1 Gallardo v. Dudek, 4:16cv116-MW/CAS, 2017 WL 1405166 (N.D. Fla. Apr. 18, 2017).

2 Id. at *3.

3 Id. at *3.

4 Id. at *4.

5 Gallardo v. Senior, 4:16cv116-MW/CAS, 2017 WL 3081816, at *2 (N.D. Fla. Aug. 17, 2017).

6 Dudek, 2017 WL 1405166, at *4.

7 Id.

8 See 42 C.F.R. §433.139 (d)(3) (2016) (holding reimbursement must be sought unless the agency determines that recovery would not be cost effective). See also Ark. Dept. of Health and Human Servs. v. Ahlborn, 547 U.S. 268, 290 (2006). (finding a state must recover the Federal Government's share from any settlement).

9 Dudek, 2017 WL 3081816, at *1 (explaining that as the Gallardo's only recovered 4% of their expected damages in the settlement, the AHCA should have only received 4% of the $884,187 spent on Gallardo's care).

10 See Fla. Stat. § 409.910 (2013).

11 Dudek, 2017 WL 1405166, at *4.

12 Id.

13 See Wos v. E.M.A. ex rel. Johnson, 588 U.S. 627, 647 (2013).

14 Id.

15 See 42 USC§ 1396k (1990), 42 C.F.R. §433.138 (2016), 42 C.F.R. §433.139 (2016) and 42 C.F.R. §433.140 (2016).

16 See generally Wos, 588 U.S. 627, and Ahlborn, 547 U.S. 284.

17 The anti-lien provision is largely established by two statutory provisions. See 42 U.S.C. 1396a(18) (2012) (requiring states comply with 1396p with respect to … recover[y] of medical assistance correctly paid); 42 U.S.C. 1396p(a)(1) (2010) (holding no state could impose a lien against the property of any individual prior to his death, except pursuant to the judgment of a court on account of benefits incorrectly paid on behalf of such individual). See also Ahlborn, 547 U.S. 284 (finding read literally and in isolation, the anti-lien prohibition contained in § 1396p(a) would appear to ban even a lien on that portion of the settlement proceeds that represents payments for medical care. However, as Ahlborn had assumed that the State's lien was consistent with federal law, the issue was whether the anti-lien provision precluded encumbrance of the remainder of the settlement not attributed to medical expenses).

18 See Ahlborn, 547 U.S. 284.

19 Id.

20 N.C. Gen. Stat. § 108A-57 (2009).

21 Wos, 588 U.S. 654.

22 Id. at 639.

23 See Fla. Stat. § 409.910 (2013).

24 Dudek, 2017 WL 1405166, at *3.

25 Id. at *9.

26 Id. at *3.

27 Id.

28 In practice, the award recovery worked so that if $100 was the amount allocated in settlement of judgment, that total would first be reduced by 25% (for reasonable attorney's fees) leaving $75.00 remaining. Then, that $75.00 would be cut in half ($37.50 for Medicaid recipient and $37.50 for the AHCA). At the final stage, the Florida Medicaid agency would take either the $37.50 or if it had not spent that amount on the individual's medical care it would take the true total it had spent, leaving the Medicaid recipient with the remainder.

29 Dudek, 2017 WL 1405166, at *3.

30 Id.

31 Id.

32 Id.

33 Id. at *4.

34 Id. at *9.

35 Id.

36 See id. at *5 (finding a plain reading of the statutory text shows that AHCA's right of recovery is even narrower than it suggests; namely, it only applies to payments made for past medical expenses).

37 See Spec. Needs Tr. for K.C.S. v. Folkemer, 08:10-CV-1077-AW, 2011 WL 1231319 (D. Md. Mar. 28, 2011); IP ex rel v. Hannesberry, 795 F.Supp.2d 1189 (D. Colo. 2011), and In re Matey, 213 P.3d 389 (Idaho 2009).

37 Ahlborn, 547 U.S 284.

38 Dudek, 2017 WL 1405166, at *9.

39 Ahlborn, 547 U.S 284.

40 AHCA “references language in § 1396k(a)(1)(A) that requires the recipient “to assign the State any rights … to payment for medical care from any third party.” Other states had reached this conclusion. See Dudek, 2017 WL 1405166, at *3.

41 Dudek, 2017 WL 1405166, at *5.

42 Id. at *7.

43 Id. at *7.

44 Id. at *8.

45 Id. at *8.

46 See Wos, 568 U.S. 636 (finding a State may not evade preemption through creative statutory interpretation or description, “framing” its law in a way that is at odds with the statute's intended operation and effect).

47 See id. at *11 (holding the reimbursement statute's clear and convincing burden—when coupled with a formula-based baseline wholly divorced from reality and a requirement that the recipient affirmatively disprove that baseline to successfully rebut it—was in direct conflict with the Medicaid statute's anti-lien and anti-recovery provisions).

48 42 U.S.C. § 1396a (2013).

49 Id.

50 See Michael Laffey, Ahlborn Legislatively Overruled, Other Party Liability Inc., https://www.subrogation.com/ahlborn-legislatively-overruled/ [https://perma.cc/R53M-MGC3] (Oct. 17, 2016) (stating Medicaid, effective October 1, 2017, will have a right to recover from any settlement, not just those allocated for medical expenses).

51 See Joy Johnson Wilson, Protecting Access to Medicare Act, National Conference of State Legislatures, http://www.ncsl.org/documents/statefed/health/AcesMedicareAct2014.pdf [https://perma.cc/3U57-AWSA] (2014) (explaining that the change to the act gives states the ability to recover costs from the full amount of a beneficiary's liability settlement, instead of only the portion of the settlement designated for medical expenses).