00-001067CON Hernando-Pasco Hospice, Inc. vs. Agency For Health Care Administration Status: Closed Recommended Order on Friday, May 18, 2001.

Summary: Second publication of fixed need pool of zero for hospices in Service Area 6A should stand.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HERNANDO-PASCO HOSPICE, INC. , )

)

Petitioner , )

)

vs. ) Case No. 00-1067

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION , )

)

Respondent , )

)

and )

)

LIFEPATH, INC., d/b/a LIFEPATH )

HOSPICE , )

)

Intervenor. )

__________________________________)

RECOMMENDED ORDER

This case was heard by David M. Maloney, Administrative Law

Judge of the Division of Administrative Hearings, from

January 17, 2001, through January 23, 2001, in Tallahassee,

Florida.

APPEARANCES

For Petitioner : Gerald B. Sternstein, Esquire

Frank P. Rainer, Esquire

Sternstein , Rainer & Clarke, P.A.

101 North Gadsden Street

Tallahassee, Florida 32301

For Respondent : Richard A. Patterson, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building Three, Suite 3431

Tallahassee, Florida 32308-5403

For Intervenor : H. Darrell White, Esquire

McFarlain , Wiley, Cassedy & Jones, P.A.

215 South Monroe Street, Suite 600

Post Office Box 2174

Tallahassee, Florida 32316-2174

STATEMENT OF THE ISSUE

Whether the numeric need for hospice programs in health

planning subdistrict 6A for the March 2000, batching cycle should

be one, as originally published by the Agency for Health Care

Administration, or zero, as published in a revision of the

original publication?

PRELIMINARY STATEMENT

On March 9, 2000, the Division of Administrative Hearings

(Division) received a notice from the Agency for Health Care

Administration ("AHCA" or the "Agency"). Dated two days earlier,

the notice advised the D ivision that it had received a request

for a formal administrative hearing from Hernando-Pasco, Inc.

Attached to the notice was a copy of Hernando-Pasco's

request. Denominated a petition for formal administrative

hearing, the petition contests the revision of a published fixed

need pool in health planning subdistrict 6A (Hillsborough County)

for hospice programs. The revision reduced the sub-district's

numeric need from one as originally published to zero.

The notice from the Agency also requested that the D ivision

assign the matter to an administrative law judge to conduct all

proceedings required by law and to submit a recommended order to

the Agency. The request was granted. The matter was assigned

Case No. 00-1067, the undersigned was designated as the

administrative law judge to conduct the proceedings, and an

initial order was issued.

Pursuant to a response to the initial order, the case was

placed in abeyance until July 15, 2000. Eventually, the case was

consolidated with Case Nos. 00-3203 and 00-3205, an order of pre-

hearing instructions was issued and the consolidated cases were

set for hearing in November 2000. In the meantime, Life P ath,

Inc.'s petition to intervene was granted. LifePath, in turn,

moved for a continuance. The motion was granted. Final hearing

was reset for January 17, 2001, and commenced as scheduled.

At the hearing, Hernando -Pasco presented the testimony of:

Mr. Rodney Taylor, expert in hospice administration and

operations; Dr. David McGrew , expert in physician services for

hospices; Ms. Kim Smith, expert in nursing and hospice nursing

administration; Ms. Rosemarie Milks, expert in administration of

hospice branch offices; Mr. Tom Beason , expert in hospice

bereavement programs; and Ms. Sharon Gordon- Girvin , expert in

health care planning. Hernando-Pasco Exhibits 4-18, 20-31, pages

62-66 of Exhibit 32, Exhibit 33 and portions of Exhibit 1 were

received into evidence. Hernando-Pasco Exhibit 19 was rejected

and proffered.

LifePath presented the testimony of Ms. Kathy Fernandez,

expert in hospice administration and hospice clinical

administration and Mr. Jay Cushman, expert in health care

planning. LifePath E xhibits 6-34 were received into evidence.

The Agency presented the testimony of Mr. Jeffrey N. Gregg,

expert in health care planning. AHCA's Exhibit 1 was received in

evidence. Official recognition was taken of Rule 59C-1.008(2),

Florida Administrative Code, marked as OR Ex. 1.

