02-000400RU Columbia Hospital Corporation Of South Broward, D/B/A Westside Regional Medical Center vs. Department Of Health Status: Closed DOAH Final Order on Thursday, April 11, 2002.

Summary: Agency statement in letter constitutes agency action. It is not an umpromulgated rule in violation of Section 120.54(1)(a), Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COLUMBIA HOSPITAL CORPORATION )

OF SOUTH BROWARD, d/b/a )

WESTSIDE REGIONAL MEDICAL )

CENTER, )

)

Petitioner, )

)

vs. ) Case No. 02 - 0400RU

)

DEPARTMENT OF HEALTH, )

)

Respondent, )

)

and )

)

NORTH BROWARD HOSPITAL )

DISTRICT, d/b/a BROWARD GENERAL )

MEDICAL CENTER, and d/b/a NORTH )

BROWARD MEDICAL CENTER, )

)

Intervenor. )

)

FINAL ORDER

This petition for a determination pursuant to Section

120.56( 4), Florida Statutes, was assigned to David M. Maloney,

Administrative Law Judge of the Division of Administrative

Hearings on February 5, 2002. Originally set for final hearing

on March 5, 2002, the hearing was cancelled following the

suggestion of the p arties that the case be presented on a

submitted record and any objections in writing with a date

certain for the establishment of the record. The putative record

was filed on March 12, 2002, together with objections. The

objections were ruled on and the record, as scheduled, was

established by order entered March 15, 2002.

APPEARANCES

For Petitioner: Harold F. X. Purnell, Esquire

Stephen A. Ecenia, Esquire

Rutledge, Ecenia, Purnell and Hoffman, P.A.

215 South Monroe Street, Suite 420

Post Office Box 551

Tallahassee, Florida 32302 - 0551

and

Barbara Auger, Esquire

The Auger Law Firm

Post Office Box 471

Tallahassee, Florida 32302

For Respondent: William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1703

For Intervenor: Michael E. Riley, Esquire

Chanta G. Combs, Esquire

Gray, Harris & Robinson, P.A.

301 South Bronough Street, Suite 6 00

Post Office Box 11189

Tallahassee, Florida 32302 - 3189

and

William R. Scherer, Esquire

Wendy Delvecchio, Esquire

Conrad & Scherer

Post Office Box 14723

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

Whether a letter of the Department of Health dated

January 15, 2002, violates Section 120.54(1)(a), Florida

Statutes?

PRELIMINARY STATEMENT

O n February 4, 2002, Petitioner, Columbia Hospital

Corporation of South Broward, d/b/a Westside Regional Medical

Center ("Westside") filed pursuant to Section 120.56(4), Florida

Statutes, a petition with the Division of Administrative

Hearings. The petitio n seeks a determination that a statement of

the Department of Health violates Section 120.54(1)(a), Florida

Statutes. For relief, the petition requests both such a

determination and an award of P etitioner's attorney's fees

pursuant to Section 120.595(4), Florida Statutes.

In support of the requested relief, the petition alleges:

9. On January 15, 2002, the Department

unilaterally withdrew its earlier final

agency action in amending the Broward County

Trauma Agency plan, thus purporting to

restore the loc al plan to its previous status

of reflecting the need for only three trauma

centers within TSA 18. (citation omitted).

10. The Department's action in withdrawing

its earlier agency action amending the

Broward County Trauma Agency plan constitutes

a rul e as such term is defined in F.S.

120.52(15) but which has not been adopted by

the rulemaking procedures of Chapter 120.

Such action results in an agency statement

which, contrary to F.S. 395.402(3)(b),

permits the local trauma agency, rather than

the Dep artment, to determine by its [local

plan] the number of trauma centers needed for

each TSA.

11. The Department in withdrawing its final

agency action amending the Broward County

Trauma Agency plan, has further effectuated a

defacto amendment to rule 64E - 2.022(3)

without following rulemaking requirements, to

provide need for 3 rather than 4 trauma

centers.

( Id. , at p. 3.)

After assignment by the Division of the case to the

undersigned on February 5, 2002, a N otice of H earing and an O rder

of P re - H earing I nstructions were issued on February 7, 2002. The

notice set the final hearing for March 5, 2002. On February 15,

2002, a P etition to I ntervene filed by North Broward Hospital

District ("NBHD") and South Broward Hospital District ("SBHD")

was granted subj ect to proof of standing at final hearing.

