HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Thursday, October 24, 2013

Guest Blogger Professor Wilson R. Huhn – 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:

Will HuhnOn 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.


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