Florida’s Department of Health issued an emergency rule Tuesday night that reduces funding for HIV/AIDS medication for an estimated 16,000 people in Florida in a matter of days, circumventing legal challenges by advocates.
The cuts to the AIDS Drug Assistance Program (ADAP), which will reduce the income eligibility for aid and remove a key medication from coverage, are slated to take effect March 1.
In January, the state first announced it would make changes to ADAP, including lowering the income threshold for the program from 400% of the federal poverty level ($62,600 per year) to 130% of the federal poverty level ( $20,345 per year). They would also remove Biktarvy, the most popular HIV medication in the country, from coverage. The National Alliance of State and Territorial AIDS Directors (NASTAD) estimates that the change will cause 16,000 Floridians to lose either their medication or payment assistance for their health insurance that pays for the drugs. That includes 2,800 people in Broward County.
The state was promptly sued by the AIDS Healthcare Foundation (AHF) for not following its statutorily-mandated rulemaking process. That process includes community input and a 21-day waiting period. AHF was granted an expedited hearing in the case, but before the two sides met in court, the state announced on Feb. 11 that it would go through its formal rulemaking process. And so a stay was placed on AHF’s legal challenge.
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On Tuesday night, the eve of a scheduled emergency hearing to lift that stay, the state filed its emergency rule formalizing the cuts and essentially ending AHF’s legal challenge.
“ The department issued this emergency order because they knew we were going to win. They have done every cynical ploy to avoid due process,” said Michael Weinstein, president of AHF.
The emergency rule will expire in 90 days.
State officials said the rule change is being taken to prevent a shortfall of more than $120 million in the program, and that the changes in income eligibility requirements are driven by the failure of Congress last year to extend the Affordable Care Act tax credits. But it has yet to provide any proof of this budget shortfall. The AHF sued the state for public records, including those related to the alleged budget shortfall. The state responded with a $786,507.30 invoice to review those records.
“This is a ransom note effectively crafted to prevent any information about the DOH’s arbitrary, illegal, and punitive move to rewrite ADAP eligibility, a very clear violation of Florida’s sunshine law, and a move that threatens the lives of thousands of Floridians living with HIV,” said Weinstein.
Both chambers of the State Legislature have proposed additional funding to buoy the program, including a bill in the Senate that would restore eligibility requirements back to the 400% of the federal poverty level. However, those funds would not go into effect until the beginning of the new fiscal year on July 1. Plus, those funds would be susceptible to a line-item veto from the governor.
AHF has said they will continue to fight the cuts in court, saying they would file a legal challenge on the emergency rule as soon as Thursday.
