final until disposition of timely filed motion for rehearing.
Appeal from State of Florida, Division of Administrative
Hearings.Lower Tribunal No. 15-6009RP
Law Firm, P.A., and Karen A. Putnal, Jon C. Moyle, and Robert
A. Weiss, (Tallahassee), for appellant.
Patrick Reynolds, Chief Litigation Counsel (Prosecution
Services Unit), and Nichole C. Geary, General Counsel
(Tallahassee), for appellee.
LAGOA, EMAS, and LOGUE, JJ.
Appellant, K.M., seeks reversal of a final administrative
order dismissing K.M.'s petition for a formal
administrative hearing. Because K.M. would not be
"substantially affected" by the Department of
Health's repeal of Rule 64C-4.003 of the Florida
Administrative Code, we find that the administrative law
judge did not err in determining that the Division of
Administrative Hearings lacked jurisdiction to rule on the
merits of K.M's petition. K.M. does not have standing
under section 120.56(1)(a), Florida Statutes (2015), to
assert her challenge to the Department of Health's
proposed repeal. Accordingly, we affirm the order dismissing
the petition for lack of jurisdiction. This opinion does not
address the merits of K.M.'s case.
FACTUAL AND PROCEDURAL HISTORY
29, 2015, the Department of Health ("DOH"), filed a
Notice of Proposed Rule for the purpose of repealing Rule
64C-4.003 of the Florida Administrative Code (the
"Rule"). The DOH summarized the Rule as one that
required pediatric cardiac facilities approved by
Children's Medical Services ("CMS") to comply
with the CMS Pediatric Cardiac Facilities Standards mandated
by the Rule and to submit a number of forms that were adopted
by the Rule. The Rule, titled "Diagnostic and Treatment
Facilities or Services -- Specific, " provides:
(1) CMS Pediatric Cardiac Facilities. CMS Headquarters
approves pediatric cardiac facilities for the CMS Network on
a statewide basis upon consideration of the recommendation of
the Cardiac Subcommittee of the CMS Network Advisory Council.
CMS approved pediatric cardiac facilities must comply
with the CMS Pediatric Cardiac Facilities Standards, October
2012 . . . . CMS approved pediatric cardiac
facilities must collect and submit quality assurance data
annually [using the prescribed forms] . . . .
(2) CMS Cardiac Regional and Satellite Clinics. CMS
Headquarters approves regional and satellite cardiac clinics
for the CMS Network on a statewide basis upon consideration
of the recommendation of the Cardiac Subcommittee of the CMS
Network Advisory Council. CMS regional and satellite
clinics must comply with the CMS Cardiac Regional and
Satellite Clinic Standards, October 2012. . . .
(3) The standards and forms are incorporated herein by
reference and are available from CMS Headquarters, 4052 Bald
Cypress Way, Bin A06, Tallahassee, FL 32399-1707.
Fla. Admin. Code R. 64C-4.003 (2015) (emphasis added). The
DOH sought to repeal the Rule because, according to the DOH,
the Rule's regulation of pediatric care facilities
exceeded the DOH's statutory authority.
CMS program provides financial assistance for medically
necessary services-similar to the benefits available under
Medicaid-to children with special health care needs who meet
the program's eligibility requirements. The DOH
reimburses health care providers for services rendered
through the CMS network, a statewide managed system of care
in which providers may participate under contract with the
program. In order to receive reimbursement under the CMS
program, providers and facilities must be credentialed by the
CMS beneficiary, suffers from a serious heart condition
requiring pediatric cardiac services. K.M. has received such
services from participating CMS providers, including
CMS-approved pediatric cardiac facilities that currently must
comply with the Rule. K.M. will likely require future
pediatric cardiac care from CMS-approved providers, including
facilities currently regulated by the Rule.
October 22, 2015, K.M. filed a Petition for Determination of
Invalidity of Proposed Rule (the
"Petition") with the Division of Administrative
Hearings pursuant to section 120.56(2), Florida Statutes
(2015). K.M. alleged that the DOH's proposed repeal of
the Rule was an invalid exercise of delegated legislative
authority under Florida's Administrative Procedure Act
and would reduce the quality of care available within the CMS
final hearing was held on November 20, 2015. K.M. called two
pediatric cardiologists-Louis B. St. Petery, Jr. ("Dr.
St. Petery") and Ira H. Gessner ("Dr.
Gessner")-to testify. Dr. St. Petery testified regarding
K.M.'s medical condition, diagnosis, prognosis, and
treatment, including K.M.'s need for additional cardiac
surgery and diagnostic services. Although not offered by K.M.
to support K.M.'s standing argument, Dr. St. Petery
concluded his testimony with his opinion that the quality of
care provided at CMS clinics was related to the Rule's
volume requirements for procedures performed in regional and
Gessner, who currently serves on the CMS Cardiac Technical
Advisory Panel and was a statewide consultant to the CMS
program for pediatric cardiology services for over
thirty-eight years, was identified by K.M. as the witness who
would testify, for standing purposes, regarding the injury
K.M. would suffer from repeal of the Rule. Dr. Gessner
testified that the Rule's reporting requirement was
"meaningful" with respect to assuring quality in
programs certified by the CMS pediatric cardiac services
program. Dr. Gessner also testified that if the Rule were
repealed, there was a "risk of changes in programs
developing and continuing in a way that is not consistent
with the current standards [and] would allow circumstances to
exist within a given program that raise the potential for
deterioration of aspects of a program . . . as to make it
risky for patients to be cared for within that program."
Dr. Gessner further testified: "Now, this is-of course
we don't expect people to behave badly simply because
there are no standards. But we know that it is possible for a
program to have individuals leave, be recruited to other
institutions, or otherwise be without a particular
the testimony, the administrative law judge (the
"ALJ") found that K.M. failed to prove the proposed
deregulation of CMS-approved pediatric cardiac facilities
would, in fact, have a real or immediate effect on the
quality of care available through the CMS network. As such,
the ALJ concluded that K.M. lacked standing to challenge the
Rule's repeal and dismissed K.M.'s Petition for lack
of jurisdiction. This appeal followed.
STANDARD OF REVIEW
appeal from a final administrative order, we review the
ALJ's findings of fact to determine whether they are
supported by competent, substantial evidence. Peace
River/Manasota Reg'l Water Supply Auth. v. IMC Phosphates
Co., 18 So.3d 1079, 1082 (Fla. 2d DCA 2009) (citing
§ 120.68(7)(b), Fla. Stat. (2004)). "If an
administrative law judge's final order depends on any
fact found by the administrative law judge, the court shall
not substitute its judgment for that of the administrative
law judge as to the weight of the evidence on any disputed
finding of fact." § 120.68(10), Fla. Stat. (2015).
However, "findings that are interpretations of relevant
law are subject to a de novo review." Jacoby v. Fla.
Bd. of Med., 917 So.2d 358, 359 (Fla. 1st DCA 2005)
(citing Fla. Bd. of Med. v. Fla. Acad. of Cosmetic
Surgery, Inc., 808 So.2d 243 (Fla. 1st ...