“The moral test of a government is how it treats those who are at the dawn of life, the children; those who are in the twilight of life, the aged; and those who are in the shadow of life, the sick and the needy, and the handicapped.” – Hubert Humphrey
passionate pachyderms
Pharmacist Steve steve@steveariens.com 502.938.2414
The AMA is providing the following policy recommendations to help states and others with specific policy recommendations amid the COVID-19 global outbreak. These recommendations are to help guide policymakers reduce the stress being experienced by patients with an opioid use disorder (OUD) and pain as well as support efforts to continue harm reduction efforts in communities across the United States.
Featured updates: COVID-19
Track the evolving situation with the AMA’s library of the most up-to-date resources from JAMA, CDC and WHO.
1. Ensuring access to care for patients with an opioid use disorder
Designate medications to treat addiction (buprenorphine, methadone, naltrexone) and medications to reverse opioid-related overdose (naloxone) as “essential services” to reduce barriers to access during “shelter-in-place” orders. The U.S. Drug Enforcement Administration has already waived federal requirements for in-person visits before controlled substance prescribing; we encourage states to take similar action for their controlled substance regulations.
Prohibit cost-sharing and prior authorization for medications used to treat addiction, including buprenorphine, methadone and naltrexone; allow for a 90-day prescription for patients receiving buprenorphine; payers should suspend all day limits on residential and intensive out-patient therapy.
States should request a blanket exception to SAMHSA for Opioid Treatment Programs (OTP) to receive Take-Home doses of a patient’s medication for opioid use disorder.
Remove any restrictions on the Medicaid preferred drug lists to help avoid medication shortages. This includes ensuring coverage for methadone for patients receiving care in an OTP.
Correctional and justice settings should temporarily waive strict requirements for submitting drug tests, in-person counseling and “check-ins” and similar requirements; suspend consequences for failure to meet strict reporting, counseling and testing requirements, including removal from public housing, loss of public benefits, and return to jail or prison. Additional efforts must be made to ensure people receiving MAT in criminal justice settings receive help in transitioning to care after release.
2. Protecting patients with pain
Waive limits and restrictions on prescriptions for controlled substances, waive for the period of state and national emergency the restrictions on dose and/or quantity as well as refills.
Waive requirements for electronic prescribing of controlled substances, including requirements for an in-person evaluation for patients requiring a refill; provide liability protections for physicians who prescribe controlled substances for current patients the physician believes in good faith is stable and compliant with taking his or her medications.
For patients with chronic pain, waive testing requirements and in-person counseling requirements for refills; allow for telephonic counseling to fulfill state prescribing and treatment requirements.
Enhance home-delivery medication options for patients with chronic pain.
3. Harm reduction to help prevent overdose and spread of infectious disease
Designate supplies provided by harm reduction organizations as “essential services” to reduce barriers to access during “shelter-in-place” orders.
Provide assistance to harm reduction organizations to help ensure adequate supplies of naloxone to continue community-based naloxone distribution efforts.
Ensure continuity of syringe services programs, including provision of PPE. Expand PPE priority to include harm reduction organizations and other community-based organizations that provide services to people who inject drugs to help protect against the spread of infectious disease.
WASHINGTON — All ranitidine products should be pulled from shelves immediately, the FDA said Wednesday, including brand-name Zantac as well as generic versions of the prescription and over-the-counter antacid.
Notably, this was not because of direct evidence of N-Nitrosodimethylamine (NDMA), a probable human carcinogen, being present in particularly high concentrations in the drug itself.
“We didn’t observe unacceptable levels of NDMA in many of the samples that we tested. However, since we don’t know how or for how long the product might have been stored, we decided that it should not be available to consumers and patients unless its quality can be assured,” Janet Woodcock, MD, director of the FDA’s Center for Drug Evaluation and Research, said in a statement.
“The agency has determined that the impurity in some ranitidine products increases over time and when stored at higher than room temperatures may result in consumer exposure to unacceptable levels of this impurity,” according to the FDA announcement.
Reports of NDMA impurities in ranitidine began in the summer of 2019, following similar discoveries in generic angiotensin receptor blockers.
Now, the FDA is sending letters to all manufacturers of ranitidine requesting they withdraw their products from the market. The agency is also advising consumers to stop buying and taking over-the-counter ranitidine. Those who wish to continue treatment to relieve gastroesophageal reflux and for gastric and intestinal ulcer prevention should consider using other approved products, the FDA said.
*The vast majority of the residents of Woonsocket are not wicked and are fine, upstanding citizens.
In a decision that stunned the healthcare and financial communities, CVS announced today that its executives would be entering a rehab program. The action that prompted the intervention was the recognition as a medical problem of a group of behaviors that has been officially designated as extreme compulsive greed disorder (ECGD). Named in recognition of the CVS medical official, George Reed (aka, greed) who first established the relationship among what had been previously considered isolated signs and symptoms, ECGD was confirmed in a clinical study in which it was not even necessary to go outside of corporate headquarters to recruit enough subjects.
ECGD was initially suspected to be a hereditary disorder. However, interviews and evaluations of parents and other close family members of CVS executives revealed that most of these relatives were compassionate, generous people who, if anything, had concerns about changes they had observed in their relatives who are executives at CVS. It was also thought that ECGD may be an infectious disease. This possibility has been ruled out, although the occurrence in clusters of executives working in close proximity to each other makes it appear to be highly contagious, but “brainwashing” has not been ruled out as a contributing factor.
One of the characteristics of ECGD is periodic hysterical laughter (PHL). The occurrence of episodes of PHL was first thought to be completely random, but their timing has now been linked to events such as the acquisition or closure of pharmacies who thought they could compete with CVS, or the settlement of lawsuits for amounts that are far less than the revenues received from the inappropriate policies and actions before they were caught and CVS was sued. PHL was particularly intense when CVS was able to settle lawsuits from government agencies, even for tens of millions of dollars, without acknowledging any wrongdoing or anyone being held accountable.
A major step in the confirmation of ECGD as a recognized medical entity came when brain scans of CVS executives were assessed. In each of these individuals there was an area of mushy tissue at the site at which the conscience center existed as complex, highly structured tissue in the scans of the control group who are pharmacists in CVS stores. Early concerns In an attempt to retrospectively track the development of ECGD among CVS executives, the first signs appear to have occurred more than 10 years ago when CVS acquired Caremark. This acquisition was strongly criticized by many, and even several CVS executives were concerned that this acquisition might be viewed as anticompetitive. However, once the Federal Trade Commission/Department of Justice (FTC/DOJ) permitted the acquisition to proceed, the reluctant executives assumed their concerns were without merit.
Over approximately the next 10 years, CVS amassed huge profits, but there was growing unrest internally. Even large profits were not considered enough, and the top executives seemed driven to acquire greater wealth for the company as well as themselves. Two important events also occurred around this time. In a bold move, CVS took action to acquire Aetna, even though some executives anticipated that this acquisition would be viewed as anticompetitive and would not be approved by the FTC/DOJ. However, notwithstanding a delay imposed by a stubborn federal judge, the FTC/DOJ, to the shock of many, approved the acquisition. Top CVS executives gloated about how their brilliant terminology strategy had apparently convinced the FTC/DOJ that the acquisition was acceptable. Instead of designating the merger as a horizontal acquisition, which might be viewed as anticompetitive and bad, they designated it as a vertical acquisition with the suggestion that this was a different direction and must be good.
The other important event that occurred was that the doubling of the number of colleges of pharmacy had flooded the marketplace with new graduates who were desperate to identify employment and would work for salaries that were much lower than those of the pharmacists currently employed. This resulted in the development and implementation of new obscure company policies that could be used as an excuse to terminate senior pharmacists with higher salaries for violating some minor policy. At the same time, the hours of pharmacists and technicians were being reduced while CVS lobbyists were simultaneously advocating legislators and state boards of pharmacy for increases in technician to pharmacist ratios.
