By Jim Saunders ©2023 The News Service of Florida
TALLAHASSEE — As it tries to fend off a potential class-action lawsuit over dropping people from the Medicaid program, Gov. Ron DeSantis’ administration this week alleged that federal health officials have violated an open-government law by not providing records that could be relevant to the case.
Attorneys for the state on Tuesday filed a Freedom of Information Act lawsuit alleging that the U.S. Department of Health and Human Services and the federal Centers for Medicare & Medicaid Services have improperly withheld records that the state requested in August.
The state wants records that could be related to the potential class-action lawsuit, which contends Florida has not provided adequate information before dropping hundreds of thousands of people from the Medicaid program. That lawsuit was filed on behalf of Medicaid beneficiaries by lawyers for the Florida Health Justice Project and the National Health Law Program.
In part, the state’s August records requests sought copies of any communications between the federal health agencies and the Florida Health Justice Project or the National Health Law Program about the litigation. The requests, for example, sought records that could show communications with seven attorneys for the Florida Health Justice Project and the National Health Law Program and specifically named the attorneys.
“The requested records in HHS’s (the U.S. Department of Health and Human Services’) possession are likely to become relevant to the issues being litigated in this time-sensitive and important matter,” one of the Aug. 28 records requests said.
The Department of Health and Human Services denied the request in a Nov. 22 letter to the Florida Agency for Health Care Administration, citing an exemption in the Freedom of Information Act that covers such things as attorney-client privilege.
“The Office of General Counsel (of the Department of Health and Human Services) reviewed the 276 pages of responsive records,” the letter said. “After a careful review of the requested information, we have found that it is reasonably foreseeable that disclosure would harm an interest protected by one or more of the exemptions to the FOIA’s general rule of disclosure and/or that disclosure is prohibited by law; therefore we have determined to withhold the information in its entirety.”
The records fight is the latest twist in issues stemming from a dramatic decrease this year in people enrolled in Florida’s Medicaid program.
The federal government declared a public health emergency in 2020 as the COVID-19 pandemic began. Medicaid is jointly funded by the federal and state governments. As part of the emergency, Washington agreed to pick up more of the tab for the program.
But in exchange for the extra money, states had to agree that they wouldn’t drop people from the Medicaid rolls during the emergency. Florida’s program grew from about 3.8 million beneficiaries in January 2020 to nearly 5.78 million in April of this year. At least in part, the increase stemmed from the program being unable to drop people who otherwise might not qualify because of their income levels.
With the end of the public health emergency this spring, the state has used an eligibility “redetermination” process that helped lead to enrollment dropping to 4.95 million people in November. The redetermination process is continuing, and further enrollment decreases are expected.
The potential class-action lawsuit, filed in August in federal court in Jacksonville, alleges the state has violated due-process rights and a Medicaid law by not providing adequate information before beneficiaries lose coverage.
U.S. District Judge Marcia Morales Howard held a hearing last week on the plaintiffs’ request for a preliminary injunction and certification of the case as a class action. She ruled out a preliminary injunction based on the due-process argument but has not issued a decision on other arguments about a preliminary injunction or class certification, according to a document filed after the hearing.
The state Agency for Health Care Administration and the Florida Department of Children and Families have defended their handling of the Medicaid redetermination process, disputing that it has violated beneficiaries’ rights.
Federal agencies are not parties in the potential class-action lawsuit. But the state’s Freedom of Information Act lawsuit was filed in federal court in Pensacola a day after U.S. Department of Health and Human Services Secretary Xavier Becerra sent a letter to DeSantis that was critical of the Medicaid redetermination process.
Becerra’s letter Monday pointed to large numbers of Florida children who have lost coverage in Medicaid and another program known as the Children’s Health Insurance Program, or CHIP.
“HHS takes its oversight and monitoring role during the (coverage) renewals process extremely seriously and will not hesitate to take action to ensure states’ compliance with federal Medicaid requirements,” the letter said. “States can also take critical proactive actions to prevent eligible children from losing Medicaid and CHIP.”
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