Gianinna Gallardo v. Mary Mayhew ( 2020 )


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  •              Case: 17-13693    Date Filed: 06/26/2020   Page: 1 of 61
    [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    No. 17-13693
    D.C. Docket No. 4:16-cv-00116-MW-CAS
    GIANINNA GALLARDO,
    an incapacitated person,
    by and through her parents and co-guardians
    Pilar Vassallo and Walter Gallardo,
    Plaintiff - Appellee,
    versus
    ELIZABETH DUDEK,
    in her official capacity as Secretary of the
    Florida Agency for Health Care Administration,
    Defendant,
    MARY MAYHEW,
    in her official capacity as Secretary of the
    Florida Agency for Health Care Administration,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the Northern District of Florida
    (June 26, 2020)
    Before WILSON, BRANCH, and ANDERSON, Circuit Judges.
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    BRANCH, Circuit Judge:
    This appeal requires us to decide the enforceability of Florida’s statutory
    scheme through which it obtains reimbursement from third parties for Medicaid
    expenses it has paid to injured persons. Specifically at issue in this appeal is
    whether the Florida Agency for Health Care Administration (“FAHCA”), 1 when it
    has not consented to the settlement agreement in a personal injury lawsuit between
    the injured person and a third party, is limited to recovering the expenses it has
    paid only from amounts of a third-party recovery representing compensation for
    past medical expenses or whether it can also recover from those amounts that may
    be compensation for future medical expenses. 2 That determination turns on
    whether federal Medicaid law preempts the way Florida pursues reimbursement
    from Medicaid recipients’ personal injury settlements.
    The plaintiff in this suit sought declaratory and injunctive relief to prevent
    FAHCA from recovering beyond that portion of her settlement specifically
    designated by the settling parties as compensation for her past medical expenses.
    The district court granted summary judgment for the plaintiff, concluding that
    federal law preempts Florida’s statutory scheme for recovering Medicaid expenses.
    1
    The Florida Agency for Health Care Administration is the state agency responsible for
    the administration of Medicaid in Florida.
    2
    It is also worth noting what this appeal is not about – it is not about whether FAHCA
    can recover for medical expenses it has not yet paid to Appellee but may have to pay in the
    future.
    2
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    We conclude that federal law does not preempt these Florida policies, and we
    reverse the contrary decision of the district court.
    I.      BACKGROUND
    Gianinna Gallardo was grievously injured in 2008 when she was hit by a
    pickup truck after getting off her school bus. She remains in a persistent vegetative
    state. Florida’s Medicaid program3 paid $862,688.77 for her medical care. Her
    parents filed suit in state court on her behalf against the truck’s owner, the truck’s
    driver, and the school district. In 2015, the parties negotiated, and the state court
    approved, settlement of that suit for a total of $800,000, which Gallardo’s parents
    view as covering only a small fraction of the total damages she suffered and the
    future costs she will face for her care. 4 The settlement included an explicit
    allocation of $35,367.52 for past medical expenses. 5 It further stated that although
    some of the balance may represent compensation for future medical expenses
    3
    The Medicaid program allows states voluntarily to obtain funding from the federal
    government to provide health care benefits for needy persons. In return, the states must comply
    with federal laws and regulations in administering their Medicaid programs. See generally
    Harris v. McRae, 
    448 U.S. 297
    , 301 (1980).
    4
    Given the lifetime of care Gallardo is likely to require, her parents estimate the true
    value of her case at $20 million.
    5
    As explained by Gallardo in her complaint: “This allocation was based on the
    calculation of the ratio the settlements bore to the total monetary value of all [Gallardo’s]
    damages. Using the conservative valuation of all [Gallardo’s] damages of $20,000,000, it was
    calculated that [Gallardo] was receiving 4% of the total monetary value of all her damages in the
    settlements, and accordingly she was receiving in the settlements 4% of her $884,188.07 claim
    for past medical expenses, or $35,367.52.”
    3
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    Gallardo will incur in the future, no portion of the settlement is reimbursement for
    future medical expenses because Gallardo or others on her behalf have not yet paid
    any. 6 Importantly, FAHCA did not participate in or agree to the terms of the
    settlement.
    When Medicaid recipients receive a personal injury judgment or settlement
    compensating them for medical expenses, federal law requires that the Medicaid
    program be reimbursed out of those funds. See 42 U.S.C. §§ 1396a(a)(25)(H),
    1396k. Florida law acknowledges the requirement to seek reimbursement for
    medical payments it has made in its Medicaid Third-Party Liability Act:
    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. All other sources of payment for medical care are
    primary to medical assistance provided by Medicaid. 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, regardless of whether a
    recipient is made whole or other creditors paid. . . . 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.
    6
    As further stated by Gallardo in her complaint: “[T]he [settling] parties acknowledge
    that [Gallardo] may need future medical care related to her injuries, and some portion of this
    settlement may represent compensation for future medical expenses [Gallardo] will incur in the
    future. However, the parties acknowledge that [Gallardo], or others on her behalf, have not made
    payments in the past or in advance for [Gallardo’s] future medical care and [Gallardo] has not
    made a claim for reimbursement, repayment, restitution, indemnification, or to be made whole
    for payments made in the past or in advance for future medical care. Accordingly, no portion of
    this settlement represents reimbursement for future medical expenses.”
    4
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    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. E.M.A. ex rel. Johnson, 
    568 U.S. 627
    (2013), Florida law allows the Medicaid
    recipient to challenge this automatic allocation. A Florida Medicaid recipient who
    receives a personal injury settlement or judgment may challenge 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
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    state Division of Administrative Hearings.
    Id. § 409.910(17)(b).
    In that
    administrative proceeding, “the recipient must prove, by 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.”
    Id. In accordance
    with these procedures, while Gallardo’s personal injury suit
    was pending, FAHCA attached a lien for $862,688.77 on her cause of action and
    any future settlement thereof. When the suit settled for $800,000, Gallardo’s
    counsel asked the state how much it would accept in satisfaction of its lien, given
    that the settlement included only $35,367.52 specifically allocated by the parties
    for past medical expenses. When there was no response, Gallardo put $300,000
    into a trust account 7 and commenced an administrative action to challenge that
    amount. In the course of that action, FAHCA sought to recover more than the
    $35,367.52 specifically allocated by the parties for past medical expenses, arguing
    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
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    Gallardo sued the Secretary 8 of FAHCA in the district court under 42 U.S.C.
    § 1983,9 seeking a declaration that, under federal law, Florida is not entitled to
    reimbursement from anything more than the portion of the settlement representing
    compensation for past medical expenses. She represented that portion as being the
    parties’ unilateral allocation in the settlement to past medical expenses—that is, the
    cap on Florida’s reimbursement would be $35,367.52. The suit also sought a
    declaration that Florida’s administrative procedure for challenging the amount of
    the state’s claim violates federal law. 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. That office is now held by
    Mary Mayhew, who has been substituted as a party. Fed. R. App. P. 43(c)(2).
    9
    The Supreme Court has accepted (without discussion) that § 1983, which creates a
    private cause of action for the deprivation of federal rights, allows a Medicaid recipient to sue
    her state Medicaid agency to enforce the federal Medicaid anti-lien provision, 42 U.S.C.
    § 1396p(a)(1). See Wos v. E.M.A. ex rel. Johnson, 
    568 U.S. 627
    , 632 (2013).
    7
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    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.
    FAHCA now appeals.
    While this appeal was pending in our Court, the Florida Supreme Court
    ruled on an appeal from another Medicaid recipient’s administrative action to
    challenge the amount of the state’s claim on his tort settlement. The state court
    held that federal Medicaid law authorizes the state to obtain reimbursement out of
    personal injury settlements only from the portion of a settlement that represents
    past medical expenses. Giraldo v. Agency for Health Care Admin., 
    248 So. 3d 53
    ,
    56 (Fla. 2018). When that decision became final, Gallardo moved our Court to
    dismiss this appeal because the question of future medical expenses was now moot.
    We will consider and rule upon that motion in this opinion.
    II.    STANDARD OF REVIEW
    “We review the grant of summary judgment de novo, drawing all inferences
    and reviewing all the evidence in the light most favorable to the non-moving
    party.” Fresenius Med. Care Holdings, Inc. v. Tucker, 
    704 F.3d 935
    , 939 (11th
    Cir. 2013).
    III.   DISCUSSION
    FAHCA argues that it was entitled to summary judgment because federal
    law does not preempt its practices of (1) seeking reimbursement for the medical
    8
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    expenses it has paid from the portion of a third-party settlement to which FAHCA
    did not consent that represents all medical care—both past and future expenses,
    and (2) allocating tort settlements through a formula and an administrative
    challenge procedure. Each of these issues is a question of first impression in this
    Court, and we consider them in turn. But first, we discuss the legal doctrine of
    conflict preemption, which the district court invoked to invalidate both policies.
    A.     Conflict Preemption
    Because federal laws are “the supreme Law of the Land . . . any Thing in the
    Constitution or Laws of any State to the Contrary notwithstanding,” U.S. Const.
    art. VI, cl. 2, “state law that conflicts with federal law is ‘without effect.’”
    Cipollone v. Liggett Group, Inc., 
    505 U.S. 504
    , 516 (1992) (quoting Maryland v.
    Louisiana, 
    451 U.S. 725
    , 746 (1981)). 10 The Supreme Court has identified two
    presumptions to assist us in determining whether a state law is preempted by
    implication in this way. Medtronic, Inc. v. Lohr, 
    518 U.S. 470
    , 485 (1996).11
    First, we presume “that Congress does not cavalierly pre-empt state-law causes of
    10
    Two other types of federal preemption of state law—express preemption and field
    preemption—are not at issue here. See generally 
    Cipollone, 505 U.S. at 516
    (discussing the
    three types of preemption). The Medicaid statutes contain no statement of express preemption
    and no evidence that Congress intended to occupy the entire field of single-payer health care. To
    the contrary, Medicaid is by design a “cooperative” federal–state venture. See Ark. Dep’t of
    Health & Human Servs. v. Ahlborn, 
    547 U.S. 268
    , 275 (2006).
    11
    Although Lohr was an express-preemption case, we have been guided by its two
    “cornerstones” of preemption jurisprudence in conflict-preemption cases. See, e.g., Ga. Latino
    Alliance for Human Rights v. Governor of Ga., 
    691 F.3d 1250
    , 1263 (11th Cir. 2012).
    9
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    action.”
    Id. Therefore, “we
    start with the assumption that the historic police
    powers of the States were not to be superseded by the Federal Act unless that was
    the clear and manifest purpose of Congress.”