Subsequently, SBHD filed a notice of voluntary dismissal. The

notice was acknowledged by order entered March 1, 2002, and the

case proceeded without the participation of SBHD.

At the initiation of counsel for W estside, a telephone

conference call was conducted on March 4, 2002, with all parties

participating. The conference resulted in an order issued the

same day. The order deemed withdrawn motions for summary final

order by NBHD and the Department, cancelled the hearing set for

the next day, set up a procedure for establishment of a record by

March 15, 2002, and called for proposed final orders to be

submitted by the parties by March 27, 2002. In addition, it set

April 11, 2002, as the date for rendition of the final order.

The parties concurred in the deadlines set by the order and were

deemed to have waived any times set by rule or statute that

ordinarily would have applied to the proceeding.

As required by order, the record was submitted in timely

fashio n. It consists of two binders, one denominated "Exhibits";

the other denominated "Depositions." Each binder contains

matrices referring to the contents of the binder. In the case of

the exhibits, the binder contained an introductory matrix. The

matrix referred to the 29 exhibits (numbered sequentially 1 - 29)

by description accompanied by objection, if any, by any party and

opposing parties' responses to the objection. In the case of the

depositions, seven depositions were submitted. These were of:

Char les Bement, Art Clawson, George Danz, Jeanne Eckes,

Michael Joseph, Dr. Larry Lottenberg, and Susan McDivitt. Each

deposition contained an individual matrix organized in much the

same manner as the matrix applicable to the exhibits.

The record was establ ished by order ruling on the objections

and accepting what remained of the submission as the record in

the case. As called for by the March 4, 2002, order, the order

establishing the record was entered on March 15, 2002.

On March 18, 2002, a letter from W estside's counsel was

filed indicating that "[a]ll the parties . . . [had] agreed to an

extension in which to file their respective Proposed Orders [to]

April 3, 2002." An order was entered accordingly, extending the

time for filing proposed final orders until the date requested.

On March 26, 2002, NBHD filed a R equest for O fficial

R ecognition. The request stated that the Department did not

object to it and that Westside had not responded to NBHD's

inquiry as to its position. Official recognition has bee n taken

of the statements contained in the request.

On April 1, 2002, Westside requested that official

recognition be taken of a March 25, 2002, letter from George H.

Danz, Director of the Broward County Trauma Agency to Lee B.

Chaykin, Chief Operating Off icer of Westside. The letter subject

to the request was filed the next day, April 2, 2002. The

filings of Westside indicate that no objection to the request is

raised by either NBHD or the Department. Official recognition is

taken of the letter as reque sted.

Proposed final orders were filed timely pursuant to the

order of extension. This final order follows.

FINDINGS OF FACT

1. Westside ( P etitioner) is an acute care general hospital

licensed by the State of Florida, Agency for Health Care

Administratio n, pursuant to Part I of Chapter 395, Florida

Statutes. Westside is located at 8201 West Broward Boulevard,

Plantation, Florida.

2. Westside's location is in Trauma Service Area ("TSA") 18

comprised exclusively of Broward County as established by Section

395.402(3)(a)18., Florida Statutes.

3. The Department, created pursuant to S ection 20.43,

Florida Statutes, is the state agency charged with primary

responsibility for the planning and establishment of a statewide

inclusive trauma system. See S ection 39 5.40(3), Florida Statutes

(2001). See also Rule 64E - 2.021, Florida Administrative Code.

4. "'Trauma agency' means a department - approved agency

established and operated by one or more counties . . . for the

purpose of administering an inclusive regional t rauma system."

Section 395.4001(10), Florida Statutes. The Broward County

Trauma Agency ("BCTA") is the local trauma agency established by

processes and procedures established, in turn, by rule of the

Department. Section 395.401, Florida Statutes. It i s the

Department - approved trauma agency in TSA 18.

5. Each local trauma agency, such as the BCTA, is directed

by Section 395.401(1)(b), Florida Statutes, to "develop and

submit to the department plans for local and regional trauma

service systems." The p lans must include certain components

outlined in the statute. Among them are "the number and location

of needed state approved trauma centers based on local needs,

population, and location and distribution of resources." Section

395.401(1)(b)4., Florida Statutes. The statute also calls for

periodic updates of the plans:

After the submission of the initial trauma

system plan, each trauma agency shall, every

5th year, submit to the department for

approval an updated plan that identifies the

changes, if any , to be made in the regional

trauma system.

Section 395.401(1)(n), Florida Statutes.

