16-003369 Shands Jacksonville Medical Center, Inc., D/B/A Uf Health Jacksonville vs. Department Of Health
 Status: Closed
Recommended Order on Friday, January 27, 2017.


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Summary: There is no available "slot" for a new trauma center in TSA 5, and, therefore, Orange Park's application for provisional approval must be denied. The Department improperly relied upon an unadopted rule in accepting Orange Park's application.

1responses were filed by Respondent. Due to the volume, the exceptions and responses

14are not attached.

17After review of the entire record, the Department makes the following findings

29and conclusions:

31STANDARD OF REVIEW FOR RULING ON

37EXCEPTIONS TO A RECOMMENDED ORDER

42Section 120.57(1)(k), Florida Statutes, directs the Department to include in its

53final order an explicit ruling on each exception, but an agency need not rule on an

69exception that does not clearly identify the disputed portion of the recommended order

82by page number or paragraph, that does not identify the legal basis for the exception, or

98that does not include appropriate and specific citations to the record.

109An agency may not reject or modify findings of fact in a recommended order

123unless the agency first determines from a review of the entire record, and states with

138particularity in the order, that the findings of fact were not based upon competent

152substantial evidence or that the proceedings on which the findings were based did not

166comply with essential requirements of law. See section 120.57(1)0), Florida Statutes.

177An agency may reject or modify the conclusions oflaw over which the agency has

191substantive jurisdiction and interpretation of administrative rules over which the agency

202has substantive jurisdiction. When rejecting or modifying such conclusion oflaw or

213interpretation of administrative rule, the agency must state with particularity its reasons

225for rejecting or modifying such conclusion of law or interpretation of administrative rule

238and must make a finding that its substituted conclusion of law or interpretation of

252administrative rule is as or more reasonable than that which was rejected or modified.

266See§ 120.57(1)(1), Fla. Stat.

270The RO in this matter interprets the statutes and rules that govern the approval

284of a hospital's application to become a trauma center. The Department has substantive

297jurisdiction over these statutes and rules, being the agency tasked with regulating the

310trauma system and approving trauma centers. See §§ 395.40(3), 395-4001(3) and

321395-4025, Fla. Stat. For the purpose of clarity, a summary of the relevant statutes and

336rules regarding trauma center approval, as interpreted by the Department, is presented

348below.

349SUMMARYOFTHEAPPROVAL

350PROCESSFORTRAlmdACENTERS

351The intent of the trauma statutes is to plan for and establish an inclusive trauma

366system to meet the needs of trauma victims. See § 395-40(2), Fla. Stat. An inclusive

381trauma system means a system designed to meet the needs of all injured trauma victims

396who require care in an acute-care setting and into which every health care provider or

411facility with resources to care for the injured trauma victim is incorporated. I d.

425The trauma statutes designate nineteen trauma service areas ("TSAs") that

437incorporate all the counties in the state for the purpose of providing statewide, cohesive,

451uniform and integrated trauma care. See §§ 395-402(1) and (4), Fla. Stat. Annually, the

465Department is required to conduct a trauma service assessment for the purpose of

478reviewing the existing trauma system and to determine whether it is effective in

491providing trauma care uniformly throughout the state. See§§ 395-402(2), (3) and (4),

503Fla. Stat. The annual assessment involves the review of several factors including

515geographical considerations, historical patterns of patient referral and transfer,

524inventories of available trauma care resources, population growth and other criteria.

535See § 395-402(3), Fla. Stat. The annual assessment must address the need to maintain

549effective trauma care in areas served by existing trauma centers, including consideration

561of the volume of patients served and the amount of charity care provided. See §

576395-402(2)(g), Fla. Stat. The annual assessment includes a review of the assignment of

589the 67 counties to the TSAs, and a review of the number and level of trauma centers

606needed for each TSA. See§ 395-402(4), Fla. Stat.

614The Department is required to establish a state trauma system plan. See §

627395-4015(1), Fla. Stat. The Department is to use the trauma system plan as the basis for

643establishing a statewide inclusive trauma system. See § 395-4015(3), Fla. Stat. The

655Department is required to update the state trauma system plan annually. See §

668395-40(6)(c), Fla. Stat. Based on the annual trauma system plan, the Department of

681Health is required to establish the approximate number of trauma centers needed to

694ensure reasonable access to high-quality trauma services. See § 395-4025(1), Fla. Stat.

706The Department shall allocate, by rule, the number of trauma centers needed for each

720TSA. See§ 395-402(4)(b), Fla. Stat. Florida Administrative Code Rule 64J-2.010(3)

730allocates the number of trauma centers needed for each TSA. In this Final Order, the

745trauma center allocations in this rule are sometimes referred to as the number of "slots"

760in each TSA.

763In summary, the statutes require the Department, on an annual basis, to assess

776the effectiveness of the statewide trauma system plan, update the plan, and update the

790approximate number of trauma centers needed in each TSA for the purpose of

803establishing an inclusive system that provides high-quality trauma services to trauma

814victims. Based on the Legislative intent expressed in section 395.40, Florida Statutes,

826the purpose of the annual trauma system assessment and plan is to provide a current

841adaptable system that meets the needs of trauma victims, and is not for the purpose of

857protecting a hospital's profits.

861The approval of applications submitted by hospitals that desire to be trauma

873centers spans over a 21 month timeframe. See § 395-4025 and Fla. Admin. Code R. 64J-

8892.012. The application approval occurs in stages and includes the invitation to submit

902letters of intent, the submission of letters of intent, the submission of applications, a

916provisional review, an in-depth review, an on-site visit and final selection. See§

928395-4025, Fla. Stat.; Fla. Admin. CodeR. 64J-2.012 and R. 64J-2.016.

938The Department shall annually notify each acute care hospital that the

949Department is accepting letters of intent from hospitals interested in becoming trauma

961centers. See§ 395-4025(2)(a), Fla. Stat. Hospitals must submit letters of intent

972postmarked no later than midnight on October 1. See id. By October 15, the

986Department shall send to all hospitals that submitted a letter of intent an application

1000package with instructions. See§ 395-4025(2)(b), Fla. Stat. Applications from hospitals

1010seeking selection as trauma centers must be submitted no later than April1. See §

1024395-4025(2)(c), Fla. Stat.

1027The Department shall conduct a provisional review of each application to

1038determine if the hospital has the critical elements of a trauma center including the

1052equipment, facilities, personnel in sufficient number with proper qualifications, and an

1063effective quality assurance process. See§ 395-4025(2)(c), Fla. Stat.

1071After April 30, "any hospital that submitted an application found acceptable by

1083the Department based on the provisional review shall be eligible to operate as a

1097provisional trauma center." § 395-4025(3), Fla. Stat. (emphasis added).

1106For each step described above, section 395.4025, Florida Statutes, uses the term

"1118shall," a mandatory term that normally creates an obligation impervious to judicial

1130discretion. See City of St. Petersburg v. Remia, 41 So. 3d 322, 326 (Fla. 2d DCA 2010).

1147The description of the letters of intent, application submission and provisional

1158review in sections 395-4025(2) and (3), Florida Statutes, does not make any reference to

1172the consideration of need for trauma centers in the applicable TSA. See e.g. The Public

1187Health Trust of Miami-Dade County v. Dep't of Health and Kendall Healthcare Group,

1200Case No. 16-3370, 16-3372 (DOAH Oct. 6, 2016) (Order Granting Motion to Partially

1213Dismiss Petition for Administrative Hearing). At the provisional review stage, the

1224statute only describes the categories of critical elements that the hospital must meet,

1237directing that any hospital found acceptable shall be eligible to operate as a provisional

1251trauma center. See§ 395-4025(3), Fla. Stat.

1257Between May 1 and October 1 of each year, the Department shall conduct an in­

1272depth evaluation of all the applications found acceptable in the provisional review. See §

1286395-4025(4), Fla. Stat.

1289Beginning October 1 of each year and ending no later than June 1 of the following

1305year, a review team of out-of-state experts, assembled by the Department, shall make

1318on-site visits to all provisional trauma centers. See § 395-4025(5), Fla. Stat. Final

1331selection of trauma centers occurs after the on-site review. See§ 395.4025(6), Fla. Stat.

1344At this point, the statute requires the Department to take need into consideration stating

1358that "[t]he hospitals being considered as provisional trauma centers shall meet all the

1371requirements of a trauma center and shall be located in a TSA that has a need for such a

1390trauma center." § 395-4025(5), Fla. Stat. Because the requirement to consider need is

1403located in the portion of the statute that discusses the final stage of the review, not the

1420provisional review stage, the need requirement cannot be interjected into the

1431provisional review. In addition, the sentence concerning need in section 395-4025(5)

1442clarifies that it is not referring to the provisional review, stating that hospitals being

1456considered "as provisional trauma centers shall meet all the requirements of a trauma

1469center .... " Id. (emphasis added). The provisional review does not require a hospital to

1483meet all the requirements of a trauma center, but only the standards involving the

1497critical elements. See§ 395-4025(2)(c), Fla. Stat.

1503The plain language of the statute must be followed unless it leads to an

1517unreasonable result or a result contrary to legislative intent. See Daniels v. Fla. Dep't of

1532Health, 898 So. 2d 61, 64 (Fla. 2005). Considering need at the final review stage, rather

1548than at the front end of the application review, does not lead to an unreasonable result

1564or a result contrary to legislative intent. The Department's duty, based on the structure

1578of the trauma statutes and the legislative intent expressed, is to establish and maintain,

1592on a yearly basis, an inclusive, current, and effective trauma system that provides

1605quality trauma care to all Florida residents and visitors. It is reasonable to allow any

1620applicant hospital that meets the critical elements to operate as a provisional trauma

1633center because this provides the Department with additional important information

1643about the impact and effectiveness of adding trauma centers to a TSA. 2

1656The statutes do not direct the Department to consider whether it is reasonable or

1670unreasonable for a hospital to seek to become a trauma center in a TSA that does not

1687have a "slot" available according to Florida Administrative Code Rule 64J-2.010(3). The

1699trauma statutes and rules do not direct the Department to evaluate whether such an

17132 All trauma centers, including provisional trauma centers, must provide data to the trauma registry for the purpose

1731of monitoring patient outcome and ensuring compliance with the standards of approval. See§ 395.404, Fla. Stat.

1747endeavor would be profitable to a hospital. Applying to become a trauma center

1760involves risk whether or not there is a current open slot in a TSA. The critical elements

1777must be met at the time of the application, including the updated facilities, equipment

1791and personnel needed for providing trauma care. A hospital is free to evaluate the

1805potential risks versus the potential benefits of seeking to become a trauma center and

1819there is no guarantee that a hospital's application will be approved.

1830Interpreting the trauma statutes based on the plain meaning is also reasonable

1842considering the timing of the Department's duty to update the trauma system plan and

1856the required timeframe for reviewing a trauma center application. Under the statutes,

1868the approximate need for trauma centers in each TSA is updated annually,3 based on the

1884annual assessment and plan. Since the application process takes close to two years, it

1898would be reasonable for a hospital to choose to begin the application process in

1912anticipation of an update to the allocated need in its TSA which could potentially be in

1928place by the time final trauma center selection would occur.

1938RULING ON ORANGE PARK'S MOTION TO STRIKE

1945On March 7, 2017, Orange Park filed a Motion to Strike Shands' Exceptions to the

1960Recommended Order. Orange Park asserts that the exceptions are redundant and

1971unnecessary to preserve for appeal UF Health's request for attorney fees. Orange Park

1984cites the Florida Rule of Civil Procedure 1.140(±) as the authority for striking the

1998exceptions while acknowledging that this rule is only persuasive authority in an

2010administrative proceeding.

20123 The current rule incorporates the annual trauma assessment conducted in 2014. Two annual assessments have

2028been conducted since that time. The process of updating the rule on an annual basis, as contemplated by the statute,

2048has been hindered by challenges filed by existing trauma centers seeking to prohibit the opening of any additional

2066trauma centers in its respective TSA.

2072Exceptions are governed by sections 120.57(1)(k) and 0), Florida Statutes, and

2083Florida Administrative Code Rule 28-106.217. Neither the statute, nor the rule,

2094provides for striking a party's exception because it is redundant. The Florida Rule of

2108Civil Procedure 1.140(±) does not apply. Orange Park's Motion to Strike is denied.

2121RULING ON EXCEPTIONS

2124Ruling on the Respondent's and Orange Park's Exceptions to Paragraph 2

2135The Respondent takes exception to the last two sentences of paragraph 2 which

2148state, "The number of trauma patients treated by UF Health Jacksonville has declined

2161sharply since the Department authorized Orange Park to operate as a trauma center.

2174UF Health Jacksonville projects an annual loss of 320 to 540 trauma cases as a result of

2191Orange Park's operation of a trauma center."

2198The Respondent argues that the findings in these two sentences are not

2210supported by competent substantial evidence, arguing that the Administrative Law

2220Judge ("ALJ") did not take into account the long-term fluctuations in patient volumes

2235and did not analyze whether loss in patient numbers could be the result of other factors.

2251As to the ALJ's finding that "UF Health Jacksonville projects an annual loss of

2265320 to 540 trauma cases as a result of Orange Park's operation of a trauma center," this

2282fact was stipulated to by the Respondent in the Prehearing Stipulation. The exception is

2296denied as to that sentence.

2301As to the ALJ's finding that "[t]he number of trauma patients treated by UF

2315Health Jacksonville has declined sharply since the Department authorized Orange Park

2326to operate as a trauma center," there is no competent substantial evidence to support

2340the finding.

2342Based on the data represented in UF Health's Exhibit 9, along with the testimony

2356of Ms. Gerdik, 4 the evidence does not show a sharp decline in trauma patients. UF

2372Health's Exhibit 9 shows monthly and yearly trauma patient totals divided into level1,

2385level 2, and level 3 trauma alert patients from 2010 through half of 2016, with levell

2401representing the most severely injured trauma patients.s There are charts revealing

2412significant fluctuations from month to month and year to year in trauma patient

2425numbers. Three graphs plot trauma patient totals for each trauma alert level from

2438January through July of 2015, and January through July of 2016. A linear trendline for

24532016 is also plotted on each graph. The only trendline that shows a sharp downward

2468slope is on the level1 graph, showing a downward trend from January to July of 2016.

2484The graph showing the downward trend is not competent substantial evidence of

2496a sharp decline of level1 trauma patients. The graph only represents six months of data,

2511only three of which were while Orange Park operated as a trauma center. UF Health

2526had 78 months of available data on patient volumes showing significant variation in

2539patient volumes from month to month. The level1 downward trend represented on the

2552graph starts at January of 2016, a month when UF Health treated 54level1 patients, the

2567second highest number of level1 trauma patients compared to all other months

2579represented. Levell patient volumes in January averaged 33 over the seven years of

2592available data. 6 Using only six months of data and starting the graph at one of the

2609highest numbers skews the trend downward.

