K.M. v. Dept. of Health , 237 So. 3d 1084 ( 2017 )


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  •        Third District Court of Appeal
    State of Florida
    Opinion filed December 27, 2017.
    Not final until disposition of timely filed motion for rehearing.
    ________________
    No. 3D16-23
    Lower Tribunal No. 15-6009RP
    ________________
    K.M.,
    Appellant,
    vs.
    Florida Department of Health,
    Appellee.
    An Appeal from State of Florida, Division of Administrative Hearings.
    Moyle Law Firm, P.A., and Karen A. Putnal, Jon C. Moyle, and Robert A.
    Weiss, (Tallahassee), for appellant.
    Jay Patrick Reynolds, Chief Litigation Counsel (Prosecution Services Unit),
    and Nichole C. Geary, General Counsel (Tallahassee), for appellee.
    Before LAGOA, EMAS, and LOGUE, JJ.
    LAGOA, J.
    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.
    I.    FACTUAL AND PROCEDURAL HISTORY
    On July 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
    2
    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.
    Florida’s 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 DOH.
    K.M., a 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
    3
    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.
    On October 22, 2015, K.M. filed a Petition for Determination of Invalidity
    of Proposed Rule (the “Petition”)1 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 program.
    The 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 satellite
    clinics.
    1The Petition was filed by petitioners W.D., C.V., K.E., and K.M., all of whom are
    CMS beneficiaries requiring pediatric cardiac services from CMS-approved
    providers. Only K.M., however, seeks review of the final administrative order
    dismissing the Petition for lack of jurisdiction.
    4
    Dr. 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 component.”
    Following 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.
    5
    lacked standing to challenge the Rule’s repeal and dismissed K.M.’s Petition for
    lack of jurisdiction. This appeal followed.
    II.    STANDARD OF REVIEW
    In an 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 DCA 2002)); accord
    Office of Ins. Regulation & Fin. Servs. Comm’n v. Secure Enters., LLC, 
    124 So. 3d
    332, 336 (Fla. 1st DCA 2013) (“Standing is a question of law subject to de novo
    review.”).
    III.   ANALYSIS
    Under the Administrative Procedure Act, “[a]ny person substantially
    affected by a rule or a proposed rule may seek an administrative determination of
    6
    the invalidity of the rule on the ground that the rule is an invalid exercise of
    delegated legislative authority.” § 120.56(1)(a), Fla. Stat. (2015). As such, in
    order to have standing to challenge the validity of a rule or proposed rule, the party
    must be “substantially affected” by the rule. See, e.g., NAACP, Inc. v. Fla. Bd. of
    Regents, 
    863 So. 2d 294
    , 296 (Fla. 2003); Sarnoff v. Fla. Dep’t of Highway Safety
    & Motor Vehicles, 
    825 So. 2d 351
    , 356 (Fla. 2002).
    In Jacoby, the First District Court of Appeal held that a person is
    “substantially affected” by a rule if the petitioner has established: “(1) that the rule
    or policy will result in a real and immediate injury in fact, and (2) that the alleged
    interest is within the zone of interest to be protected or 
    regulated.” 917 So. 2d at 360
    ; accord Lanoue v. Fla. Dep’t of Law Enforcement, 
    751 So. 2d 94
    , 96 (Fla. 1st
    DCA 1999); Ward v. Bd. of Tr. of the Internal Improvement Tr. Fund, 
    651 So. 2d 1236
    , 1237 (Fla. 4th DCA 1995). “Thus standing depends on the nature of the
    injury asserted and the purpose and scope of the administrative proceeding.”
    Peace 
    River, 18 So. 3d at 1083
    .         Petitioner bears the burden of establishing
    standing. 
    Id. at 1084.
    We find that K.M. does not meet the real and immediate injury prong of the
    “substantially affected” test. Although the Florida Supreme Court has noted that a
    petitioner need not demonstrate that it already has suffered actual harm in order to
    have standing in an administrative rule challenge proceeding, see NAACP, 
    863 So. 7
    2d at 300, the prospective injury asserted must not be the product of pure
    speculation and conjecture, see 
    Ward, 651 So. 2d at 1237
    ; see, e.g., Prof’l
    Firefighters of Fla., Inc. v. Dep’t of Health & Rehab. Servs., State of Fla., 
    396 So. 2d
    1194, 1196 (Fla. 1st DCA 1981). K.M. primarily relies on NAACP and Peace
    River to establish standing to challenge the DOH’s proposed rule repeal. Both
    cases, however, are distinguishable.