6. The Broward County Trauma Agency Plan that had been in

effect "a little bit longer" than since 1995 or 1996, was updated

and submitted for approval to the state in 2 001. (Deposition of

Danz, p. 6.) Although it may have been somewhat delayed (the

record is not clear about the precise amount of time between the

approval of the plan in effect prior to the update and the

update's approval), the timing of the submission was intended to

accord with the statutory requirement that updates be reviewed by

the BCTA and submitted for approval "every five years." ( Id. )

7. The plan in effect at the time of an update approval

process that took place largely in the year 2001 state d:

State trauma center planning has resulted in

an estimated need for four (4) trauma centers

in Broward County. For the purposes of

network development this plan envisions the

initial establishment of three (3) Level II

facilities with additional facilit ies being

placed on line as need and funding requires.

Each center will act as the primary receiving

facility for a designated geographical

catchment area (see maps d1 and d2).

(Exhibit 20, Part D, p. 4.)

8. The updated plan, denominated Broward County Trauma Plan

2001 (also referred to as the "2001 Plan" or the "Plan"), made a

change to the above language. The 2001 Plan states:

The establishment of three (3) facilities

(two Level I Adult and Pediatric Centers and

one Level II Adult Center) each as the

primary receiving facility for a designated

geographical catchment area, has been

determined to be the correct compliment for

the County's current need.

(Exhibit 6, p. 50.)

9. George Danz is the chief of operations for the Broward

County Medical Examine r's Office. He is also the Director of the

BCTA. Director Danz outlined "[i]n a nutshell" (Deposition of

Danz, p. 7), the process for approval of the updated trauma plan

for TSA 18, Broward County Trauma Plan 2001, as follows:

The process is fairly lengt hy. First of all,

the [BCTA] goes through the plan and looks at

what areas we need to make revisions and

changes to and so forth. We make those

changes. We then have a Trauma Advisory

Committee. We take those changes to the

Trauma Advisory Committee fo r their

recommendations and approval. We then are

required by state law to notify all of the

hospitals and EMS providers in Broward County

that revisions are being drafted. We have to

provide public notice, advertise that the

changes are being made.

We have to have a formal public hearing

before the Broward County Commissioners. We

have that hearing, and if it's approved by

the Board of County Commissioners, we then

submit the plan to the State of Florida. The

State reviews the plan. If they have any

changes that they want us to make to the

plan, they let us know. They make the change

that the state requires and then the state

finally provides us with an approval or

denial of the plan.

( Id. )

10. In keeping with the process outlined by him, Director

Danz sent a memorandum to "Broward County Hospital

Administrators" and "Trauma Care Providers" on January 26, 2001.

(Exhibit 1.) The memorandum informed the administrators and

providers of trauma care that the BCTA with the aid of the Trauma

Advisory Co mmittee and the Regional Health Planning Council,

Inc., had updated the Broward County Trauma Plan in accordance

with law. The memorandum further advised that the Broward County

Commission had directed that notice be given that the updates to

the plan wou ld be considered at a public hearing to be held on

February 27, 2001. In the meantime, the Broward County Trauma

Advisory Committee on February 14, 2001, approved an updated

trauma plan for TSA 18. Less than two weeks later, as announced

in Director Danz 's earlier memorandum to hospital administrators

and trauma providers, the 2001 Plan was presented to the Broward

County Commission at a public hearing. The Commission voted

unanimously at the hearing held as scheduled February 27, 2001,

to approve the 20 01 Plan.

11. On April 30, 2001, Director Danz submitted the 2001

Plan to the Department. In response, the Department, on May 24,

2001, wrote to Director Danz announcing the conclusion of its

"review for completeness of the Broward County Trauma Agency Pl an

Update that was received May 2, 2001." (Exhibit 3.) Although

the Department found the 2001 Plan to include a majority of

required elements, it found six "to be missing or incomplete."

( Id. ) These six elements were listed in the May 24, 2001, letter

from the Department to the BCTA Director.

12. On June 26, 2001, Director Danz sent a letter to

Program Administrator Frederick A. Williams at the Department's

Bureau of Emergency Medical Services. The letter outlined how

each of the six deficient element s had been addressed by BCTA.

The letter was received June 29, 2001, by the Department.

13. Twelve days later, on July 11, 2001, Bureau of

Emergency Medical Services Chief Charles Bement wrote Director

Danz:

We have completed the review of the Broward

C ounty Trauma Agency Plan Update submitted to

this office on May 2, 2001, with the changes

and additions we had requested in our letter

to you May 24, 2001. We are pleased to

inform you that your plan update is approved

effective as of the date of this let ter.