    Id. (quoting Rice
    v. Santa Fe
    Elevator Corp., 
    331 U.S. 218
    , 230 (1947)). Two such police powers at issue here
    are the states’ traditional authority “to protect the health and safety of their
    citizens” and “to provide tort remedies to [their] citizens”—matters of primarily
    local concern.
    Id. at 475;
    Silkwood v. Kerr-McGee Corp., 
    464 U.S. 238
    , 248
    (1984). Second, “the purpose of Congress is the ultimate touchstone in every pre-
    emption case.” 
    Lohr, 518 U.S. at 485
    . Therefore, we look primarily to the
    language of the federal statute and the “statutory framework surrounding it” to
    determine whether Congress intended to preempt state law.
    Id. at 486.
    Together these two principles mean that, in light of the role of the states as
    “independent sovereigns in our federal system,”
    id. at 485,
    when the text of a
    statute “is susceptible of more than one plausible reading, courts ordinarily ‘accept
    the reading that disfavors pre-emption.’” Altria Group, Inc. v. Good, 
    555 U.S. 70
    ,
    77 (2008) (quoting Bates v. Dow Agrosciences LLC, 
    544 U.S. 431
    , 449 (2005)).
    Further counseling caution in this context is the fact that the Medicaid Act is
    Spending Clause legislation. See U.S. Const. art. I, § 8, cl. 1. Because Congress’s
    power to impose obligations upon the states under that clause “rests on whether the
    State voluntarily and knowingly accepts the terms” under which federal funding is
    10
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    offered, Pennhurst State Sch. & Hosp. v. Halderman, 
    451 U.S. 1
    , 17 (1981), “such
    legislation is binding on States only insofar as it is ‘unambiguous.’” Wos, 
    568 U.S. 654
    (Roberts, C.J., dissenting) (quoting 
    Pennhurst, 451 U.S. at 17
    ). “Where
    coordinate state and federal efforts exist within a complementary administrative
    framework, and in the pursuit of common purposes, the case for federal pre-
    emption becomes a less persuasive one.” N.Y. Dep’t of Soc. Servs. v. Dublino, 
    413 U.S. 405
    , 421 (1973).
    For each of the preemption issues raised in this litigation, then, we will
    examine the text of the federal statutes and determine whether they evince a “clear
    and manifest purpose” to preempt aspects of Florida’s traditional authority over the
    health of its citizens and its tort law. If they do not, or if Florida law does not
    “directly conflict” with federal law, 
    Wos, 568 U.S. at 636
    (quoting PLIVA, Inc. v.
    Mensing, 
    564 U.S. 604
    , 617 (2011)), the state law will stand.
    B.      Reimbursement From Portions of Settlement that Represent All
    Medical Care – Past and Future
    The district court first concluded that, to the extent Florida law authorizes
    FAHCA to pursue reimbursement from anything other than those amounts of a
    third-party recovery representing compensation for past medical expenses, federal
    law preempts it. For the reasons that follow, and in light of the “presumption
    against preemption,” Wyeth v. Levine, 
    555 U.S. 555
    , 565 n.3 (2009), we disagree.
    I.     The Parties’ Unilateral Allocation Does Not Bind FAHCA
    11
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    Preliminarily, to the extent Gallardo argues FAHCA’s recovery is limited to
    the amount unilaterally allocated by the parties in the settlement as “past medical
    expenses”—$35,367.52—her argument has no merit. The parties’ unilateral
    allocation has no bearing on FAHCA’s power to seek reimbursement for medical
    expenses it paid and FAHCA is not bound by the parties’ unilateral decision. The
    Supreme Court worried about just this type of situation: “The [Ahlborn] Court
    nonetheless anticipated the concern that some settlements would not include an
    itemized allocation. It also recognized the possibility that Medicaid beneficiaries
    and tortfeasors might collaborate to allocate an artificially low portion of a
    settlement to medical expenses.” 
    Wos, 568 U.S. at 634
    (citing 
    Ahlborn, 547 U.S. at 288
    ). Finding otherwise would lead to incomprehensible results: for example,
    here, the parties unilaterally allocated $35,367.52 of the settlement amount as “past
    medical expenses,” but what if the parties had decided to unilaterally allocate only
    $20,000, would FAHCA’s reimbursement be limited to only $20,000? Or, put
    another way, what if Gallardo’s parents estimated the true value of her claim at
    $40,000,000—making the explicit allocation in the settlement for past medical
    expenses half of what it is now, $17,683.76—would FAHCA’s reimbursement be
    limited to that amount? According to Gallardo, in both scenarios, FAHCA’s
    reimbursement would be limited by the parties’ unilateral allocation and
    determination. But that cannot be true. Parties’ unilateral allocations as to what
    12
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    constitutes “past medical expenses” do not, and should not, bind FAHCA.
    FAHCA is permitted to seek reimbursement from parts of the settlement money
    that represent medical care—including those that the parties have designated as
    “future medical care.”
    Therefore, when the parties do not seek FAHCA input on the settlement
    allocation for medical expenses on the front end, FAHCA has its statutory
    allocation formula on the back end to determine how much of the settlement
    should be allocated to medical expenses. 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.    Federal Medicaid Law Does Not Preempt FAHCA’s Practice of Seeking
    Reimbursement from Portions of a Settlement that Represent All Medical
    Expenses
    To address the question of whether FAHCA can seek reimbursement of
    medical expenses it paid from those portions of the parties’ settlement that
    represent all medical expenses—past and future—we turn to the text of the federal
    Medicaid statutes to determine if they conflict with (and thus preempt) the Florida
    statute. Because the text of the federal Medicaid statutes only prohibit a State from
    13
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    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 . . . on account of medical assistance paid” to that
    beneficiary. 42 U.S.C. § 1396p(a)(1) (“anti-lien provision”). An exception to the
    anti-lien provision is the provision (42 U.S.C. § 1396a(a)(25)) which requires state
    Medicaid agencies to pursue reimbursement from liable third parties “to the extent
    of such legal liability”—the entire amount Medicaid paid on behalf of the
    individual. 12 To aid the States’ reimbursement requirement, the Medicaid Act
    provides an assignment provision (42 U.S.C. § 1396k) which mandates that states
    require Medicaid recipients to assign their rights to payments for medical care
    12
    A State plan for medical assistance must “take all reasonable measures to ascertain the
    legal liability of third parties” and “that in any case where such legal liability is found to exist
    after medical assistance has been made available on behalf of the individual . . . the State or
    local agency will seek reimbursement for such assistance to the extent of such legal liability.” 42
    U.S.C. §§ 1396a(a)(25)(A, B). The State must have in effect laws providing for such
    reimbursement rights. 42 U.S.C. § 1396(a)(25)(H).
    14
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    from any third party.13 This assignment for the beneficiary’s right to payments for
    medical care sets a “ceiling” on the State’s potential share of a recovery. 
    Wos, 568 U.S. at 633
    . To be sure, the federal statutes are clear that third-party
    reimbursement is required—indeed, permitted—only for medical expenses, and
    not for other damages that may be covered by a tort settlement, such as lost wages
    or pain and suffering. Ark. Dep’t of Health & Human Servs. v. Ahlborn, 
    547 U.S. 268
    , 284–85 (2006). To hold otherwise would be, in the words of Ahlborn,
    “absurd and fundamentally unjust.”
    Id. at 288
    n. 19. And neither party suggests
    that the Florida statute would permit FAHCA to recover from the settlement
    anything other than the portion that represents medical expenses.
    But what restrictions, if any, do the federal statutes impose on a state agency
    seeking reimbursement for amounts it has paid from settlement monies allocated to
    medical expenses? After all, as noted above, the assignment provision in section
    1396k(a)(1)(A) broadly requires States to provide that Medicaid recipients must
    assign to the state “any” of their rights to “payment for medical care from any third
    party” as a condition of their acceptance of benefits. And that provision applies
    before a recipient receives a single dollar’s worth of medical care through
    13
    A State plan for medical assistance must provide that “as a condition of eligibility for
    medical assistance” from Medicaid, an individual “is required . . . . to assign any rights . . . . to
    payment for medical care from any third party.” 42 U.S.C. § 1396k(a)(1)(A).
    15
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    Medicaid. In contrast to the broad assignment provision set forth in section 1396k,
    the language of 42 U.S.C. § 1396a(a)(25)(H) requires states to enact third-party
    liability laws under which “the State is considered to have acquired the rights . . .
    to payment by any other party,” “to the extent that payment has been made under
    the State plan for medical assistance for health care items or services furnished.”
    42 U.S.C. § 1396a(a)(25)(H) (emphasis added). 14 This past-tense language,
    Gallardo and the district court say, clearly shows that only reimbursement from
    portions of a settlement allocated to past expenses is permitted. The dissent also
    embraces this argument. But the plain language of this provision (or any other
    provision of the Medicaid statutes, for that matter) clearly contains no such
    limitation. While section 1396a(a)(25)(H) is narrower than the assignment
    provision in describing the subrogation rights a state acquires when “payment has
    been made,” it simply provides for what the state can get reimbursed now that it
    has a general assignment on all medical expenses—it can recover medical
    14
    The dissent dubs 42 U.S.C. § 1396a(a)(25)(H) as the “specific assignment provision.”
    But, unlike the assignment provision (42 U.S.C. § 1396k(a)(1)(A))—a subsection in section
    1396k titled “Assignment, enforcement, and collection of rights of payments for medical care;
    establishment of procedures pursuant to State plan; amounts retained by State,”
    id. which mandates
    a State require assignment from a liable third party for the medical expenses paid by
    the state—42 U.S.C. § 1396a(a)(25)(H) is a subsection in section 1396a which focuses on what
    “[a] State plan for medical assistance must--provide,” 42 U.S.C. § 1396a(a)(25)(H), not what a
    State must require an individual to assign. And while the dissent does accurately quote the
    language of 42 U.S.C. § 1396a(a)(25)(H) initially, it later says “the state gets the right to only
    third party payments made for past medical care.” However, this language is what the dissent
    concludes the statute means, not what the statute actually provides.