In the meantime, many independent pharmacies, small chain pharmacies, and grocery store pharmacies were forced into financial crises that resulted in many of them closing and others being sold to CVS. An epiphany? At a gathering of CVS executives to celebrate their successes and wealth, one of the executives started to experience sensations that were not alcohol-related. He was dismayed, and that was quickly followed by an epiphany, minor conscience pangs, growing feelings of guilt, and fever. By the next morning, he was experiencing an emotional crisis and, upon googling his symptoms, concluded that he was experiencing Acute Massive Guilt Affliction (AMGA). Being borderline religious, he decided to consult his priest. Although the priest was anticipating a brief morning meeting, the discussion evolved into a 12-hour confessional (with no breaks) in which the executive acknowledged the evil and numerous wrongdoings of CVS over the last 15 years. After 12 hours both the priest and the executive were exhausted, and the executive experienced an extra measure of guilt when it occurred to him that CVS pharmacists routinely work 12-hour days. The priest said that he would have to review the church’s policies regarding sin, confession, offerings, reparations, and insurance coverage, and that he would call him the following morning.
After spending much of the night reviewing church policies, the priest called the executive the next day. He noted that the church policies had upper limits for forgiveness of offenses of $1 trillion in offerings and 20 years of daily 1-hour confessionals. Because the extent of CVS offenses greatly exceeded both of these criteria, the church policies were not applicable and the offenses might be considered as unpardonable sins. Other strategies would have to be pursued.
Upon returning to the CVS executive suite, the executive saw two other executives as they were returning from a coffee break. He felt compelled to share with them his self-diagnosis of AMGA and the observations of his priest. They responded that they had experienced some of the same sensations and suspected that some other executives might be feeling the same way because of their subdued demeanor while CVS stock values and profits were soaring.
Sensing potential problems, and possibly even whistleblowers, the top executives urgently convened a meeting of all executives in which all but the highest-level executives voiced concerns about the “alleged” offenses for which CVS might allegedly be responsible. One executive suggested that CVS publicly acknowledge the offenses, request forgiveness of patients, pharmacists, and society, and provide reparations for those who had been financially harmed. The corporate legal counsel quickly calculated that reparations and anticipated lawsuits would make CVS vulnerable to claims amounting to $1.246 gazillion dollars. Following a brief debate about how many zeroes there are in a gazillion, it was determined that even CVS did not have this much money, and the idea was rejected because it would likely result in CVS and its executives facing severe financial and criminal penalties.
It was at that point that Dr. Reed, the chief CVS medical official, revealed that he had identified extreme compulsive greed disorder, and that ECGD had been officially recognized as a medical problem by at least one medical organization that he was not at liberty to disclose, although it is suspected to be the American Association of Corporate Medical Officers (AACMO). He has the copyright to the ECGD designation and, entirely coincidentally, the first ECGD Rehabilitation program has just been opened in Woonsocket, Rhode Island. (It was subsequently discovered that the CEO of ECGD Rehab is Dr. Reed’s wife using her maiden name).
Dr. Reed recommended that he provide a diagnosis of ECGD for each of the CVS executives and that they voluntarily enter the rehab program. By acknowledging the diagnosis of this disorder they could claim that they are not responsible for the decisions and actions made by CVS, and that “it was the disease that made us do these things.” Furthermore, the diagnosis of their disorder should provide immunity for CVS and its executives against lawsuits, prosecution, and other claims of the victims of CVS programs. For those who persist in seeking financial recourse, CVS can respond that the health of its executives is its highest priority, and that the rehab program is very expensive and lengthy. Therefore, any further consideration of the use of corporate funds must be delayed until the rehab program is completed and a determination can be made whether there are any residual funds available for victims of CVS’s programs and actions.
At the meeting held earlier today, the CVS legal counsel informed the executives that he had learned that the federal government’s filing of a huge lawsuit against CVS was imminent, and that it would be advantageous for them to sign the voluntary commitment to the rehab program agreement. Each of the executives signed the agreement, but without reading the footnotes in 6-font type at the end of the 12-page agreement that described the components of the rehab program. After all, legal counsel had reviewed it and advised them to sign it, so the fine print shouldn’t matter. The rehab program In mid-afternoon as the CVS executives were preparing to begin the rehab program, they were briefed on the requirements of the program. Each executive would reside in isolation in a 100 foot x 100 foot cubicle in the CVS executive complex that occupied three floors of corporate headquarters. They could be visited only by members of their immediate family, and could communicate with other executives only online. In addition to psychiatric, psychologic, and behavioral counseling, they would be treated with the only known antidote for ECGD – Truth Serum. Truth Serum was available in two options – the brand-name product Total Truth Serum (TTS), and the generic product Partial Truth Serum (PTS). All of the executives opted for the more expensive TSS, which was facilitated by their legal counsel’s negotiation of a waiver of the co-pay.
Truth Serum has a short half-life and must be administered frequently. The following dosage recommendations were read to the executives:
5 mL intramuscularly every 15 minutes while awake and every 60 minutes while trying to sleep. Rotation of injection sites is recommended. If treatment is considered successful after one year, accelerated rehabilitation may be considered and the dosage should be gradually reduced over the next two years.
Upon hearing this, the executives were outraged. “Nobody told us that! We’ve been tricked! This is not fair or transparent!” The legal counsel (who had not signed an agreement himself) responded, “It is all there in the agreement which I assume you read before you signed it. My secretary asked you if you had any questions for the legal counsel and none of you had any. There is no recourse. My only responsibility is to CVS shareholders, and not to patients, pharmacists, or even executives.” Responses of the pharmacy community Following several minutes of stunned silence to process the CVS announcement, the pharmacy community began to respond. A spokeswoman for the Boards of Pharmacy said that the Boards were cautiously optimistic that this action of the CVS executives would have a positive outcome. She noted that the Boards have been deluged with reports of errors in CVS stores and complaints from CVS pharmacists about their stressful and error-prone working conditions. When asked how the Boards have responded to those errors and complaints, she noted that CVS pharmacists serve on many of the Boards. She further noted that, as a “professional courtesy” to their CVS Board colleagues, the Boards have not investigated these matters but have attributed them to “misunderstandings” for which the Boards do not have regulatory authority to act.
The pharmacy practitioner organizations chose to respond as a coalition with their respective spokespeople collaborating in providing the following message.
“Our associations have known for decades about the disproportionate number of errors occurring in CVS stores and the abysmal working conditions for pharmacists. However, we have intentionally declined to criticize CVS, or even let anyone know we were aware of their problems, with the hope that CVS executives could be convinced to pay the membership dues for their approximately 30,000 pharmacists in one or more of our associations. Some of our member associations have even given awards to CVS for reasons that we do not recall. CVS payment of pharmacist memberships has not happened but we are cautiously optimistic that this might be an outcome of the participation of the CVS executives in the rehab program. We also hope that the working conditions for CVS pharmacists will improve and that fewer errors will occur.”
Only Suzy Rosa Rassuh of the Hungarian-American Pharmacists Association (HAPA) voiced different opinions. However, she started by noting that, in fairness, she must defend CVS with respect to several of the numerous allegations that have been made about them. She mentioned that there is a sick rumor circulating that CVS is an abbreviation for coronavirus. “That is absolutely not true!” she stated emphatically. She also identified another rumor that has persisted for a longer period of time because the level of detail accompanying it made it seem more credible. This rumor is that CVS was planning to add an express lane in its drive-through that would be available for members of the CVS CarePass program (for a modest fee). The alleged plan would apply initially to the increasingly popular 90-day refills (by patient request or otherwise). For customers who phoned ahead and provided an estimated arrival time, rolled down the back window, and slowed down to 5 miles per hour, the technician at the drive-through window would “deliver” the prescriptions into the back seat. (The CVS CarePass membership agreement included a disclaimer that CVS was not responsible for any injuries to occupants in the back seat.) This rumor started to gain credibility when it was learned that CVS recruiters had visited local high schools to interview students who were pitchers on the baseball and softball teams, and whose pitches were always around the strike zone, for the purpose of having them staff the drive-through windows. An extension of the rumor contended that after the initial roll-out of the express lane, a third lane would be added for members of the CVS Premium CarePass program (for an extra fee) who wished to have their car washed while they were picking up their prescriptions. Following thorough investigation, Suzy noted that this rumor and all its detail have been completely debunked, and have been attributed to a disgruntled former CVS pharmacist who resigned shortly following his establishing the CVS record of dispensing 1,742 prescriptions in a 10-hour shift as the only pharmacist and without technician support. Efforts to contact the pharmacist were unsuccessful.