    In NAACP, a civil rights organization challenged proposed rule
    amendments eliminating “certain affirmative action policies by Florida’s state
    
    universities.” 863 So. 2d at 295
    . Prior to the proposed rule amendments, all
    African-American applicants to state universities received a benefit in the
    admissions process not available to non-minority students; under the proposed
    amendments, African-Americans would be subject to the same admission
    standards as non-minorities. 
    Id. at 299.
    The Court noted, for standing purposes,
    the “‘obvious impact’” of removing the advantage previously given to minority
    students and making “‘African-American students subject to the identical
    admissions standards as non-minority students.’” 
    Id. (quoting NAACP,
    Inc. v. Fla.
    Bd. of Regents, 
    822 So. 2d 1
    , 12 (Fla. 1st DCA 2002) (Browning, J., dissenting)).
    The Florida Supreme Court, therefore, held that the NAACP had shown a
    substantial effect on its members who were students sufficient to establish standing
    to challenge the proposed rule amendments. 
    Id. The Court
    noted that a NAACP
    8
    member did not need to show actual rejection of admission to a state university
    under the proposed new admission criteria before standing would be granted. 
    Id. at 300.
    In Peace River, a regional water supply authority, the Peace River/Manasota
    Regional Water Supply Authority (the “Authority”), tasked with supplying potable
    water to customers within its boundaries, had an existing legal right under a water
    use permit to withdraw water from the Peace River, and thereby an interest in both
    the quantity and quality of the water flowing into the 
    river. 18 So. 3d at 1083-84
    .
    In fact, the Peace River was the Authority’s sole source of water. 
    Id. at 1083.
    The
    Authority challenged the issuance of a permit to a phosphate mining company to
    mine alongside Horse Creek, a tributary of the Peace River. 
    Id. at 1085-86.
    The
    Authority asserted that the mining activity could negatively affect the flow of
    Horse Creek into Peace River, thereby reducing the Authority’s ability to withdraw
    water under its own water use permit. 
    Id. at 1085.
    The ALJ dismissed the
    Authority’s challenge for lack of standing, and the Second District Court of Appeal
    reversed. 
    Id. at 1080-81.
    In finding standing, the Second District concluded that
    the Authority established with competent substantial evidence that it had a legal
    right to withdraw water from the Peace River and that right could reasonably be
    affected by the proposed mining activity’s effect on the quantity and quality of the
    water flowing into Horse Creek and Peace River. 
    Id. at 1084-85.
    The court noted
    9
    that the Authority’s ultimate failure to prove the harm would actually occur was a
    separate question from the threshold question of whether it could allege specific
    injuries to its rights. 
    Id. at 1083.
    The court concluded that the Authority had
    established specific injury sufficient to establish standing. 
    Id. at 1085.
    In both NAACP and Peace River, the respective courts concluded that the
    petitioners alleged a specific injury to themselves that could reasonably result from
    the proposed administrative action, i.e., the elimination of affirmative action
    policies at state universities and the reduction of water flow and quality in the sole
    source of potable water.      While not requiring a strict “but-for” relationship
    between the proposed administrative action and the alleged injury, the nexus
    between the two was readily apparent and did not depend upon conjecture or
    speculation.
    In contrast, the record in this matter failed to establish the type of specific
    injury to K.M. sufficient to establish standing. Specifically, K.M. claims standing
    because repeal of the Rule will allegedly take away the benefit of quality pediatric
    cardiac care. Unlike NAACP, the repeal of the Rule, on its face, does not take
    away the benefit of quality cardiac care. Nor is it readily apparent that, in the
    absence of the Rule, CMS-approved facilities and clinics will stop providing
    quality pediatric cardiac services.
    10
    K.M., therefore, must rely on Dr. Gessner’s testimony to establish that the
    provision of quality care could reasonably be affected by repeal of the Rule.2 Dr.
    Gessner’s testimony, however, is too speculative on this issue to satisfy the
    specific injury requirement necessary to establish standing. Although Dr. Gessner
    testified that there was a risk the Rule repeal might lead to changes in pediatric
    cardiac programs that could potentially deteriorate certain aspects of a program, he
    immediately qualified that testimony with the statement that he did not expect
    physicians or facilities to lower their standards simply because of the Rule repeal.
