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STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ODYSSEY HEALTHCARE OF COLLIER
COUNTY, INC., d/b/a ODYSSEY
HEALTHCARE OF CENTRAL FLORIDA,
Petitioner,
vs.
HPH SOUTH, INC., AND AGENCY FOR
HEALTH CARE ADMINISTRATION,
Respondents,
and
THE HOSPICE OF THE FLORIDA
SUNCOAST, INC., d/b/a SUNCOAST
HOSPICE,
Intervenor.
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Case No. 10-1605CON
THE HOSPICE OF THE FLORIDA
SUNCOAST, INC., d/b/a SUNCOAST
HOSPICE,
Petitioner,
vs.
AGENCY FOR HEALTH CARE
ADMINISTRATION AND HPH
SOUTH, INC.,
Respondents.
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Case No. 10-1862CON
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HPH SOUTH, INC.,
Petitioner,
vs.
AGENCY FOR HEALTH CARE
ADMINISTRATION; THE HOSPICE OF
THE FLORIDA SUNCOAST, INC.,
d/b/a SUNCOAST HOSPICE; AND
ODYSSEY HEALTHCARE OF COLLIER
COUNTY, INC., d/b/a ODYSSEY
HEALTHCARE OF CENTRAL FLORIDA,
Respondents.
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Case No. 10-1863CON
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative
Hearings, by its designated Administrative Law Judge, R.
Bruce
McKibben, held the final hearing in the above-styled cases
on
June 11, 21 through 25, 28 through 30, and July 1 and 2, 6
through 8, 2010, in Tallahassee, Florida.
APPEARANCES
For HPH South, Inc.:
Geoffrey D. Smith, Esquire
Susan C. Smith, Esquire
Corrine Porcher, Esquire
Smith and Associates
2873 Remington Green Circle
Tallahassee, Florida 32308
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For Odyssey Healthcare of Central Florida:
Mark A. Emanuele, Esquire
Deborah S. Platz, Esquire
Panza, Maurer, & Maynard, P.A.
Bank of America Building, Third Floor
3600 North Federal Highway
Fort Lauderdale, Florida 33308
For Suncoast Hospice:
Paul H. Amundsen, Esquire
Julia Smith, Esquire
Ruden McClosky, P.A.
215 South Monroe Street, Suite 815
Tallahassee, Florida 32301
For Agency for Health Care Administration:
Lorraine M. Novak, Esquire
Agency for Health Care Administration
Fort Knox Building III, Mail Stop 3
2727 Mahan Drive, Suite 3431
Tallahassee, Florida 32308
STATEMENT OF THE ISSUES
Whether the Certificate of Need (CON) applications filed by
Odyssey Healthcare of Collier County, Inc., d/b/a Odyssey
Healthcare of Northwest Florida, Inc. (Odyssey), and HPH
South,
Inc. (HPH), for a new hospice program in the Agency for
Health
Care Administration (AHCA or the Agency) Service Area 5B,
satisfy, on balance, the applicable statutory and rule
review
criteria to warrant approval; and whether such applications
establish a need for a new hospice based on special
circumstances, and, if so, which of the two applications
best
meets the applicable criteria for approval.
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Holding: Neither applicant proved the existence of special
circumstances warranting approval of an additional hospice
program in Service Area 5B. Although neither application is
recommended for approval in this Recommended Order, both
applicants, on balance, satisfy the applicable statutory and
rule criteria. Of the two, HPH best satisfies the criteria.
PRELIMINARY STATEMENT
On October 2, 2009, the Agency published a fixed need pool
(FNP) for one new hospice program in Service Area 5B, a
single
county area consisting of Pinellas County, for the second
batching cycle of 2009. AHCA's projection of need was based,
in part, on information submitted by the existing provider
of
hospice services in Service Area 5B, i.e., The Hospice of
the
Florida Suncoast, Inc. d/b/a Suncoast Hospice (hereinafter
"Suncoast").
On October 7, 2009, Suncoast submitted a letter to AHCA
addressing the FNP and provided revised semiannual
utilization
data for the time period January 1 through June 30, 2009.
Upon
review of the revised Suncoast data, AHCA published a
revised
notice changing the FNP to zero.
HPH, Odyssey, and LifePath Hospice (a co-batched applicant
who is not a party to the instant action) each timely
submitted
a letter of intent and a CON application seeking approval of
a
new hospice program in Service Area 5B despite the existence
of
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a zero FNP. Each of the applicants also filed a challenge to
the revised FNP. Suncoast petitioned to intervene in the FNP
challenge, however, each of the parties then voluntarily
dismissed its challenge to the FNP.
On February 19, 2010, AHCA issued its State Agency Action
Report (SAAR) preliminarily approving HPH's CON application
and
denying the other co-batched applications. AHCA's decision
was
published in the March 5, 2010, Florida Administrative
Weekly,
Vol. 26, No. 9.
Odyssey timely filed a petition to contest the denial of
its application and the approval of HPH's CON application.
HPH
filed an approved applicant petition in support of its own
application and in opposition to the Odyssey application.
Life
Path Hospice did not contest the denial of its application.
Suncoast, as an existing hospice provider in Service Area
5B,
filed a petition in opposition to the HPH and Odyssey CON
applications and was granted intervenor status in this
matter.
HPH, as an approved applicant, requested that the final
hearing in this matter be commenced within 60 days in
accordance
with Section 408.039, Florida Statutes (2009).1 Over
objection
by Odyssey and Suncoast, the final hearing was scheduled to
commence on June 11, 2010. The first day of final hearing
was
used to discuss preliminary matters and pending motions. The
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hearing then recessed until June 21, 2010, and was held on
the
dates set forth above.
The parties filed a joint pre-hearing stipulation on
June 18, 2010, i.e., during the period between the start of
the
final hearing and its recommencement on June 21, 2009.
During the final hearing, HPH presented the testimony of
five witnesses: Thomas Barb, president and CEO of HPH; Nancy
Brown, senior vice-president for clinical services, accepted
as
an expert in Hospice operations, nursing and clinical care;
Patricia Greenberg, accepted as an expert in health
planning,
hospice planning, and healthcare finance; Susan Versley,
registered nurse; and Dr. David McGrew, managing partner for
Hospice and Palliative Care Physician Services, accepted as
an
expert in hospice and palliative care medicine. HPH Exhibits
1
through 35, 40 through 50, 51(A through D), 52(A through E),
53(A), 54(A through D), 55(A through G), 56 through 62, 66,
68
through 81, 83 through 85, 87, 88, 90, 94, 96, 104, 104A,
109,
112, 113, 115, and 126 were admitted into evidence.
