OHIO LEGISLATIVE SERVICE COMMISSION
Office of Research Legislative Budget
www.lsc.ohio.gov and Drafting Office
H.B. 90
(l_134_0628-3)
Bill Analysis
134th General Assembly Click here for H.B. X’s Fiscal Note
Version: As Pending in House State and Local Government
Primary Sponsors: Reps. Wiggam and Edwards
Effective Date:
Alyssa Bethel and Jason Hoskins , Attorneys
SUMMARY
 Permits the General Assembly to rescind orders and emergency declarations issued by
the Governor and certain orders issued by the Ohio Department of Health (ODH), and to
invalidate emergency rules adopted by any state agency.
 Terminates certain executive orders after 30 days unless extended by the General
Assembly.
 Establishes the Ohio Health Oversight and Advisory Committee, and grants the
Committee the power to rescind certain orders and rules issued by the Governor, ODH,
and other agencies.
 Limits the duration of a state of emergency to 30 days unless extended by the General
Assembly.
 Limits the duration of emergency rules issued by an agency in response to a public
health state of emergency to 30 days unless extended by the General Assembly.
 During a public health state of emergency, requires the Governor and ODH to report to
the President of the Senate and the Speaker of the House of Representatives any
actions taken in response to the emergency.
 Subjects existing orders and emergency declarations issued by the Governor and certain
existing orders and rules issued by ODH to review and rescission by the General
Assembly and the Committee.
 Terminates existing executive orders issued by the Governor, certain existing orders and
rules issued by ODH, and rules adopted, amended, or rescinded by a state agency on an
emergency basis, in response to a public health state of emergency 30 days after the
bill’s effective date unless extended by the General Assembly.
February 10, 2021
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DETAILED ANALYSIS
General Assembly may rescind Governor orders
The bill allows the General Assembly to rescind any executive order issued by the
Governor by passing a concurrent resolution. After the General Assembly rescinds an order, the
Governor is prohibited from reissuing the order (or a substantially similar order) for 90 days. If
the Governor attempts to reissue an order that was rescinded – or issues a substantially similar
order to one that was rescinded – the order is invalid and has no legal effect.1
General Assembly may rescind certain ODH orders or rules
The bill also allows the General Assembly to rescind a special or standing order or rule
for preventing the spread of contagious or infectious disease issued by the Ohio Department of
Health (ODH), by passing a concurrent resolution. After the General Assembly rescinds a special
or standing order or rule, ODH is prohibited from reissuing the special or standing order or rule
(or a substantially similar special or standing order or rule) for 90 days. If ODH attempts to
reissue a special or standing order or rule that was rescinded – or issues a substantially similar
special or standing order or rule to the one that was rescinded – the special or standing order
or rule is invalid and has no legal effect.2
General Assembly may invalidate certain agency emergency
rules
The Administrative Procedure Act (APA) currently permits the Governor, at the request
of an agency, to determine that an emergency exists that requires the immediate adoption,
amendment, or rescission of a rule. In this event, an agency is permitted to take action to
immediately adopt, amend, or rescind a rule, without that action being reviewed by the Joint
Committee on Agency Rule Review (JCARR).3 Current law also permits the adoption of rules that
are not subject to the APA on an emergency rule if the agency finds it necessary for the
immediate preservation of the public peace, health, or safety. Similar to emergency rules under
the APA, an emergency rule adopted by an agency under this process is not subject to review
by JCARR.4 In both circumstances, an emergency rule becomes invalid at the end of the 120 th
day it is in effect. The bill limits the adoption, amendment, or rescission of a rule in response to
a public health state of emergency (see “Public health state of emergency,” below) to
30 days, unless the adoption, amendment, or rescission is extended by the General Assembly
by adopting a concurrent resolution.
1 R.C. 107.43(C)(1) and (D).
2R.C. 3701.13(C)(2), (3), and (4). The bill also makes technical changes to this section for organizational
purposes.