    That contingent, qualified testimony about possible risks is a far cry from the
    connection between the administrative action and alleged injuries discussed in
    NAACP and Peace River.3
    2 While Dr. St. Petery opined that there was a relationship between the Rule’s
    requirements and the quality of care provided, he did not testify that repeal would
    result in a diminution of quality, nor did he offer any data—or even anecdotal
    evidence—suggesting that K.M. might be at risk of receiving substandard care in
    the future if the Rule were repealed.
    3 Evaluation of this type of testimony often ultimately depends on a determination
    of a particular witness’s credibility. Appellate courts are not permitted to
    substitute their judgment regarding witness credibility and the weight to be given
    to such evidence for that of the fact finder. See Peace 
    River, 18 So. 3d at 1082
    (“This 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.’” (quoting §
    120.68(10))); Maynard v. Fla. Unemployment Appeals Comm’n, 
    609 So. 2d 143
    ,
    145 (Fla. 4th DCA 1992) (“[T]he credibility of witnesses and testimony is a matter
    which falls solely within the purview of the . . . finder of fact.”).
    11
    In sum, Dr. Gessner’s testimony stated possibilities resting on speculation
    and conjecture insufficient to satisfy the substantially affected test. See Secure
    Enters., 
    124 So. 3d
    at 339 (concluding that the appellee failed to show “real or
    immediate” injury in fact where ALJ found rules and forms at issue would “likely
    cause” appellee economic injury). Because the record does not contain evidence
    sufficient to establish that the quality of future care K.M. might receive will be
    reasonably diminished by the Rule’s repeal, we find that K.M. has not established
    injury sufficient to give her standing to challenge DOH’s proposed repeal of the
    Rule.4
    IV.      CONCLUSION
    For the reasons stated, we find that K.M. fails to meet the “substantially
    affected” test and does not have standing to challenge DOH’s repeal of the Rule.
    Accordingly, we affirm the Division of Administrative Hearing’s final order
    dismissing K.M.’s Petition.
    Affirmed.
    LOGUE, J., concurs.
    4 As a result, we do not need to consider whether K.M. falls “within the zone of
    interest to be protected or regulated.” See 
    Lanoue, 751 So. 2d at 96-97
    (stating
    that the “substantially affected” test is a two-prong test).
    12
    K.M. v. Department of Health
    3D16-23
    EMAS, J., dissenting.
    I respectfully dissent. Applying our de novo standard of review, Office of
    Insurance Regulation and Financial Services Commission v. Secure Enterprises,
    LLC, 
    124 So. 3d
    332 (Fla. 1st DCA 2013), I conclude that K.M. has standing and
    that the order of dismissal should be reversed.
    The ALJ’s final order determined K.M. (and the other petitioners) had no
    standing, and therefore, that the ALJ was without jurisdiction to adjudicate the
    merits of the petition. Here is the relevant portion of that Final Order:
    To have standing, therefore, Petitioners needed to prove that repeal of
    the Standards would be the proximate cause of a real or immediate
    diminution in the quality of cardiac care provided to CMS recipients.
    They did not succeed in carrying this burden . . . .
    The notion . . . that every facility in the CMS network would suddenly
    stop providing quality pediatric cardiac services immediately upon the
    repeal of the Standards rests on pure speculation—and is a little
    insulting to the health care professionals who personally deliver those
    services.
    Such an imagined across-the-board loss of quality care is not
    reasonably foreseeable and cannot qualify as a real or immediate
    injury in fact for purposes of standing.
    (Emphasis added.)
    The ALJ concluded that K.M. “failed to prove . . . that the proposed
    deregulation of CMS approved pediatric cardiac facilities would, in fact, have a
    13
    real or immediate effect on the quality of care available through the CMS
    network.” (Emphasis added.)
    K.M. asserted below, and here on appeal, that she does have standing
    because she established: (1) she is a CMS program beneficiary; (2) she will require
    future pediatric cardiac medical care through CMS providers; (3) the Rule is
    necessary to (a) maintain and promote quality of care and (b) minimize the risk
    associated with the provision of pediatric cardiac medical care; and that (4) if the
    Rule is repealed, there is a reasonable likelihood of a material increase in the risk
    of morbidity and mortality for CMS beneficiaries receiving pediatric cardiac care
    through the program.
    The majority bases its affirmance, in large part, upon what it characterizes as
    K.M.’s failure to present “evidence sufficient to establish that the quality of future
    care K.M. might receive will be reasonably diminished by the Rule’s repeal.”