Ms. Greenberg was also recalled as a rebuttal witness.
AHCA called one witness during its case in chief: Jeffrey
Gregg, chief of the Bureau of Health Finance Regulation for
AHCA. Agency Exhibits 1 and 2 were admitted into evidence.
Odyssey called three witnesses: Sally Parnell, senior
vice-president for clinical and regulatory affairs, accepted
as
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an expert in post-acute nursing and operations, clinical and
regulatory compliance, and hospice clinical and
administrative
operations; Jon Marc Creighton, executive director of
Odyssey
Healthcare Marion, accepted as an expert in hospice and
nursing
home administration; and Mark Richardson, accepted as an
expert
in health planning and hospice planning. Odyssey Exhibits 1,
5 through 11, 13 through 25, 30, 34, 43 through 47, 49, 52,
53,
59 through 62, 65, and 79 were admitted into evidence.
Suncoast presented the testimony of four witnesses:
Dr. Deidra Woods, medical director of Suncoast, accepted as
an
expert in hospice and palliative medicine; Marci Pruitt,
vice-president of hospice programs, accepted as an expert in
hospice nursing and hospice administration; Anne Hocksprung,
vice-president of finance, accepted an as expert in
healthcare
finance; and Daniel J. Sullivan, accepted as an expert in
healthcare planning. Suncoast Exhibits 5 through 8, 11, 13
through 19, 22 through 25, 27, 43 through 50, 51(a through
j),
52(a through e), 53(a and b), 54, 55(a and b), 56(a through
i),
57, 58, 64 through 70, and 74 through 76 were admitted into
evidence.
The following items were officially recognized pursuant to
requests by one or more of the parties:
● Recommended Order and Final Order in DOAH Case
No. 01-4415CON;
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● Recommended Order and Final Order in DOAH Case
No. 00-1067CON;
● Florida Hospice Need Projections for Hospice
Programs, Background Information for Use in
Conjunction with the October 2009 Batching Cycle for
the January 2011 Hospice Planning Horizon, as
revised October 13, 2009;
● AHCA's Notice of Development of Proposed Rules for
Hospice Programs, Rule No. 59C-1.0355, published in
the Florida Administrative Weekly, Volume 31,
Number 49, December 9, 2005; and
● AHCA's Notice of Development of Proposed Rules for
Hospice Programs, Rule No. 59C-1.0355, published in
the Florida Administrative Weekly, Volume 32,
Number 13, March 31, 2006.
Both prior to and at the final hearing, Suncoast raised the
issue of whether either of the applicants had improperly
amended
their CON application. Testimony was taken at final hearing
to
establish certain facts concerning this issue. The parties
were
given until no later than ten days after the filing of the
hearing transcript at DOAH to submit briefs as to their
positions on the illegal amendment issue. Each party timely
submitted a brief, and an Order was entered on August 24,
2010,
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holding that neither applicant improperly amended its
application.
Parties were given 60 days from the filing of the
transcript to submit proposed findings of fact and
conclusions
of law, limited to 60 pages. The parties subsequently
requested
and were granted leave to submit their proposed recommended
orders no later than October 18, 2010. Odyssey also moved
for
leave to extend the page limit to 80 pages, but that request
was
denied. The parties were, within 10 days after proposed
recommended orders were filed, to submit any objections they
had
to findings made by other parties which relied upon
uncorroborated hearsay. Each party timely submitted a
Proposed
Recommended Order, and each was considered in the preparation
of
this Recommended Order. Objections filed by parties relating
to
hearsay evidence were duly considered.
FINDINGS OF FACT
I. The Parties
A. AHCA
1. The Agency for Health Care Administration is the state
agency authorized to evaluate and render final determinations
on
CON applications pursuant to Subsection 408.034(1), Florida
Statutes.
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B. HPH
2. HPH is a newly created not-for-profit corporation
formed to initiate hospice services in Pinellas County. HPH
is
a wholly-owned subsidiary of Hernando-Pasco Hospice, Inc.,
d/b/a
HPH Hospice and is one of the oldest, not-for-profit
community
hospices in Florida.
3. HPH Hospice was incorporated in 1982 to serve
terminally ill persons within Hernando and Pasco Counties.
HPH
was approved to expand its services north to Citrus County
in
2004.
4. HPH is a high-quality provider of hospice services in
the service areas where it currently operates. It provides
pain
control and symptom management, spiritual care, bereavement,
volunteer, social work, and other programs.
5. HPH employs a physician-driven model of hospice care,
with significant involvement of hospice and palliative care
physicians who are physically present treating patients in
their
homes. The number of physician home visits provided to
hospice
patients by HPH physicians is larger than many hospices in
Florida and throughout the United States. In 2009, HPH
provided
over 35,000 visits by physicians, advanced registered nurse
practitioners, and licensed physician assistants to its
hospice
patients. The majority of these visits occurred in the
patients' homes.
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6. HPH operates multiple facilities that allow for
provision of services to patients in various settings and
hospice levels of care. Among its facilities, HPH operates
four
buildings it calls Care Centers, at which patients can
receive
general in-patient care. Additionally, HPH operates four
units
which it calls Hospice Houses. Those units provide for
residential care in a home-like environment for patients who
do
not have caregivers at home or who otherwise are in need of
a
home. HPH receives no reimbursement for room and board for
the
care provided at its Hospice Houses and expends over $1.4
million annually in charity care to operate these Hospice
Houses
for the benefit of its patients.
7. HPH has an established record of providing all levels
of hospice care and does not use its Care Centers as a
substitute for providing continuous care in the patient's
home
when such care is needed. Annually, HPH provides
approximately
2.3 percent of its patient days for continuous care
patients.
8. HPH has well-developed staff education and training
programs, including specialized protocols for care and
treatment
of patients by terminal disease type such as Alzheimer's,
COPD,
cancer, failure to thrive, and pulmonary diseases.
C. Odyssey
9. Odyssey is the entity applying for a new hospice
program in Service Area 5B. The sole shareholder of Odyssey
is
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Odyssey HealthCare Operating B, LP, which is a wholly-owned
subsidiary of Odyssey HealthCare, Inc. (OHC), Odyssey's
parent
and management affiliate. Odyssey was formed for the purpose
of
filing for CON applications in Florida and, thereafter, for
owning and operating hospice programs in Florida.
10. OHC is a publicly-traded company founded in 1996 and
focuses on caring for patients at the end of life's journey.
OHC's sole line of business is hospice services. OHC's
patient
population consists of approximately 70 percent non-cancer
and
30 percent cancer patients.
