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State eyes options in Medicaid class action

By Jim Saunders

News Service of Florida

April 13, 2023

TALLAHASSEE — Agency for Health Care Administration Secretary Jason Weida said Thursday the state is considering options, including a possible appeal, after a federal judge cleared the way for a class-action lawsuit about the Medicaid program denying coverage for incontinence supplies for adults with disabilities.

U.S. District Judge Marcia Morales Howard on March 27 certified as a class action a lawsuit alleging that the Medicaid program has violated federal laws by denying the coverage. The ruling came in a lawsuit, filed in July, on behalf of Duval County resident Blanca Meza and St. Johns County resident Destiny Belanger, who are incontinent and unable to care for themselves.

While it is not clear how many people the case could affect, Morales Howard’s class-action decision cited one estimate that at least 480 Medicaid beneficiaries a year turn 21 and lose coverage for incontinence supplies that they received as children. The state provides the supplies, such as briefs, diapers and underpads, for Medicaid beneficiaries under age 21 and for certain adults, including people in nursing homes.

Senate Minority Leader Lauren Book, D-Plantation, asked Weida about the issue Thursday as he appeared before the Senate Health Policy Committee for a confirmation hearing.

“How are we going to do better for Floridians with disabilities at AHCA?” Book asked. “How are we going to make it easier for people to get the services and the supplies and the things that they need?”

Weida, a lawyer who was appointed secretary early this year by Gov. Ron DeSantis, said the agency could appeal Morales Howard’s order to the 11th U.S. Circuit Court of Appeals or file a motion to decertify the class action after more facts emerge in the case. Another possibility would be to file a motion for summary judgment, which, if successful, would essentially short-circuit the case.

While some states have decided to provide incontinence supplies to adult Medicaid beneficiaries, Weida said it is not required by the federal Centers for Medicare & Medicaid Services, which oversees Medicaid rules.

He also indicated, however, that the agency has discussed the possibility of changing the policy.

“I can tell you that from lawsuits in the past when we have been sued and we’re in the middle of litigation, sometimes we decide to change a policy which would essentially give the plaintiffs some or all of what they wanted, and sometimes those lawsuits tend to become moot or just go away,” Weida, who previously worked for the U.S. Department of Justice, told the Senate committee. “I can’t tell you exactly how we’re going to shake out on that right now. But what I can tell you is that we’re looking at it not just from a litigation strategy of how we’re going to defend ourselves, but also from a perspective of, is it the right thing to do? And if we ultimately decide that it is the right thing to do, we’ll do it.”

The Senate committee recommended that the full Senate confirm Weida’s appointment.

While the lawsuit is moving forward as a class action, it remains far from being resolved, Morales Howard, who was appointed to the bench by former President George W. Bush, issued an order in February that said a trial is scheduled in January 2024. Along with Meza and Belanger, the organization Disability Rights Florida is a named plaintiff in the case.

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