Florida Surgeon General and DOH Secretary Joseph Ladapo signed off on emergency rules that allow the state to move ahead with ADAP reductions. (Photo by Imani Thomas/Florida Phoenix)
A leading AIDS health care provider moved ahead Thursday with a new administrative challenge to emergency rules being proposed by the DeSantis administration that would reduce access to a program that helps people with HIV and AIDS.
The legal challenge brought by the AIDS Healthcare Foundation (AHF) and an anonymous AIDS Drug Assistance Program (ADAP) client contends there is no immediate danger to the public health, safety, and welfare that justify the emergency rules.
The challenge questions whether the emergency rules cutting access are fair and whether they need to take effect immediately to ensure the continued success of the program.
The Department of Health insists the reductions are necessary to abate a $120 million shortfall in the program in the next six months. The agency says the shortfall is caused by increasing health insurance premiums following expiration of the enhanced premium tax for Affordable Care Act plans and reductions to federal Ryan White grants.
The department has been moving ahead even though the Legislature is actively looking at ways to restore funding.
“The DOH hasn’t provided any facts related to ADAP funding, costs of administration, or the shortfall to justify the emergency rules,” attorneys for AHF wrote in legal filings. Moreover, a funding shortfall doesn’t jeopardize the public’s health, safety, and welfare, one of the benchmarks required to issued emergency rules, they add.
The administrative challenge also questions whether the DeSantis administration conducted any fact finding “to determine whether less onerous alternatives than the emergency rules could address the stated emergency.”
The AHF is asking for a hearing and a final order from an administrative law judge establishing that the administration overstepped its authority. The plaintiffs also seek to recover their attorneys’ fees.
Hearings in emergency administrative rule challenges must be held within 14 days.
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Senate President Ben Albritton told reporters Thursday that the Republican-controlled Senate remains committed to finding a solution that would bridge the short-term deficit the DOH says exists as well as ensure the program is sustainable going forward.
“Every part of government needs to be having the conversation, and it is going on about what this program means to this set of Floridians, to the ancillary Floridians around them, and how we produce something sustainable going forward,” Albritton said.
“Now, I would also say at this point in time that has not been answered.”
Community activists, the AHF, and even Sen. Carlos Guillermo Smith, D-Orlando, have accused the DOH of not sharing information. But Albritton said the DOH has been “more than an adequate partner,” when it comes to working with the Senate on finding a solution.
The DOH filed the emergency rules with the secretary of state’s office late Tuesday. The move essentially brought to a grinding halt a separate administrative challenge the AHF filed against the DOH.
AHF outside counsel, Tallahassee attorney Louise Wilhite-St Laurent, accused the DeSantis administration of “legal subterfuge” during a Wednesday morning hearing in that challenge.
The rule would reduce how much a person could annually earn and still qualify for the program from $63,840 annually for an individual to $20,748 annually.
The change is expected to price half of the 32,000 clients out of the program.
Leon County Circuit Court
The AHF has also filed a motion for an emergency injunction in Circuit Court in Leon County asking that the state be prevented from moving ahead with the reductions.
During a Thursday scheduling conference with Judge Jonathan Sjostrom, attorneys for both sides agreed to March 11 as an evidentiary hearing date if the judge agrees to allow that case to move forward.
The AHF said it will amend its original filing to reflect passage of the emergency rules by the close of business Thursday.
DOH outside counsel Ed Lombard said he’ll respond to the amended complaint by close of business March 6.
To obtain an emergency injunction, the plaintiff must show a likelihood of success on the merits and that they will suffer irreparable harm if the injunction isn’t issued.