Florida uses emergency rule to cut patients off AIDS medication

The state filed the changes the day before a legal hearing with the AIDS Healthcare Foundation.

Amy Pinter chants along with about 30 fellow supporters with the AIDS Healthcare Foundation outside of the Pinellas County Florida Department of Health office on Jan. 30 in St. Petersburg. Cuts to the state’s AIDS Drug Assistance Program are set to take effect on March 1 after a state emergency rule. [ DIRK SHADD | Times ]

TALLAHASSEE — Florida’s Department of Health is using emergency rules to cut about 12,000 people off from affordable access to their HIV/AIDS medication starting Sunday.

The Department’s emergency rules were filed Tuesday, one day ahead of a hearing in a legal challenge to the state over changes to the AIDS Drug Assistance Program.

Louise Wilhite-St. Laurent, an attorney representing the AIDS Healthcare Foundation, which filed the lawsuit, called the state’s move “legal subterfuge.”

The foundation sued last month after the state said it planned to limit eligibility to the program — which helps low-income HIV and AIDS patients afford medication. Instead of serving people earning 400% of the federal poverty level, the eligibility would be slashed, helping only those at 130% of the federal poverty level, or about $21,000 a year for an individual.

The advocacy group said the changes were invalid because the Department of Health never formally changed the state rule that sets the program criteria.

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Wilhite-St. Laurent, speaking during the Wednesday hearing, said the state‘s “11th hour” emergency rule shows that the department “intended all along” to stick to their “unadopted” changes.

Eduardo S. Lombard, an attorney representing the Department of Health, said the AIDS Healthcare Foundation’s case was now moot because of the department’s emergency rule.

“The suggestion of subterfuge is just theatrics,” he said.

The emergency rule means that, unless changed, thousands of Floridians will lose access to life-saving HIV/AIDS medication as of March 1. A spokesperson for the AIDS Healthcare Foundation said the group plans to challenge the state’s emergency rule.

Tom Meyers, the general counsel for the organization, said they were planning to move with “all due speed.”

Under the changes, some patients who have insurance coverage through Medicare will still qualify for the program up to 400% of the federal poverty level.

The state is also eliminating the program that covered health insurance for eligible HIV positive patients. That component brings in around two-thirds of the funding for the AIDS Drug Assistance Program.

 Surgeon General Joseph Ladapo blamed the changes on a projected $120 million budget shortfall, pointing to rising health care costs from the expiration of Affordable Care Act enhanced premium tax credits.

But no other state has made such a drastic change, even amid rising health care costs nationwide.

Florida’s choice to eliminate a major source of program revenue kneecaps the AIDS Drug Assistance Program far beyond what’s necessary, according to former employees, health experts and longtime AIDS advocates.

In early January, the state health department announced its planned changes to the program, saying they would take effect March 1.

Those planned changes were made out of the public eye and blindsided lawmakers.

About a week after the AIDS Healthcare Foundation’s lawsuit, the state started its regular process to change the program requirements. That can take several months.

The AIDS Healthcare Foundation agreed to put its case on hold but reignited it last week amid concern that the Department was still planning to make the changes on March 1, even though rulemaking wouldn’t be complete.

The Department of Health did not respond immediately to questions about why it set an emergency rule to make the AIDS program changes even as it goes through the standard process.

Lombard, the attorney representing the Department, said at the Wednesday hearing that the health department would still “hold a hearing at some point” on the changes.

State lawmakers in the House and Senate have allotted millions of dollars toward funding the AIDS Drug Assistance Program. Gov. Ron DeSantis still has the opportunity to issue a line-item veto.

The emergency changes, and the uncertainty of funding, mean thousands of Floridians may have to go without their medication or find other means to fund it for the next five months.

When HIV patients don’t take medicine to suppress the virus, it resurges, making it transmissible to other people. And if people take their medicine only periodically, the virus can develop drug resistance, said Dr. Bob Bollinger, a professor at Johns Hopkins University.

“God forbid we have people dying from AIDS again when there’s no reason for that,” Bollinger said.

In a news conference Wednesday, House and Senate Democrats spoke out against the state’s emergency rule.

Sen. Shevrin Jones, D-Miami Gardens, said the state’s emergency rule was “reckless” and that the decision falls on Ladapo.

He said if Florida doesn’t pay for medication access on the front end, they’ll pay later when people become sick and transmission increases.

“Florida should not be the state that turns a preventable budget issue into a preventable public health emergency,” he said.