26154 Transcript pages 479.

26195 Exhibit 9, page 000624.

26246 UF Health treated 34levell patients in Jan. of2010; 33 in Jan. of2011; 21 in Jan. of2012; 30 in Jan. of2013; 34

2646in Jan. of2014; 26 in Jan. of2015; and 54 in Jan. of2016. The total number oflevell patients seen in January over

2667those seven years was 232, divided by 7 equals an average of33.1 for the month of January.

2684The Respondent's exception to paragraph 2 is granted in part and denied in part.

2698Paragraph 2 of the RO is modified to omit the sentence "The number of trauma patients

2714treated by UF Health Jacksonville has declined sharply since the Department authorized

2726Orange Park to operate as a trauma center."

2734Orange Park takes exception to the final sentence stating "UF Jacksonville

2745projects an annual loss of 320 to 540 trauma cases as a result of Orange Park's operation

2762of a trauma center." This fact was agreed to in the Prehearing Stipulation.

2775Orange Park's exception to paragraph 2 is denied.

2783Ruling on the Respondent's Exception to Paragraph 3

2791The Respondent takes exception to the last sentence of paragraph 3 stating

"2803[s]ubsequent to the initiation of this proceeding, Orange Park worked with the

2815Department to purportedly complete the in-depth review of its application and has

2827scheduled a final verification survey." The Respondent argues that this finding is not

2840relevant to the issues framed by the pleadings filed by the Petitioner.

2852In its petition, UF Health challenges the Department's provisional approval of

2863Orange Park, but also alleges that the Department's decision to grant Orange Park

2876approval should have been placed on hold until this administrative proceeding was

2888concluded. The finding is related to an issue framed in the Petitioner's pleadings.

2901The Respondent's exception to paragraph 3 is denied.

2909Ruling on the Respondent's and Orange Park's Exceptions to Paragraph 16

2920The Respondent takes exception to paragraph 16, specifically the interjection of

"2931need" into the provisional review of trauma center applications. The Respondent

2942argues that although labeled a finding of fact, the statement that need is part of the

2958provisional review is a conclusion of law over which the Department has substantive

2971jurisdiction.

2972In paragraph 16, the ALJ states, "With the exception of need, as evidenced by an

2987available allocation slot determined pursuant to rule 64J -2.010(3) as discussed below, the

3000Orange Park application is in substantial compliance with the statutory and rule

3012requirements for provisional approval."

3016The ALJ' s prefatory clause that states "with the exception of need" indicates that

"3030need" is an element that must be met for provisional approval. Inserting need as a

3045requirement for provisional approval of a trauma center interprets the statutes and rules

3058governing trauma center approval and as such, is a conclusion of law. If a conclusion of

3074law is improperly labeled as a finding of fact, the label is disregarded and the item

3090treated as though it were properly labeled. See Battaglia Properties, Ltd. v. Fla. Land &

3105Water Adjudicatory Comm'n, 629 So. 2d 161, 168 (Fla. 5th DCA 1993).

3117As described above in the Summary of the Approval Process for Trauma Centers,

3130section 395-4025, Florida Statutes, does not include allocated need as a requirement

3142during the provisional review of a trauma center application, using the mandatory term

"3155shall" in directing the Department to accept and provisionally review applications and

3167directing that any hospital that meets the critical elements is eligible to begin operations

3181after April30. The Department's interpretation is as reasonable as or more reasonable

3193than that of the ALJ.

3198The Respondent's exception to paragraph 16 is granted.

3206Orange Park also takes exception to the prefatory clause in paragraph 16, arguing

3219that the ALJ's interpretation of the trauma statutes is contrary to the Department's

3232reasonable interpretation. Orange Park also argues that "need" can be determined by

3244empirical data. Orange Park's exception is granted, but only for the reasons stated in the

3259ruling on the Respondent's exception. The ALJ is referring to need as allocated in Rule

327464J-2.010(3).

3275Accordingly, paragraph 16 is modified to omit the clause "[ w]ith the exception of

3289need, as evidenced by an available allocation slot determined pursuant to rule 64J-

33022.010(3), as discussed below."

3306Ruling on Orange Park's Exception to Paragraph 17

3314Orange Park takes exception to how the ALJ characterizes the Department's April

332628, 2016letter in paragraph 17, which states that "the Department intended to approve

3339Orange Park's application" and informed Orange Park that it "may open its trauma

3352center immediately and 'begin to operate as a Provisional Level II trauma center."'

3366Orange Park asserts that the letter did not "indicate" that the application was

3379provisionally approved, but rather expressly informed Orange Park that its application

3390was provisionally approved.

3393It is unclear how Orange Park is distinguishing the terms "indicate" and

"3405expressly informed." That aspect of Orange Park's exception is denied.

3415Orange Park also takes exception to the term "may," arguing that the letter stated

3429Orange Park "must" begin operations on May 1, 2016.

3438The April28, 2016letter, admitted into evidence as Joint Exhibit 8, states,

"3449Orange Park will begin to operate as a Provisional Level II trauma center beginning

3463May 1, 2016."

3466Orange Park's exception to paragraph 17 is granted in part only in reference to

3480the ALJ's use of the term "may."

3487Accordingly, the term "may" in paragraph 17 is modified to say "will."

3499Ruling on the Respondent's Exception to Paragraph 18

3507The Respondent takes exception to paragraph 18, arguing that the findings are

3519irrelevant to the issue raised by UF Health in its petition.

3530Section 120.57(1)(1), Florida Statutes, does not include relevance as a basis for

3542rejecting or modifying a finding of fact.

3549The Respondent's exception to paragraph 18 is denied.

3557Ruling on the Respondent's Exception to Paragraph 19

3565The Respondent takes exception to paragraph 19, arguing that the findings are

3577irrelevant to the issue raised by UF Health in its petition.

3588Section 120.57(1)(1), Florida Statutes, does not include relevance as a basis for

3600rejecting or modifying a finding of fact.

3607The Respondent's exception to paragraph 19 is denied.

3615Ruling on the Respondent's and Orange Park's Exceptions to Paragraph 22

3626The Respondent takes exception to paragraph 22, arguing that the findings are

3638irrelevant and that the findings are based on proceedings that departed from the

3651essential requirements of the law because the Division of Administrative Hearings

3662("DOAH") does not have jurisdiction to determine matters not raised in the pleadings.

3677Section 120.57(1)(1), Florida Statutes, does not include relevance as a basis for

3689rejecting or modifying a finding of fact.

3696In paragraph 22, the ALJ makes the finding that the Department continued to

3709move Orange Park's application through the application review steps, in this paragraph

3721discussing the in-depth review. The finding relates to an issue framed in the UF

3735Health's petition, although not an issue that DOAH could resolve, specifically that the

3748Department should have stayed Orange Park's provisional approval.

3756The Respondent's exception is denied.

3761Orange Park also takes exception to paragraph 22, making the same arguments.

3773Orange Park's exception to paragraph 22 is denied.

3781Ruling on Respondent's and Orange Park's Exceptions to Paragraphs 23-25

3791The Respondent takes exception to paragraphs 23-25, making the same

3801arguments as were made in Respondent's exception to paragraph 22, that the ALJ's

3814findings are irrelevant and outside the issues framed in the pleadings.

3825In paragraphs 23-25, the ALJ describes how the Department continued to move

3837Orange Park's application through the in-depth review and the scheduling of the on-site

3850visit. There is competent substantial evidence to support the findings and the findings

3863relate to an issue framed in the UF Health's petition.

3873For the same reasons as the ruling on the Respondent's exception to paragraph

388622, the Respondent's exceptions to paragraphs 23-25 are denied.

3895Orange Park also takes exception to paragraph 23-25, making the same

3906arguments.

3907Orange Park's exception to paragraphs 23-25 are also denied.

3916Ruling on the Respondent's Exception to Paragraph 26

3924The Respondent takes exception to paragraph 26 which states:

3933The Department's existing rule 64J-2.010 is titled "Allocation of Trauma

3943Centers Among Trauma Service Areas." The rule allocates the maximum

3953number of trauma centers needed in each of 19 trauma service areas. See

3966id. Rule 64J-2.010(3) allocates a need for only one trauma center in TSA

39795-

3980The Respondent argues that these findings are irrelevant.

3988Section 120.57(1)0), Florida Statutes, does not include relevance as a basis for

4000rejecting or modifying a finding of fact.

4007The Respondent also takes exception to the ALJ's use of the term "maximum"

4020arguing that the term is not found anywhere in the trauma statutes or trauma rules.

4035In paragraph 26, the ALJ describes the existing allocation rule which describes

4047the number of trauma centers needed for each TSA. Although the term "maximum" is

4061not found in the trauma rules, Rule 64J-2.016(11) describes the tie breaking procedures

4074if the number of provisional trauma centers found eligible exceeds "the number

4086permitted, as provided in 64J-2.010(3)." There is competent substantial evidence to

4097support the ALJ' s finding.

4102The Respondent's exception to paragraph 26 is denied.

4110Ruling on the Respondent's Exception to Paragraph 27

4118The Respondent takes exception to paragraph 27, arguing that the findings are

4130not relevant.

4132Section 120.57(1)0), Florida Statutes, does not include relevance as a basis for

4144rejecting or modifying a finding of fact. The Respondent's exception to paragraph 27 is

4158denied.

4159Ruling on the Respondent's Exception to Paragraph 28

4167The Respondent takes exception to paragraph 28, arguing that the findings are

4179not relevant.

4181Section 120.57(1)0), Florida Statutes, does not include relevance as a basis for

4193rejecting or modifying a finding of fact. The Respondent's exception to paragraph 28 is

4207denied.

4208Ruling on the Respondent's and Orange Park's Exceptions to Paragraph 29

4219The Respondent takes exception to paragraph 29, arguing that the findings are

4231not relevant.

4233Section 120.57(1)0), Florida Statutes, does not include relevance as a basis for

4245rejecting or modifying a finding of fact. The Respondent's exception to paragraph 29 is

4259denied.

4260Orange Park takes exception to the statement that "[t]he 2014 assessment

4271incorporated into rule 64J-2.010 makes no reference to community support for an

4283additional trauma center in TSA 5." Orange Park argues that the statement is

4296incomplete and misleading because in 2015, the Department received letters from city

4308and county commissions in support of an additional trauma center in TSA 5.

4321The 2014 assessment could not have included letters of support that were

4333submitted in 2015. It is not proper for an administrative agency to make supplemental

4347findings of fact on an issue about which the ALJ made no findings. See Florida Power &

4364Light Co. v. State of Fla; Manatee County, et al., 693 So. 2d 1025, 1026-27 (Fla. 1st DCA

43821997). There is competent substantial evidence to support the ALJ's finding.

4393Orange Park's exception to paragraph 29 is denied.

4401Ruling on the Respondent's and Orange Park's Exceptions to Paragraph 30

4412The Respondent takes exception to paragraph 30, arguing that the findings are

4424not relevant.

4426Section 120.57(1)0), Florida Statutes, does not include relevance as a basis for

4438rejecting or modifying a finding of fact. The Respondent's exception to paragraph 30 is

4452denied.

4453Orange Park takes exception to paragraph 30 arguing that the ALJ's statement

4465that "rule 64J-2.010 allocated a need for just one trauma center in TSA 5" was

4480inconsistent with the Department's interpretation of the rule and either a conclusion of

4493law or a factual finding infused with policy. Orange Park argues that the ALJ erred in

4509reaching the conclusion that "need" can only be satisfied through the existence of an

4523available slot in Rule 64J-2.010. Orange Park instead argues that "need" can be

4536established through empirical data.

4540Orange Park also takes exception to the statement that "no party disputed the

4553allocation of just one trauma center in TSA 5 under the current version of rule 64J-

45692.010." Orange Park explains that, as demonstrated in its Proposed Recommended

4580Order and Post Hearing Memorandum of Law, the trauma center allocations expired

4592during the time period relevant to this matter.

4600Orange Park is reading more information into this paragraph than what is stated.

4613The ALJ merely states that Rule 64J-2.010 allocates one trauma center for TSA 5. See

4628Fla. Admin Code R. 64J-2.010(3). The ALJ's use of the term "need" refers to allocated

4643need under the rule promulgated according to the statutory directive which states, "[t]he

4656department shall allocate, by rule, the number of trauma centers needed for each

4669trauma service area." § 395-402(4)(b), Fla. Stat. (emphasis added). The ALJ did not

4682make any factual findings about need based on empirical data.

4692Orange Park's exception to paragraph 30 is denied.

4700Ruling on the Respondent's and Orange Park's Exceptions to Paragraph 31

4711The Respondent takes exception to the first sentence in paragraph 31 which

4723states, "Pursuant to the Department's existing trauma application processing rule, the

4734lack of an available slot for an additional trauma program in TSA 5 should have caused

4750the rejection of Orange Park's letter of intent and application." The Respondent argues

4763that this sentence is not a finding of fact, but a legal interpretation of the trauma

4779statutes and rules.

4782The sentence referenced is a conclusion of law as it asserts that the Department

4796should have taken a particular action based on an interpretation of the Department's

4809rules. If a conclusion of law is improperly labeled as a finding of fact, the label is

4826disregarded and the item treated as though it were properly labeled. See Battaglia at

4840168.

4841As described above in the Summary of the Approval Process for Trauma Centers,

4854the Department has substantive jurisdiction over the trauma statutes and rules. The

4866statutes require the Department to provisionally approve hospital applicants that meet

4877the critical elements and allocated need is not a consideration at the provisional review

4891stage. This interpretation is as reasonable as or more reasonable than that of the ALJ.

4906The Respondent's exception to paragraph 31 is granted and the following

4917sentence is omitted: "Pursuant to the Department's existing trauma application

4927processing rule, the lack of an available slot for an additional trauma program in TSA 5

4943should have caused the rejection of Orange Park's letter of intent and application."

4956Orange Park takes exception to the same sentence in paragraph 31. Orange Park,

4969however, argues that the need for an additional trauma can be based on empirical data.

4984Orange Park's exception to paragraph 31 is granted, but only for the reasons

4997described under the ruling on the Respondent's exception.

5005Ruling on the Respondent's and Orange Park's Exceptions to Paragraph 32

5016The Respondent takes exception to paragraph 32, arguing that the finding in this

5029paragraph are irrelevant to the provisional approval of Orange Park.

5039Section 120.57(1)0), Florida Statutes, does not include relevance as a basis for

5051rejecting or modifying a finding of fact. The Respondent's exception to paragraph 32 is

5065denied.

5066Orange Park takes exception to the same paragraph, arguing that the finding is

5079incomplete because it ignores the 2015 Trauma Service Area Assessment. The ALJ did

5092not make findings about the 2015 assessment. The Department cannot make

5103supplemental findings of fact in a final order. See Florida Power and Light at 1026-27.

