October 5, 2020 Monday Message from the McDonald Hopkins Public Law Team

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Monday, October 5

To our friends, clients and colleagues in local and regional government, higher education and the nonprofit sector, welcome to our latest Monday Message from the Public Law Group at McDonald Hopkins. In today’s email, assembled by attorneys Margaret O’Bryon, Kelsey Smith and Kevin Butler, you’ll find insights into areas of law we’re watching on your behalf.

In today’s edition:

  • New House COVID-19 relief bill likely dead on arrival in the Senate
  • Ohio workers’ comp updates: Employers no longer able to thwart settlement of old claims
  • Sixth Circuit jettisons opioid negotiation class; what’s next for Ohio communities?

New House COVID-19 relief bill likely dead on arrival in the Senate

In an additional attempt to provide financial assistance to American workers, governments and certain industries, U.S. House Democrats voted through a $2.2 trillion COVID-19 relief bill on October 1. The legislation, which passed 214-to-207 and was opposed by 18 Democrats, will likely not pass through the Senate. The new relief package has been opposed by Senate Majority Leader Mitch McConnell and the White House since its introduction.

Republicans and several Democrats have asserted frustrations with the new measure, stating that the legislation has no future and is merely a show of politics. The new House bill would include:

  • Reinstatement of $600-per-week unemployment benefits
  • Additional $1,200 direct payments to Americans
  • $436 billion over one year to state and local governments
  • Second round of Paycheck Protection Program loans
  • $25 billion to airlines to cover payroll costs
  • Injection of $75 billion into COVID-19 testing and tracing
  • Additional $225 billion to education and $57 billion to child care
  • Additional funding for rent and mortgage assistance

Despite the grim future of the bill, House Speaker Nancy Pelosi has continued discussions with Treasury Secretary Steven Mnuchin in an effort to reach a bipartisan agreement. The White House confirmed on October 1 that Mnuchin advanced a new $1.6 trillion offer, an offer that Pelosi and many lawmakers consider too low.

As the election date moves closer it becomes less likely that Congress will agree on any new COVID-19 relief package. Stay tuned to the Monday Message and Kelsey Smith’s blog posts for updates as talks progress.

Ohio workers’ comp updates: Employers no longer able to thwart settlement of old claims

Today we continue our series of brief updates on Ohio workers’ compensation law aided by our Public Law team member and veteran workers’ compensation attorney Margaret O’Bryon. Margaret has tracked changes to the workers’ comp statute that went into effect on September 15 with the passage of Ohio H.B. 81. All employers covered by the workers’ compensation system are wise to take note.

Today we discuss an employer’s ability to stand in the way of settling old claims. For claims arising on and after Sept. 15, 2020, state funded employers will no longer be able to deny or withdraw consent on an employee’s application to settle his or her claim if the claim is no longer in the employer’s claims experience and the employee is no longer employed by the employer (R.C. 4123.65(G)). This means that a terminated employee can file an application for the approval of a claim settlement without the employer’s consent to settle.

An additional amendment under H.B. 81 has increased the cap on funeral expenses in cases of death from $5,000 to $7,500 (R.C. 4123.66(A)). This change is not retroactive, applying only to death claims arising on or after Sept. 15.

In upcoming editions of the Monday Message, we’ll discuss the remaining workers’ comp changes brought about by H.B. 81. Meanwhile, contact Margaret O’Bryon for assistance.

Sixth Circuit jettisons opioid negotiation class; what’s next for Ohio communities?

Ohio’s government units may be wondering how the statewide framework for settling our state’s portion of the federal and state opioid litigation may be impacted now that an appellate court has tossed the year-old “negotiation class” model developed within the nationwide litigation overseen by U.S. District Court Judge Dan A. Polster.

On September 24, a divided panel of the Sixth Circuit Court of Appeals decided that the so-called negotiation class had no basis in the Federal Rules of Civil Procedure, which recognize class certifications designed only for litigation or settlement (but not negotiation of a settlement). With the decision – which reduced Judge Polster’s novel approach to resolving the more than 1,300 separate lawsuits consolidated before him as “judicial inventiveness” – out went an entire infrastructure that has enabled litigating and non-litigating governments nationwide to estimate how much they might net based on a hypothetical global settlement of all active opioid cases across the country.

Those global settlement discussions have continued among plaintiffs’ attorneys, the pharmaceutical industry and pharmacy chains over the past several months, but without the national negotiation-class model in place, political subdivisions across the country will now be left to wonder how they’ll benefit from any resolution.

Not so in Ohio, where 85 percent of the state’s communities ratified the One Ohio approach this past spring. (See a March listing of those that have signed on here.) The One Ohio model does not rely on the national negotiation-class model for distributing settlement dollars across the state. Instead, the Ohio approach is designed to divide settlement proceeds among the state government (15 percent), local governments (30 percent), and a statewide foundation (55 percent) that will ensure monies are used for prevention and treatment chiefly at the local level.

While it’s possible that the 30-percent local government share could be meted out among Ohio’s communities based on the negotiation class’s allocation model, Ohio won’t need to rely on the legal efficacy of the negotiation class to settle its cases. That should be welcome news for officials still looking for settlement dollars unburdened by a national legal framework – which in turn will enable them to tackle local addiction response, prevention and treatment more quickly.

Please note that next week, in recognition of the legal holiday, the Monday Message will be on hiatus. Meanwhile, if you have questions or need assistance on any of the matters we’ve covered above or with your legal needs in general, please feel free to contact any member of the McDonald Hopkins Public Law team.

Have a great week!

Teresa Metcalf Beasley
Chair, Public Law

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This Publication is designed to provide current information for our clients, friends and their advisors regarding important legal developments. The foregoing discussion is general information rather than specific legal advice. Because it is necessary to apply legal principles to specific facts, always consult your legal advisor before using this discussion as a basis for a specific action.

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