11. OHC is one of the largest providers of hospice care in
the United States. OHC has approximately 92
Medicare-certified
programs in 29 states, including established programs in
Miami-Dade (Service Area 11) and Volusia (Service Area 4B)
Counties and a start-up program in Marion County (Service
Area 3B), which was licensed in January 2010.
12. Over four years ago, OHC was the subject of an
investigation by the United States Department of Justice
that
ultimately resulted in a settlement and payment of $13
million
to the federal government in July 2006. The settlement did
not
involve the admission of liability or acknowledgement of any
wrongdoing by OHC. As part of the settlement, OHC entered
into
a corporate integrity agreement (CIA) with a term of five
years.
Odyssey is now in the final year of the CIA. The settlement
and
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CIA allow OHC to self-audit to ensure compliance with the
Medicare conditions of participation, which is the first and
only time the OIG has allowed a provider to self audit.
D. Suncoast
13. Suncoast is a large and well-developed comprehensive
hospice program serving Pinellas County, Service Area 5B.
Suncoast is the sole provider of hospice services in Service
Area 5B. According to data reported to the Department of
Elder
Affairs, Suncoast had 7,375 admissions and provided 795,102
patient days of care in 2009, more than any other Florida
hospice. In that same year, Suncoast provided 115,247
patient
days of care in assisted living facilities, the third
highest
total in Florida.
14. Suncoast considers itself a model for hospice across
the United States and the world. Suncoast has a large depth
and
breadth of programs, including community programs offered by
its
affiliate organizations, such as the AIDS Service Association
of
Pinellas County, the Suncoast Institute, and Project Grace.
Suncoast is active in the national organization for hospices
and
interacts with programs that use it as a model and resource.
Unlike the applicants, Suncoast does not use the Medicare
conditions or definitions to limit or define the scope of
services it provides. Under the Florida definition, hospice
is
provided to patients with a life expectancy of 12 months or
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less. HPH, by way of contrast, uses the Centers for Medicare
and Medicaid Services definition for hospice, i.e., a
prognosis
of six months or less.
II. Overview of Hospice Services
15. In Florida, hospice programs are required to provide a
continuum of palliative and supportive care for terminally
ill
patients and their families. Under Florida law, a terminally
ill patient has a prognosis that his/her life expectancy is
one
year or less if the illness runs its normal course. Under
Medicare, a terminally ill patient is eligible for the
Medicare
Hospice benefits if their life expectancy is six months or
less.
16. Hospice services must be available 24 hours a day,
seven days a week, and must include certain core services,
including nursing, social work, pastoral care or counseling,
dietary counseling, and bereavement counseling. Physician
services may be provided by the hospice directly or through
contract.
17. Hospices are required to provide four levels of
hospice care: routine, continuous, in-patient, and respite.
Hospice services are furnished to a patient and family
either
directly by a hospice or by others under contractual
arrangements with a hospice. Services may be provided in a
patient's temporary or permanent residence. If the patient
needs short-term institutionalization, the services are
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furnished in cooperation with those contracted institutions
or
in a hospice in-patient facility.
18. Routine home care comprises the vast majority of
hospice patient days. Florida law states that hospice care
and
services provided in a private home shall be the primary form
of
care. Hospice care and services, to the extent practicable
and
compatible with the needs and preferences of the patient, may
be
provided by the hospice care team to a patient living in an
assisted living facility (ALF), adult family-care home,
nursing
home, hospice residential unit or facility, or other
non-domestic place of permanent or temporary residence. A
resident or patient living in an ALF, nursing home, or other
facility, who has been admitted to a hospice program, is
considered a hospice patient, and the hospice program is
responsible for coordinating and ensuring the delivery of
hospice care and services to such person pursuant to the
statutory and rule requirements.
19. The in-patient level of care provides an intensive
level of care within a hospital setting, a skilled nursing
unit
or in a freestanding hospice in-patient facility. The in-
patient component of care is a short-term adjunct to hospice
home care and home residential care and should only be used
for
pain control, symptom management, or respite care in a
limited
manner. In Florida, the total number of in-patient days for
all
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hospice patients in any 12-month period may not exceed
20 percent of the total number of hospice days for all the
hospice patients of the licensed hospice.
20. Continuous care, similar to in-patient care, is
basically emergency room or crisis care that can be provided
in
a home care setting or in any setting where the patient
resides.
Continuous care, like in-patient care, was designed to be
provided for short amounts of time, usually when symptoms
become
severe and skilled and individual interventions are needed
for
pain and symptom management.
21. Respite care is generally designed for caregiver
relief. It allows patients to stay in hospice facilities for
brief periods to provide breaks for the caregivers. Respite
care is typically a very minor percentage of overall patient
days and is generally designed for caregiver relief.
22. Medicare reimburses the different levels of care at
different rates. The highest level of reimbursement is for
continuous care. Approximately 85 to 90 percent of hospice
care
is covered by Medicare.
23. The goal of hospice is to provide physical, emotional,
psychological, and spiritual comfort and support to a
terminally
ill patient and their family. Hospice care provides
palliative
care as opposed to curative care, with the focus of
treatment
centering on palliative care and comfort measures. There is
no
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"bright line test" as to what constitutes palliative care
and
what constitutes curative care. The determination is made on
a
case-by-case basis depending upon the facts and circumstances
of
each such case. However, palliative care generally refers to
services or interventions which are not curative, but are
provided for the reduction or abatement of pain and
suffering.
24. Hospice care is provided pursuant to a plan of care
that is developed by an interdisciplinary group consisting
of
physicians, nurses, social workers, and various counselors,
including chaplains.
25. There are certain services required by individual
hospice patients that are not necessarily covered by
Medicare
and/or private or commercial insurance. These services may
include music therapy, pet therapy, art therapy, massage
therapy, and aromatherapy. There are also more complicated
and
expensive non-covered services, such as palliative
chemotherapy
and radiation that may be indicated for severe pain control
and
symptom control.
26. Suncoast provides, and both Odyssey and HPH propose,
to provide hospice patients with all of the core services
and
many of the other services mentioned above.
III. Fixed Need Pool
27. The Agency has a numeric need formula within its rule
for determining the need for an additional hospice program in
a
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service area. See Fla. Admin. Code R. 59C-1.0355(4)(a). When
applying the formula in the present case, AHCA ultimately
determined that the fixed need was zero for the second
batching
cycle of 2009. In the absence of numeric need, an applicant
must document the existence of one of three delineated
special
circumstances set forth in Florida Administrative Code Rule
59C-1.0355(4)(d), i.e., (1) That a specific terminally ill
population is not being served; (2) That a county or
counties
within the service area of a licensed hospice program are
not
being served; or (3) That there are persons referred to
hospice
programs who are not being admitted within 48 hours. Absent
numeric need or one of the delineated special circumstances,
there cannot be approval of a new hospice program.