5118Orange Park's exception to paragraph 32 is denied.

5126Ruling on the Respondent's and Orange Park's Exceptions to Paragraph 33

5137The Respondent takes exception to paragraph 33, arguing that the findings are

5149not relevant.

5151Section 120.57(1)0), Florida Statutes, does not include relevance as a basis for

5163rejecting or modifying a finding of fact. This aspect of the exception is denied.

5177The Respondent also takes exception to the ALJ's assertion that allocated need is

5190a part of the provisional review, arguing that this assertion is an interpretation of the

5205rule and a conclusion oflaw.

5210Paragraph 33 states:

5213At all times relevant to this proceeding, rule 64J -2.010 allocated a need for

5227only one trauma center in TSA 5, and rule 64J-2.012(1)(a) only permitted

5239the filing of a provisional trauma center application "if an available position,

5251as provided in rule 64J-2.010, F.A.C., exists in the hospital's TSA."

5262The ALJ has left out a portion of the quoted sentence in Rule 64J-2.012(1)(a)

5276which states, "[t]he letter of intent is nonbinding, but preserves the hospital's right to

5290complete its application by the required due date if an available position, as provided in

5305Rule 64J-2.010, F.A.C., exists in the hospital's TSA." Thus, the ALJ has interpreted the

5319rule to include an additional requirement, finding that the filing of a provisional trauma

5333center application was only permitted if there was an available position in the allocation

5347rule. That language is not found in Rule 64J-2.012(1)(a).

5356The Respondent's exception to paragraph 33 is granted as to the ALJ's

5368misstatement of Rule 64J-2.012(1)(a). Accordingly, paragraph 33 is modified to read:

5379At all times relevant to this proceeding, rule 64J -2.010 allocated a need for

5393only one trauma center in TSA s. Rule 64J-2.012(1)(a) states, "the letter of

5406intent is nonbinding, but preserves the hospital's right to complete its

5417application by the required due date if an available position, as provided in

5430Rule 64J-2.010, F.A.C., exists in the hospital's TSA."

5438Orange Park takes exception to the finding that Rule 64J-2.010 "allocated a need

5451for only one trauma center in TSA s." Orange Park argues that the finding is a

5467conclusion oflaw and referencing its arguments about empirical data.

5476The phrase that Orange Park takes exception to is not a conclusion oflaw, but a

5491recitation of Rule 64J-2.010 which only allocates one trauma center for TSA s.

5504Orange Park's exception is denied.

5509Ruling on Respondent's Exceptions to Paragraph 34

5516The Respondent takes exception to the finding of fact in paragraph 34 that

"5529[p]rior to 2015, the Department's practice was to reject a letter of intent when there was

5545no allocated need available for an additional trauma center under rule 64J -2.010." The

5559Respondent argues that Petitioner did not present any evidence of the Department's

5571practice prior to 2014. The Respondent did not include any appropriate and specific

5584citations to the record.

5588Because the Respondent did not include citations to the record, the Department

5600declines to rule on this portion of the exception pursuant to section 120.57(1)(k), Florida

5614Statutes.

5615The Respondent also takes exception to the ALJ' s conclusion of law that the

5629previous practice of rejecting a letter of intent when there was no allocated need

5643available "was consistent with the requirements of rule 64J-2.012(1)(a)." This assertion

5654by the ALJ is a conclusion of law over which the Department has substantive

5668jurisdiction. The Department's interpretation, as described in the ruling on

5678Respondent's exception to paragraph 33, and in the Summary on the Approval Process

5691for Trauma Centers is as or more reasonable than that of the ALJ.

5704This aspect of the Respondent's exception is granted and paragraph 34 is

5716modified to omit the sentence, "This practice was consistent with the requirements of

5729rule 64J-2.012(1)(a)."

5731Ruling on the Respondent's Exception to Paragraph 3.5

5739The Respondent takes exception to the findings in paragraph 35, arguing that the

5752findings are not relevant. The Respondent further takes exception to the ALJ' s

5765reference to "prior practice" arguing that there is no competent substantial evidence of

5778the Department's practice prior to 2014. The Respondent does not include citations to

5791the record. The Respondent also argues that paragraph 35 represents the ALJ's legal

5804conclusion that allocated need is a part of the provisional review.

5815In paragraph 35, the ALJ describes the Department's response to Orange Park's

5827letter of intent in 2014 and the Department's response to Orange Park's letter of intent

5842in 2015. This is a finding of fact and there is competent substantial evidence to support

5858the finding.

5860The Respondent's exception to paragraph 35 is denied.

5868Ruling on the Respondent's and Orange Park's Exceptions to Paragraph 36

5879The Respondent takes exception to the ALJ' s finding that "the Department

5891accepted Orange Park's letter of intent pursuant to its new practice, despite the lack of

5906any allocated need for an additional trauma center in TSA s." The Respondent argues

5920that this finding is irrelevant.

5925The Respondent also argues that the paragraph expresses a conclusion of law

5937concerning when allocated need should be considered in the application review process;

5949however, paragraph 36 simply describes that the Department accepted Orange Park's

5960letter and that there was no allocated need for an additional trauma center in TSA s.

5976The Respondent's exception to paragraph 36 is denied.

5984Orange Park takes exception to the clause, "despite the lack of any allocated need

5998for an additional trauma center in TSA s." Orange Park argues that the ALJ is

6013substituting his interpretation of the trauma statutes and rules, thereby creating conflict

6025with the rulings of other ALJ s concerning the consideration of need.

6037Although the ALJ uses the word "despite" which could arguably imply that an

6050allocated need was a requirement, the ALJ does not directly state whether the

6063provisional review involves the consideration of allocated need. Taking the findings in

6075paragraph 36 at face value, it is not a conclusion of law, but a finding of fact.

6092Orange Park's exception to paragraph 36 is denied.

6100Ruling on the Respondent's Exceptions to Paragraph 37

6108The Respondent takes exception to paragraph 37, arguing that the finding is

6120irrelevant.

6121Section 120.57(1)(1), Florida Statutes, does not include relevance as a basis for

6133rejecting or modifying a finding of fact. The Respondent's exception to paragraph 37 is

6147denied.

6148Ruling on the Respondent's and Orange Park's Exceptions to Paragraph 38

6159The Respondent takes exception to paragraph 38, arguing that the finding is

6171irrelevant. The Respondent also takes exception to the statement that the Department

6183is employing "new policies," arguing that the Department has aligned its practice with

6196the clear mandates of the statute.

6202Paragraph 38 states, "[t]he Department offered no testimony or evidence to

6213demonstrate why it was not feasible or practicable to adopt the Department's new

6226policies into rules before applying them." Although phrased as a finding of fact, this

6240statement is premised on the conclusion that the Department's actions were based on an

6254unadapted rule and as such, is a conclusion of law. As stated in the Summary of the

6271Approval Process for Trauma Centers, section 395-4025, Florida Statutes, mandates the

6282Department to accept timely letters of intent, accept timely applications, conduct

6293provisional reviews and approve those applicants that meet the critical elements of a

6306trauma center. The statute does not impose the requirement that the Department

6318consider allocated need until after the site review when final selection occurs. Thus, the

6332Department cannot be operating pursuant to an unadapted rule if it is operating

6345pursuant to the statute.

6349The Respondent's exception to paragraph 38 is granted and the implication that

6361the Department based its actions on an unadapted rule is omitted.

6372Orange Park takes exception to paragraph 38, arguing that the finding is

6384inconsistent with the Department's reasonable interpretation of the trauma statutes.

6394Orange Park also argues that the finding is incomplete because it ignores that the

6408Department has proposed three rules showing a need for two trauma centers in TSA 5,

6423all of which have been challenged by UF Health.

6432Orange Park's exception to paragraph 38 is granted, but only for the reasons

6445described in the ruling on the Respondent's exception to paragraph 38.

6456Ruling on the Respondent's and Orange Park's Exceptions to Paragraph 39

6467The Respondent takes exception to paragraph 39, arguing that it is irrelevant.

6479Section 120.57(1)0), Florida Statutes, does not include relevance as a basis for

6491rejecting or modifying a finding of fact. The Respondent's exception to paragraph 39 is

6505denied.

6506Orange Park takes exception to paragraph 39, arguing that the finding is

6518incomplete because it omits the number of trauma centers proposed for TSA 5· The fact

6533that the ALJ chose not to include every detail about the proposed rule does not negate

6549that there is competent substantial evidence to support the finding.

6559Orange Park's exception to paragraph 39 is denied.

6567Ruling on the Respondent's and Orange Park's Exceptions to Paragraph 40

6578The Respondent takes exception to paragraph 40, arguing that the finding is

6590irrelevant.

6591Section 120.57(1)(1), Florida Statutes, does not include relevance as a basis for

6603rejecting or modifying a finding of fact. The Respondent's exception to paragraph 40 is

6617denied.

6618Orange Park takes exception to paragraph 40 arguing that the finding is

6630irrelevant. Orange Park's exception to paragraph 40 is denied.

6639Ruling on the Respondent's and Orange Park's Exceptions to Paragraph 41

6650The Respondent takes exception to paragraph 41 where the ALJ asserts that there

6663was an "unadapted rule that the Department began to implement in 2015, when it

6677accepted Orange Park's letter of intent, despite the lack of an available slot allocation for

6692an additional trauma center." The Respondent argues that this is a legal conclusion that

6706is inconsistent with the Department's interpretation of the trauma statutes mandating

6717that the Department accept timely letters of intent and accept timely submitted

6729applications regardless of allocated need, and requiring that any hospital that meets the

6742critical elements is eligible to begin operations as a provisional trauma center.

6754As described in the Summary on the Approval Process for Trauma Centers, the

6767allocated need, or available slots, under Rule 64J-2.010 is not considered until after the

6781on-site visit when final selection occurs. This interpretation is based on the plain

6794language of the statutes. The Department was operating in accordance with the statutes

6807and not in accordance with an unadapted rule.

6815The Respondent's exception to paragraph 41 is granted and paragraph 41 is

6827omitted.

6828Orange Park takes exception to paragraph 41, arguing that the Department was

6840operating in accordance with the statute. Orange Park further argues that trauma

6852center "need" can be established through empirical data.

6860Orange Park's exception to paragraph 41 is granted, but only for the reasons

6873described in the ruling on the Respondent's exception to paragraph 41.

6884Ruling on the Respondent's and Orange Park's Exceptions to Paragraph 43

6895The Respondent takes exception to paragraph 43, arguing that the findings are

6907not relevant. The Respondent also takes exception to the finding that "Ms. Colston cited

6921the rejected Order as the basis for the Department's new interpretation of rule 64J-

69352.012 and processing of provisional trauma center applications in the absence of an

6948allocated need." The Respondent points out that the quoted testimony of Ms. Colston in

6962this finding of fact indicates that the "rejected Order" was not the basis for the

6977Department's interpretation of Rule 64J-2.012. The Respondent requests that the

6987entire paragraph be omitted from the final order.

6995In review of the testimony of Ms. Colston quoted by the ALJ in this finding, she

7011testified that the Department "looked at these rules and we looked at the statute." In

7026reference to the "rejected Order" Ms. Colston is quoted saying that it was taken "under

7041consideration when we did these actions."

7047Thus, the quoted testimony in this finding of fact indicates that the referenced

7060order was a consideration, not the sole basis for the Department's decision.

7072The Respondent's exception to paragraph 43 is denied in its request to reject and

7086omit the entire paragraph 43, but granted in part related to the ALJ's statement that Ms.

7102Colston cited the order "as the basis" for the Department's new interpretation.

7114Paragraph 43 is modified to state, "Ms. Colston cited the rejected Order as

7127contributing to the Department's new interpretation .... "

7134Orange Park takes exception to the same clause in paragraph 43, arguing that the

7148order was the "starting point" to the Department's evaluation of the current statutes and

7162rules.

7163Orange Park's exception to paragraph 43 is granted, but only for the reasons

7176described in the ruling on the Respondent's exception to paragraph 43.

7187Ruling on the Respondent's and Orange Park's Exceptions to Paragraph 44

7198The Respondent takes exception to paragraph 44, arguing that the findings are

7210not relevant. The Respondent also takes exception to the finding that Ms. Colston "had

7224difficulty explaining the Department's position regarding its interpretation and

7233compliance with existing versions of rule 64J -2.010 and rule 64J -2.012." The

7246Respondent argues that this finding is not supported by competent substantial evidence,

7258stating that Ms. Colston's explanation was perfectly clear.

7266It is within the purview of the ALJ to weigh the evidence and judge the credibility

7282of witnesses.

7284The Respondent's exception to paragraph 44 is denied.

7292Orange Park takes exception to paragraph 44, making the same arguments

7303concerning Ms. Colston's testimony and for the same reason, Orange Park's exception is

7316denied.

7317Ruling on the Respondent's Exception to Paragraph 45

7325The Respondent takes exception to paragraph 45, arguing that the findings are

7337not relevant.

7339Section 120.57(1)0), Florida Statutes, does not include relevance as a basis for

7351rejecting or modifying a finding of fact. The Respondent's exception to paragraph 45 is

7365denied.

7366Ruling on the Respondent's and Orange Park's Exceptions to Paragraph 46

7377The Respondent takes exception to paragraph 46, arguing that the findings are

7389not relevant. The Respondent also takes exception to the portion of the finding of fact

7404that Ms. Colston "admitted" that it was "not reasonable" "to interpret the Department

7417rules in a way that would allow the operation of provisional trauma centers only to be

7433told, at the final stage of review, that the lack of an available 'slot' prevents the trauma

7450program's final verification."

7453The Respondent argues that this finding puts the Department's witness into the

7465position of making a conclusion of law, whether the Department's interpretation of its

7478trauma statutes and rules is reasonable. Second, the Respondent argues that Ms.

7490Colston was asked whether a particular hypothetical situation posed by the ALJ was

7503reasonable. The Respondent requests that all of paragraph 46 be rejected and omitted

7516from the final order.

7520Ms. Colston's testimony on reasonableness was elicited by questions posed by the

7532ALJ.7 In review of that testimony, the ALJ asked Ms. Colston to make assumptions

7546about a hospital investing millions of dollars to establish a trauma center only to be told

7562at the final stage that final verification could not be granted. Ms. Colston agreed that the

7578hypothetical presented by the ALJ seemed unreasonable. The ALJ's factual finding that

7590Ms. Colston "admitted that the interpretation was not reasonable" based on this

7602testimony, is not based on competent substantial evidence and departs from the

7614essential requirements of the law.

