Florida/Georgia Personal Injury & Workers Compensation

...Florida and others (hereinafter "State") filed a complaint against many of the defendants involved in the present action (hereinafter "FSA Defendants"). [5] This earlier action was initiated by the State under the Medicaid Third-Party Liability Act, section 409.910, Florida Statutes (1995)....

...The Act was again modified in 1994. [5] It is these amendments that are directly at issue in this case. The relevant provisions of the Act affected by the 1994 amendments, with those amendments identified by underlining or strike-through, read as follows: 409.910 Responsibility for payments on behalf of Medicaid-eligible persons when other parties are liable.— (1) It is the intent of the Legislature that Medicaid be the payer of last resort for medically necessary goods and services furnished to Medicaid recipients....

...extent necessary to ensure full recovery by Medicaid from third-party resources; such principles shall apply to a recipient's right to recovery against any third party, but shall not act to reduce the recovery of the agency pursuant to this section. § 409.910(1), Fla....

...e to join or identify each claim, the agency shall not be required to so identify the individual recipients for which payment has been made, but rather can proceed to seek recovery based upon payments made on behalf of an entire class of recipients. § 409.910(9)(a), Fla....

...Statute of Repose The trial court held that the 1994 statutory amendment that abolishes the statute of repose is unconstitutional. The relevant portion of the 1994 amendment says that "[t]he defense of statute of repose shall not apply to any action brought under this section." § 409.910(12)(h), Fla....

...There is nothing to prevent the legislature from repealing a statute of repose. Therefore, the amendment can be constitutionally applied to claims not yet barred by the statute of repose when suit is filed. Joinder of Claims and Liberal Construction The act, in section 409.910(9), Florida Statutes (1995), provides for the joinder of multiple claims....

...der a market share theory, provided that the products involved are substantially interchangeable among brands, and that substantially similar factual or legal issues would be involved in seeking recovery against each liable third party individually. § 409.910(9)(b), Fla....

...s will spawn needless and expensive litigation. *1261 Identification of Recipients I agree with the majority's treatment of this issue. Statute of Repose I agree with the majority's treatment of this issue. Joinder of Claims and Liberal Construction Section 409.910(9), Florida Statutes (1995), reads in pertinent part: In the event that medical assistance has been provided by Medicaid to more than one recipient, and the agency elects to seek recovery from liable third parties due to actions by th...

...edure in all courts." We have consistently held that statutes are limited to substantive matters and that the legislature may not prescribe practice and procedure. Haven Fed. Sav. & Loan Ass'n v. Kirian, 579 So.2d 730 (Fla. 1991). To the extent that section 409.910(9) can be said to establish procedure for class actions, it clearly violates the decision in Avila South Condominium Ass'n v....

...I am not certain of this, but in any event, the fact that a statute may be consistent with our rules of procedure on joinder of causes of action is irrelevant. If it involves practice and procedure, the statute must be stricken even if the same practice and procedure is authorized by our rules. Section 409.910(1), Florida Statutes (1995), provides that "[c]ommon law theories of recovery shall be liberally construed to accomplish" the intent of the statute....

...ral liability. See Smith v. Department of Insurance, 507 So.2d 1080 (Fla.1987) (joint and several liability applicable where defendants act in concert or where they commit separate acts which combine to produce a single injury). Statistical Evidence Section 409.910(9), Florida Statutes (1995), also provides that "the issue of causation and damages in any such action may be proven by use of statistical analysis." In attempting to dictate the manner in which cases may be proven, this statute clearly impinges upon the court's authority to regulate practice and procedure....

...I would strike as unconstitutional the provision abrogating affirmative defenses, the provision pertaining to joinder of claims and liberal construction, and the provision on statistical evidence. I respectfully dissent. SHAW and HARDING, JJ., concur. NOTES [1] § 409.910, Fla....

...usiness Regulation to create the Department of Business and Professional Regulation. Ch. 93-220, Laws of Fla. [10] We note that, instead of the prophesied governmental expansion, the legislature has actually consolidated departments since 1992. [11] § 409.910(1), Fla. Stat. (1995). [12] § 409.910(9)(a), Fla. Stat. (1995). [13] § 409.910(12)(h), Fla. Stat. (1995). [14] § 409.910(9), Fla. Stat. (1995). [15] § 409.910(1), (9)(b), Fla. Stat. (1995). [16] § 409.910(9), Fla....

...ms that was previously nonexistent. The provision at issue here simply traces the rules already created by this Court. In that the State is filing claims in its own name, actions proceeding under the Act are not in the nature of a class action. [24] § 409.910(1), Fla. Stat. (1995). [25] § 409.910(9), Fla. Stat. (1995). [26] § 409.910(1), Fla....

...accident, Florida’s Medicaid program (administered by AHCA) paid $322,222.27 for Villa’s medical care. Villa later settled with one of multiple alleged tortfeasors for $1 million. Claims against other alleged tortfeasers were still pending. Using the formula outlined in section 409.910(11)(f), Florida Statutes (2015), AHCA calculated the presumptively appropriate amount of its lien at $321,720.16, and asserted a lien in that amount against Villa’s settlement. Section 409.910(17)(b) authorizes Medicaid recipients to contest the amount of a Medicaid lien at a hearing before the Division of Administrative Hearings (DOAH), by proving that “a lesser portion of the total recovery should be allocated as reimbursement for past and future medical expenses than the amount calculated by the agency pursuant to the formula set forth in paragraph (11)(f).” § 409.910(17)(b), Fla....

...The First District correctly observed that Florida law plainly contemplates recoupment of AHCA’s expenditures on behalf of a Medicaid recipient from portions of the recipient’s tort recovery “allocated as reimbursement for past and future medical expenses,” Giraldo, 208 So. 3d at 249 (quoting § 409.910 (17)(b), Fla....

...The personal injury case brought below by Martha Smith, as plenary guardian of Maurice Thomas, settled for $2,225,000.00. Smith appeals the final order denying her motion to reduce the State of Florida's Medicaid lien from $122,783.87 to $40,927.96. We affirm. Florida's Medicaid Third-Party Liability Act, section 409.910, Florida Statutes (2007), authorizes the State to recover from a personal injury settlement or verdict money that the State paid for the plaintiff's medical care prior to the tort recovery. The statute limits the State's *591 recovery to half of the tort recovery, after deducting attorney's fees and costs. According to the record before us, Medicaid could have recovered up to $707,778.00 in medical expenses using the formula in section 409.910. Because the State's Medicaid lien in this case totaled far less than this statutory cap, section 409.910 allowed the State to fully recover from his settlement the $122,783.87 that it paid on Thomas' behalf....

....00 in damages represented Thomas' medical expenses, and made no other showing to support her argument that the medical expense portion of the $2,225,000.00 settlement was less than $122,783.87. Without that showing, the trial court properly applied section 409.910, Florida Statutes, and allowed the State to recover the full $122,783.87....

...Consistent with federal law, Florida's statutes only permit the Agency for Health Care Administration [2] to assert its lien rights to "third-party benefits," a phrase of art defined by the statute as including the component of any recovery attributable only to medical expenses. § 409.910(1), (5), (6), Fla....

...The circuit judge refused to consider Appellant's evidence or methodology. Instead, he denied Appellant's request "finding that Arkansas Department of Health and Human Services v. Ahlborn, 547 U.S. 268, 126 S.Ct. 1752, 164 L.Ed.2d 459 (2006) does not govern Section 409.910, Florida Statutes...." The majority denies this appeal for two reasons, neither of which was argued by Appellee here or below....

...Rather, the full medical expense portion of the original damage claim would be available to satisfy the State's lien, even though the claim settled for less than the damages originally alleged. [2] This is the agency tasked with enforcing the Medicaid Third-Party Liability Act, section 409.910, Florida Statutes....

...ith [42 C.F.R.] § 433.153. (c) To the recipient, any remaining amount...." In furtherance of the federal third-party liability provisions, Florida's "Medicaid Third-Party Liability Act," section 409.2665, Florida Statutes (Supp.1990) (renumbered as Section 409.910(1), Florida Statutes (1991)), provides that [i]t is the intent of the Legislature that Medicaid be the payer of last resort for medically necessary goods and services furnished to Medicaid recipients....

...Tashman—$224.80; (h) Tampa General Hospital—$2,020.40; and (i) Physicians Scanning Association—$1,512. [2] However, the parties agreed and the referee found that the prior reprimands, which occurred in 1988 and 1987, were too remote in time to be considered in aggravation. [3] Section 409.910(18), Florida Statutes (1995), provides that if an attorney obtains benefits from a third party for medical services provided and for which services medicaid must pay, then that attorney must use the benefits received from the third party to reimburse medicaid....

...Licko of Thomson, Muraro, Razook & Hart, P.A., Miami, for respondents. PER CURIAM. Petitioners seek review of an order quashing their charging liens. We grant the petition for certiorari, quash the trial court's order, and remand for further proceedings. Pursuant to section 409.910(15)(b), Florida Statutes, the State of Florida and others (the state) contracted with a team of private attorneys, including the petitioners, to sue the American Tobacco Company and others (the defendants) to recover health care costs caused by tobacco products....

...NOTES [1] The "Medicaid Third-Party Liability Act," which allows the State to recover from third parties benefits paid by Medicaid, was amended in 1994 to give the Agency for Health Care Administration an independent cause of action against liable third parties. See § 409.910(6)(a), Fla. Stat. (Supp.1994); ch. 94-251, § 4, at 1880-81, Laws of Fla. Among other provisions, the amendment enabled the agency to bring one proceeding to recover sums paid to more than one recipient where there are common issues of fact or law. See § 409.910(9), Fla....

...and Medicare payments and the right of insurance and health maintenance organizations to be reimbursed for payments to subscribers who suffer injury, disease, or illness by virtue of the negligent act of a third party. See, e.g., 42 U.S.C. § 1395; § 409.910, Fla....

...ction 733.702, Florida Statute (1991). Although AHCA's verified claim for reimbursement of Medicaid expenditures advanced to the decedent was initially filed with the clerk of the court pursuant to the "Medicaid Third-Party Liability Act" ("FTPLA"), section 409.910, Florida Statute (1991), on December *84 21, 1992, and prior to the opening of the estate, we conclude that it was nevertheless a timely creditor's claim also for purposes of section 733.702....

...This suit was subsequently settled for approximately 2.2 million dollars. On December 21, 1992, prior to Kevin's death and the opening of the estate, AHCA filed and recorded its initial verified claim of lien totaling $488,442.38 with the clerk of court in Dade County pursuant to section 409.910, Florida Statutes. [1] AHCA's verified substituted claim of lien in the amount of $617,227.94 was subsequently filed and recorded on November 3, 1993. Neither of these claims bears any certificate of service denoting personal service to anyone. Pursuant to section 409.910(6)(c)3, [2] however, the mere filing of such claims with the clerk of court is sufficient to provide all persons with notice of these claims....

...ment from the estate. This appeal followed. AHCA argues that the trial court erred because section 733.702 is a statute of limitations and thus, an affirmative defense which has been specifically superseded or abrogated by the Florida Legislature in section 409.910....

...r granting enforcement of lien and we turn our attention to the remaining and central issue of this appeal. III AHCA maintains that section 733.702 is a statute of limitations and thus, an affirmative defense which has been specifically abrogated by section 409.910(1), Florida Statutes (1997). Section 409.910(1) provides in relevant part that: * * * * * * If benefits of a liable third party are available, it is the intent of the Legislature that Medicaid be repaid in full and prior to any other person, program, or entity....

...en of medical assistance to the extent of such resources. ... (emphasis added) The estate, however, counters that section 733.702 is a jurisdictional non-claim statute which bars any untimely claim against the estate and thus, cannot be abrogated by section 409.910....

...See Starr Tyme, Inc. v. Cohen, 659 So.2d 1064, 1068 (Fla.1995). In accordance with these established principles, we deem it unnecessary for us to consider whether section 733.702 of the probate code is a statute of limitations which has been abrogated by section 409.910 of the FTPLA because we conclude that these statutes may be reconciled to give effect to the intent and provisions of each in this case. When so harmonized, we find that AHCA's verified claim, initially filed on December 21, 1992, pursuant to section 409 .910(6)(c)2, was sufficient to timely perfect its lien against the estate pursuant to section 733.702. Both sections 409.910 and 733.702 require AHCA to file its verified claim of lien in order to place all interested persons on notice of its creditor's lien. Although section 409.910 requires the claim to be filed with the clerk of the court, section 733.702(1) is silent as to where a creditor's verified claim is to be filed in order to be perfected....

...) the security for the claim, if any; and (5) whether the claim is due or involves an uncertainty and, if not due, then the due date and, if contingent or unliquidated, the nature of the uncertainty. Fla. Prob. R. 5.490. We further note that neither section 409.910 nor 733.702(1) requires personal service of the verified creditor's lien upon anyone to be effective....

...But it is specifically provided in the probate rules that the failure to deliver or receive a copy of the claim does not affect the validity of the creditor's claim. See id. at (d). In this case, since AHCA has had its verified and recorded claim on file with the clerk of court pursuant to section 409.910 since December 21, 1992, and prior to the expiration period contained in section 733.702, we believe that the real and dispositive issue on this appeal is whether the section 409.910 claim was sufficient to satisfy the requirements of section 733.702....

...mitations contained in section 733.702, AHCA is entitled to have its lien satisfied. Were we to discount AHCA's verified *88 claim of lien filed and recorded with the clerk on December 21, 1992, we would effectively be invalidating the provisions of section 409.910 or rendering them utterly meaningless....

...GODERICH, J., concurs. NESBITT, J. (dissenting and concurring): I agree with the result but not the reasoning of the court. I cannot subscribe to the view that section 732.102 or section 733.710 may be harmonized with and construed pari materia with section 409.910, Fla....

...First, section 709.910 creates and establishes AHCA's right to a lien upon a Medicaid recipient's property. Section 733.710 is generally designed to limit, reduce, extinguish or nullify all claims so as to hasten the closing of a decedent's estate. It cannot be logically harmonized with section 409.910 because the purpose of each is opposite to the other....

...he need. This same agency is also responsible and mandated to collect or recoup any or all funds contributed, especially where third-party benefits are anticipated by the recipient or the recipient's representative. See 42 C.F.R. § 433.10. See also § 409.910(a)(25)(I), Fla....

...A reading of the federal statutes makes plain that the State's contribution to a Medicaid recipient is entirely "federalized" and is therefore endowed with the same prerogatives by the Supremacy Clause which protect the federal government. See 42 C.F.R. § 433.10; § 409.910, Fla. Stat. Medical providers are paid by AHCA. The providers have no authority to settle Medicaid claims; only the agency does. See § 409.910, Fla. Stat. When a recipient or the recipient's representative becomes aware of possible third-party claims, that person is required to notify the agency. See § 409.910(17), Fla....

...dicaid claim. I therefore agree with the court that the agency is entitled to collect from the personal representative, or any other beneficiary or transferee, the full and entire amount of the Medicaid lien (both state and federal parts). NOTES [1] Section 409.910 provides in relevant part: (6)(c) The department is entitled to, and has, an automatic lien for the full amount of medical assistance provided by Medicaid to or on behalf of the recipient for medical care furnished as a result of any covered injury or illness for which a third party is or may be liable, ......

...full satisfaction of a Medicaid lien from the proceeds of a settlement between the appellant and the defendants in the malpractice action. For the reasons we explain, we affirm the trial court's ruling. Florida's Medicaid Third-Party Liability Act, § 409.910, Florida Statutes (2006), provides the statutory basis for the assertion by appellee Agency for Health Care Administration (AHCA) of a lien against third-party benefits obtained by a Medicaid recipient for medical expenses. Section 409.910(6) provides that an application for Medicaid or the acceptance of Medicaid assistance operates as an automatic assignment to AHCA of third-party benefits. Section 409.910(11)(f) sets forth the rule governing the distribution of amounts recovered by or on behalf of a Medicaid recipient from a third party in any tort action "which results in a judgment, award, or settlement." The statute provides that "[a]fter attorney's fees and taxable costs ..., one-half of the remaining recovery shall be paid to [AHCA] up to the total amount of medical assistance provided by Medicaid," § 409.910(11)(f)(1), and that "[t]he remaining amount of the recovery shall be paid to the [Medicaid] recipient," § 409.910(11)(f)(2)....

...Nor have the parties to the settlement or AHCA otherwise agreed to such an allocation. Since the lien amount— representing the undisputed cost of medical care provided by Medicaid—does not exceed fifty percent of the amount recovered in the settlement, AHCA is entitled to full satisfaction of its lien pursuant to section 409.910(11)(f)(1)....

...ion of the parties['] undifferentiated settlement agreement" and ordered that the appellant "pay the full amount of the Medicaid lien to the state of Florida." On appeal, the appellant argues—as she did before the trial court—that "the formula [in section 409.910] for determining the amount [AHCA] can recover on its lien from a plaintiff's tort judgment or settlement......