When asked to respond to today’s announcement that CVS executives were entering rehab, Suzy broke into laughter that approached borderline PHS. She exclaimed, “We all know that CVS announcements are not credible,” and she mentioned a recent CVS press release in response to a New York Times article as an example. She continued, “I do not believe that the CVS executives are entering rehab. They are too evil to be reformed and, remember, today is April Fools’ Day.”
Daniel A. Hussar April 1, 2020 danandsue3@verizon.net
Just as accolades should be heaped on those healthcare professionals and first responders that are going above and beyond during this COVID-19 crisis. Unfortunately, some seem to be in their own little bubble and it is business as usual. No rule should even be considered as having an exception to… no bending the rules in their little bubble.
A couple of years ago, I discovered that a particular medication that Barb takes for her chronic fatigue .. our Part D prgm (Silver Scripts) was requiring a prior authorization and a $600+ copay for a 90 days supply..but there was this Warehouse Club – second largest in the country- was selling this particular medication for $88 CASH for a 90 days supply.
This particular club site is some 30-35 miles from our home, but saving some $500/90 days seemed like it was worth the trip. You don’t have to become a member to have Rxs filled there, but I joined just the same because I knew that Barb would end up spending $300- $400 each trip.
Last weekend as the COVID-19 crisis was ramping up and there was talk of medication shortages and who knows what the bureaucrats were going to do. Her Rx had no refills so I knew that our PCP would have to OK it.. We have been seeing the same PCP for some 25 yrs. His office and the whole hospital system used the EPIC software system and pts have a portal where you can see what is done.
9:30 PM Monday night, our PCP sent this Warehouse Club Rx dept an approval for a refill. Since the previous Rx had ran out of refills the Pharmacists would have to treat it as a NEW RX. It is now Tues and our Governor had issued a edict that everyone in the state is to shelter in place for AT LEAST TWO WEEKS.. starting at MIDNIGHT TUESDAY..
I get to pick up Barb’s Rx and the young female pharmacist stated that she had to talk to the PCP – to make sure that he knew “what he is doing with this early refill”. I told her that I was a pharmacist and that she had the professional discretion to fill it early – NOPE…
I pointed out that we were both in our 70’s and were in a HIGH RISK GROUP – NOPE
I point out that Barb had a auto immune issues which made her more at risk – NOPE
I point out that the CDC had recommended that everyone get a 90 days supply of their medicine – NOPE
I point out that our Governor was telling everyone to shelter in place in about 12 hrs for at least two weeks – NOPE.
The PCP send the order to this Warehouse club THREE TIMES that day… I forgot what day it was and it was our PCP’s DAY OFF and this pharmacist had been interacting with the PCP’s staff – there are six prescribers in the office.
One of the staff from the office called me and she said that I called her a “nasty woman”… even Barb knows that is not in my vocabulary. The office calls back again about 3:21PM on Tues and said that the Rx had been approved once again..
The next morning, I called the pharmacy and the pharmacist told me that she had nothing from the office since around noon and I am looking at the EPIC portal and she had been sent a OK TO FILL at 2:41 PM.. She told me that she was NOT GOING TO FILL IT – TAKE YOUR BUSINESS SOMEWHERE ELSE…
Did you know that if you put your IPAD in voice record mode and lay your Iphone on top of it and make a phone call with the speakerphone on..that both sides of the phone conversation will be recorded ? Indiana is NOT A TWO PARTY RECORDING STATE !!
At our PCP request, we communicate directly with texts… I sent him a letter as a *.pdf attachment to a text.. the letter started out as “I’m confused…” and I get a text back from him starting as “I’m confused also…” After a couple of exchanges… he texts get back with me Monday and we will get everything straightened out. Of course, hell will freeze over before I go back to that club warehouse Rx dept.
I am hoping that the staff made notes in EPIC as this pharmacist called to the office and I am going to try and get a copy of those notes. My gut is telling me that she was trying her damn best to queer our relationship with our PCP over this early refill. She would probably have better luck at buying a lottery ticket and expecting to win a big jackpot.
Did you know that it is not that difficult to find the name of the Senior VP of Pharmacy services for this club warehouse ?
As soon as I get all my documentation together, guess who is going to get a certified letter with a couple of cut-up membership cards and letter explaining what great service this particular pharmacist provides at this particular club warehouse of theirs.
Even as company pharmacists protested, Walmart kept filling suspicious prescriptions, stoking the country’s opioid epidemic. A Republican U.S. Attorney in Texas thought the evidence was damning. Trump’s political appointees? Not so much.
ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.
On a Tuesday just before Halloween in 2018, a group of federal prosecutors and agents from Texas arrived in Washington. For almost two years, they’d been investigating the opioid dispensing practices of Walmart, the largest company in the world. They had amassed what they viewed as highly damning evidence only to face a major obstacle: top Trump appointees at the Department of Justice.
The prosecution team had come to Washington to try to save its case. Joe Brown, the U.S. attorney for the Eastern District of Texas, led the group, which included Heather Rattan, an over-20-year veteran of the office who had spent much of her career prosecuting members of drug cartels.
They first went to the Drug Enforcement Administration’s headquarters to meet the acting administrator, Uttam Dhillon. There Rattan laid out the evidence. Opioids dispensed by Walmart pharmacies in Texas had killed customers who had overdosed. The pharmacists who dispensed those opioids had told the company they didn’t want to fill the prescriptions because they were coming from doctors who were running pill mills. They pleaded for help and guidance from Walmart’s corporate office.
Investigators had obtained records of similar cries for help from Walmart pharmacists all over the country: from Maine, North Carolina, Kansas and Washington, and other states. They reported hundreds of thousands of suspicious or inappropriate opioid prescriptions. One Walmart employee warned about a Florida doctor who had a “list of patients from Kentucky that have been visiting pharmacies in all of central Wisconsin recently.” That doctor had sent patients to Walmarts in more than 30 other states.
In response to these alarms, Walmart compliance officials did not take corporate-wide action to halt the flow of opioids. Instead, they repeatedly admonished pharmacists that they could not cut off any doctor entirely. They could only evaluate each prescription on an individual basis. And they went further. An opioid compliance manager told an executive in an email, gathered during the inquiry and viewed by ProPublica, that Walmart’s focus should be on “driving sales.”
After they finished their presentation, Dhillon sat back in his chair and exclaimed, “Jesus Christ,” according to five people familiar with the investigation. “Why aren’t we talking about this as a criminal case?”
That’s precisely what had occurred seven months earlier: Rattan had informed Walmart that she was preparing to indict the corporation for violating the Controlled Substances Act. Indictments of Fortune 500 companies are unheard of, let alone of one with $500 billion in annual revenue and over 2 million employees. But Rattan, with support from her boss Brown, believed the evidence justified such an unprecedented step.
Before the Texas prosecutors could file their case, however, Walmart escalated concerns to high-ranking officials at the DOJ, who then intervened. Brown was ordered to stand down. On Aug. 31, 2018, Trump officials officially informed Walmart that the DOJ would decline to prosecute the company, according to a letter from Walmart’s lawyer that lays out the chronology of the case.
But the Texas prosecutors hadn’t given up. Now, two months later, they still thought they had a chance to bring the then-deputy attorney general, Rod Rosenstein, and other top officials around. After the first presentation at the DEA offices that day, the Texas group — now accompanied by the DEA’s Dhillon — caravanned over to the DOJ.
They filed into a big, bright conference room, where they were received by Rosenstein and a collection of political appointees and career staff. Rattan and her team were given a half-hour to make their presentation. She explained that dispensing opioids without a legitimate medical purpose is legally akin to dealing heroin. Criminal law says if a person or entity is willfully blind or deliberately ignorant, they are as liable as if they had acted intentionally. Once Walmart’s headquarters knew its pharmacists were raising alarms about suspicious prescriptions, but the compliance department continued to allow — even push — them to fill them, well, that made the company guilty, the Texas prosecutors contended.
