Appeals court sides with Health Department in trauma center litigation made moot by new state law

By Karen Kidd | Nov 18, 2018

Apparently outgoing Florida State Sen. Dana Young (R-Tampa)  

TALLAHASSEE — Despite passage of a law earlier this year that made the case irrelevant, a Florida appeals court last week sided with the state's health department in long-time litigation over its proposed rules over the number and "need" trauma centers in the state.

A First District Court of Appeal's three-judge panel reversed an administrative law judge's decision last year to toss the proposed rules in an 11-page decision issued on Nov. 13.

The two consolidated cases stem from public debate over a state law established in 1985 that caps the number of trauma centers in the state to 19 in so-called "trauma service areas" or TSA. In 2014, the state Department of Health developed rules for a scoring system for the number of trauma centers in each TSA.

"After implementation of this criteria, the department found that with each new trauma center, the associated TSA's assessed need would be reduced for the following year," the appeals court said in the background portion of its decision. "Concerned that this could potentially lead to TSAs with a maximum 'need' of zero, the department sought to initiate rulemaking to revise the rules to provide that the scores should be considered a minimum rather than a maximum."


That effort culminated in a September 2016 department proposal for a series amended rules that ultimately resulted in the approval of a minimum of 25 trauma centers with a "tie-breaker" should the number of trauma center applicants exceed the statutory cap.

Appellants in the two consolidated cases challenged the new rules, arguing among other things that the proposals exceeded the health department's rulemaking authority.

An administrative law judge later ruled that while the health department had not exceeded its rulemaking authority, the proposed rules had "contravened the laws being implemented and vested unbridled discretion in the department," the appeals court's decision said.

Appellants asked the appeals court for a review. "This case ultimately revolves around the department's interpretation of the word 'need,' a term undefined by the applicable statutes," the appeals court's decision said.

The legal drama over the state's trauma system has been independent of what state lawmakers are trying to do about it. Last summer, now apparently outgoing state Senate Health Policy Chairwoman Dana Young (R-Tampa) spent "hours and hours" in meetings with hospital representatives to find way to deal with the state's trauma services debate, according to a News Service of Florida story.

The idea behind the meetings was to find a way to end years of litigation.

"I asked them, how much do they really want to get this done?" Young was quoted as saying in the story.

Those efforts culminated in the Florida Legislature's passage this March of the House 1165 Trauma Services Bill designed to revise rules and regulations around trauma centers in the state.

Gov. Rick Scott signed the bill later in March, and the following month he announced the appointment of 11 members to the Florida Trauma System Advisory Council. That body is expected to meet later this month to hear testimony about its Pediatric Trauma Center Verification Study during a meeting in Hollywood.

Meanwhile, the Florida First District Court of Appeal's three-judge panel admitted in its decision that the new state law made the litigation before it moot but nevertheless ruled on the issue, in part to determine appellants' ability to repayment of attorney fees.

"This possible right to attorney's fees is sufficient for this court to decide this case in spite of it mootness," the decision said.

Appeals court judges Scott Makar, Thomas D. Winokur and M. Kemmerly Thomas all concurred in the opinion.

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