...of a settlement *1269 that represents the recovery of medical expenses."). In Florida, a Medicaid recipient entering into a settlement of a tort claim with a third party does so against the backdrop of the fifty-percent allocation rule set forth in section 409.910(11)(f)....

...A state plan must also provide that, as a pre-requisite to Medicaid eligibility, the applicant assign to the state whatever rights he may have to payment for medical care. See 42 U.S.C. § 1396k(a)(1)(A). Pursuant to these federal directives, Florida has enacted the "Medicaid Third-Party Liability Act" (FTPLA). See § 409.910, Fla....

...ess of whether a recipient is made whole or other creditors paid. Principles of common law and equity as to assignment, lien, and subrogation are to be abrogated to the extent necessary to ensure full recovery by Medicaid from third-party resources. § 409.910(1), Fla. Stat. (Supp.1992). The FTPLA directs the Agency to seek "reimbursement from third-party benefits to the limit of legal liability and for the full amount of third-party benefits...." Id. § 409.910(4)....

...la. Stat. (1991). A "benefit" is any sum of money that is "related to" any covered injury or medical care; only those third-party sums that are "not related in any way to a covered injury or illness" are beyond the Agency's grasp. Id. § 409.901(2); § 409.910(12), Fla. Stat. (Supp.1992). Expressly included as examples of "third party benefits" are "health insurance" proceeds and "medical benefits under workers' compensation." § 409.910(20), Fla....

...Stat. (1991). The FTPLA provides at least three mechanisms by which the Agency can recoup its expenditures from third parties: (1) the Agency is statutorily granted an "automatic lien" for the full amount of medical assistance provided by Medicaid, § 409.910(6)(c), Fla. Stat. (Supp.1992); (2) the Agency is "automatically subrogated" to any rights to third-party benefits, id. § 409.910(6)(a); and (3) the acceptance of Medicaid benefits results in an automatic assignment to the Agency of the recipient's rights to any third-party benefits, id. § 409.910(6)(b). Florida's Act sets forth a procedure specifically governing the distribution of settlement proceeds. See id. § 409.910(11). Initially, prior to any settlement, the Agency must be given notice as well as a reasonable opportunity to file its lien and satisfy its rights as lien-holder, assignee, and subrogee. Id. § 409.910(11)(d). Following a settlement, the court must segregate an amount sufficient to repay the Agency and order such amount be paid directly to the Agency. Id. § 409.910(11)(c)....

...amount of any settlement of the recipient's action or claim involving third-party benefits, with or without suit, is subject to the department's claims for reimbursement of the amount of medical assistance provided and any lien pursuant thereto. Id. § 409.910(11)(e). The department's rights of recovery created by this section ... shall not be limited to some portion of recovery from a judgment, award, or settlement. Id. § 409.910(12)....

...The FTPLA contemplates collusion between the Medicaid recipient and settling third parties, [2] and provides the Agency with at least three remedial options: (1) having the settlement declared void, see Fla. Admin. Code R. 59G-7.034(4)(b); (2) suing for impairment of the lien, see § 409.910(6)(c)7, Fla....

...ion which purports to limit or exclude payment or provisions of benefits for an individual if the individual is eligible for, or a recipient of, medical assistance from Medicaid, and any such term or provision shall be void as against public policy. § 409.910(15), Fla....

...he payor of last resort, that is, other available resources must be used before Medicaid pays...." S.Rep. No. 99-146, at 312 (1985), reprinted in 1986 U.S.C.C.A.N. 279. Florida has explicitly adopted and codified this federal legislative intent, see § 409.910(1), Fla....

...ederal and state definitions of a "third party," as it "may" indeed be liable for "all or part" of the Medicaid expenditures made in this case. See 42 C.F.R. § 433.136(3); § 409.901(19), Fla. Stat. (1991); see also 42 U.S.C. § 1396a(a)(25)(A) and § 409.910(20), Fla....

...No settlement, agreement, consent decree, trust agreement, annuity contract, pledge, security arrangement, or any other device, hereafter collectively referred to in this subsection as a "settlement agreement," entered into or consented to by the recipient or his legal representative shall impair the department's rights. § 409.910(13), Fla....

...*978 Kim A. Kellum, Assistant General Counsel, Agency for Health Care Administration, Tallahassee, for Appellant. Kimberly Sands, Daytona Beach, for Appellee. KAHN, J. The sole issue in this case is whether the Medicaid lien due to the State under section 409.910(11)(f), Florida Statutes (1999), may be reduced to reflect a pro rata share of attorney's fees and costs attributable to recovering the lien amount from a third-party tortfeasor....

...ent for medical care from any third party. 42 U.S.C. § 1396k(a)(1)(A). In pursuit of the requirement to recover benefits available to a Medicaid recipient, Florida has enacted the Medicaid Third-Party Liability Act, the intent of which is stated in section 409.910(1), Florida Statutes (1999)....

...rces." Id. The statute thus goes to great lengths to establish legislative intent to recover 100% of the amount Medicaid has paid where a third-party recovery is available. The actual distribution scheme for recovery of a Medicaid lien is set out in section 409.910(11)(f), Florida Statutes (1999), as amended....

...Such a construction would be contrary to the legislative intent. Instead, the distribution scheme provides, in a fairly straightforward manner, that after fees and taxable costs, "one-half of the remaining recovery shall be paid to the agency up to the total amount of medical assistance provided by Medicaid." § 409.910(11)(f)1., Fla. Stat. (1999). The only provision addressing the subject of attorney's fees provides that, for purposes of calculating AHCA's recovery, attorney's fees shall be calculated at 25% of the judgment, award, or settlement. § 409.910(11)(f)3., Fla Stat....

...In this case, *980 after deduction of the 25% attorney's fees, and total amount of costs, one-half of the remaining amount is far greater than the lien claimed. Accordingly, AHCA is entitled to recover 100% of the amount expended by Medicaid. This principle of full recovery is set out at section 409.910(11)(f)4.: "The agency shall be entitled to all medical coverage benefits up to the total amount of medical assistance provided by Medicaid." Florida has fashioned "a cause of action to recover health care expenditures made on behalf o...

BERGER, J. The appellants, Tiffany Davis and Owen Glenn Davis, as parents and natural guardians of Hunter Davis, a minor, appeal the trial court’s order, which determined, pursuant to the formula outlined in section 409.910, Florida Statutes (2012), that the Agency for Healthcare Administration (“AHCA”), is entitled to recover the full amount of AHCA’s Medicaid lien out of the proceeds Hunter received from a personal injury settlement. Appellants argue that section 409.910 is unenforceable to the extent it allows AHCA to recover more than what Hunter’s settlement allocated for past medical expenses. We agree and hold the trial court erred when it determined as a matter of law that it was without discretion to limit repayment of the lien and was, instead, required to apply the formula set forth in section 409.910(11)(f)....

...eneficiaries who later recover from third-party tortfeasors. See Arkansas Dep’t of Health & Human Servs. v. Ahlborn, 547 U.S. 268, 276 , 126 S.Ct. 1752 , 164 L.Ed.2d 459 (2006). To comply with federal directives the Florida legislature enacted section 409.910, Florida Statutes, which authorizes the State to recover from a personal injury settlement money that the State paid for the plaintiffs medical care prior to recovery. See Smith v. Agency for Health Care Admin., 24 So.3d 590, 590 (Fla. 5th DCA 2009). The specific amount the State may recover from a settlement is determined by utilizing the formula provided in section 409.910(11)(f), which caps recovery at half of the total amount of the settlement, after deducting attorney’s fees and costs. 1 § 409.910(11)(f)....

...Appellants argued that since Hunter was only receiving 10% of the value of all of her damages, her liens for past medical expenses should be correspondingly reduced. Although AHCA ultimately agreed to the settlement amount, it objected to the allocation within that settlement to past medical expenses and asserted that section 409.910 required its lien be paid in full....

...lement for Hunter’s past medical expenses. AHCA also did not challenge the value placed on the damages by Hunter’s expert and trial counsel. Instead, AHCA argued that the settlement and allocation were invalid because AHCA did not consent. Thus, section 409.910 controlled and required repayment of AHCA’s full lien amount....

...AHCA maintained that no legal authority authorized Florida courts to allow Medicaid recipients to prove that some smaller portion of their settlement was comprised of medical expenses. The trial court agreed and awarded AHCA its full lien amount, under the assumption that the language of section 409.910(11)(f) was mandatory and precluded it from considering evidence to support limiting payment of the lien....

...This was error. This court was presented with a similar set of facts in Smith , in which the guardian for the plaintiff settled a personal injury claim for $2,225,000 after Medicaid paid $122,783.87 in medical expenses. 24 So.3d 590 . Utilizing the formula in section 409.910(11)(f), the trial court awarded *268 AHCA the full amount of its lien....

...We agreed, however, that “under Ahlbom a plaintiff should be afforded an opportunity to seek the reduction of a Medicaid lien amount by demonstrating, with evidence, that -the lien amount exceeds the amount recovered for medical expenses.” Id. at 592 . Although AHCA correctly argued that we ultimately held' section 409.910(11)(f) had to be used to determine the amount paid to AHCA in Smith , we did not do so because we determined the language in the statute was mandatory; 4 rather, we determined the formula had to be used because there was no allocation...

...ement and the plaintiff proffered no evidence at the hearing from which the trial court could determine how much of the damages represented medical expenses. In other words, we determined that absent proof of an allocation in a settlement agreement, section 409.910(11)(f) must be used to calculate the amount owed to AHCA....

...t, asking the court to determine the amount of the settlement comprised of medical expenses and to limit recoupment of the Medicaid lien to that amount. Id. at 458 . As it did in the case before us, AHCA opposed a hearing arguing that the formula in section 409.910(11)(f) was mandatory and provided *269 the only mechanism to determine what portion of a personal injury settlement was subject to a Medicaid lien. Id. at 462 . The trial court agreed and. ordered, based on section 409.910(11)(f), that AHCA was entitled to a Medicaid lien for the full amount of Medicaid benefits provided to the recipient....

...On appeal, the fourth district reversed, recognizing that the statutory formula could run afoul of federal anti-lien and anti-recovery statutes if the majority of an award was not allocable to medical expenses. Id. at 465-66 . The court concluded that section 409.910 was a default allocation, which created a presumptively valid allocation of settlement proceeds subject to a Medicaid lien when AHCA does not participate in the settlement agreement....

...Instead, AHCA argues that the holding of Wos was that the trial court erred in denying the recipient in that case an attempt to rebut North Carolina’s statutory formula’s determination of the medical expense portion of that settlement. We disagree. Ahlbom and Wos make clear that section 409.910(11)(f) is preempted by the federal Medicaid statute’s anti-lien provision to the extent it creates an irre-buttable presumption and permits recovery beyond that portion of the Medicaid recipient’s third-party recovery representing compensation for past medical expenses. 8 Accordingly, we agree with the fourth district in Roberts that section 409.910(11)(f) is a “default allocation.” 119 So.3d at 465 . As such, we reiterate our prior directive and hold that a Medicaid recipient “should be afforded the opportunity to seek the reduction of a Medicaid lien amount by demonstrating, with evidence, that the lien amount [established by section 409.910(11X0 ] exceeds the amount recovered for medical expenses.” Smith, 24 So.3d at 592 ; see also Agency for Health Care Admin....

...The trial court’s detailed order belies such interpretation. Despite its express finding that “[t]he facts and circumstances of the injury and the limited settlement justify relief from the full payment of the lien,” the trial court believed it was “hamstrung by section 409.910” and without discretion to reduce the lien....

...rt and the parties to be guided by these decisions. 9 The trial court is free to rely on evidence in the record *271 from the prior hearing and, if necessary, to consider additional evidence. REVERSED and REMANDED. ORFINGER and WALLIS, JJ., concur. .Section 409.910(11)(f) provides: (f) Notwithstanding any provision in this section to the contrary, in the event of an action in tort against a third party in which the recipient or his or her legal representative is a party which results in a judgme...

...s designated for medical payments under coverage for workers’ compensation, personal injury protection, and casualty. . See 42 U.S.C. § 1396p(a)(1) (2010). . Medicaid could have recovered up to $707,778.00 in medical expenses using the formula in section 409.910. However, because the State’s Medicaid lien totaled far less than the statutory cap, section 409.910 allowed the State to recover from the settlement the full amount it paid on the plaintiff's behalf. Smith, 24 So.3d at 591 . . Indeed, section 409.910(13) expressly grants trial courts the discretion to bind AHCA to a settlement in the absence of AHCA’s consent....

...However, in a structured settlement, no settlement agreement by the parties shall be effective or binding against the agency for benefits accrued without the express written consent of the agency or an appropriate order of a court having personal jurisdiction over the agency. § 409.910(13), Fla....

...Wos, 674 F.3d at 309 . It highlighted, however, that Florida, Georgia, Hawaii, Iowa and North .Carolina still impose a statutory cap or allowed full recovery for Medicaid reimbursements post-Ahlbom. Id. at 310. . The Florida Legislature has since amended section 409.910 to allow the Medicaid recipient an opportunity to challenge the amount of the lien in an administrative hearing. Specifically, section 409.910(17) provides an administrative mechanism whereby a recipient may contest the amount designated as recovered medical expense damages payable to AHCA....

...(f) or that Medicaid provided a lesser amount of medical assistance than that asserted by the agency. The revision also provides AHCA the means to prevent a fraudulent allocation of medical expenses that serves to reduce the amount AHCA can recover. § 409.910(17)(b), Fla....

...We reverse and remand because, although the trial court’s order was well reasoned and appears to have been legally accurate when issued, it relied on case law that has since been overturned. In the trial court, AHCA argued that it was entitled to be reimbursed in the amount produced by applying the formula set out in section 409.910(ll)(f), Florida Statutes (2011), to the entire settlement....

...o damages other than medical costs. Dillard relied on the United States Supreme Court’s decision in Arkansas Department of Health & Human Services v. Ahlborn, 547 U.S. 268 , 126 S.Ct. 1752 , 164 L.Ed.2d 459 (2006). 2 The trial court found that section 409.910(ll)(f) was not preempted by the Federal Medicaid law, citing Russell v....

...ortion of the settlement meant to cover medical damages. But during the pendency of this appeal, the United States Supreme Court issued Wos v. E.M.A. ex rel. Johnson, — U.S. -, 133 S.Ct. 1391 , 185 L.Ed.2d 471 (2013), and this court applied Wos to section 409.910(ll)(f) in Agency for Health Care Administration v....

...at 1399 . The Court suggested that a State could remedy this problem by providing a process for determining which portion of the recovery is attributable to medical expenses. Id. at 1401-02 . In Riley , this court held that the statutory allocation in section 409.910(ll)(f) should be treated as a default allocation and that the plaintiff must be given an opportunity to rebut it....

...We do not comment on this argument because it was not raised in the trial court. . Unlike in Ahlbom, where the parties had stipulated to the amount of the settlement that accounted for medical expenses, there was no such finding or stipulation in this case. . We note that section 409.910 has been substantially amended since the trial court entered its order in this case and it now provides a mechanism for hearings as envisioned in Wos and Riley. See § 409.910(17)(b), Fla....

...xpenses, for $500,000. The ERISA plan asserted a lien for its full amount of medical expenses, but it agreed to accept $120,000 in satisfaction of its lien. AHCA asserted a lien in the full amount of the Medicaid expenses. The Appellant, pursuant to section 409.910, Florida Statutes, filed a petition to determine the proper amount of the Medicaid lien. See § 409.910(17)(b), Fla....

...The ALJ concluded that the Appellant failed to prove by clear and convincing evidence that the statutory lien amount of $111,943.89 exceeded the amount actually recovered in the settlement for medical expenses, and as such, he ordered that AHCA was entitled to a full reimbursement of the Medicaid lien. LAW AND ANALYSIS Section 409.910, Florida Statutes, provides that if a Medicaid beneficiary receives a settlement from a liable third party, Medicaid- must be repaid in full and prior to any other person, program, or entity. § 409.910(1), Fla....

...eted as creating a conclusive presumption that one-third of a Medicaid beneficiary’s tort recovery represents compensation for medical expenses). Florida has instituted a formula 1 for AHCA to use to determine the amount of Medicaid reimbursement. § 409.910(11)(f), Fla. Stat. (2014). However, in compliance with Wos, the Florida Legislature passed section 409.910(17)(b), which providés that a Medicaid' recipient can rebut the result of the formula by proving:' by clear and convincing evidence, that a lesser portion of the total recovery should be....