This was not a question of a few rogue employees, Rattan explained. Walmart had a national problem. Worse, the prosecutors contended, the company was a repeat offender. Walmart had agreed to a settlement with the DEA seven years earlier in which it had promised to improve its controls over the abuse of opioid prescriptions. Still the problems persisted. That’s why the prosecutors believed they needed to pursue the extraordinary path of a criminal prosecution. As they concluded, Brown was emphatic, telling Rosenstein: “We have to act.”
A fine would not be a sufficient deterrent, the DEA’s Dhillon added, since Walmart “has more money than it knows what to do with.”
“Not that there’s anything wrong with that,” Rosenstein responded, according to five people familiar with the investigation. “We are all capitalists here.”
Rosenstein’s quip brought the prosecutorial team up short. They weren’t pursuing Walmart because it was profitable but because, in their view, the company had put its customers at deadly risk.
Not long after, Rosenstein’s assistant entered the room to say he had a call. He left. The prosecutors’ push to persuade Rosenstein to revive the criminal case had failed.
When Rosenstein was told that a fine would not be a sufficient deterrent for Walmart, he replied, “We are all capitalists here.” (Jacquelyn Martin/AP)
Still, there were multiple avenues left to pursue: After the meeting, the Texas prosecutors focused on bringing criminal charges against individual employees, as Rosenstein and other Trump DOJ officials directed them to do. But later, when the prosecutors sought to indict a mid-level Walmart manager, the Trump officials blocked that, too.
That left potential civil claims. After the meeting with Rosenstein, Brian Benczkowski, the head of the criminal division, had told Brown, “You have a whopper of a civil case,” according to four people familiar with the investigation.
But the civil case, too, was stymied by Trump appointees in the DOJ who continued to side with Walmart.
In its dealings with the DOJ, Walmart pursued a classic strategy. It relied on Jones Day, an influential law firm that has salted officials throughout the Trump administration. Walmart conceded mistakes and opened the door for a civil settlement. But the company consistently denied that any of its employees committed crimes.
In the view of many prosecutors and agents, Walmart never fully cooperated. (From the beginning of the investigation, Walmart said it was cooperating and taking action to fix its opioid dispensing practices. Still, the company acknowledged that it halted its cooperation in mid-2018 after it became convinced prosecutors were not acting in good faith.)
And Walmart and Jones Day added a Trumpian tactic: At a moment when the president had established a habit of attacking the investigators in his own government, the company followed a similarly aggressive approach. Walmart lawyers complained to Washington about the Texas prosecutors, accusing them of seeking to “embarrass” the company while using the threat of criminal charges to extort a larger civil fine. Criminal and civil investigations can run in parallel, but it’s an ethical violation for prosecutors to use the threat of criminal penalties to generate a higher civil settlement.
In a statement to ProPublica, Walmart spokesman Randy Hargrove reiterated the company’s complaints: “The United States Attorney’s Office for the Eastern District of Texas (EDTX) engaged in misconduct multiple times as it investigated Walmart, including threatening to bring meritless criminal charges against Walmart in order to extort an unjustified civil settlement from the company. This behavior was clearly improper, violated the Department of Justice’s own internal policies and rules of legal ethics, and was entirely inconsistent with the Department’s long-standing policies.”
Hargove added that having failed to bring “baseless” criminal charges against the company, “It appears that one or more individuals familiar with EDTX’s investigation have violated Department of Justice rules in an attempt to achieve through leaks what they could not accomplish in a court of law.”
In response to the Walmart statement, the U.S. attorney, Brown, offered his own to ProPublica: “Drug Enforcement Agency investigations of multiple opioid overdose deaths in the Eastern District of Texas resulted in our office opening parallel civil and criminal investigations of Walmart’s pharmacy practices. These investigations have been handled appropriately, and according to Department of Justice policy. These investigations, which we would typically not confirm or deny, but do so now because of Walmart’s statement, continue. Accordingly, it would be inappropriate to comment further on the specific facts of the case.
“Walmart chooses now to attack the investigators, a tried and true method to avoid oversight. We are confident that once all of the facts in this matter are public the hollowness of this criticism will be apparent. It is not the goal of our office to embarrass Walmart. Walmart’s behavior in dispensing opioid medication in the middle of a public health crisis should embarrass Walmart.”
Walmart’s ability to go over the heads of the Texas office left the U.S. attorney’s team profoundly frustrated — so much so that the lead civil prosecutor on the case resigned in protest on Oct. 25, 2019. “I deeply regret that Department leadership prevented EDTX from filing its lawsuit in 2018,” Joshua Russ, then the head of the Eastern District’s civil division, wrote in his resignation letter, a copy of which (with Walmart’s name blacked out) ProPublica obtained. “Corporations cannot poison Americans with impunity. Good sense dictates stern and swift action when Americans die.”
The investigations of Walmart have not been previously reported. This account is based on hundreds of pages of Walmart internal emails and investigative documents, correspondence between the company’s attorneys and the Justice Department, and interviews with nine people familiar with the investigation. All of the conversations described in this article were recounted either in those documents or by multiple people with knowledge of the conversations. The DOJ declined to make anyone available for interviews and did not answer an extensive list of questions.
The news of the Walmart investigation comes at a time when the Trump administration is being assailed for legal favoritism and cronyism. Attorney General Bill Barr has inserted himself into multiple investigations of Trump friends and associates. In February, four prosecutors on the case of Roger Stone, a Trump friend and adviser, quit the case in protest after political appointees undercut their sentencing recommendation.
Barr, center, accompanied by Deputy Attorney General Jeffrey Rosen, right, speaks at the Justice Department’s National Opioid Summit on March 6, 2020. (Andrew Harnik/AP)
The Trump DOJ has also pulled back on white-collar and corporate investigations and prosecutions. White-collar prosecutions are at a record low. Walmart itself seems to have already benefited from the Trump administration’s approach to corporate misconduct. The company was the subject of a seven-year investigation into bribery allegations in Mexico and around the globe. The Obama administration sought $600 million in fines, according to The New York Times, which broke the story, but failed to reach a resolution with the company. The Trump DOJ settled the charges for $282 million in June 2019. (“Walmart took the investigation very seriously, cooperated with the DOJ and the SEC’s investigation, and took extensive steps that have established its comprehensive Global Anti-Corruption Program,” the company said.)
President Donald Trump reaches to shake hands with Doug McMillon, CEO of Walmart, during a news conference about the coronavirus in the Rose Garden at the White House on March 13, 2020. (Alex Brandon/AP)
Even as Trump’s DOJ was preventing its own prosecutors from getting tough on Walmart, the Trump administration told the public it was confronting the nation’s opioid crisis. In March 2018, Trump said his administration would hold those responsible accountable, pledging that federal lawsuits against opioid drugmakers “will happen.” The same month that Rosenstein declined to revive the criminal case against Walmart, Trump signed legislation aimed at curbing the opioid crisis. A key element was a public-private partnership with several companies, including Walmart, to implement measures such as opioid addiction education initiatives. “Together we are going to end the scourge of drug addiction in America,” Trump said. (This month, Walmart CEO Doug McMillon appeared in the White House’s Rose Garden to pledge the company’s help in combating the coronavirus.)
For those who spent years investigating Walmart, the chasm between the public posturing and the behavior behind closed doors has been deeply discouraging. By the end of the experience, one said: “I wanted to ask for a Walmart greeter badge. It’s got much more stroke than a DEA badge.”
The case against Walmart originated in the summer of 2016, with an investigation of two Texas doctors, Howard Diamond and Randall Wade, who were prescribing opioids on a vast scale. Prosecutors would link each to multiple deaths. The lead prosecutor on the criminal case, Rattan, made it clear to the DEA agents on the case that this should be run like any drug investigation. They should focus on cutting off the dealers’ sources of drugs.
