The AIDS Healthcare Foundation has sued the Florida Department of Health over a recent rule change that will kick thousands of residents from the state's AIDS Drug Assistance Program.
The complaint, filed Tuesday with Florida's Division of Administrative Hearings in Tallahassee, claims that the state illegally changed rules regarding income eligibility thresholds for ADAP without having gone through the mandatory rule-making process.
"The whole point of having to follow procedures and rules is to make sure any decisions made are deliberate, thought through and minimize harm. Floridians living with HIV and the general public's health is at stake here and jeopardized by these arbitrary and unlawful DOH rule changes," said Tom Myers, the foundation's chief of public affairs and general counsel.
This month, the state changed ADAP eligibility requirements for individuals from 400% of the national poverty level (and income of roughly $62,000 per year) to 130% of the federal poverty (roughly $20,000 per year). That change will result in 16,000 Floridians losing coverage under the program. The changes also eliminates access to Biktarvy, a one-a-day medication.
The new rules would go into effect on March 1.
The nonprofit foundation estimated out-of-pocket costs from HIV/AIDS medication are about $4,500 per month.
State officials said the changes are to prevent a shortfall of more than $120 million in the statewide prescription medication program for low-income people living with HIV/AIDS. They said the changes in income eligibility requirements are driven by the failure of Congress last year to extend the Affordable Care Act tax credits.
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"It's a really, really serious issue," Florida Surgeon General Dr. Joseph Ladapo told legislators in Tallahassee this month.
But Myers said the foundation has seen no data to substantiate the shortfall claim.
"We don't know that's a fact. … There have been third-hand statements, but no evidence of this. The number that's been floated around is $120 million. We don't know where that comes from. All of these things can be resolved and found out if you follow the normal processes, and that wasn't done here," said Myers. " We don't know why a program that already receives over $80 million a year from the federal government somehow has a $120 million deficit."
The changes came near the end of the open enrollment period for health insurance through the Affordable Care Act, meaning that few who lost their ADAP coverage were able to access cheaper insurance through the portal. Further, losing ADAP coverage does not constitute a qualifying event that would allow an individual to register outside of the enrollment period.
The foundatoni is also exploring legislative solutions. The organization has called on the health department to declare a public health emergency and request an emergency appropriation from the Legislature.
Esteban Wood, the foundation's director of advocacy, legislative affairs and community engagement, says the consequences for people who will lose ADAP coverage are dire.
" If someone doesn't take their HIV medication, it will develop into AIDS, which is a death sentence," he said.
He said the state is running out of time to act.
" People who currently are enrolled in the AIDS Drug Assistance Program ... are asking us, 'What are we supposed to do?' 'How are we supposed to survive?' and we don't have a good answer for them," he said.
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