...allocated as reimbursement for past and future medical expenses *1236 than the amount calculated by'.the agency pursuant to the formula set forth in paragraph (11)(f) or that Medicaid provided-a lesser amount of medical assistance than that asserted by the agency. § 409.910(17)(b), Fla. Stat. (2014). This Court, in applying Ahlborn and Wos, has affirmed that “a plaintiff must be given the opportunity to seek reduction of the amount of a Medicaid lien established by the statutory formula outlined in section 409.910(11)(f), by demonstrating, with evidence, that the lien amount exceeds the amount recovered for .medical expenses.” Harrell v. State, 143 So.3d 478, 480 (Fla. 1st DCA 2014). In this caSe, the formula in section 409.910(11)(f) results in an amount greater than the total Medicaid lien.' As such, AHCA would be entitléd to full reim-bursemént of its lien unless the Appellant could prove by clear and convincing evidence that a lesser portion of the total lien was allocated to medical expenses in the settlement....

...The formula operates by reducing the gross settlement amount by 25% to account for attorneys’ fees, then subtracts taxable costs, then divides that number by two, and awards Medicaid the lesser of the amount of benefits paid or the resulting number. § 409.910(11)(f), Fla....

...Strafford-Luneke (the Decedent). The Agency for Health Care Administration (the Agency) objected to the proposed apportionment because it did not provide for the full payment of the Medicaid lien due the State under the Medicaid Third-Party Liability Act, section 409.910, Florida Statutes (2001) (the Act)....

...The Co-Personal Representatives calculated that the Decedent's estate should only receive an amount equal to the Decedent's medical expenses — $74,903.41. They contended that their apportionment scheme would trigger the statutory formula reduction contained in section 409.910(11)(f), thereby reducing the Agency's *645 actual recovery from $74,903.41 to $4986.49....

...The Agency directed the probate court's attention to multiple provisions of the Act that provide that the lien shall not be reduced, prorated, or applied to only a portion of a settlement. The probate court agreed with the Agency and ruled that the express provisions of section 409.910 prohibited the reduction of the Medicaid lien. In its order denying the petition, the probate court ordered the Co-Personal Representatives to pay the Agency $74,903.41 — the full amount of its lien. The Florida Legislature clearly expressed its intent in enacting the Act in section 409.910(1)....

...ity." Id. Medicaid is to be repaid in full, "regardless of whether a recipient is made whole or others creditors paid." Id. As the First District said in State, Agency for Health Care Administration v. Wilson, 782 So.2d 977, 979 (Fla. 1st DCA 2001), section 409.910 "goes to great lengths to establish legislative intent to recover 100% of the amount Medicaid has paid where a third-party recovery is available." Section 409.910(6) provides at least three ways by which the Agency can recover from a third party the expenses it has paid or become liable for under the Medicaid program. First, the Agency is automatically subrogated to any rights that a recipient has to any third-party benefit for the full amount of medical assistance provided by Medicaid. § 409.910(6)(a). Second, the acceptance of Medicaid benefits results in an automatic assignment to the Agency of any right the recipient has to any third-party benefits. § 409.910(6)(b). Third, the Agency is entitled to an automatic lien for the full amount of medical assistance provided. § 409.910(6)(c). The Act also explicitly addresses the mechanics of the Agency's recovery. Prior to a judgment or settlement, the Agency must be given notice and a reasonable opportunity to file and satisfy its lien. § 409.910(11)(d). Following a settlement, the court is required to segregate an amount sufficient to repay the Agency's expenditures for medical assistance and shall order this amount to be paid directly to the Agency. § 409.910(11)(c)....

...Furthermore, recovery pursuant to the Agency's subrogation rights "shall not be reduced, prorated, or applied to only a portion of a judgment, award, or settlement, but is to provide full recovery by the agency from any and all third-party benefits." § 409.910(6)(a). In fact, a mandatory distribution scheme is contained in section 409.910(11)(f), which provides that after attorney's fees — calculated at twenty-five percent of the judgment or settlement — and costs are deducted, one-half of the remaining recovery shall be paid to the *646 Agency up to the total amount of medical assistance provided. Under these provisions, the Agency is entitled to recover the full amount of the Medicaid lien from the entire settlement amount subject to the limiting formula in section 409.910(11)(f)....

...Even so, the Act's provisions require that the Agency be paid prior to any apportionment between the estate and the survivors. Based on the amount of the settlement, the lien, and the attorney's fees and costs in this case, the distribution scheme in section 409.910(11)(f) entitles the Agency to the full recovery of its Medicaid lien....

...Roberts claimed the true value of damages was $44.8 million. His expert submitted an affidavit claiming economic damages totaling $11.8 million, past non-economic damages in the amount of $8 million, and future human damages of $25 million. AHCA filed a response opposing a hearing because section 409.910(ll)(f), Florida Statutes (2010), provides the statutory formula to determine what portion of a personal injury settlement is subject to a Medicaid lien....

...entitled to an evidentiary hearing. The order on appeal determined that Roberts was not entitled to an eviden-tiary hearing, citing Russell v. Agency for Health Care Administration, 23 So.3d 1266 (Fla. 2d DCA 2010). Based on the formula set forth in section 409.910(ll)(f), the trial court ordered that AHCA was entitled to a Medicaid lien for the full amount of Medicaid benefits provided to Roberts....

...icaid expenditures from third parties who are liable for medical treatment provided to a Medicaid recipient. See § 42 U.S.C. 1396a(a)(25). To comply with federal mandate, Florida has enacted the Medicaid Third-Party Liability Act (“MTPLA”). See § 409.910, Fla. Stat. (2010). MTPLA expressly states that Medicaid shall be “the payor of last resort.” *460 § 409.910(1), Fla....

...ed in s. 409.901” for the full amount of medical assistance provided by Medicaid; (2) automatic subrogation to any rights of a recipient to third-party benefits; and (3) an automatic assignment of the recipient’s rights to any third-party benefits. 409.910(6)(a)-(c), Fla....

...ed injury necessitating Medicaid payments].” (emphasis added). “Third-party benefits” are defined by section 409.901(28), Florida Statutes (2010), to include “collateral.” Thus, settlements are clearly subject to Medicaid liens in Florida. Section 409.910(ll)(e), Florida Statutes (2010) states that the entire amount of any settlement is subject to a Medicaid claim for reimbursement limited to the amount of Medicaid assistance provided. However, section 409.910(ll)(f), the section which is at the heart of this appeal, further limits the amount of reimbursement using a formula: (f) Notwithstanding any provision in this section to the contrary, in the event of an action in tort against a third...

...i-lien provision and the Ahlbom decision entitled Roberts to an evidentiary hearing to determine what amount of his settlement is for medical expenses. Roberts contended that a judicial determination must be made to assure that the lien set forth in section 409.910(11)© does not exceed the third party’s payment for medical expenses....

...AHCA argued to the trial court that Ahlbom did not apply to this case because in Ahlbom the Medicaid agency stipulated to what portion of the settlement was for medical expenses, and in this case there was no such stipulation. AHCA further argued that section 409.910 controlled where there was no stipulation to determine the proper amount of settlement proceeds to be repaid to Medicaid....

...Agency For Health Care Administration In Russell , the tort action was settled for $3 million and the lien asserted by AHCA was for $221,434.24. Russell’s experts opined her case was worth $30 million. Russell argued to the trial court and on appeal that “the formula [in section 409.910] for determining the amount [AHCA] can recover on its lien from a plaintiffs tort judgment or settlement ......

...ble to medical expenses. In Russell , the Second District went on to write: In Florida, a Medicaid recipient entering into a settlement of a tort claim with a third party does so against the backdrop of the fifty-percent allocation rule set forth in section 409.910(11)©....

...Garcon v. Agency for Health Care Administration After Russell , the Third District decided Garcon v. Agency for Health Care Administration, 96 So.3d 472 (Fla. 3d DCA 2012). In Garcon , the Third District agreed with the majority in Russell and held that section 409.910(1) is fully effective as a “special rule” referred to in Ahlbom which allows for AHCA to allocate what portion of a settlement is subject to its lien using a statutory formula....

...s that allow a dissatisfied beneficiary to challenge the default allocation. Id. at 311. Because the North Carolina statute had no such provision, the court remanded the case back to the district court to make the allocation. Conclusion We hold that section 409.910, Florida Statutes, creates a presumptively valid allocation of settlement proceeds subject to a Medicaid lien when AHCA does not participate in the settlement agreement. We agree with the Second and Third Districts that Ahlbom does not invalidate the allocation set forth in section 409.910....

...Reversed and remanded for further proceedings. WARNER, J., concurs. DAMOORGIAN, J., dissents with opinion. . The federal government insists on compliance with its statutes because it receives a portion of any funds recouped on behalf of a recipient. See § 409.910(7)(b)(2), Fla. Stat. . Section 409.910(6)(c)7., Florida Statutes (2010) and case law make it clear that a stipulation on allocation by a recipient and a tortfeasor is not binding on AHCA unless AHCA participates in the stipulation....

...egistry of the court other than to the State of Florida. We have also consolidated in this review a petition for writ of prohibition filed in this Court by the State. In February 1995, the State entered into a contract for legal services pursuant to section 409.910(15)(b), Florida Statutes (1995), [1] with several private law firms, collectively called the "Peoples' Trial Advocates" (PTA), to represent the State in litigation against the tobacco industry to recover Medicaid related expenses allegedly caused by the tobacco industry....

...provides: In light of the fact that the trial team is taking all the risks, and the fact that not a single case of this nature has ever been won, the State of Florida has determined that it is not appropriate to place taxpayer dollars at such risk. Section 409.910(15)(b), Florida Statutes, permits the trial team to receive up to 30% of the recovery....

...Section C of Attachment I, entitled "METHOD OF PAYMENT," provides: 1. Payment for the legal services covered by this contract shall be based on a contingency fee percentage of the total dollars recovered and reimbursed to the Department as provided for in Section 409.910(15), Florida Statutes....

...Any issues remaining in the case which are not within this Court's decision today are to proceed in the circuit court. It is so ordered. Any motion for rehearing shall be filed within seven days. HARDING, C.J., and OVERTON, SHAW, KOGAN and WELLS, JJ., and BENTON, Associate Justice, concur. PARIENTE, J., recused. NOTES [1] Section 409.910(15)(b), Florida Statutes (1995), provides: (15) The department is authorized to enter into agreements to enforce or collect medical support and other third-party benefits....

...upp.2d at 1352 . The distinction is not important in this instance because no issue in this action requires analysis at step six. III. On the one hand, as explained earlier, Schwade is subject to the subrogation provisions of the Plan. On the other, Section 409.910(6), Florida Statutes, ensures that Florida’s Medicaid program “automatically” enjoys an absolute subrogation right as to “any third-party benefit for the full amount of medical assistance provided by Medicaid.” See Russell v....

...rs Medicaid reimbursement); 42 U.S.C. § 1396k(a)(l)(A) (directing a state to require each Medicaid recipient to assign the state “any rights ... to support ... and to payment for medical care from any third party”); 29 U.S.C. § 1169 (b). Under Section 409.910(13), Florida Statutes, no action of a Medicaid recipient can prejudice the reimbursement right of the Florida Medicaid program....

...ying the Estate’s motion for equitable distribution, and ordering the Estate to reimburse the Florida Agency for Health Care Administration (“AHCA”) in the full amount of its Medicaid lien. At issue is whether the trial court erred by applying section 409.910(1l)(f), Florida Statutes (2014), in refusing to reduce the Medicaid lien to an amount equal to the amount recovered by the Estate for past medical expenses. We hold that section 409.910(ll)(f) of Florida’s Medicaid Third-Party Liability Act (the “Florida Medicaid Act”) is not preempted by the anti-lien *114 provision of federal Medicaid law in wrongful death actions....

...e Estate brought a third-party bad faith claim against the driver’s automobile insurance carrier, eventually settling the case for $1,000,000. AHCA then asserted a lien for $95,476.60 against the settlement proceeds of the bad faith claim based on section 409.910(ll)(f). The Estate moved for equitable distribution to reduce the Medicaid lien, arguing that section 409.910(ll)(f) was preempted by federal law to prevent the state from being reimbursed from monies recovered by a beneficiary for any category of damages other than past medical expenses....

...As such, the Estate asserted that the lien should be reduced to an amount equal to 3.5% of the actual settlement proceeds, after subtracting attorney’s fees and costs. 1 The trial judge held a hearing to allow Swaby’s beneficiaries the opportunity to rebut the statutory formula under section 409.910(ll)(f), and to contest AHCA’s entitlement to the full amount of the lien pursuant to section 409.910(17)(b), Florida Statutes. In its order, the court ruled that the formula under section 409.910(ll)(f) applied in wrongful death cases, not the anti-lien provision of the federal Medicaid statute....

...It denied the Estate’s motion to reduce the lien and ordered the Estate to reimburse AHCA $95,476.60 in full satisfaction of its Medicaid lien for benefits paid on behalf of Swaby. This timely appeal followed. As this appeal involves both the interpretation and application of section 409.910(ll)(f), as well as a question of federal preemption of that statute, we review the trial court’s order under a de novo standard of review....

...for an amount that is more than the total amount of medical assistance provided. b. Florida’s Medicaid Third Party Liability Act In accordance with the federal mandate to recover money for both the state and the federal government, Florida enacted section 409.910, the Florida Medicaid Act....

...re full recovery by Medicaid from third-party resources. It is intended that if the resources of a liable third party become available at any time, the public treasury should not bear the burden of medical assistance to the extent of such resources. § 409.910(1), Fla....

...In compliance with the federal Medicaid statute, after AHCA “has provided medical assistance under the Medicaid program, it shall seek recovery of reimbursement from third-party benefits to the limit of legal liability and for the full amount of third-party benefits § 409.910(4). In furtherance of this mandate, AHCA has been afforded 'the right to “institute, intervene in, or join any legal or administrative proceeding in its own name ... as lienholder.” *117 § 409.910(11). Section 409.910(11)® further provides: ......

...a health maintenance organization, a. preferred provider arrangement, or a prepaid health clinic, and the portion of benefits' designated for medical payments under coverage for workers’ compensation, personal injury protection, and casualty. § -409.910(11)©, Fla. Stat. Under these -provisions, AHCA is permitted to seek reimbursement from “third-party benefits,” § 409.910(6), including those benefits received 'from any “causes of action, suits, claims, counterclaims, and demands that accrue to the recipient or to the recipient’s legal representative, related to any covered injury, illness, or necessary medical care, goods, or services” for which Medicaid, paid....

...§ 409.901(7)(a), Fla. Stat. (2014). These benefits also encompass “[a]ll judgments, settlements, and settlement agreements rendered or entered into and related to such causes of action, suits, claims, counterclaims, demands, or judgments.” § 409.901(7)(b). Section 409.910(7) specifically describes from whom such recovery may be made: (7) The agency shall recover the full amount of all medical assistance provided by Medicaid on behalf of the recipient to the full extent of third-party benefits....

...ired to refund or pay to the agency any amount in excess of the actual third-party benefits received by the provider from a third-party payor for medical services provided to the recipient; or 4. Any person who has received the third-party benefits. § 409.910(7), Fla....

...lement reached for the wrongful death of the decedent. AHCA objected to the apportionment “because it did not provide for the full payment of the Medicaid lien due the State under the Medicaid Third-Party Liability Act.” Id. The court noted that section 409.910(ll)(f) provided that “after attorney’s fees — calculated at twenty-five percent of the judgment or settlement — and costs are deducted, one-half of the remaining recovery shall be paid to the Agency up to the total amount of medical assistance provided.” Id. at 645-46 . As a result, the Second District held that AHCA was “entitled to recover the full amount of the Medicaid lien from the entire settlement amount subject to the limiting formula in section 409.910(ll)(f).” Id....

...Nonetheless, it found that the Florida Medicaid Act: require[d] that the Agency be paid prior to any apportionment between the estate and the survivors. Based on the amount of the settlement, the lien, and the attorney’s fees and costs in this case, the distribution scheme in section 409.910(ll)(f) entitles the Agency to the full recovery of its Medicaid lien....

...ex rel. Johnson, — U.S. --, 133 S.Ct. 1391, 1396-99 , - 185 L.Ed.2d 471 (2013). There, the Court held that any reimbursement calculation using a statutory formula to determine an apportionment of medical and non-medical expenses (such as that found in section 409.910(ll)(f)) was not conclusive, and could be challenged in a judicial or administrative proceeding by demonstrating, with evidence, that the lien amount exceeded the amount recovered for medical expenses....

...It argues that, according to the language of the anti-lien statute providing that “[n]o lien may be imposed against the property of any individual prior to his death on account of medical assistance paid or to be paid on his behalf under the State plan,” § 1396p(a)(l) (emphasis added), section 409.910(ll)(f) is not preempted....

...does not prohibit a state from imposing a lien against the deceased recipient’s recovery from third parties for the full amount paid for medical expenses. The Estate’s reliance on Ahlbom and Wos for the proposition that those decisions preempted section 409.910(1l)(f) is misplaced and unpersuasive, given that neither of those cases applied the anti-lien statute in the context of a wrongful death action; Also, the Florida cases the Estate relies on to prgue federal preemption arose in the con...

