               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                              IN THE DISTRICT COURT OF APPEAL

                                              OF FLORIDA

                                              SECOND DISTRICT


IALA SUAREZ, individually and as         )
parent and natural guardian of K.D.P.,   )
a minor,                                 )
                                         )
              Appellant,                 )
                                         )
v.                                       )      Case No. 2D14-2627
                                         )
PORT CHARLOTTE HMA, LLC d/b/a            )
PEACE RIVER REGIONAL MEDICAL             )
CENTER, a Florida corporation for        )
profit; MICHAEL A. COFFEY, MD.,          )
MICHAEL A. COFFEY, M.D., P.A., a         )
Florida corporation for profit; RUBEN    )
GUZMAN, M.D., RUBEN GUZMAN, M.D., )
P.A., a Florida corporation for profit;  )
WILLIAM O'BRIEN, M.D.; MATERNAL          )
FETAL MEDICINE OF SOUTHWEST              )
FLORIDA, P.A., a Florida corporation for )
profit; STATE OF FLORIDA, AGENCY         )
FOR HEALTH CARE ADMINSTRATION, )
                                         )
              Appellees.                 )
                                         )

Opinion filed April 17, 2015.

Appeal from the Circuit Court for Charlotte
County; Joseph G. Foster, Judge.

Stuart Ratzan of The Ratzan Law Group,
P.A., Miami, and Kimberly L. Boldt of the
Boldt Law Firm, Boca Raton, for Appellant.
Adam J. Stallard, (withdrew after briefing),
Karen Dexter and Alexander R. Boler of
Xerox Recovery Services; and Frank
Dichio, State of Florida, Agency for Health
Care Administration, Tallahassee, for
Appellee, State of Florida, Agency for
Health Care Administration.

Denise L. Dawson of Hall Booth Smith, PC,
North Palm Beach, for Appellee, Port
Charlotte, LLC d/b/a Peace River Regional
Medical Center.

Karen L. Mallin and Louis J. La Cava of
La Cava & Jacobson, P.A., Tampa, for
Appellee, Michael A. Coffey, M.D., and
Michael A. Coffey, M.D., P.A.

No appearance for remaining Appellees.



PER CURIAM.

              Iala Suarez appeals the circuit court's determination that it lacked

jurisdiction to resolve the dispute between Suarez and the Agency for Health Care

Administration regarding the amount the agency was entitled to recover for past medical

expenses from Suarez's settlement with a third-party defendant in her action for medical

malpractice. We agree with the circuit court's application of section 409.910(17)(b),

Florida Statutes (2013), and hold that the circuit court lacked jurisdiction to consider

Suarez's motion for a determination of the amount of the Medicaid lien. For the reasons

stated below, we treat this appeal as a petition for writ of mandamus and deny the writ.

                                           Facts

              On May 30, 2013, Suarez filed a complaint alleging medical malpractice

against seven defendants. Suarez sought recovery against the defendants for her




                                            -2-
daughter's permanent and catastrophic injuries sustained during birth. On February 14,

2014, Suarez petitioned the trial court to approve a settlement with one of the defendant

doctors, Dr. Ruben Guzman. The court approved the settlement on April 3, 2014, and

in the same order approved the guardian ad litem's recommendation to allocate

$4129.71 for past medical expenses. We note that the record is unclear as to whether

Suarez gave AHCA notice of the settlement as required by section 409.910(11)(d).

              On April 28, 2014, Suarez filed an emergency motion for determination of

Medicaid lien, seeking "an order directing the Agency for Health Care Administration to

accept the Court's allocation to the Agency from the settlement." After a hearing, the

court quashed the motion, finding that it lacked jurisdiction over the dispute regarding

the lien under section 409.910(17)(b), which requires a recipient of Medicaid benefits to

contest the amount designated as a recovered medical expense by petition to the

Division of Administrative Hearings. Suarez now appeals this order.

                                       Jurisdiction

              The order on appeal is not a final order; the parties remain participants in

the underlying proceedings against the remaining defendants, and the order lacks any

words of finality. See Rollins Fruit Co. v. Wilson, 923 So. 2d 516, 519 (Fla. 2d DCA

2005) ("A judgment is not final where further judicial labor is required or contemplated to

end the litigation between the parties."). The order is not an appealable nonfinal order

under Florida Rule of Appellate Procedure 9.130 because it is an order determining the

circuit court's subject matter jurisdiction. See Diasti v. Dep't of Revenue, 122 So. 3d

492, 492 (Fla. 2d DCA 2013) (explaining that an order determining subject matter

jurisdiction over the cause of action "is a nonfinal, nonappealable order"). On appeal,




                                           -3-
Suarez asks this court to order the trial court to hear her motion and resolve her dispute

with AHCA over the amount of the Medicaid lien. Accordingly, this appeal is converted

to a petition for writ of mandamus; because we hold that the trial court has no duty to

hear the motion, we deny the petition.