    Maj. Op. at *12.
    I respectfully dissent, because I believe the record below, and the unrebutted
    expert testimony, demonstrates the contrary. The CMS pediatric cardiac facilities
    standards provide, in part:
    The Children’s Medical Services pediatric cardiac facility approval
    process is a quality assurance process that ensures participating CMS
    Network cardiac facilities meet established minimum standards
    deemed necessary for provision of quality cardiac services to children
    with special healthcare needs.
    14
    (Emphasis added.)
    The unrebutted testimony of K.M.’s two expert witnesses5 established that it
    was reasonably foreseeable that the elimination of the quality assurance process
    will a) hinder the ability of pediatric cardiac services providers to maintain the
    highest level of quality of care; and b) result in a material increase in the risk of
    morbidity and mortality associated with the provision of pediatric cardiac services.
    The experts based these opinions upon their experience with the CMS program,
    their participation in the development of the Rule and establishment of the
    standards, and the data collected during site visits and site reviews of CMS
    facilities. The collected data is entered into a Society of Thoracic Surgeons
    database, and the data is reviewed and evaluated to ensure that the existing
    program and participating providers within the State of Florida are functioning
    within the range of accepted morbidity and mortality rates established by national
    standards.
    The general concept of standing requires K.M. “to demonstrate that [she]
    reasonably expects to be affected by the outcome of the proceedings, either directly
    or indirectly.”     Peace River/Manasota Reg’l Water Supply Auth. v. IMC
    5 Dr. Louis B. St. Petery has served as an approved CMS provider since 1974. Dr.
    Ira Gessner is a former member of the CMS Network Advisory Council who
    participated in the development of the Rule, served as a CMS statewide consultant
    for over 38 years and currently serves as a member of the CMS Cardiac Technical
    Advisory Panel.
    15
    Phosphates Co., 
    18 So. 3d 1079
    , 1083 (Fla. 2d DCA 2009) (quoting Hayes v.
    G’ship of Thompson, 
    952 So. 2d 498
    , 505 (Fla. 2007)).
    The Florida Supreme Court has held that the “substantially affected” test is
    “so similar to the [“adversely affected”] standing requirement of the Federal
    Administrative Procedure Act, 5 U.S.C. § 702. . . that we are justified in looking to
    federal case law for guidance. . . .” Florida Home Builders Ass’n v. Dep’t of Labor
    and Emp’t Sec., 
    412 So. 2d 351
    , 353 n.5 (Fla. 1982). The United States Supreme
    Court’s decision in Sierra Club v. Morton, 
    405 U.S. 727
    , 740 (1972), is therefore
    instructive on the standing issue before us:
    The requirement that a party seeking review must allege facts showing
    that he is himself adversely affected does not insulate executive action
    from judicial review, nor does it prevent any public interests from
    { "pageset": "Sd4c
    being protected               through the judicial process. It does
    serve as at least a rough attempt to put the decision as to whether
    review will be sought in the hands of those who have a direct stake in
    the outcome.
    (Emphasis added.) See also Florida Rock Props. v. Keyser, 
    709 So. 2d 175
    , 177
    (Fla. 5th DCA 1998) (applying Sierra 
    Club, 405 U.S. at 740
    ).
    Importantly, the concept of standing for purposes of challenging proposed
    agency rule is broader than the traditional notion of standing to maintain a cause of
    action. Indeed, “section 120.54(4) ‘was intended to create an opportunity for a
    citizen initiated check on rule making that exceeded delegated statutory authority. .
    . .’” Dept. of Prof’l Reg., Bd. of Dentistry v. Fla. Dental Hygienist Ass’n, Inc., 612
    
    16 So. 2d 646
    , 652 (Fla. 1st DCA 1993) (quoting Patricia A. Dore, Access to Fla.
    Admin. Proceedings, 13 Fla. St. U.L.Rev. 965, 1014 (1986)). As our sister court
    acknowledged, “the legislature did not intend that the access requirements
    necessary to challenge a proposed rule be synonymous with the standing
    requirements for bringing an action at law.”6     Fla. Dental Hygienist Ass’n 
    Inc., 612 So. 2d at 652
    . See also Rosenzweig v. Dep’t of Transp., 
    979 So. 2d 1050
    (Fla.
    1st DCA 2008).