    16
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    expenses it has already paid. 15 Gallardo, the district court, and the dissent,
    however, all make the same leap-in-logic mistake here and assert that because the
    agency is limited to recovering monies it paid in the past, it necessarily is limited
    to recovering these monies from what represents compensation in the settlement
    for “past medical expenses.” But while the language of the federal Medicaid
    statutes clearly prohibits FAHCA from seeking reimbursement for future expenses
    it has not yet paid (which it is not seeking to do in this case), the language does not
    in any way prohibit the agency from seeking reimbursement from settlement
    monies for medical care allocated to future care.16 To take an example offered by
    15
    Congress, in enacting § 1396a(a)(25)(H) sixteen years after it enacted §
    1396k(a)(1)(A), did not contradict or restrict § 1396k(a)(1)(A); rather it added to the exceptions
    to the anti-lien provision by adding a specific assignment permission for when payment has been
    made. Accordingly, the dissent’s citation to the general/specific canon is inapposite here
    because the statutes can be harmonized in pari materia. See Antonin Scalia & Bryan A. Garner,
    Reading Law: The Interpretation of Legal Texts 183-85, 252 (2012), noting that the
    general/specific canon is in effect only when a specific provision contradicts a general
    provision—i.e., a general prohibition that is contradicted by a specific permission; but when they
    can exist in harmony as laws dealing with the same subject they should be read as such—a
    general permission followed by a more specific permission.
    16
    The very existence of this dispute about the federal statutory text answers the
    preemption question. Federal law must evince a “clear and manifest purpose” to supersede the
    states’ traditional powers over health care and tort law. What is evident here is at most
    ambiguity, and when it comes to preemption, mere ambiguity is not enough. We conclude,
    therefore, that in the absence of a clearly expressed intent to preempt state law in this area,
    Florida’s policy must be allowed to stand.
    The dissent argues that the question is not, in fact, close, because “most of the country”
    believes this question is not a close one and “most courts have held that the Medicaid Act clearly
    preempts state law” in cases like this one. That charge, on its face, seems persuasive. But what
    does the dissent mean by “most courts”? Not what one might think—just one circuit court, two
    district courts, and a handful of state courts of appeal and state supreme courts. These cases
    hardly suggest that this issue is settled. And looking at the one decision rendered by our sister
    circuit, we find that it is not. In E.M.A. ex rel. Plyer v. Cansler, 
    674 F.3d 290
    , 312 (4th Circuit.
    17
    Case: 17-13693        Date Filed: 06/26/2020       Page: 18 of 61
    the dissent, the fruit stand analogy, one step further: (1) imagine you sold $10
    worth of apples, $10 worth of oranges and $10 worth of cucumbers for a total of
    $30; (2) you owed your town $15 for a license it granted you to pick apples in the
    town’s orchards; and (3) your town passed a law stating that, until the license fee is
    paid in full, it gets the rights “to payment by any other party” for fruits. The text of
    the law, permitting reimbursement for the apple license from payments by any
    other party for “fruits” would allow the town to take $15 from payments made for
    “fruits”—apples and oranges—and is not limited to the $10 of apples sold. If,
    however, you sold only $5 worth of apples, $5 worth of oranges, and $20 worth of
    cucumbers, the town would be limited to the $10 paid for fruits and could not take
    the remaining $5 from the payments made for cucumbers. Similarly, here,
    according to the plain text of the Medicaid statutes, the State is allowed to seek
    reimbursement for payments it made for medical care under section
    1396a(a)(25)(H) (apple picking license) from settlement monies allocated to all
    medical care per section 1396k(a)(1)(A) (fruits) and the only limitation on its
    recovery is that it cannot seek reimbursement from settlement amounts allocated to
    2012), aff’d sub nom. on other grounds Wos v E.M.A. ex rel. Johnson, 
    568 U.S. 627
    (2013)—
    notably, this is the case underlying the Supreme Court case we have discussed extensively
    herein—the dissent points to language in the opinion where the Fourth Circuit was simply
    summarizing (perhaps a little loosely) the holding in Ahlborn. The Fourth Circuit did not
    actually render a decision on the issue involved in this case. And while the dissent acknowledges
    that two district courts and one state supreme court have agreed with the majority, it dismisses
    them, characterizing them as “[a] fleeting few.” In any event, this issue is hardly a settled one.
    18
    Case: 17-13693        Date Filed: 06/26/2020       Page: 19 of 61
    categories other than medical care under section 1396p(a)(1) and (b)(1)
    (cucumbers).
    Nor has the Supreme Court held otherwise, despite the dissent’s suggestion
    to the contrary. In Ahlborn, the Supreme Court examined some of the Medicaid
    provisions we cite today. In that case, the Court differentiated between
    reimbursement from the portion of a settlement that represents medical expenses
    and all other parts of a settlement which the State cannot reach under the anti-lien
    provision. In interpreting § 1396k(a)(1)(A)’s text—requiring recipients to assign
    “any rights . . . . to payment for medical care from any third party”— the Supreme
    Court stated that a State may obtain only an assignment of right to third-party
    payments for “medical expenses—not lost wages, not pain and suffering, not an
    inheritance.” 
    Ahlborn, 547 U.S. at 281
    . And although Ahlborn did not resolve
    how to determine what portion of a settlement represents medical care, see 
    Wos, 568 U.S. at 634
    , the Supreme Court repeatedly made clear that the State’s
    assignment and reimbursement was from the portion of a settlement that
    represented “medical expenses” and “medical care” and did not limit it solely to
    “past” medical expenses.17 The dissent ignores that nuance, arguing that
    17
    See 
    Ahlborn, 547 U.S. at 275
    (“The Eighth Circuit reversed. It held that ADHS was
    entitled only to that portion of the judgment that represented payments for medical care. For the
    reasons that follow, we affirm.”);
    id. at 280
    (“We must decide whether ADHS can lay claim to
    more than the portion of Ahlborn’s settlement that represents medical expenses. The text of the
    federal third-party liability provisions suggests not; it focuses on recovery of payments for
    medical care.” (footnote omitted));
    id. at 281
    (“Again, the statute does not sanction an
    19
    Case: 17-13693        Date Filed: 06/26/2020       Page: 20 of 61
    “[a]lthough the Supreme Court didn’t feel the need to spell it out, the logical and
    necessary extension of this rule is that the state can recover only from payments
    marked for past medical care.” 18 Putting aside the dissent’s willingness to read
    into a Supreme Court case a holding (and add an extra word—“past”) the Court did
    not reach, the statute itself supports no such reading, as noted above.
    And the dissent ignores a crucial premise underlying Ahlborn. In settling the
    case, the parties did not allocate categories of damages and the State did not
    participate in the settlement; however, to facilitate the district court’s decision, the
    State at trial stipulated to an amount in the settlement agreement attributable to
    “medical payments made.” 
    Ahlborn, 547 U.S. at 274
    . This amount was much less
    than the past medical expenses, so the district court never had to reach the issue of
    the state’s entitlement to amounts in the settlement agreement attributable to future
    medical expenses. The stipulation there put a cap on the amount recoverable by the
    State even if the amount in the settlement allocated for past medical expenses
    assignment of rights to payment for anything other than medical expenses—not lost wages, not
    pain and suffering, not an inheritance.”);
    id. at 282
    (“[U]nder the federal statute the State’s
    assigned rights extend only to recovery of payments for medical care. Accordingly, what §
    1396k(b) requires is that the State be paid first out of any damages representing payments for
    medical care before the recipient can recover any of her own costs for medical care.”);
    id. at 284
    (“There is no question that the State can require an assignment of the right . . . to receive
    payments for medical care. . . . [T]he exception carved out by §§ 1396a(a)(25) and 1396k(a) is
    limited to payments for medical care. Beyond that, the anti-lien provision applies.”).
    18
    The dissent also says “[b]ut even if the actual letter of Ahlborn doesn’t command
    preemption . . . Ahlborn’s logic necessarily compels it” and “the Court never used the term “past
    medical care” (even though that’s clearly what it meant…).”
    20
    Case: 17-13693       Date Filed: 06/26/2020       Page: 21 of 61
    exceeded the stipulation. See 
    Ahlborn, 547 U.S. at 284
    n. 13. Here, however,
    FAHCA never agreed to the amount attributable in the settlement agreement to
    past or future medical expenses. 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 . . . statute,” 
    Lohr, 518 U.S. 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 decision of the Florida Supreme Court in
    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. Even if a higher amount than
    $300,000 in the settlement represents compensation for medical care, FAHCA is limited to
    reimbursement only from the $300,000 allocated by the formula.
    21
    Case: 17-13693     Date Filed: 06/26/2020    Page: 22 of 61
    settlement to past medical expenses. See 
    Giraldo, 248 So. 3d at 56
    (interpreting
    only 42 U.S.C. § 1396a(a)(25)(H)). But first, as both parties acknowledge, this
    issue is a question of federal law, and this federal Court is not bound by a state
    court’s interpretations of federal law. Venn v. St. Paul Fire & Marine Ins. Co., 
    99 F.3d 1058
    , 1064 (11th Cir. 1996). And second, the court in Giraldo while citing
    Ahlborn, makes the same mistake in logic about section 1396a(a)(25)(H) that the
    district court and the dissent make here. Thus, whatever effect Giraldo may have
    upon any other case, Giraldo does not bar us from granting the relief that Florida
    seeks in the present case, as Gallardo has conceded. Oral Arg. at 36:52. “A case is
    moot when it no longer presents a live controversy with respect to which the court
    can give meaningful relief.” Ethredge v. Hail, 
    996 F.2d 1173
    , 1175 (11th Cir.
    1993). Because we can give meaningful relief, this case is not moot. Accordingly,
    Gallardo’s motion to dismiss this appeal must be denied.
    22
    Case: 17-13693      Date Filed: 06/26/2020   Page: 23 of 61
    C.     Statutory Formula and Challenge Procedure
    The district court also concluded that federal law preempts Florida’s method
    of allocating the share of a personal injury settlement from which it is entitled to
    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). For the reasons that follow, and again in light of the
    presumption against preemption, we disagree.
    The district court relied on the Supreme Court’s 2013 decision in Wos, in
    which the Court held that the federal Medicaid anti-lien provision, 42 U.S.C.
    § 1396p(a)(1), preempted North Carolina’s third-party reimbursement scheme,
    which automatically allocated one-third of any recipient’s tort settlement as
    reimbursement for medical expenses. 
    Wos, 568 U.S. at 636
    . In Wos, the Supreme
    Court explained that North Carolina’s statutory scheme conflicted with federal law
    by “set[ting] forth no process” for determining what portion was actually for
    medical expenses, where the state did not show that the one-third allocation was
    “reasonable in the mine run of cases.”
    Id. at 636,
    637. The district court in this
    case found that Florida’s scheme also suffered from these flaws. It concluded that,
    although Florida provides a process for challenging Florida’s claim, the formula’s
    allocation “is nearly impossible to rebut” and that “requiring a Medicaid recipient
    23
    Case: 17-13693     Date Filed: 06/26/2020    Page: 24 of 61
    to overcome a hodgepodge of hurdles amounts to a quasi-irrebuttable
    presumption.”
    Our preemption analysis on this issue begins with the “ultimate touchstone,”
    “the purpose of Congress” which “primarily is discerned from the language of the .
