                                    IN THE DISTRICT COURT OF APPEAL
                                    FIRST DISTRICT, STATE OF FLORIDA

THE PUBLIC HEALTH TRUST             NOT FINAL UNTIL TIME EXPIRES TO
OF MIAMI-DADE COUNTY,               FILE MOTION FOR REHEARING AND
FLORIDA d/b/a JACKSON               DISPOSITION THEREOF IF FILED
SOUTH COMMUNITY
HOSPITAL,                           CASE NO. 1D16-3244

      Appellant,

v.

DEPARTMENT OF HEALTH,

     Appellee,

KENDALL HEALTHCARE
GROUP, LTD. d/b/a KENDALL
REGIONAL MEDICAL
CENTER,

     Appellee/Cross-Appellant,


_____________________________/

Opinion filed December 6, 2017.

An appeal from an Order of the Department of Health.

Thomas F. Panza, Paul C. Buckley, and Brian S. Vidas of Panza, Maurer & Maynard,
P.A., Fort Lauderdale, for Appellant.

Jay Patrick Reynolds, Chief Legal Counsel, and Sarah Young Hodges, Chief
Appellate Counsel, Tallahassee, for Appellee Department of Health.
Stephen A. Ecenia, J. Stephen Menton, and Gabriel F. V. Warren of Rutledge
Ecenia, P.A., Tallahassee, for Appellee/Cross-Appellant Kendall Healthcare Group,
Ltd. d/b/a Kendall Regional Medical Center.


PER CURIAM.

      The Public Health Trust of Miami-Dade County, Florida d/b/a Jackson South

Community Hospital (Jackson South) appeals an order of the Department of Health

(Department) dismissing as moot Jackson South’s petition for a formal

administrative hearing to contest the Department’s decision to deny Jackson South’s

application to operate a provisional Level II trauma center after Jackson South was

granted a provisional license in the following application cycle. Because we

conclude that an actual case or controversy continues to exist with respect to Jackson

South’s first application, we reverse and remand for the Department to consider

Jackson South’s administrative challenge on the merits.

                                          I.

      We begin with a brief overview of the statutory and regulatory framework

governing the trauma center application and selection process. The Florida

Legislature has delegated the primary responsibility for the planning and

establishment of a statewide inclusive trauma system to the Department. § 395.40(3),

Fla. Stat. (2015). As part of this legislative mandate, the Department is charged with

allocating, by rule, the number of trauma centers needed for each of the state’s 19

trauma service areas (TSA), subject to the limitations that each TSA should have at
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least one Level I or Level II trauma center and there may be no more than 44 trauma

centers statewide. § 395.402(4)(a)-(c), Fla. Stat. (2015). Relevant to this appeal, TSA

19, which comprises Miami-Dade and Monroe counties, is permitted a maximum of

three trauma centers. Fla. Admin. Code R. 64J-2.010(3).

                        A. Application and Selection Process

      The trauma center application and selection process is a lengthy, multistage

process that begins each year with the Department notifying acute care hospitals and

trauma agencies that it is accepting letters of intent from those hospitals interested

in becoming trauma centers. § 395.4025(2)(a), Fla. Stat. (2015). Letters of intent are

due by October 1, and the Department thereafter distributes an application package

to each hospital that timely submitted a letter of intent. § 395.4025(2)(a)-(b), Fla.

Stat. (2015). The completed application is due by April 1 of the following year. §

395.4025(2)(c), Fla. Stat. (2015).

      After the Department receives a trauma center application, it conducts a

provisional review “for the purpose of determining that the hospital's application is

complete and that the hospital has the critical elements required for a trauma center.”

Id. If the Department finds the hospital’s application acceptable based on the

provisional review, the hospital is “eligible to operate as a provisional trauma

center.” § 395.4025(3), Fla. Stat. (2015).