                                         Analysis

              Section 409.910 was amended in 2013 to add subsection 17(b), which

outlines a procedure by which a recipient of Medicaid "may contest the amount

designated as recovered medical expense damages payable to the agency pursuant to

paragraph 11(f)." Ch. 2013-150 § 2, at 1718-19, Laws of Fla. Prior to the amendment,

recipients were able to challenge the amount of a settlement designated as a recovery

for past medical expenses by motion in the circuit court. See, e.g., Agency for Health

Care Admin. v. Riley, 119 So. 3d 514, 515 (Fla. 2d DCA 2013). After the 2013

amendment, recipients must bring their challenges by petition to the Division of

Administrative Hearings. See § 409.910(17)(b). Here, Suarez argues that the 2012

version of the statute should apply to her because she filed her action on May 30, 2013,

prior to the effective date of the 2013 amendment. She contends that the amendment

to section 409.910(17)(b) is a substantive change in the law and that therefore it should

not apply retroactively. See State Farm Mut. Auto Ins. Co. v. Laforet, 658 So. 2d 55, 61

(Fla. 1995) ("The general rule is that a substantive statute will not operate

retrospectively absent clear legislative intent to the contrary, but that a procedural or

remedial statute is to operate retrospectively."). We do not agree.

              AHCA had no right to reimbursement until a settlement was reached.

Section 409.910 states:




                                            -4-
              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.

§ 409.910(1) (emphasis added). Thus, it is the recovery of third-party benefits that

causes AHCA's right to recovery to vest. Because the settlement with Dr. Guzman was

not reached until 2014, AHCA had no right to recovery until that time. Accordingly, the

2013 version of the statute controls. See Fla. Ins. Guar. Ass'n v. Bernard, 140 So. 3d

1023, 1029 (Fla. 1st DCA 2014) (explaining that "the determinative point in time

separating prospective from retroactive application of an enactment is the date the

'cause of action' accrues," which is the date that a party has the right to sue (quoting

Prejean v. Dixie Lloyds Ins. Co., 660 So. 2d 836, 837 (La. 1995))).

              Moreover, after the Supreme Court issued its opinion in Wos v. E.M.A. ex

rel. Johnson, 133 S. Ct. 1391 (2013), Florida courts held that the preamendment

version of section 409.910(11)(f) was preempted by the Medicaid Act to the extent it

required payment beyond that shown to be for medical expenses. See, e.g., Agency for

Health Care Admin. v. Riley, 119 So. 3d 514, 515 (Fla. 2d DCA 2013); see also Garcon

v. Fla. Agency for Health Care Admin., 150 So. 3d 1101, 1102 (Fla. 2014); Harrell v.

State, 143 So. 3d 478, 480 (Fla. 1st DCA 2014); Davis v. Roberts, 130 So. 3d 264, 269

(Fla. 5th DCA 2013); Agency for Health Care Admin. v. Williams, 127 So. 3d 854, 855

(Fla. 4th DCA 2013). Suarez should be given an opportunity to challenge the amount of

the settlement allocated for recovered medical expense damages in the newly-adopted

agency proceedings under section 490.910(17)(b).




                                            -5-
               "[T]o render the mandamus a proper remedy, the officer to whom it is to

be directed, must be one to whom, on legal principles, such writ may be directed; and

the person applying for it must be without any other specific and legal remedy."

Marbury v. Madison, 5 U.S. 137, 169 (1803); see also Ledger v. City of St. Petersburg,

135 So. 3d 496, 497 (Fla. 2d DCA 2014) ("A writ of mandamus is used to enforce an

established legal right by compelling a public officer or agency to perform a duty

required by law." (quoting Lee Cnty. v. State Farm Mut. Auto. Ins. Co., 634 So. 2d 250,

251 (Fla. 2d DCA 1994))). Here, Suarez does not have a clear legal right to have her

dispute resolved in the circuit court on these facts. Nor is the circuit court required by

law to maintain jurisdiction over these proceedings. Should Suarez wish to pursue her

challenges to the 2013 version of section 409.910, she may do so within the agency

proceedings.

               Accordingly, we deny the petition.


WALLACE, SLEET, and LUCAS, JJ., Concur.




                                            -6-