During the hearing, pursuant to an ore tenus motion by the

parties, Case No. 00-1067 was severed from Case Nos. 00-3203 and

00-3205. The two latter cases were placed in abeyance and

hearing proceeded to conclusion on Case No. 00-1067.

The transcript of the hearing was filed on February 22,

2001. The parties submitted proposed recommended orders on

April 13, 2001. The proposals were timely filed.

FINDINGS OF FACT

a. The Parties

1. Petitioner, Hernando-Pasco Hospice, Inc., was formed in

1982 and commenced service in 1984. It is licensed to provide

hospice services in Service Areas 3D and 5A, Hernando and Pasco

Counties, respectively. On average, it serves 500 patients per

day.

2. Hernando-Pasco has three offices for the delivery of

care in its service areas. It operates three hospice residential

houses with a total of 23 beds. The houses are in Hudson, Dade

City, and Spring Hill. Hernando-Pasco also operates an inpatient

unit at a nursing home in Brooksville serving Hernando County.

3. LifePath Hospice is a not-for-profit community

organization founded in 1983. It is licensed to provide hospice

services in two service areas, 6A and 6B. Service Area 6A is

Hillsborough County. Service Area 6B is comprised of three

counties : Polk, Highlands, and Hardee. LifePath serves 820

patients on an average daily basis. In calendar year 2000, it

served 4,002 patients.

4. LifePath provides hospice service without regard to the

patient's ability to pay. The services are provided, moreover,

regardless of the circumstances in which the patient is found so

long as the patient is in Service Area 6A or 6B. For example,

services are provided to the patient whether at home, in another

residential setting, in an inpatient facility such as a hospital

or even if homeless. In other words, LifePath provides hospice

service to patients wherever the patient might be within

LifePath's two service areas.

5. Similarly, Hernando-Pasco Hospice provides its hospice

services to hospice patients at home, in residential settings,

and in in-patient settings. It does not matter in what setting

the hospice patient is found at the time of the request for

hospice services as long as the patient is located within the

service areas where Hernando-Pasco Hospice is authorized to

provide its services. Hernando-Pasco delivers services within

its authorized service areas "wherever the patient may be."

(Tr. 64). Hospice services are also delivered by Hernando-Pasco

Hospice to the homeless, although requests by the homeless for

hospice services tend to be few. As Mr. Taylor, CEO of Hernando-

Pasco Hospice explained at hearing:

Fortunately, the few of them [the "homeless"]

are able to go to an adequate facility, but

some of them prefer to live in cardboard

boxes . . . things of that nature. We go

where they are.

* * *

[I ]f they want to be living in a cardboard

box, we will take service to that cardboard

box for them.

(Tr. 248, 249).

6. The Agency for Health Care Administration is the single

state agency responsible for the administration of certificate of

need laws in Florida. In conjunction with these duties, it

determines semi-annually the net numeric need for new hospice

programs pursuant to Rule 59C-1.0355, Florida Administrative Code

("the Rule.")

b. Numeric Need Under The Rule

7. Rule 59C-1.0355, Florida Administrative Code, entitled

" Hospice Programs " was adopted on April 17, 1995. Its purpose is

to ensure "the availability of hospice programs as defined in

this rule to all persons requesting and eligible for hospice

services, regardless of ability to pay." Rule 59C-1.033(1),

Hernando-Pasco Ex. 9. The Rule establishes criteria and

standards for assessing the need for new hospice programs. For

determining whether a new hospice is needed in a service area,

the Rule includes a numeric need formula.

8. The numeric need formula contains two terms: " HPH" and

"HP." " HPH" is defined as "the projected number of patients

electing a hospice program in the service area during the 12-

month period beginning at the planning horizon." ( Hernando Ex.

9). "HP" is defined as "the number of patients admitted to

hospice programs serving a service area during the most recent

12-month period ending on June 30 or December 31. ( Id. )

9. If the number of patients denoted as HPH exceeds the

number denoted by HP by 350 or more, then a numeric need is

indicated for the service area. The formula is expressed as:

HPH - HP > 350

[Rule 59C-1.0355(4)(a), Hernando-Pasco Ex. 9] .