28. In forecasting need under the hospice rule's
methodology, AHCA uses an average three-year historical
death
rate. It applies this average against the forecasted
population
for a two-year planning horizon. AHCA also uses a statewide
penetration rate, which is the number of hospice admissions
divided by hospice deaths. The statewide average penetration
rate is subdivided into four categories: cancer over age 65,
cancer under age 65, non-cancer over age 65, and non-cancer
under age 65. The projected hospice admissions (based on
death
rate and projected population growth) in each category are
then
compared to the most recent published actual admissions to
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determine the number of projected un-met admissions in each
category. If the total un-met admissions in all categories
exceed 350, a new hospice is warranted, unless there is a
recently approved hospice in the service area or a new
hospice
provider has not been operational for two years.
29. In the instant case, AHCA's final projections showed
the net un-met need for hospice's admissions in Service Area
5B
was 318, i.e., below the threshold amount of 350 necessary
to
establish need for an additional hospice program. The fixed
need pool for the purpose of this administrative hearing is
zero.
30. HPH is primarily basing its determination of need for
a new hospice on its contention that there are three
specific
terminally ill population groups in Pinellas County that are
not
being served.
31. Odyssey is primarily basing its determination of need
for a new hospice on its contention that there are persons
being
referred to the existing hospice program in Pinellas County
who
are not being admitted within 48 hours.
IV. The Proposals
A. HPH's Proposal
32. HPH proposes to establish its new hospice program in
Pinellas County, Service Area 5B. HPH is currently licensed
to
provide hospice care in three contiguous sub-districts north
of
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Service Area 5B, i.e., in Hernando, Pasco, and Citrus
counties.
HPH's corporate headquarters is located in Pasco County, ten
to
15 minutes from the Pinellas County border. HPH currently
operates a home health agency in Pinellas County.
33. HPH's CON application identifies special circumstances
justifying approval of its proposal, including four
sub-populations of terminally ill persons who are currently
underserved in Service Area 5B: (1) patients living in ALFs;
(2) patients requiring continuous care; (3) medically
complex
patients; and (4) patients not being admitted within
48-hours.
34. Another circumstance identified by HPH to support
approval of its application is the fact that Pinellas County
is
one of the most populous and most elderly service areas in
the
State, and yet, it only has a single hospice provider. HPH
argues that the fact Suncoast is a sole hospice provider for
the
service area exacerbates and contributes to the problems of
gaps
in available hospice services to the specific terminally ill
sub-populations identified in its CON application.
35. HPH proposes a de-centralized model of hospice service
delivery similar to its model in the three contiguous
counties
where HPH presently provides hospice services. HPH proposes
contracting with existing nursing homes and hospitals for
in-patient beds ("scatter beds") throughout Service Area 5B.
HPH then projects that it could offer in-patient services in
the
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local neighborhoods of patients and families where they live,
as
opposed to transferring patients to a single in-patient
facility
for the provider's convenience. As census increases, HPH
commits to establish, by month seven of operation, a
dedicated
in-patient unit to provide in-patient level of care and
Hospice
House residential care to patients in a home-like
environment.
36. Like its hospice operations in Hernando, Pasco and
Citrus Counties, HPH proposes to implement its "physician-
driven" model of hospice care in Service Area 5B, allowing
for
greater involvement of physicians in the care and treatment
of
hospice patients, including physician home visits.
B. Odyssey's Proposal
37. Odyssey proposes to address lack of competition2 in
Service Area 5B and the special circumstance of patients not
being admitted within 48 hours of referral.
38. Under AHCA's hospice rule, an applicant may
demonstrate the need for a new hospice provider if there are
persons referred to a hospice program who are not being
admitted
within 48 hours. However, the applicant must indicate the
number of such persons.
39. Odyssey relies upon referral of admission statistical
information previously provided by Suncoast to a sister
Odyssey
entity in a 2005 hospice CON matter. Suncoast at that time
provided three years of data that demonstrated between 1,700
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(31 percent of admissions) and 2,300 (38 percent of
admissions)
of patients admitted to Suncoast were admitted 72 hours or
more
after referral. The definition of referral by Suncoast,
however, differs from the definition of referral relied upon
by
Odyssey. (See Paragraph 56, herein.)
40. Odyssey also provided letters of support from the
community to further evidence the existence of the 48-hour
special circumstance. However, the letters of support
originally appeared in an application filed by Odyssey in
2007
and were not given any weight in the instant proceeding based
on
their staleness.
41. Odyssey also contends that the existence of a sole
provider in Service Area 5B has created a monopolistic
situation
in the service area. It further contends that the lack of
competition has led to the existence of a 48-hour special
circumstance in Service Area 5B. Approval of Odyssey's
application will, it says, eliminate the monopoly currently
existing in Service Area 5B and will address the lack of
competition currently occurring in Service Area 5B.
Subsection
408.045(2), Florida Statutes, speaks of a "regional
monopoly,"
but there is no credible evidence in the record to suggest
that
Suncoast's position as a sole provider in Pinellas County
constitutes a "regional monopoly."
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V. Facts Concerning Special Circumstances Arguments
A. Service Area Demographics
42. Hospice Service Area 5B, Pinellas County, is a
single-county hospice service area with a population of
approximately one million residents. Pinellas County is
currently ranked as the fourth largest county in the State
in
total numbers of elderly persons over 65 years of age, as
well
as elderly persons over 75 years of age, behind only
Miami-Dade,
Broward and Palm Beach Counties.
43. Pinellas County also experienced the fourth highest
number of total deaths in the State in 2008--11,268.
44. Pinellas County's mortality rate in recent years has
slowed. However, even considering a slower growth rate in
the
number of deaths, Pinellas County likely will remain the
fourth
largest county in the State in both elderly population and
number of deaths through 2015.
45. Although it is the fourth largest service area in
terms of likely hospice patients, Suncoast is the sole
hospice
provider in Service Area 5B. By contrast, the other three
largest service areas all have multiple hospice programs to
serve their large elderly populations with eight providers
in
Service Area 11 (Miami-Dade), five providers in Service Area
10
(Broward), and three providers in Service Area 9C (Palm
Beach).
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24
46. In assessing the extent of utilization of hospice
services in Service Area 5B, HPH through its health planner,
Patricia Greenberg, noted that Suncoast appears to have
over-stated its utilization rate in its semi-annual reports
to
AHCA. Ms. Greenberg testified that Suncoast's AHCA data
includes patients who are not truly hospice patients and
are,
instead, patients who are participating in non-hospice
programs
operated by Suncoast, including palliative care programs
known
as "Suncoast Supportive Care" and "Hospital Support." The
number of such patients was not quantified by Ms.