...d at 457 , or where the recipient died after a .settlement was reached, see Agency for Health Care Admin. v. Riley, 119 So.3d 514, 515 (Fla. 2d DCA 2013), unlike the circumstances presented in Englich, Strafford, and Ross . In Roberts , we held that section 409.910 “creat[ed] a presumptively valid allocation of settlement proceeds subject to a Medicaid lien when AHCA does not participate in the settlement agreement,” as is the case here. 119 So.3d at 465. We found that the allocation set forth in. section 409.910 was merely a “default allo'cation, which could run afoul of federal anti-lien and anti-recovery statutes if, for example, the majority of an award (after attorney’s fees and costs) is not allocable to medical expenses.” Id....

...he Supreme Court’s application of Ahlbom to the federal anti-lien statute would represent a rule of general applicability for Medicaid recipients in both survival and wrongful death actions. Therefore, we disagree with the Estate’s position that section 409.910(ll)(f) has been preempted by Ahlbom and Wos....

...Davis, 973 So.2d 467, 471 (Fla. 4th DCA 2007) (citations omitted) (internal quotation marks omitted). Here, no actual conflict between the ' state and federal statutes exists, nor is there any express statement by Congress of any preemptive intent to be applied against section 409.910(ll)(f) in situations where the lien has been placed on a decedent’s property....

...liable third party. As indicated at 42 U.S.C. section 1396a(a)(25), the state is obligated to ascertain the legal liability of third parties for services provided under the Medicaid program and to seek reimbursement to the extent of such liability. Section 409.910, Florida Statutes, implements this mandate, specifying at subsection (4) that the state shall seek reimbursement from a liable third party, but that this is not to exceed the cost of the services paid by Medicaid. Nevertheless, section 409.910(7) directs that after the appropriate state and federal costs are reimbursed any remaining amount shall be distributed to the Medicaid recipient. This accords with a similar federal directive at 42 U.S.C. section 1396k(b). However, the federal act excludes these tobacco settlement proceeds from this distribution scheme, see 42 U.S.C. section *448 1396b(d)(3)(B), and section 409.910(7) likewise excludes proceeds from claims which the state asserts in its own behalf rather than as a subrogee of a Medicaid recipient. The appellant contends that the section 409.910(7) and 42 U.S.C....

...separate action is of a similar character. The Florida statute provides for subrogation and automatic assignment of the Medicaid recipient's claim against a liable third party, to the extent of the amount of the associated Medicaid expenditures. See § 409.910(6)(a) and (b)1, Fla. Stat. The statute likewise limits the state's recovery from the third party to the amount of such expenditures, see section 409.910(4), Fla. Stat., while further providing the state with the authority to pursue a direct independent action on its own behalf apart from any subrogation or assignment. See § 409.910(11), Fla. Stat. The separate action which the state brought against the various tobacco companies sought recovery of the Medicaid costs associated with smoking-related illnesses, pursuant to section 409.910....

...[1] In the context of this case, the state had to prove Durie's intent to deprive Medicaid of funds it rightfully was entitled to, and that he did so, when he constructed a false statement (the 99.5% to.5% arrangement), on which Medicaid relied when it released its rights to the settlement funds. Section 409.910(17) provides: Responsibility for payments on behalf of Medicaid-eligible persons when other parties are liable.- (17) A recipient or his or her legal representative or any person representing, or acting as agent for, a recipient or the recipient's legal representative, who has notice ......

...If we look carefully at ourselves, will we, like Pogo, see the enemy? There was a time, some say in Camelot, when the lawyers themselves screened out fraudulent clients. A large majority of lawyers still do. Those that do not should receive a crash course in remedial ethics. [2] See section 409.910(17), Fla....

...bilities to and relationship with the other client." Further, Kee's testimony indicates that this obvious conflict was not adequately explained to him. Had the clients been separately represented, it is doubtful this situation would have arisen. [4] Section 409.910(1), Florida Statutes, provides: "It is the intent of the Legislature that... Medicaid be repaid in full and prior to any other person, program or entity. Medicaid is to be repaid in full from, and to the extent of, any third-party benefits, regardless of whether a recipient is made whole or other creditors paid." Section 409.910(6)(b), Florida Statutes, provides that "[b]y applying for or accepting medical assistance, an applicant, recipient, or legal representative automatically assigns to the agency any right, title, and interest such person has to any thir...

...eive money form Solomon. She does not discuss the impact of Rule 4-4.1, Rules Regulating the Florida Bar. It should be noted, however, that a member of the plaintiff's bar did testify in opposition to Durie's conduct. [1] §§ 812.014(1), (2)(b) and 409.910(17), Fla....

...Following her death, Ashley's parents-Appellants-filed a wrongful death action against several physicians, two hospitals, and an ambulance company involved in Ashley's care. In compliance with the provisions of Florida's "Medicaid Third Party Liability Act," section 409.910, Florida Statutes (2016), Appellants informed AHCA of the wrongful death action. See § 409.910(5), Fla. Stat. (2016). Accordingly, AHCA asserted its right to a lien "for the full amount of medical assistance provided by Medicaid" on behalf of Ashley. § 409.910(6)(c), Fla....

...ses. See §§ 768.20 & 768.21, Fla. Sta. (2016). Ultimately, the wrongful death action against all defendants was resolved through a series of confidential settlements. Appellants received a total of $2,250,000. Based on the formula set forth in section 409.910(11)(f), Florida Statutes (2016), AHCA calculated the amount it was due to recover from the third-party settlement to *435 be $791,814.84. But, because Ashley's actual medical expenses of $357,407.05 were less than that amount, AHCA was limited to recovering the lesser amount in satisfaction of its Medicaid lien. See § 409.910(11)(f) 4., Fla. Stat. (2016). However, as the ALJ acknowledged in the Final Order, "when AHCA has not participated in or approved a settlement, the administrative procedure created by section 409.910(17)(b)[, Florida Statutes (2016) ], serves as a means for determining whether a lesser portion of a total recovery should be allocated as reimbursement for medical expenses in lieu of the amount calculated by application of the formula in section 409.910(11)(f)." Specifically, when, in this case, Appellants placed the full amount of the "third party benefits"-i.e., the settlement funds-in an interest-bearing trust account for the benefit of AHCA, as required by section 409.910(17)(a), Florida Statutes (2016), the hearing provisions of the Administrative Procedure Act were activated. According to section 409.910(17)(b), the placing of the third-party benefits into the trust account constituted "final agency action," permitting the " recipient [to] contest the amount designated as recovered medical expense damages payable to the agency pursuant to the formula specified in paragraph (11)(f) by filing a petition under chapter 120 ... with the Division of Administrative Hearings." § 409.910(17)(b), Fla. Stat. (2016) (emphasis added). Section 409.910(17)(b) continues: Final order authority for the proceedings specified in this subsection rests with the Division of Administrative Hearings....

...In preparation for the evidentiary hearing, AHCA and Appellants entered into a Joint Pre-Hearing Stipulation in which Appellants acknowledged that the presumptive amount to reimburse Medicaid was $357,407.05. Importantly, AHCA "agree[d] that pursuant to § 409.910(17)(b), [Appellants] may contest the amount payable to AHCA pursuant to the formula at § 409.910(11)(f) by filing a Petition with DOAH." (Emphasis added.) As a result, AHCA admitted, for purposes of the Petition, that Appellants were permitted to contest the amount recoverable as medical expenses as allowed by section 409.910(17)(b). Due to the terms of this stipulation, whether or not Appellants could be considered, collectively, as a "recipient" within the meaning of section 409.910(17)(b) was a non-issue....

...d by Medicaid." Notwithstanding these findings, the ALJ went on to conduct an exhaustive analysis of the tension between the federal Medicaid Act and Florida's Medicaid Third Party Liability Act, and how the federal provisions specifically relate to section 409.910(17)(b). For reasons not pertinent to the resolution of this case, the ALJ concluded that Appellants were not "recipient[s]" for purposes of being able to contest AHCA's presumptive Medicaid lien under section 409.910(17)(b)....

...In the present case, we agree with Appellants that the ALJ erred in failing to give full force and effect to AHCA's agreement in the Joint Pre-Hearing Stipulation that Appellants had the right to contest the amount payable to AHCA pursuant to the formula set forth in section 409.910(11)(f), by filing their petition with DOAH under section 409.910(17)(b)....

...Essentially, by its stipulation, AHCA waived any right it had to raise the point that Appellants were not "recipient[s]" under the statute. * In response to Appellants' argument on the waiver issue, AHCA asserts that the question of Appellants' right to file a petition *438 under section 409.910(17)(b) presents, at its core, an issue of standing; and "standing in the administrative context is a matter of subject matter jurisdiction and cannot be conferred by consent of the parties." Abbott Labs....

...Setting all that aside, however, we conclude that DOAH did in fact have subject matter jurisdiction to resolve the instant dispute because Appellants independently had standing to file their petition, irrespective of whether or not they were ultimately found to be "recipient[s]" for purposes of section 409.910(17)(b)....

...Therefore, we are not required to give any deference to AHCA's legal analysis on this point. Id. In his final order, the ALJ initially concluded as a matter of law that DOAH had "jurisdiction over the subject matter and the parties ... pursuant to sections 120.569, 120.57(1) and 409.910(17), Florida Statutes." (Emphasis added.) The ALJ did not err in reaching that conclusion, and the parties have not argued that he did....

...ore him. As he explained in his order, AHCA "has 'an automatic lien for the full amount of medical assistance provided by Medicaid to or on behalf of the recipient for medical care furnished ... by which a third party is or may be liable ....' " See § 409.910(6)(c), Fla. Stat. (2016). As the ALJ described it, "[t]his Medicaid lien is iron-clad." No settlement impairs the lien. See § 409.910(13), Fla....

...The end result, as the ALJ recognized, is that AHCA is empowered to reach into Appellants' $2,250,000 settlement and remove $357,407.05 in order to satisfy its Medicaid lien-even if that amount exceeds the pro rata portion of the settlement attributable to medical care. See §§ 409.901(28) & 409.910(7), Fla....

...Having now determined that Appellants had standing to bring the instant administrative proceeding, and that subject matter jurisdiction is not an issue, we reject AHCA's effort to repudiate its agreement in the Joint Pre-Hearing Stipulation that Appellants could contest AHCA's lien under section 409.910(17)(b)....

...Both Appellants and AHCA submitted proposed final orders to the ALJ setting forth their respective positions. Although, in its proposed order, AHCA raised for the first time the notion that only a "living" recipient of Medicaid could contest the amount of AHCA's lien under section 409.910(17)(b), the overriding theory expressed in its proposed order was not that Appellants could not challenge the lien, but that Appellants had not proved by clear and convincing evidence "that a lesser portion of the total recovery [by A...

...d be allocated, as medical expenses, than the amount calculated by [AHCA] ...." Thus, in the end, AHCA abandoned its "recipient" argument. Only once the ALJ entered his final order did it become apparent that the question of Appellants' status under section 409.910(17)(b) was the deciding factor....

...Florida Law The MTPLA provides that Medicaid is to be "the payor of last resort," and, if a liable third-party makes payments to a beneficiary for expenses paid through Medicaid, then Medicaid is to be repaid from the proceeds of the third-party payment(s). Fla. Stat. § 409.910 (1). Section 409.910(6) establishes the mechanisms by which the State of Florida gains rights to third-party benefits. Florida is entitled to an automatic lien for the amount of Medicaid assistance to a beneficiary as a result of "any covered injury or illness for which a third party is or may be liable ...." Fla. Stat. § 409.910 (6)(c)....

...This lien attaches to the "collateral," which includes various recovery rights against third parties as well as judgments, settlements, and proceeds. Id. § 409.901(7). 4 The State's "lien attaches [and perfects] automatically when a recipient first receives treatment" that is paid through Medicaid. Id. § 409.910(6)(c)(1). The amount the State may recover from a Medicaid beneficiary for third-party payments is determined by formula. Id. § 409.910(11)(f). Section 409.910(17)(b) *1311 prescribes an administrative procedure for challenging § 409.910(11)(f) calculations: If federal law limits the agency to reimbursement from the recovered medical expense damages, a recipient, or his or her legal representative, may contest the amount designated as recovered medical expense damages paya...

...funds to the agency or after the date of placing the full amount of the third-party benefits in the trust account for the benefit of the agency pursuant to paragraph (a). The petition shall be filed with the Division of Administrative Hearings. Id. § 409.910(17)(b) (emphasis added). That administrative process "is the exclusive method for challenging" the State's reimbursement calculation. Id. Fla. Stat. § 409.910 (17)(b) was given effect on July 1, 2013....

...The subsection was enacted to comply with the U.S. Supreme Court's recent decision in Wos v. E.M.A. ex rel. Johnson , 568 U.S. 627 , 133 S.Ct. 1391 , 185 L.Ed.2d 471 (2013), 5 which "casts doubt" on the validity of Florida's Medicaid reimbursement calculation provision, § 409.910(11)(f). Fla. Staff Analysis, H.B. 939, at 7-8 (June 10, 2013). The administrative hearing procedure "effectively mak[es] the [ § 409.910(11)(f) ] statutory presumption rebuttable." Id....

...The parties dispute which version of the law applies to the instant case, however, the Court is satisfied that the post-amendment law binds. This very issue was addressed in Suarez v. Port Charlotte HMA, LLC , 171 So.3d 740 (Fla. 2d D.C.A. 2015) (per curiam). The Suarez court found that the (post-amendment) Fla. Stat. § 409.910 (17)(b) administrative appeal procedure applied in a case where a medical malpractice suit-which was filed before the amendment, and was predicated on pre-amendment injuries and Medicaid payments-was settled after the amended MTPLA was enacted....

...May 12, 2017, nearly four years after the MTPLA's amendment. (Doc. 2, ¶ 14). Therefore, the post-amendment version of the MTPLA applies. See Suarez , 171 So.3d at 742 . The Court now turns to whether Plaintiff was required to exhaust the Fla. Stat. § 409.910 (17)(b) procedural appeals before *1312 filing suit, as FRG contends....

...FRG next cites several cases involving Medicare claims for a similar proposition. (Doc. 3, p. 8). Likewise, these cases are unpersuasive because the federal statute prescribing administrative remedies for Medicare claims is much broader than Fla. Stat. § 409.910 (17)(b). Einhorn v. CarePlus Health Plans, Inc. , 43 F.Supp.3d 1329 , 1331-32 (S.D. Fla. 2014). FRG next argues that Plaintiff's challenge to the amount of the Medicaid lien requires administrative exhaustion under the MTPLA based on (i) the text of § 409.910(17)(b), and (ii) the holdings in a Florida District Court of Appeals case and a Department of Administrative Hearings Order. 7 (Doc. 3, p. 4). The Court's MTPLA analysis begins with the text of § 409.910(17)(b)....

...If the meaning of the statute is clear and unambiguous, the court must apply that clear meaning. Id. If a statute is ambiguous, then courts apply the rules of statutory construction, "which may include the examination of a statute's legislative history and the purpose behind its enactment." Id. Fla. Stat. § 409.910 (17)(b) establishes an administrative appeals process that allows individuals to challenge State reimbursement requests arrived at through § 409.910(11)(f)'s "formula-based allocation." Gallardo ex rel....

...ien law. 568 U.S. at 630 , 636 , 133 S.Ct. 1391 . Consistent with this holding, the MTPLA provision outlining the newly-created reimbursement administrative appeal procedure begins: "If federal law limits the agency to reimbursement ...." Fla. Stat. § 409.910 (17)(b)....

...(emphasis added) Further, the provision explicitly authorizes challenges to "the amount designated as recovered medical expense damages payable to the agency pursuant to the formula specified in paragraph (11)(f) . Id. (emphasis added). This statute authorizes appeals of calculations made by the State of Florida under § 409.910(11)(f) on the grounds that the amounts sought violated the federal anti-lien law. As noted above, the legislative history of Fla. Stat. § 409.910 (17)(b) reinforces this conclusion....

...heory-to wit, because Plaintiff relied on FRG's February 7, 2017, representation as to the lien amount in settlement negotiations, FRG and WellCare are not entitled to reimbursement exceeding the amount initially requested. Both the plain meaning of § 409.910(17)(b) and the legislative history buttress this conclusion....

...Plaintiff was therefore not required to exhaust administrative appeals pursuant to § 409.901(17)(b). Neither opinion cited by Plaintiff on this issue affect the foregoing analysis. The Division of Administrative Hearings Order merely applied the statutory framework to a Medicaid beneficiary's challenge of a Fla. Stat. § 409.910 (11)(f) reimbursement calculation . Delgado v. Agency for Health Care Admin. , No. 17-2084MTR, 2016 WL 7047518 (Div. of Admin. Hearings Nov. 30, 2016). Similarly, the Florida District Court of Appeals decision cited involved another straightforward challenge to a § 409.910(11)(f) calculation. Willoughby v. Agency for Health Care Admin. , 212 So.3d 516 (Fla. 2d D.C.A. 2017). Neither decision supports the proposition that a collateral attack to a Medicaid reimbursement lien based on state law implicates Fla. Stat. § 409.910 (17)(b)'s administrative exhaustion requirement....

