17-002302 Bayfront Hma Medical Center, Llc D/B/A Bayfront Health-St. Petersburg vs. Department Of Health
 Status: Closed
Settled and/or Dismissed prior to entry of RO/FO on Friday, June 9, 2017.


View Dockets  

1STANDARD OF REVIEW FOR RULING ON

7EXCEPTIONS TO A RECOMMENDED ORDER

12Section 120.57(1)(k), Florida Statutes, directs an agency to include in its final

24rder an explicit ruling on each exception, but an agency need not rule on an exception

40t at does not clearly identify the disputed portion of the recommended order by page

55umber or paragraph, that does not identify the legal basis for the exception, or that

70oes not include appropriate and specific citations to the record.

80An agency may not reject or modify findings of fact in a recommended order

94nless the agency first determines from a review of the entire record, and states with

109articularity in the order, that the findings of fact were not based upon competent

123s bstantial evidence or that the proceedings on which the findings were based did not

138c mply with essential requirements oflaw. See § 120.57(1)0), Fla. Stat.

149An agency may reject or modify the conclusions of law over which the agency has

164s bstantive jurisdiction and interpretation of administrative rules over which the agency

176as substantive jurisdiction. When rejecting or modifying such conclusion oflaw or

187i terpretation of administrative rule, the agency must state with particularity its reasons

200£ r rejecting or modifying such conclusion of law or interpretation of administrative rule

214a d must make a finding that its substituted conclusion of law or interpretation of

229a ministrative rule is as or more reasonable than that which was rejected or modified.

244RULING ON EXCEPTIONS

247ont's Exce tion #1.

251Bayfront takes exception to the ALJ's findings, alleging that the ALJ did not take

265e factual allegations in Bayfront's petition as true. Bayfront does not specify in detail

279hich findings in the Recommended Order of Dismissal ("RO") are inconsistent with its

294etition, aside from referencing page 4 of the RO. The first full paragraph on page 4 of

311e RO summarizes the substantial interests raised in Bayfront's petition and states:

323The petition describes significant harm that would befall Bayfront

332from Northside's operation of a trauma center. The harm includes severe

343reduction in the number of trauma cases treated at Bayfront and significant

355financial losses. Bayfront's petition also asserts that Area 9 does not need

367another trauma center and that Northside cannot satisfy the requirements

377for approval as a trauma center. All of the claimed harm can only come from

392Northside operating as a trauma center. Bayfront does not identify any

403harm that would follow from the Department accepting Northside's letter

413of intent or reviewing its application.

419In review of Bayfront's Petition for Formal Administrative Hearing, the potential

430arms raised in Bayfront's petition would only occur if Northside's application were

442pproved. Bayfront does not identify harms that are caused by the Department's

454cceptance of Northside's letter of intent or review of Northside's application. The ALJ

467id not fail to take those substantial interests as true, instead finding that Bayfront's

481s bstantial interests are not impacted by the Department's action that was challenged in

495ayfront's petition. The ALJ was correct that, based on the allegations in Bayfront's

508etition taken as true, Bayfront does not have standing.

517Bayfront's exception #1 is denied.

522ont's Exce tion #2.

526Bayfront takes exception to the ALI's ultimate conclusion of law that Bayfront

538I eked standing in this proceeding and the finding that all of Bayfront's claimed harms

553n only come from Northside operating as a trauma center.

563Bayfront argues that it has standing and its substantial interests are impacted by

576e Department's acceptance of Northside's letter of intent because once a trauma

588c nter applicant is approved it can begin operating, making Bayfront's alleged injuries

601i minent. In other words, Bayfront is arguing that the Department's action of

614ccepting a letter of intent from Northside (the only event that Bayfront challenged at

628t e time of its petition) resulted in the subsequent receipt of Northside's application, the

643epartment's review of the application, denial of the application, notice to Northside of

656i shearing rights, and the filing of the petition by Northside challenging the

669epartment's decision. At the point of the letter of intent, there are far too many

684i tervening steps before the result Bayfront fears could occur and in fact, the result

699ayfront fears has not occurred and might not occur. The ALJ was correct that Bayfront

714oes not have standing under Agrico Chern. Co. v. Dep't of Environmental Regulation,

727o6 So. 2d 478 (Fla. 2d DCA 1981).

735With regard to Bayfront's interests in the potential outcome of Northside's

746etition challenging the Department's denial of Northside's application, Bayfront has

756led a motion to intervene in that proceeding. 1 See Fla. Admin. CodeR. 28-106.205(1).

