Action of Ohio Controlling Board on Medicaid Expansion

According to Professor Wilson R. Huhn of the University of Akron School of Law, the Ohio governor’s action expanding Medicaid in Ohio is valid. He writes:

On Monday, October 22, at the urging of Governor Kasich, the  Controlling Board of the Ohio Legislature voted 5-2 to accept $2.5  billion in federal funding to expand Medicaid in the State of Ohio.  Under the laws of Ohio this action was valid.

The Controlling Board is a state agency created by statute. The agency  has two principal powers: it can transfer funds and authorize purchases  by state agencies, and it can decide to accept federal funding on behalf of these agencies. Section 131.35(A)(5) of the Ohio Revised Code  states: “Controlling board authorization for a state agency to make an expenditure of  federal funds constitutes authority for the agency to participate in the federal program providing the funds ….”

Two advocacy organizations (the Buckeye Institute and the 1851 Center  for Constitutional Law) as well as several Ohio lawmakers have announced that they intend to challenge the legality of the action of the  Controlling Board. They contend that the action of the Board violates  Section 127.17 of the Ohio Revised Code, which provides that the Board  is bound by the intent of the Ohio General Assembly. The challengers  quite correctly point out that both houses of the General Assembly voted not to accept federal funding to expand Medicaid. Governor Kasich  vetoed this bill, but the challengers argue that despite the Governor’s  veto it’s clear that the General Assembly did not want the Controlling  Board to accept federal funding to expand Medicaid.

Section 5163.03 of the Ohio Revised Code authorizes the state’s  Medicaid program to cover any “optional Medicaid group” unless state  statutes expressly prohibit such coverage. If state statutes are silent, this law says that the state is permitted to expand Medicaid to that  group. Section 5163.03 is the prevailing law – the vetoed bill that  would have prohibited Medicaid expansion is not.

The action of the Governor and the Controlling Board was authorized by  statute and was not prohibited by the legislature. If the legislature  wishes to prevent Medicaid expansion then it must pass a law prohibiting this action over the veto of the Governor.

To listen to a debate on Ideastream between Professor Huhn and one of the the plaintiffs in the lawsuit, go here.

Wilson R. Huhn is a Professor at the University of Akron School of Law and the  author of the book ObamaCare: Is It Necessary, What Will It Accomplish,  Is It Constitutional? and The Five Types of Legal Argument.

[cross posted from HealthLawProf Blog]

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