Agency for Health Care Administration v. South Broward Hospital District

JAY, J. The Agency for Health Care Administration (“AHCA”) petitions this Court to review a non-final order of the administrative law judge (“ALJ”) granting Respondents’ motions to unseal files relevant to two Medicaid provider overpayment complaints filed against them by AHCA and rejecting AHCA’s argument that the files should remain sealed under section 409.913(12), Florida Statutes (2015).1 While we possess the authority to review the non-final action of an ALJ when review of the final agency action would not provide an adequate remedy,2 in this case we do not reach the merits of the petition because, as we explain below, AHCA has failed to establish that the ALJ’s order causes material injury that cannot be remedied on appeal. “ ‘The scope of review5 for a petition seeking review of a non-final agency action under section 120.68(1) ‘is analogous to, and no broader than the right of review by common law certiorari.’ ” State, Agency for Health Care Admin. v. Murciano, 163 So.3d 662, 664 (Fla. 1st DCA 2016) (quoting CNL Resort Hotel, L.P. v. City of Doral, 991 So.2d 417, 420 (Fla. 3d DCA 2008)) (some quotation marks omitted); see also Fla. Power & Light Co. v. Fla. Public Serv. Comm’n, 31 Sb.3d 860, 863 (Fla. 1st DCA 2010). It follows, then, that AHCA’s burden is to “demonstrate that the order[ ] on review depart[s] from the essential requirements of the law and [828] cause[s] material injury that cannot be remedied on appeal.” Fla. Power & Light, 31 So.3d at 863; accord Murciano, 163 So.3d at 664-65. In evaluating whether AHCA has met its burden, our “first duty is to assess whether [it] has made a prima facie showing that the order creates irreparable harm.” Morgan, Colling & Gilbert, P.A. v. Pope, 798 So.2d 1, 3 (Fla. 2d DCA 2001). This means that AHCA “bear[s] the burden of demonstrating that review of the final agency decision would not provide an adequate remedy.” Verizon Bus. Network Servs., Inc., ex rel. MCI Commc’ns, Inc, v. Fla. Dep’t of Corr., 960 So.2d 916, 917 (Fla. 1st DCA 2007). If AHCA fails to make this prima facie showing of irreparable harm, its petition must be dismissed “for lack of jurisdiction.” Cotton States Mut. Ins. Co. v. AFO Imaging, Inc., 46 So.3d 140, 141 (Fla. 2d DCA 2010); see also Cruz v. Cooperativa de Seguros Multiples de Puerto Rico, Inc., 76 So.3d 394, 397 (Fla. 2d DCA 2011) (holding “[a]s a jurisdictional prerequisite to reviewing the merits of the certiorari petition, we must determine whether [the petitioners] have demonstrated irreparable harm”). From a practical standpoint, this standard requires the petition to dearly reflect how the potential “harm is incurable” by a final appeal. Bared & Co., Inc, v. McGuire, 670 So.2d 153,157 (Fla. 4th DCA 1996). Without this critical component, we lack “the power to exercise discretion” either to grant or withhold review of the non-final order. Id. Here, AHCA has failed to allege how the order caused it material injury that cannot be remedied on a final appeal. Because there is no prima facie showing of irreparable harm, AHCA is not entitled to our evaluation of the non-final agency order. See Robles v. Baptist Health S. Fla., Inc., 197 So.3d 1196, 1199 (Fla. 3d DCA 2016); Nucci v. Target Corp., 162 So.3d 146, 151 (Fla. 4th DCA 2015) (“If a petition fails to make a threshold showing of irreparable harm, this Court will dismiss the petition.”) (citation omitted); Royal Marble, Inc. v. Innovative Flooring & Stonecrafters of SWF, Inc., 932 So.2d 221, 222 (Fla. 2d DCA 2005) (“Because Royal Marble has failed to allege irreparable harm, we dismiss the petition”). Therefore, the petition for review of non-final agency action is DISMISSED. LEWIS, J., CONCURS; WETHERELL, J., CONCURS WITH OPINION. Footnotes [1] Section 409.913(12) provides in pertinent part as follows: "The complaint and all information obtained pursuant to an investigation of a Medicaid provider ... relating to an allegation of fraud, abuse, or neglect are confidential and exempt from the provisions of s. 119.07(1) ....’’ Section 119.07(1), Florida Statutes, appears in Florida’s Public Records Act. See §§ 119.01-.15, Fla. Stat. [2] See § 120.68(1), Fla. Stat.; Fla. R. App. P. 9.030(b)(1)(C), 9.100(c)(3) & 9.190(b)(2); State, Dep’t of Fin, Servs. v. Fugett, 946 So.2d 80, 81 (Fla. 1st DCA 2006). [5] Final hearing transcripts, for example, typically cannot be viewed from the online docket on DOAH’s website even though it is well-settled that the transcripts are public records that must be made available for public inspection—and copying, after payment of duplicating costs—upon request to the DOAH clerk (while the case is pending at DOAH) or the agency clerk (after the record has been transmitted to the agency). See Dep't of Health & Rehab. Servs. v. Southpointe Pharmacy, 636 So.2d 1377, 1382-83 (Fla. 1st DCA 1994).