(Exhibit 5.)

14. Although the 2001 Plan provided for only three trauma

centers in Broward County, and there were already three existing

centers, with the plan having been approved for more than two

months, on September 26, 2001, Michael Joseph, th e Chief

Executive Officer of Westside executed a "STATE - APPROVED TRAUMA

CENTER LETTER OF INTENT." (Exhibit 17). The letter expressed

Westside's "interest in becoming a State - Approved Trauma Center

(SATC) or State - Approved Pediatric Trauma Referral Center

(SAPTRC), or in upgrading the trauma care services already being

provided." ( Id. )

15. CEO Joseph's letter was not out of step with the latest

thinking of the Department. It crossed in the mail with a letter

from the Department dated September 28, 2001 . This letter, under

signature of Bureau Chief Bement to Director Danz and the BCTA

reflected the Department's conclusion that the Broward County

Trauma Plan 2001 (although previously approved by the Department)

conflicted with a rule of the Department of Health. Accordingly,

the letter announced Department action: amendment of the 2001

Plan to bring it into compliance with the rule. The letter

stated:

It has recently come to my attention that the

trauma services system plan approved by the

Bureau for t he Broward County Trauma Agency

conflicts with the provisions of Fla. Admin.

Code R. 64E - 2.022(3) . The plan recommends

three state approved trauma centers or

pediatric trauma referral centers for trauma

service area 18 while the Administrative Code

provid es for four.

The Legislature has assigned responsibility

for determining the number of trauma centers

allocated to each trauma service area to the

Department of Health. See [s.]

395.402(3)(b), Fla. Stat. The Department has

allocated, by rule, four cente rs for your

area (sic) therefore, the trauma services

systems plan for Broward County Trauma Agency

is amended in accordance with the law to

provide for four centers .

(Exhibit 7, emphasis supplied.)

16. On the same day of the D epartment's letter announc ing

the amendment of the 2001 Plan, a memorandum was issued by

M. Susan McDivitt, R.N., the Department's Executive Community

Health Nursing Director. Bearing a subject line of "Letter of

Intent for State Approved Trauma Centers," and dated

September 28, 2 001, the memorandum informed specific parties of

the notice of amendment to the Broward County Trauma Plan.

Ms. McDivitt's memo refers to the amendment as one that "provides

for four state approved trauma centers or state approved

pediatric trauma referra l centers for Broward County, as outlined

in the [rule]." Exhibit 16. The memorandum goes on,

As you may know, [s.] 395.4025(2), Florida

Statutes , provides that in order to be

considered for approval as a trauma center an

applicant must certify that its operation

would be consistent with the trauma agency

plan. Prior to this amendment, no acute care

general hospital in Broward County could make

that certification as the trauma agency plan

only provided for three centers and Broward

County has three cente rs. The above -

referenced notification [by amending the 2001

Plan to provide for four trauma centers] has

addressed that situation.

( Id. )

17. The following Monday, the Bureau of Emergency Medical

Services stamped as received on October 1, 2001, Westside' s

letter of intent.

18. Two weeks later, on October 15, 2001, the Office of the

County Attorney for Broward County responded to the September 28,

2001, letter in writing. This written communication requested

reconsideration of the action reflected in th e Department's

September 28 letter, that is, the amendment of the 2001 Plan to

provide for four state - approved trauma centers rather than three.

As part of the basis for reconsideration, the County Attorney's

office wrote:

[s.] 395.401(1)(c), Florida Stat utes,

provides that the Department must approve or

disapprove a trauma plan within one hundred

twenty (120) days of submission. Here, the

Department approved the plan (which was

submitted May 2, 2001) on July 11, 2001.

There does not appear to be any sta tutory

authority for the Department of Health to

unilaterally "amend" a trauma plan once

approved. Moreover, the Department's action

here was taken after the 120 day window of

consideration had closed, and more

importantly, after the Department had alread y

determined that the plan was consistent with

Rule 64E - 2. - 22(3).

(Exhibit 8.)

19. On October 23, 2001, Bureau Chief Bement issued a

memorandum to Nursing Director McDivitt. It details reasons

"[t]here should be three trauma centers in Broward County. . . ."

(Exhibit 9.)