Greenberg.3
47. Suncoast counters that it does not let the conditions
of participation define the scope and breadth of hospice
services it offers. Suncoast tries not to be defined by the
Medicare conditions of participation and has programs that
are
not covered by the benefit, including but not limited to its
residential care at Woodside and its caregiver services.
B. Specific Terminally Ill Populations
48. HPH identified as under-served in Service Area 5B
medically complex patients with complex medical needs,
including
multiple IVs, wound vacs, ventilator, complex medications,
or
acutely uncontrolled symptoms in multiple domains. These are
the same kinds of patients who would require continuous care
within their homes.
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25
49. Hospice patients have become more highly acute in
recent years. More patients are being discharged from
hospitals
with highly complex medical conditions, often directly from
hospital intensive care units. Patients discharged directly
from hospitals tend to have higher acuity levels.
50. Ms. Greenberg reviewed Suncoast's data on hospital
discharges and found Suncoast statistically lags behind HPH
in
caring for medically complex patients discharged from
hospitals.
Looking at a three-year average, HPH had 3.7 percent of its
hospice discharges directly admitted from hospitals, compared
to
2.4 percent for Suncoast. This is more than a 50-percent
deviation between hospital discharges to hospice for HPH
versus
Suncoast. However, a comparison of Suncoast to HPH does not
establish that there is a specific underserved population in
Service Area 5B which is not receiving services.
51. One case manager testified to sometimes not being able
to timely find hospice placements for medically complex
patients. Such patients would then have to be transferred
from
the hospital to a nursing home or rehabilitation facility.
However, she did not testify that this specific terminally
ill
population was not being served, only that they were being
served somewhere other than in an in-patient hospice bed.
52. Medically complex patients, including those needing
continuous care, were another specific terminally ill
population
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26
identified by HPH. At page 54 of her deposition, Deborah
Casler, a case manager at Helen Ellis Hospital, addressed
those
populations, saying, "[w]hat I am going to say is if anybody
needed continuous care through Suncoast, it would happen, but
it
wasn't always a quick and easy process."
53. HPH compared its percentage of continuous care patient
days with Suncoast, showing that HPH had more. That does not
equate to an absence of service for any specific terminally
ill
population. HPH attempts to create a presumption that
services
are not being provided by conditioning its application on a
certain percentage (3 percent) of days for continuous care
patients. That is merely a projection of intent; it is not
evidence that a certain population is not currently being
served.
C. Assisted Living Facility Residents
54. HPH provided anecdotal evidence that some ALFs in
Pinellas County were not pleased with the services being
provided by Suncoast. One ALF administrator was dissatisfied
that Suncoast took a long time to admit her resident (but
the
resident was ultimately admitted). Another was disappointed
with Suncoast because it took a long time to get medications
for
her resident. Another felt like Suncoast's quality of care
was
inferior.
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27
55. HPH provides a greater percentage of hospice services
to ALF residents in Pasco (12.7 percent), Hernando (26.5
percent), and Citrus (23.5) counties than Suncoast provides
to
ALF residents in Pinellas County. There are approximately
215
ALFs in Pinellas County of varying sizes, i.e., from three
beds
to almost 500 beds. Suncoast did not provide services to all
of
them. There was no showing, however, that any resident of an
ALF who needed or requested hospice services was denied such
care. None of the evidence presented by HPH establishes the
existence of a group of ALF residents who were not being
served
in the service area; nor does the evidence prove that any
specific ALF residents are, in fact, terminally ill.
D. The 48-Hour Admission Provision
56. Neither Suncoast, nor Odyssey presented any hard data
on timeliness of admissions. In fact, none of the parties
could
agree as to what action constitutes an admission. Suncoast
says
an admission must include a physician order and a consent by
the
patient and family. Odyssey identifies a referral as a
telephone call from a family member, even if the call is
simply
an inquiry as to what services might be available. Odyssey
says
that the majority of its patients are admitted within three
hours of referral and at least 80 percent are admitted
within
24 hours. During that three-hour time frame, Odyssey will
contact the family, contact the physician in order to
evaluate
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28
and admit, if appropriate, screen the patient to ensure he
or
she meets the eligibility guidelines, go out and meet with
the
family, and provide support while necessary information is
being
gathered.
57. HPH candidly admits that the issue of admissions
within 48 hours does not, in and of itself, justify the
approval
of a new hospice program in Service Area 5B. However, HPH
argues, it is an element of hospice services that HPH would
do
better than the other parties.
58. There is no credible evidence in the record that an
identified number of persons in Pinellas County had not been
admitted to hospice within 48 hours of referral.
VI. Statutory and Rule Review Criteria
A. Rule Preferences
59. The Agency is required to give preference to an
applicant meeting one or more of the criteria specified in
Florida Administrative Code Rule 59C-1.0355(4)(e)1 through
5:
● Commitment to serve populations with unmet need.--
There is no numeric need in this matter. Neither
applicant proved the existence of a population with
unmet need.
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29
● Commitment to provide in-patient care through
contract with existing health care facilities.--
Both HPH and Odyssey intend to use scatter beds and
to contract with existing health care providers.
● Commitment to serve homeless and AIDS patients, as
well as patients without caregivers.--Both
applicants have shown a history of serving such
groups and commit to do so in Pinellas County.
● Not Applicable.
● Commitment to provide services not covered by
insurance, Medicare or Medicaid--Both applicants
have a good history of providing indigent care and
commit to do so in Pinellas County.
B. Consistency with Plans; Letters of Support
60. Florida Administrative Code Rule 59C-1.0355(5)
requires consideration of the applications in light of the
local
and state health plans. The local health council plans are
no
longer a factor in this proceeding. The state health plan
addresses the concept of letters of support. Again, as
neither
applicant proved special circumstances warranting approval of
a
new hospice program, this comparison is unnecessary.
However,
there was considerable testimony and argument at final
hearing
concerning letters of support and the issue deserves some
discussion.
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30
61. Each applicant provided letters of support. In fact,
HPH's application contained over 250 letters of support from
a
wide range of writers, including physicians, nurses, ALF and
nursing home administrators, and others. AHCA even
complimented
HPH's letters of support in both quantity and quality. Such
letters are, of course, hearsay and cannot be relied upon to
make findings as to the statements made herein. However, the
fact that HPH generated so many letters of support is a fact
that lends additional credence to their application.
Odyssey's
letters of support, by comparison, were much fewer in
number.