One of those was Walmart. In August, DEA agents, surveilling Wade’s clinic, followed three women to a Walmart in McKinney, Texas. Shortly afterward, all three walked out with large quantities of painkillers.
On Dec. 7, 2016, DEA agents raided that Walmart, seeking records about Diamond and Wade. The two doctors were eventually convicted of illegal distribution of opioids, with Wade sentenced to 10 years in prison and Diamond 20 years.
Walmart has the fifth-highest pharmacy revenue in the country and was the fifth-largest opioid distributor in Texas from 2006-14, according to the DEA. But Walmart pharmacies had not been raided before; raids of Fortune 500 companies are exceedingly rare. Alarmed, Walmart’s lawyers quickly asked the government to conduct no more raids and pledged full cooperation.
The Texas prosecutors broadened their investigation and began to amass evidence that extended far beyond Diamond and Wade. Between 2011 to 2017, they discovered, Walmart pharmacists repeatedly filled prescriptions that they worried were not for legitimate medical purposes, including large doses of opioids and mixtures of drugs the DEA considered red flags for abuse. Walmart pharmacists not just in Texas but in Maine, North Carolina, Massachusetts, Kansas and Washington state raised alarms to the company’s national compliance department about doctors.
Sometimes, these pharmacists requested permission to stop filling opioid prescriptions for certain doctors. In February 2015, a pharmacist wrote to the national compliance department about Diamond:
“We are all concerned about our jobs and about filling for a pill mill doctor. I’m in my 29th year with walmart and have never had a situation this bad with a doctor. Other chains are refusing to fill for him which makes our burden even greater. Please help us.”
Another wrote that same month:
“doctor Diamond is a problem and a liability on us…
Filling for him is a risk that keeps me up at night. This is a serious situation.”
But even after more than a decade of soaring addiction and deaths had transformed opioids into a national crisis, Walmart had a policy that pharmacists could conduct no “blanket refusals” that shut off prescriptions written by a particular doctor. Nor would Walmart put doctors on a prohibited list from headquarters, known as a “corporate block.”
Some of Walmart’s competitors had stopped filling Diamond’s and Wade’s prescriptions, company pharmacists told headquarters. Why wasn’t Walmart doing the same? In February 2014, for example, Kroger sent a letter to Diamond saying it would no longer fill his controlled substances prescriptions. Walmart pharmacists were telling headquarters that CVS, Walgreens and Target were doing the same. (A CVS spokesman said the company implemented a policy of corporate blocks several years ago but, citing privacy, declined to comment on whether the policy was applied to Diamond and Wade. Spokespeople for Kroger, Walgreens and Target did not respond to requests for comment. Walmart insists there is no evidence that competitors issued corporate blocks against Diamond and Wade.)
A Walmart pharmacist in September 2016 wrote an alarmed note about a Pennsylvania doctor who was “under investigation by the DEA for what we believe is a pill mill operation.” He added:
“Rite Aid has sent him a blanket denial letter. …
And since then we have seen our almost solely narcotic and controlled prescriptions from him double….
We are putting pharmacists and Walmart in a bad situation legally….”
Instead of blanket refusals or a corporate block, Walmart’s compliance department said each prescription had to be evaluated separately. To block a prescription and report the refusal, a pharmacist had to fill out a form that could take 20 minutes, a bureaucratic hurdle that pharmacists sought to avoid because they were under pressure to fill prescriptions quickly.
From early 2014 to when Walmart finally blocked Diamond in March 2017 — after the federal investigation had started — the company’s pharmacists filled over 13,000 controlled substances prescriptions from Diamond, an average of 11 a day, according to documents reviewed by ProPublica. That amounted to over 1.3 million doses. Walmart only blocked Wade in November 2016, a month after he was indicted. Between the first Walmart employee’s alarm and then, Walmart pharmacies filled an average of nine controlled substance prescriptions a day written by Wade, amounting to 875,000 doses. Between 2011 and 2016, over 100 different Walmart pharmacies in 17 different states filled Wade’s opioid prescriptions.
More troubling to the federal investigators, for much of this period, Walmart was operating under a secret settlement, known as a Memorandum of Agreement, with the DEA, reached in 2011 and running four years. (The existence of the MOA has not been previously reported.) According to that agreement, a Walmart pharmacy in California had been filling prescriptions “for other than a legitimate medical purpose and/or outside the usual course of professional practice in violation of federal and state law” and had “dispensed controlled substances to individuals that [the pharmacy] knew or should have known were diverting the controlled substances.”
As part of the agreement, in which Walmart did not admit or deny wrongdoing, the company agreed to install national procedures to identify bad prescribers and prescriptions not written for legitimate medical purposes and report them quickly to the DEA.
In addition, Walmart had repeatedly run afoul of the Controlled Substances Act. The company had received more than 50 “Letters of Admonition” from the DEA for its prescribing practices from 2000 to 2018, according to records obtained by ProPublica. And it had paid two small Controlled Substances Act settlements in 2007 and 2008, one for filling unlawful prescriptions and the other for recordkeeping violations.
Prosecutors believed that Walmart was not fulfilling the terms of its agreement with the DEA. The company had an internal system for compiling pharmacists’ “refusals to fill” that it would send to the DEA. They found that Walmart didn’t always send the DEA its alerts. When the company did so, the notices were not complete. The form included a comments field, where pharmacists might write notes flagging concerns about doctors whom they believed were operating pill mills. Walmart sent the DEA the information that a prescription had been refused but excised the employee comments.
On Feb. 13, 2015, when a regional manager received a list of “Refusal to Fill” prescriptions from headquarters, he asked, “Does your team pull out any insights from these we need to highlight?” according to an email reviewed by ProPublica.
Brad Nelson, then a director of Health and Wellness Practice Compliance at Walmart, wrote back:
“The MOA that requires the reporting of the Refusal to fills expires in 30 days. We have not invested a great amount of effort in doing analysis on the data since the agreement is virtually over. Driving sales and patient awareness is a far better use of our Market Directors and Market manager’s time.”
Walmart maintains that Nelson was expressing relief that the onerous burden of alerting the DEA to its refusals to fill was coming to an end, and that in urging the manager to “drive sales,” he was referring to immunizations. Walmart depicted Nelson as a popular middle manager who was the first in the office every morning. He’d come in at 4:30 or 5 a.m. and spend the next three hours faxing refusals to fill to the DEA. Then he would make popcorn for his colleagues.
On Jan. 8, 2015, Nelson emailed colleagues that a pharmacist had contacted him with concerns, indicating “that he is feeling pressured” by his supervisor to fill prescriptions for controlled substances. If the pharmacist doesn’t fill the prescriptions, Nelson added, “then that would be a significant issue.”
Walmart says this email shows that Nelson was consistent: Pharmacists could not issue blanket refusals but could refuse prescriptions on a case-by-case basis. (Nelson referred questions to his lawyer, who did not respond to repeated requests for comment.)
Walmart told the investigators that the evidence the Eastern District compiled was misleading. The company said the DEA never required “corporate blocks” or “blanket refusals-to-fill.” The DEA did not respond to repeated requests for comment for this article.
Meanwhile, some state boards of pharmacy and medical boards protected doctors from being cut off by pharmacies on the grounds that companies should not interfere with the doctor-patient relationship, Walmart says.
For its part, Texas has no rules that would prohibit a pharmacy chain like Walmart from instituting a corporate block or blanket refusal policy, said Allison Benz, executive director of the Texas State Board of Pharmacy.
In Texas, pharmacy chains may, indeed, impose corporate-wide blocks on doctors whom they suspect are running pill mills, according to Sherif Zaafran, president of the Texas Medical Board. Zaafran said the board has told Walmart and other pharmacies that if they have concerns about a doctor, they have a legal obligation to file a complaint with the board while providing information supporting their concerns. “We never weigh in on a corporate block,” he said. “The corporation can instruct a licensed pharmacist to do so. It is the licensed pharmacist who has the legal ability to not dispense something.”