20. By letter dated November 5, 2001, Art Clawson, Director

of the Division of Emergency Medical Services and Community

Health Resources in the Department, notified the Broward County

Attorney's Office that Bureau Chief Bement's lett er of

September 28 amending the 2001 Plan constituted agency action

that provided a point of entry into administrative proceedings.

The letter further advised that formal administrative proceedings

could be initiated within 21 days of receipt of the Novem ber 5

letter.

21. On November 29, 2001, NBHD filed a petition for formal

administrative hearing pursuant to Sections 120.569 and

120.57(1), Florida Statutes. The case was assigned DOH Case No.

02 - 0131 - FOI - HSEM. In the case, NBHD challenged the authorit y of

the State of Florida to amend the Broward County Trauma Plan 2001

as done in the Department's September 28 letter. Westside moved

to intervene in the proceeding.

22. While NBHD's case pended at the Department, Division

Director Clawson wrote the le tter which contains the statements

that Westside seeks to have determined in this proceeding to

violate Section 120.54(1)(a), Florida Statutes. The letter,

written January 15, 2002, states, in pertinent part,

Be advised that this correspondence is the

off icial withdrawal by the Department of

Health of its amendment of the Broward County

Trauma Agency (BCTA) plan. More

specifically, the Department withdraws its

letter of September 28th 2001 to the BCTA.

Likewise, the Department withdraws its Notice

of fin al agency action of November 5th, 2001.

It has been determined that the Department

lacked the authority to unilaterally amend

the BCTA plan after it had been approved by

the Department on July 11th, 2001.

(Exhibit 11.) No part of this letter has been pr omulgated as a

rule through the procedures in Section 120.54, Florida Statutes.

23. The effect of the January 15, 2002, letter is to render

Westside's letter of intent submitted for a new state - approved

trauma center in Broward County inconsistent with t he requirement

of Section 395.4025(2) that "[i]n order to be considered by the

department, a hospital [that submits a letter of intent] . . .

must certify that its intent . . . is consistent with the trauma

services plan of the local or regional trauma age ncy, as approved

by the department, . . . ."

24. On January 24, 2002, the Department issued a final

order in DOH Case No. 02 - 01310FOI - HSEM denying the petition of

NBHD challenging the Department's September 28 action of amending

the Plan. The basis of t he denial is that the relief requested

by NBHD had been obtained as the result of the January 15, 2002,

letter.

25. Westside now seeks a determination that the January 15,

2002, letter is an agency statement in violation of Section

120.54(1)(a), Florida Statutes, that is, an unpromulgated rule.

Such a determination will reinstate the Department's letter of

September 28 and its amendment to the 2001 Plan to provide for

four (4) trauma centers in TSA 18. The restoration of the

amendment, in turn, will ope n the door to the potential of

Department approval of the fourth trauma center in Broward County

that Westside hopes to operate as expressed in its letter of

intent.

26. North Broward Hospital District, the operator of two

trauma centers in Broward County , opposes such a determination

because it could lead to approval of a fourth trauma center in

Broward County. Approval of a fourth trauma center would have an

impact on the currently approved trauma centers, including those

of NBHD because the number of p atients seen by the existing

trauma centers would be reduced.

27. As Dr. Lottenberg testified in his deposition, "[I]n

order to effectively have a proficient trauma center, you need to

have about 1,000 severely injured patient per trauma center per

year. Currently[,] all three trauma centers [in Broward County]

are operating somewhat under that number." (Lottenberg, pgs. 26 -

27.) Approval of a fourth trauma center would reduce the

existing provider's number of severely injured patients when, in

Dr. Lotte nberg's opinion, the trauma center's in Broward County

need more patients to ensure proficiency rather than less.

CONCLUSIONS OF LAW

Jurisdiction

28. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Section 120.56(4), Florida Statutes.

Standing

29. Whether a challenge is to an existing rule, a proposed

rule or a statement that constitutes a rule that has not been

promulgated properly, the test for standing is the same. The

cha llenger must be "substantially affected." See Sections

120.56(1)(a) and (4), Florida Statutes.

30. Likewise, those who seek to intervene in any proceeding

under Section 120.56, Florida Statutes, must be substantially

affected. "Hearings held under this section shall be conducted

in the same manner as provided by ss. 120.569 and 120.57 . . . .

Other substantially affected persons may join the proceedings as

intervenors on appropriate terms which shall not unduly delay the

proceedings." Section 120.56(1) (e), Florida Statutes, emphasis

supplied.

