COLUMBUS—State Representative Jim Butler (R-Oakwood) has introduced House Bill 301, which requires approval by the General Assembly for a state agency or public official to agree to a court-sanctioned final settlement agreement, also known as a consent decree, that would permanently alter or prohibit the enforcement of an Ohio law. 

“I am introducing this legislation because, unbeknownst to most of the public, and even some members of the legislature, we currently face a threat to the separation of powers and our system of checks and balances,” said Rep. Butler.  

In House Bill 52 of the 131st General Assembly, a provision was included which would have made Ohio the first state in the country to require meaningful transparency in healthcare pricing, informally known as the Healthcare Price Transparency Law.  This provision was carefully negotiated between the House, Senate, and the executive branch, received unanimous approval, and was signed into law in June of 2015, with an effective date of January 1, 2017.  At the eleventh hour, in late December of 2016, a complaint was filed in the Williams County Court of Commons Pleas, in which a group of healthcare industry heavyweights sought a temporary restraining order and permanent injunction to enforcement of the law.  In their complaint, the plaintiffs stated that because the Ohio Department of Medicaid never adopted rules for implementation, even though the law expressly required it to do so by a prescribed date, their compliance with the new law would be impossible.

To summarize, in much plainer terms: the executive made an agreement with the legislature, signed the proposed legislation into law, refused to follow that law, and then healthcare special interests filed a lawsuit to essentially repeal the law.  This lawsuit was filed directly after the November and December 2016 lame duck session where the executive and healthcare special interests lobbied hard for, but failed to achieve, a six-month delay in the effective date of the bill, so they could try to repeal it during the budget process in 2017.  

Accordingly, it was on to Plan B.  Immediately after filing the lawsuit, the healthcare special interests and the executive agreed to an injunction on enforcement of the law, eventually lasting until August 2017, thus getting the six-month delay they failed to get during the constitutional legislative process.  Now that the executive and healthcare special interests have failed in their goal to permanently repeal or severely weaken the law in the recent budget, as the executive proposed in the introduced version of House Bill 49, they could jointly agree to “settle” the lawsuit and effectively permanently repeal the law, without the legislature.  This “Sue and Settle” maneuver has been used before, both in our state and at the federal level.  Here is an example of how it could work in this instance:
• The healthcare lobby wants to repeal or weaken a law, but does not have support in legislature to pass a bill doing so;
• They then contact the executive and agree to get rid of a law altogether;
• They sue the executive alleging that the existing law is unconstitutional;
• The parties then "settle" the lawsuit with the result that, without a trial, the judge signs an agreed-upon order that the law should not be enforced.  Such an order is permanent and has the same effect as a law;
• The law is effectively removed from the books where it had passed unanimously.

“This bill goes far beyond the issue of Healthcare Price Transparency,” Rep. Butler added.  “I believe this sets an extremely dangerous precedent where the laws we create can be erased far too easily.  Imagine such a scenario unfolding in the future when the legislature is controlled by one party and the executive branch is held by the other.  Do we want a governor to be able to unilaterally circumvent the legislative process?  This is a scary proposition, and it tears at the very fabric of our system of government, which we all hopefully remember from our classroom days.  Such an action could be imminent because the Governor and healthcare lobby failed to repeal or water down the law during the recently passed budget.”


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