7619Ms. Colston, as a fact witness, was not qualified to render an opinion or a legal

7635conclusion. Ms. Colston was not proffered as an expert in hospital planning and

7648profitability and was therefore not qualified to render an opinion on whether it would be

7663reasonable for a hospital to invest a large sum of money in order to seek provisional

7679approval as a trauma center. Ms. Colston was not qualified to render a legal opinion on

76957 Transcript pages 448-51.

7699the Department's interpretation of a statute or rule, whether it was reasonable or

7712unreasonable.

7713Finally, the ALJ did not question Ms. Colston about whether the Department's

7725interpretation of a statute or rule was reasonable or unreasonable, but rather presented

7738Ms. Colston with a hypothetical situation and questioned her concerning that

7749hypothetical. The ALI then took that testimony as an admission that the Department's

7762interpretation of its statutes and rules was unreasonable.

7770The Respondent's exception to paragraph 46 is granted, and paragraph 46 is

7782omitted.

7783Orange Park takes exception to the findings in paragraph 46, making essentially

7795the same arguments as the Respondent.

7801Orange Park's exception to paragraph 46 is also granted.

7810Ruling on the Respondent's and Orange Park's Exceptions to Paragraph 47

7821The Respondent takes exception to paragraph 47, arguing this is a conclusion of

7834law over which the Department has substantive jurisdiction. In paragraph 47 the ALJ

7847finds that the Department failed to follow its own rules and acted in accordance with an

7863unadapted rule and that its representative (Ms. Colston) admitted the Department's

"7874new interpretation" is not reasonable.

7879As described in the Summary on the Approval Process for Trauma Centers, the

7892statute does not include the availability of a slot, or allocated need, according to Rule

790764J-2.010, as a requirement for approving an applicant to operate as a provisional

7920trauma center. As described in the Summary on the Approval Process for Trauma

7933Centers, the Department's interpretation is as or more reasonable than that of the ALJ,

7947and is consistent with the intent of the trauma statutes articulated in section 395-40,

7961Florida Statutes. As indicated in the ruling on Respondent's exception to paragraph 46,

7974Ms. Colston's testimony concerning a hypothetical cannot be the basis for a

7986determination that the Department "admitted" its interpretation was unreasonable.

7995The Respondent's exception to paragraph 47 is granted and paragraph 47 is

8007omitted.

8008Orange Park also takes exception to paragraph 47, arguing it is contrary to the

8022Department's interpretation of its statutes and rules.

8029Orange Park's exception to paragraph 47 is also granted.

8038Ruling on Respondent's and Orange Park's Exceptions to Paragraph 48

8048The Respondent takes exception to paragraph 48, arguing that the findings are

8060not findings of fact, but conclusions of law. In paragraph 48, the ALJ concludes that the

8076Department was operating in accordance with an unadopted rule.

8085As described in the Summary on the Approval Process for Trauma Centers, the

8098Department was operating in accordance with the trauma statutes.

8107The Respondent's exception to paragraph 48 is granted and paragraph 48 is

8119omitted from the final order.

8124Orange Park also takes exception to paragraph 48, arguing that the legal

8136conclusions are contrary to the Department's interpretation of its statutes and rules.

8148Orange Park's exception to paragraph 48 is granted

8156Ruling on the Respondent's and Orange Park's Exceptions to Paragraph 49

8167The Respondent takes exception to paragraph 49 which states, "[h]igh volumes of

8179patients with high injury severity are necessary for trauma centers to improve and

8192maintain quality through educational opportunities to their trauma staff." The

8202Respondent argues that there is no competent substantial evidence in the record as to

8216what constitutes a "high" volume of patients or that the quality of care will decline in a

8233trauma center that loses a "high" volume of patients.

8242Ms. Gerdik testified that higher numbers of the most severely injured trauma

8254patients are needed in order to obtain the experience necessary for caring for such

8268patients, although Ms. Gerdik did not specify what that "high" number needs to be.

8282There is competent substantial evidence that supports the general idea that a high

8295volume of patients helps to maintain the skill level of the trauma staff.

8308The Respondent also argues that the American College of Surgeons, the

8319preeminent authority on trauma care, recommends minimum annual patient volumes

8329that Level I trauma centers must maintain. UF Health's patient volumes exceeded those

8342numbers while Orange Park was operating as a trauma center. What the Respondent

8355states is supported by the evidence in this matter, but does not negate the ALJ's general

8371statement.

8372The Respondent's exception to paragraph 49 is denied.

8380Orange Park takes exception to paragraph 49 for the same reasons.

8391Orange Park's exception to paragraph 49 is also denied.

8400Ruling on the Respondent's and Orange Park's Exceptions to Paragraph so

8411The Respondent takes exception to paragraph so which discusses the level of

8423experience required for a nurse to be a primary nurse in a trauma critical care unit and

8440how reduced volumes of trauma patients results in fewer educational opportunities to

8452enable nurses to gain experience.

8457The Respondent argues that the findings are irrelevant as to whether the

8469Department should have provisionally approved Orange Park. Section 120.57(1)0),

8478Florida Statutes, does not include relevance as a basis for rejecting or modifying a

8492finding of fact.

8495The Respondent further takes exception that the decline in patient volumes could

8507impact training opportunities, arguing that the AW has speculated that nurses with

8519fewer trauma training opportunities would provide inferior care and that patient

8530outcomes would suffer.

8533Paragraph so does not include a finding that fewer training opportunities results

8545in inferior patient care, outside the necessary experience needed for a nurse to take on

8560the primary care responsibility for a trauma patient. In this paragraph, the ALJ

8573describes the impact of reduced trauma patient volumes on educational opportunities

8584and experience for nurses. Ms. Gerdik testified directly about that subject. The findings

8597are supported by competent substantial evidence.

8603The Respondent's exception to paragraph so is denied.

8611Orange Park takes exception to paragraph so and makes essentially the same

8623arguments as the Respondent.

8627Orange Park's exception to paragraph so is denied.

8635Ruling on the Respondent's and Orange Park's Exceptions to Paragraph 51

8646The Respondent takes exception to the ALJ's finding that "the opening of Orange

8659Park's trauma center has caused the average injury severity score ("ISS") for trauma

8674patients to decrease at UF Health Jacksonville." The Respondent argues that this

8686finding is not supported by competent substantial evidence.

8694In review of the entire record, there is no competent substantial evidence that

8707indicates average ISS scores dropped as a result of the opening of Orange Park. Ms.

8722Gerdik testified that ISS scores dropped from May to July of 2016 while Orange Park

8737was open as a provisional trauma center. 8 However, the exhibit Ms. Gerdik referenced

8751shows that, although the average ISS score dropped from 12 to 11 in 2016, an average

8767ISS score of 11 was common over many of the previous months when Orange Park was

8783not in operation and was the average ISS score for 2015.9

8794Ms. Gerdik also admitted that the average ISS score actually rose when Orange

8807Park was in operation in 2012 and then remained steady after Orange Park ceased

8821operations in 2013. 10 When questioned further, during cross examination, concerning

8832ISS numbers, Ms. Gerdik responded "[a]s a nurse I don't use it very much. I much

8848prefer using the level-one criteria! that we developed back in 2001." 11

8860The Respondent's exception to paragraph 51 is granted and paragraph 51 is

8872omitted.

8873Orange Park takes exception to paragraph 51, providing essentially the same

8884arguments.

8885Orange Park's exception to paragraph 51 is also granted.

8894Ruling on the Respondent's and Orange Park's Exceptions to Paragraph 52

8905The Respondent takes exception to paragraph 52, arguing that the findings are

8917not relevant. Section 120.57(1)Q), Florida Statutes, does not include relevance as a basis

8930for rejecting or modifying a finding of fact.

8938The Respondent also takes exception to the finding that "UF Health Jacksonville

8950projects an annual loss of 320 to 540 trauma cases caused by Orange Park's trauma

89658 Transcript page 477.

89699 UF Health's Exhibit 9, page 000622.

897610 Transcript page 507.

898011 Transcript page 509.

8984center operations" arguing that there is no competent substantial evidence to support

8996the finding.

8998In the Prehearing Stipulation, the Respondent agreed to this fact. The

9009Respondent's exception to paragraph 52 is denied.

9016Orange Park takes exception to the same finding; however, Orange Park also

9028agreed to the same stipulated fact. Orange Park's exception to paragraph 52 is denied.

9042Ruling on the Respondent's and Orange Park's Exceptions to Paragraph 53

9053The Respondent takes exception to the findings in paragraph 53, arguing that the

9066findings are not relevant. Section 120.57(1)(1), Florida Statutes, does not include

9077relevance as a basis for rejecting or modifying a finding of fact.

9089The Respondent also takes exception to the ALJ's finding that UF Health

"9101projects a contribution margin loss of approximately $3.5 million to $5.9 million" due

9114to Orange Park trauma operations. The Respondent argues that there is no competent

9127substantial evidence to support the finding.

9133In the Prehearing Stipulation, the Respondent agreed to this fact. The

9144Respondent's exception to paragraph 53 is denied.

9151Orange Park takes exception to the same finding of fact, but also agreed to the

9166same stipulated fact. Orange Park's exception to paragraph 53 is denied.

9177Ruling on the Respondent's Exception to Paragraph 54

9185The Respondent takes exception to the conclusion oflaw in paragraph 54,

9196arguing that DOAH does not have subject matter jurisdiction because there are no

9209disputes concerning the material facts.

9214The jurisdiction of DOAH is not an area of law over which the Department has

9229substantive jurisdiction. Accordingly, the Respondent's exception is denied.

9237Ruling on the Respondent's and Orange Park's Exceptions to Paragraph 56

9248The Respondent takes exception to the conclusion of law that UF Health "will

9261suffer an injury-in-fact." The Respondent argues that the financial projections on which

9273the conclusion is based, are not supported by competent substantial evidence.

9284The injury-in-fact standard must be met for a third party to have standing under

9298Agrico Chemical Co. v. Dep't of Environmental Regulation, 406 So. 2d. 478 (Fla. 2d

9312DCA 1981). Although the evidence did not establish actual direct injury, the stipulated

9325facts supported projected losses or potential injury.

9332The ALJ's injury-in-fact conclusion is related to UF Health's standing and

9343standing is not an area of law over which the Department has substantive jurisdiction.

9357The Respondent's exception to paragraph 56 is denied.

9365Orange Park takes exception to paragraph 56 for the same reasons and for the

9379same reasons, Orange Park's exception is denied.

9386Ruling on Orange Park's Exception to Paragraph 58

9394Orange Park takes exception to paragraph 58 under the heading "Burden of

9406Proof," arguing that the ALJ failed to address UF Health's burden. Because burden of

9420proof is not an area of law over which the Department has substantive jurisdiction,

9434Orange Park's exception to paragraph 58 is denied.

9442Ruling on the Respondent's and Orange Park's Exceptions to Paragraph 62

9453The Respondent takes exception to the conclusion of law in paragraph 62,

9465arguing that allocated need is not a relevant consideration during the provisional review

9478of a trauma center application.

9483Paragraph 62 does not state anything about when allocated need is to be

9496considered.

9497The Respondent also takes exception to the ALJ's statement, "The Department is

9509required by law to allocate, by rule, the maximum number of trauma centers allowable

9523in each TSA. § 395-402(4)(b), Fla. Stat." The Respondent argues that the ALJ has

9537misstated section 395.402(4)(b), Florida Statutes, which does not use the word

"9548maximum."

9549The Respondent is correct that section 395-402(4)(b), Florida Statutes, does not

9560use the word "maximum" but states that "[t]he department shall allocate, by rule, the

9574number of trauma centers needed for each trauma service area."

9584The Respondent's exception to paragraph 62 is granted in part and denied in

9597part. Accordingly, the third sentence in paragraph 62 is modified to accurately reflect

9610the statute and to state: "The Department is required by law to allocate, by rule, the

9626number of trauma centers needed for each TSA." § 395-402(4)(b), Fla. Stat.

9638Orange Park takes exception to the legal conclusion that "[t]he Department is

9650charged with deciding where trauma facilities are needed, so long as not more than 44

9665trauma centers are approved." Orange Park argues that the ALJ did not cite any

9679authority for this conclusion.

9683Section 395-402(4)(c), Florida Statutes, states "[t]here shall be no more than 44

9695trauma centers in the state." Section 395-402(4)(b), Florida Statutes, directs the

9706Department to, by rule, allocate the number of trauma centers in each TSA. Thus, there

9721is authority for the ALJ's conclusion. This aspect of Orange Park's exception is denied.

9735Orange Park also objects to the insertion of the word "maximum." As ruled in the

9750Respondent's exception, this part of Orange Park's exception is granted.

9760Ruling on the Respondent's and Orange Park's Exceptions to Paragraph 63

9771The Respondent takes exception to the legal conclusion in paragraph 63 which

9783states:

9784In TSA 5, the Department has determined that there is a need for

9797only one trauma center. Fla. Admin. CodeR. 64J-2.010(3). At all times

9808relevant to this case, one verified trauma center, UF Health Jacksonville,

9819has occupied that position in TSA 5, leaving no unallocated "slot" vacant

9831for Orange Park to fill.

9836The Respondent argues that the determination of need is not a relevant

9848consideration in the provisional review of trauma center applications.

9857In this paragraph, the ALJ does not address the different stages of the

9870Department's review of trauma center applications and does not discuss when allocated

9882need should be considered. The Respondent's exception to paragraph 63 is denied.

9894Orange Park takes exception to paragraph 63 arguing that the ALJ is mistakenly

9907conflating TSA allocations with need, indicating that "need" can be based on empirical

9920data.

9921The ALJ' s discussion of need for trauma centers in TSA 5 references need as

9936allocated in Rule 64J-2.010. Orange Park's exception to paragraph 63 is denied.

9948Ruling on the Respondent's Exception to Paragraph 68

9956The Respondent takes exception to the conclusion oflaw stating, "Section

9966395-402(4)(b) mandates that each TSA should have at least one Level I or Level II

9981trauma center, and directs that '[t]he department shall allocate, by rule, the number of

9995trauma centers needed for each trauma service area."' The Respondent argues that need

10009is not a consideration at the provisional review stage.

10018In paragraph 68, the ALJ merely quotes the statute that directs the Department

10031to allocate trauma centers in each TSA by rule. The Respondent's exception to

10044paragraph 68 is denied.

10048Ruling on the Respondent's Exception to Paragraph 69

10056The Respondent takes exception to the statement, "The Department adopted rule

1006764J-2.010 in order to comply with the requirements of section 395.402(4)(b)." The

10079Respondent argues that need is not a consideration at the provisional review stage.

10092In paragraph 69, the ALJ makes no reference to the provisional review of a

10106trauma application. The Respondent's exception to paragraph 69 is denied.

10116Ruling on the Respondent's and Orange Park's Exceptions to Paragraph 70

10127The Respondent takes exception to paragraph 70 which states:

10136Rule 64J-2.010(3) assigns Duval and Clay counties to TSA 5, and

10147then determines a need for only one trauma center in that area. Because UF

10161Health Jacksonville offers an existing Level I trauma center in TSA 5, there

10174is no need for another trauma center, pursuant to the Department's rule.