31. To meet the "substantially affected" test of Section

120.56(4), Florida, Westside must demonstrate that, as a

consequence of the statement alleged to be a rule not

promulgated, it will suffer injury in fact an d that the injury is

within the zone of interest to be regulated or protected. See

Lanoue v. Florida Department of Law Enforcement , 751 So. 2d 94

(Fla. 1st DCA 2000) in which the court applies the "substantially

affected" test for standing to challenge an existing or proposed

rule under Section 120.56(1)(a), Florida Statutes. Intervenor

NBHD, too, must prove that it is substantially affected, that is,

injured in fact and that the injury is within the zone of

interest to be regulated or protected.

32. Inj ury in fact must be both real and immediate.

Lanoue , above. To satisfy the sufficiently real and immediate

injury in fact element of the "substantially affected" test, the

injury cannot not be based on pure speculation or conjecture.

Ward v. Board of Tr ustees of the Internal Improvement Trust Fund ,

651 So. 2d 1236, 1237 (Fla. 4th DCA 1995), cited with approval in

Lanoue , above, at 96, 97.

33. Westside's ultimate goal, of which this proceeding is

but a part, is to gain sanction for a fourth state - approve d

trauma center in Broward County that it intends to operate.

NBHD's goal, in response, is to prevent such approval.

34. From the vantage point of these ultimate aims, the

injury to Westside caused by the statements in the January 15,

2002, letter and th e injury to NBHD created by a successful

challenge, are conjectural. In point of fact, if Westside were

to prevail in this proceeding, the outcome of any process to

achieve approval of its own trauma center would remain at issue.

A review process would h ave to be conducted. Any preliminary

approval would be subject to administrative proceedings. A

favorable outcome to Westside is by no means certain at the point

of the mere filing of a valid letter of intent. Likewise,

allowing Westside to proceed past the letter of intent stage does

not mean NBHD would suffer the injury it foresees in a Westside

trauma center. The approval process is one that not only could

result in no approval for Westside, regardless of the validity of

the letter of intent, but one that would give NBHD the

opportunity to present the case for why approval should not be

the outcome.

35. Given the conjectural nature of the injury from the

point of view of the health care providers' ultimate goals, is

Westside substantially affected by statements of the Department

that declare its letter of intent in conflict with the 2001 Plan

and conversely is NBHD substantially affected by these statement

being declared invalid unpromulagated rules? The answer in both

cases is "yes," if one looks no t at the ultimate aims of the two

but at the present factual context with which this case is

concerned.

36. Were it not for the statements in the January 15, 2002,

letter, Westside's intent to seek approval of a state approved

trauma center could proceed through normal Department review.

With the January 15, 2002, statements in effect, Westside's

letter of intent is nullified because the intent expressed in the

letter is in obvious conflict with the 2001 Plan's determination

that "three (3) facilities (tw o Level I Adult and Pediatric

Centers and one Level II Adult Center) . . ., [are] the correct

compliment for the County's current need." See Finding of Fact

No. 6, above. Thus, Westside is prevented by the statements from

achieving the initial step requi red to obtain approval of a

fourth trauma center to operate in Broward County: the

acceptance by the Department of a letter of intent in compliance

with the 2001 Plan.

37. The inability to proceed toward state review of such a

project, while not as strik ing an injury as the disapproval of

the ultimate project after review, is nonetheless a real and

immediate injury. Without the ability to take the initial step

required for approval, Westside will never be able to gain such

approval. It must be able to h ave its letter of intent found

consistent with the 2001 Plan or suffer the inevitable injury of

not being able to attain a trauma center while the 2001 Plan is

in effect, a period likely to last for 5 years. The injury of

not being able to get past the fi rst step toward approval of a

trauma center is also an injury within the zone of interest

regulated by the approval process required by the state before a

trauma center may become operational: that is, the zone of

regulation of state approved trauma cente rs.

38. Westside, therefore, has standing to file and prosecute

its petition in this case.

39. If the statements are invalidated, NBHD's injury,

however, is not as preemptive as Westside's would be if the

statements stand. If Westside is prevented from proceeding

beyond the letter of intent stage, it is certain that Westside

will not be able to obtain approval of a trauma center. If the

letter of intent stands, however, as the completed first step in

the approval process, it is not certain that NBHD's a ims of

preventing a Westside trauma center will be thwarted. There will

yet remain the review process, an initial decision of approval or

disapproval, and the possibility of administrative proceedings in

which NBHD can participate to prevent Westside from obtaining

approval.