3 R.C. 119.03(G)(1).
4 R.C. 111.15(B)(2).
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The bill allows the General Assembly to invalidate an emergency rule amended or
adopted by an agency, or to authorize a rule rescinded by an agency to be reinstated.5 After the
General Assembly invalidates an emergency rule, an agency is prohibited from readopting the
invalidated rule (or a substantially similar rule) for 90 days. If an agency attempts to reissue an
emergency rule that was invalidated – or issues a substantially similar emergency rule to the
one that was invalidated – the emergency rule is invalid and has no legal effect.6
Ohio Health Oversight and Advisory Committee
The bill establishes the Ohio Health Oversight and Advisory Committee. The Committee
consists of ten members. Five members of the Senate (three from the majority party and two
from the minority party) are to be appointed by the President of the Senate, and five members
of the House of Representatives (three from the majority party and two from the minority
party) are to be appointed by the Speaker of the House of Representatives. 7 When appointing
Committee members from the minority party, the President and Speaker must consult with the
minority leader from their respective houses.
The bill requires initial appointments to the Committee to be made within 15 days after
the bill’s effective date. Thereafter, appointments to the Committee occur every two years, not
later than 15 days after the commencement of the first regular session of each General
Assembly. A member appointed to the Committee serves until appointments are made in the
next General Assembly, unless the member is removed by the President or Speaker. Members
of the Committee may be reappointed.8
In odd-numbered years, the President must appoint a member of the Committee from
the Senate who is a member of the majority party to serve as the Committee chairperson, and
the Speaker must appoint a member of the Committee from the House who is a member of the
minority party to serve as the Committee ranking minority member. In even-numbered years,
the Speaker must appoint a member of the Committee from the House who is a member of the
majority party to serve as the Committee chairperson, and the President must appoint a
Committee member from the Senate who is a member of the minority party to serve as the
Committee ranking minority member.9 The Committee meets at the call of the chairperson.10
In addition to its powers during a public health state of emergency (see “Public
health state of emergency,” below), the Committee is authorized to oversee actions
taken by ODH to prevent the spread of contagious or infectious diseases and may, at any time,
by a majority vote, rescind a special or standing order or rule for preventing the spread of
5 R.C. 106.022, 107.43(C)(2), 111.15(B)(2), and 119.03(G)(3).
6 R.C. 107.43(D).
7 R.C. 103.65(A).
8 R.C. 103.65(B).
9 R.C. 103.65(C).
10 R.C. 103.65(E).
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contagious or infectious diseases issued by ODH under R.C. 3701.13.11 If the Committee
rescinds a special or standing order or rule, ODH is prohibited from reissuing the special or
standing order or rule (or a substantially similar special or standing order or rule) for 90 days. If
ODH attempts to reissue a special or standing order or rule that was rescinded – or issues a
substantially similar special or standing order or rule to the one that was rescinded – the special
or standing order or rule is invalid and has no legal effect.12
To assist the Committee in performing its duties, including those duties described
below, the bill permits the Committee chairperson to issue subpoenas. Before issuing
subpoenas, the Committee chairperson must receive authorization from the Committee, the
President, and the Speaker.13 The bill requires the executive director and staff of the Joint
Medicaid Oversight Committee to serve the Committee to enable it to successfully and
efficiently perform its duties.14
State of emergency
The bill limits the duration of a state of emergency declared by the Governor, including
a public health state of emergency (see “Public health state of emergency,” below). A
state of emergency may last only 30 days unless the General Assembly passes a concurrent
resolution to extend the emergency. There is no limit to the number of extensions the General
Assembly may provide, but each extension cannot exceed 60 days. If the General Assembly
does not extend a state of emergency, the Governor is prohibited from reissuing that
emergency, or a substantially similar emergency, for 90 days after the state of emergency
ends.15
The bill also allows the General Assembly to rescind an emergency declaration issued by
the Governor (no matter the method used to declare the emergency) by adopting a concurrent
resolution. After the General Assembly rescinds a declaration, the Governor is prohibited from
reissuing the declaration (or a substantially similar declaration) for 90 days. If the Governor
attempts to reissue a declaration that was rescinded – or issues a substantially similar
declaration to one that was rescinded – the declaration is invalid and has no legal effect.16
Public health state of emergency
Some of the bill’s provisions apply only during a “public health state of emergency,”
which the bill defines to mean an emergency for which the Governor declares an emergency in
response to a threat to the preservation of the life and health of Ohioans. 17 This includes the
