appeal from the Division of Administrative Hearings. J. Bruce
Brandon 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
Motion For Rehearing
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 Gray's
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 ALJ's factual findings
are supported by competent, substantial evidence, and because
the ALJ correctly applied the operative statute when
determining the lien amount, we affirm.
Third-Party Liability Act
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 recipient's action or claim involving
third-party benefits, with or without suit, is subject to the
agency's 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 recipient's 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
recipient's recovery that is allocated for future medical
expenses. Id. at 56.
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 (2013). But without an
agreement about the allocation, the parties may resolve the
dispute in an administrative proceeding. Id.
there has been no judicial finding or approval of an
allocation in a tort recovery, Florida's Medicaid
Third-Party Liability Act provides a default formula to