    . . statute.” 
    Lohr, 518 U.S. at 485
    . On this point we are bound by the Supreme
    Court’s statement in Wos: “The Medicaid anti-lien provision 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
    ). Thus, “[a]n irrebuttable, one-size-fits-all statutory
    presumption is incompatible with the Medicaid Act’s clear mandate” because “[i]n
    some circumstances . . . the statute would permit the State to take a portion of a
    Medicaid beneficiary’s tort judgment or settlement not ‘designated as payments for
    medical care.’”
    Id. at 639,
    644.
    In light of the clear mandate against an “irrebuttable, one-size-fits-all”
    presumption, we next ask whether Florida’s scheme directly conflicts with it.
    “State law is pre-empted ‘to the extent of any conflict with a federal statute,’”
    Hillman v. Maretta, 
    569 U.S. 483
    , 490 (2013) (quoting Crosby v. Nat’l Foreign
    Trade Council, 
    530 U.S. 363
    , 372 (2000)), but no further. We find that the Florida
    scheme differs significantly from the North Carolina scheme that the Wos Court
    24
    Case: 17-13693    Date Filed: 06/26/2020     Page: 25 of 61
    found was preempted, and we conclude that it does not directly conflict with
    federal law.
    Unlike North Carolina, which imposed an irrebuttable formulaic allocation,
    Florida “provide[s] a mechanism for determining whether” its formulaic allocation
    is a reasonable approximation of a recipient’s medical expenses. See 
    Wos, 568 U.S. at 637
    . Under the Florida Medicaid Third-Party Liability Act,
    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) by filing a petition . . . with the
    Division of Administrative Hearings. . . . In order to successfully
    challenge the amount designated as recovered medical expenses, the
    recipient must prove, by 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 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. “Clear and convincing evidence” is not an “impossible”
    evidentiary standard. It is a familiar and widely used standard of proof in Florida
    civil proceedings, requiring evidence “of such weight that it produces in the mind
    of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of
    the allegations sought to be established.” S. Fla. Water Mgmt. Dist. v. RLI Live
    Oak, LLC, 
    139 So. 3d 869
    , 872–73 (Fla. 2014) (listing types of cases where this
    25
    Case: 17-13693     Date Filed: 06/26/2020   Page: 26 of 61
    standard applies). Most importantly for purposes of our preemption analysis,
    nothing about this standard of proof stands in clear conflict with federal law under
    Wos.
    Our conclusion that Florida’s statutory formula is not preempted by federal
    law finds support in the Supreme Court’s extensive dicta in Wos about what North
    Carolina could have done differently to avoid a conflict with federal law. See 
    Wos, 568 U.S. at 641
    –43. The Court opined that “a judicial or administrative
    proceeding” could be an appropriate way to allocate a settlement.
    Id. at 638–39.
    Noting that “States have considerable latitude to design administrative and judicial
    procedures to ensure a prompt and fair allocation of damages,” the Court favorably
    pointed out several states’ specific procedures, all involving “rebuttable
    presumptions and adjusted burdens of proof.”
    Id. at 641.
    Oklahoma’s procedure,
    which it labeled “more accurate” than North Carolina’s, is similar to Florida’s: it
    uses a formula that allocates 100 percent of a settlement after attorney’s fees, and
    then allows the recipient to rebut that allocation by clear and convincing evidence.
    See
    id. (citing Okla.
    Stat. tit. 63 § 5051.1(D)(1)(d)).
    Because we find that Florida’s approach to threading the needle of federal
    third-party reimbursement requirements does not directly conflict with them, we
    conclude that it is not preempted.
    IV.   CONCLUSION
    26
    Case: 17-13693   Date Filed: 06/26/2020   Page: 27 of 61
    Gallardo’s motion to dismiss this appeal as moot is DENIED. The judgment
    of the district court is REVERSED and REMANDED.
    27
    Case: 17-13693        Date Filed: 06/26/2020      Page: 28 of 61
    WILSON, Circuit Judge, concurring in part and dissenting in part:
    Today this court tells Florida that it can pocket funds marked for things it
    never paid for. 1 The court does so even though the Medicaid Act says differently,
    the United States Supreme Court says differently, and most other courts say
    differently. Although I agree with the majority that federal law does not preempt
    Florida’s allocation process (though I use a slightly different analysis, as I explain
    in Part II), I disagree with its view that federal law does not preempt Florida’s self-
    proclaimed right to third-party payments for future medical care. On this larger
    issue, I must dissent.
    I.
    There’s no need to repeat the majority’s rundown of the dizzying Medicaid
    Act. But as the Act is a labyrinth, a quick glossary might help. There are five
    provisions to remember. Two are general rules; three are exceptions.
    First is the anti-lien provision. This section says that 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 [s]tate plan [with
    exceptions not relevant here].” 42 U.S.C. § 1396p(a)(1).
    1
    The majority calls the defendant “FAHCA” throughout its opinion. Since FAHCA is
    conducting business for the state, and since the Medicaid Act speaks in terms of what a state
    must do to comply with the Act, I will refer to FAHCA as “Florida” or “the state” for simplicity.
    28
    Case: 17-13693      Date Filed: 06/26/2020     Page: 29 of 61
    Second, the anti-recovery provision. It says that no “adjustment or recovery
    of any medical assistance correctly paid on behalf of an individual under the [s]tate
    plan may be made [also with exceptions not relevant here].”
    Id. § 1396p(b)(1).
    These provisions are the general rules. Read “literally and in isolation,” they stop
    states from picking at a Medicaid recipient’s tort recovery. See Ark. Dep’t of
    Health & Human Servs. v. Ahlborn, 
    547 U.S. 268
    , 284 & n.13 (2006).
    That brings us to the exceptions, and the third provision to remember: the
    third-party-liability provision. This section tells the state to first “take all
    reasonable measures to ascertain the legal liability of third parties . . . to pay for
    care and services available under the plan.” 42 U.S.C. § 1396a(a)(25)(A). If the
    state finds “after medical assistance has been made available on behalf of the
    [recipient]” that a third party is liable for the recipient’s injuries, the state must
    “seek reimbursement for such assistance to the extent of such legal liability.”
    Id. § 1396a(a)(25)(B).
    Fourth up is the general assignment provision.
    Id. § 1396k(a)–(b).
    This
    provision generally entitles the state to the recipient’s right to “payment for
    medical care from any third party.”
    Id. § 1396k(a)(1)(A).
    It then notes that the
    state can keep those payments “as is necessary to reimburse it for medical
    assistance payments made on behalf of an individual with respect to whom such
    29
    Case: 17-13693        Date Filed: 06/26/2020       Page: 30 of 61
    assignment was executed . . . and the remainder of such amount collected shall be
    paid to such individual.”
    Id. § 1396k(b).
    The last exception—the crux of this appeal—is the specific assignment
    provision. It applies “to the extent that payment has been made under the [s]tate
    plan for medical assistance in any case where a third party has a legal liability to
    make payment for such assistance.”
    Id. § 1396a(a)(25)(H).
    In that event, the state
    must have in effect laws that, “to the extent that payment has been made under the
    [s]tate plan for medical assistance for health care items or services furnished to an
    individual,” give the state the right to recover third-party payments “for such health
    care items or services.”
    Id. 2 These
    provisions, taken together, set up the state recovery scheme. The
    general rules protect a Medicaid recipient’s recovery from the state; the exceptions
    list the few times when the state can claw into a recipient’s coffers. But this point
    bears repeating: Without an exception, the general rules barring state recovery
    apply. See 
    Ahlborn, 547 U.S. at 284
    –85. The state can recover only what the
    exceptions say it can recover. See
    id. 2 The
    majority uses different names for the last two provisions. It calls the general assignment
    provision the “assignment provision” and references the specific assignment provision only by
    its statutory code. Given how important these provisions are here, I respectfully diverge from
    the majority’s framing and will use distinct labels for clarity. And despite the majority’s
    suggestion in footnote 14 (and as we will discuss more below), the specific assignment provision
    does focus on “what a State must require an individual to assign”—it tells the state that it must
    have laws assigning to it the recipient’s right to payment for past medical care. So this label is
    accurate and will help us make sense of the Medicaid Act.
    30
    Case: 17-13693       Date Filed: 06/26/2020        Page: 31 of 61
    In Ahlborn, the Supreme Court clarified the narrow reach of the exceptions.
    It held that the exceptions entitle the state to only the part of a Medicaid recipient’s
    recovery that represents payment for “medical care.”
    Id. at 282.
    That makes
    sense—under the Medicaid program, the state pays for only a recipient’s medical
    care, and so the state can recover from only the part of a recipient’s recovery that
    represents payment for medical care. The question here is whether the state can
    reach the part of a recipient’s recovery that represents payment not for past medical
    care, but for future medical care—care that the state has never paid for.
    The answer is no. Under the Medicaid Act, the state can reimburse itself only from
    the amount of the recovery that represents payment for past medical care. Federal
    law preempts state law to the contrary. See PLIVA, Inc. v. Mensing, 
    564 U.S. 604
    ,
    617 (2011) (“Where state and federal law directly conflict, state law must give
    way.”).
    Despite the majority’s efforts, the question is not close. The statute’s plain
    text demands this result. As the United States Supreme Court and most other
    courts have recognized. 3
    3
    Before we go on, let’s briefly discuss what this dissent is not about. The majority starts its
    analysis by rejecting a bad argument—that the state is limited to the part of the settlement that
    the recipient and the tortfeasor unilaterally allocated as payment for past medical care. See
    Majority Op. at 12–13. The majority and I agree on this point. As I explain in Part II, the
    Supreme Court has made clear that the recipient cannot unilaterally allocate away the state’s
    interest in the part of her recovery that represents payment for past medical care. See infra at
    53–61. To protect against abusive unilateral allocations, the Court has armed the state with
    powerful tools to determine what part of a recovery represents payment for past medical care:
    31
    Case: 17-13693       Date Filed: 06/26/2020        Page: 32 of 61
    A.
    The gist of the majority’s holding is that its hands are tied: Because the
    exceptions do not clearly limit the state to the part of the recovery that represents
    payment for past medical care, respect for state law precludes conflict preemption.
    The problem for the majority is that the exceptions do clearly limit the state to the
    part of the recovery that represents payment for past medical care. In fact, they’re
    riddled with references to the past.
    Consider the specific assignment provision. It declares that when a state
    acquires a recipient’s right to third-party payment, the state acquires only the right
    to payment for the recipient’s past medical care—the only care for which the state
    has paid:
    [T]o the extent that payment has been made under the [s]tate plan for
    medical assistance in any case where a third party has a legal liability
    to make payment for such assistance, the [s]tate has in effect laws
    under which, to the extent that payment has been made under the
    [s]tate plan for medical assistance for health care items or services
    furnished to an individual, the [s]tate is considered to have acquired
    the rights of such individual to payment by any other party for such
    health care items or services . . . .
