appeal from the Division of Administrative Hearings. J. Bruce
G. Cathey and Brent G. Steinberg of Swope, Rodante P.A.,
Tampa, for Appellant.
Moody, Attorney General; Jonathan A. Glogau, Special Counsel,
and Elizabeth Teegen, Assistant Attorney General,
Tallahassee; and Tracy George, Chief Appellate Counsel,
Agency for Health Care Administration, Tallahassee, for
ON MOTION FOR REHEARING
deny the motion for rehearing, motion for rehearing en banc,
and/ or motion for certification. We withdraw our previous
opinion, however, and substitute the following in its place.
John Gray received an insurance payment from a car accident
in which he suffered a spinal cord injury, the State of
Florida obtained a lien against the insurance recovery to
satisfy payments made by the Medicaid program for Grays
medical care. Gray filed an administrative petition seeking
to reduce the lien amount. The administrative law judge
determined that Gray did not establish entitlement to a
reduction of the lien. Because the ALJs factual findings are
supported by competent, substantial evidence, and because the
ALJ correctly applied the operative statute when determining
the lien amount, we affirm.
Medicaid Third-Party Liability Act
Medicaid is intended to be the payor of last resort. Under
Florida law, Medicaid must be repaid from any third-party
benefits obtained by the Medicaid recipient, such as an
insurance recovery, "regardless of whether a recipient
is made whole or other creditors paid." § 409.910(1),
Fla. Stat. (2016). Repayment to Medicaid is accomplished
through an automatic lien for the full amount of medical
assistance provided by Medicaid. § 409.910(6)(c), Fla. Stat.
Medicaid Act allows AHCA to recover from a recipient provided
medical care through the Medicaid program:
Except as otherwise provided in this section, notwithstanding
any other provision of law, the entire amount of any
settlement of the recipients action or claim involving
third-party benefits, with or without suit, is subject to the
agencys claims for reimbursement of the amount of medical
assistance provided and any lien pursuant thereto.
§ 409.910(11)(e), Fla. Stat. (2016) (emphasis added).
However, the Florida Supreme Court has determined that the
lien that may be placed on a Medicaid recipients tort
recovery is limited to reimbursement for medical expenses
already paid to the recipient. Giraldo v. Agency for
Health Care Admin, 248 So.3d 53, 56 (Fla. 2018). The
Court reasoned that allowing AHCA to obtain recovery for
payments not yet made by the program would conflict with the
anti-lien provisions of the federal Medicaid laws.
Id. at 55. Thus, the Court held that AHCA may not
obtain a lien against any portion of a Medicaid recipients
recovery that is allocated for future medical expenses.
Id. at 56.
However, tort recoveries do not always neatly identify and
allocate amounts recovered for past or future medical
expenses. When there is a judicial finding or approval of an
allocation between medical and non-medical damages or between
past and future medical damages "in the form of either a
jury verdict, court decree, or stipulation binding on all
parties— that is the end of the matter." Wos
v. E.M.A.,568 U.S. 627, 638, 133 S.Ct. 1391, 185
L.Ed.2d 471 (2013). ...