For its part, Walmart says it was taking its responsibilities seriously. The company says it flagged over 60,000 concerning prescriptions its pharmacists refused to fill during the period the investigation covered. It maintains Nelson was vigilant in urging his pharmacists to refuse to fill if they saw prescriptions they did not like, and to fill out the forms so that the company could send the information to the DEA. In the case of Diamond, Walmart says one of its pharmacists alerted the Texas Medical Board of its concerns. The board allowed Diamond to continue practicing medicine, finding that his “prescribing was appropriate.” (It did place him on a “remedial plan” to fix his allegedly sloppy record-keeping.) The board did not revoke Diamond’s license until October 2017, after his arrest.
A Walmart distribution center in Washington, Utah, in 2016. (George Frey/Bloomberg/Getty)
The company argues that, as the regulatory entity that licensed doctors to dispense opioids, the DEA, not Walmart, was responsible for the failure to shut down pill pushers like Diamond sooner. After the investigation started, Walmart reversed itself and began instituting corporate blocks, which suggested to prosecutors that the company could have been doing so all along. Since Walmart began the policy, multiple states have assailed and even investigated Walmart for improperly interfering with doctors’ decisions.
The prosecutors did not find Walmart’s many explanations convincing. The fact that the company had sent so many refusals to the DEA for a given doctor and yet would turn around and keep filling prescriptions for the very same sketchy physician suggested the problem was widespread. As far as federal prosecutors and the DEA were concerned, the MOA had placed Walmart on parole — and the company had violated its terms.
In the spring of 2018, the Eastern District of Texas informed Walmart that it was preparing criminal charges against the company. In traditional criminal investigations against individuals, indictments often come as a surprise. The government accumulates evidence and makes its arrest. The defense eventually sees the evidence and can respond then, sometimes only at trial.
Criminal investigations of big corporations don’t typically work that way in the United States. They have developed into a ritualized series of give-and-takes between prosecutors and the company. Prosecutors lay out their evidence and theories and the company gets the opportunity to respond in great detail — all out of public view. The Eastern District of Texas skipped this dance.
Stunned and worried, Walmart requested a meeting with the prosecutors. In April 2018, the two sides sat down.
Walmart had a powerful team. Karen Hewitt, the partner-in-charge of Jones Day’s California region, was the company’s lead outside lawyer. She had been the U.S. attorney in the Southern District of California, appointed by George W. Bush and then serving under President Barack Obama, accumulating a record for prosecuting corrupt politicians and drug and border crimes. Walmart’s inside lawyer was Bob Balfe. Walmart’s chief counsel for global investigations, Balfe also had been a U.S. attorney, serving as the head of the Western District of Arkansas, which includes Walmart’s hometown of Bentonville. In the biggest case of his career, he’d successfully prosecuted a Walmart legend, then-vice chairman Tom Coughlin, for a bizarre embezzlement scheme. Since he’d come to Walmart, Balfe had helped steer the company through the seven-year bribery investigation.
Most of the interactions between the government and the Jones Day lawyers were politely choreographed. Hewitt and Balfe were the picture of affability. “When you meet with them, it’s like those two chipmunks,” said one person familiar with the investigation, referring to the Looney Tunes characters Mac and Tosh, gophers that speak with posh British accents. “‘After you.’ ‘No, after you.’ They are so polite.”
The two sides largely agreed on the facts, but differed completely on whether they justified a criminal charge. And a dispute over the use of a single word would poison relations between the two sides, with Walmart using the word as a cudgel to attack the prosecutors.
The word in question was “embarrass.” According to two people familiar with the prosecution, Rattan told the Walmart side that the company should feel embarrassed by its conduct. Walmart would portray it differently, claiming that Rattan said her goal was “to embarrass Walmart” with a criminal indictment. (Walmart’s account is captured in a letter of complaint Hewitt sent the next month to Deputy Attorney General Rod Rosenstein.)
For the moment, though, the two sides maintained decorum. Walmart asked for 30 days to respond. Prosecutors agreed. On May 3 and 4, the two sides met again, this time in Plano, Texas, where the U.S. attorney’s offices are located.
By this time, Josh Russ had ramped up his office’s civil investigation. He did not plan to attend the May meeting, because it was a meeting led by the criminal side.
Walmart’s lawyers said they hoped to resolve any criminal or civil investigations in one shot and insisted on Russ’ presence. The prosecutors, leery of being accused of improperly coordinating the criminal and civil cases, demanded that Walmart make the request in writing. Walmart did, and Russ agreed to attend. Soon, however, Walmart would accuse the prosecutors of precisely the behavior they were attempting to avoid.
During the first six hours of the meeting, Hewitt and the Walmart lawyers described the results of their own internal investigation, saying the company’s outside lawyers had found no evidence of criminal wrongdoing by the company or its employees. They’d found no evidence of collusion or any improper financial relationships between doctors or customers and Walmart pharmacists. They also admitted that “Walmart could have and should have done more to voluntarily combat the opioid crisis,” according to the letter Hewitt sent to Rosenstein.
The Walmart lawyers outlined the risks to shareholders, employees and the public that could result from a criminal prosecution. But the prosecutors were unmoved. Rattan said that Walmart was no different from an individual criminal defendant who pleaded with the government for leniency by stating that her children would be harmed by her incarceration. Civil Chief Randi Russell took her remarks a step further, saying that Walmart’s size didn’t make it above prosecution. Balfe, becoming animated, touted Walmart’s opioid reforms and the company’s extensive cooperation with law enforcement.
“All of our defendants find Jesus in jail,” one person present recalled thinking. “But that doesn’t mean they don’t go to prison.”
The country was in a crisis, with hundreds of thousands of people dead and major companies poisoning people like drug dealers, as the prosecution team saw it. To the prosecutors, Walmart’s attitude was not only that it hadn’t done anything wrong, but that Walmart didn’t even need to take the prosecutors seriously. That point was reinforced the next day when Walmart made its first settlement offer: $34 million. Calling the offer “insulting,” Russ said Walmart could do better. The parties, he said, were “in different solar systems.”
The discussions reached a crescendo after one of Walmart’s outside lawyers accused the prosecutors of unethically trying to use the threat of a criminal prosecution to leverage higher civil penalties. Russell, angry, demanded that the Walmart lawyer retract his statement. Russ left the room, saying he would not tolerate an attack on his ethics.
Later, Rattan pulled out her phone, announcing she’d received a “confidential text message” from her boss, U.S. Attorney Joe Brown, who was attending an NRA rally that day with President Donald Trump. According to Hewitt’s written account, Rattan read the text aloud to the slack-jawed Walmart lawyers: “Walk away, indict them, and then be willing to settle with them after the indictment.”
After another counteroffer, Rattan read Brown’s reply aloud: “That doesn’t hurt Walmart in the least.” Walmart, which had earlier boasted to the group of giving $1 billion a year away to charities, could do much better, the government prosecutors said. Civil Chief Russell quoted the New Testament: “To whom much is given, much is required.”
Some of the prosecutors were willing to trade off a large fine, however, if they could add greater detail to the statement of facts that would eventually go public. Russell said Walmart had to admit it had “killed people.” Jones Day appeared to be eager to avoid such an admission, which would have brought bad publicity and made the company vulnerable in private and state lawsuits. (Walmart is a defendant in the massive opioid lawsuit brought by the states.)
On the way home, Walmart’s lawyers processed what had just happened. Balfe told his colleagues it felt like a hostage situation. A week later, Hewitt wrote to Rosenstein, reiterating the complaint about the office’s purported ethical violations. In a subsequent letter to the DOJ, she appeared ready to make a civil deal: “Walmart is a responsible corporate citizen and stands ready to engage in a principled and reasoned dialogue concerning any potential conduct of its employees that merits a civil penalty under the CSA.”
Rattan and her fellow criminal prosecutors insisted they were sincere. “The threat of indictment is real,” she said, as she concluded the May meeting. “I am not bluffing.” Rattan had amassed a highly successful record in her dozens of trials. “I’m telling you right now,” she would say around the office of the case against Walmart. “Swear in 12 people and present the evidence and they are in trouble.”