    42 U.S.C. § 1396a(a)(25)(H) (emphasis added).
    judicial determinations, presumptive allocations, and administrative hearings. See
    id. at 53–57.
    The majority and I diverge on a different point: Whether, after the state figures out what part of
    the recovery represents payment for past medical care, it can then take from the part of the
    recovery that represents payment for future medical care. That is what this dissent is about.
    32
    Case: 17-13693     Date Filed: 06/26/2020    Page: 33 of 61
    The paragraph starts with the headline “to the extent that payment has been
    made.”
    Id. (emphasis added).
    Then, to eliminate any doubt, it repeats itself: “[T]o
    the extent that payment has been made under the [s]tate plan for medical assistance
    for health care items or services furnished to an individual,” the state gets the right
    to third-party payments for “such health care items or services.”
    Id. (emphasis added).
    This latter phrase naturally refers to the only health care items or services
    that have been “furnished” to the recipient—past medical care. See, e.g., Latham
    v. Office of Recovery Servs., 
    2019 UT 51
    , ¶ 32 (Utah 2019), cert. denied, Office of
    Recovery Servs. v. Latham, 
    140 S. Ct. 852
    (2020).
    So this exception, in no uncertain terms, says that the state gets only the
    right to third-party payments made for the recipient’s past medical care—the only
    care for which the state has paid. In the settlement context, the “payments made
    for the recipient’s past medical care” are, as all agree, the parts of the settlement
    that represent payment for past medical care. The specific assignment provision
    thus limits the state to that part of the recovery. And the legislative history
    confirms that this is the right reading. See H.R. Rep. No. 103-111, 210 (1993)
    (“The Committee bill provides that, in any case where a third party has a legal
    liability to make payment for services provided to a Medicaid beneficiary, a State
    is subrogated to the right of any other party to payment for such services to the
    extent that payment has been made by the Medicaid program.” (emphasis added)).
    33
    Case: 17-13693     Date Filed: 06/26/2020    Page: 34 of 61
    B.
    Rather than tackle this seemingly clear directive, the majority claims that the
    very existence of a contrary interpretation creates ambiguity, barring conflict
    preemption. But that’s true only if the contrary reading is reasonable. See
    Houghton v. Payne, 
    194 U.S. 88
    , 99 (1904) (holding that a statute is ambiguous
    when it is “susceptible of two reasonable interpretations”); Freemanville Water
    Sys., Inc. v. Poarch Band of Creek Indians, 
    563 F.3d 1205
    , 1210 (11th Cir. 2009)
    (noting that the “very definition of ambiguity” is the existence of “two reasonable,
    competing interpretations” (emphasis added)). The majority’s reading is not.
    Aside from a claim that the specific assignment provision does not textually
    distinguish between past and future medical care (which, as explained before, it
    does), the majority hangs its hat on the general assignment provision. This
    provision, unlike the specific assignment provision, does not refer to the past. It
    mentions only that a recipient assigns to the state the recipient’s right to “payment
    for medical care from any third party.” 42 U.S.C. § 1396k(a)(1)(A). Put another
    way, the general assignment provision says that the state gets the recipient’s right
    to third-party payments for all medical care, past and future.
    Yet a simple rule settles these inconsistencies: The more specific provision
    controls. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation
    of Legal Texts 183 (2012) (noting that when “there is a conflict between a general
    34
    Case: 17-13693     Date Filed: 06/26/2020    Page: 35 of 61
    provision and a specific provision, the specific provision prevails”). To be sure,
    the general assignment provision describes the state’s right to third-party payments
    for medical care generally. But the specific assignment provision describes what
    happens when the state seeks to recover third-party payments for medical care that
    the state fronted for the recipient—exactly the issue presented here. See Latham,
    
    2019 UT 51
    , ¶ 35.
    And specificity isn’t the only problem for the majority; another is time. As
    Florida highlights in its briefs, Congress passed the specific assignment provision
    16 years after the general assignment provision. Compare Medicare-Medicaid
    Anti-Fraud and Abuse Amendments, Pub. L. No. 95-142, 91 Stat. 1175 (1977)
    (enacting the general assignment provision), with Omnibus Budget Reconciliation
    Act of 1993, Pub. L. No. 103-66, 107 Stat. 312 (1993) (enacting the specific
    assignment provision). It is thus the most recent word on the subject. And when
    interpreting statutes, “we rely on the long-standing principle that, if two statutes
    conflict, the more recent or more specific statute controls.” Tug Allie-B, Inc. v.
    United States, 
    273 F.3d 936
    , 948 (11th Cir. 2001). The specific assignment
    provision wins on both counts. So it is the more on-point authority.
    The majority has a different take, though. It says that the specific
    assignment provision simply “provides for what the state” can recover, not from
    where the state can recover. See Majority Op. at 16–19. In the majority’s eyes, the
    35
    Case: 17-13693      Date Filed: 06/26/2020   Page: 36 of 61
    specific assignment provision merely explains that the state can recover only up to
    the amount that it paid for past medical care. It does not, per the majority, say that
    the state can recoup that amount from only the part of the recovery that represents
    payment for past medical care.
    And yet that can’t be right. For starters, both the general assignment
    provision and the third-party-liability provision already explain “what” the state
    can recover—each makes clear that the state can reimburse itself only up to the
    amount that it spent on past medical care. The general assignment provision says
    that the state can take a recipient’s third-party payments only as “necessary to
    reimburse [the state] for medical assistance payments made [for the recipient] . . .
    the remainder of such amount collected shall be paid to [the recipient].” 42 U.S.C.
    § 1396k(b). And the third-party-liability provision—which comes before the
    specific assignment provision in 42 U.S.C. § 1396a(a)(25)—tells us that when the
    state has paid for “medical assistance,” the state gets reimbursement “for such
    assistance.” See
    id. § 1396a(a)(25)(B).
    Layman’s terms: When the state has paid
    for the recipient’s past medical care, it is entitled to reimbursement only for the
    cost of the recipient’s past medical care. Why, then, would Congress reiterate (for
    a third time) this bedrock principle in the specific assignment provision? The
    answer is that it wouldn’t. And we should avoid any reading that relies on this
    redundancy. See United States v. Fuentes-Rivera, 
    323 F.3d 869
    , 872 (11th Cir.
    36
    Case: 17-13693     Date Filed: 06/26/2020    Page: 37 of 61
    2003) (per curiam) (explaining that we interpret statutory provisions “so that no
    words shall be discarded as being meaningless, redundant, or mere surplusage”).
    At any rate, we need not turn to tools of statutory interpretation to knock
    down the majority’s construction; the statute’s plain language is enough. The
    specific assignment provision says that the state gets only the recipient’s right “to
    payment by any other party” for past medical care. 42 U.S.C. § 1396a(a)(25)(H)
    (emphasis added). This means that the state acquires only the recipient’s right to
    whatever payment the third party paid for past medical care. Put differently, the
    state can recover from only the part of the settlement (i.e., the payment) that was
    paid for past medical care. Florida doesn’t somehow get the right to pick at other
    third-party payments, like the part of the settlement paid for future medical care.
    An example confirms that this reading is right. Imagine that you own a fruit
    stand. One day, you sell your friend $5 worth of apples and $5 worth of oranges
    for a total of $10. Now let’s also say that you owe your town $10. To recoup the
    debt, your town passes a law entitling the town to your rights “to payment by any
    other party” for apples. Putting aside that you might vote your city council out of
    office in the next election, you would naturally read this law to give your town the
    right to $5—the amount of the “payment” that your friend gave you for the apples.
    You wouldn’t think that the town could take the full $10 dollars that your friend
    paid you, because part of that payment was paid for oranges. And it doesn’t matter
    37
    Case: 17-13693       Date Filed: 06/26/2020        Page: 38 of 61
    that you owe the town $10—the town limited itself to third-party payments paid
    for apples, and so that is all it can recover.
    The specific assignment provision is no different. It entitles the state to
    recover from only third-party payments for past medical care. So the state gets the
    right to recover from whatever amount the third party paid for past medical care,
    no matter if the recipient’s past medical bills exceed the part of the settlement paid
    for past medical care. See
    id. So despite
    the majority’s effort to make this a dispute over what the state
    may recover, that’s not what we’re debating—everyone agrees that the state can
    recover only up to the amount that it paid for the recipient’s past medical care. We
    are debating where the state can recover those expenses from, or said differently,
    whether the state is limited to reimbursing itself from the part of the recipient’s
    settlement that represents payment for past medical care. The plain language of
    the specific assignment provision answers that question: The state can take from
    only the part of the settlement paid for past medical care. Nothing more.4
    4
    For what it’s worth, this rule makes good sense. Yes, this provision may prevent the state from
    reimbursing itself fully for the amount that it spent on the recipient’s past medical care. This is
    because the part of a recipient’s tort recovery paid for past medical care could be less than the
    actual amount of those costs. Yet the Medicaid Act makes clear that the state has a right to
    recover only for what it has paid—the recipient’s past medical costs. So the Act necessarily
    fractionalizes the state’s recovery to encompass only the fraction of the settlement that represents
    those costs. Otherwise, the state could swallow parts of the settlement that have nothing to do
    with the benefits that the state has fronted for the recipient (here, the part of the settlement
    representing payment for the recipient’s future medical care). As I explain more below, the
    Supreme Court has rejected that outcome—the outcome that the majority condones here—
    38
    Case: 17-13693        Date Filed: 06/26/2020       Page: 39 of 61
    And so contrary to the majority’s footnote 15, the general assignment
    provision and the specific assignment provision are not in harmony. The general
    assignment provision says that the state gets the right to all third-party payments
    made for medical care. See
    id. § 1396k(a)(1)(A).
    The specific assignment
    provision says that the state gets the right to only third-party payments made for
    past medical care. See
    id. § 1396a(a)(25)(H).
    These provisions cannot be
    reconciled. Since the specific assignment provision is more recent and more on
    point, see supra at 34–36, it applies over the general assignment provision. And
    with the general assignment provision vanished, the majority’s reading has no leg
    to stand on.
    C.
    Still, the majority might say, the text of the Medicaid Act is just not clear
    enough to warrant conflict preemption. It is, after all, a Byzantine enterprise. Ga.,
    Dep’t of Med. Assistance ex rel. Toal v. Shalala, 
    8 F.3d 1565
    , 1568 (11th Cir.
    1993). Luckily though, if there were ever a riddle about what this text means,
    Ahlborn unraveled it.