11 R.C. 103.651(D).
12 R.C. 103.651(E).
13 R.C. 103.651(B)(2).
14 R.C. 103.65(F).
15 R.C. 107.43(A).
16 R.C. 107.43(C)(1).
17 R.C. 107.42.
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three current types of emergencies the Governor has specific statutory authority to declare: an
air pollution emergency, an energy shortage emergency, and an adulterated consumer product
emergency.18
During a public health state of emergency:
 The Governor and ODH are required to report to the President and Speaker every action
the Governor or ODH take in response to the emergency.19
 The Committee may oversee actions taken by the Governor and ODH.20
 The Committee may consult with and provide advice to the Governor and ODH
regarding necessary and appropriate actions.21
 Beginning on the 11th day of the emergency, the Committee may rescind any executive
order issued by the Governor in response to the emergency, including the emergency
declaration.22
 Following the adoption, amendment, or rescission of a rule on an emergency basis by an
agency in response to a public health state of emergency, the Committee may invalidate
a rule adopted or amended, or authorize a rescinded rule to be reinstated.23
If the Committee rescinds an executive order or emergency declaration, the Governor is
prohibited from reissuing the order or declaration (or a substantially similar order or
declaration) for 90 days. If the Governor attempts to reissue an order or declaration that was
rescinded – or issues a substantially similar order or declaration to one that was rescinded – the
order or declaration is invalid and has no legal effect. Likewise, if the Committee invalidates an
emergency rule, the agency is prohibited from readopting the emergency rule (or a
substantially similar emergency rule) for 90 days. If an agency attempts to readopt an
emergency rule that was invalidated – or issues a substantially similar emergency rule to one
that was invalidated – the emergency rule is invalid and has no legal effect.24
In addition, the bill terminates any executive order issued by the Governor related to a
public health state of emergency after 30 days (except an executive order to declare the
emergency; see “State of emergency,” above). The General Assembly may adopt a
18R.C. 3704.032, not in the bill; R.C. 4935.03 (currently may last up to 30 days, but can be extended by
the Governor; General Assembly can terminate the emergency at any time with a concurrent
resolution), and R.C. 3715.74 (currently may last up to 90 days unless extended by General Assembly via
concurrent resolution), respectively.
19 R.C. 107.42 and 3701.13(C)(5).
20 R.C. 103.651(B)(1)(a).
21 R.C. 103.651(B)(1)(c).
22 R.C. 103.651(C).
23 R.C. 103.651(C)(2) and (3).
24 R.C. 103.651(E).
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concurrent resolution to extend an executive order beyond 30 days.25 This provision applies to
executive orders in effect on the effective date of the bill; they are terminated 30 days after the
bill takes effect, unless extended by the General Assembly. Similarly, any rule adopted,
amended, or rescinded on an emergency basis by an agency in response to a public health state
of emergency, including those in effect on the bill’s effective date, expire in 30 days unless
extended by the General Assembly.26
Review and rescission applies to existing orders and rules
The bill provides that any executive order or emergency declaration issued by the
Governor, or any special or standing order or rule for preventing the spread of contagious or
infectious disease issued by ODH under R.C. 3701.13, that is in effect on the bill’s effective date,
is subject to review and rescission by the General Assembly and by the Committee.27
ODH authority
The bill specifies that a special or standing order or rule for preventing the spread of
contagious or infectious diseases issued under R.C. 3701.13 expires in 30 days unless it is
extended by the General Assembly by adopting a concurrent resolution.28 This includes orders
in effect on the bill’s effective date; they expire 30 days after that date.29
The bill removes the word “ultimate” from existing law describing ODH’s authority over
matters of quarantine and isolation.30 The bill also defines the terms quarantine and isolation as
they relate to ODH’s authority. “Isolation” is defined as “the separation of one or more
individuals who have been medically diagnosed with a communicable or contagious disease
from other individuals who have not been medically diagnosed with the disease.” “Quarantine”
is defined as “the separation or restriction of movement of one or more individuals who have
come into direct contact with someone who has been medically diagnosed with a
communicable or contagious disease.”31
COMMENT
The provisions allowing the General Assembly and Committee to rescind orders of the
Governor or ODH by concurrent resolution might be vulnerable to a constitutional challenge on
the grounds that the legislature cannot take such an action by resolution or by vote of a joint
committee. The Ohio Constitution specifies that, “The General Assembly shall enact no law
25 R.C. 107.42.
26 R.C. 106.022, 111.15, 119.03, and 3701.13; Section 3.
27 Section 3.
28 R.C. 3701.13(C)(1).
29 Section 3.
30 R.C. 3701.13(B)(1).
31 R.C. 3701.13(A).
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except by bill.” In interpreting that provision, the Ohio Supreme Court has ruled that a joint
resolution cannot have the effect of law.32 A reviewing court might find that the General
Assembly, directly or via joint committee, cannot take