November 20, 2017

November 20, 2017

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Ohio Senate Votes to Support 6 of the 11 House Override Vetoes

The Ohio Senate met on Aug. 22 in a veto override session to take up the 11 veto overrides by the Ohio House on July 6 . These 11 overrides are part of the 47 vetoes the governor issued to HB 49 (Smith) and signed on June 30. The Senate did not take up several of the items at this time to allow more time for interested parties to work on the issues. With the Senate support of a House override, the provision remains part of the bill and will become effective 90 days after it is filed with the secretary of state’s office or immediately if it is an appropriation.

Listed below is a synopsis taken from the governor’s veto message of the 11 veto overrides from the House updated with today’s Senate vote:

ITEM NUMBER 3: House Passed 65-30/Senate Passed 23-10

Controlling Board Authority

This provision severely limits the power of the Controlling Board to determine amounts by which appropriations may be adjusted and to create new funds. As such, this represents a significant impediment to the authority and effectiveness of the Controlling Board, which could potentially have a negative impact on state agencies’ ability to respond in a timely fashion to issues of emerging or urgent concern. Therefore, this veto is in the public interest.

ITEM NUMBER 23: House Passed 65-30/Senate Passed 23-10

Medicaid Coverage of Optional Eligibility Groups

This provision would prohibit the Department of Medicaid from covering any new, optional groups unless expressly permitted by statute. Because federal law requires there to be a single state agency charged with administering the Medicaid program in each state, this provision – by ceding a portion of the Director of Medicaid’s authority to the Legislature – violates that federal requirement and imposes on the Director’s executive authority to manage the state’s Medicaid program. Therefore, this veto is in the public interest.

ITEM NUMBER 25: House Passed 66-30/Senate did not take up

Legislative Oversight of Rules Increasing Medicaid Rates

This provision would require the Department of Medicaid to submit any proposal for an increase in a Medicaid payment rate to the Joint Medicaid Oversight Committee (JMOC) and prohibits the Department from making an increase if it fails to make the required submission, if JMOC votes to prohibit the rate increase, or if the General Assembly adopts a concurrent resolution to prohibit it. This obstructs the Medicaid director’s executive authority to effectively and efficiently manage Ohio’s Medicaid program and to maintain the fiscal and programmatic integrity the Administration has established for that program. Furthermore, this language fundamentally changes the nature of JMOC and its relationship to the Department of Medicaid while negatively impacting the Department’s efforts to implement key policy initiatives. Therefore, this veto is in the public interest.

ITEM NUMBER 26 House Passed 96-0/Senate Passed 33-0

Medicaid Rates for Neonatal and Newborn Services

This provision would require that the Department of Medicaid set rates for certain neonatal and newborn services at levels equal to 75 percent of the Medicare rates for those services, and forces the Medicaid director to reduce the rates for other services to avoid an increase in Medicaid expenditures. This provision threatens access to services for some of the most vulnerable Ohioans and limits the ability of the director to effectively and efficiently manage the Medicaid program. Therefore, the veto of this item is in the public interest.

ITEM NUMBER 27 House Passed 96-1/Senate Passed 32-1

Medicaid Rates for Nursing Facilities

This provision would make numerous changes in the formula used to determine Medicaid payment rates for nursing facility services, including eliminating portions of the reimbursement formula that are focused on quality and accountability measures. This provision imposes on the Medicaid director’s executive authority to effectively and efficiently manage Ohio’s Medicaid program and to maintain the fiscal and programmatic integrity the Administration has established for that program by restricting the Director’s ability to establish rates that best ensure the quality and efficiency of Medicaid nursing facility programs.  Therefore, this veto is in the public interest.

ITEM NUMBER 30 House Passed 95-2/Senate did not take up

Long-Term Services Added to Medicaid Managed Care

This provision would prohibit nursing facilities, as well as home and community-based waiver services, with limited exceptions, from being added to Medicaid managed care at any time prior to the General Assembly enacting legislation authorizing the addition. This provision also creates a temporary study committee to examine the merits of including these services in the managed care system. By unnecessarily delaying the Department of Medicaid’s ability to move Ohioans receiving these services into managed care, this provision would unreasonably delay or even totally deny the benefits of care coordination to Medicaid recipients with the most complex needs, as well as deny Ohio taxpayers the benefit of the increased efficiency provided by managed care models of care delivery. Such models have already proven to improve value and quality for both Ohio taxpayers and the vulnerable Ohioans who depend on Medicaid. Therefore, this veto is in the public interest.

