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Vorys Health Care Advisors

The Governor’s Big Play: Pushing Ahead on Medicaid Expansion

Posted in Affordable Care Act, Behavioral Health, Health Care, Health Care Reform, Medicaid

By Sylvia Brown and Former State Senate President Tom Niehaus

Anticipation is building as the battle over Medicaid expansion moves to the unlikely arena of the state Controlling Board. On Monday, October 21 at 1:30 p.m., Governor John Kasich will try to make good on his promise to take whatever action within his power to expand Medicaid in Ohio – with or without the approval of the Ohio Senate or House.

At that meeting, the Controlling Board will hear a request from the Ohio Department of Medicaid for authorization to appropriate federal funds to make an estimated 275,000 additional people eligible for the Ohio Medicaid program.

Medicaid is a state and federal program that provides health care coverage for eligible families and individuals with low income. The department has requested an additional appropriation of federal funds of nearly $562 million in fiscal year 2014 and almost $2 billion in fiscal year 2015 to fund this expansion. The request expressly states that if the federal government reduces its funding, state funds will not be used to supplant federal funds.

The controversial move has been rumored for weeks and elicited strong reactions from proponents and opponents. While the success of this attempt by Governor Kasich to expand Medicaid is not guaranteed, it is unlikely the request would have been made without some indication that the appropriation would be approved.

The request puts the seven members of the Controlling Board at the center of the political firestorm about Medicaid expansion. The board consists of six legislators: two Republicans and one Democrat from the Senate and two Republicans and one Democrat from the House. The seventh member is the director of the Office of Budget and Management, an appointee of the governor.

Approval requires an affirmative vote of at least four members. As if the issue were not complicated enough, two Controlling Board members, Representatives Amstutz (R-Wooster) and Rosenberger (R-Clarksville), are seeking to replace William G. Batchelder as Speaker of the House in the next General Assembly. An affirmative vote on Medicaid expansion would likely not sit well with many Republicans in the House where the measure stalled earlier this year.

Statehouse observers are watching to see where the fourth vote will come from, since it is certain the governor’s appointee will vote in favor and both Democrats also are expected to vote in favor of the request. There is a possibility that one or more of the members of the Controlling Board could be replaced by the Speaker of the House or President of the Senate. Such a move would likely not be known until the morning of the vote. If the administration determines that there are not enough favorable votes, the item can be pulled from the agenda.

The department’s request is not a novel one, but it may test the bounds of the Controlling Board’s authority. The Controlling Board has the authority to handle transfers of appropriations. Some argue that unlike past proposals involving only federal funding, the department’s proposal calls on the Controlling Board to appropriate funding that would create an additional function for the state’s Medicaid program. The same individuals say that there is a question as to whether approval could obligate the state into fiscal years beyond 2015.

Therefore, even if the Controlling Board approves the request for funds to expand Medicaid, the action could be challenged in court. If granted, an action for equitable relief, such as an injunction, could delay expansion past the intended start date of January 1, 2014. Likewise, a suit on constitutional grounds could keep the expansion in legal limbo.

Alternatively, if the Controlling Board rejects the request, the defeat would likely be enough to stop any further discussion of the issue in the legislature – at least for now.

Separate from the Controlling Board effort, proponents of the Medicaid expansion issue have indicated they will offer a citizen-proposed statute to the legislature, if enough Ohioans sign their petitions. If successful, the entire debate regarding Medicaid expansion would resume in early 2014.

All this uncertainty is not new for those who have worked with the Controlling Board and executive agencies. Successful passage requires one thing: Having at least four votes before you enter the hearing room. In the next couple of days, we expect to see a lot of discussion by the administration to secure four votes for Medicaid expansion.