10186The Respondent again argues that need is not a consideration at the provisional

10199review stage. The Respondent is correct that the provisional review stage does not

10212involve the consideration of need under the allocation rule; however, the statements

10224made by the ALJ are accurate. According to Rule 64J -2.010(3), only one trauma center

10239slot exits in TSA 5 and UF Health holds that slot.

10250The Respondent's exception to paragraph 70 is denied.

10258Orange Park takes exception to the ALI's statement, arguing that the allocated

10270need for trauma centers in TSA 5 expired once the more recent trauma area assessment

10285was conducted by the Department. The ALI is discussing need as allocated by Rule 64J-

103002.010.

10301Orange Park's exception to paragraph 70 is denied.

10309Ruling on the Respondent's and Orange Park's Exceptions to Paragraph 71

10320The Respondent takes exception to paragraph 71, arguing that the conclusions

10331are not relevant to the provisional review of a trauma center application.

10343Paragraph 71 discusses the Department's efforts to amend Rule 64J-2.010 so

10354that two trauma positions would be available in TSA 5 and the challenges filed in

10369opposition to those efforts. This paragraph is actually a finding of fact and there is

10384competent substantial evidence to support these findings.

10391The Respondent's exception to paragraph 71 is denied.

10399Orange Park takes exception to paragraph 71 arguing that the ALJ is improperly

10412substituting his own interpretation of the trauma statutes for that of the Department's.

10425Paragraph 71 does not include any interpretation of the statutes or rules. Orange

10438Park's exception to paragraph 71 is denied.

10445Ruling on Orange Park's Exceptions to Paragraphs 72-76

10453Orange Park takes exception to paragraphs 72-76, arguing that the legal

10464conclusions are contrary to the Department's reasonable interpretation of the trauma

10475statutes. Orange Park references the 15 page Introduction in its exceptions to the RO

10489and its Proposed Recommended Order as the basis for its exceptions. The Introduction

10502describes several legal theories. Orange Park has not identified with sufficient clarity the

10515disputed portions of this range of paragraphs or the legal basis applicable to each

10529exception. For that reason, in accordance with section 120.57(1)(k), Florida Statutes,

10540the Department declines to rule on Orange Park's exceptions to paragraphs 72-76.

10552Ruling on the Respondent's Exception to Paragraph 73

10560The Respondent takes exception to paragraph 73 in its entirety along with

10572endnote 2. Paragraph 73 states:

10577Thus, pursuant to rule 64J-2.012(1)(a), the Department may accept

10586an application for a new trauma center only "if an available position, as

10599provided in Rule 64J-2.010, F.A.C., exists in the hospital's TSA." Thus, the

10611availability of an unmet "position" in rule 64J-2.010(3) is a prerequisite to

10623the acceptance of a trauma application and before approval of any new

10635trauma center in Florida.

10639In endnote 2, the ALJ indicates that there should be a point of entry for

10654challenging the acceptance or denial of a letter of intent. The ALJ goes on to point out

10671that the Legislature has not provided a point of entry for that stage of the application

10687process.

10688As stated in the Summary of the Approval Process for Trauma Centers, the plain

10702language of the statute mandates that the Department accept timely letters of intent,

10715accept timely trauma center applications and review applications to determine if the

10727applicants meet the critical elements. The statute further mandates that any application

10739that meets the critical elements is eligible to operate as a provisional trauma center. See

10754§ 395-4025, Fla. Stat. Need is not a consideration until the final review after the on-site

10770visit. See § 395-4025(5), Fla. Stat.

10776Rule 64J-2.012 of the Florida Administrative Code also requires the Department

10787to accept letters of intent and conduct a provisional review of a timely submitted

10801application. For those found acceptable upon the completion of the provisional review,

10813the hospital is notified that "the hospital shall operate as a Provisional trauma center

10827beginning May 1." See Fla. Admin. CodeR. 64J-2.012(1)(g)2.

10835The ALJ hangs his hat on one provision of Rule 64J -2.012, misstating it and

10850ignoring the mandatory language in the rest of the rule. The AW asserts that the

10865Department may accept a trauma center application "only if an available position"

10877exists; however, Rule 64J-2.012(1)(a), actually states, "The letter of intent is

10888nonbinding, but preserves the hospital's right to complete its application by the required

10901due date if an available position, as provided in Rule 64J-2.010, F.A.C., exists in the

10916hospital's TSA." This one sentence in the rule cannot be interpreted in such a way that

10932is contrary to the mandatory language in section 395-4025, Florida Statutes.

10943With regard to endnote 2, the ALJ expresses his apparent disagreement with the

10956Legislature's decision not to provide a point of entry for challenging the Department's

10969decision to accept or deny a hospital's letter of intent. As described in the Summary of

10985the Approval Process for Trauma Centers, the statute does not give the Department the

10999discretion to deny a hospital's letter of intent. See§§ 395-4025(2)(a) and (2)(b), Fla.

11012Stat.

11013The Respondent's exception to paragraph 73 is granted and paragraph 73 and

11025endnote 2 is omitted.

11029Ruling on the Respondent's Exception to Paragraph 75

11037The Respondent takes exception to paragraph 75 and endnote 3. Paragraph 75

11049states:

11050The above-highlighted provision within the Department's existing

11057rule 64J-2.012(1)(a) is consistent with section 395.4025(5), which plainly

11066and unequivocally provides that "[i]n addition, hospitals being considered

11075as provisional trauma centers shall meet all the requirements of a trauma

11087center and shall be located in a trauma service area that has a need for such

11103a trauma center." (emphasis added).

11108The Respondent argues that the emphasized phrase in section 395-4025(5),

11118Florida Statutes, does not refer to hospitals that are applying to become trauma centers,

11132but to hospitals that have already been provisionally approved.

11141As described in the Summary of the Approval Process for Trauma Centers, the

11154quoted language refers to provisional trauma centers being considered for final

11165selection. The quoted language cannot refer to applicants seeking provisional status

11176because a provisional trauma center is not required to meet all the requirements of a

11191trauma center, only the critical elements. See§ 395-4025(2)(c), Fla. Stat.

11201In endnote 3, the ALJ asserts that the language in Rule 64J-2.012(1)(a) is also

11215consistent with section 395-4015(2)(d)1., Florida Statutes, relating to circumstances

11224under which an extension of time may be granted to an applicant. Under that section,

11239an additional18 months may be granted to an applicant that is unable to meet all the

11255requirements for provisional approval "if the number of applicants in the service area in

11269which the applicant is located is equal to or less than the service area allocation, as

11285provided by rule of the department."

11291Contrary to the ALJ's assertion, this subsection contemplates that a TSA may

11303have more applicants than allocated slots and provides an extension only when the

11316number of applicants is equal to or less than the allocated slots.

11328The Respondent's exception is granted and paragraph 75 and endnote 3 are

11340omitted.

11341Ruling on the Respondent's Exception to Paragraph 76

11349The Respondent takes exception to the ALJ's implied conclusion oflaw that the

11361Department has not followed its own rules and the plain language of the trauma

11375statutes. The ALJ does not directly state, in paragraph 76, that the Department failed to

11390follow its own rules, but rather that an agency is required to follow its own rules.

11406As set forth in the Summary of the Approval Process for Trauma Centers, the

11420plain language of the trauma statutes requires the Department to conduct a provisional

11433review of trauma center applications without consideration of allocated need. Thus, the

11445Department was following the plain language of the statute. This interpretation is as or

11459more reasonable than that of the ALJ.

11466The Respondent's exception to paragraph 76 is granted and paragraph 76 is

11478modified to remove any implied conclusion of law that the Department failed to follow

11492its own rules.

11495Ruling on the Respondent's and Orange Park's Exceptions to Paragraph 77

11506The Respondent takes exception to paragraph 77 in which the ALJ states that Ms.

11520Colston's testimony was inconsistent and lacked credibility. The Respondent argues

11530that Ms. Colston's testimony was clear.

11536With regard to Ms. Colston's testimony, the ALJ is in the best position to judge

11551the credibility of witnesses. The exception is denied as to the ALJ's statement

11564concerning her testimony.

11567The Respondent takes exception to the remainder of the paragraph arguing that

11579the Department followed the plain language of the statute in accepting and provisionally

11592reviewing trauma center applications without consideration of allocated need in Rule

1160364J-2.010.

11604In paragraph 77, the ALJ indicates that there must be an "open slot" for the

11619Department to accept an application for provisional approval and stated that the

11631Department's reliance on the Recommended Order in The Public Health Trust was

11643misplaced.

11644As described in the Summary on the Approval Process for Trauma Centers, an

11657open slot, or allocated need under Rule 64J-2.010 is not a consideration at the

11671provisional review stage. The Department's interpretation of the trauma statutes is as

11683or more reasonable than the AW's.

11689The Respondent's exception to paragraph 77 is granted in part with regard to the

11703conclusion of law concerning allocated need at the provisional review stage.

11714Orange Park takes exception to paragraph 77, arguing that the AW has

11726improperly substituted his interpretation for the Department's interpretation of laws

11736over which the Department has substantive jurisdiction.

11743For the same reasons described under the ruling on the Respondent's exception

11755to paragraph 77, Orange Park's exception to paragraph 77 is granted.

11766Accordingly, paragraph 77 is modified to omit the conclusion of law that at least

11780one slot must be open in a TSA in order for the Department to approve a hospital as a

11799provisional trauma center.

11802Ruling on the Respondent's and Orange Park's Exceptions to Paragraph 78

11813The Respondent takes exception to the AW's legal conclusion in paragraph 78.

11825The Respondent argues that the statute in question does not permit the Department to

11839consider need as a component of approving an applicant to operate as a provisional

11853trauma center.

11855In paragraph 78, the AW indicates that the Department acted contrary to the

11868statute and existing rule, and that the Department's position was unreasonable and

11880nonsensical. The ALJ' s determination of unreasonableness is based on the fact that

11893establishing a trauma center involves the investment of millions of dollars.

11904As described in the Summary of the Approval Process for Trauma Centers, the

11917plain language of the statute places the consideration of allocated need, or slots in a

11932TSA, at final selection of a trauma center and not at the provisional review stage. This

11948interpretation is reasonable from the perspective of the Department's duties to ensure

11960an inclusive system that incorporates all facilities that have resources to care for trauma

11974patients. See§ 395-40 Fla. Stat. It is not the Department's role to ensure that a hospital

11990makes a profitable investment. The Department's interpretation is consistent with the

12001plain language of the statute and is as reasonable as or more reasonable than the

12016conclusion of the ALJ.

12020The Respondent's exception is granted.

12025Orange Park takes exception to paragraph 78, arguing that the ALJ has

12037improperly substituted his interpretation for the Department's interpretation of laws

12047over which the Department has substantive jurisdiction, based on a speculative scenario

12059that was not before the ALJ.

12065The ALJ speculated that it would be unreasonable for a hospital to invest a

12079significant amount of money in order to apply to become a trauma center if no slots

12095were available in a TSA, despite the fact that Orange Park made that decision and

12110submitted a trauma center application when no slot was available for TSA 5· The fact

12125that Oqmge Park decided to take this risk demonstrates that a hospital may find it

12140reasonable to take such a risk. The Department's interpretation of the trauma statutes is

12154as or more reasonable than that of the ALJ.

12163Orange Park's exception to paragraph 78 is granted.

12171Accordingly, paragraph 7S is omitted from the final order.

12180Ruling on the Respondent's and Orange Park's Exceptions to Paragraph 79

12191The Respondent takes exception to paragraph 79, making the same arguments as

12203it made in its exception to paragraph 7S.

12211In paragraph 79, the ALJ continues his discussion on why considering need at the

12225front end protects a hospital's investment. For the same reasons described in the ruling

12239on the exceptions to paragraph 7S, the Respondent's exception is granted.

12250Orange Park takes exception to paragraph 79, making the same arguments as it

12263made in its exception to paragraph 7S, and for the same reasons in the ruling on Orange

12280Park's exception to paragraph 7S, the exception is granted.

12289Accordingly paragraph 79 is omitted.

12294Ruling on Orange Park's Exceptions to Paragraphs So-go

12302Orange Park takes exception to paragraphs So-90 of the RO "for reasons

12314previously stated in the Introduction." Orange Park's 15 page Introduction includes

12325several legal arguments.

12328Orange Park's exceptions do not, with sufficient clarity, identify the disputed

12339portion of these ten paragraphs and does not identify which part of the 15 page

12354Introduction is being applied to which disputed portion and therefore, has not identified

12367the legal basis for each exception. For those reasons, the Department need not rule on

12382Orange Park's exceptions to paragraphs So-90. See § 120.57(1)(k), Fla. Stat.

12393Ruling on the Respondent's Exception to Paragraph So

12401The Respondent takes exception to paragraph So which states:

12410The plain and unambiguous language of rule 64J-2.012(1)(a) dictates

12419that the OMPC's letter of intent and application should have been rejected

12431due to the absence of an available slot as established in rule 64J-2.010(3).

12444Contrary to the ALJ's assertions, the plain and unambiguous language of rule

1245664J-2.012(1)(a), Florida Administrative Code, dictates that the Department cannot

12465reject a letter of intent or an application. The rule states that "[t]he department shall

12480accept a letter of intent, DH Form 1S40, January 2010, 'Trauma Center Letter of Intent,'

12496... postmarked no earlier than September 1 and no later than midnight, October 1, from

12511any acute care general or pediatric hospital."

12518With regard to accepting applications, Rule 64J-2.012(1)(b) states, "[b]y October

1252815, the department shall send to those hospitals submitting a letter of intent an

12542application package." The Department shall, by April15, conduct a provisional review

12553to determine if the application is complete and to determine the hospital's compliance

12566with the standards of critical elements for provisional status. See Fla. Admin. Code R.

1258064J -2.012(1)( d)

12583The only language that the ALJ has referenced in support of his conclusion is the

12598sentence in Rule 64J-2.012(1)(a) which states, "The letter of intent is nonbinding, but

12611preserves the hospital's right to complete its application by the required due date if an

12626available position, as provided in Rule 64J-2.010(3), F.A.C., exists in the hospital's

12638TSA." This statement cannot be interpreted in a manner that is inconsistent with the

12652statutes.

12653The Respondent's exception to paragraph So is granted and paragraph So is

12665omitted.

12666Ruling on the Respondent's Exception to Paragraph S1

12674The Respondent takes exception to paragraph S1 which states:

12683Agencies may not rely upon unadopted rules to justify proposed

12693agency action. See Flamingo Lake RV Resort, Inc. v. Dep't of Transp., 599

12706So. 2d 732, 733 (Fla. 1st DCA 1992) ("Moreover, we know of no authority

12721that would legitimize an agency's adoption of a nonrule policy which takes

12733away that which a properly promulgated rule explicitly provides.").