ITEM NUMBER 31 House Passed 95-2/Senate Passed 33-0

Behavioral Health Redesign

This provision would require the Ohio Department of Medicaid to delay the addition of behavioral health services into managed care until July 1, 2018. The department’s Behavioral Health Redesign is intended to provide high intensity services for those most in need and ensure for the first time that individuals’ mental and physical health needs are managed together, and not with disregard to, one another. This coordination is necessary to get the right services at the right time to the Ohioans who need them most. The administration, providers, Medicaid managed care plans and county boards have been working on the development of the behavioral health benefit package since early 2014. While the administration supports a delay in coding changes to Jan. 1, 2018, the care coordination delays mandated by this provision will impose new costs on Ohio taxpayers and private sector providers who have invested in preparing for the anticipated effective date. More significantly, the delay will be detrimental to individuals who would benefit the most from receiving coordinated behavioral health services. Therefore, this veto is in the public interest.

ITEM NUMBER 33 House Passed 87-10/Senate did not take up

Health Insuring Corporation Franchise Fee

This provision would require the Department of Medicaid to ask the United States Centers for Medicare and Medicaid services whether the franchise fee may be increased through the health insuring corporation (HIC) franchise fee and, if the fee may be so increased, to request approval for the increase. The department was approved for an HIC waiver after demonstrating compliance with federal requirements, including that the tax be broad based and not violate hold harmless provisions. Requesting a change puts the approved waiver in jeopardy and risks the loss of the $615 million net benefit currently permitted by the waiver. Further, the executive budget already provided transition payments for counties as they adjust their budgets in preparation for the end of the existing tax. Therefore, this veto is in the public interest.

ITEM NUMBER 34 House Passed 66-30/Senate Passed 23-10

Controlling Board Authorization Regarding Medicaid Expenditures

This provision requires the director of Budget and Management to transfer monies from the General Revenue Fund to the Health and Human Services Fund and requires the Medicaid director to request the Controlling Board to authorize expenditures from the Health and Human Services fund for purposes of paying for the Medicaid program. While the administration does not oppose this requirement, the provision also restricts the Controlling Board from releasing funds if the U.S. Congress amends the federal law governing the federal medical assistance percentage in a manner that reduces the percentage, even if that reduction has no impact in the current biennium. This limits the ability of the Medicaid director to effectively and efficiently manage the Medicaid program and obstructs the administration’s authority to maintain the fiscal stability and programmatic integrity that it has successfully established for the program.  Therefore, the veto of this item is in the public interest.

ITEM NUMBER 36 House Passed 66-31/Senate did not take up

Waiver Regarding Healthy Ohio Program

This provision mandates that the Department of Medicaid request the same waiver to implement the Healthy Ohio program, which was previously denied by the Centers for Medicare and Medicaid Services. The administration shares the goal of expanding Ohio’s flexibility in managing our Medicaid programs, and is committed to working with the General Assembly to seek achievable solutions that would accomplish this goal. Requiring Medicaid to seek an identical waiver for the Healthy Ohio program would be duplicative and an ill-advised use of Medicaid resources. Therefore, this veto is in the public interest.

ITEM NUMBER 37 House Passed 67-29/Senate did not take up

Oil and Gas Leasing Commission Appointments

This provision would transfer appointment authority for members of the Ohio Oil and Gas Leasing Commission from the governor to the General Assembly. This creates the potential for conflicts in how public lands under the jurisdiction of executive branch agencies are utilized. No provision is made for how those conflicts would be resolved or how utilization policies would be harmonized, which could potentially lead to harm to Ohio’s public lands. Therefore, this veto is in the public interest.

© 2017 BARNES & THORNBURG LLP

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About this Author

Bridget E. McAuliffe, Barnes Thornburg, Lobbyist, government procurement opportunities

Bridget E. McAuliffe is a lobbyist in Barnes & Thornburg LLP’s Columbus, Ohio, office, where she is a member of the firm’s Government Services and Finance Department.

Ms. McAuliffe serves as a lobbyist representing clients before the Ohio General Assembly and Executive agencies. She assists clients with government procurement opportunities, biennium and capital budget strategies, legislative consulting, bill analysis, issue management and political action committee (PAC) fundraising strategies. She has provided comprehensive grassroots...

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