770Bayfront argues that section 395-4025(7), Florida Statutes, grants Bayfront

779s anding to challenge the Department's acceptance of a letter of intent. Section

7923 5.4025(7), Florida Statutes, states: "Any hospital that wishes to protest a decision

805ade by the department based on the department's preliminary or in-depth review of

818a plications or on the recommendations of the site visit review team pursuant to this

833s ction shall proceed as provided in chapter 120." (Emphasis added). The statute

846p ovides that a hospital may protest the Department's decision, not the steps that occur

861p ·or to that decision. The statute does not provide for challenging the receipt of a letter

8781 orthside's challenge is currently before the Division of Administrative Hearings, DOAH case 2017-2754, and

893B yfront's motion to intervene has been granted.

901Bayfront's exception #2 is denied.

906In Bayfront's exception #3, Bayfront does not identify the specific finding in the

9190 to which it takes exception, but again takes exception to the ALJ's conclusion that

934ayfront lacks standing. In this exception, Bayfront argues that the ALJ failed to follow

948in ding precedent, arguing that the acceptance of Northside's letter of intent and the

962onsideration Northside's trauma application violated the Department's own rules.

971Contrary to Bayfront's assertions, rule, 64E-2.012(1)(a) of the Florida

980dministrative Code, directs that the Department "shall accept a letter of intent, DH

993orm 1840, January 2010, 'Trauma Center Letter of Intent', ... from any acute care

1007eneral or pediatric hospital." Likewise, the trauma statute directs the Department to

1019ccept letters of intent. See§ 395.4025(2)(a), Fla. Stat. (directing that the Department

1031s all notify each acute care hospital in the state that it is accepting letters of intent).

1048Bayfront' s exception # 3 is denied.

1055Bayfront takes exception to the ALJ's conclusion that the Department's action of

1067a cepting a letter of intent was not a decision. Bayfront argues that where an affirmative

1083cision is communicated to a party by an agency, the communication has been

1096c nsidered agency action. Bayfront cites to cases where an agency communicated, by

1109t lephone or in writing, an action it intended to take that impacted a party's substantial

1125i terests. Bayfront asserts that the "letter accepting the [letters of intent]" was a

1139c mmunication from the Department indicating it would accept and process trauma

1151Unlike the cases that Bayfront cites, the Department's statutorily required notice

1162acute care hospitals that it is accepting letters of intent does not communicate an

1176tended action on any potential applications. The acceptance of a letter of intent is not

1191decision following one of the review stages outlined in section 395.4025(7), Florida

1203tatutes. The ALJ was correct that accepting a letter of intent was not a decision or

1219epartment action that impacted Bayfront's substantial interests.

1226Bayfront's exception #4 is denied.

1231ORDER

1232The findings of fact, conclusions of law and recommendation set forth in the

1245ecommended Order of Dismissal, attached as Exhibit A, are adopted and incorporated

1257y reference in this Final Order. Bayfront's Petition for Formal Administrative Hearing

1269dismissed.

1270a.A

1271DONE AND ORDERED in Tallahassee, Leon County, Florida day of

1281Celes . Philip, MD, MPH

1286State Surgeon General & Secretary

1291eoffrey D. Smith, Esquire

1295orinne T. Porcher, Esquire

1299usan Crystal Smith, Esquire

1303imothy Bruce Elliott, Esquire

1307mith & Associates

1310301 Thomasville Rd., Suite 201

1315allahassee, Florida 32308

1318eoff smithlawtlh.com

1320s san smithlawtlh.com

1323c rinne smithlawtlh.com

1326t m smithlawtlh.com

1329S annan Revels, Agency Clerk

1334epartment of Health

13374 52 Bald Cypress Way, Bin A-02

1344llahassee, Florida 32399-1703

1347J hn D. C. Newton, II

1353dministrative Law Judge

1356ivision of Administrative Hearings

1360T e DeSoto Building

13641 30 Apalachee Parkway

1368T llahassee, Florida 32399-3060

1372CERTIFICATE OF SERVICE

1375I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been

1390ent by electronic mail u.n; and/ or by inter-office mail to each of the

1404hove-named persons of sA- 2017.

1409Agency Clerk

1411Department of Health

14144052 Bald Cypress Way, BIN A-02

1420Tallahassee, Florida 32399-1703

1423NOTICE OF RIGHT TO JUDICIAL REVIEW

1429A PARTY ADVERSELY AFFECTED BY THIS ORDER IS ENTITLED TO

1439UDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES.