40. While Westside is correct in its argument that "[f]or

the District to contend that this proceeding will necessarily …

result in the approval of a fourth SATC in TSA 18 is wholly

speculative" ( Westside's Proposed Final Order , p. 11 ), there is

still an injury to NBHD if the statements are determined to be in

violation of APA rulemaking requirements. If Westside succeeds

in this case, NBHD will lose the protection provided by the

letter. Seen within the context of the statements (al l with

which this proceeding is concerned), the disadvantage to NBHD of

the statement's violation of rulemaking requirements is just as

injurious to it as the injury the statements, intact, do to

Westside. Intact, the statements prevent Westside from clea ring

the first hurdle in the approval process: the filing of a valid

letter of intent. Conversely, if the statements are determined

to be in violation of rulemaking requirements, NBHD loses the

protection they provide for its ultimate goal: preserving th e

status quo for the number of trauma centers in Broward County.

41. Westside has demonstrated its intent to seek approval

of a fourth trauma center. With the impediment of the January 15

statements removed, Westside's entrance into the approval process

will demand that NBHD, if it intends to protect its interest,

participate in the process. Although whether Westside will meet

its aim of obtaining approval in the end is speculative at this

point, NBHD will be forced to expend real time, effort and

financ ial resources toward protecting its interests in fending

off Westside in its attempt to reach its intended goal. The

injury to NBHD under such a scenario is both real and immediate.

42. The injury to NBHD, opening the way toward a new,

fourth trauma cent er operated by a competitor, is also within the

zone of interests to be protected by the statements, that is,

regulation of trauma centers in Broward County.

43. NBHD has standing to participate in this proceeding as

an Intervenor.

The Merits of Westside' s Challenge

44. The Administrative Procedure Act mandates that "[e]ach

agency statement defined as a rule by s. 120.52 . . . be adopted

by the rulemaking procedure provided by this section as soon as

feasible and practicable." Section 120.54(1), Florid a Statutes.

45. Section 120.52(15), Florida Statutes, defines the term

"rule":

"Rule" means each agency statement of general

applicability that implements, interprets, or

prescribes law or policy or describes the

procedure or practice requirements of an

agency . . . . The term also includes the

amendment or repeal of a rule.

46. The effect of the January 15, 2002, letter, by removing

the amendment to the 2001 Plan created by the September 28, 2001,

letter, an amendment that required 4 trauma centers i n Broward

County, is to restore the 2001 Plan's "establishment of three

[trauma centers] . . . as the correct compliment for the County's

current need." See Finding of Fact 6, above. Westside contends

there is another effect of the letter: restoration o f the 2001

Plan's establishment of 3 trauma centers works an amendment to

Rule 64E - 2.022(3), Florida Administrative Code. The rule, in

pertinent part, states:

Apportionment of State - Approved Trauma

Centers (SATC) or State - Approved Pediatric

Trauma Referra l Centers (SAPTRC) Within a

Trauma Service Area (TSA).

(1) The number and composition of TSAs shall

be in accordance with section 395.402, FS.

(2) The number of SATCs or SAPTRCs in each

TSA shall be in accordance with the minimum

number set forth in th e table below which is

replicated from table 3.3 in "A Report and

Proposal for Funding State - Sponsored Trauma

Centers," February 1990, except as provided

in this section. Each trauma service area

shall have at least one Level I or Level II

SATC position.

(3) The number of SATC or SAPTRC positions

for each TSA is as follows:

TSA Counties SATC or SAPTRC

* * *

18 Broward 4

(Rule 64E - 2.022, Florida Administrative Code, emphasis supplied.)

The rule qui te clearly provides for four trauma centers in

Broward County. The January 15 letter of the Department, goes

Westside's argument, since it restores the 2001 Plan's provision

of trauma centers to three, constitutes a de facto amendment to

the rule's clear declaration of four as the number of trauma

centers.