                                             3
      Between May 1 and October 1, the process entails an “in-depth evaluation”

by the Department of all applications found acceptable in the provisional review. §

395.4025(4), Fla. Stat. (2015). And between October 1 and June 1, a review team of

out-of-state experts assembled by the Department conducts onsite visits of all

provisionally approved trauma centers. § 395.4025(5), Fla. Stat. (2015). Based on

the recommendations from the review team, the Department selects verified trauma

centers by July 1 of the second year following the filing of the letter of intent. §

395.4025(6), Fla. Stat. (2015). If the number of qualified provisional trauma centers

exceeds the number of available slots for verified trauma centers in the applicable

TSA, the Department applies a tiebreaking process developed by rule to make the

final selection(s). Fla. Admin. Code R. 64J-2.016(11). Upon final verification, the

trauma center is granted approval to operate for seven years, provided it continues

to maintain trauma center standards and acceptable patient outcomes, and may

thereafter apply for renewal. § 395.4025(6), Fla. Stat. (2015).

                          B. Jackson South’s Applications

      On or about April 1, 2015, Jackson South applied to operate a Level II trauma

center in TSA 19 during the 2014-2016 application cycle (the “2015 Application”).

Aventura Hospital & Medical Center (Aventura) also applied to operate a Level II

trauma center in TSA 19 in the same application cycle. At that point in time, there

were already two verified trauma centers in TSA 19, Ryder Trauma Center at

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Jackson Memorial and Kendall Regional Medical Center (Kendall). As such, both

Jackson South and Aventura were competing for the sole remaining trauma center

slot in TSA 19.

      After the required provisional review of the applications, the Department

denied Jackson South’s application, concluding that it “did not meet the standards

of critical elements for provisional status.” Aventura’s application was accepted by

the Department, and it was provisionally approved to operate a Level II trauma

center in TSA 19.

      Jackson South challenged the Department’s decision denying its 2015

Application and a formal administrative hearing was conducted before the Division

of Administrative Hearings. On February 29, 2016, Administrative Law Judge John

G. Van Laningham entered an order rejecting the Department’s decision and

recommending that the Department enter a final order (1) deeming Jackson South’s

2015 Application acceptable, (2) verifying that Jackson South was in substantial

compliance with the requirements of section 395.4025, and (3) approving Jackson

South to operate as a provisional Level II trauma center until the 2014-2016

application cycle concluded for TSA 19. The Department and the Intervenor,

Kendall, filed exceptions to the recommended order.

      In the interim, Jackson South filed a Level II trauma center application in the

2015-2017 application cycle (the “2016 Application”). After conducting the required

                                         5
provisional review, the Department granted Jackson South provisional licensure and

Jackson South began operating as a provisionally approved Level II trauma center.

      Kendall then moved to dismiss Jackson South’s pending administrative

challenge, arguing that it is now moot since Jackson South obtained provisional

approval to operate a Level II trauma center based upon its 2016 Application. The

Department agreed. On July 7, 2016, the Department entered a final order dismissing

Appellant’s petition as moot, concluding that Jackson South “has been granted what

it seeks, a license to operate a provisional level II trauma center.” 1 This timely appeal

followed.

                                           II.

      Jackson South contends the Department committed reversible error in the

final order below by not entering a substantive determination on the merits of

Jackson South’s petition challenging the denial of its 2015 Application. We review

de novo the Department’s decision dismissing Jackson South’s administrative

challenge as moot. See Carlin v. State, 939 So. 2d 245, 247 (Fla. 1st DCA 2006).

“An issue is moot when the controversy has been so fully resolved that a judicial



1
  The Department also concluded that, although the tiebreaking procedure was not
“an issue or controversy in this matter,” the tiebreaking rule “does not indicate that
trauma centers can only engage in head-to-head competition if provisional status
was granted during the same application year.” This conclusion of law is the basis
of Kendall’s cross-appeal. Because we reverse the final order in full, we do not reach
the cross-appeal.
                                           6
determination can have no actual effect.” Godwin v. State, 593 So. 2d 211, 212 (Fla.

1992).