12743The Respondent argues that following the plain language of a statute and an

12756interpretation is not an unpromulgated rule, citing State Bd. of Admin. v. Huberty, 46

12770So. 3d 1144, 1147 (Fla. 1st DCA 2010).

12778As stated in the Summary on the Approval Process for Trauma Centers, the

12791Department is following the plain language of its trauma statutes and is not following an

12806unpromulgated rule.

12808The Respondent's exception to paragraph 81 is granted to the extent that

12820paragraph 81 implies that the Department relied on an unadopted rule rather than the

12834plain and literal interpretation of the statute.

12841Ruling on the Respondent's Exception to Paragraph 82

12849The Respondent takes exception to the legal conclusions in paragraph 82. Here

12861the ALJ continues to assert that an agency cannot base its actions on an unadopted rule,

12877citing section 120.57(1)(e), Florida Statutes, and cases that stand for that proposition.

12889The Respondent argues that actions based on the literal reading of a statute are not

12904actions based on an unadopted rule.

12910The Respondent's exception to paragraph 82 is granted to the extent that the ALJ

12924implies that the Department's actions were based on an unadopted rule.

12935Ruling on the Respondent's Exception to Paragraph 83

12943The Respondent takes exception to paragraph 83 in its entirety, making the same

12956arguments as made in its exceptions to paragraphs 81 and 82. In paragraph 83, the ALJ

12972continues in his discussion of section 120.57(1)(e), Florida Statutes. The paragraph does

12984not directly state that the Department, in this instance, acted on an unadapted rule,

12998although that was the ALJ's ultimate conclusion.

13005The Respondent's exception to paragraph 83 is granted to the extent that the ALJ

13019implies that the Department acted on an unadapted rule.

13028Ruling on the Respondent's Exception to Paragraph 84

13036The Respondent takes exception to paragraph 84 in its entirety, making the same

13049arguments as made in its exceptions to the previous three paragraphs of the RO.

13063Paragraph 84 states:

13066Ms. Colston testified that the Department's current policy is to accept

13077all letters of intent irrespective of need allocated in rule 64J -2.010, and

13090limited only by the statewide cap of 44. Ms. Colston testified that the

13103Department applied this policy uniformly to all letters of intent received in

131152015.

13116This paragraph is actually a finding of fact placed in the Conclusions of Law

13130section of the RO. The paragraph does not assert a conclusion oflaw, but rather a

13145factual finding based on Ms. Colston's testimony.

13152The Respondent's exception to paragraph 84 is denied.

13160Ruling on the Respondent's Exception to Paragraph 85

13168The Respondent takes exception to paragraph 85, making the same arguments as

13180are made in the Respondent's previous four exceptions.

13188In paragraph 85, the ALJ asserts that the Department's procedure for accepting

13200letters was the same as that which was described in the proposed changes to Rules 64J-

132162.010 and 64J-2.012. The ALJ also stated that this represents a significant shift from

13230the existing rule requirements.

13234As stated in the Summary on the Approval Process for Trauma Centers, it is

13248readily apparent from section 395.4025, Florida Statutes, that allocated need is not a

13261part of the provisional review stage. Thus, the Department's decision to accept letters of

13275intent is based on the language of the statute and does not represent a significant shift

13291from the existing rules.

13295The Respondent's exception to paragraph 85 is granted and paragraph 85 is

13307omitted.

13308Ruling on the Respondent's Exception to Paragraph 86

13316The Respondent takes exception to paragraph 86, making the same arguments as

13328were made in the previous five exceptions.

13335In paragraph 86, the ALJ explains that "An unadapted rule is 'an agency

13348statement that meets the definition of the term 'rule,' but that has not been adopted

13364pursuant to the requirements of s. 120.54.' § 120.52(20), Fla. Stat. The Department has

13378not adopted the policy pursuant to the requirements of section 120.54."

13389As described in the rulings on the Respondent's exceptions to paragraphs 81 and

1340285, the Department does not need to adopt by rule that which is required by statute.

13418The Respondent's exception to paragraph 86 is granted and the conclusion that

13430the Department's actions are based on "policy" is omitted from paragraph 86.

13442Accordingly, the phrase, "The Department has not adopted the policy pursuant to the

13455requirements of section 120.54." is omitted.

13461Ruling on the Respondent's Exception to Paragraph 87

13469The Respondent takes exception to paragraph 87, making the same arguments as

13481were made in the previous six exceptions.

13488Paragraph 87 states: "The Department's new policy meets the definition of a rule

13501as provided in section 120.52(16). The Department's policy does not meet any of the

13515exceptions to the definition of a rule contained in section 120.52(16) (a)-( c).''

13528As described in the rulings on the Respondent's exceptions to paragraphs 81 and

1354185, it is not necessary for an agency to adopt by rule that which is clearly mandated by

13559statute.

13560The Respondent's exception to paragraph 87 is granted and paragraph 87 is

13572omitted.

13573Ruling on the Respondent's Exception to Paragraph 88

13581The Respondent takes exception to paragraph 88, making the same arguments as

13593were made in the previous seven exceptions.

13600In paragraph 88, the ALJ continues to discuss how the Department's action is a

13614policy that meets the definition of a rule.

13622As stated in the ruling on the exceptions to paragraphs 81 and 85, the

13636Department does not need to adopt by rule that which is required by statute.

13650The Respondent's exception to paragraph 88 is granted and paragraph 88 is

13662omitted.

13663Ruling on the Respondent's Exception to Paragraph 89

13671The Respondent takes exception to paragraph 89, making the same arguments as

13683were made in the previous eight exceptions.

13690In paragraph 89, the ALJ describes how it was feasible for the Department to

13704adopt its practices by rule.

13709As stated in the ruling on the exceptions to paragraphs 81 and 85, the

13723Department does not need to adopt by rule that which is required by statute.

13737The Respondent's exception to paragraph 89 is granted to the extent that

13749paragraph 89 indicates that the Department was acting on an unadopted rule.

13761Ruling on the Respondent's Exception to Paragraph 90

13769The Respondent takes exception to paragraph 90, making the same arguments as

13781were made in the previous nine exceptions.

13788In paragraph 90, the AW states: "Even if rulemaking were not practicable and

13801feasible, however, the burden would then shift to the Department to 'demonstrate' that

13814the unadopted rule is valid. See§ 120.57(1)(e)3.a.-f. The Department presented no such

13826evidence."

13827As stated in the ruling on the exceptions to paragraphs 81 and 85, the

13841Department does not need to adopt by rule that which is required by statute.

13855The Respondent's exception to paragraph 90 is granted to the extent that

13867paragraph 90 indicates that the Department was acting on an unadopted rule.

13879Ruling on Orange Park's Exceptions to Paragraphs 91-106

13887Orange Park takes exception to paragraphs 91 through 106 and endnote 7,

13899arguing that the findings are irrelevant and beyond the scope of the AW's authority.

13913Because Orange Park does not specifically identify the disputed portions of these

1392515 paragraphs the Department declines to rule on Orange Park's exceptions according to

13938section 120.57(1)(k), Florida Statutes.

13942Ruling on the Respondent's Exception to Paragraph 93

13950The Respondent takes exception to paragraph 93 arguing that the conclusions of

13962this paragraph are irrelevant.

13966Paragraph 93 states that agency action is ineffective until it becomes final at the

13980conclusion of a formal administrative proceeding, if timely requested. The AW uses this

13993paragraph to preface the conclusions in the following paragraphs indicating that the

14005Department should have waited until this administrative proceeding was concluded

14015before permitting Orange Park to operate as a provisional trauma center.

14026Section 395-4025(3), Florida Statutes, states: "After April 30, any hospital that

14037submitted an application found acceptable by the department based on provisional

14048review shall be eligible to operate as a provisional trauma center." Thus, any approved

14062provisional trauma center is eligible to operate starting May 1. The statute does not give

14077the Department the authority to delay the date that the approved provisional trauma

14090center may begin operations.

14094The statute also gives administrative hearing rights, pursuant to chapter 120,

14105Florida Statutes, to any hospital wishing to protest the Department's decision. See§

14117395.4025(7), Fla. Stat. Implied in paragraph 93 and directly stated in the following

14130paragraphs of the RO, the ALJ interprets the administrative hearing rights to mean that

14144the Department is required to withhold provisional approval until either 21 days has

14157passed and a hearing is waived, or until an administrative proceeding is concluded if the

14172Department's decision is challenged. Interpreting the statute in this manner renders

14183meaningless the directive in the statute that "after April 30" the provisional trauma

14196center is eligible to begin operations. Words in a statute are not to be construed as

14212superfluous if a reasonable construction exists that gives effect to all words. See

14225Metropolitan Casualty Ins. Co. v. Tepper, 2 So. 3d 209, 215 (Fla. 2009) (internal

14239citations omitted). The Department's interpretation, that an applicant found acceptable

14249is eligible to begin operations on May 1, is as or more reasonable than that of the ALJ's.

14267The Respondent's exception to paragraph 93 is granted to the extent that this

14280paragraph implies that the provisional approval of Orange Park is ineffective until the

14293conclusion of the final administrative hearing.

14299Ruling on the Respondent's Exception to Paragraph 94

14307The Respondent takes exception to paragraph 94 which states:

14316Therefore, if a hospital contests the Department's intended decision

14325to approve another hospital's application after the provisional review, as UF

14336Health Jacksonville has done, the Provisional Review Stage continues until

14346the conclusion of the formal administrative proceeding.

14353As stated in the ruling on the exception to paragraph 93 above, section

14366395-4025(3), Florida Statutes, directs that any hospital found acceptable based on the

14378provisional review "shall" be eligible to operate as a provisional trauma center after

14391April30.

14392For the same reasons described in the ruling on the Respondent's exception to

14405paragraph 93, the Respondent's exception to paragraph 94 is granted and paragraph 94

14418is omitted.

14420Ruling on the Respondent's Exception to Paragraph 95

14428The Respondent takes exception to paragraph 95 which states:

14437If the Department finds the hospital's application acceptable based

14446on the provisional review, the hospital "shall be eligible to operate as a

14459provisional trauma center." § 395-4025(3), Fla. Stat. This means that an

14470agency decision in the applicant's favor at the end of the Provisional

14482Review Stage results in the hospital's receiving a "provisional license"

14492under which it may operate a trauma center "for a significant period of

14505time." Shands Jacksonville Med. Ctr., Inc. v. Dep't of Health, 123 So. 3d

1451886, 94 (Fla. 1st DCA 2013).

14524The conclusions expressed in this paragraph simply paraphrase the statute.

14534Although the AW does not specifically articulate what a "significant period of time" is,

14548the paragraph must be viewed in context with the statute and rules that describe a 21-

14564month application approval period.

14568The Respondent's objection to paragraph 95 is denied.

14576Ruling on the Respondent's Exception to Paragraph 96

14584The Respondent takes exception to paragraph 96 which states: "However, the

14595Department's intended decision to issue a preliminary license to a hospital whose

14607application has been found acceptable is merely preliminary agency action having no

14619legal effect until the conclusion of a formal administrative proceeding, if timely

14631requested, or after the right to hearing is waived."

14640For the reasons described in the ruling on the Respondent's exception to

14652paragraph 93, the Respondent's exception is granted and paragraph 96 is omitted.

14664Ruling on the Respondent's Exception to Paragraph 97

14672The Respondent takes exception to paragraph 97, in which the ALJ continues to

14685assert that the provisional license to operate as a trauma center cannot be lawfully

14699issued until the conclusion of the administrative proceeding.

14707For the reasons described in the ruling on the Respondent's exception to

14719paragraph 93, the Respondent's exception is granted and paragraph 97 is omitted.

14731Ruling on the Respondent's Exception to Paragraph 98

14739The Respondent takes exception to paragraph 98, in which the ALJ articulates

14751the Respondent's argument and quotes from Rule 64J-2.012(1)(g)1. and section

14761395-4025(3), Florida Statutes, indicating that a provisional trauma center is to begin

14773operations after April 30.

14777In review of the record, the conclusions of the ALJ in paragraph 98 are consistent

14792with the Respondent's argument and the quoted language of the statute and rule.

14805The Respondent's exception to paragraph 98 is denied.

14813Ruling on the Respondent's Exception to Paragraph 99

14821The Respondent takes exception to paragraph 99 in which the ALJ describes that

14834section 395.4025(3), Florida Statutes, does not require that the provisional trauma

14845center begin operations on May 1, but rather is eligible to begin operations. The ALI

14860asserts that a license is an authorization to act, not a mandate, citing section 120.52(10),

14875Florida Statutes.

14877The ALI's conclusion, taken in context with the surrounding paragraphs, is

14888intended to support the idea that the Department could prohibit Orange Park from

14901acting pursuant to a license it was eligible to use.

14911The ALI is correct that an approved provisional trauma center is eligible to

14924operate after April30 under the statute. This does not logically lead to the ALI's other

14939conclusions, that the Department must prohibit Orange Park from exercising its right

14951until an administrative proceeding has concluded.

14957The Respondent's exception to paragraph 99 is granted, and the ALI's implied

14969conclusion, that an entity eligible to exercise its rights to operate as a provisional trauma

14984center after April 30 is actually not eligible to exercise its rights until an administrative

14999proceeding is either waived or concluded, is rejected.

15007Ruling on the Respondent's Exception to Paragraph 101

15015The Respondent takes exception to paragraph 101, arguing that the ALI had no

15028basis for suggesting that Rule 64J-2.012(1)(g) was an invalid exercise of delegated

15040legislative authority because UF Health's petition did not seek to have Rule 64J-

150532.012(1)(g) invalidated.

15055Nothing in UF Health's petition indicated that UF Health was challenging Rule

1506764J-2.012(1)(g). The ALI cannot go outside the relief requested in the petition and

15080invalidate a rule that was never challenged. Such a decision would violate due process

15094as the Department was not on notice that the rule was being challenged and was not in a

15112position to defend it. See Celebrity Cruises, Inc. v. Fernandes, 149 So. 3d 744, 750 (Fla.

151283d DCA 2014).

15131The ALJ suggested that Rule 64J-2.012(1)(g) was invalid, but did not actually

15143issue a ruling that Rule 64J-2.012(1)(g) was invalid. Therefore, the ALI's dicta

15155concerning the rule does not have any authority. To give any precedential value to the

15170ALJ's suggestion would depart from the essential requirements of the law.

15181The Respondent's exception to paragraph 101 is granted to the extent that the

15194ALI's suggestion concerning Rule 64J-2.012(1)(g) is anything more than meaningless

15204dicta.

