fl-31442664: 64DER26-13 — Emergency 64DER26-13

31442664, 64DER26-13 - Florida Administrative Rules, Law, Code, Register - FAC, FAR, eRulemaking Home About Us Contact Us Help Florida Department of State and Division of Library and Information Services Home Advanced Search MyFLRules Rules Open for Comments Notice: 31442664 Notice of Emergency Rule Department: DEPARTMENT OF HEALTH Division: Division of Disease Control Overview RULE: 64DER26-13   Definitions SPECIFIC REASONS FOR FINDING AN IMMEDIATE DANGER TO THE PUBLIC HEALTH, SAFETY OR WELFARE:   The Ryan White Grant program is a voluntary federal program that issues grant money to states for HIV/AIDS prevention and treatment. There is no state statute compelling the Department to participate in that grant program nor is there any federal requirement that the Department participate. The Department has, however, applied for the grant as part of the Department’s broad authority to implement programs and policies that provide for the prevention and control of communicable diseases. See § 381.0011, Fla. Stat. Specifically, the Department has broad authority and discretion to determine which programs, if any, to implement (and the contours of those programs) for the prevention and control of human immunodeficiency virus infection and acquired immune deficiency syndrome. See § 381.003, Fla. Stat. That authority and discretion have been exercised, in part, by applying for and administering a federal grant program to provide certain medications to low-income individuals with HIV/AIDS. The program, as implemented by the Department prior to March 2026, included, among other things, direct dispense medication and the payment of insurance premiums for full healthcare coverage (not just limited to medication) to certain individuals who qualified under the Department’s program parameters. Health insurance was acquired and provided through the Affordable Care Act (ACA) marketplace exchange. The federal government implemented enhanced subsidies in 2021 that helped maintain ACA insurance premiums at a certain level. The federal government ended those enhanced subsidies for ACA insurance premiums in 2025. Since then, ACA insurance costs have significantly increased. Concurrently, the federal government has not increased Ryan White Grant funding to offset the ACA insurance cost increases. The Department is allotted a finite sum of money under the Ryan White Grant and a much smaller amount of state dollars is allocated yearly by the legislature for this program. The Department does not have sufficient funds through the 2026 calendar year to implement the programs as they currently exist under Chapter 64D-4, Florida Administrative Code, such that it could have to terminate all services to all eligible persons. Approximately 32,000 persons with HIV/AIDS could lose access to some or all medications as a result. In response, the Department initiated rulemaking to amend its rules and also adopted Emergency Rules 64DER26-1, 64DER26-2, and 64DER26-3 which were superseded by Emergency Rules 64DER26-4, 64DER26-5, and 64DER26-6 (Emergency Rules), after concluding that the exhausting of funds would create an immediate danger to the public health, safety, or welfare because without any continued medication, the viral loads in 32,000 infected persons could elevate and could facilitate transmission of HIV within the state. Accordingly, the Department attempted by emergency rules to mitigate that situation and ensure the greatest number of people could receive some direct dispense medication within the constraints of available funding, which is the baseline federal requirement under the grant. Following the Department’s adoption of the Emergency Rules, the legislature passed House Bill 697 (the Bill) during the 2026 regular session, which was signed into law by Governor Ron DeSantis on March 24, 2026, and codified at Chapter 2026-4, Laws of Florida. Section 3 of the Bill addressed the funding shortages noted above and appropriated to the Department $30,901,933 to implement ADAP as specified in the Bill through June 30, 2026. The Bill also commanded the Department to adopt emergency rules to implement ADAP in accordance with that section. Consequently, the Department adopted Emergency Rules 64DER26-7, 64DER26-8, and 64DER26-9. Pursuant to section 3, paragraph (5) of the Bill, those rules expired on June 30, 2026. During a special session in May 2026, the legislature passed the General Appropriations Act contained in House Bill HB5001E (the GAA). Governor Ron DeSantis signed the GAA on June 29, 2026. Section 101 of the GAA addresses funding shortages noted above and appropriates to the Department $75,000,000 to implement ADAP through June 30, 2027. Additionally, the GAA requires that for purposes of ADAP eligibility, “low-income” means household income at or below 400 percent of the federal poverty level. It further requires that ADAP services may be provided through distribution of medication directly to up to 21,000 eligible individuals and for payment assistance with co-payments and deductibles. It does not provide for the purchase of general health insurance. Subsequently, the Department adopted Emergency Rules 64DER26-10, 64DER26-11, and 64DER26-12. The Department also published a Notice of Rule Development on July 1, 2026, and remains engaged in the rulemaking process to propose and adopt permanent rules. In the absence of the proposed emergency rule, on September 30, 2026, the program will revert to operating under the existing Rule 64D-4.002, Florida Administrative Code (effective October 12, 2022). That rule does not conform to the GAA and would result in expenditures that are not authorized by the GAA, including payment of health insurance premiums that would deplete appropriated money before June 30, 2027. Such a sudden reversion would also create confusion and uncertainty among the eligible population as to the services offered by the Department. As explained in detail above, that creates an immediate danger to the public health, safety, or welfare. REASON FOR CONCLUDING THAT THE PROCEDURE IS FAIR UNDER THE CIRCUMSTANCES:   The program parameters are set by existing rules that do not conform with the GAA, which was signed by the Governor on June 29, 2026. Additionally, the federal enhanced subsidies for ACA insurance ended in December 2025 without replacement by the federal government or by the Florida Legislature. The Department must implement the GAA through the adoption of emergency rules for the reasons described above, while it conducts regular rulemaking to amend Chapter 64D-4, Florida Administrative Code, to comply with law and avoid adverse public health consequences. As stated above, the Department has initiated non-emergency rulemaking procedures to ensure public participation in the rulemaking process.through the adoption of emergency rules for the reasons described above, while it conducts regular rulemaking to amend Chapter 64D-4, Florida Administrative Code, to comply with law and avoid adverse public health consequences. As stated above, the Department has initiated non-emergency rulemaking procedures to ensure public participation in the rulemaking process.

Summary

The emergency rule will update definitions of “HIV/AIDS Patient Care Programs,” “low income,” “federal poverty level,” and other defined terms. THE PERSON TO BE CONTACTED REGARDING THE EMERGENCY RULE IS:   Peyton Pavlik at Peyton.Pavlik@flhealth.gov or (850) 245-4421. PRINT PUBLISH DATE: 10/2/2026   Vol. 52/192 OVERSIGHT COMMITTEE: Joint Administrative Procedures Committee Florida Administrative Law Central Online Network (F.A.L.C.O.N.) RELATED COURT CASES: Division of Administrative Hearings FEDERAL eRULEMAKING WEB PORTAL: Regulations.gov HOW TO LINK TO THIS NOTICE: http://flrules.org/gateway/ruleno.asp?id=64DER26-13&PDate=10/2/2026&Section=4 REFERENCE MATERIALS: Ref-12884 County Income Limits Ref-14754 64D-4.002 County Income Limits 2022_no links Ref-14755 64D-4.002 Federal Poverty Level _01.21.2022 Home Advanced Search MyFLRules Rules Open for Comments About Us Contact Us Help  Privacy Policies Accessibility Statement Copyright @ 2010 State of Florida Department of State Under Florida law, E-mail addresses are public records. If you do not want your E-mail address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by phone or in writing.