    1.
    calling it “absurd and fundamentally unjust.” See 
    Ahlborn, 547 U.S. at 288
    n.19. And as I also
    explain more below, the state has several Court-sanctioned tools to protect against the recipient
    allocating away the state’s limited recovery interest. See infra at 53–57.
    39
    Case: 17-13693     Date Filed: 06/26/2020    Page: 40 of 61
    In Ahlborn, the Supreme Court analyzed the interplay between the general
    rules and the exceptions. Faced with a claim that a state can recoup its debt from
    any part of a recipient’s recovery, the Court said no. It held, in a nine-to-nothing
    opinion, that the Act’s plain text “makes clear” that when the state has paid for
    “health care items or services furnished” to a recipient, “the [s]tate must be
    assigned” only “the rights of the recipient to payment by any other party for such
    health care items or services.” See 
    Ahlborn, 547 U.S. at 281
    –82 (alterations
    accepted) (emphasis omitted). Put another way, the state can claim only third-
    party payments for medical care that the state paid for first. See id.; accord supra
    at 28–39.
    Although the Supreme Court didn’t feel the need to spell it out, the logical
    and necessary extension of this rule is that the state can recover only from third-
    party payments marked for past medical care. Indeed, Ahlborn held that the
    exceptions allow the state to take only from a recipient’s recovery for medical care
    because medical care was the only thing that the state had paid for. See
    id. By extension,
    the exceptions allow the state to take only from a recipient’s recovery
    for past medical care because past medical care is the only thing that the state has
    paid for.
    The Court made this point clear through an example. It analogized to a
    state-court case in which the state paid workers’-compensation benefits to the
    40
    Case: 17-13693      Date Filed: 06/26/2020   Page: 41 of 61
    spouse of an employee whose injuries were caused by a third-party tortfeasor. See
    id. at 288
    n.19 (citing Flanigan v. Dep’t of Labor & Indus., 
    869 P.2d 14
    , 17 (Wash.
    1994)). After the spouse recovered loss-of-consortium damages from the
    tortfeasor, the state sought the rights to the spouse’s loss-of-consortium damages to
    pay itself back for the workers’-compensation benefits. See 
    Flanigan, 869 P.2d at 15
    . The Washington Supreme Court rejected this bid, explaining that the state
    could not reach the spouse’s loss-of-consortium damages, because the state did not
    “cover” the spouse’s “damages for loss of consortium.”
    Id. at 17.
    Ahlborn
    approved of this result, recognizing that the state agency there could not “share” in
    the part of the recovery representing loss-of-consortium damages, because the state
    had “provided no compensation” for those damages. 
    See 547 U.S. at 288
    n.19.
    Such a result would be “absurd and fundamentally unjust.” See
    id. So too
    with settlement proceeds marked for a recipient’s future medical care.
    Florida has never paid for the recipient’s future medical care. And thus Florida
    cannot “share” in the recipient’s right to settlement proceeds paid for future
    medical care. See
    id. Such a
    result would be “absurd and fundamentally unjust.”
    See
    id. Another Ahlborn
    example underscores this rule. After explaining that the
    state can recover only from settlement proceeds representing payment for “health
    care items or services” that the state paid for first, the Court emphasized that “the
    41
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    statute does not sanction an assignment of rights to payment for anything other
    than medical expenses—not lost wages, not pain and suffering, not an inheritance.”
    Id. at 281.
    Although “the Court did not include ‘future medical expenses’ in that
    list, it would have fit.” Latham, 
    2019 UT 51
    , ¶ 36. Because just as the state has
    fronted no part of a recipient’s wages, pain and suffering, or missing inheritance,
    the state has fronted no part of a recipient’s future medical bills. The state has paid
    for only the recipient’s past medical bills. And so the state can lay claim to only
    that part of the recipient’s recovery. See 
    Ahlborn, 547 U.S. at 281
    .
    The bottom line then is this. Ahlborn teaches that the Act’s past-tense
    references aren’t just references: They’re restrictions. See
    id. The Act’s
    nods to
    the past limit the state’s recovery to proceeds earmarked for past medical
    expenses—the only expenses that the state has ever paid. See 42 U.S.C.
    § 1396a(a)(25)(A)–(B), (H).
    2.
    Against this backdrop, the majority’s semantics stretch too thin. It says that
    since Ahlborn held that the state could recover from third-party payments made for
    “medical care,” but never used the magic words “past medical care,” federal law
    does not clearly forbid recovery from third-party payments made for future
    medical care. But even if the actual letter of Ahlborn doesn’t command
    preemption (though it does—more on that later), Ahlborn’s logic necessarily
    42
    Case: 17-13693     Date Filed: 06/26/2020    Page: 43 of 61
    compels it. Ahlborn’s basic premise is that the state can recover only from third-
    party payments made for debts that the state paid for the recipient. This generally
    means medical care. But it specifically means past medical care—the only health
    care items or services that the state has “furnished.” See
    id. § 1396a(a)(25)(H).
    And let’s take a step back here. Why would the Supreme Court go through
    all this trouble to explain that the state can’t take money marked for things that it
    never paid for, only to then let the state take money marked for things that it never
    paid for? Yet that’s the rule the majority mints today. Simply because the Court
    never used the term “past medical care” (even though that’s clearly what it meant),
    the majority says the state can pluck payments paid for a recipient’s future medical
    burdens—burdens for which the state has never paid and may never pay.
    That rule flouts Ahlborn. And despite the majority’s gloss, the most logical
    construction is what Congress in fact did: limit the state to the part of the recovery
    that encompasses what the state actually “furnished”—past medical care.
    D.
    In any event, this isn’t an open question: Ahlborn held that federal law limits
    the state to the part of the settlement that represents payment for past medical care.
    Here’s why. The plaintiff’s argument throughout Ahlborn was that the state
    “is limited to that portion of the settlement proceeds which fairly represents the
    past medical expense component of her recovery.” Ahlborn v. Ark. Dep’t of
    43
    Case: 17-13693        Date Filed: 06/26/2020        Page: 44 of 61
    Human Servs., 
    280 F. Supp. 2d 881
    , 883 (E.D. Ark. 2003) (emphasis added); see
    also Ahlborn v. Ark. Dep’t of Human Servs., 
    397 F.3d 620
    , 622 (8th Cir. 2005)
    (“Ahlborn brought suit seeking a declaratory judgment, arguing that [the state] can
    only recover that portion of her settlement representing payment for past medical
    expenses.” (emphasis added)). To move the case along, the state and the recipient
    stipulated that the part of the settlement representing payment for past medical care
    was $35,581.47. See 
    Ahlborn, 547 U.S. at 274
    (“To facilitate the District Court’s
    resolution of the legal questions presented, the parties stipulated that . . . if
    Ahlborn’s construction of federal law was correct, [the state] would be entitled to
    only the portion of the settlement ($35,581.47) that constituted reimbursement for
    medical payments made.” (emphasis added)). 5
    The Supreme Court later held that the exceptions limit the state’s recovery to
    the part of the settlement representing payment for medical care. See
    id. at 291–
    92. But in doing so, it also held that “Federal Medicaid law does not authorize [the
    state] to assert a lien on Ahlborn’s settlement in an amount exceeding
    5
    The lower court opinions also confirm that when the Supreme Court said that the parties
    stipulated to how much of the settlement represented “medical payments made,” it was referring
    to the parties’ agreement about how much of the settlement represented payment for past medical
    care. The Eighth Circuit, for instance, explained that the “parties stipulated” that $35,581.47 was
    “a fair representation of the [part] of the settlement constituting payment by the tortfeasor for
    past medical care.” 
    Ahlborn, 397 F.3d at 622
    . And the district court made clear that if the
    recipient there were to prevail on her claim that the state’s recovery “is limited to that portion of
    the settlement proceeds which fairly represents the past medical expense component of her
    recovery,” then the recipient would recover $35,581.47—the amount of the settlement that the
    parties agreed as representing payment for past medical care. 
    Ahlborn, 280 F. Supp. 2d at 883
    .
    44
    Case: 17-13693    Date Filed: 06/26/2020   Page: 45 of 61
    $35,581.47”—the amount of the settlement representing payment for past medical
    care.
    Id. at 292
    (emphasis added).
    That decides the issue. Although the Court didn’t draw out that its use of the
    term “medical care” meant “past medical care,” that’s what the plaintiff argued
    throughout the case, and that must be what the Court held. Otherwise, it could not
    have ruled that the state could take only $35,581.47—the amount of the settlement
    representing payment for past medical care. It wouldn’t have held that the state
    can’t assert a lien “in an amount exceeding $35,581.47”; it would have held that
    the state can’t assert a lien “in an amount exceeding $35,581.47 [plus any amount
    representing payment for future medical care].”
    That’s not what the Court wrote. And since the Courts of Appeals are not in
    the business of assuming that the Supreme Court made a typo, there’s only one
    reasonable conclusion: This query is closed. “Medical care” means “past medical
    care.”
    The majority puts up two arguments in response; neither is persuasive. It
    first notes the obvious—Ahlborn did not textually distinguish between past and
    future medical care. But as explained above, Ahlborn’s reasoning and its
    holding—which limited the state to only the amount that the parties stipulated as
    representing payment for past medical care—makes clear that Ahlborn was talking
    about past medical care, not all medical care.
    45
    Case: 17-13693     Date Filed: 06/26/2020   Page: 46 of 61
    Second, the majority tries to limit Ahlborn to its facts. See Majority Op. at
    20–21. It notes that, in Ahlborn, the state and the recipient stipulated to how much
    of the settlement represented payment for past medical care. Here, in contrast,
    Florida did not consent to the allocation proffered by Gallardo and the tortfeasor
    and has not agreed to a stipulated allocation.
    To start, it is unclear why this distinction makes a difference. If anything,
    the spotlight the majority shines on the stipulation in Ahlborn only proves my
    point: The state there agreed that about $35,000 of the settlement represented
    payment for past medical care. For all intents and purposes, then, the amount of
    the settlement allocated for past medical care equaled about $35,000. After this,
    the Supreme Court ruled generally that the Medicaid Act allowed the state to
    recover from only the part of the settlement allocated for medical care. And then
    the Court held specifically that the state could recover only about $35,000 of the
    settlement—the amount of the settlement allocated for past medical care. As I
    explained before, the only way the Court could have reached that result is if it
    concluded that the state may recover from only the amount of the settlement that
    represents payment for past medical care. See supra at 43–45.