The letters were also dated, having come from a CON
application
filed some three years prior to the application currently at
issue. The content of those letters would also be hearsay.
And
in the present action, the age of the letters would reduce
their
significance as support for the Odyssey CON application at
issue.
C. Statutory Review Criteria
62. The Agency reviews each CON application in context
with the criteria set forth in Subsection 408.035(1)(a)
through (j), Florida Statutes:
Subsection 408.035(1)(a), Florida Statutes--The need
for the health care facilities and health services
being provided
63. There was no need projected by AHCA under its need
methodology.
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31
64. Neither party established the existence of special
circumstances warranting approval of a new hospice program
in
Service Area 5B.
Subsection 408.035(1)(b), Florida Statutes--
availability, quality of care, accessibility, and
extent of utilization
65. Suncoast is the sole provider of hospice services in
Service Area 5B. This service area is one of the largest in
the
State. There are other service areas which have a single
hospice provider, but Service Area 5B is the largest service
area to be served by a single hospice provider. Service Area
5B
experienced the fourth largest number of deaths in the State
in
2008, an important factor in the provision of hospice care.
66. Suncoast has 15 interdisciplinary care teams, each of
which, lead by a patient-family care coordinator, includes
RNs,
home health aides, counselors, volunteers, and a chaplain.
Suncoast has a north community service center in Palm Harbor
that houses four patient care teams. On the back of that
property is Brookside, Suncoast's newly built 30-bed
in-patient
facility. In central Pinellas County, Suncoast has its main
service center with six patient care teams along with
administrative and support offices. Suncoast has a pharmacy,
as
well as durable medical equipment and infusion departments,
located in Largo. In central Pinellas County is Suncoast's
ten-acre, 72-bed Woodside facility. Thirty-six of the beds
are
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32
in-patient and 36 are residential. On the back of the
property
are 18 efficiency apartments called "Villas" with separate
living, sleeping and kitchen areas. When patients become too
ill to remain at home, their spouse may move into a villa
until
the patient dies.
67. In the southern portion of the county is Suncoast's
south community service area which houses five patient care
teams, as well as "ASAP." ASAP is Suncoast's AIDS Service
Association of Pinellas County which serves and provides
support
to patients with HIV and AIDS.
68. Suncoast also has in-patient contracts with every
hospital in Pinellas County and a number of contracts with
nursing homes for in-patient care. Patients may receive
continuous care in the home whether that is a residence, an
ALF,
or a nursing home or may receive care in the Suncoast
in-patient
unit.
69. There is disagreement over whether Suncoast accurately
reports its admissions and whether all reported admissions
are
actually hospice patients. Further, HPH points out that its
penetration rate in counties where it operates is much
higher
than Suncoast's penetration rate in Pinellas County.
However,
the most credible evidence is that Suncoast is effectively
serving the needs of hospice-eligible residents of Service
Area 5B.
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33
Subsection 408.035(1)(c), Florida Statutes--ability
to provide quality of care and record of providing
quality of care
70. Both applicants satisfy this criterion. Both
applicants can provide a broad range of quality hospice
services
to all its patients.
71. HPH touts its physician model, including physician
home visits, as evidence of its commitment to quality care.
Physician visits have been proven to help patients get pain
under control more quickly, an important factor considering
ten
percent of hospice patients die within 48 hours of
admission.
72. Odyssey is a large company and has extensive
operational policies and procedures concerning provision of
quality care to its patients. Odyssey has a program called
Care
Beyond which it believes will enhance quality care in
Service
Area 5B.
73. Odyssey has had some regulatory violations while HPH
has not. However, Odyssey has resolved those violations
favorably.
Subsection 408.035(1)(d), Florida Statutes--
availability of resources, including health personnel,
management personnel, and funds for project
accomplishment and operation
74. The parties stipulate that both applicants meet this
criterion.
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34
Subsection 408.035(1)(e), Florida Statutes--extent to
which proposed services will enhance access to health
care for residents of the service district
75. Both applicants satisfy this criterion.
76. HPH is the existing provider of hospice services in
the adjacent service area to Service Area 5B. HPH can use
its
existing contacts in Service Area 5B to extend its service
to
residents of that area. HPH has already established
relationships with Airamed Corporation and its 11 nursing
homes
and ALF in Service Area 5B. HPH also commits to being more
directly involved with smaller ALFs in Pinellas County.
77. Odyssey is a large hospice with significant resources
which can be utilized to enhance access for residents of
Service
Area 5B. It commits to bring quality personnel to Service
Area 5B as part of its successful start-up procedures.
Subsection 408.035(1)(f), Florida Statutes--immediate
and long-term financial feasibility
78. The parties stipulate that both applicants meet this
criterion.
Subsection 408.035(1)(g), Florida Statutes--extent to
which proposal will foster competition that promotes
quality and cost-effectiveness
79. Both applicants are established providers of hospice
services. The absence of any other hospice provider in
Pinellas
County means there is no effective competition. If either of
the applicants was granted a CON for a new hospice in
Service
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35
Area 5B, it would likely foster competition and promote
quality
and cost-effectiveness.
Subsection 408.035(1)(h), Florida Statutes--costs
and methods of construction, etc.
80. This criterion is not applicable to the instant case.
Subsection 408.035(1)(i), Florida Statutes--the
applicant's past and proposed provision of health care
services to Medicaid patients and the medically
indigent
81. Both applicants meet this criterion.
82. HPH offers extensive services that go beyond the
Medicare requirements of participation. It also operates
"Hospice Houses" which provide room and board to homeless
hospice patients.
83. Odyssey's record of indigent care is evidenced by the
fact that approximately 55 percent of its non-Medicare net
revenue is from Medicaid, and 9.5 percent of its
non-Medicare
services are provided to indigent patients.
Subsection 408.035(1)(j)--designation as a Gold Seal
Program
84. This criterion is not applicable to the instant case.
VII. Ultimate Findings of Fact
85. The Agency determined that there is no need for an
additional hospice in the service area based upon the fixed
need
pool formula.
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36
86. Neither applicant was able to establish the existence
of special circumstances warranting approval of a new hospice
in
the service area.
87. There is no specific terminally ill population which
is not receiving hospice services that has been identified
by
the applicants.
88. There is no persuasive evidence that there is an
identifiable number of individuals who were referred to
hospice,
but were not admitted within 48 hours.
CONCLUSIONS OF LAW
Jurisdiction
89. The Division of Administrative Hearings has
jurisdiction over the parties to and the subject matter of
this
proceeding. §§ 120.569, 120.57(1), and 408.039(5), Fla.
Stat.
