STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COLUMBIA HOSPITAL CORPORATION ) OF SOUTH BROWARD, d/b/a )

WESTSIDE REGIONAL MEDICAL )

CENTER, )

)

Petitioner, )

)

vs. )

)

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. )

Case No. 02-0400RU

)

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 parties 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 600 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

On 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 petition 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 Petitioner's attorney's fees pursuant to Section 120.595(4), Florida Statutes.

In support of the requested relief, the petition alleges:

1. 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 local plan to its previous status of reflecting the need for only three trauma centers within TSA 18. (citation omitted).

   
   

2. The Department's action in withdrawing its earlier agency action amending the Broward County Trauma Agency plan constitutes a rule 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 Department, to determine by its [local plan] the number of trauma centers needed for each TSA.

   
   

3. 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 Notice of Hearing and an Order of Pre-Hearing Instructions were issued on February 7, 2002. The notice set the final hearing for March 5, 2002. On February 15, 2002, a Petition to Intervene filed by North Broward Hospital District ("NBHD") and South Broward Hospital District ("SBHD") was granted subject 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 Westside, 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 fashion. 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: Charles 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 established 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 Westside'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 Request for Official Recognition. 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 been 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 Officer 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 requested.

Proposed final orders were filed timely pursuant to the order of extension. This final order follows.

FINDINGS OF FACT

1. Westside (Petitioner) is an acute care general hospital licensed by the State of Florida, Agency for Health Care Administration, 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 Section 20.43, Florida Statutes, is the state agency charged with primary responsibility for the planning and establishment of a statewide inclusive trauma system. See Section 395.40(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 trauma 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 is 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 plans 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 2001. (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 stated:

   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 facilities 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 Examiner'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:

   
   

   (Id.)

   The process is fairly lengthy. 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 for 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.

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 Committee 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 would 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 2001 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 Plan 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 elements 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 County 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 letter.

    
    

    (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, the 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 the 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 provides 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 centers 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 Department's letter announcing 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, 2001, 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 referral 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 centers. 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 the 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 Statutes, 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 statutory 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 already 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 letter 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 November 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 authority 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 letter 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 official 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 final 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 promulgated 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 the 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 agency, 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 the 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 open 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 patients 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. Lottenberg'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 challenger 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 and 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. Injury 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 Trustees 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-approved 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 the 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 have 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 not 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 (two 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 required 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 striking 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 have 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 first 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 centers.

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 aims 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 (all 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 clearing 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 the 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 financial 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 center 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), Florida 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 in 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 of 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 Referral 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 the 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 quite 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 120.52(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 amendments 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. Light 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 … definition 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 relate 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 rule.

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 January 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 set 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 (whether 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 the 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 Building

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 this 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, Harris & 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. Agwunobi, 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 General 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 JUDICIAL 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 filing 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.

Docket for Case No: 02-000400RU

Orders for Case No: 02-000400RU