Ohio drug pricing advocates file federal lawsuit against Jon Husted

Staff report

Members of Ohioans for Fair Drug Prices filed a federal lawsuit [Case: 2:16-cv-00038-JLG-NMK Doc. #:1] and motion for a temporary restrainging order [Case: 2:16-cv-00038-JLG-NMK Doc. #:2] yesterday in United States District Court for the Southern District of Ohio, Eastern Division against Ohio Secretary of State John Husted seeking a temporary restraining order and declaratory relief over Husted’s failure to transmit language for a proposed law to Ohio’s General Assembly after local election officials in all 88 Ohio counties certified their respective voter signatures to qualify the initiative. The proposed law, The Ohio Drug Price Relief Act , is a citizen-driven ballot initiative that will revise Ohio law to require state programs pay the same or less for prescription medications as the U.S. Department of Veterans Affairs. V.A. pricing is generally believed to be 20% to 24% lower than for almost any other government program. The federal lawsuit was filed by McTigue, McGinnis & Colombo LLC on behalf of the four individual proponents of the drug pricing initiative as well as AIDS Healthcare Foundation (AHF), a backer of the initiative that has a major presence in Ohio offering HIV prevention, testing and HIV/AIDS treatment services in the state.

Backers of the drug pricing initiative intend to have the ballot measure appear on the November 2016 presidential election ballot; however, Secretary Husted’s actions—or failure to fulfill his statutory obligation to act—appear to be a well-coordinated, well-financed drug industry attack to thwart that goal.

The federal action seeks“ … temporary, preliminary and permanent injunctions ordering Defendant Secretary of State to immediately certify the sufficiency of the Ohio Drug Price Relief Act Initiative Petition and to immediately transmit the Proposed Law to the Ohio General Assembly for consideration and that January 5, 2016, the first day of the General Assembly’s current session, be deemed the transmittal date or, alternatively, that the July 6, 2016 deadline for filing a supplementary petition be adjusted to account for days lost by the delay in transmittal of the Proposed Law to the General Assembly.”

“This proposed law should have been transmitted to the General Assembly on January 5th, the opening day of Ohio’s 2016 legislative session. However, Secretary Husted failed to fulfill his clear statutory obligation and transmit our initiative language and the proposed law to the Assembly. Instead, he returned all the signature petitions to local election officials, issuing a directive instructing them to, ‘ … re-certify their findings to the Secretary of State’s Office no later than January 29, 2016,’’’ said Tracy Jones, Executive Director of the AIDS Taskforce of Greater Cleveland and one of the four Ohio citizen proponents of the initiative. “Husted’s actions were driven by a complaint letter filed by Bricker & Eckler LLC, a Columbus law firm representing the Pharmaceutical Research and Manufacturers of America or PhRMA, the drug industry’s powerful and deep-pocketed trade group. We are seeking redress in federal court for among other things, to compel Secretary Husted to transmit the proposed law to the Assembly for its consideration and possible legislative action.”

On Monday of this week, proponents of the drug pricing ballot measure filed a separate emergency motion with the Supreme Court of Ohio (Case # 2016-20) asking that the proposed drug pricing law language be submitted to the General Assembly immediately by Secretary Husted while the case is pending.

“As a matter of law, Secretary Husted cannot simply decide to send the petitions back to the county boards to be rechecked and not transmit the proposed law on to the Assembly,” said Don McTigue, Attorney at Law with McTigue, McGinnis & Colombo LLC. “Given that the local boards had already reviewed and certified the petitions in accordance with his instructions—and that the boards reported that there are more than sufficient valid signatures—he must under the Ohio Constitution transmit the proposed law to the General Assembly. Because Secretary Husted is unwilling to fulfill his statutory obligation, we are seeking the court’s assistance so that this proposed law on drug pricing can be placed before the Ohio legislature and if needed, before Ohio voters in November.”

Background on The Ohio Drug Price Relief Act

On August 3, 2015, Ohio Attorney General Mike DeWine approved petition language for a drug pricing ballot initiative in Ohio seeking Department of Veterans Affairs pricing for state programs. On August 13th, the Ohio Ballot Board approved the proposed statute as a single issue. As a result, that measure, backed by AHF and Ohioans for Fair Drug Prices, was cleared for signature gathering—an effort that began in earnest August 19th in Ohio.

At that time, the Cleveland.com website (the Northeast Ohio Media Group) reported, “Supporters can now begin collecting the 91,677 signatures of registered Ohio voters required to put the issue before the Ohio General Assembly. State lawmakers would then have four months to act on the legislation. If they reject or change the proposed law, supporters then have the chance to collect another 91,677 signatures to put the issue before voters.”

Backers of the Ohio Drug Price Relief Act submitted 116,015 voter signatures, far more than the 91,677 needed to qualify the initiative. In the last week of December, after local election officials of Ohio’s 88 counties had certified their respective signatures, backers were awaiting the formality of the Secretary’s official certification of signatures and his subsequent transmission of the proposed intitiative language to Ohio’s General Assembly when Secretary Husted instead returned the signature petitions and then failed to transmit the proposed law to the Assembly.

According to the Ohio petition language, “The Ohio Drug Price Relief Act would enact Section 194.01 of the Ohio Revised Code to require that notwithstanding any other provision of law and in so far as permissible under federal law, the State of Ohio shall not enter into any agreement for the purchase of prescription drugs or agree to pay, directly or indirectly, for prescription drugs, including where the state is the ultimate payer, unless the net cost is the same or less than the lowest price paid for the same drug by the U. S. Department of Veterans Affairs.”\

Staff report