1447EW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF

1456PELLATE PROCEDURE. A REVIEW PROCEEDING IS INITIATED BY

1464ILING A NOTICE OF APPEAL WITH THE CLERK OF THE DEPARTMENT

1475F HEALTH AND A COPY ACCOMPANIED BY THE FILING FEE WITH THE

1487ISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE

1497RESIDES OR IN THE FIRST DISTRICT COURT OF APPEAL. THE

1507OTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF THE FILING

1519ATE OF THIS ORDER.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 09/21/2017
Proceedings: Notice of Administrative Appeal filed.
PDF:
Date: 08/24/2017
Proceedings: Agency Final Order
PDF:
Date: 08/24/2017
Proceedings: Galencare, Inc.'s Responses to Bayfront's Exceptions to Recommended Order of Dismissal filed.
PDF:
Date: 08/24/2017
Proceedings: Exceptions to Recommended Order filed.
PDF:
Date: 08/24/2017
Proceedings: Agency Final Order of Dismissal filed.
PDF:
Date: 06/09/2017
Proceedings: Recommended Order of Dismissal. CASE CLOSED.
Date: 06/06/2017
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 06/06/2017
Proceedings: Intervenor Galencare, Inc. d/b/a Northside Hospital's Response in Opposition to Bayfront's Motion to Consolidate filed.
PDF:
Date: 06/05/2017
Proceedings: Department of Health's Response in Opposition to Bayfront's Motion to Consolidate filed.
PDF:
Date: 06/01/2017
Proceedings: Bayfront's Notice Regarding Oral Argument filed.
PDF:
Date: 06/01/2017
Proceedings: Notice of Appearance (Timothy Elliott) filed.
PDF:
Date: 05/31/2017
Proceedings: Department of Health's Notice Regarding Oral Argument filed.
PDF:
Date: 05/31/2017
Proceedings: Intervenor Galencare, Inc. d/b/a Northside Hospital's Notice Regarding Oral Argument filed.
PDF:
Date: 05/30/2017
Proceedings: Bayfront's Motion to Consolidate filed.
PDF:
Date: 05/30/2017
Proceedings: Order Canceling Hearing and Setting Oral Argument on Pending Motion to Dismiss and Standing Issue.
PDF:
Date: 05/26/2017
Proceedings: Bayfront's Response to Northside's Motion to Dismiss filed.
PDF:
Date: 05/26/2017
Proceedings: Intervenor Galencare, Inc. d/b/a Northside Hospital's Motion to Dismiss Bayfront's Petition as Moot filed.
PDF:
Date: 05/19/2017
Proceedings: Intervenor Galencare, Inc. d/b/a/ Northside Hospital's Memorandum Regarding Why Petitioner Bayfront HMA Medical Center, LLC's d/b/a Bayfront Health - St. Petersburg's Petition Should Be Dismissed for Lack of Standing filed.
PDF:
Date: 05/19/2017
Proceedings: Bayfront's Response to Order Requesting Memorandum of Law on Standing filed.
PDF:
Date: 05/19/2017
Proceedings: Department of Health's Memorandum on Standing filed.
PDF:
Date: 05/19/2017
Proceedings: Department of Health's Notice of Service of Memorandum on Standing filed.
PDF:
Date: 05/16/2017
Proceedings: Bayfront HMA Medical Center's Notice of Serving Unverified Answers to Galencare, Inc. d/b/a Northside Hospital's First Interrogatories filed.
PDF:
Date: 05/16/2017
Proceedings: Bayfront HMA Medical Center, LLC d/b/a Bayfront Health - St. Petersburg's Response to Galencare, Inc. d/b/a Northside Hospital's First Request for Production of Documents filed.
PDF:
Date: 05/16/2017
Proceedings: Order Denying Bayfront's Motion for Leave to Amend Petition.
PDF:
Date: 05/15/2017
Proceedings: Department of Health's Notice of Service of Unverified Answers to Interrogatories and Responses to Request for Production filed.
PDF:
Date: 05/15/2017
Proceedings: Galencare, Inc.'s Notice of Service of Answers to Bayfront HMA Medical Center, LLC's First Set of Interrogatories filed.
PDF:
Date: 05/15/2017
Proceedings: Galencare, Inc.'s Responses to Bayfront HMA Medical Center, LLC's First Request for Production of Documents filed.
PDF:
Date: 05/12/2017
Proceedings: Bayfront's Notice of Serving Discovery Pursuant to Case Management Order filed.