10. The "350" figure in the Rule's numeric need formula "is

a threshold value to determine whether any difference that may

exist between HPH and HP rises to a significant level. It

represents a minimum volume that would be associated with a

hospice that would be large enough to be financially viable and

still offer comprehensive services to the patients who request

hospice care." (Tr. 782).

c. AHCA's Calculation and First Fixed Need Pool Publication

11. On July 12, 1999, LifePath sub mitted the first of two

"Semi-annual Reports of Hospice Utilization" for calendar year

1999 to the Agency. The report showed a total of 1,406 new

patients admitted by LifePath for the period January 1, 1999,

through June 30, 1999. The first half of the year total was

broken down for LifePath's two service areas; the number of

admissions in Service Area 6A totaled 1,282, and the number of

admissions in Service Area 6B totaled 124. The report is signed

in a space for the administrator of LifePath to show that it had

been reviewed and approved.

12. On January 7, 2000, LifePath filed its second

utilization report for calendar year 1999. The second semi-

annual report, covering the period from July 1, 1999, through

December 31, 1999, showed a total of 1,368 patients admitted for

the second half of 1999. Also broken down into admissions by

service area, the report indicated that 1,228 of the admissions

were in Service Area 6A and 140 of the admissions were in Service

Area 6B for the second half of 1999. This report also shows

review and approval by a LifePath Administrator, in this second

case, by Kathy L. Fernandez, LifePath's CEO.

13. With the two utilization reports in hand, AHCA

calculated numeric need for the two service areas served by

LifePath pursuant to the Rule's formula. With regard to Service

Area 6A, Hillsborough County, AHCA determined HPH to be 2,871.

(The HPH figure for Hillsborough County is not in dispute in this

proceeding.) Based on LifePath's utilization reports, AHCA

determined HP for Service Area 6A, Hillsborough County, to be

2,510. Inserting these two figures into the appropriate places

in the formula yielded a resulting difference of 360. Since the

result was a positive difference of 350 or more, the result

indicated a numeric need for one more hospice in Service Area 6A.

Different Information

14. The Agency prepared to publish a hospice fixed need

pool of "one" for Service Area 6A on January 28, 2000. While

preparation was underway, LifePath's CEO Ms. Fernandez was

informed of what the publication would show. Surprised, she

asked her staff to investigate the utilization data LifePath had

submitted to AHCA. The investigation conducted, the results were

reported to Ms. Fernandez. In Ms. Fernandez' words, she

realized:

there was an error. When [staff] ran a

simple computer report for the admissions

that were admitted in 6A and 6B, they came

back and told me the numbers that they had

run on the computer were different than the

numbers that we turned into AHCA.

(Tr. 609) According to the new computer-run numbers, LifePath

had admitted 32 more patients during Calendar Year 1999 in

Service Area 6A than it had reported.

15. The difference in the new numbers and the ones reported

to AHCA concerned hospice patients who had been admitted to

LifePath while patients of hospitals located in Hillsborough

County but whose permanent residences were outside Hillsborough

County and, conversely, patients who had been reflected as 6A

admissions but had been admitted while outside Hillsborough

County.

16. The new numbers reflected where patients were located

at the time of admission as opposed to where the patients

permanently resided. Forty patients were involved. Thirty-six

of them had been admitted to LifePath while physically present in

Service Area 6A, that is, at the time of admission, they were

patients in Hillsborough County hospitals. Another four patients

had been reported to have been admitted in Service Area 6A, but

had actually been admitted while physically present in Service

Area 6B. In consideration of location at time of admission

rather than permanent residence or home as the patient's place of

admission, the new numbers, therefore, showed a net change of 32

patients that in LifePath's view should have been regarded as

Service Area 6A admissions above the reported number of Service

Area 6A admissions.

17. The utilization reports submitted to the Agency, unlike

the new numbers, did not show admissions by location of the

patient at the time of admission because the reports had

determined admissions by which LifePath team had cared for the

patients. The 36 patients admitted while in Hillsborough County

hospitals but omitted from the utilization reports as 6A

admissions had been cared for by LifePath's Rose Team, a team

"geographically placed in 6B." (Tr. 610). They were counted in

the reports, therefore, as 6B admissions without regard to the

fact that the admissions had occurred at a moment when the

patients were actually located in Service Area 6A as Hillsborough

County hospital patients. The same was true of the four patients

reported to have been 6A admissions. They were all physically

located in Service Area 6B at the time of their admission. In

each of these cases, the teams were assigned on the basis of the

patient's home address at the time of admission rather than the

patient's actual location at the time of admission.

