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.

STANDARD OF REVIEW FOR RULING ON

EXCEPTIONS TO A RECOMMENDED ORDER

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

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

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

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

oes not include appropriate and specific citations to the record.

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

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

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

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

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

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

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

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

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

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

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

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

RULING ON EXCEPTIONS

ont's Exce tion #1.

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

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

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

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

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

The petition describes significant harm that would befall Bayfront

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

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

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

another trauma center and that Northside cannot satisfy the requirements

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

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

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

of intent or reviewing its application.

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

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

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

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

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

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

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

etition taken as true, Bayfront does not have standing.

Bayfront's exception #1 is denied.

ont's Exce tion #2.

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

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

n only come from Northside operating as a trauma center.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3 5.4025(7), Florida Statutes, states: "Any hospital that wishes to protest a decision

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

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

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

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

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

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

B yfront's motion to intervene has been granted.

Bayfront's exception #2 is denied.

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

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

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

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

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

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

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

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

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

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

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

Bayfront' s exception # 3 is denied.

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

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

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

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

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

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

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

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

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

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

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

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

epartment action that impacted Bayfront's substantial interests.

Bayfront's exception #4 is denied.

ORDER

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

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

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

dismissed.

a.A

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

Celes . Philip, MD, MPH

State Surgeon General & Secretary

eoffrey D. Smith, Esquire

orinne T. Porcher, Esquire

usan Crystal Smith, Esquire

imothy Bruce Elliott, Esquire

mith & Associates

301 Thomasville Rd., Suite 201

allahassee, Florida 32308

eoff smithlawtlh.com

s san smithlawtlh.com

c rinne smithlawtlh.com

t m smithlawtlh.com

S annan Revels, Agency Clerk

epartment of Health

4 52 Bald Cypress Way, Bin A-02

llahassee, Florida 32399-1703

J hn D. C. Newton, II

dministrative Law Judge

ivision of Administrative Hearings

T e DeSoto Building

1 30 Apalachee Parkway

T llahassee, Florida 32399-3060

CERTIFICATE OF SERVICE

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

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

hove-named persons of sA- 2017.

Agency Clerk

Department of Health

4052 Bald Cypress Way, BIN A-02

Tallahassee, Florida 32399-1703

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY ADVERSELY AFFECTED BY THIS ORDER IS ENTITLED TO

UDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES.

EW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF

PELLATE PROCEDURE. A REVIEW PROCEEDING IS INITIATED BY

ILING A NOTICE OF APPEAL WITH THE CLERK OF THE DEPARTMENT

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

ISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE

RESIDES OR IN THE FIRST DISTRICT COURT OF APPEAL. THE

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

ATE OF THIS ORDER.