15205Ruling on the Respondent's Exception to Paragraph 102

15213The Respondent takes exception to paragraph 102 which states:

15222The Department failed to follow its own rules and governing statutes

15233when it instructed Orange Park to operate as a trauma center and instructed

15246emergency responders to send their trauma patients to Orange Park. The

15257Department's preliminary application decision was not final agency action,

15266and should not have been treated as if it were.

15276For the reasons described in the ruling on the Respondent's exception to

15288paragraph 93, the Respondent's exception is granted and paragraph 102 is omitted.

15300Ruling on the Respondent's Exception to Paragraph 103

15308The Respondent takes exception to paragraph 103, arguing that the paragraph is

15320irrelevant and an improper advisory opinion.

15326In paragraph 103, the ALI compares this matter to certificate of need cases and

15340continues to assert that "the Department is not authorized to permit Orange Park to

15354operate as a provisional level I trauma center during the pendency of this proceeding."

15368For the reasons described in the ruling on the Respondent's exception to

15380paragraph 93, the Respondent's exception is granted and the conclusion in paragraph

15392103 that "the Department is not authorized to permit Orange Park to operate as a

15407provisional level I trauma center" is omitted from the order.

15417Ruling on the Respondent's Exception to Paragraph 104

15425The Respondent takes exception to paragraph 104, arguing that the paragraph is

15437irrelevant and an improper advisory opinion.

15443Paragraph 104 is not a finding of fact or a conclusion of law, but is an advisory

15460opinion providing UF Health with legal advice on seeking declaratory and injunctive

15472relief in Circuit Court. Such advice is inappropriate and has no authority or precedential

15486value.

15487The Respondent's exception to paragraph 104 is granted to the extent that

15499paragraph 104 is construed to mean that a hospital approved as a provisional trauma

15513center is not eligible to begin operations as a provisional trauma center after April30.

15527The advisory portion of the paragraph is meaningless.

15535Ruling on the Respondent's Exception to Paragraph 105

15543The Respondent takes exception to paragraph 105 where the ALJ continues with

15555advice to UF Health, providing arguments that can be used in a Circuit Court action.

15570The ALJ points out, correctly, that DOAH has no authority to order or otherwise require

15585the Department to direct Orange Park to cease operations pending the outcome of this

15599administrative review.

15601Paragraph 105 is a continuation of the ALI's legal advice to UF Health. Such

15615advice is inappropriate and has no authority or precedential value.

15625The Respondent's exception to paragraph 105 is granted to the extent that

15637paragraph 105 is construed to mean that a hospital approved as a provisional trauma

15651center is not eligible to begin operations as a provisional trauma center after April30.

15665The advisory portion of the paragraph is meaningless.

15673Ruling on the Respondent's Exception to Paragraph 106

15681The Respondent takes exception to paragraph 106, again arguing that the

15692paragraph consists of improper legal advice.

15698In paragraph 106, the ALJ continued to provide arguments related to a potential

15711Circuit Court action that UF Health could pursue. Such advice is inappropriate and has

15725no authority or precedential value.

15730The Respondent's exception to paragraph 106 is granted only to the extent that

15743paragraph 106 can be construed to mean that the Department must prohibit a hospital

15757to operate as a provisional trauma center once that hospital is eligible to begin

15771operations after April30. The advisory portion is meaningless.

15779Ruling on the Respondent's Exception to Paragraph 107

15787The Respondent takes exception to paragraph 107, which states: "In its Proposed

15799Recommended Order, Orange Park argues that UF Health Jacksonville's Petition should

15810be denied because the Department is equitably estopped from revoking Orange Park's

15822provisional approval."

15824Paragraph 107 is an introductory paragraph to the section of the RO which

15837addresses the equitable estoppel argument raised by Orange Park. Equitable estoppel is

15849not an area of law over which the Department has substantive jurisdiction.

15861The Respondent's exception to paragraph 107 is denied.

15869Ruling on the Respondent's and Orange Park's Exceptions to Paragraph 108

15880The Respondent takes exception to paragraph 108 in which the ALJ discusses the

15893elements of equitable estoppel.

15897Equitable estoppel is not an area of law over which the Department has

15910substantive jurisdiction. The Respondent's exception to paragraph 108 is denied.

15920Likewise, Orange Park's exception to paragraph 108, arguing that equitable

15930estoppel applies, is denied.

15934Ruling on the Respondent's and Orange Park's Exceptions to Paragraph 109

15945The Respondent takes exception to paragraph 109 where the ALJ continues

15956addressing Orange Park's equitable estoppel argument. The Department does not have

15967substantive jurisdiction over equitable estoppel and the exception is denied.

15977Likewise Orange Park's exception, arguing that equitable estoppel applies, is

15987denied.

15988Ruling on the Respondent's and Orange Park's Exceptions to Paragraph 110

15999The Respondent takes exception to paragraph 110, specifically to the phrase

"16010[h]ere the Department's agent made a mistake oflaw when she advised Orange Park

16023that the Department had the legal authority to accept and review Orange Park's

16036provisional application in the absence of an available trauma center 'slot."' The

16049Respondent argues that an available slot is not a consideration during the provisional

16062review of a trauma center application.

16068As described in the Summary on the Approval Process for Trauma Centers, an

16081available "slot" under Rule 64J-2.010 is not a consideration in the provisional review

16094stage.

16095The Respondent's exception to paragraph 110 is granted and the quoted sentence

16107is omitted from the order.

16112Orange Park takes exception to paragraph 110, arguing that equitable estoppel

16123applies. The Department does not have substantive jurisdiction over the application of

16135equitable estoppel and Orange Park's exception is denied.

16143Orange Park takes exception to endnote 6, referencing arguments in its

16154exceptions to paragraphs 49 to 51. In endnote 6, the ALJ finds that the operation of

16170Orange Park has the potential to unduly harm the public interest due to the adverse

16185impact on the quality of the program at UF Health. As described in the ruling on

16201exceptions to paragraph 51, there was no competent substantial evidence that UF Health

16214saw a decrease in patients with a high ISS score due to the operation of Orange Park. In

16232review of the entire record, there is no competent substantial evidence that the

16245operation of Orange Park has adversely impacted the quality of care at UF Health. Ms.

16260Gerdik testified that the quality of care provided at UF Health remains high. 12

16274Orange Park's exception to endnote 6 is granted in part and the finding that "the

16289continued operation of the Orange Park trauma center, in the absence of need, has the

16304potential to 'unduly harm the public interest' due to the adverse impact on the quality of

16320the program at UF Health Jacksonville" is omitted.

16328Ruling on UF Health's Exceptions to Paragraphs 111-119

16336UF Health takes exception to paragraphs 111-119 regarding attorney fees for the

16348purpose of preserving the issue for appeal and recognizing that the Department does not

16362have jurisdiction to reject or modify a conclusion oflaw related to attorney fees.

1637512 Transcript pages 51 0-511.

16380Because the Department does not have substantive jurisdiction over attorney

16390fees, the Department cannot modify or reject any conclusions oflaw related to the issue

16404of attorney fees. See G.E.L. Corp v. Dep't of Environmental Protection, 875 So. 2d 1257

16419(Fla. 5th DCA 2004).

16423Although the Department does not have the authority to reject or modify the

16436ALJ' s conclusions of law concerning attorney fees, the Department is also in agreement

16450with the ALJ on this point. The Department did not act with an improper purpose and

16466its actions were supported by the facts and the law applied to those facts.

16480UF Health's exceptions to paragraphs 111-119 are denied.

16488Ruling on the Respondent's Exception to Paragraph 119

16496The Respondent takes exception to the ALJ's conclusion that the Department

16507misunderstood and misapplied the holding in the Jackson South Recommended Order.

16518The Respondent argues that according to the section 395-4025(3), Florida Statutes,

16529need is not a part of the provisional review of a trauma application. As described in the

16546Jackson South Recommended Order, competition is not a part of the provisional review

16559process.

16560The Department's actions, provisionally approving an applicant that met the

16570critical elements without considering allocated need, was not based on any authority

16582from a Recommended Order, but was rather based on the trauma statutes and rules.

16596See Summary on the Approval Process for Trauma Centers, supra.

16606The Respondent's exception to paragraph 119 is granted and the statement that

16618the "Department misunderstood and misapplied" the holding of the Jackson South case

16630is omitted from the final order.

16636Ruling on Orange Park's Exceptions to Paragraphs 120-122

16644Orange Park takes exception to paragraphs 120 to 122, citing its 15 page

16657Introduction as the legal basis for the exception. Orange Park has not sufficiently

16670identified the disputed portion of the three paragraphs cited, and does not articulate

16683with sufficient clarity what legal basis, out the several pages of legal argument, apply to

16698these exceptions. For that reason, the Department need not rule on Orange Park's

16711exceptions to paragraphs 120-122. See§ 120.57(1)(k) Fla. Stat.

16719Ruling on the Respondent's Exception to Paragraph 120

16727The Respondent takes exception to paragraph 120 which states, "The

16737Department's policy of accepting letters of intent and trauma center applications

16748irrespective of need as established in rule 64J-2.010, constitutes an unadapted rule and

16761is contrary to its validly adopted rules and statutes."

16770As described in the Summary on the Approval Process for Trauma Centers,

16782section 395-4025, Florida Statutes, requires the Department to accept letters of intent

16794and trauma center applications irrespective of need. The Department's conclusions are

16805as reasonable as or more reasonable than that of the ALJ.

16816The Respondent's exception to paragraph 120 is granted and paragraph 120 is

16828omitted.

16829Ruling on the Respondent's Exception to Paragraph 121

16837The Respondent takes exception to paragraph 121 which states, "This tribunal

16848and the Department must give effect to existing rules 64J-2.010 and 64J-2.012. The

16861parties have stipulated that at all times relevant to this proceeding, rule 64J-2.010 has

16875allocated a need for only one trauma center in TSA 5· UF Health Jacksonville currently

16890fills that need. Rule 64J-2.012(1)(a) clearly provides that '[t]he letter of intent is non-

16904binding, but preserves the hospital's right to complete its application by the required

16917due date if an available position, as provided in Rule 64J-2.010, F.A.C., exists in the

16932hospital's TSA.' Id."

16935As stated above in the Summary of the Approval Process for Trauma Centers, the

16949plain language of the statutes indicate that allocated need is not a consideration at the

16964provisional review stage. The Department followed the statutes and the Department's

16975interpretation of the trauma statutes is as or more reasonable than the interpretation

16988asserted by the ALJ.

16992The Respondent's exception to paragraph 121 is granted to the extent that the

17005ALJ implies that the Department is not following its rules and that letters of intent and

17021trauma center applications cannot be accepted when there is no allocated need or "slot"

17035available in the applicable TSA.

17040Ruling on the Respondent's Exception to Paragraph 122

17048The Respondent takes exception to paragraph 122 which states, "[b]ecause there

17059is a need for only one trauma center in TSA 5 and UF Health Jacksonville currently fills

17076that need, Orange Park's application for provisional approval must be denied."

17087As stated in the Summary of the Approval Process for Trauma Centers, the

17100allocated need in a TSA is not a relevant consideration at the provisional review stage.

17115Orange Park met the critical elements for operation as a trauma center. Orange Park's

17129application for provisional approval must be approved.

17136The Respondent's exception to paragraph 122 is granted and paragraph 122

17147omitted.

17148FINDINGS OF FACT

171511. The findings of fact in paragraphs 1, 3-15, 18-30,32, 35-37,39,40,42, 44,

1716745, 49, so, 52, and 53, set forth in the Recommended Order, attached as Exhibit A, are

17184adopted and incorporated by reference in this Final Order.

171932. Paragraphs 2, 16, 17, 31, 33, 34, 38, 41, 43, 46, 47, 48, and 51 are modified

17211or omitted as described above in the Rulings on Exceptions.

17221CONCLUSIONS OF LAW

172243. The conclusions oflaw set forth in paragraphs 54-61, 63-72, 74, 84, 91, 92,

1723895, 98, 100, 107, 108, 109, and 111-118 set forth in the Recommended Order are adopted

17254and incorporated by reference in this Final Order.

172624· Paragraphs 62, 73, 75-83, 85-90, 93, 94, 96, 97, 99, 101-106, 110, 119, and

17277120-122 are modified or omitted as explained above in the Rulings on Exceptions.

17290ORDER

17291Based on the foregoing, the ALJ's recommendation is rejected and the approval of

17304Orange Park Medical Center, Inc.'s application to operate as a level II provisional trauma

17318center is upheld. This Order does not impact any Department decision to grant or deny

17333Orange Park final approval as a verified trauma center.

17342DONE AND ORDERED in Tallahassee, Leon County, Florida this 26th day of April

173552017.

17356Celeste M. Philip, MD, MPH

17361Surgeon General & Secretary

17365Florida Department of Health

17369Copies furnished to:

17372Seann M. Frazier, Esquire

17376Mark Ito, Esquire

17379Parker, Hudson, Rainer & Dobbs, LLP

17385Suite 750

17387215 South Monroe Street

17391Tallahassee, Florida 32301

17394Jay Patrick Reynolds, Esquire

17398Chief Litigation Counsel

17401Office of the General Counsel

17406Department of Health

174094052 Bald Cypress Way, Bin A-02

17415Tallahassee, Florida 32399-1703

17418Nichole Chere Geary, General Counsel

17423Department of Health

174264052 Bald Cypress Way, Bin A-02

17432Tallahassee, Florida 32399-1703

17435Daniel Ryan Russell, Esquire

17439Jones Walker, LLP

17442215 South Monroe Street, Suite 130

17448Tallahassee, Florida 32301

17451Stephen A. Ecenia, Esquire

17455J. Stephen Menton, Esquire

17459Gabriel F.V. Warren, Esquire

17463Rutledge Ecenia, P .A.

17467119 South Monroe Street, Suite 202

17473Tallahassee, Florida 32301

17476Shannon Revels, Agency Clerk

17480Department of Health

174834052 Bald Cypress Way, Bin A-02

17489Tallahassee, Florida 32399-1703

17492W. David Watkins

17495Administrative Law Judge

17498Division of Administrative Hearings

17502The DeSoto Building

175051230 Apalachee Parkway

17508Tallahassee, Florida 32399-3060

17511CERTIFICATE OF SERVICE

17514I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been

17529sent by electronic mail and regular U.S. mail and/or by inter-office mail to each of the

17545above-named persons this of April2017.

17550Agency Clerk

17552Department of Health

175554052 Bald Cypress Way, BIN A-02

17561Tallahassee, Florida 32399-1703

17564NOTICE OF RIGHT TO JUDICIAL REVIEW

17570A PARTY ADVERSELY AFFECTED BY THIS ORDER IS ENTITLED TO

17580JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES.