    But in any event, if the majority is claiming that Ahlborn doesn’t apply here
    because Florida has not consented or stipulated to an allocation, the majority is
    mistaken. It cites nothing from Ahlborn to support such a claim. And in fact, the
    46
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    Fourth Circuit rejected this exact argument. See E.M.A. ex rel. Plyler v. Cansler,
    
    674 F.3d 290
    , 307 (4th Cir. 2012), aff’d sub nom. on other grounds Wos v. E.M.A.
    ex rel. Johnson, 
    568 U.S. 627
    (2013). There the district court endorsed a “narrow
    interpretation of Ahlborn,” limiting it to cases where the parties (i.e., the recipient
    and the state) agreed on an allocation or where there was a prior judicial
    determination about the correct allocation. See
    id. The Fourth
    Circuit reversed,
    rejecting this “crabbed application” of Ahlborn.
    Id. It noted
    that the Court’s ruling
    “in no way” turned on “whether there has been a prior determination or stipulation
    as to the medical expenses portion of a Medicaid recipient’s settlement.”
    Id. Rather, “Ahlborn
    is properly understood to prohibit recovery by the state of more
    than the amount of settlement proceeds representing payment for medical care
    already received.”
    Id. That rule
    applies no matter if Florida has stipulated to an
    allocation. See id.; see also Giraldo v. Agency for Health Care Admin., 
    248 So. 3d 53
    , 56 (Fla. 2018) (holding that a plain reading of the Medicaid Act preempts
    Florida’s practice of garnishing more than the part of a settlement representing
    payment for past medical care, even when Florida has not stipulated to the
    recipient’s proffered allocation); see
    id. at 57–59
    (Polston, J., concurring in part
    and dissenting in part) (reaching the same conclusion solely due to the Court’s
    holding in Ahlborn, and concluding that Ahlborn applies even when Florida has not
    stipulated to the recipient’s proffered allocation).
    47
    Case: 17-13693     Date Filed: 06/26/2020     Page: 48 of 61
    E.
    That our court breaks with most of the country today only solidifies that this
    question is not close. Because though the majority claims that a lack of clarity bars
    conflict preemption, most other courts have had no trouble reading this supposed
    crystal ball. Far and away, most courts have held that the Medicaid Act clearly
    preempts state law allowing state recovery from settlement proceeds paid for future
    medical care. See, e.g., 
    Plyler, 674 F.3d at 307
    , 312; McKinney ex rel. Gage v.
    Philadelphia Hous. Auth., 
    2010 WL 3364400
    , at *9 (E.D. Pa. Aug. 24, 2010);
    Price v. Wolford, 
    2008 WL 4722977
    , at *2 (W.D. Okla. Oct. 23, 2008); Sw.
    Fiduciary, Inc. v. Ariz. Health Care Cost Containment Sys. Admin., 
    249 P.3d 1104
    ,
    1108–10 (Ariz. Ct. App. 2011); In re Estate of Martin, 
    574 S.W.3d 693
    , 696 (Ark.
    App. 2019), reh’g denied (Ark. App. Apr. 24, 2019); Bolanos v. Superior Court,
    
    87 Cal. Rptr. 3d 174
    , 179–81 (Cal. App. 4th 2008); 
    Giraldo, 248 So. 3d at 56
    ;
    Lugo ex rel. Lugo v. Beth Israel Med. Ctr., 
    819 N.Y.S.2d 892
    , 895–96 (N.Y. Sup.
    Ct. 2006); In re E.B., 
    729 S.E.2d 270
    , 453 (W. Va. 2012) (“After a thorough
    examination of the Ahlborn decision and the language contained in [the West
    Virginia statute] . . . we find that [the statute] directly conflicts with Ahlborn,
    insofar as it permits [the state] to assert a claim to more than the portion of a
    recipient’s settlement that represents past medical expenses.”); Latham, 
    2019 UT 51
    , ¶ 20. So though the majority suggests that this is a close call—and thus one
    48
    Case: 17-13693        Date Filed: 06/26/2020       Page: 49 of 61
    that inherently precludes conflict preemption—a countrywide consensus says
    exactly the opposite. 6
    The majority contends that, despite this federal- and state-court consensus,
    this “issue is hardly a settled one.” Majority Op. at 17–18 n.16. It disregards most
    the cases I cite above, altogether ignoring the district-court and state-court cases.
    Id. Instead, it
    zeroes in on just the Fourth Circuit case, dismissing that court as
    interpreting Ahlborn “a little loosely.”
    Id. At the
    gate, I’m puzzled by the ease in
    which the majority rejects well-reasoned opinions from federal district courts and
    state appellate courts—three of which come from state supreme courts. But at any
    rate, the majority is wrong to dismiss the Fourth Circuit case. Plyler’s
    interpretation of Ahlborn was unequivocal: “[F]ederal Medicaid law limits a state’s
    recovery to settlement proceeds that are shown to be properly allocable to past
    medical 
    expenses.” 674 F.3d at 312
    (emphasis added). Although that holding
    wasn’t the only issue in the case, it was essential to the Fourth Circuit’s analysis
    (and ultimate rejection) of the district court’s interpretation of the Medicaid Act.
    6
    A fleeting few have accepted the majority’s view. See I.P. ex rel. Cardenas v. Henneberry, 
    795 F. Supp. 2d 1189
    , 1197 (D. Colo. 2011); Special Needs Tr. for K.C.S. v. Folkemer, 
    2011 WL 1231319
    , at *1 (D. Md. Mar. 28, 2011); In re Matey, 
    147 Idaho 604
    , 608 (2009). Yet their
    analysis is sparse, and they ignore the points made above. In fact, one court seemed to hold that
    a recipient’s likelihood of staying on Medicaid somehow influences the construction of the
    Medicaid Act—a plainly incorrect view. See 
    Henneberry, 795 F. Supp. 2d at 1197
    (“Because
    Plaintiff intends on staying on Medicaid, any funds allocated for future medical expenses should
    rightfully be exposed to the state’s lien so that the state can be reimbursed for its past medical
    payments.”). At any rate, these cases are in the minority and pale against the majority trend.
    49
    Case: 17-13693     Date Filed: 06/26/2020   Page: 50 of 61
    See
    id. at 307.
    So we cannot dismiss the Fourth Circuit’s interpretation of Ahlborn
    as mere dicta. See United States v. Gillis, 
    938 F.3d 1181
    , 1198 (11th Cir. 2019)
    (per curiam) (explaining that dicta is “a statement that neither constitutes the
    holding of a case, nor arises from a part of the opinion that is necessary to the
    holding of the case”). It is persuasive authority from a sister circuit—apparently
    the only other circuit to have addressed this issue.
    The majority also forgets to add an important piece of persuasive authority
    to the mix: the Supreme Court’s recent denial of certiorari in Office of Recovery
    Services v. Latham, 
    140 S. Ct. 852
    (2020). In Latham, the Supreme Court of Utah
    issued a detailed opinion that unanimously rejected the majority’s minority-trend
    interpretation of the Medicaid Act, adopting instead the majority-trend position
    that I have taken here. See 
    2019 UT 51
    . The Court’s denial of certiorari there is
    by no means a binding holding. But given the widespread consensus described
    above, one would think that the Court would have tackled this issue had it thought
    that most courts were wrong and that, instead, the minority view was right. The
    Court’s pass on the issue thus suggests that the majority view, not the majority’s
    view, is the right one.
    Finally, you may have noticed near the end of the string cite above that even
    Florida has rejected the majority’s application of the Medicaid Act to Florida law.
    See 
    Giraldo, 248 So. 3d at 56
    . In short order, all seven of Florida’s Supreme Court
    50
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    Justices held that the Medicaid Act trumps Florida’s recovery plan; six because the
    text clearly preempts, one because Ahlborn expressly decided this issue.
    Id. at 56–
    59. Although Florida’s take on federal law doesn’t bind us, its invalidation of its
    own law should give us pause. Indeed, for an opinion that claims to rest on respect
    for Florida’s rights, overruling a unanimous panel of Florida’s Supreme Court
    seems inconsistent.
    F.
    To close, I’ll note that the majority’s ruling has laid the foundation for
    federal-state forum shopping. 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)). Meanwhile, Florida may
    seek declaratory relief in federal court to bypass Giraldo and benefit from our
    holding in Gallardo. That holding will bind our district courts to declare that the
    Medicaid Act does not preempt Florida’s attempt to recover from the part of the
    recipient’s recovery that represents payment for future medical care. And then
    Florida will take the federal-court judgment to state court and argue that it has a
    preclusive effect on the recipient.
    This situation is far from hypothetical—it’s exactly what’s happening here.
    The parties agree that the reason Giraldo has not mooted this case is that Florida
    51
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    intends to use the preclusive effect of our judgment in state administrative court.
    Although the administrative court will decide in the first instance whether
    preclusion applies, it will apply federal preclusion law. See Philadelphia Fin.
    Mgmt. of San Francisco, LLC v. DJSP Enters., Inc., 
    227 So. 3d 612
    , 616 (Fla. 4th
    DCA 2017). And under federal law, it seems likely that res judicata will apply.
    See In re Piper Aircraft Corp., 
    244 F.3d 1289
    , 1296 (11th Cir. 2001) (noting that
    res judicata generally bars relitigation when (1) there is a final judgment on the
    merits; (2) the decision was rendered by a court of competent jurisdiction; (3) the
    parties, or those in privity with them, are identical in both suits; and (4) the same
    cause of action is involved in both cases). So, perversely, the state administrative
    court will likely apply the Eleventh Circuit’s decision in Gallardo, rather than the
    Florida Supreme Court’s decision in Giraldo.
    I see nothing to stop Florida from taking this tact again. And thus the
    majority, by cutting a chasm between federal and Florida law, has sown the seeds
    for forum shopping. Recipients will rush to state court. Florida will rush to federal
    court. And whoever gets the ruling first will win. That is a stereotypical forum-
    shopping scenario. And it is an arbitrary outcome that warrants either en banc or
    Supreme Court review.
    *      *      *
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    In the end, the majority says that it can’t make heads or tails of the Medicaid
    Act, so the tie goes to Florida. That is wrong. Conflict preemption must be clear,
    no doubt, but Congress doesn’t need to etch its intent in statutory stone. Said
    differently, you don’t need a weatherman to know which way the wind blows.
    Given the text’s plain preference for the past, the logic and letter of Ahlborn, and
    the sound reasoning of most courts across the country (including Florida’s
    Supreme Court), it’s clear that federal law preempts Florida’s practice of
    garnishing the part of a recipient’s recovery paid for future medical care. And so I
    dissent.
    II.