PDF:
Date: 05/12/2017
Proceedings: Department of Health's Notice of Service of Required Disclosures filed.
PDF:
Date: 05/12/2017
Proceedings: Department of Health's Response in Opposition to Bayfront's Motion for Leave to Amend Petition for Administrative Hearing filed.
PDF:
Date: 05/12/2017
Proceedings: Galencare, Inc.'s Notice of Service of Discovery Disclosure filed.
PDF:
Date: 05/12/2017
Proceedings: Galencare, Inc.'s Response in Opposition to Bayfront HMA Medical Center, LLC's Motion for Leave to Amend Petition filed.
PDF:
Date: 05/09/2017
Proceedings: Order Denying Bayfront's First Motion for Continuance and Requiring Memoranda on Standing.
PDF:
Date: 05/08/2017
Proceedings: Motion for Continuance filed.
PDF:
Date: 05/05/2017
Proceedings: Order Denying Bayfront's Motion to Expedite Production.
PDF:
Date: 05/05/2017
Proceedings: Bayfront's Motion for Leave to Amend Petition for Administrative Hearing filed.
PDF:
Date: 05/05/2017
Proceedings: Clarification of Case Management Order.
PDF:
Date: 05/04/2017
Proceedings: Galencare, Inc.'s Motion for Clarification of Case Management Order filed.
PDF:
Date: 05/03/2017
Proceedings: Glencare, Inc.'s Response in Opposition to Bayfront HMA Medical Center, LLC's Amended Motion to Expedite Production filed.
PDF:
Date: 05/02/2017
Proceedings: Case Management Order.
PDF:
Date: 05/02/2017
Proceedings: Notice of Hearing (hearing set for June 6, 2017; 9:00 a.m.; Tallahassee, FL).
Date: 05/01/2017
Proceedings: CASE STATUS: Pre-Hearing Conference Held.
PDF:
Date: 05/01/2017
Proceedings: Notice of Telephonic Case Management Conference (status conference set for May 2, 2017; 10:30 a.m.).
PDF:
Date: 04/28/2017
Proceedings: Bayfront's Amended Motion to Expedite Production filed.
PDF:
Date: 04/28/2017
Proceedings: Order Denying Bayfront's Motion to Expedite Production.
PDF:
Date: 04/27/2017
Proceedings: Bayfront's Motion to Expedite Production filed.
PDF:
Date: 04/25/2017
Proceedings: Galencare, Inc.'s First Request for Production of Documents to Bayfront HMA Medical Center, LLC filed.
PDF:
Date: 04/25/2017
Proceedings: Galencare, Inc's Notice of Service of First Set of Interrogatories to Bayfront HMA Medical Center, LLC filed.
PDF:
Date: 04/25/2017
Proceedings: Notice of Appearance (Gabriel Warren) filed.
PDF:
Date: 04/25/2017
Proceedings: Response to Initial Order filed.
PDF:
Date: 04/25/2017
Proceedings: Response to Initial Order filed.
PDF:
Date: 04/24/2017
Proceedings: Bayfront HMA Medical Center's Notice of Serving First Interrogatories to Galencare, Inc. d/b/a Northside Hospital filed.
PDF:
Date: 04/24/2017
Proceedings: Bayfront's First Request for Production of Documents to Northside Hospital filed.
PDF:
Date: 04/24/2017
Proceedings: Bayfront HMA Medical Center's Notice of Serving First Interrogatories to Department of Health filed.
PDF:
Date: 04/24/2017
Proceedings: Bayfront's First Request for Production to Deparment of Health filed.
PDF:
Date: 04/19/2017
Proceedings: Order Recognizing Intervention and Amending Case Style.
PDF:
Date: 04/19/2017
Proceedings: (Northside's) Notice of Appearance filed.
PDF:
Date: 04/19/2017
Proceedings: Notice of Appearance (Stephen Ecenia) filed.
PDF:
Date: 04/18/2017
Proceedings: Notice of Appearance (Michael Williams) filed.
PDF:
Date: 04/18/2017
Proceedings: Initial Order.
PDF:
Date: 04/18/2017
Proceedings: Letter of Intent filed.
PDF:
Date: 04/18/2017
Proceedings: Petition for Formal Administrative Hearing filed.
PDF:
Date: 04/18/2017
Proceedings: Notice (of agency referral) filed.

Case Information

Judge:
JOHN D. C. NEWTON, II
Date Filed:
04/18/2017
Date Assignment:
04/18/2017
Last Docket Entry:
09/21/2017
Location:
Tallahassee, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
 

Counsels

Related Florida Statute(s) (3):

Related Florida Rule(s) (2):