Burden of Proof
90. As applicants, HPH and Odyssey each has the burden of
proving, by the preponderance of the evidence, entitlement
to
a CON. Boca Raton Artificial Kidney Ctr., Inc. v. Dep't of
Health & Rehabilitative Servs., 475 So. 2d 260 (Fla. 1st
DCA
1985); § 120.57(1)(j), Fla. Stat.
91. The award of a CON to an applicant must be based on a
balanced consideration of all applicable and statutory rule
criteria. Balsam v. Dep't of Health & Rehabilitative
Servs.,
486 So. 2d 1341 (Fla. 1st DCA 1986). "[T]he appropriate
weight
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37
to be given to each individual criterion is not fixed, but
rather, must vary on a case-by-case basis, depending upon
the
facts of each case." Collier Med. Ctr., Inc. v. Dep't of
Health & Rehabilitative Servs., 462 So. 2d 83, 84 (Fla. 1st
DCA
1985).
92. An administrative hearing involving disputed issues of
material fact is a de novo proceeding in which the
Administrative Law Judge independently evaluates the
evidence
presented. Fla. Dep't of Transp. v. J.W.C. Co., Inc., 396
So. 2d 778, 787 (Fla. 1st DCA 1981); § 120.57(1), Fla. Stat.
The Agency's preliminary decisions on CON applications,
including its findings in the SAAR, are not entitled to a
presumption of correctness. Id.
93. Pursuant to the Agency's hospice rule need
methodology, the Agency determined that there is no
projected
need for a new hospice program in Service Area 5B for the
applicable planning horizon.
94. The statutory review criteria are set forth in
Subsections 408.035(1)(a) through (j), Florida Statutes. As
shown by the Findings of Fact herein, both HPH and Odyssey
generally satisfy the criteria and either one of them could
be
approved if there was a numeric need under the FNP or if
there
was a showing of special circumstances warranting a new
hospice.
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38
That is, neither applicant had a fatal flaw in its CON
application.
95. Subsection 408.043(2), Florida Statutes, provides:
HOSPICES. When an application is made for
a certificate of need to establish or to
expand a hospice, the need for such hospice
shall be determined on the basis of the need
for and availability of hospice services in
the community. The formula on which the
certificate of need is based shall discourage
regional monopolies and promote competition.
The inpatient hospice care component of a
hospice, which is a freestanding facility, or
a part of a facility, which is primarily
engaged in providing inpatient care and
related services and is not licensed as a
health care facility shall also be required
to obtain a certificate of need. Provision
of hospice care by any current provider of
health care is a significant change in
service and therefore requires a certificate
of need for such services.
There was no persuasive evidence presented at final hearing
that
Suncoast, as the only existing provider of hospice services
in
Pinellas County, was a regional monopoly. It is, like
Odyssey,
a large provider of hospice services, but there was no
showing
that it is a regional monopoly, per se.
96. Regarding the statutory review criteria set forth in
Subsections 408.035(1)(a) through (j), Florida
Administrative
Code Rule 59C-1.0355(3)(b) states:
Conformance with Statutory Review Criteria.
A certificate of need for the establishment
of a new hospice program, construction of a
freestanding inpatient hospice facility, or
change in licensed bed capacity of a
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39
freestanding inpatient hospice facility,
shall not be approved unless the applicant
meets the applicable review criteria in
Sections 408.035 and 408.043(2), F.S., and
the standards and need determination criteria
set forth in this rule. Applications to
establish a new hospice program shall not be
approved in the absence of a numeric need
indicated by the formula in paragraph (4)(a)
of this rule, unless other criteria in this
rule and in Sections 408.035 and 408.043(2),
F.S., outweigh the lack of a numeric need.
97. The publication of fixed need is not determinative,
and creates a rebuttable presumption as to need. Here, the
revised published need of zero creates a rebuttable
presumption
of no need. The applicants may present evidence to rebut the
presumption and demonstrate special circumstances that
warrant
approval of a CON in the absence of published need. See
Humhosco, Inc. v. Dep't of Health and Rehab. Servs., 476 So.
2d
258, 261 (Fla. 1st DCA 1985))(This was a hospital case
wherein
the court indicated that a lack of numeric need under the
rule
formula establishes a rebuttable presumption of no need);
Humana, Inc. v. Dep't of Health and Rehab. Servs., 469 So.
2d
889, 891 (Fla. 1st DCA 1985), a hospital case; and Balsam v.
Dep't of Health and Rehab. Servs., 486 So. 2d 1341 (Fla. 1st
DCA
1986) a hospital case.4
98. There being no numeric need for a new hospice in this
case, HPH or Odyssey must establish the existence of special
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40
circumstances, which are addressed in Florida Administrative
Code Rule 59C-1.0355(4)(d), which states:
Approval Under Special Circumstances. In
the absence of numeric need identified in
paragraph (4)(a), the applicant must
demonstrate that circumstances exist to
justify the approval of a new hospice.
Evidence submitted by the applicant must
document one or more of the following:
1. That a specific terminally ill
population is not being served.
2. That a county or counties within the
service area of a licensed hospice program
are not being served.
3. That there are persons referred to
hospice programs who are not being admitted
within 48 hours. The applicant shall
indicate the number of such persons.
99. AHCA interprets subsection (4)(d)(1) of the Rule to
allow for the demonstration that the specific terminally ill
population groups identified by HPH in its CON application
are
underserved populations, including: (1) patients residing in
ALFs; (2) patients in need of continuous care; and (3)
medically
complex patients. This interpretation is not clearly
erroneous
and, therefore, must be followed. That is, HPH must be
allowed
to present evidence as to the identified groups and, if
successful, to rely upon the lack of hospice services to
those
groups to warrant approval of a new hospice in Service Area
5B.
However, the evidence provided by HPH at final hearing does
not
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41
establish the existence of terminally ill patients within
the
identified groups who are not receiving hospice services.
100. The special circumstances rule has been construed as
follows:
The special circumstances rule requires
applicants to demonstrate at least one of
the three listed reasons for such
circumstances. However, it does not
prohibit applicants from showing that other
"not normal circumstances" exists in the
service area.
The special circumstances rule does not
require an applicant to show that the needs
of a specific population or a county are
"unserved" or totally unmet. To the
contrary, an applicant is entitled to show
that an underserved population or that an
underserved county warrant consideration as
under the rule. [Emphasis added.]
See Hope of SW Fla. v. Agency for Health Care Admin., 2005
Fla.