...was not reached until 2014, [the State] had no right to recovery until that time. Accordingly, the 2013 version of this statute controls." Id. The Department of Administrative Hearings is the administrative body tasked with adjudicating administrative appeals. Fla. Stat. § 409.910 (17)(b)....

...The Agency for Health Care Administration appeals an order limiting its Medicaid payments lien on appellee’s personal injury settlement to amounts allocated to medical expenses based upon an allocation formula asserted by appellee, rather than on the default allocation provision of section 409.910(ll)(f), Florida Statutes (2012)....

...As a result of her death, the plaintiff brought a wrongful death claim on behalf of himself, two children, and the estate against two physicians and the hospital. Medicaid recorded its Claim of Lien in the public records of Palm Beach County and notified the plaintiff, pursuant to the Medicaid Third-Party Liability Act. § 409.910(6)(c), Fla....

...es established by 42 U.S.C. s 1396a. Am. Med. Ass'n v. Mathews, 429 F.Supp. 1179, 1192 (N.D.Ill.1977). To facilitate the recovery of state funds, and to comply with federal mandate, the Legislature enacted the Medicaid Third-Party Liability Act. See § 409.910, Fla....

...dicaid. Recovery pursuant to the subrogation rights created hereby shall not be reduced, prorated, or applied to only a portion of a judgment, award, or settlement, but is to provide full recovery by the agency from any and all third-party benefits. § 409.910(6)(a), Fla....

...nied the plaintiff's request to reduce the Medicaid lien proportionately to the amount the survivors' recovery bore to their total claim. Affirmed. KLEIN, J., and HOROWITZ, ALFRED, Associate Judge, concur. NOTES [1] § 768.16, Fla. Stat. (1999). [2] § 409.910, Fla....

...By accepting Medicaid benefits, Villa automatically subrogated his right to third-party benefits for the full amount of medical assistance provided by Medicaid and automatically assigned to AHCA his right, title, and interest to those benefits, other than those excluded by federal law. See § 409.910(6)(a), (b), Fla....

...medical care from any third party). These same benefits also became subject to an automatic lien in AHCA’s favor “for the full amount of medical assistance provided by Medicaid” as soon as Villa began to receive treatment for which AHCA became obligated to pay. § 409.910(6)(c), Fla....

...The letter asked AHCA to advise Villa of the amount AHCA would accept from the settlement proceeds to satisfy its Medicaid lien. AHCA responded claiming entitlement to $321,720.16 of Villa’s settlement predicated on its calculation of the amount payable pursuant to the formula set forth in section 409.910(11)(f) of the Florida Statutes. See § 409.910(11)(f)1., Fla....

...5 Villa then petitioned the Division of Administrative Hearings (DOAH) for a formal administrative proceeding to contest the amount designated by AHCA “as recovered medical expense damages” and for a determination of the amount payable to AHCA to satisfy the agency’s Medicaid lien. See § 409.910(17)(b), Fla....

...a final 5 Villa does not dispute the accuracy of the amounts utilized in AHCA’s calculations for attorney’s fees and costs and stipulated that the final sum requested by AHCA was accurately calculated pursuant to the parameters set forth in section 409.910(11)(f) of the Florida Statutes....

...Villa died on October 31, 2015, and the ALJ was put on notice before proposed final orders from the parties were due. 5 existing at the time of the evidentiary hearing.7 Lastly, the ALJ rejected Villa’s argument that section 409.910(17)(b) impermissibly required him to include any future medical expense award in calculating the amount that must be allocated from his total recovery as available to satisfy the lien at issue. Villa 8 here challenges the det...

...ed to “prove, by clear and convincing evidence, that a lesser portion of the total recovery should be allocated as reimbursement for past and future medical expenses than the amount calculated by the agency pursuant to the formula set forth in [section 409.910](11)(f) or that Medicaid provided a lesser amount of medical assistance than that asserted by the agency.” § 409.910(17)(b), Fla....

...Likewise, we find no error in the ALJ’s determination that out-dated hearsay expert 7 reports, which did not segregate medical from non-medical damages, failed to support the relief sought by Villa—a determination that section 409.910(11)(f) should not be applied....

...only that portion of the settlement allocated for past medical expenses but also from that portion of the settlement intended as compensation for future medical expenses. We do so initially because that is precisely what Florida law required the ALJ to do. Section 409.910(11)(f) sets forth the formula for determining that portion of a Medicaid recipient’s “recovery” pursuant to a settlement with a third party that must be allocated to satisfy “the total amount” of medical costs Medicaid has provided. § 409.910(11)(f), Fla....

...’s recovery 8 for past and future medical costs) less only attorney’s fees and costs as designated to repay the state’s Medicaid agency for the medical expenses that it has paid. Likewise, section 409.910(17)(b), which authorizes a Medicaid recipient to challenge the amount allocated under section 409.910(11)(f), expressly requires consideration of the amounts the Medicaid recipient has “recovered” to reimburse him or her “for past and future medical expenses.” § 409.910(17)(b), Fla. Stat. (2014). Section 409.910(17)(b) then requires the Medicaid recipient to prove by clear and convincing evidence that a smaller portion of this recovery should be made available for payment to AHCA than the amount established under section 409.910 (11)(f): (17)(b) A [Medicaid] recipient may contest the amount designated as recovered medical expense damages payable to the agency pursuant to the formula in paragraph (11)(f) by filing a petition under chapter 120 . ....

...dical expenses. Since Villa intentionally introduced no evidence as to the amount recovered for future medical expenses, the ALJ was correct in determining that he 9 failed to satisfy his burden under section 409.910(17)(b) to avoid application of the statutory formula contained in section 409.910(11)(f). Moreover, notwithstanding Villa’s assertion to the contrary, nothing in section 409.910(11)(f), section 490.910(17)(b), or the ALJ’s application of those provisions runs afoul of either federal law or federal or state legal precedent....

...Villa points to no Florida decision that has specifically addressed the issue that we address here today, that is, whether amounts allocated for future medical expenses recovered by a Medicaid recipient in a third-party settlement may be considered in a section 409.910(17)(b) challenge to the application of the statutory formula provided in section 409.910(11)(f)....

...providing a process for determining which portion of the recovery is attributable to medical expenses. Id. at 1401–02. 14 demonstrate that some amount less than the amount calculated under the statutory formula stated in section 409.910(11)(f) should be allocated as that portion of a settlement available to pay for the recipient’s past medical expenses. The District Court of Appeal, without discussing or applying section 409.910(17)(b),10 determined that a Medicaid recipient “should be afforded the opportunity to seek the reduction of a Medicaid lien amount by demonstrating, with evidence, that the lien amount [established by section 409.910(11)(f)] exceeds the amount recovered for medical expenses.” Id. at 270 (quoting Smith v. Agency for Health Care Admin., 24 So. 3d 590, 592 (Fla. 5th DCA 2009)). That is now precisely what section 409.910(17)(b) provides and what Villa attempted to prove, albeit unsuccessfully. In Harrell v....

...State, 143 So. 3d 478, 480 (Fla. 1st DCA 2014), this court did no more than likewise conclude “we now hold that a plaintiff must be given the opportunity to seek reduction of the amount of a Medicaid lien established by the statutory formula outlined in section 409.910(11)(f), by demonstrating, with evidence, that the lien amount exceeds the amount recovered for medical expenses. When such evidence is introduced, a trial court must consider it in making a determination on whether AHCA's lien amount should be adjusted to be consistent 10 Section 409.910(17)(b) became effective only four months before Davis was decided and apparently was not in effect at the time of the trial court’s ruling in that matter....

...with federal law.” More to the point, at no time did either Davis or Harrell discuss or determine that the amount recovered by the Medicaid recipient for future medical costs or expenses either could or could not be considered in determining whether the amount established by section 409.910(11)(f) exceeds the amount recovered by the Medicaid recipient for medical care. While it is true that AHCA may only secure payment for the amount it actually expended on Villa’s behalf, that does not mean that it cannot col...

...2011)). This, no doubt, is at least in part so that other “needy people” may secure the care they so desperately require. Writing on what we conclude as a nearly blank slate on this issue, we conclude the best way to satisfy that goal is to read section 409.910(17)(b) as meaning exactly what it says—that “[i]n order to successfully challenge the amount payable to the agency, the [Medicaid] recipient must prove, by clear and convincing 18 evi...

...Relying, in part, on our decision in Russell v. Agency for Health Care Administration, 23 So.3d 1266 (Fla. 2d DCA 2010), it maintained that it was entitled to full satisfaction of its lien. AHCA maintained that under Florida’s Medicaid Third-Party Liability Act, specifically section 409.910(ll)(f), Florida Statutes (2010), and consistent with this court’s decision in Russell , it was entitled to a full reimbursement of its Medicaid lien and that the trial court should not consider evidence presented by the Medicaid recipient that might rebut the application of the formula set forth in section 409.910(ll)(f)....

...4th DCA 2012), reh’g and reh’g en banc denied, modified on reh’g, No. 4D10-2313 (Fla. 4th DCA June 26, 2013). When Wos was released, this court ordered each party to submit a memorandum of law addressing the impact of Wos on this case. In its memorandum of law, AHCA modified its position and it now argues that section 409.910 should be read in such a way as to allow a recipient to attempt to rebut the presumption set forth in section 409.910(ll)(f)....

...is court. . Much of the record provided to this court was sealed, including the transcript of a critical hearing in this matter. For that reason, we have avoided discussing specific details that might reveal the terms of the settlement. . In effect, section 409.910(1 l)(f) creates a presumption that the amount AHCA is entitled to receive from a Medicaid recipient’s judgment, award, or settlement in a tort action is either the total amount of medical assistance paid by Medicaid or approximately 37.5% of the judgment, award, or settlement, whichever is less. .AHCA specifically refers to another provision in section 409.910 to support this argument, i.e., section 409.910(17)....

...in excess of the total medical assistance provided by Medicaid, or to place the full amount of the third-party benefits in a trust account for the benefit of the agency pending judicial or administrative determination of the agency's right thereto. § 409.910(17), Fla. Stat. (2010) (emphasis added). . While this matter was pending on appeal, section 409.910 was substantially revised in several respects, including the addition of provisions in section 409.910(17) for an administrative mechanism whereby a recipient may contest the amount designated as recovered medical expense damages payable to the Agency for Health Care Administration....

alleged civil theft schemes. In contrast, section 409.-910(17)(a) permits a civil theft cause of action

...th Care Administration regarding the amount the agency was entitled to recover for past medical expenses from Suarez's settlement with a third-party defendant in her action for medical malpractice. We agree with the circuit court's application of section 409.910(17)(b), Florida Statutes (2013), and hold that the circuit court lacked jurisdiction to consider Suarez's motion for a determination of the amount of the Medicaid lien....

...The court approved the settlement on April 3, 2014, and in the same order approved the guardian ad litem's recommendation to allocate $4129.71 for past medical expenses. We note that the record is unclear as to whether Suarez gave AHCA notice of the settlement as required by section 409.910(11)(d). On April 28, 2014, Suarez filed an emergency motion for determination of Medicaid lien, seeking "an order directing the Agency for Health Care Administration to accept the Court's allocation to the Agency from the settlement." After a hearing, the court quashed the motion, finding that it lacked jurisdiction over the dispute regarding the lien under section 409.910(17)(b), which requires a recipient of Medicaid benefits to contest the amount designated as a recovered medical expense by petition to the Division of Administrative Hearings....

...with AHCA over the amount of the Medicaid lien. Accordingly, this appeal is converted to a petition for writ of mandamus; because we hold that the trial court has no duty to hear the motion, we deny the petition. Analysis Section 409.910 was amended in 2013 to add subsection 17(b), which outlines a procedure by which a recipient of Medicaid "may contest the amount designated as recovered medical expense damages payable to the agency pursuant to paragraph 11(f)." Ch....

...for past medical expenses by motion in the circuit court. See, e.g., Agency for Health Care Admin. v. Riley, 119 So. 3d 514, 515 (Fla. 2d DCA 2013). After the 2013 amendment, recipients must bring their challenges by petition to the Division of Administrative Hearings. See § 409.910(17)(b). Here, Suarez argues that the 2012 version of the statute should apply to her because she filed her action on May 30, 2013, prior to the effective date of the 2013 amendment. She contends that the amendment to section 409.910(17)(b) is a substantive change in the law and that therefore it should not apply retroactively....

...1995) ("The general rule is that a substantive statute will not operate retrospectively absent clear legislative intent to the contrary, but that a procedural or remedial statute is to operate retrospectively."). We do not agree. AHCA had no right to reimbursement until a settlement was reached. Section 409.910 states: -4-  If benefits of a liable third party are discovered or become available after medical assistance has been provided by Medicaid, it is the intent of the legislature that Medicaid be repaid in full and prior to any other person, program, or entity. Medicaid is to be repaid in full from, and to the extent of, any third-party benefits. § 409.910(1) (emphasis added)....

...Prejean v. Dixie Lloyds Ins. Co., 660 So. 2d 836, 837 (La. 1995))). Moreover, after the Supreme Court issued its opinion in Wos v. E.M.A. ex rel. Johnson, 133 S. Ct. 1391 (2013), Florida courts held that the preamendment version of section 409.910(11)(f) was preempted by the Medicaid Act to the extent it required payment beyond that shown to be for medical expenses....

...Here, Suarez does not have a clear legal right to have her dispute resolved in the circuit court on these facts. Nor is the circuit court required by law to maintain jurisdiction over these proceedings. Should Suarez wish to pursue her challenges to the 2013 version of section 409.910, she may do so within the agency proceedings. Accordingly, we deny the petition. WALLACE, SLEET, and LUCAS, JJ., Concur. -6- 

...The issue in this case involves the extent of Medicaid’s lien on the settlement. The trial court correctly held, on undisputed facts, that the extent of the lien was the $244,590.57 already expended by the program. This decision was, again undisput-edly, in complete accordance with section 409.910(1), (ll)(f), Florida Statutes, which provides: 409.910 Responsibility for payments on behalf of Medicaid-eligible persons when other parties are liable.— *473 (I) It is the intent of the Legislature that Medicaid be the payor of last resort for medically necessary goods and services furnished to Medicaid recipients....

...ert” testified would be over $8 million, between past and unreimbursable future Medicaid payments and between medical expenses and intangibles. We entirely disagree. Like every Florida authority which has considered the precise issue, we hold that section 409.910(1)(11)(f) is not federally pre-empted and is, as the lower court held, fully effective and enforceable....

...Medicaid is intended to be the payor of last resort. Under Florida law, Medicaid must be repaid from any third-party benefits obtained by the Medicaid recipient, such as a settlement in a lawsuit, “regardless of whether a recipient is made whole or other creditors paid.” § 409.910(1), Fla. Stat. (2016). Repayment to Medicaid is accomplished through an automatic lien for the full amount of medical assistance provided by Medicaid. § 409.910(6)(c), Fla....

...amount of any settlement of the recipient’s action or claim involving third-party benefits, with or without suit, is subject to the agency’s claims for reimbursement of the amount of medical assistance provided and any lien pursuant thereto. § 409.910(11)(e), Fla....

...Medicaid’s share of a settlement received from a third-party: After attorney’s fees and taxable costs . . . one-half of the remaining recovery shall be paid to the agency up to the total amount of medical assistance provided by Medicaid. § 409.910(11)(f)1., Fla....

...s reimbursement for past and future medical expenses than the amount calculated by the agency pursuant to the formula set forth in paragraph (11)(f) or that Medicaid provided a lesser amount of medical assistance than that asserted by the agency.” § 409.910(17)(b), Fla....

...2017), the court held that the provision of the statute placing a clear and convincing burden of proof on the Medicaid recipient was preempted by the federal Medicaid law’s anti-lien and anti-recovery provisions. Id. at 1259- 60. The court also enjoined AHCA from requiring a Medicaid recipient “to affirmatively disprove § 409.910(17)(b)’s formula- based allocation with clear and convincing evidence.” Gallardo by & through Vassallo v....

...Gray acknowledges that nothing in the statute authorizes the ALJ to use a pro rata formula to calculate the lien amount. Rather, in situations such as this case, when the plaintiff fails to produce evidence or present testimony showing that the lien amount should be reduced, the plain language of section 409.910(11)(f) requires the ALJ to apply the statutory formula....

...e proceeds, though intended to apply to Gray’s past and future medical expenses, are not allocated in any specific way to these categories, leaving it unclear how they should be treated for purposes of determining AHCA’s statutory recovery under section 409.910(11)(f)1., Fla. Stat....