47. Whatever the merit of Westside's argument on the

conflict, Westside's argument is misplaced in this proceeding in

several respects. First, it misinterprets the meaning of the

sentence in Section 1 20.52(15): "the term ["rule"] also includes

the amendment or repeal of a rule." The terms "amendment" and

"repeal" in this sentence do not refer to statements that are

effectively or de facto an "amendment" or "repeal"; the terms

refer to actual amendmen ts or repeals of rules undertaken through

the rule - making process of Section 120.54, Florida Statutes. The

statutes makes such references precisely to ensure that

rulemaking processes are followed when agencies undertake

amendments or repeals of rules. L ight is shed on this point by

Federation of Mobile Home Owners of Florida, Inc. v. Florida

Manufactured Housing Ass'n Inc. , 683 So. 2d 586, 590 - 91 (Fla. 1st

DCA 1996):

To constitute "rulemaking" a rule repeal is

required to satisfy independently the …

defi nition of a 'rule' in section 120.56(16):

"agency statement of general applicability

that implements, interprets, or prescribes

the organization, procedure, or practice

requirements of an agency . . . . A repeal

that does not have the effect of creating or

implementing a new rule or policy is not a

"rule" subject to challenge.

48. Second, the January 15, 2002, letter does not otherwise

meet the definition of the term "rule":

each agency statement of general

applicability that implements, interprets, or

prescribes law or policy or describes the

procedure or practice requirements of an

agency . . . .

Section 120.52(15), Florida Statutes.

49. The statements in the January 15 letter are not

statements of "general" applicability. They are statements that

r elate solely to the 2001 Plan and an earlier letter of the

Department that related solely to the 2001 Plan. The statements,

therefore, have specific applicability. They do not have

"general" applicability. As such, they do not meet the

definition of a r ule.

50. Westside strenuously maintains, nonetheless, that the

January 15 letter had the effect of amending Rule 6E - 2.022(3),

Florida Statutes, because its effect is in conflict with the

rule. The issue of conflict with existing law created by the

Janua ry 15 letter, however, is an issue outside the purview of

this proceeding. The conflict Westside sees the January 15

letter creates with a Department rule is an issue that relates to

action by the Department challengeable under Sections 120.69 and

120.57, Florida Statutes. As a statement of agency action, it is

not an issue of failure to follow rulemaking procedures

challengeable under Section 120.56(4), Florida Statutes.

51. Whether the effect was legal or not, it is apparent

that the Department sought by the January 15 letter to apply law

when it determined it had no authority to amend the 2001 Plan as

it had done in the September 28 letter. "An agency statement

explaining how an existing rule of general applicability will be

applied in a particular se t of facts is not itself a rule." The

Environmental Trust v. Department of Environmental Protection ,

714 So. 2d 493, 498 (1st DCA 1998). Similarly, the Department's

statement of withdrawal of the action encompassed in the

September 28, 2001, letter (whet her in compliance with its own

rules or not) is nothing more than further agency action.

52. In sum, agency action seen by Westside to conflict with

the agency's rules raises the issue of the legality of the

action. It does not convert the statement of t he action into a

rule.

ORDER

Based on the foregoing, it is hereby

ORDERED that Westside's petition seeking the determination

that the January 15, 2002, letter of the Department is a

statement that violates Section 120.54(1)(a), Florida Statutes,

is DENIED.

DONE AND ORDERED this 11th day of April, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

DAVID M. MALONEY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Bui lding

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

t his 11th day of April, 2002.

COPIES FURNISHED:

Harold F. X. Purnell, Esquire

Stephen A. Ecenia, Esquire

Rutledge, Ecenia, Purnell and Hoffman, P.A.

215 South Monroe Street, Suite 420

Post Office Box 551

Tallahassee, Florida 32302 - 0551

Barbara Auger, Esquire

The Auger Law Firm

Post Office Box 471

Tallahassee, Florida 32302

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way

Bin A02

Tallahassee, Florida 32399 - 1701

George N. Meros, Esquire

Michael E. Riley, Esquire

Gray, Harr is & Robinson, P.A.

301 South Bronough Street, Suite 600

Post Office Box 11189

Tallahassee, Florida 32302 - 3189

William R. Scherer, Esquire

Wendy Delvecchio, Esquire

Conrad & Scherer

Post Office Box 14723

Fort Lauderdale, Florida 33301

Dr. John O. Agwun obi, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 - 1701

R.S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Carroll Webb, Executive Director

and Gener al Counsel

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399 - 1300

Liz Cloud, Chief

Department of State

Bureau of Administrative Code

The Elliott Building

Tallahassee, Florida 32399 - 0250

NOTICE OF RIGHT TO JUDICI AL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to Section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by f iling the original

notice of appeal with the Clerk of the Division of Administrative

Hearings and a copy, accompanied by filing fees prescribed by

law, with the District Court of Appeal, First District, or with

the District Court of Appeal in the Appellate District where the

party resides. The notice of appeal must be filed within 30 days

of rendition of the order to be reviewed.