Div. Admin. Hear., LEXIS 745, *90-91; Case No. 03-4067CON,
(DOAH Jan. 24, 2005; AHCA May 5, 2005)(citing to Big Bend
Hospice, supra, 2002 Fla.Div.Adm.Hear. LEXIS at *76-77).5
101. The Applicants did not meet the threshold of
satisfying at least one of the three enumerated reasons
warranting approval. Thus, other circumstances that might
exist
in Service Area 5B are not particularly relevant to this
proceeding.6 HPH expended a considerable amount of time at
final
hearing and in its Proposed Recommended Order arguing that
Suncoast misreported its admissions data, and thereby
resulting
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42
in an erroneous need determination by AHCA. Specifically,
HPH
argued that Suncoast double-counted some admissions and
reported
admissions differently than other hospice providers around
the
state. Those erroneous data, argued HPH, would result in a
fixed need pool of one if they were corrected. However,
those
arguments, even if true, cannot now alter the existing fixed
need pool of zero and are, therefore, outside the
jurisdiction
of the Administrative Law Judge in the present case. See
Endnote 2.
102. No specific terminally ill population was shown not
to have hospice services available to it. There was no
showing
that any ALF residents, medically complex patients, or
patients
receiving continuous care were terminally ill and were not
being
served.
103. There is only one county in the service area, thus,
there are no counties within Service Area 5B that are not
being
served.
104. There is no proof that persons referred to hospice
were not being admitted within 48 hours. There was no
quantification of persons allegedly falling within this
category. The concepts of "referral" and "admission" were
not
universally defined by the parties.
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43
Impermissible Amendments to CON Applications
105. The parties claim that the applicants impermissibly
amended their respective CON applications. For example,
Odyssey
claims that HPH offered evidence of several hospice services
it
intends to offer that were either not mentioned in the
application or were only casually mentioned.
106. The alleged amendments do not materially change the
respective applications or change the proposed program. The
evidence presented by Odyssey and HPH is the type of
evidence
routinely presented to compare co-batched applicants and to
respond to criticisms by a co-batched applicant and are not
impermissible amendments. See generally Big Bend Hospice,
Inc.
v. Agency for Health Care Admin., 2002 Fla.Div.Admin.Hear.
LEXIS
at *76-81.
Consideration of the Statutory and Rule Criteria
107. Neither of the applicants has proven the existence of
a special circumstance. However, on balance, HPH best
satisfied
the applicable statutory criteria due to its provision of
hospice services in close proximity to Pinellas County, its
exiting contacts with health care providers in Pinellas
County,
and its overall familiarity with Service Area 5B.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of
Law, it is
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44
RECOMMENDED that a final order be entered by the Agency for
Health Care Administration denying the CON applications of
HPH
South, Inc. (No. 10066), and Odyssey Healthcare of Collier
County d/b/a Odyssey Healthcare of Central Florida (No.
10068).
DONE AND ENTERED this 30th day of November, 2010, in
Tallahassee, Leon County, Florida.
S R. BRUCE MCKIBBEN
Administrative Law Judge
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847
www.doah.state.fl.us
Filed with the Clerk of the
Division of Administrative Hearings
this 30th day of November, 2010.
ENDNOTES
1/ Unless specifically stated otherwise herein, all
references
to Florida Statutes will be to the 2009 codification.
2/ Lack of competition is not actually a special
circumstance
identified by rule, but Odyssey addresses it as such.
3/ Further, whether or not Suncoast made errors in reporting
is
not a special circumstance, but would more appropriately be
addressed in a challenge to the FNP. A FNP challenge
initiated
for the batching cycle at issue in this proceeding was
commenced
by HPH and Odyssey, but the challenge was voluntarily
dismissed.
4/ There have been instances when an Administrative Law
Judge
has considered "not normal" situations in a hospice case
where
there are no special circumstances shown. See Big Bend
Hospice,
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45
Inc. v. Agency for Health Care Admin., Case Nos. 01-0445CON
and
02-0880CON (DOAH Nov. 7, 2002; AHCA March 18, 2003,), aff'd,
904 So. 2d 610 (Fla. 1st DCA 2005). However, in the rule
challenge proceeding upholding the special circumstances
rule,
the ALJ expressly held: "The Rule [59C-1.0355(4)(d)]
requires
that an applicant for a "special circumstances" CON
demonstrate
the existence of any one of three factors." Hernando-Pasco
Hospice, Inc. v. Agency for Health Care Administration, Case
No. 01-4460RX (DOAH Mar. 17, 2003). HPH did not prove the
existence of special circumstances; its reliance on possible
data reporting errors by Suncoast does not create a "not
normal"
situation.
5/ The use of the "not normal" terminology in this context
is
somewhat erroneous. That term appears in subsections (4)(b)
and
(4)(c) of the Rule 59C-1.0355 and actually addresses
situations
in which need has been found under the FNP, but there are
other
circumstances which may prohibit a new hospice program from
being approved. The Rule does not specifically allow
approval
of a new program by way of "not normal" circumstances;
rather,
it prohibits approval in some instances.
6/ Even if the Agency or a review court determined that the
applicants could rely upon "not normal" circumstances to
establish a need, neither applicant in this case provided
evidence to support a new hospice in Service Area 5B.
COPIES FURNISHED:
Thomas W. Arnold, Secretary
Agency for Health Care Administration
Fort Knox Building III, Mail Stop 3
2727 Mahan Drive, Suite 3431
Tallahassee, Florida 32308
Justin Senior, General Counsel
Agency for Health Care Administration
Fort Knox Building III, Mail Stop 3
2727 Mahan Drive, Suite 3431
Tallahassee, Florida 32308
Richard J. Shoop, Agency Clerk
Agency for Health Care Administration
Fort Knox Building III, Mail Stop 3
2727 Mahan Drive, Suite 3431
Tallahassee, Florida 32308
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46
Lorraine M. Novak, Esquire
Agency for Health Care Administration
Fort Knox Building III, Mail Stop 3
2727 Mahan Drive, Suite 3431
Tallahassee, Florida 32308
Geoffrey D. Smith, Esquire
Susan C. Smith, Esquire
Corrine Porcher, Esquire
Smith & Associates
2873 Remington Green Circle
Tallahassee, Florida 32308
Paul H. Amundsen, Esquire
Julia Smith, Esquire
Ruden McClosky, P.A.
215 South Monroe Street, Suite 815
Tallahassee, Florida 32301
Mark A. Emanuele, Esquire
Deborah S. Platz, Esquire
Panza, Maurer & Maynard, P.A.
Bank of America Building, Third Floor
3600 North Federal Highway
Fort Lauderdale, Florida 33308
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions
within
15 days from the date of this Recommended Order. Any
exceptions
to this Recommended Order should be filed with the agency
that
will issue the Final Order in this case.