...ine what portion of a settlement represents payment for medical care.” Wos v. E.M.A., 568 U.S. 627, 634 (2013). Instead, the Court “anticipated that a judicial or administrative proceeding” would resolve the dispute. Id. at 638-39. In Florida, section 409.910(17)(b), Florida Statutes (2016) 1, permits a Medicaid recipient to file a petition under chapter 120, Florida Statutes, with the Division of Administrative Hearings (“DOAH”) to prove “that Medicaid provided a lesser amount of medical assistance than that asserted by” the Agency for Health Care Administration. § 409.910(17)(b), Fla....

...AHCA did not participate in the settlement negotiations. Appellant’s grave condition and his need for a life-care plan was not in dispute. Appellant filed with DOAH a “Petition to Determine Amount Payable to Agency for Health Care Administration in Satisfaction 1 All references to section 409.910 will be to the 2016 version, the version in effect when the settlement was executed....

...2 of Medicaid Lien.” He and AHCA filed a Joint Pre-hearing Stipulation with the administrative law judge (“ALJ”) in which they agreed that Appellant’s burden of proof would not be the “clear and convincing evidence” standard in section 409.910(17)(b), but the default, lesser standard of proof of a “preponderance of the evidence” found in section 120.57(1)(j), Florida Statutes—an unmistakable nod to the decision in Gallardo v....

...that Appellant “did not prove, by a preponderance of the evidence, that a lesser portion of the total recovery should be allocated as reimbursement for past medical expenses.” Important to our analysis, the ALJ found: 39. To be clear, section 409.910(17)(b) clearly affords Petitioner a procedure for establishing that the amount of AHCA’s lien should be reduced from the full amount claimed so that it would not be paid from portions of the settlement recovery other...

...The Law Under Florida’s Medicaid Third Party Liability Act, AHCA is responsible for administering Florida’s Medicaid program. § 409.902, Fla. Stat. Florida grants AHCA the right to be fully reimbursed for Medicaid payments made to a recipient who receives a personal injury judgment, award or settlement. § 409.910(1), Fla. Stat. To fulfill the legislative intent in section 409.910, AHCA holds a lien, as well as subrogation and assignment rights when it “provides, pays for, or becomes liable for medical care under the Medicaid program.” § 409.910(6), Fla. Stat. When there is a recovery in a tort action, AHCA’s reimbursement is determined by a statutory formula set forth in section 409.910(11)(f), Florida Statutes....

...a plaintiff “the opportunity to demonstrate that a Medicaid lien exceeds the amount recovered by the plaintiff for medical expenses.” Garcon v. Fla. Agency for Health Care Admin., 150 So. 3d 1101 (Fla. 2014) (Mem.). “[I]n compliance with Wos, the Florida Legislature passed section 409.910(17)(b), which provides that a Medicaid recipient can rebut the result of the [(11)(f)] formula.” Mobley 181 So. 3d at 1235. The 2016 version of section 409.910(17)(b) provides two methods by which a Medicaid recipient can “successfully challenge the amount payable to [AHCA].” A recipient may prove by clear and convincing evidence that either (1) “a lesser portion of the total recovery should be allocated as reimbursement for past and future medical expenses than the amount calculated by” the paragraph (11)(f) formula; or (2) “Medicaid provided a lesser amount of medical assistance than that asserted by [AHCA].” § 409.910(17)(b), Fla. Stat. Relevant to the issue presented in this appeal, “when AHCA has not 9 participated in or approved a settlement, the administrative procedure created by section 409.910(17)(b) . . . serves as a means for determining whether a lesser portion of a total recovery should be allocated as reimbursement for medical expenses in lieu of the amount calculated by application of the formula in section 409.910(11)(f).” Delgado v....

...their child’s best interest and that the allocation to compensate her for past medical expenses was fair and reasonable. AHCA did not put on any evidence regarding the fairness or reasonableness of the settlement amount or the allocation. Instead, it argued that section 409.910 controlled and “no legal authority authorized Florida courts to allow Medicaid recipients to prove that some smaller portion of their settlement was comprised of medical expenses.” Id. at 267. The trial court agreed and awarded AHCA its full lien amount, assuming that the language of section 409.910(11)(f) was mandatory and precluded it from considering evidence to support limiting payment of the lien. Id. The Fifth District reversed. It acknowledged it had been presented a similar set of facts in Smith, and AHCA correctly argued that it had held in Smith that section 409.910(11)(f) had to be used to determine the amount payable to AHCA in that case. But, the Fifth District went on to clarify why it held as it did in Smith: [W]e did not do so because we determined the language in the statute was m...

...determine how much of the damages represented medical expenses. Id. at 268 (emphasis added) (footnote omitted). In fact, it agreed with the Fourth District’s conclusion in Roberts v. Albertson’s Inc., 119 So. 3d 457 (Fla. 4th DCA 2013) (as modified on rehearing), “that section 409.910(11)(f) is a ‘default allocation.’” Id....

...at 270 (citing Roberts, 119 So. 3d at 465). Accordingly, it reiterated its holding in Smith, “that a Medicaid recipient ‘should be afforded the opportunity to seek the reduction of a Medicaid lien amount by demonstrating, with evidence, that the lien amount [established by section 409.910(11)(f)] exceeds the amount recovered for medical expenses.’” Id. (quoting Smith, 24 So. 3d at 592). The Fifth District concluded that the trial court erred in believing it was “‘hamstrung by section 409.910’ and without discretion to reduce the lien.” Id....

...Recently, in Gray v. State, No. 1D17-355 (Fla. 1st DCA Sept. 3, 2019), this Court affirmed the ALJ’s rejection of Gray’s claim that AHCA’s Medicaid lien should have been reduced by using a pro rata formula, rather than the formula provided in section 409.910(11)(f)....

...determine the amount of the Medicaid lien.” Id. We concluded that 14 “in situations such as this case, when the plaintiff fails to produce evidence or present testimony showing that the lien amount should be reduced, the plain language of section 409.910(11)(f) requires the ALJ to apply the statutory formula.” Id....

...the basis that the pro rata formula was speculative and that Appellant’s case was “flawed” due to the confidential nature of the settlement agreement. To conclude otherwise would be to ignore the assurance expressed in those decisions that under 409.910(17)(b), a Medicaid recipient is entitled to put on evidence to prove that he is entitled to a reduction of the Medicaid lien....

...WILSON, Circuit Judge, dissenting from denial of rehearing by the panel: Medicaid recipients in Florida have a forum-shopping problem. In 2018, a unanimous Florida Supreme Court held that the Medicaid Act partially preempts Florida Statutes § 409.910(17)(b)....

...The Agency, the state agency responsible for administering the Medicaid program in Florida, paid medical bills on behalf of Mr. Kurein. The Agency has the right to be repaid in full from responsible third-parties for medical benefits provided to a Medicaid recipient. See § 409.910(1), Fla.Stat....

...nity. See Ch. 98-444, at 22-25, Laws of Fla. The pertinent section of the bill is: Section 3. The governmental entity responsible for payment of the warrant shall make payment to the Florida Agency for Health Care Administration the amount due under section 409.910, Florida Statutes, prior to the disbursement of funds to the claimant, except that the amount due shall be reduced by the agency’s proportionate share of legal costs and attorney’s fees....

...Willoughby $4 million. He also received $20,000 from Esurance Property & Casualty Insurance Company for bodily injury and UM benefits under the driver's insurance policy. Procedural History of the Medicaid Lien Section 409.910(6)(c), Florida Statutes (2015), imposes a lien on judgments, awards, or settlements received by an injured person in order to reimburse Medicaid for medical bills it pays on the injured person's behalf....

..."[AHCA] is entitled to, and has, an automatic lien for the full amount of medical assistance provided by Medicaid to or on behalf of the recipient for medical care furnished as a result of any covered injury or illness for which a third party is or may be liable . . . ." § 409.910(6)(c). After Mr. Willoughby settled with 21st Century, AHCA sought to recover from the settlement proceeds the approximately $148,000 it had expended through Medicaid on his behalf. AHCA proceeded pursuant to section 409.910(11)(f), which provides as follows: Notwithstanding any provision in this section to the contrary, in the event of an action in tort against a third party in which the recipient or his or her...

...under chapter 120 within 21 days after the date of payment of funds to [AHCA] or after the date of placing the full amount of the third-party benefits in the trust account for the benefit of [AHCA] . . . . § 409.910(17)(b).3 To prevail on his petition, Mr....

...Willoughby had to demonstrate "by clear and convincing evidence, that a lesser portion of the total recovery should be allocated as reimbursement for past and future medical expenses than the amount calculated by [AHCA] pursuant to the formula." § 409.910(17)(b). Mr....

...Moreover, Mr. Willoughby and 21st Century acknowledged in their settlement that "all sums set forth . . . herein constitute[d] damages on account of personal injuries or sickness." AHCA may "seek reimbursement from 'third-party benefits,' § 409.910(6), including those benefits received from any 'causes of action, suits, claims, counterclaims, and demands that accrue to the recipient or to the recipient's legal representative, related to any covered injury, illness, or necessary medical care, goods, or services' for which Medicaid paid." Goheagan v....

...Thus, the bad faith portion of the settlement was available to satisfy the lien. The ALJ's decision on this issue was supported by competent, -7- substantial evidence and was a proper interpretation of section 409.910(7)(a)....

...We affirm on this issue. AHCA Can Satisfy Its Lien Only From Settlement Funds Allocable to Past Medical Expenses Medicaid is the "payor of last resort for medically necessary goods and services furnished to Medicaid recipients." § 409.910(1)....

...268, 283-86 (2006)); see also 42 U.S.C. § 1396p(a)(1) ("No lien may be imposed against the property of any individual prior to his death on account of medical assistance paid or to be paid on his behalf under the State [Medicaid] plan . . . ."). As noted earlier, section 409.910(11)(f) provides a formula to determine the amount available for Medicaid reimbursement from a third-party settlement....

...d by the amount of Medicaid assistance provided. It is also limited by a statutory formula." Estate of Hernandez v. Agency for Health Care Admin., 190 So. 3d 139, 142 (Fla. 3d -8- DCA 2016) (citing § 409.910(11)(e), (f)), review denied, No....

...payments for medical care.' " (quoting Ahlborn, 547 U.S. at 284). Thus, the formula is not always conclusive. Indeed, since 2013,5 Florida law enables Medicaid recipients, such as Mr. Willoughby, to rebut the presumption yielded by the formula. § 409.910(17)(b); see also Garcon v....

...not only that portion of the settlement allocated for past medical expenses but also from that portion of the settlement intended as compensation for future medical expenses." 41 Fla. L. Weekly at D2744. In reaching this conclusion, the First District relied on section 409.910(17)(b) which requires a Medicaid recipient challenging the lien amount to demonstrate that AHCA has not properly allocated past and future medical expenses. Id. Respectfully, we disagree with our sister district. Giraldo misinterprets Ahlborn, 547 U.S. 268. Under our federal system of government, the First District's understanding of section 409.910 must yield to the United States Supreme Court's interpretation....

...Indeed, the Court observed that Medicaid acquires a lien "of no more than the right to recover that portion of a settlement that represents payments for medical care." Id. at 282. Future medical expenses have neither been incurred nor paid. More to the point, section 409.910(17)(b) specifically states that the recipient must demonstrate that "a lesser portion of the total recovery should be allocated as reimbursement for past and future medical expenses." (Emphasis added.) Reimburse means "to pay back...

...the [S]tate's lien so that the [S]tate can be reimbursed for its past medical payments."). Conclusion The ALJ had authority to reduce the Medicaid lien. See Davis, 130 So. 3d at 270; see also § 409.910(17)(b)....

...ical care. Accordingly, no portion of this settlement represents reimbursement for future medical expenses.” 4  Case: 17-13693 Date Filed: 06/26/2020 Page: 5 of 61 Fla. Stat. § 409.910(1). The Act instructs FAHCA to “seek reimbursement from third-party benefits to the limit of legal liability and for the full amount of third- party benefits, but not in excess of the amount of medical assistance paid by Medicaid.” Id. § 409.910(4) (emphasis added). Florida carries out this policy by granting FAHCA “an automatic lien for the full amount of medical assistance provided by Medicaid to or on behalf of the recipient for medical care furnished as a result of any covered injury or illness for which a third party is or may be liable.” Id. § 409.910(6)(c)....

...In the event the recipient of the Medicaid funds brings a tort action against a third party that results in a settlement, FAHCA is automatically entitled to half of the recovery (after 25 percent attorney’s fees and costs), up to the total amount provided in medical assistance by Medicaid. Id. § 409.910(11)(f). Crucially, and as will be seen below, in line with the Supreme Court in Wos v....

...lenge the amount FAHCA is claiming under that formula in the following way. Within 60 days of receiving the settlement proceeds, the Medicaid recipient must place the full amount of FAHCA’s entitlement in an interest-bearing trust account. Id. § 409.910(17)(a). Then, within 21 days the recipient must file a petition with the 5  Case: 17-13693 Date Filed: 06/26/2020 Page: 6 of 61 state Division of Administrative Hearings. Id. § 409.910(17)(b)....

...that it was also entitled to recover the amounts it paid from the portion of the settlement representing compensation for the recipient’s future medical expenses. 7 $300,000 is the amount Florida is presumptively entitled to under the formula of Fla. Stat. § 409.910(11)(f): 25 percent was deducted from the $800,000 settlement for attorney’s fees ($200,000), then half of the remaining $600,000 was $300,000. 6  Case: 17-13693 Date...

...The parties filed cross-motions for summary judgment. The district court granted Gallardo’s motion for summary judgment and denied FAHCA’s. Gallardo ex rel. Vassallo v. Dudek, 263 F. Supp. 3d 1247, 1249 (N.D. Fla. 2017). It found that Fla. Stat. § 409.910 is preempted by federal Medicaid law, and it enjoined FAHCA from enforcing that law by “seeking reimbursement of past Medicaid payments from portions of a recipient’s recovery that represents future medical expenses.” The court also declared that the federal Medicaid Act prohibits the State of Florida from requiring a Medicaid recipient to affirmatively disprove § 409.910(17)(b)’s formula-based allocation with clear and convincing evidence to 8 Elizabeth Dudek was the Secretary when this suit was filed....

...As set forth below, to the extent that the Florida law permits FAHCA to recover monies it paid from settlement monies ultimately allocated to all medical care, past and future, “but not in excess of medical assistance paid by Medicaid,” Fla. Stat. § 409.910(4), it does not conflict with the text of the federal Medicaid statutes and is thus not preempted on this basis. II....

...asserting a lien against any part of a settlement not “designated as payments for medical care,” Ahlborn, 547 U.S. at 284, and Florida’s statutes provide it can recover only for “medical assistance paid by Medicaid [to a Medicaid beneficiary],” Fla. Stat. § 409.910(4), as well as a formula for calculating what portion of a settlement represents such medical care, Fla. Stat. § 409.910(11)(f) and (17)(b), the text and structure of the federal Medicaid statutes do not conflict with Florida law and thereby do not preempt it. As a starting point, federal law prohibits states from imposing liens “against the property of any individual ....

...Accordingly, as described herein, Florida’s Medicaid Third-Party Liability Act would allow FAHCA to recover the monies it paid up to (but not in excess of) $300,000 unless Gallardo is able to show that the amounts she recovered from a third party for her medical expenses, past and future, are less than that amount. See § 409.910(17)(b).19 Thus, as “discerned from the language of the ....

...at 485, and heeding the Supreme Court’s findings that the anti-lien provisions only “prohibits a State from making a claim to any part of a Medicaid beneficiary’s tort recovery not ‘designated as payments for medical care.’” Wos, 568 U.S. at 636 (quoting Ahlborn, 547 U.S. at 284), we conclude that § 409.910(17)(b) of Florida’s Medicaid Third-Party Liability Act does not conflict with federal law and is not preempted. Gallardo has argued, however, that the question before us is moot because FAHCA is now bound by the recent decisio...

...Giraldo and thus can seek reimbursement only for amounts allocated by the 19 In effect, then, FAHCA has two ceilings on its recovery: one, it can get reimbursed up to “but not in excess of medical assistance paid by Medicaid,” Fla. Stat. § 409.910(4); the second, a lower ceiling, is the amount designated by the formula....

...seek reimbursement: its formula of half the settlement after 25 percent attorney’s fees, combined with the procedure in which a recipient may challenge that allocation in an administrative hearing by clear and convincing evidence. See Fla. Stat. § 409.910(11)(f), (b)....

...ing evidence, that the portion of the total recovery which should be allocated as past and future medical expenses is less than the amount calculated by the agency pursuant to the formula set forth in paragraph (11)(f). Fla. Stat. § 409.910(17)(b). We reject the district court’s assertions that Florida’s allocation is “nearly impossible to rebut” and “quasi-irrebuttable.” Nothing in the statute or the record supports those assertions....