18. In light of the new numbers that reflected a different

approach and an understanding of the difference between those

numbers and the ones LifePath had submitted by way of the

reports, LifePath concluded that its utilization reports had

underreported 6A admissions for calendar year 1999 by 32

patients. Armed with this new information and what it viewed as

a sounder approach to the reporting of admissions, LifePath set

out to correct what it hoped AHCA would see as an error.

19. On January 26, 2000, two days in advance of the

scheduled publication of the fixed need pool for hospice programs

in the State , LifePath caused to be hand-delivered to the Agency,

a letter from its attorney. In pertinent part, the letter reads

as follows:

Enclosed . . . is correspondence and a packet

of information . . . which notifies the

Agency of mistakes . . . made in LifePath's

last two [reports].

This information included Patient Data Sheets

from LifePath's information system for 36

patients who were admitted and cared for in

Service Area 6A (Hillsborough County), but

who were mistakenly counted as Service Area

6B patients. Also, enclosed are Data Sheets

for 4 patients who were admitted and cared

for in Service Area 6B ( Polk County), but who

were mistakenly counted as Service Area 6A

patients . . . . The error occurred when

patients were mistakenly counted by nursing

team ( e.g. , the Rose and Yellow teams),

rather than strictly by geographic location

of where the patient received his/her care.

The net result will be an addition of 32

patients to Service Area 6A and a reduction

of 32 patients from Service Area 6B.

It is respectfully requested that, based upon

this new information, your office correct the

upcoming fixed need pool projection for

Hospice Service Area 6A, scheduled to be

published on January 28, 2000 and, instead of

publishing a need for one (1) new hospice

program in Service Area 6A, publish a need

for zero (0) new hospice programs in Service

Area 6A for the upcoming CON batching cycle.

( Hernando -Pasco Ex. No. 15).

20. The forty Patient Data Sheets attached to the letter

bear the title "Patient Referral Data." Below the title is the

time that the data was generated by the computer. All forty

sheets were generated between 10 a.m. and 11 a.m., the morning of

January 26, 2000.

21. As current location, 36 of the sheets list one of a

number of hospitals in Hillsborough County. The majority of the

sheets show the Moffitt Cancer Center as the patient's current

location. Some data sheets of these 36 list other hospitals in

Hillsborough County as the patient's current location : Tampa

General Hospital, St. Joseph's Hospital, Brandon Regional

Hospital, and South Florida Baptist Hospital.

22. The other four data sheets list as "current location"

either Lakeland Regional Medical Center in Polk County or Winter

Haven Hospital in Polk County.

23. The forty referral data sheets generated by LifePath's

information system on January 26, 2000, were not produced in the

customary format used by LifePath. They were reformatted to show

the patient's location at the time of admission (termed "current

location") and to omit the patient's permanent residence or home

address. At hearing, LifePath's CEO candidly stated that the

"Patient Referral Data" sheets were "altered . . . to show the

[patient's] location at the time of admission." (Tr. 612). Some

of the information remained the same on the sheets produced on

January 26 as was customary. Just as Ms. Fernandez testified,

for example, the 36 sheets that show a hospital in Hillsborough

County as the current location list under "Team Code" the Rose

Team, LifePath's team that serves Service Area 6B. The four that

show Polk County as "current location" list the Yellow Team, the

LifePath team that serves Hillsborough County or Service Area 6A,

under "Team Code."

24. The January 26 data sheets' use of the word "current"

to describe the patient's location is a misnomer if applied to

the date the information was generated. The 36 patients with

Hillsborough County locations had passed away by January 26,

2000. On the other hand, the use of the word "current" is

accurate if understood to mean the location at the time of the

referral and admission, a use consistent with the title of the

document as reflecting "referral" data.