17588REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF

17597APPELLATE PROCEDURE. A REVIEW PROCEEDING IS INITIATED BY

17605FILING A NOTICE OF APPEAL WITH THE CLERK OF THE DEPARTMENT

17616OF HEALTH AND A COPY ACCOMPANIED BY THE FILING FEE WITH THE

17628DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE

17638PARTY RESIDES OR IN THE FIRST DISTRICT COURT OF APPEAL. THE

17649NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF THE FILING

17661DATE OF THIS ORDER.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 04/27/2017
Proceedings: Agency Final Order
PDF:
Date: 04/27/2017
Proceedings: Agency Final Order filed.
PDF:
Date: 01/27/2017
Proceedings: Recommended Order
PDF:
Date: 01/27/2017
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 01/27/2017
Proceedings: Recommended Order (hearing held October 17-19, 2016). CASE CLOSED.
PDF:
Date: 12/06/2016
Proceedings: Department's Response in Opposition to Shand's Motion for Attorney Fees and Costs filed.
PDF:
Date: 12/05/2016
Proceedings: Orange Park Medical Center's Opposition to Shands' Motion for Attorneys Fees and Costs filed.
PDF:
Date: 11/29/2016
Proceedings: Order Granting Extension of Time.
PDF:
Date: 11/28/2016
Proceedings: Department's Unopposed Motion for Extension of Time to Respond to UF Health Jacksonville's Motion for Attorney Fees and Costs filed.
PDF:
Date: 11/28/2016
Proceedings: Unopposed Motion for Extension of Time to Respond to Shand's Motion for Attorney's Fees and Costs filed.
PDF:
Date: 11/21/2016
Proceedings: (Orange Park's) Proposed Recommended Order filed.
PDF:
Date: 11/21/2016
Proceedings: Orange Park Medical Center's Post-Hearing Memorandum of Law filed.
PDF:
Date: 11/21/2016
Proceedings: UF Health Jacksonville's Motion for Attorneys Fees and Costs Pursuant to Section 120.569(2) (e) Florida Statues and Legal Memorandum filed.
PDF:
Date: 11/21/2016
Proceedings: Notice of Filing Orange Park's Proposed Recomended Order filed.
PDF:
Date: 11/21/2016
Proceedings: Department of Health's Proposed Final Order filed.
PDF:
Date: 11/21/2016
Proceedings: UF Health Jacksonville's Proposed Recommended Order filed.
PDF:
Date: 11/21/2016
Proceedings: (UF Health Jacksonvilles) Notice of Filing Proposed Recommended Order filed.
PDF:
Date: 11/10/2016
Proceedings: UF Health Jacksonville's Motion for the Department of Health to Pay Reasonable Attorney's Fees filed.
PDF:
Date: 11/10/2016
Proceedings: Notice of Filling UF Health Jacksonville's Motion for the Department of Health to Pay Reasonable Attorney's Fees filed.
PDF:
Date: 11/10/2016
Proceedings: Order Granting Extension of Time.
PDF:
Date: 11/09/2016
Proceedings: Unopposed Motion for Extension of Time to File Proposed Recommended Orders filed.
PDF:
Date: 11/02/2016
Proceedings: UF Health Jacksonville's Response in Opposition to the Deptment of Health's Motion for Attorney's Fees and Costs Pursuant to Section 120.595, Florida Statutes filed.
PDF:
Date: 11/01/2016
Proceedings: UF Health Jacksonville's Response in Opposition to the Department of Health's Objections to Dean Cocchi's Deposition Testimony filed.
PDF:
Date: 10/28/2016
Proceedings: Department of Health's Objections to D. Cocchi's Deposition Testimony filed.
PDF:
Date: 10/26/2016
Proceedings: Department's Motion for Attorney's Fees and Costs Pursuant to Section 120.595, Florida Statutes filed.
Date: 10/25/2016
Proceedings: Transcript of Proceedings (not available for viewing) filed.
Date: 10/17/2016
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 10/17/2016
Proceedings: Notice of Filing the Parties' Final Exhibit and Witness Lists filed.
Date: 10/14/2016
Proceedings: CASE STATUS: Pre-Hearing Conference Held.
PDF:
Date: 10/14/2016
Proceedings: Letter to Judge Watkins from Stephen Ecenia enclosing courtesy copy of Response in Opposition to UF Health Jacksonville's Argument (Motion) Regarding Order of Presentation and Renewed Motion to Relinquish Jurisdiction filed.
PDF:
Date: 10/14/2016
Proceedings: Response in Opposition to UF Health Jacksonville's Argument (Motion) Regarding Order of Presentation and Renewed Motion to Relinquish Jurisdiction filed.
PDF:
Date: 10/14/2016
Proceedings: Letter to Judge Watkins from Marc Ito enclosing courtesy copy of Uf Health Jacksonville's Response to Department of Health and Orange Park Medical Center, Inc.'s Motions in Limine Regarding Need filed.
PDF:
Date: 10/14/2016
Proceedings: UF Health Jacksonville's Response to Department of Health and Orange Park Medical Center, Inc.'s Motions in Limine Regarding Need filed.
PDF:
Date: 10/13/2016
Proceedings: UF Health Jacksonville's Response in Opposition to the Department of Health's Motion Requesting Expedited Discovery Responses filed.
PDF:
Date: 10/13/2016
Proceedings: UF Health Jacksonville's Argument Regarding Order of Presentation filed.
PDF:
Date: 10/12/2016
Proceedings: Notice of Telephonic Pre-hearing Conference (set for October 14, 2016; 1:00 p.m.).
PDF:
Date: 10/12/2016
Proceedings: Department of Health's Request for Hearing on Its Motion Requesting Expedited Discovery Responses filed.
PDF:
Date: 10/11/2016
Proceedings: Order Denying UF Health Jacksonville's Motion in Limine to Exclude Testimony of Late-Noticed Witness at Final Hearing.
PDF:
Date: 10/10/2016
Proceedings: Prehearing Stipulation filed.
PDF:
Date: 10/10/2016
Proceedings: Notice of Taking Deposition Duce Tecum (of W. North) filed.
PDF:
Date: 10/07/2016
Proceedings: Orange Park's Joinder to the Department's Response in Opposition to Petitioner's Motion in Limine filed.
PDF:
Date: 10/07/2016
Proceedings: Orange Park Medical Center's Motion in Limine to Exclude Shands from Making Argument or Presenting Evidence Regarding the Alleged Lack of Need for Orange Park's Trauma Center filed.
PDF:
Date: 10/07/2016
Proceedings: Department of Health's Motion in Limine filed.
PDF:
Date: 10/07/2016
Proceedings: Department of Health's Response in Opposition to Petitioner's Motion in Limine filed.
PDF:
Date: 10/06/2016
Proceedings: Department of Health's Motion Requesting Expedited Discovery Responses filed.
PDF:
Date: 10/05/2016
Proceedings: UF Health Jacksonville's Motion in Limine to Exclude Testimony of Late-Noticed Witness at Final Hearing filed (Part 2).
PDF:
Date: 10/05/2016
Proceedings: UF Health Jacksonville's Motion in Limine to Exclude Testimony of Late-Noticed Witness at Final Hearing filed (Part 1).
PDF:
Date: 10/05/2016
Proceedings: Respondent Department of Health's Notice of Service of Second Set of Interrogatories to Shands Jacksonville Medical Center, Inc., filed.
PDF:
Date: 10/05/2016
Proceedings: Respondent's Requests for Admission to Petitioner filed.
PDF:
Date: 09/30/2016
Proceedings: Notice of Taking Deposition Duces Tecum (G. Nelson) filed.
PDF:
Date: 09/30/2016
Proceedings: Notice of Taking Deposition Duces Tecum (Dr. J Levine) filed.
PDF:
Date: 09/21/2016
Proceedings: Order (denying motions for stay).
PDF:
Date: 09/20/2016
Proceedings: Orange Park Medical Center's Notice of Filing Excerpts and Full Transcript of Cynthia Gerdik's Deposition filed.
PDF:
Date: 09/16/2016
Proceedings: Shands Jacksonville Medical Center, Inc.'s Response in Opposition to Motion for Stay filed.
PDF:
Date: 09/16/2016
Proceedings: Orange Park Medical Center's Motion to Relinquish Jurisdiction, or In the Alternative, Stay of the Administrative Proceedings filed.
PDF:
Date: 09/16/2016
Proceedings: Department of Health's Memorandum of Law Regarding the Appilicability of Section 20.56(4)(B) to 120.57(1)(E) Proceedings filed.
PDF:
Date: 09/12/2016
Proceedings: Notice of Taking Deposition Duces Tecum (of Lorin Mock) filed.
Date: 09/12/2016
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 09/08/2016
Proceedings: Notice of Taking Deposition Duces (of Keri Deaton, Chad Patrick, and Jeffrey Levine) filed.
PDF:
Date: 09/08/2016
Proceedings: Notice of Telephonic Status Conference (status conference set for September 12, 2016; 9:30 a.m.).
PDF:
Date: 09/07/2016
Proceedings: Shands Jacksonville Medical Center, Inc., d/b/a UF Health Jacksonville's Response to Department of Health's Request for Production filed.
PDF:
Date: 09/07/2016
Proceedings: Notice of Serving UF Health Jacksonville's Responses to Department of Health's Interrogatories filed.
PDF:
Date: 09/06/2016
Proceedings: Department of Health's Notice of Rulemaking and Request for Status Conference filed.
PDF:
Date: 08/31/2016
Proceedings: Notice of Serving UF Health Jacksonville's Responses to Orange Park Medical Center, Inc.'s Interrogatories filed.
PDF:
Date: 08/31/2016
Proceedings: Shands Jacksonville Medical Center, Inc.'s Response and Objections to Orange Park Medical Center, Inc.'s First Request for Production of Documents filed.
PDF:
Date: 08/31/2016
Proceedings: Orange Park Medical Center's Responses to Shand's First Request for Production of Documents filed.
PDF:
Date: 08/31/2016
Proceedings: Orange Park Medical Center's Notice of Service of Responses to Shands Jacksonville's First Set of Interrogatories filed.
PDF:
Date: 08/29/2016
Proceedings: Notice of Taking Deposition Duces Tecum (Leah Colston) filed.
PDF:
Date: 08/26/2016
Proceedings: Notice of Taking Depositions Duces Tecum filed.
PDF:
Date: 08/02/2016
Proceedings: Respondent Department of Health's Notice of Service of First Requests for Production of Documents and First Set of Interrogatories to Shands Jacksonville Medical Center, Inc., filed.
PDF:
Date: 08/02/2016
Proceedings: Respondent Department of Health;s First Requests for Production of Documents to Shands Jacksinville Medical Center, Inc., filed.
PDF:
Date: 07/26/2016
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 07/26/2016
Proceedings: Notice of Hearing (hearing set for October 17 through 19, 2016; 9:30 a.m.; Tallahassee, FL).
PDF:
Date: 07/22/2016
Proceedings: Respondent, Department of Health's, Response to Shands Jacksonville Medical Center's First Request for Production of Documents filed.
PDF:
Date: 07/22/2016
Proceedings: Respondent, Department of Health's, Notice of Service of Answers to First Set of Interrrogatories and First Reques for Production of Documents Propounded by Shands Jacksonville Medical Center filed.
PDF:
Date: 07/19/2016
Proceedings: Notice of Appearance (Daniel Russell) filed.
PDF:
Date: 07/19/2016
Proceedings: Order Denying Motion to Consolidate.
PDF:
Date: 07/07/2016
Proceedings: Shands Jacksonville Medical Center, Inc.'s Response in Opposition to Consolidation filed.
PDF:
Date: 07/07/2016
Proceedings: Orange Park Medical Center and Kendall Regional Medical Center's Response to the Department's Motion to Consolidate filed.
PDF:
Date: 06/30/2016
Proceedings: Respondent's Motion to Consolidate filed.
PDF:
Date: 06/29/2016
Proceedings: Orange Park Medical Center's Response to Shands' Notice of Opposition to Consolidation filed.
PDF:
Date: 06/28/2016
Proceedings: Petitioner's Notice of Opposition to Consolidation filed.
PDF:
Date: 06/23/2016
Proceedings: Response to Initial Order filed.
PDF:
Date: 06/22/2016
Proceedings: Notice of Unavailability (of counsel for Intervenor) filed.
PDF:
Date: 06/21/2016
Proceedings: UF Health Jacksonville's First Request for Production of Documents to Orange Park Medical Center, Inc. filed.
PDF:
Date: 06/21/2016
Proceedings: Notice of Serving UF Health Jacksonville's First Interrogatories to Orange Park Medical Center, Inc. filed.
PDF:
Date: 06/21/2016
Proceedings: Orange Park Medical Center, Inc.'s First Request for Production of Documents to Shands Jacksonville Medical Center, Inc., filed.
PDF:
Date: 06/21/2016
Proceedings: Orange Park Medical Center, Inc.'s Notice of Service of First Interrogatories to Shands Jacksonville Medical Center, Inc., filed.
PDF:
Date: 06/17/2016
Proceedings: UF Health Jacksonville's First Request for Production of Documents to Deptartment of Health filed.
PDF:
Date: 06/17/2016
Proceedings: UF Health Jakconsville's Notice of Serving First Interrogatories to Department of Health filed.
PDF:
Date: 06/16/2016
Proceedings: Notice of Appearance (Jay Reynolds) filed.
PDF:
Date: 06/16/2016
Proceedings: Initial Order.
PDF:
Date: 06/16/2016
Proceedings: Notice of Unavailability (of counsel for Petitioner) filed.
PDF:
Date: 06/16/2016
Proceedings: Petitioner's Suggestion that Motion to Partially Dismiss is Now Moot filed.
PDF:
Date: 06/15/2016
Proceedings: UF Health Jacksonville's Response in Opposition to Orange Park's Motion to Partially Dismiss UF Health Jacksonville's Petition for Formal Administrative Proceeding filed.
PDF:
Date: 06/15/2016
Proceedings: Orange Park Medical Center's Motion to Partially Dismiss Shands' Petition for Formal Administrative Proceedings filed.
PDF:
Date: 06/15/2016
Proceedings: Notice of Appearance (S. Ecenia).
PDF:
Date: 06/15/2016
Proceedings: Notification of Approval of Provisional Trauma Center Application filed.
PDF:
Date: 06/15/2016
Proceedings: UF Health Jacksonville's Petition for Formal Administrative Proceedings to Contest the Preliminary Decision to Authorize a Trauma Center filed.
PDF:
Date: 06/15/2016
Proceedings: Notice (of Agency referral) filed.

Case Information

Judge:
W. DAVID WATKINS
Date Filed:
06/15/2016
Date Assignment:
06/16/2016
Last Docket Entry:
04/27/2017
Location:
Tallahassee, Florida
District:
Northern
Agency:
DOAH Order Rejected
 

Counsels

Related DOAH Cases(s) (1):

Related Florida Statute(s) (19):

Related Florida Rule(s) (6):