...Florida Medicaid recipients will now head to state administrative court to benefit from the Florida Supreme Court’s holding in Giraldo (in fact, Florida law compels recipients to challenge the state’s lien in state administrative court, see Fla. Stat. § 409.910(17)(b))....

...of it, because Florida’s allocation scheme does not hinge solely on the formula. Instead, Florida takes the easy route: It allows the recipient to challenge the formula’s presumptive allocation in an administrative proceeding. See Fla. Stat. § 409.910(17)(b)....

...ical care. Accordingly, no portion of this settlement represents reimbursement for future medical expenses.” 4  Case: 17-13693 Date Filed: 06/26/2020 Page: 5 of 61 Fla. Stat. § 409.910(1). The Act instructs FAHCA to “seek reimbursement from third-party benefits to the limit of legal liability and for the full amount of third- party benefits, but not in excess of the amount of medical assistance paid by Medicaid.” Id. § 409.910(4) (emphasis added). Florida carries out this policy by granting FAHCA “an automatic lien for the full amount of medical assistance provided by Medicaid to or on behalf of the recipient for medical care furnished as a result of any covered injury or illness for which a third party is or may be liable.” Id. § 409.910(6)(c)....

...In the event the recipient of the Medicaid funds brings a tort action against a third party that results in a settlement, FAHCA is automatically entitled to half of the recovery (after 25 percent attorney’s fees and costs), up to the total amount provided in medical assistance by Medicaid. Id. § 409.910(11)(f). Crucially, and as will be seen below, in line with the Supreme Court in Wos v....

...lenge the amount FAHCA is claiming under that formula in the following way. Within 60 days of receiving the settlement proceeds, the Medicaid recipient must place the full amount of FAHCA’s entitlement in an interest-bearing trust account. Id. § 409.910(17)(a). Then, within 21 days the recipient must file a petition with the 5  Case: 17-13693 Date Filed: 06/26/2020 Page: 6 of 61 state Division of Administrative Hearings. Id. § 409.910(17)(b)....

...that it was also entitled to recover the amounts it paid from the portion of the settlement representing compensation for the recipient’s future medical expenses. 7 $300,000 is the amount Florida is presumptively entitled to under the formula of Fla. Stat. § 409.910(11)(f): 25 percent was deducted from the $800,000 settlement for attorney’s fees ($200,000), then half of the remaining $600,000 was $300,000. 6  Case: 17-13693 Date...

...The parties filed cross-motions for summary judgment. The district court granted Gallardo’s motion for summary judgment and denied FAHCA’s. Gallardo ex rel. Vassallo v. Dudek, 263 F. Supp. 3d 1247, 1249 (N.D. Fla. 2017). It found that Fla. Stat. § 409.910 is preempted by federal Medicaid law, and it enjoined FAHCA from enforcing that law by “seeking reimbursement of past Medicaid payments from portions of a recipient’s recovery that represents future medical expenses.” The court also declared that the federal Medicaid Act prohibits the State of Florida from requiring a Medicaid recipient to affirmatively disprove § 409.910(17)(b)’s formula-based allocation with clear and convincing evidence to 8 Elizabeth Dudek was the Secretary when this suit was filed....

...As set forth below, to the extent that the Florida law permits FAHCA to recover monies it paid from settlement monies ultimately allocated to all medical care, past and future, “but not in excess of medical assistance paid by Medicaid,” Fla. Stat. § 409.910(4), it does not conflict with the text of the federal Medicaid statutes and is thus not preempted on this basis. II....

...asserting a lien against any part of a settlement not “designated as payments for medical care,” Ahlborn, 547 U.S. at 284, and Florida’s statutes provide it can recover only for “medical assistance paid by Medicaid [to a Medicaid beneficiary],” Fla. Stat. § 409.910(4), as well as a formula for calculating what portion of a settlement represents such medical care, Fla. Stat. § 409.910(11)(f) and (17)(b), the text and structure of the federal Medicaid statutes do not conflict with Florida law and thereby do not preempt it. As a starting point, federal law prohibits states from imposing liens “against the property of any individual ....

...Accordingly, as described herein, Florida’s Medicaid Third-Party Liability Act would allow FAHCA to recover the monies it paid up to (but not in excess of) $300,000 unless Gallardo is able to show that the amounts she recovered from a third party for her medical expenses, past and future, are less than that amount. See § 409.910(17)(b)....

...at 485, and heeding the Supreme Court’s findings that the anti-lien provisions only “prohibits a State from making a claim to any part of a Medicaid beneficiary’s tort recovery not ‘designated as payments for medical care.’” Wos, 568 U.S. at 636 (quoting Ahlborn, 547 U.S. at 284), we conclude that § 409.910(17)(b) of Florida’s Medicaid Third-Party Liability Act does not conflict with federal law and is not preempted. Gallardo has argued, however, that the question before us is moot because FAHCA is now bound by the recent decisio...

...Giraldo and thus can seek reimbursement only for amounts allocated by the 19 In effect, then, FAHCA has two ceilings on its recovery: one, it can get reimbursed up to “but not in excess of medical assistance paid by Medicaid,” Fla. Stat. § 409.910(4); the second, a lower ceiling, is the amount designated by the formula....

...seek reimbursement: its formula of half the settlement after 25 percent attorney’s fees, combined with the procedure in which a recipient may challenge that allocation in an administrative hearing by clear and convincing evidence. See Fla. Stat. § 409.910(11)(f), (b)....

...ing evidence, that the portion of the total recovery which should be allocated as past and future medical expenses is less than the amount calculated by the agency pursuant to the formula set forth in paragraph (11)(f). Fla. Stat. § 409.910(17)(b). We reject the district court’s assertions that Florida’s allocation is “nearly impossible to rebut” and “quasi-irrebuttable.” Nothing in the statute or the record supports those assertions....

...Florida Medicaid recipients will now head to state administrative court to benefit from the Florida Supreme Court’s holding in Giraldo (in fact, Florida law compels recipients to challenge the state’s lien in state administrative court, see Fla. Stat. § 409.910(17)(b))....

...of it, because Florida’s allocation scheme does not hinge solely on the formula. Instead, Florida takes the easy route: It allows the recipient to challenge the formula’s presumptive allocation in an administrative proceeding. See Fla. Stat. § 409.910(17)(b)....

...ical care. Accordingly, no portion of this settlement represents reimbursement for future medical expenses.” 4  Case: 17-13693 Date Filed: 06/26/2020 Page: 5 of 61 Fla. Stat. § 409.910(1). The Act instructs FAHCA to “seek reimbursement from third-party benefits to the limit of legal liability and for the full amount of third- party benefits, but not in excess of the amount of medical assistance paid by Medicaid.” Id. § 409.910(4) (emphasis added). Florida carries out this policy by granting FAHCA “an automatic lien for the full amount of medical assistance provided by Medicaid to or on behalf of the recipient for medical care furnished as a result of any covered injury or illness for which a third party is or may be liable.” Id. § 409.910(6)(c)....

...In the event the recipient of the Medicaid funds brings a tort action against a third party that results in a settlement, FAHCA is automatically entitled to half of the recovery (after 25 percent attorney’s fees and costs), up to the total amount provided in medical assistance by Medicaid. Id. § 409.910(11)(f). Crucially, and as will be seen below, in line with the Supreme Court in Wos v....

...lenge the amount FAHCA is claiming under that formula in the following way. Within 60 days of receiving the settlement proceeds, the Medicaid recipient must place the full amount of FAHCA’s entitlement in an interest-bearing trust account. Id. § 409.910(17)(a). Then, within 21 days the recipient must file a petition with the 5  Case: 17-13693 Date Filed: 06/26/2020 Page: 6 of 61 state Division of Administrative Hearings. Id. § 409.910(17)(b)....

...that it was also entitled to recover the amounts it paid from the portion of the settlement representing compensation for the recipient’s future medical expenses. 7 $300,000 is the amount Florida is presumptively entitled to under the formula of Fla. Stat. § 409.910(11)(f): 25 percent was deducted from the $800,000 settlement for attorney’s fees ($200,000), then half of the remaining $600,000 was $300,000. 6  Case: 17-13693 Date...

...The parties filed cross-motions for summary judgment. The district court granted Gallardo’s motion for summary judgment and denied FAHCA’s. Gallardo ex rel. Vassallo v. Dudek, 263 F. Supp. 3d 1247, 1249 (N.D. Fla. 2017). It found that Fla. Stat. § 409.910 is preempted by federal Medicaid law, and it enjoined FAHCA from enforcing that law by “seeking reimbursement of past Medicaid payments from portions of a recipient’s recovery that represents future medical expenses.” The court also declared that the federal Medicaid Act prohibits the State of Florida from requiring a Medicaid recipient to affirmatively disprove § 409.910(17)(b)’s formula-based allocation with clear and convincing evidence to 8 Elizabeth Dudek was the Secretary when this suit was filed....

...As set forth below, to the extent that the Florida law permits FAHCA to recover monies it paid from settlement monies ultimately allocated to all medical care, past and future, “but not in excess of medical assistance paid by Medicaid,” Fla. Stat. § 409.910(4), it does not conflict with the text of the federal Medicaid statutes and is thus not preempted on this basis. II....

...asserting a lien against any part of a settlement not “designated as payments for medical care,” Ahlborn, 547 U.S. at 284, and Florida’s statutes provide it can recover only for “medical assistance paid by Medicaid [to a Medicaid beneficiary],” Fla. Stat. § 409.910(4), as well as a formula for calculating what portion of a settlement represents such medical care, Fla. Stat. § 409.910(11)(f) and (17)(b), the text and structure of the federal Medicaid statutes do not conflict with Florida law and thereby do not preempt it. As a starting point, federal law prohibits states from imposing liens “against the property of any individual ....

...Accordingly, as described herein, Florida’s Medicaid Third-Party Liability Act would allow FAHCA to recover the monies it paid up to (but not in excess of) $300,000 unless Gallardo is able to show that the amounts she recovered from a third party for her medical expenses, past and future, are less than that amount. See § 409.910(17)(b).19 Thus, as “discerned from the language of the ....

...at 485, and heeding the Supreme Court’s findings that the anti-lien provisions only “prohibits a State from making a claim to any part of a Medicaid beneficiary’s tort recovery not ‘designated as payments for medical care.’” Wos, 568 U.S. at 636 (quoting Ahlborn, 547 U.S. at 284), we conclude that § 409.910(17)(b) of Florida’s Medicaid Third-Party Liability Act does not conflict with federal law and is not preempted. Gallardo has argued, however, that the question before us is moot because FAHCA is now bound by the recent decisio...

...Giraldo and thus can seek reimbursement only for amounts allocated by the 19 In effect, then, FAHCA has two ceilings on its recovery: one, it can get reimbursed up to “but not in excess of medical assistance paid by Medicaid,” Fla. Stat. § 409.910(4); the second, a lower ceiling, is the amount designated by the formula....

...seek reimbursement: its formula of half the settlement after 25 percent attorney’s fees, combined with the procedure in which a recipient may challenge that allocation in an administrative hearing by clear and convincing evidence. See Fla. Stat. § 409.910(11)(f), (b)....

...ing evidence, that the portion of the total recovery which should be allocated as past and future medical expenses is less than the amount calculated by the agency pursuant to the formula set forth in paragraph (11)(f). Fla. Stat. § 409.910(17)(b). We reject the district court’s assertions that Florida’s allocation is “nearly impossible to rebut” and “quasi-irrebuttable.” Nothing in the statute or the record supports those assertions....

...Florida Medicaid recipients will now head to state administrative court to benefit from the Florida Supreme Court’s holding in Giraldo (in fact, Florida law compels recipients to challenge the state’s lien in state administrative court, see Fla. Stat. § 409.910(17)(b))....

...of it, because Florida’s allocation scheme does not hinge solely on the formula. Instead, Florida takes the easy route: It allows the recipient to challenge the formula’s presumptive allocation in an administrative proceeding. See Fla. Stat. § 409.910(17)(b)....

...medical care paid by AHCA through the Medicaid program. AHCA recorded a Medicaid lien in 2005 related to the Medic *869 aid payments, and was automatically sub-rogated to and assigned rights to recover medical expenses from liable third parties. See § 409.910(6), Fla....

...Availing themselves of the statutory dispute settlement regime, the Hunts placed settlement funds in an interest-bearing trust account for the benefit of AHCA and filed a petition with DOAH on December 6, 2013, “contest[ing] the amount designated as recovered medical expense damages payable to the agency.” § 409.910(17)(b), Fla....

...Instead of merely claiming that AHCA’s medical expense recovery amount should be limited, they argued that AHCA should receive nothing at all because its lien had expired and it hadn’t yet sought to enforce its subrogation and assignment rights. See § 409.910(ll)(h), Fla....

...the statute was to resolve the amount of medical expenses reimbursable to AHCA, irrespective of the unalleged statute of limitations defense that the Hunts might assert in an enforcement proceeding. When the Hunts invoked DOAH’s jurisdiction under § 409.910(17)— many months before the statute of limitations deadline cited in the Final Order— the Hunts did not attack- AHCA’s right to reimbursement....

...an’s Estate in satisfaction of his medical expenses. The Hunts had also placed the subrogated *870 and assigned funds into a trust for AHCA’s benefit before filing their petition; an act considered “final agency action and notice thereof’ by § 409.910(17)(b)....

...Under the Hunts’ petition, all that remained of 'the parties’ dispute was for DOAH to decide between competing views of the correct reimbursement amount, per the statute’s provision of an “exclusive method for challenging the amount of third-party benefits payable to the agency.” § 409.910(17)(b), Fla....

...statute, and as the Hunts framed the issue in their petition. We thus REVERSE and REMAND for the ALJ to determine the amount payable to AHCA in satisfaction for the medical expenses paid by Medicaid. ROBERTS, WETHERELL, and OSTERHAUS, JJ., concur. . Section 409.910(6) provides, in pertinent part: (a) The agency is automatically subrogated to any rights that an applicant, recipient, or legal representative has to any third-party benefit for the full amount of medical assistance provided by Medicaid....

...paid medical expenses for Kaitlyn’s care in the amount of $360,741.48, for which AHCA asserted a lien in the full amount from the settlement proceeds. The Harrells filed a petition to determine the amount of the Medicaid lien, specifically arguing that the formula in section 409.910(11)(f), Florida Statutes, used to determine the amount of the State’s recovery had been “overruled” by the United States Supreme Court in Arkansas Department of Health & Human Services v. Ahlborn, 547 U.S....

...s.”). The decision in Wos has undermined the reasoning of the decisions that AHCA and the trial court have previously relied upon, so much so that three of five district courts in Florida have, when presented with the issue of whether section 409.910(11)(f) has been preempted, uniformly changed course by issuing opinions consistent with Wos. 1 See, e.g., Ag. for Health Care Admin. v. Riley, 1 Because section 409.910 was substantially amended, effective July 1, 2013, to 3 119 So....

...for Health Care Admin., 127 So. 3d 820 (Fla. 2d DCA 2013) (holding that recipient entitled to present evidence to rebut amount of claimed Medicaid lien); Davis v. Roberts, 130 So. 3d 264, 269 (Fla. 5th DCA 2013) (holding that statutory formula in section 409.910(11)(f) is not mandatory; parents of Medicaid recipient child were entitled to opportunity to demonstrate AHCA’s lien exceeded portion of settlement allocated to medical expenses); Ag. for Health Care Admin. v. Williams, 127 So. 3d 854 (Fla. 4th DCA 2013) (holding similarly). As the Fifth District recently noted, “Ahlborn and Wos make clear that section 409.910(11)(f) is preempted by the federal Medicaid statute’s anti-lien provision to the extent it creates an irrebuttable presumption and permits recovery beyond that portion of the Medicaid recipient’s third-party recovery representing compensation for past medical expenses.” Davis, 130 So....

...warranted because our district’s jurisprudence is outdated in light of the change that Wos has wrought. As an example, in Storey ex rel. Storey v. Hickcox, 44 So. provide a mechanism for the hearings envisioned by Wos to challenge the presumptive lien amount, see § 409.910(17)(b)-(e), Fla....

...adopt the holding of Riley (as adopted from Albertson’s Inc.). Riley, 119 So. 3d at 516. That is, we now hold that a plaintiff must be given the opportunity to seek reduction of the amount of a Medicaid lien established by the statutory formula outlined in section 409.910(11)(f), by demonstrating, with evidence, that the lien amount exceeds the amount recovered for medical expenses....

of a third party. See, e.g., 42 U.S.C. § 1395; § 409.910, Fla. Stat. (2003); § 641.31(8), Fla. Stat. (2003)

...Second, although there is no question that ALJs have the authority (if not the duty) to independently consider whether they have jurisdiction over a dispute, that authority does not permit the ALJ to ignore a statute that explicitly grants DOAH jurisdiction over a dispute—like section 409.910(17)(b), Florida Statutes, does—simply because, in the ALJ’s view, the statute is “inoperative,” ineffectual, or otherwise invalid....