    In order to meet the “substantial interests” or “substantially affected” test,
    K.M. need not have already suffered an injury.        NAACP Inc. v. Fla. Bd. of
    Regents, 
    863 So. 2d 294
    , 300 (Fla. 2003). K.M. must establish that there is either
    an actual injury in fact or a real and immediate threat of direct injury. Village of
    Key Biscayne v. Dep’t of Envtl. Prot., 
    206 So. 3d 788
    , 791 (Fla. 3d DCA 2016).
    In satisfying this standard, K.M.’s injury “must not be based on pure speculation or
    conjecture.” Lanoue v. Fla. Dep’t of Law Enforcement, 
    751 So. 2d 94
    , 97 (quoting
    
    Ward, 651 So. 2d at 1237
    ) (emphasis added).
    The ALJ determined that the proof offered at the hearing was pure
    speculation and standing therefore could not be established:
    6 It is also worth noting that in Florida Home Builders Ass’n v. Dep’t of Labor and
    Emp’t Sec., 
    412 So. 2d 351
    , 352-53 (Fla. 1982), the Florida Supreme Court
    observed: “Expansion of public access to the activities of governmental agencies
    was one of the major legislative purposes of the new Administrative Procedure
    Act.” In the instant case, the majority’s decision runs contrary to this legislative
    purpose of expanded public access.
    17
    The notion, therefore, that every facility in the CMS network would
    suddenly stop providing quality pediatric cardiac services
    immediately upon the repeal of the Standards rests on pure
    speculation—and is a little insulting to the health care professionals
    who personally deliver those services.7 Such an imagined across-the-
    board loss of quality care is not reasonably foreseeable and cannot
    qualify as a real or immediate injury in fact for purposes of standing.
    The ALJ’s analysis overstates K.M.’s burden and misstates K.M.’s premise
    for standing. K.M. and the petitioners did not seek to establish—nor were they
    required to establish—that “every facility in the CMS network would suddenly
    stop providing quality pediatric cardiac services immediately upon the repeal of the
    Standards.”   Rather, they sought to establish (and did establish, through the
    unrebutted testimony of their experts), that it was reasonably foreseeable that the
    7 While this last statement may have been gratuitous, it is also a bit ironic. After
    all, if it is self-evident that health care professionals will always provide the very
    highest levels of care without the necessity of standards, then why would the
    legislature have perceived a need to establish the Children’s Medical Services
    program, whose directive was to develop quality of care and service integration
    standards, and reporting requirements for health care providers who participate in
    the Children’s Medical Services program? See § 391.071, Fla. Stat. (2015). Why
    would the Department of Health utilize its statutory power to establish CMS
    network standards and credentialing requirements for health care providers and
    health care services?
    More to the point, the existing rule at issue has, since 1977, provided that CMS-
    approved pediatric cardiac facilities must comply with the CMS Pediatric Cardiac
    Facilities Standards, which were established with the assistance and input of the
    CMS Cardiac Technical Advisory Panel, comprised of medical professionals,
    including pediatric cardiologists and pediatric cardiac surgeons. Why would this
    labyrinth of rules, statutes, standards and enforcement mechanisms be in place over
    the last four decades if, as the ALJ appears to conclude, health care professionals
    will undoubtedly continue to deliver the highest level of care even in the absence
    of these standards?
    18
    elimination of the quality assurance process (as set forth in the Rule) could result
    in a material increase in the risk of morbidity and mortality associated with the
    provision of pediatric cardiac services.        This showing was legally sufficient to
    confer standing on K.M.
    In fact, one of the cases cited and discussed at length by the majority
    supports this very conclusion. In Peace 
    River, 183 So. 3d at 1084
    , the Second
    District reversed the order of the ALJ, holding that the petitioner, a regional water
    supply authority, had standing because it “offered unrebutted evidence that it had a
    substantial interest in the flow of Horse Creek and the Peace River and that this
    interest could reasonably be affected by [respondent’s] proposed activities.” K.M.
    met this standing threshold, and the ALJ had jurisdiction to address the merits of
    K.M.’s petition.
    Because K.M. established, by competent and unrebutted testimony, and not
    upon pure speculation and conjecture, that her substantial interest “could
    reasonably be affected by” the proposed repeal of this Rule, K.M. demonstrated
    her standing to contest the proposed repeal of the Rule and I would reverse the
    final order dismissing K.M.’s petition for lack of jurisdiction.
    For these reasons, I respectfully dissent.
    19