Josh Russ began preparing to file the Eastern District’s civil complaint. He sent it to the DEA, which signed off on it. In August 2018, the U.S. attorney’s office commenced planning to bring its civil charges; it began preparations for a press conference to make the announcement.
Meanwhile, Walmart continued appealing up the chain to top officials in Washington. On Aug. 10, Jones Day’s Hewitt sent a letter to Benczkowski, assistant attorney general and head of the DOJ’s Criminal Division, complaining about the investigation. The letter argued that a conviction could harm “millions of low-income and elderly citizens” who rely on federal programs for food and medicine. A convicted corporation might not be permitted to participate in those programs any longer. She outlined what she said were Walmart’s “remedial” measures to become “an industry leader in the Nation’s fight against the opioid crisis.”
Soon after, an official in the deputy attorney general’s office called Brown and told him to halt the Texas office’s criminal investigation, according to five people familiar with the investigation.
Officials at DOJ in Washington then turned their attention to the civil probe. In a video conference call in late August, Stephen Cox, the deputy associate attorney general and a top official in the civil division, and Mary Daly, a daughter of Bill Barr and then the director of opioid enforcement, asked Russ’ team about its tactics and evidence. Cox, who had never been a federal prosecutor and joined the agency from Texas energy company Apache, appeared upset that the Texas prosecutors had sought emails between compliance officials and their bosses, senior executives at Walmart. He seemed to view that tactic as overly aggressive, according to a person familiar with the investigation. The Texas prosecutors said they did so to find out what top Walmart executives knew.
Russ and others contended the civil suit was ready to be filed. Cox said it wasn’t. To spur Cox and his colleagues to action, Russ began to send daily examples of what the prosecutorial team viewed as particularly egregious prescriptions Walmart pharmacists had filled. His message: People had died because of opioids Walmart had dispensed, and every day that passed meant another lost opportunity because of the ticking clock on the statute of limitations.
Meanwhile, Walmart exercised its PR and political muscle. Just days after the contentious May meeting with Eastern District officials, Walmart launched what it billed as a sweeping effort “aimed at curbing opioid misuse and abuse.” The cornerstone was that it would restrict initial opioid prescriptions to no more than a seven-day supply. In September 2018, Ivanka Trump visited a Walmart in Mesquite, Texas, very close to the Eastern District’s offices. She was there, the White House said, to learn how Walmart trains and retains workers. The trip seemed to indicate just how close the company was to the White House.
Ivanka Trump attends a White House signing ceremony in January 2018 to provide Customs and Border Protection agents with screening technology to fight the opioid crisis. (Carlos Barria/Reuters)
Then came the meeting with Rosenstein in October 2018. Asked about his comments that day, Rosenstein responded by email that he did not recall his comment about everyone being “capitalists” but said: “If you lack the courage to decline a proposed criminal prosecution when you conclude that it is a mistake, you do not belong in a leadership job. We reached every decision after considering the non-partisan factors set forth in the Justice Department’s principles of federal prosecution.”
Trump officials ordered a six-month cooling off period, directing the U.S. attorney’s office to try to reach a settlement with Walmart.
Meanwhile the DOJ formed a national Walmart Working Group, with four other U.S. attorney’s offices in New York, North Carolina, Florida and Colorado. State attorneys general were brought in. On the one hand, the creation of the group underscored the national character of Walmart’s opioid problems. On the other, it dispersed responsibility among different offices and Russ, who was appointed co-head of the group, told colleagues he thought his investigation was being taken away from him.
In January 2019, the DEA presented Walmart with a new, broad subpoena. Walmart had been furnishing what it contended were huge volumes of materials. But it had not handed over everything the government requested. Walmart complained to the prosecutors that the requests were too onerous and overreaching, and that the company needed more time.
Prosecutors felt Walmart wasn’t sufficiently cooperative. Walmart never furnished a full list of doctors its pharmacists were concerned about. Walmart did not give the government full information on its internal databases to analyze prescribing information and patterns. Perhaps most crucially, Walmart had not turned over the emails the Eastern District had subpoenaed between compliance officials and their bosses (the ones Cox had been so shocked about).
Russ begged Washington officials to take it to a judge to enforce the government’s subpoena. The Trump appointees refused, telling the Working Group to keep negotiating.
The Texas prosecutors worried Walmart had an even better inside track than it had already displayed. In June 2019, they learned that Hewitt and Balfe had met with Barr.
The company says the three met as part of a national conference of U.S. attorneys and that it amounted to a grip-and-grin photo op in the presence of several other U.S. attorneys. No one raised the investigation, according to Walmart: “Bob Balfe and Karen Hewitt did not have any discussions with Attorney General Barr or his staff about Walmart.”
In response to an extensive list of questions for this story, DOJ spokeswoman Kerri Kupec responded with a statement that read in whole: “While the Department does not generally confirm, deny, or acknowledge the existence of investigations, it is worth noting that Pro Publica’s reporting in this piece is misleading and contains numerous inaccuracies and erroneous conclusions. As just one example, the meeting with Attorney General Barr that is cited was with eight former US Attorneys from the National Association of Former US Attorneys (NAFUSA) all acting in their capacities as NAFUSA officers, where no particular matters were discussed.”
Still, the prosecutors felt like the Walmart side attempted multiple end runs. For example, Cox’s predecessor, Rachel Brand, had left the DOJ in February 2018 to take a top job in Walmart’s legal department. About a year later, Brand’s attorney inquired as to whether she could appear before the DOJ. The Eastern District team got wind of the request and raised concerns. Walmart says Brand had no interactions with top DOJ or White House officials about the investigation.
Rosenstein and Rachel Brand are sworn in before the Senate Judiciary Committee on March 7, 2017. Both have since left the DOJ. (Aaron P. Bernstein/Reuters)
On the criminal side, now that the corporate indictment was dead, the Texas prosecutors pursued the directive to focus on individuals. Rattan prepared an indictment of Brad Nelson, the former compliance manager who had told an executive that the company should focus on “driving sales.”
Walmart lawyers objected. Nelson was no criminal, they contended. Jones Day kept up its pressure. In another letter to Trump officials on Sept. 27, 2019, this time addressed to Gus Eyler, who was now the co-head of the national Walmart Working Group with Russ, Hewitt objected to the threat of a Nelson indictment and once again accused the prosecutors of trying to embarrass the company. Hewitt wrote: “We are concerned that either of the following may be true: the threat of an indictment of Mr. Nelson is being made to pressure Walmart in a civil proceeding in violation of DOJ procedures and the rules of legal ethics, or, just as concerning, EDTX actually intends to prosecute an individual not because the facts support it but in an effort to embarrass Walmart in retaliation for the previous declination of a criminal case against the Company.”
She added, “We also intend to suspend further production of documents under the Omnibus Subpoena until these issues relating to the status of this investigation are resolved.”
The government had issued a lawful subpoena. Walmart was treating it as optional.
Under other circumstances, the DOJ might have raced into a court to force a defiant company to comply with the subpoena. Instead, soon after receiving Hewitt’s letter, Washington informed the Texas prosecutors that they could not indict Nelson.
The civil investigation was still muddling on, however. In midsummer, as the six-month deadline approached, Russ told DOJ officials that Walmart was still not cooperating fully. Trump officials decided to give Walmart three more months. When the next deadline came up on Oct. 25, Washington wanted to extend the negotiations again.
Russ resigned that day. Walmart, he said in his resignation letter, “abused the Department’s fairness, largely ignored our subpoena, and scoffed at our larger work on behalf of all Americans.”
He added, “When I took my oath of office, I invoked God’s judgment and swore that I would support and defend the Constitution.”
The news reverberated throughout the office. “Josh was Captain America, well-respected, well thought of. It came as a big blow,” said a person familiar with the investigation, adding, “It seemed that maybe the country’s best interests were not at heart.”
On Nov. 7, the new deputy attorney general, Jeffrey Rosen, summoned the Texas prosecutorial team again to Washington for another meeting, gauging the progress of the Working Group’s negotiations with Walmart. The team reprised its presentation of the evidence that it had delivered to Rosenstein about a year earlier. Joe Brown, the U.S. attorney, asked Rosen: “Can you point out what’s wrong with our evidence?” Rosen did not respond.