Response by the Agency

25. The January 28, 2000, publication proceeded as planned

without change. But, after receiving the information submitted

by LifePath, AHCA published a second "Notice of Hospice Program

Fixed Need Pool." This second publication appeared in Volume 26,

Number 6 of the Florida Administrative Weekly on February 11,

2000. It indicated a revised net need for zero (0) hospice

programs for Service Area 6A.

26. As reflected by the revised publication, AHCA believed

that the second publication correctly determined the net need for

the service area to be zero. The determination is based upon the

Agency's interpretation of Rule 59C-1.0355. As Mr. Gregg, Chief

of the Bureau of Health Facility Regulation, for the Agency

explained at hearing:

[T ]he rule . . . directs us to consider the

place where the patient was prior to

admission.

* * *

For people who have been . . . nursing home

residents, or ALF residents, or in and out of

hospitals prior to being admitted to a

hospice, their actual residence may not be

quite so clear. And so the interpretation is

that it is the place from which they are

referred.

(Tr. 932, 933).

27. With regar d to the 36 patients originally reported as

Service Area 6B admissions but who had been admitted while in a

hospital in 6A, LifePath continued to provide hospice services to

the patients after they returned to a location in Service Area

6B. LifePath's ability to admit in one service area and provide

treatment later in a different service area makes this case

somewhat unusual. There are few hospices in Florida that provide

service in more than one service area. For that reason, the

issues presented in this case have not surfaced in the past. The

more common situation for when a patient is admitted in a

hospital in one service area and provided hospice services there

and then returns to a permanent residence in another service area

would call for the patient to be admitted to two different

hospices at two different times. In such a case, for the sake of

consistency, the Agency "would want to see . . . an admission to

the program in [the service area in which the hospital was

located]" (Tr. 934) and then a second admission to the hospice in

the service area in which the patient had permanent residence

when the patient moved back home or to a location in the second

service area. This expectation of the Agency, however, is not

required by rule. It is one that apparently has emerged in the

context of this case.

LifePath's Transmission of Data to Hernando-Pasco

28. On February 18, 2000, LifePath transmitted to

Mr. Rodney Taylor , the Administrator of Hernando-Pasco Hospice,

referral records for the same forty patients whose referral data

sheets generated on the previous January 26 had been submitted to

the Agency. In its cover letter to Mr. Taylor, Ms. Fernandez

wrote on behalf of LifePath:

I'm enclosing the referral records for the

patients who were inadvertently mis-

classified as to county of admission by

LifePath in 1999. We found a few original

referral records were not filed appropriately

in the medical record, or in error, reflected

the home address versus the hospital in which

they were admitted. In those instances, I am

attaching a portion of the Admission

Assessment or Patient Information Sheet to

which show the actual point of admission. As

you know , if I run a current referral record,

HPMS will show the patient's current address

rather than the point of admission.

( Hernando -Pasco Ex. 16). Unlike the Patient Referral Data

generated January 26, the Patient Referral Data sheets sent to

Mr. Taylor show that they were generated earlier, on various

dates in 1999. Also dissimilar from the sheets produced on

January 26 that had omitted "home address" and had shown only the

location at the time of admission, moreover, the sheets provided

Mr. Taylor show not only a "current location" or a location at

the time of admission but also the patient's home address.

29. No attempt was made by LifePath to hide the fact that

the Patient Referral Data Sheets submitted to AHCA on January 26,

2000, had been generated on that same date rather than any

earlier date as in the case of the information transmitted later

to Mr. Taylor and Hernando-Pasco Hospice. The other main

difference between the two sets of data submitted to the Agency

and to Mr. Taylor, that is, the omission from the data submitted

to AHCA of the patient's home address, was explained by

Ms. Fernandez as an act done for the State's benefit, "so as not

to confuse them." (Tr. 622.)

Other Provisions of the Rule

30. Rule 59C-1.0355 is an extensive rule. The Rule

consists of ten subsections that cover an array of topics related

to hospice programs. In addition to the provisions setting forth

criteria for determination of numeric need, the rule contains a

"definition" section, general provisions related to quality of

care and conformance with statutory criteria, consistency with

plans, required description of the program, construction and

changes in licensed capacities of freestanding hospice

facilities, and grandfathering provisions. Also included in the

Rule is a statement of intent and pertinent to this proceeding,

Subsection (9), which governs semi-annual utilization reports.