...jurisdiction to adjudicate the merits of Smathers’ petition. This conclusion was based on the ALJ’s view that the federal district court’s decision in Gallardo v. Dudek 2 “substantially undermines the superficially available administrative remedy” in section 409.910(17) to the point that it leaves DOAH with no remedy to offer to petitioners such as Smathers, but that conclusion finds no support in the court’s decision....

...justified dismissal of the petition for lack of jurisdiction; at most, it would have justified denial of the petition on the merits. With these additional observations, I join the majority opinion. 2 263 F. Supp. 3d 1247 (N.D. Fla. 2017) (Walker, J.) (holding that section 409.910, Florida Statutes, is preempted by the federal Medicaid Act insofar as the statute (1) allows AHCA to seek reimbursement of its past Medicaid payments from the portion of the Medicaid recipient’s tort recovery that represents future...

...David Watkins, Judge. January 14, 2019 ROBERTS, J. During oral arguments, the parties conceded that this appeal involves the very narrow question of whether a legal representative qualifies as “recipient” in the 2016 version of section 409.910(17)(b), Florida Statutes....

...Florida’s Medicaid program is administered by the Agency for Health Care Administration (AHCA). See § 409.902(1), Fla. Stat. (2016). When a person receives Medicaid benefits for a covered injury, AHCA has an automatic lien against any claim in which a third party is liable for the amount of medical assistance it provided. § 409.910(6)(c). Believing that the other party caused the decedent’s death, the decedent’s personal representative (PR) and his spouse initiated a wrongful death action....

...The PR and decedent’s spouse ultimately entered into a confidential settlement with the other party. After settling the wrongful death action, the PR and the decedent’s spouse filed a petition with the Division of Administrative Hearings to contest the amount of AHCA’s Medicaid lien pursuant to section 409.910(17)(b)....

...and the decedent’s spouse could not challenge the lien because they were not “recipients.” The ALJ agreed. We review administrative legal conclusions de novo. Brownsville Manor, LP v. Redding Dev. Partners, LLC, 224 So. 3d 891, 894 (Fla. 1st DCA 2017). Section 409.910(17)(b) states that only a “recipient” may contest AHCA’s Medicaid lien. The term “recipient” is defined in section 409.901(19), Florida Statutes (2016), and includes a person who received medical assistance under the Florida Medicaid program for the purposes of section 409.910....

...9.330 or 9.331. _____________________________ OSTERHAUS J., dissenting. Because Mr. Al Batha is deceased, and none of the appellants are Medicaid “recipients” within the meaning of chapter 409, I disagree that they may contest the calculation of medical expenses payable to the agency under § 409.910(17)(b), Florida Statutes (2016). The text of § 409.910(17)(b) clearly limits who may contest § 409.910(11)(f)-calculated amounts: “A recipient may contest the amount designated as recovered medical expense damages payable to the agency pursuant to the formula specified in paragraph (11)(f).” § 409.910(17)(b), Fla....

...pursuant to federal and state law, to receive medical assistance and related services for which the agency may make payments under the Medicaid program.” § 409.901(19), Fla. Stat. (2016). It also distinguishes recipients from legal representatives of a recipient in various places. Section 409.910(11)(f), for instance, speaks of the Medicaid recovery formula related to third-party tort actions “in which the recipient or his or her legal representative is a party which results in a judgment, award, or settlement from a third party.” § 409.910(11)(f), Fla. Stat. (2016) (emphasis added.). This statute separately identifies judgments received by party recipients and party legal representatives of a recipient. Later in § 409.910(17)(a), the statute again distinguishes a recipient from a recipient’s representative stating: [a] recipient or his or her legal representative or any person representing, or acting as agent for, a recipient or the recipient’s legal representative, who has notice ....

...medical assistance provided by Medicaid, or place the full amount of the third-party benefits in an interest-bearing trust account for the benefit of the agency pending an administrative determination of the agency’s right to the benefits under this subsection. § 409.910(17)(b), Fla. Stat. (emphasis added). Only in the next paragraph, § 409.910(17)(b), do we see the Legislature addressing “a recipient” alone, without also referring to a recipient’s representative. This text provides for only “[a] recipient” to contest the amount designated by the formula specified in § 409.910(11)(f)....

...Kee’s medical expenses and filed a $40,000 lien against any recovery Mr. Kee might receive from a liable third party. Id. Medicaid maintained that the lien must be repaid in full before any disbursement to Mr. Kee or to other creditors. Id.; see § 409.910(1), Fla....

...Durie’s clients, however, split the settlement with $20,000 for *173 Mr. Kee and $80,000 for Mr. Solomon. Id. at 688 . The State charged Mr. Durie with second-degree grand theft of Medicaid funds. Id. at 687, 690-91 ; see §§ 812.014(1), (2)(b); 409.910(17), Fla....

...of proceeds from a wrongful death settlement to pay the Medicaid lien held by the Agency for Health Care Administration. The trial court apportioned the settlement amount based on the formula in Florida’s Medicaid Third-Party Liability Act. See § 409.910(11)(f), Fla....

...Due to Florida’s participation in the Medicaid program, the Agency had paid $409,676.36 of Ms. Hernandez’s medical expenses. These payments resulted in an automatic lien on “collateral” for medical expenses paid on Ms. Hernandez’s behalf. See § 409.910(6)(c), Fla. Stat. “Collateral” includes wrongful death settlements. See §§ 409.910(6)(c) & 409.901(7)(b), Fla....

...economic damages incurred by the Estate, including attorney’s fees. In response, the Agency argued that, under the formula in Florida’s Medicaid Third-Party Liability Act, it was entitled to $262,500 prior to any wrongful death apportionment. See § 409.910(11)(f)....

...It provides the Agency with three ways to recover expenses from third parties: (1) automatic subrogation to any rights of a Medicaid recipient to third-party benefits; (2) automatic assignment of the recipient’s rights to any third-party benefits; or (3) automatic lien on “collateral.” § 409.910(6)(a)-(c), Fla. Stat....

...409.901(7)(b) & (28), Fla. Stat. Although the entire amount of any settlement may be subject to a Medicaid lien, the amount of recovery is limited by the amount of Medicaid assistance 6 provided. § 409.910(11)(e), Fla. Stat. It is also limited by a statutory formula. § 409.910(11)(f), Fla....

...Under the terms of the settlement, a special needs trust was created which was designed to allow the child to keep the settlement funds and remain eligible to receive medical assistance through Medicaid. See 42 U.S.C. § 3 In response to Wos, the Florida legislature amended the Medicaid Third-Party Liability Act. § 409.910(17)(b), Fla....

...Equities of a recipient, his or her legal representative, a recipient’s creditors, or health care providers shall 10  not defeat, reduce, or prorate recovery by the agency as to its subrogation rights granted under this paragraph. § 409.910(6)(a), Fla....

...aid from third-party resources. It is intended that if the resources of a liable third party become available at any time, the public treasury should not bear the burden of medical assistance to the extent of such resources. § 409.910(1), Fla....

...12 the Medicaid Third-Party Liability Act. Unlike the statutes giving rise to the liens in Goff and other similar cases, the Medicaid Third-Party Liability Act’s provisions require that the Agency’s lien has priority. See § 409.910(1) & (6), Fla. Stat. For example, in Strafford v....

...268, 284–85 (2006) (noting that statutorily required assignment of payments constituting “reimbursement for medical costs,” as provided for under the Medicaid Act, “is an exception to the anti-lien provision”). Florida has a statute governing this apportionment of lump-sum settlements. See § 409.910, Fla....

...We limit our analysis to the legal question regarding proper use of ratios. This is not a sufficiency-of-the-evidence appeal. 2 furnished to” a beneficiary, “[t]hird-party benefits for medical services” then being “primary to medical assistance provided by Medicaid.” § 409.910(1), (3), Fla....

...at 426. As already mentioned, federal law “limits [AHCA] to reimbursement from the recovered medical expense damages,” so the beneficiary “may contest the amount designated as recovered medical expense damages payable to the agency” under the statutory formula set out above. § 409.910(17)(b), Fla....

...In other words, the whole of the settlement proceeds— all $238,500.00—belong to Palacios as his property, save for that “portion” of the whole that constitutes compensation for his medical expenses; and when called upon to do so by petition, the ALJ must figure out what that “portion” is. § 409.910(17)(b), Fla. Stat. The key here is the statute’s directive for the ALJ to focus on a ratio: some percentage that expresses how much of the total damages recovered can reasonably be characterized as the recovery of medical expenses�...

...On the one hand, the ALJ’s “default formula” for calculating this “share of [the] recovery” belonging to AHCA is the one set out in paragraph (11)(f) (as detailed above, effectively 37.5 percent of the settlement proceeds). Gray v. Ag. for Health Care Admin., 288 So. 3d 95, 97–98 (Fla. 1st DCA 2019); see § 409.910(11)(f), Fla....

...whole—“the portion of the total recovery” to be “allocated as past and future medical expenses” will be represented as a smaller ratio than that established by paragraph (11)(f), provided there is “clear and convincing evidence” supporting that determination. § 409.910(17)(b), Fla....

..._____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ 5 These lien proceedings are under chapter 120, Florida Statutes. See § 409.910(17)(b), Fla....

...Instead, Medicaid (i.e., the taxpayer) is made to foot the bill. Where a plaintiff recovers for medical damages that have been paid by Medicaid, the Agency for Health Care Administration (“AHCA”) must “seek reimbursement” from the recovery. § 409.910(4), Fla....

...the statutory lien amount) is set out in the statute. It is rather simple: “After attorney’s fees and taxable costs [], one- half of the remaining recovery shall be paid to [AHCA] up to the total amount of medical assistance provided by Medicaid.” § 409.910(11)(f)1., 2., Fla....

...tatutory lien amount by proving, with clear and convincing evidence, “that the portion of the total recovery which should be allocated as past and future medical expenses is less than the amount calculated by the agency pursuant to the formula.” § 409.910(17)(b), Fla....

...Pursuant to Florida’s participation in the Medicaid program, the Agency for Health Care Administration [Agency] paid $168,691.58 of Alexander Ross’ medical expenses. In return, the Agency received an automatic lien for the full amount of the medical expenses paid on behalf of Alexander Ross, as provided by Section 409.910(6)(c), Florida Statutes (2002)....

...rectly to the Agency.”). The Wrongful Death Act does not alter this requirement. Englich v. Agency for Healthcare Admin., 916 So.2d 994 (Fla. 4th DCA 2005). 1 Accordingly the trial court’s allocation order is affirmed. . We note that pursuant to Section 409.910(1 l)(f)(l), Florida Statutes (2002), Medicaid is to be fully reimbursed unless full reimbursement would take away more than half of a third party benefit....

...State Law Florida applies a one-size-fits-all statutory formula to determine how much of a recipient’s recovery constitutes medical expenses and is therefore available for Medicaid reimbursement. First, the formula reduces the gross recovery by 25% to account for the recipient’s attorney’s fees. See § 409.910(ll)(f)(l), Fk ■ Stat. (2016) (deducting “attorney’s fees and taxable costs” from the “judgment, award, or settlement”); id. §• 409.910(1l)(f)(3) (deciding for purposes of the statutory formula that attorney’s fees “shall be calculated at 25 percent of the judgment, award, or settlement”). The already-reduced total is then cut in half, and AHCA is awarded the-lesser of the amount it actually paid or the resulting number. See id. § 409.910(ll)(f)(l) (awarding AHCA “one-half of the remaining recovery” after accounting for attorney’s fees, “up to the total amount of medical assistance provided by Medicaid”). The remaining amount is paid to the Medicaid recipient. Id. § 409.910(ll)(f)(2)....

...ding. To do so, the recipient must either pay AHCA the formula-based reimbursement or place those reimbursement funds in an interest-bearing trust account and then file a petition with the Division of Administrative Hearings in Tallahassee.- See id. § 409.910(17)(b) (outlining the administrative procedure); id. . § 409.910(17)(d) (“Venue for all administrative proceedings pursuant to this subsection lies in Leon County, at the discretion of the agency,” (footnote omitted))....

...e to AHCA, “the recipient must prove, by clear and convincing evidence, that a lesser portion of the total recovery should be allocated as reimbursement for past and future medical expenses than the amount” required by the statutory formula. Id. § 409.910(17)(b)....

...uck’s driver, and the Lee County School Board. ECF No. 10-1. Gallardo sought past medical expenses, future medical expenses, lost earnings, and other damages, while her parents sought loss-of-consortium damages. Id. As required by Florida law, see § 409.910 (ll)(a), AHCA was notified of that lawsuit and, in turn, it asserted a lien against that cause of action for the amount it expended for Gallardo’s past medical expenses: $862,688.77....

...Thus, according to Gallardo, only $35,367.52 of her $800,000 settlement represented past medical expenses. Id. AHCA never responded to Gallardo’s letter. Id. Gallardo chose to contest AHCA’s lien through the state administrative procedure outlined in § 409.910(17)(b)....

...“ ‘Where the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate.’ ” Bruley v. Village Green Mgmt. Co., 592 F.Supp.2d 1381, 1388 (M.D. Fla. 2008) *1253 (quoting Uhl v. Swanstrom, 79 F.3d 751 , 754 (8th Cir. 1996)). Ill Gallardo contends that § 409.910 conflicts with federal law and is therefore preempted to the extent that it allows AHCA to satisfy its lien from a Medicaid recipient’s recovery for future medical expenses....

...o do just that. § 409,910(17)(b) (allowing AHCA to recover from the “portion of the total recovery ... for past and future medical expenses” (emphasis added)). Accordingly, that portion of the statute is preempted. IV Gallardo also asserts that § 409.910 and its one-size-fits-all statutory formula— which the Medicaid recipient may only rebut by • presenting clear and convincing evidence to the contrary — violates due process and is preempted by federal law....

...Thus, the only issue is whether Florida’s reimbursement statute grants recipients a meaningful opportunity to be heard. Gal-lardo could have argued that it doesn’t; that is, by placing such an onerous burden on Medicaid recipients to regain their property, Florida has so drastically undermined § 409.910’s post-deprivation remedy that it is essentially nonexistent and thus inadequate under federal law....

...— in the form of either a jury verdict, court decree, or stipulation binding on all parties — that is the end of the mátter,” Wos, 133 S.Ct. at 1399 . In Florida, not even a jury’s allocation is immune from the reimbursement . statute. See § 409.910(ll)(f) (applying Florida’s statutory formula to any case “in which the recipient or his-or her legal representative *1258 is a party which results in a judgment, award, or settlement from a third party”)....

...rmula tailored to the Florida Bar’s attorney’s fees rules. *1259 ' That result is not an accident. Florida did not hide the ball here; rather, it made explicit its intent to tilt the scales in AHCA’s favor. See ECF No. 10-4, at 4 (opining that § 409.910’s current iteration “increase[es] the likelihood the State will prevail in "defending Medicaid liens,” “result[s] in an increase in [third-party liability] collections[,]” and “reduc[es] the expense and staff time” required to- defend Medicaid liens). That is consistent with the Florida legislature’s intent “that Medicaid be the payor of last resort for medically necessary goods and services furnished to Medicaid recipients.” § 409.910(1)....

...What makes Florida’s reimbursement statute and AHCA’s application of that statute even more pernicious is that AHCA has both the authority and the capability' to seek its reimbursement directly from the responsible third.party (or, as here, parties). See §,409.910(11) (“The agency may, as a matter of right, in order to enforce its rights under this section, institute, intervene in, or join any legal or administrative proceeding in its own name in one or more of [a variety of] capacities[.]”)....

...Thus, in this specific scenario, Florida’s clear and convincing burden is preempted by federal law. Accordingly, IT IS ORDERED: 1.Gallardo’s Motion for Summary Judgment, ECF No. 11, is GRANTED. 2. AHCA’s Motion for Summary Judgment, ECF No. 13, is DENIED. 3. In its'current form, § 409.910, Fla....

...§ 1396a, 42 U.S.C. § 1396k, and 42 U.S.C. § 1396p. 4. The Clerk shall enter judgment stating: Gianinna Gallardo, an incapacitated person, by and through her parents and co-guardians, Pilar Vassallo and Walter Gallardo, successfully proved that portions of § 409.910(17)(b), Fla....

...s recovery that represents future medical expenses. It is also declared that the federal Medicaid Act prohibits the State of Florida Agency for Health Care Administration from requiring a Medicaid recipient to affirmatively disprove Florida Statutes § 409.910(17)(b)’s formula-based allocation with clear and convincing evidence to successfully challenge it where, as here, that allocation is arbitrary and there is no evidence that it is likely to yield reasonable results in the mine run of cases....