In recent weeks, the DOJ’s inaction has begun to raise concerns on Capitol Hill. Jerrold Nadler, the chairman of the House Judiciary Committee, sent a letter to Dhillon and Barr expressing “concern regarding the Department’s inability to hold prescription opioid distributors and chain pharmacies accountable.” A hearing may follow.
Meanwhile, four years after the investigation first began, negotiations on a civil settlement between the government and Walmart continue.
Do you have information about the Trump Department of Justice or corporate malfeasance? Jesse Eisinger can be reached at jesse.eisinger@propublica.org or on Signal: 718-496-5233.
In 2016, while I was fighting for those suffering from chronic and debilitating pain to keep their Opiate pain management, I received this plea from one of my friends, Michelle Bloem, begging for the government not to cut her life-saving pain management.
Like me, Michelle lived with Complex Regional Pain Syndrome (CRPS), also known as Reflex Sympathetic Dystrophy (RSD), Every day was agony for her and the only thing that was keeping her alive and functioning with some hope was her opiate pain management.
In fear of losing her pain management, Michelle wrote this letter and sent it to whoever would listen.
To whom it may concern,
I have CRPS/RSD and am currently seeing a doctor that monitors my progress and medications. I was diagnosed in June of 2010. After trying every treatment modality including physical therapy, anti-seizure medications, biofeedback, etc. I was put on OxyContin. After having 8 brachial plexus nerve blocks and 5 lumbar nerve blocks, my neurologist/ pain management doctor kept upping the dosage of it because I was getting no relief and we could not figure out why. He ended up upping the dosage so much I was only experiencing side effects, no pain relief. I decided to leave my pain management doctor at UCLA and seek out another doctor that could find out why I wasn’t getting any pain relief. I finally found a doctor that did many tests on me including: Neuroinflammation blood tests, Genetic malabsorption blood work-up. My doctor was able to figure out that I cannot absorb oral opioids due to a genetic malabsorption defect. He put me on a trial of subcutaneous Dilaudid. I had experienced instant pain relief and received my quality of life back. I have been on this medication for two years with no side effects. This medication has to be compounded, which my new insurance will not pay for. Dr. Tennant has saved my life and given me my life back. You must understand that we chronic pain patients cannot be punished for the people that use opioids illegally. None of us “want” to be on these medications, but have no choice. After trying everything, we just want quality of life. The restrictions that are already put in place are making it harder and harder for the legitimate chronic pain patients to get their medications that give them quality of life. Please consider that we are carefully monitored by our doctors and take our medications as prescribed only. We should not be punished for the street abusers that only want a “high”. I have never experienced a “high” from my pain medicine. There are studies in the process that have to do with different medications to help us, but it takes an extremely long time to get the FDA approved. In closing, I hope you will kindly consider our circumstances, that we have families, and only want to be able to participate in daily activities without suffering inhumanly.
Thank you,
Michelle Bloem
No one cared enough to listen to her plea.
Not long after writing this letter, Michelle’s worst fears came true. She was forcibly tapered from her opiate medications for no reason other than an arbitrary policy set in motion by the January 2016 CDC Guidelines for Opiate Prescribing.
Michelle was a proud mother to her beautiful, beloved daughter, Ireland. Wife to her loving husband. An activist. Advocate. She was an example to me and many others on how to survive this condition with grace, self-respect, and dignity. She was always willing to help her fellow Chronic Pain Warriors, be an ear to listen, and a shoulder to cry on. Losing Michelle was a blow to the whole community. The United States lost someone truly special and inspirational when we lost her.
Because of the way our government is responding to the ‘Opiate Epidemic’–which is actually a heroin and illicit Fentanyl problem–patients with treatable conditions are dying. All Michelle needed to continue living was the medication our government just forcibly took away from her. Taking away life-saving pain management without taking away the pain only drives patients to the bottle, the street, or suicide as means of pain management–if they don’t die from a stroke or heart attack first. On average, a patient with chronic pain will last about 2 weeks without proper pain management before taking their life. The lack of hope that the pain will ever go away is a death sentence. It was for Michelle and for so many others.
We need to stop slaughtering patients with chronic and debilitating pain.
We need to stop criminalizing addiction, which is a medical condition.
We need to stop incarcerating doctors who do their jobs and treat pain.
Dale said she’s been taking the medication for a decade, and she’s scared about possible consequences to her own health during the coronavirus pandemic if she’s forced to stop taking hydroxychloroquine.
“I am already immunocompromised, and not taking this medication with likely put me into a lupus flare, making serious complications from COVID more likely,” she said.
“The fact that they thanked me for my ‘sacrifice’ is disturbing,” she then added. “I never agreed to sacrifice my health and possibly my life and cannot believe that I am being forced to do so.”
In the message Kaiser sent to her about its decision to withhold the medication, it wrote, “Please do not contact your physician about an exception process to get a refill, as prescriptions will not be filled even if written by your physician. Hydroxychloroquine does build up a level in the system that stays in the body for an average of 40 days even after the last dose is taken. If you do run out of medication and feel your condition is significantly worsening, please contact your doctor to discuss alternative treatments.”
“Thank you for the sacrifice you will be making for the sake of those that are critically ill; your sacrifice may actually save lives,” the message said.
In a statement provided to BuzzFeed News, Kaiser Permanente confirmed that it was no longer filling routine prescriptions for chloroquine.
“As we face the real possibility of running out of the drug for everybody if we don’t take steps to mitigate the shortage, Kaiser Permanente, like other health care organizations across the country, has had to take steps to control the outflow of the medication to ensure access to severely sick patients, including both COVID-19 and those with acute lupus,” said Nancy Gin, regional medical director of Quality and Clinical Analysis at Kaiser Permanente, Southern California, which has 4.6 million members.
“Extensive experience and research show that hydroxychloroquine builds up in the body and continues to work for an average of 40 days even after the last dose is taken. By then, we expect the drug manufacturers to have ramped up production to meet the increased demand. Until then, we are no longer refilling routine prescriptions to ensure we have adequate supply to care for our sickest patients,” Gin said.
“Kaiser Permanente physicians and pharmacists are also working together on an evidence-based approach to identify alternative therapies for patients with lupus,” Gin added in a follow-up statement.
Dale said she immediately called her doctor and has been scheduled for a phone call next week.
Please do not misuse hydroxychloroquine. This med is critical for people who have SLE, like me. I was told today that my prescription cannot be filled because the suppliers are completely out. Now I do not have the meds I actually need for an incurable disease I actually have. 🤬 https://t.co/dlwuWCwVZk
Despite thin evidence for the drug’s effectiveness against coronavirus infections, shortages of chloroquine have erupted since Trump called it a “game changer” at a White House news conference late last week. The drug, a derivative of an antimalarial drug, has been added to the regimen for treating COVID-19 infections in China and South Korea and is being tested in clinical trials in the US.
However, experts on drug testing have been skeptical of the evidence for its benefits. A frequently cited French study of 20 patients saw several drop out of the trial to instead go into intensive care.
An Arizona man died on Monday after self-medicating with a related drug, chloroquine phosphate, where chloroquine was also touted at White House news conferences.
“For many people with lupus there are no alternatives to these medications,” the Lupus Foundation of America said in a statement on Monday, warning of shortages. “Hydroxychloroquine or chloroquine are the only methods of preventing inflammation and disease activity that can lead to pain, disability, organ damage, and other serious illness.”
Dale, who’s been calling multiple pharmacies in her local area, said, “I have learned that all area pharmacies are completely out of hydroxychloroquine.”
“In their mission statement, Kaiser says that they aim ‘to provide high-quality, affordable health care services and to improve the health of our members and the communities we serve,'” Dale said. “How is denying medication for a chronically ill, immunocompromised patient during a pandemic improving my health?”
“I want Kaiser to follow their own mission statement and reverse the decision to withhold my medication.”
UPDATE
This story has been updated to include a follow-up statement from Kaiser Permanente.