31. Subsection (9) of the Rule states:

Each hospice program shall report utilization

information to the agency or its designee on

or before July 20 of each year and January 20

of the following year. The July report shall

indicate the number of new patients admitted

during the 6-month period composed of the

first and second quarters of the current

year, the census on the first day of each

month included in the report, and the number

of patient days of care provided during the

reported period. The January report shall

indicate the number of new patients admitted

during the 6-month period composed of the

third and fourth quarters of the prior year,

the census on the first day of each month

included in the report, and the number of

patient days of care provided during the

reporting period. The following detail shall

also be provided:

(a) For the number of new patients admitted:

1. The 6-month total of admissions under age

65 and age 65 and over by type of diagnosis

( e.g ., cancer; AIDS).

2. The number of admissions during each of

the 6 months covered by the report, by

service area of residence .

(b ) For the patient census on April 1 or

October 1, as applicable, the number of

patients receiving hospice care in:

1. A private home.

2. An adult congregate living facility.

3. A hospice residential unit.

4. A nursing home.

5. A hospital.

( Hernando-Pasco Ex. 9, emphasis supplied).

32. There is no definition of "service area of residence."

The term "service area resident" is used extensively in the

descriptions of the factors that make up HPH, "the projected

number of patients electing a hospice program in the service area

during the 12 month period beginning at the planning horizon."

See Subsection (4)(a) of the Rule.

33. HPH, however, is not in dispute in this proceeding. It

is the other term in the formula that is in dispute: "HP." The

Rule's definition of "HP" does not use the term "service area of

residence." But the definition cross-references to S ubsection

(9) reporting requirements: "(HP) is the number of patients

admitted to hospice programs serving an area during the most

recent 12-month period ending on June 30 or December 31. The

number is derived from reports submitted under subsection (9) of

the rule." Section (4)(a) of the Rule.

34. The Agency interprets "service area of residence" not

to mean the service area where the patient has a "permanent

residence," but the service area which is the patient's "location

at the time of admission."

35. There are good reasons in support of the AHCA's

interpretation. Hospitalized hospice patients come from a

population that has been mobile. Some have permanent residences

in foreign countries, other states (so-called "snowbirds") or in

other counties in the state or different health planning service

areas than the one in which they are hospitalized. Some hospice

patients may have no permanent residence at all, as in the case

of the homeless. To report as admissions only those who reside

permanently in a service area in Florida by that service area and

to not report the patient as an admission when admitted in the

service area in which the patient is hospitalized or located at

the time of admission would omit many admissions. As Mr. Gregg

testified on behalf of the Agency, the numeric need formula

produces the "most accurate projection of need by having the best

data and the most complete data; therefore you would want every

possible admission to be reported." (Tr. 958).

An Additional Contention

36. In addition to contending that the numbers originally

reported by LifePath were correct for calculation of HP and that

the later reported numbers may not be used for calculation of HP,

Hernando-Pasco raises a second, fundamental issue. Hernando-

Pasco contends that the 36 patients did not achieve the status of

admission while in the hospital. According to Hernando-Pasco's

line of thinking, if the patients were ever admitted to LifePath,

it was not until after their return to Service Area 6B. To

address these contentions, it is necessary to examine the

admissions process used by LifePath, whether that process was

applied to the 36 patients, and, ultimately, whether that process

meets the legal requirements for hospice admission.

LifePath's Admissions Process for the Hospitalized Patient

37. Whether hospitalized or not, admission of a patient to

LifePath commences with a physician order or a request from the

patient or family of the patient. A pre-admission visit is

conducted to determine if the patient is eligible for hospice

services. During the visit, a representative of LifePath speaks

with the patient and family to ensure that services have been

requested.

38. In the case of a hospitalized patient, death is often

imminent and occurs in the hospital. LifePath, therefore, does

not wait for the patient to return home or to a residential

setting to commence admission. The formal admission process is

initiated at the hospital by the admissions nurse, a professional

who has received training on how to conduct initial psychosocial,

spiritual and financial assessments to be undertaken during the

admissions process together with the physical assessment.