      We initially address Kendall’s argument that Jackson South abandoned its

2015 Application by filing the 2016 Application. Kendall contends the statutory and

regulatory framework governing the trauma center application process does not

allow a hospital to maintain overlapping trauma center applications before the

Department. However, nothing in the applicable statutes or rules prohibits a hospital

from participating in a subsequent application cycle while challenging the denial of

a previous application. The statutory scheme provides several points of entry for a

hospital to challenge an adverse decision made by the Department, including the

decision to deny an applicant a provisional license. § 395.4025(7), Fla. Stat. (“Any

hospital that wishes to protest a decision made by the department based on the

department's preliminary or in-depth review of applications or on the

recommendations of the site visit review team pursuant to this section shall proceed

as provided in chapter 120.”). Additionally, the Department’s decision to deny an

application for provisional status does not prevent that applicant from submitting

another application in a future application cycle. See Fla. Admin. Code R. 64J-

2.012(1)(g)2. (“The department shall inform each hospital whose provisional

application it has denied of the remaining deficiencies in the application and shall

inform the hospital that it may submit a letter of intent at the beginning of the next

                                          7
approval cycle.”). Had the Legislature or the Department intended to limit an

applicant’s right to pursue both of these avenues concurrently, the statute or rule

would explicitly prohibit such action.

      Turning to the Department’s mootness determination, the fact that Jackson

South was granted a provisional license to operate a Level II trauma center in TSA

19 based on its 2016 Application does not resolve the controversy that exists by

virtue of the Department’s denial of the 2015 Application. An actual controversy

exists in the 2014-2016 application cycle because, with the denial of Jackson South’s

application, Jackson South will not be allowed to compete with Aventura for the

final available trauma center slot in TSA 19. Had the Department agreed with Judge

Van Laningham’s recommendation to reverse the denial of Jackson South’s

application, Jackson South would have been given the opportunity to proceed

through the rest of the application process, potentially triggering the tiebreaking

mechanism if both hospitals were successful in completing the in-depth review and

site survey stages. At that point, either Aventura or Jackson South–but clearly not

both–would receive final verification to operate as a Level II trauma center for the

seven-year approval period.

      Due to the limitation on the number of trauma centers that can operate in TSA

19, Jackson South’s current status as a provisional trauma center does not extinguish

its rights under the 2015 Application. If Aventura is awarded the final remaining

                                         8
trauma center slot in TSA 19, Jackson South’s 2016 Application may ultimately be

denied due to a lack of authorized need. Even if a hospital successfully completes

the rigorous application process to become a verified trauma center, there still must

be a need for a trauma center in the relevant TSA. 2 See § 395.4025(5), Fla. Stat.

(providing that “hospitals being considered as provisional trauma centers shall meet

all the requirements of a trauma center and shall be located in a trauma service area

that has a need for such a trauma center”) (emphasis added). Because Jackson

South’s 2016 Application was filed in a later application cycle than Aventura’s, it is

subject to the challenge that it was filed too late to compete with Aventura for the

final slot in TSA 19. Indeed, neither the Department nor Kendall is willing to

concede that Jackson South would be allowed to compete against Aventura for the

final slot in TSA 19 under the 2016 Application. Thus, Jackson South’s

administrative challenge contesting the denial of its 2015 Application is not moot.

Cf. Charter Medical-Southeast, Inc. v. State, Dep’t of Health & Rehabilitative

Servs., 495 So. 2d 759 (Fla. 1st DCA 1986) (concluding that settlement agreement


2
  Kendall notes that the Department has proposed rules that would allow there to be
more trauma centers in a given TSA than the Department’s TSA allocation, provided
the statutory cap of 44 trauma centers statewide has not been met. Under the new
rules, Kendall contends that the number of trauma centers allocated to TSA 19 will
no longer present an impediment to Jackson South receiving final approval of its
2016 Application, assuming Jackson South meets all of the substantive application
requirements. We decline to address the extent to which the Department’s proposed
rules, which Kendall acknowledges have been administratively challenged, would
impact the analysis of the issues in this case.
                                           9
granting hospital a certificate of need to construct a psychiatric facility did not moot

hospital’s appeal of the agency’s order denying the certificate of need because the

settlement agreement was subject to challenges to which the application was not).

      Accordingly, we reverse the Department’s order and remand for further

proceedings consistent with this opinion.

      REVERSED and REMANDED.

WETHERELL, RAY, and MAKAR, JJ., CONCUR.




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