Sixth Circuit appeals court rules Ohio law that prevented Medicaid physicians from contributing to Cordray's, politicians campaigns unconstitutional

Richard Cordray

From the Metro Desk of Cleveland Urban News.Com and the Kathy Wray Coleman Online News Blog.Com

(www.kathywraycolemanonlinenewsblog.com) and (www.clevelandurbannews.com)

CINCINNATI, Ohio – On Friday, nine Cleveland-area physicians who provide health care to poor patients through the Medicaid program, and were blocked by state law from expressing their support for then-Ohio Attorney General Richard Cordray through campaign contributions to his 2010 race to retain his seat, won their appeal to the federal Sixth Circuit Court of Appeals in Cincinnati, Oh., which determined that the law violated the free speech clause of the First Amendment and was therefore unconstitutional.

At issue were efforts by the physicians to block Republican Secretary of State Jon Husted from enforcing an Ohio statute, also known as a state law, that makes it a crime for Ohio attorney-general and county-prosecutor candidates to accept campaign contributions from physicians who serve Medicaid patients, a disproportionate number of whom are minority and poor.

Cordray lost the Ohio attorney general seat that he was appointed to in 2008 two years later to Republican Michael Dewine, a former Lt. Gov and prior U.S. Senator.

In Jan. Congress appointed him director of the United States Financial Protection Bureau, an agency initiated in 2011 by President Obama, who nominated him six months earlier.

Subodh Chandra

Subodh Chandra, lead counsel for the physicians, who was a law director under former Cleveland Mayor Jane Campbell and this year lost the Democratic primary for Cuyahoga County prosecutor to former common pleas judge Tim McGinty, was elated on the victory for his clients, and the underprivileged affected by the controversial state law.

“The physicians are gratified that the appellate court affirmed their constitutional rights of free speech and association," said Chandra. "While they will never get back the rights they lost in the 2010 election, at least from now on, doctors and others will have their free-speech rights restored.”

The Sixth Circuit’s decision reverses the decision of the U.S. District Court for the Northern District of Ohio in Lavin, et al., vs. Husted.

The criminal statute at issue, Ohio Revised Code Section 3599.45, was adopted in 1978 and provides in relevant part that “no candidate for the office of attorney general or county prosecutor or such a candidate’s campaign committee shall knowingly accept any contribution from any Medicaid provider or from any person having an ownership interest in the provider.”

In its unanimous decision, the Sixth Circuit held that "the statute here restricts the First Amendment rights of nearly 100,000 Medicaid providers who do not commit fraud, based on an attenuated concern about a relative handful of providers who do."

The judicial appeals panel went on to say that "there is no avoiding the conclusion that the contribution ban set forth in § 3599.45 is not closely drawn.”

The court also observed that the state’s own statistics for 2009 show that there were nearly 100,000 Ohio Medicaid providers, and that that same year, “only 0.003% were implicated in Medicaid fraud.”

And, wrote the appeals court, that is true even without considering the statute’s ban on contributions from any person having an ownership interest in’ a Medicaid provider.” (Editor's note: That ban squelches the rights of hundreds of thousands if not millions of shareholders in Wal-Mart, Target, Walgreens, CVS, Rite-Aid, and other publicly traded providers of Medicaid pharmacy services.)

In issuing its unprecedented decision, the Sixth Circuit noted that Secretary of State Husted “concedes that he has no evidence at all in support of his theory that § 3599.45 prevents actual or perceived corruption among prosecutors in Ohio or that prosecutors have abused their discretion to prosecute Medicaid fraud."

“The Secretary’s [Ohio Secretary of State Jon Husted's] claim that § 3599.45 prevents corruption, therefore, is dubious at best,” the Sixth Circuit said.

The complaint alleges in part that the case arose because the physicians were all long-time advocates of reforming health insurance to ensure better quality and access to healthcare for all Americans and supported Obamacare, the Protection and Affordable Care Act signed into law in March 2010 by Congress that, among other things, bans insurers from discriminating against patients for preexisting conditions and permits people to stay on their parents’ heath insurance policies until the age of 26.

According to the lawsuit, lead plaintiff Arthur Lavin and the other physicians at issue were all baffled and dismayed by then-Ohio attorney general candidate Mike Dewine’s pledge to challenge health-insurance reform in federal court, but were pleased with then- Attorney General Cordray’s support for the act.

The physician plaintiffs sought to support Cordray by contributing to his campaign, but were told that it was illegal under Ohio law.

“We wanted to contribute to keep Mike DeWine from trying to take us back to allowing insurers to discriminate against patients,” said Lavin. "And here we found we were being discriminated against ourselves, all because some of our patients’ bills are paid through the Medicaid program. It didn't make any sense.”

Lavin is a Beachwood-based pediatrician with Advanced Pediatrics.

The other plaintiffs in the suit are Jason Chao, M.D., attending physician at University Hospitals and a professor of Family Medicine at Case Western Reserve University School of Medicine; Michael Devereaux, M.D., a neurologist at University Hospitals and Professor of Neurology at Case Western Reserve University School of Medicine; Nathan Beachy, M.D., a family physician at MetroHealth and Senior Instructor of Family Medicine at Case Western Reserve University School of Medicine; Patricia Kellner, M.D., a family physician with Eastside Family Practice who is also affiliated with University Hospitals; Jerome Liebman, M.D., a pediatric cardiologist at University Hospitals; Eric Schreiber, M.D., a diagnostic radiologist at the Cleveland Clinic; Constance Magoulias, M.D., a family physician at MetroHealth; and Peter DeGolia, M.D., a family physician with Foley Elder Health Center who is also affiliated with University Hospitals.

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