    That all said, I agree with the majority that Florida’s allocation scheme (i.e.,
    the way that it decides how much of the settlement represents payment for past
    medical care) complies with federal law. Still, Florida’s plan is not perfect. On
    this record, federal law would preempt Florida’s allocation formula if it stood
    alone. But because Florida allows the recipient to rebut the presumptive allocation
    in an administrative proceeding, and because Gallardo has not shown that the
    presumptive allocation is in fact irrebuttable, Florida’s process complies with the
    Medicaid Act.
    A.
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    In Wos, the Supreme Court reaffirmed that the Medicaid Act preempts state
    laws that allow the state to claim part of a recipient’s tort recovery not designated
    as payments for past medical care. 
    See 568 U.S. at 636
    . But the Court recognized
    a problem: It’s not always clear what part of a tort recovery represents payment for
    past medical care. See
    id. at 640
    . 
    So how does the state divvy up an ambiguous
    recovery in a way that complies with the Act? Although the Court did not provide
    a surefire path around preemption, it hinted at two ways through which the state
    might winnow out past medical costs: an easy way and a hard way. See
    id. at 636–
    43.7
    The easy way to avoid preemption is for the state to have a proceeding to
    decide the correct allocation. See
    id. at 638–39
    (expressing repeatedly the Court’s
    preference for individual adjudication over a one-size-fits-all formula). The
    tribunal there can decide the right way to divide the tort recovery, with an eye
    toward how much the recipient might have received for past medical care had the
    case gone to trial. See
    id. at 640
    (stating that although a “fair allocation” of an
    ambiguous recovery “may be difficult to determine,” trial judges and lawyers “can
    7
    Of course, Wos did not limit the ways that a state might comply with the Medicaid Act. To the
    contrary, the Court left open the possibility that other administrative methods could comply with
    federal law, so long as those methods do not let the state claim any part of a recipient’s recovery
    allocated for anything besides past medical care and do not violate other Medicaid objectives.
    See 
    Wos, 568 U.S. at 636
    .
    54
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    find objective benchmarks to make projections of the damages the plaintiff likely
    could have proved had the case gone to trial”).
    To simplify this process, the state can also establish a presumptive allocation
    for how much of the recovery represents past medical costs, so long as the
    challenger can rebut that presumption in a proceeding. See
    id. at 641
    –42
    
    (describing several state presumption-based allocation methods as “more accurate”
    than North Carolina’s law and noting that North Carolina “might also consider a
    different [allocation method] along the lines of what other [s]tates have done in
    Medicaid reimbursement cases”). But this is key: If the state uses a presumptive
    allocation, the presumption must in fact be rebuttable. See
    id. at 639.
    “An
    irrebuttable, one-size-fits-all statutory presumption” violates the Medicaid Act.
    See
    id. Now, the
    hard way. Should the state decide that “case-by-case judicial
    allocations will prove unwieldy,” the state can “adopt ex ante administrative
    criteria for allocating medical and nonmedical expenses, provided that these
    criteria are backed by evidence suggesting that they are likely to yield reasonable
    results in the mine run of cases.” See
    id. at 643
    . 
    If the state does so, it need not
    hold an allocation proceeding; the evidence-backed allocation method decides
    what part of the settlement represents payment for past medical care. See
    id. 55 Case:
    17-13693     Date Filed: 06/26/2020     Page: 56 of 61
    (distinguishing state recovery through ex ante criteria from state recovery through
    “case-by-case judicial allocations”).
    The reason this is the hard way is that the state, if it wants to rely solely on
    an ex ante allocation method, must provide evidence that the method will reach a
    fair allocation “in the mine run of cases.” See
    id. In other
    words, the state bears
    the burden of showing that its method usually works. See
    id. at 655–56
    (Roberts,
    C.J., dissenting) (pointing out that Wos requires that the state provide “some sort of
    study substantiating the idea that [the ex ante allocation method works] in most
    cases,” which is “quite odd” given that the Supreme Court has “never before, in a
    preemption case, put the burden on the [s]tate to compile an evidentiary record
    supporting its legislative determination”).
    Though this is a unique standard, it makes sense. Even a skim through Wos
    reveals that the Court favors individualized determinations over broad-brush
    algorithms. See
    id. at 638–43
    (making repeated reference to individual
    adjudications, but spending just two sentences on ex ante procedures). And for
    good reason: Without a proceeding to check its work, a formulaic allocation may
    let the state reach parts of a recipient’s tort recovery not marked for past medical
    costs. See
    id. at 636.
    The Court thus held that if a state wants to rely on an ex ante
    allocation method alone (like an allocation formula), it needs to prove that the
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    method typically leads to a reasonable allocation for past medical costs. See
    id. at 643
    .
    
    B.
    Given these rules, Florida’s formula—standing alone as an ex ante allocation
    method—does not comply with Wos. This is because the state has not shown that
    its formula works “in the mine run of cases.” See
    id. at 643
    . 
    Nowhere in the
    record does Florida put forth studies, expert analysis, or even anecdotal evidence to
    prove that its formula typically reaches a fair result. In fact, Florida conceded in
    response to a public-records request that it has “no responsive documents”
    containing any “analysis” on whether the formula-based allocation “is a reasonable
    approximation of the amount recovered for past medical expenses.” As North
    Carolina did in Wos, Florida has adopted a “one-size-fits-all allocation for all
    cases,” with no proof that the formula usually works. See
    id. at 643
    . 
    This process,
    on its own, does not comply with federal law. And if that were the end of it,
    federal law would preempt Florida’s allocation scheme.
    C.
    Fortunately for Florida, that’s not the end 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). This
    57
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    presumption-based process balances the state’s interest in recouping Medicaid
    payments—and the administrative realities of doing so—with the recipient’s
    property interest in tort recovery. See 
    Wos, 568 U.S. at 641
    (noting that states have
    “considerable latitude to design administrative and judicial procedures to ensure a
    prompt and fair allocation of damages”). And since a recipient can challenge the
    presumption in an administrative proceeding, the process follows Wos’s strong
    preference for individual review. See
    id. at 638–43
    .
    The recipient calls this process bunk because it requires that the recipient
    prove that the presumptive allocation is wrong by clear and convincing evidence.
    But the Court has suggested—almost a wink and a nudge—that federal law does
    not forbid this level of burden-shifting. See
    id. at 641
    (describing several burden-
    shifting schemes as “more accurate” than North Carolina’s process, including one
    in which the recipient must rebut the presumption by clear and convincing
    evidence). And Gallardo has not proven that the clear and convincing evidence
    standard makes the presumption effectively irrebuttable. To the contrary, Florida
    has shown that recipients can and often do rebut the presumption by clear and
    convincing evidence. See, e.g., Herrera v. Agency for Health Care Admin., No.
    16-1270, 
    2016 WL 6068013
    (Fla. DOAH Oct. 11, 2016); Cardenas v. Agency for
    Health Care Admin., No. 15-6594, 
    2016 WL 5784135
    (Fla. DOAH Sept. 29,
    2016); Weedo v. Agency for Health Care Admin., No. 16-1932, 
    2016 WL 5643668
    58
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    (Fla. DOAH Sept. 27, 2016). The procedure thus complies with the level of
    burden-shifting considered in Wos. 
    See 568 U.S. at 641
    .8
    Gallardo also claims that Florida’s presumptive-allocation formula poisons
    its allocation process because the formula might spit out the wrong number to start.
    But that is inherently true of all presumptive allocations: They don’t always get the
    correct allocation right off the bat. That is why the Supreme Court held that the
    state must have a way to ensure that the presumptive allocation is reasonable in
    each particular case—a feat that the state can accomplish through a proceeding in
    which the recipient can rebut the presumptive amount. See
    id. at 639–40.
    On top
    of this, the Supreme Court seems open to rebuttable presumptions, some even
    more onerous than Florida’s. See
    id. at 641
    (describing several rebuttable
    presumptions as “more accurate” than North Carolina’s process, including one in
    which the state presumes that the entire tort recovery represents past medical costs
    and requires that the recipient rebut the presumption by clear and convincing
    evidence). So the presumption can be off at the start, as long as the recipient can
    meaningfully rebut that result in the end.
    8
    It is not lost on me that by showing that challengers often rebut the presumption, the state
    proves that the formula often gets it wrong. But again, Florida’s formula isn’t the end—it’s the
    beginning. For administrative convenience, Florida sets a presumptive number using a standard
    formula and then allows the challenger to rebut that number. Since the presumptive number is in
    fact rebuttable, the procedure properly balances the state’s interest in administrative feasibility
    with the individual’s right to tort recovery. See 
    Wos, 568 U.S. at 639
    .
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    Gallardo also levies another attack on Florida’s presumptive allocation. She
    seems to say that the state, if it wants to use a presumption, must first prove that its
    presumptive allocation is reasonable “in the mine run of cases.” In other words,
    Gallardo slaps onto the presumptive-allocation method the same burden that Wos
    attached to the ex-ante-criteria method.
    This argument misses the mark for a few reasons. For one, Wos discusses
    presumptive allocations and ex ante criteria at different parts of the opinion, and
    there is no indication that it meant to tie them together. Compare
    id. (discussing presumptive
    allocations), with
    id. at 643
    (discussing ex ante criteria). In fact, the
    Court said that presumptive allocations are simply proceeding modifications—they
    ensure that individual proceedings do not become too burdensome in the
    aggregate. See
    id. at 641
    . Because they are part and parcel of individual
    proceedings, these presumptions seem to receive the same deference that the Court
    gives to individual review, not the heightened standard that the Court applies to ex
    ante formulas not backed by individual review. See
    id. at 641
    . And again, Wos
    considered presumptive allocations just as arbitrary as (and far more onerous than)
    Florida’s presumption, and it did so without suggesting that those states would
    need to prove that their presumptions are correct in the mine run of cases. See
    id. Above all,
    the reasons for imposing a heightened standard to stand-alone
    formulas do not apply to rebuttable presumptions. When a state relies solely on an
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    ex ante formula without proof that the formula works in the “mine run of cases,”
    the state provides no assurance that the allocation will be fair for each particular
    case. See
    id. at 637.
    But when the state uses a rebuttable presumption, there
    remains a way to ensure that the allocation is reasonable in each case: an individual
    proceeding in which the recipient can rebut the presumptive amount. See
    id. at 641
    . So when a state uses an administrative proceeding as a failsafe for its
    presumptive allocation, it need not bear the heavy burden of proving that its
    presumptive allocation is reasonable in the mine run of cases. See
    id. * *
        *
    If Florida relied on only its formula to administer its allocation scheme,
    Gallardo would be right that the scheme conflicts with Wos. But because Florida
    uses its formula to create a presumptive allocation, and because Gallardo has not
    shown that the presumptive allocation is in fact irrebuttable, Florida’s process
    complies with federal law. For these reasons, I concur with the majority.
    61