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.
Settled and/or Dismissed prior to entry of RO/FO on Friday, June 9, 2017.
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.
- Date
- Proceedings
- PDF:
- Date: 08/24/2017
- Proceedings: Galencare, Inc.'s Responses to Bayfront's Exceptions to Recommended Order of Dismissal filed.
- 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: 05/31/2017
- Proceedings: Intervenor Galencare, Inc. d/b/a Northside Hospital's Notice Regarding Oral Argument 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: 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 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: 05/15/2017
- 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: 05/05/2017
- Proceedings: Bayfront's Motion for Leave to Amend Petition for Administrative Hearing filed.
- 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: 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: 04/25/2017
- 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: 04/24/2017
- 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.
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
-
Stephen A. Ecenia, Esquire
Rutledge, Ecenia, & Purnell, P.A.
Suite 202
119 South Monroe Street
Tallahassee, FL 323020551
(850) 681-6788 -
Corinne T. Porcher, Esquire
Smith & Associates
Suite 201
3301 Thomasville Road
Tallahassee, FL 32308
(850) 297-2006 -
Jay Patrick Reynolds, Esquire
Department of Health
Bin A-02
4052 Bald Cypress Way
Tallahassee, FL 32399
(850) 245-4005 -
Geoffrey D Smith, Esquire
Smith & Associates
3301 Thomasville Road, Suite 201
Tallahassee, FL 32308
(850) 297-2006 -
Susan Crystal Smith, Esquire
Smith & Associates
Suite 201
3301 Thomasville Road
Tallahassee, FL 32308
(820) 297-2006 -
Michael Jovane Williams, Esquire
Department of Health
4052 Bald Cypress Way, Bin C-65
Tallahassee, FL 32399
(850) 245-4005 -
Stephen A Ecenia, Esquire
Address of Record -
Timothy Bruce Elliott, Esquire
Address of Record -
Corinne T. Porcher, Esquire
Address of Record -
Jay Patrick Reynolds, Esquire
Address of Record -
Geoffrey D. Smith, Esquire
Address of Record -
Susan Crystal Smith, Esquire
Address of Record -
Gabriel F.V. Warren, Esquire
Address of Record -
Michael Jovane Williams, Esquire
Address of Record -
Stephen A. Ecenia, Esquire
Address of Record