1851 Center Sues Kasich Administration, Controlling Board

1851 Center

Ohio’s Department of Medicaid and the state Controlling Board were named as respondents in an 1851 Center for Constitutional Law complaint submitted to the Ohio Supreme Court on behalf of six state representatives and two Right to Life groups on October 22.

Rep. Matt Lynch (R-Bainbridge Twp.), Rep. Andy Thompson (R-Marietta), Rep. Ron Young (R-Leroy Twp.), Rep. Ron Hood (R-Ashville), Rep. Ron Maag (R-Lebanon), Rep. John Becker (R-Union Twp.), Cleveland Right to Life, and Right to Life of Greater Cincinnati were all listed as relators in the complaint.

At issue, 1851 Center Executive Director Maurice Thompson wrote, is not whether Ohio should expand Medicaid, but “whether the Executive Branch of government may effectuate such a major policy change administratively — not only without a vote of the Ohio General Assembly, but over the objections of the General Assembly, as expressed through its unambiguous acts.”

The Controlling Board agreed on October 21 to appropriate over $2.5 billion in Medicaid expansion funding provided through the Patient Protection and Affordable Care Act (PPACA), commonly referred to as Obamacare.

As Ohio’s major papers have all acknowledged, Governor John Kasich and his administration turned to the Controlling Board specifically because the Obamacare expansion was rejected by the legislature.

“The expansion of Medicaid spending in Ohio, through receipt of federal funding with considerable conditions attached, is without question a major policy decision that the Ohio Constitution requires the legislature to make,” Thompson wrote in the complaint to the Ohio Supreme Court.

He added, “The Ohio Constitution forbids the delegation of such major policymaking authority to a small administrative board of legislators and executive branch officials where those policy outcomes diverge from the expressed intent of the Ohio General Assembly.”

“Relators are entitled to a writ of mandamus ordering Respondent Ohio Controlling Board to vacate its void and unlawful October 21, 2013 order appropriating funds to expand Medicaid spending in Ohio,” the complaint continued.

Thompson noted that the Ohio House “deliberately removed” Medicaid expansion from Kasich’s budget, the Ohio Senate “did not reintroduce the proposal,” and both the House and Senate approved “language expressly prohibiting ACA Medicaid expansion.”

Only after vetoing the General Assembly’s ban on the Obamacare Medicaid expansion and deciding to expand Medicaid by executive fiat did the Kasich Administration go to the Controlling Board.

During the October 21 Controlling Board hearing, Ohio Medicaid Director John McCarthy “conceded the absence of any precedent for Controlling Board action approving program and funding levels that the Ohio General Assembly had expressly sought to prevent,” Thompson pointed out in the complaint.

“To promote an affirmative vote at the hearing, Medicaid Director McCarthy informed the Controlling Board of the Administration’s interest in expanding Medicaid spending even without the federal funds, and bankrupting Ohio’s Medicaid system by the end of Fiscal Year 2014,” Thompson added.

Of the six legislators listed as relators in the complaint, Thompson wrote, “Each Representative has a constitutional right and duty to make major policy decisions affecting the State of Ohio’s health care system, pursuant to Article II of the Ohio Constitution, and each Representative wishes to vindicate that right and duty in this action.”

“Each Right to Life group seeks debate of the receipt of federal ACA Medicaid expansion funding in the Ohio General Assembly where, as opposed to before the Controlling Board, it has an opportunity to appear and present policy considerations in opposition to the funding,” the complaint explained.

Thompson cited Ohio Revised Code 127.17, which states, “The Controlling Board shall take no action which does not carry out the legislative intent of the general assembly regarding program goals and levels of support of state agencies as expressed in the prevailing appropriation acts of the general assembly.”

“Even subsequent to an executive branch veto, courts routinely determine legislative intent through legislative history,” Thompson wrote, citing precedents from 1984 and 1985.

The complaint included three exhibits: Medicaid Director McCarthy’s October 11 Controlling Board request, a summary from the governor’s office of Gov. Kasich’s June 30 budget bill vetoes, and the October 16 protest of Kasich’s Controlling Board maneuver signed by 39 House Republicans.