was asked several times whether it did anything more than ask the companies’ opinion when it decided not to provide copies of them. It wouldn’t answer directly.
Prodded further, it said answering that question would violate lawyer-client privilege — the right to keep communications between attorneys and their clients secret.
On March 28, Medicaid spokeswoman Lisa Lawless said such questioning “asks for information that consists of legal work by Medicaid’s attorneys. We’re unable to share with you work that is covered by attorney-client privilege.”
Jack Greiner, a Cincinnati-based First Amendment attorney, found the claim hard to credit.
“I don’t think it’s attorney-client privilege,” he said. “I could see an argument that it could be something called ‘work product’ — a privilege that covers what an attorney does for their client in terms of their client and the mental processes of the attorney — but I’m having a hard time seeing how it’s attorney-client privilege. They don’t represent the contractors, so I don’t know where they’re coming from. It doesn’t make any sense to me.”
Lawless was asked to whom the claimed privilege belonged. And if it belonged to the ODM, she was asked, why didn’t the department waive the privilege so that Ohioans could know whether it was allowing its contractors to decide whether oversight reports should be made public.
“Even if it were privileged, they could waive it,” Greiner said. “It doesn’t sound like they’re protecting highly sensitive details of anything.”
Pressed further on the matter, Medicaid spokeswoman Lawless made it sound as if the privilege were inviolable.
“This is referring to the attorney-client privilege within the Ohio Department of Medicaid (ODM), between ODM attorneys and ODM staff,” she wrote in an email Tuesday. “The legal work by ODM’s attorneys related to the topics in your inquiries is privileged and we are unable to waive this privilege.”
In the aftermath of the Watergate scandal, the states and the federal government passed or beefed up open-records and meetings laws on the rationale that the public owns the government, so to the fullest extent practicable, the public should have access to its doings. And in the process of making government transparent, inefficiency and corruption are more likely to be spotted and rooted out, the thinking went.
Indeed, countless scandals have been uncovered using the laws.
Meanwhile, the Ohio Department of Medicaid has been embarrassed by a lack of transparency by its contractors.
In 2018, it was under pressure from investigations by The Columbus Dispatch and then-Auditor Dave Yost. The agency commissioned an analysis that determined — unbeknownst to the department — that drug middlemen hired by the managed-care contractors in 2017 collected almost a quarter-billion dollars more for prescription drugs than they paid the pharmacies that dispensed them. That was at least three times the going rate, the Medicaid department’s own analysis said.
To bring transparency to that process, the department is shifting to an arrangement in which a single drug middleman will work directly with the Medicaid department so that it can see more clearly into the drug transactions. At the same time, however, the department is apparently allowing the companies that hired the middlemen to decide what information can be made public — and that information about that process is secret.
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