State Administrative Law Judge W. David Watkins presides over an emergency meeting Feb. 25. (Photo by Christine Sexton Florida Phoenix)
The DeSantis administration has filed an emergency rule that restricts eligibility for an AIDS drug assistance program beginning March 1, effectively bringing an end to an administrative challenge filed by a leading AIDS healthcare provider.
But a legal challenge to the emergency rules already is looming. The AIDS Healthcare Foundation (AHF) said Wednesday it would immediately challenge the emergency rules. Hearings on emergency rule challenges must be heard within 14 days.
State Administrative Law Judge W. David Watkins had scheduled an emergency hearing on AHF’s request to lift an automatic stay that has prevented its legal challenge against the Department of Health from going forward.
AHF’s underlying case hinged on the argument that the DOH violated Florida law when it announced cost-cutting at the AIDS Drug Assistance Program (ADAP), including scaling back who’s eligible and what drugs are available.
DOH claims the changes, announced on its website and in correspondence to affected ADAP clients, need to be made because the program faces a $120 million deficit. About 16,000 people living with HIV and AIDS are expected to be affected by the changes, which include limiting income eligibility for the program from $63,840 annually for an individual to $20,748 annually.
AHF argues the changes needed to be implemented through formal administrative rulemaking and that the DeSantis administration violated Florida law by not going through that process. Although it can be time consuming, the rulemaking process guarantees the public has a say on changes before they take effect.
But attorney Eduardo Lombard, representing the agency, told Watkins the hearing on whether to lift the automatic stay was now moot because the DOH filed emergency rules implementing the cuts Tuesday night.
Unlike general rules, emergency rules take effect immediately and aren’t required to go through the rulemaking process.
“I think proceeding today on the question that’s teed up on the notice of whether the stay should be lifted or not lifted is, again from our perspective, an academic exercise in light of the emergency rule filed yesterday,” said Lombard, of the Tallahassee firm Lombard Law. “So, our perspective is that, for today’s purposes, there’s nothing to be done. Nothing to be done in the case, period, and all this is moot and subject to dismissal.”
“Legal subterfuge?”
AHF attorney Louise Wilhite-St. Laurent reluctantly agreed with Lombard on that point but not before she accused the DeSantis administration of “legal subterfuge,” noting the administration had filed a motion asking Watkins to quash seven subpoenas it had served on DOH employees requiring them to appear at the emergency hearing.
The motion to quash the subpoenas was the latest legal maneuver from the DeSantis administration that she insisted were intended to stifle discussion.
Other maneuvers included the DOH noticing that it would publish the rules necessary to cut program, which allowed the DOH to take advantage of a state law that enables agencies to obtain automatic stay in certain administrative challenges involving rulemaking.
The DOH appeared determined to implement the reductions even after the Legislature agreed to include additional funding for ADAP in the budget being debated for next fiscal year. That prompted the AHF to move in the administrative court to lift the emergency stay preventing its legal challenge from going forward.
“From our perspective, it is clear that DOH never intended to cease reliance on the unadopted rule policy even though they began the normal rulemaking process. And now, at the 11th hour, they’ve published these emergency rules that, again, by their nature, same with the stay, circumvent DOH having to participate in this particular action,” she said.
Lombard insisted any “suggestion of subterfuge or whatever is just theatrics.”
He said the DOH had received more than 200 comments on its proposed rule and that at some point it was going to hold a hearing.
ADAP is funded in part with with federal Ryan White HIV/AIDS Program funds. The program is administered in Florida by the DOH, which is run by state Surgeon General Joseph Ladapo.
Emergency rules and press conferences
Statutes allow agencies to pass emergency rules when an agency finds there’s an “immediate danger to public health, safety, or welfare.”
Emergency rules are effective immediately upon filing with the Florida secretary of state’s office. Emergency rules stay in effect for 90 days and cannot be renewed unless a proposed rule to implement the policy in the emergency rule is challenged.
Boynton Beach Democratic Sen. Lori Berman and other House and Senate Democrats quickly called a press conference following the emergency hearing.
“The only emergency here is the one that the Department of Health is creating through their own actions. The actions of Surgeon General Ladapo and the Department of Health are shameful,” she said.
Berman continued, “The continued abuse of emergency powers by [the governor’s] executive branch must be reigned in.”
During a press conference, Tom Myers, AHF’s chief of public affairs and general counsel, said the foundation plans to immediately file a challenge to the emergency rules.
Meanwhile, a Leon County circuit court has slotted a scheduling conference for Thursday with attorneys for the DOH and the AHF in the foundation’s request for an injunction to block the DeSantis administration from moving ahead with the cuts.
This story is courtesy of Florida Phoenix.
Florida Phoenix is a nonprofit news site, free of advertising and free to readers, covering state government and politics with a staff of five journalists located at the Florida Press Center in downtown Tallahassee. Florida Phoenix is part of States Newsroom, the nation’s largest state-focused nonprofit news organization.
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