39. The admitting nurse goes to the location of the patient

where the admissions process takes between two and one-half and

three hours. Because of the length of time required, LifePath's

"admission nurses do [only] two admissions a day." (Tr. 641).

40. If the patient's location is a hospital, the nurse does

a physical assessment and an initial psychosocial, financial, and

spiritual assessment of the patient. Forms for consent of care,

medical exchange of information, and authorization of payment

forms as well as a patient information sheet are completed.

Advance directives are discussed. Prognostic indicators,

criteria set by the state, are reviewed to determine whether the

patient meets admission criteria. Emergency planning is

discussed. A teaching record is prepared. A physician's

referral and plan of treatment are completed and confirmed with

the physician. An interdisciplinary plan of care is initiated.

Referrals of patients, if necessary, are facilitated.

41. For the hospitalized patient for whom end of life is

not imminent and who will have the opportunity to return home,

LifePath's objective is to facilitate that return. Planning for

the discharge of a patient from a hospital is an important

hospice service. Often it involves the ordering of medications

and equipment in anticipation of the patient's return home, two

functions that require admission to the hospice. In such cases,

physician's orders are necessary and a physician will not give a

hospice orders to care for a patient unless the patient is

admitted to the hospice program.

42. For the hospitalized patient for whom death is

imminent, one of the important reasons for admission to hospice

is to qualify the patient's family for the 13 months of

bereavement services hospices are required to provide survivors

under the Medicare hospice benefit. Hospices also admit patients

near death so that they may be provided care as quickly as

possible.

43. A hospitalized patient is considered by LifePath to be

admitted when the physical assessment and at least the initial

psychosocial, spiritual, and financial assessments are conducted

by the admitting nurse, all consent forms are complete and the

hospice takes over the care of the patient in coordination with

the hospital.

44. LifePath's Administrative/Operational Manual with

regard to the subject of "Admission Process" ( see Hernando-Pasco

Exhibit 25) requires more in the way of procedure for an

admission than is done for the typical hospitalized patient. The

manual describes procedure for the admissions process as

consisting of 35 categories of items (Procedures A - Z, and AA

through II), some of which have numerous sub-parts. The process

leads to a Plan of Care. The procedure includes:

W. In conjunction with one additional IDT

member develop the "Plan of Care". Identify

foci and document on the IDT Plan of Care.

Complete a "Hospice Interdisciplinary Plan of

Care Evaluation/Summary" form.

( Id. , emphasis supplied.)

45. Normally, it is the social worker member of LifePath's

interdisciplinary care team, together with the admissions nurse,

who develops the plan of care. According to the "Position

Description" of LifePath's "Hospital Team Patient/Family

Counselor", it is the social worker also who "[w ] orks closely

with the LH Hospital Team RN to assure timely admissions."

( Hernando -Pasco Exhibit 26, Li -He 974).

46. In the case of a hospitalized patient for whom

admission is requested, however, the social worker may not

participate in LifePath's admission process at all. To complete

a full psychosocial assessment and history takes up to three

hours. To do so on the day of admission following the two and

one-half hour to three-hour admissions process conducted by the

nurse frequently "would be cumbersome and overburdening to a

patient and family." (Tr. 644). This is especially true in the

case of the patient for whom death is imminent.

47. In the case of the patient who will have the chance to

return home, the full follow-up psychosocial and spiritual

assessments conducted by social workers and chaplains are often

deferred by patient and family request. Understandably,

conducting the full assessment can be too much for the

hospitalized patient who has just received a prognosis of

terminal illness and the patient's family in the midst of

arrangements for transfer of the patient home and initiation of

the care to be delivered. The family frequently chooses to defer

"to a time when they can sit down and comfortably speak about

what they need to, at a different time, when things are calmer."

(Tr. 647).

48. There may be other complications with a hospitalized

patient, as opposed to a patient admitted at home or in another

setting. Sometimes hospitals do not permit patients to elect the

Medicare hospice benefit while they are inpatients. Nonetheless,

they can still be admitted to the hospice and be provided hospice

services. If the hospital allows the patient to elect hospital

benefits, LifePath is eligible for reimbursement for services

provided on the day of a patient's admission.

49. Once LifePath admits a hospitalized patient, the

LifePath hospital team is notified. The team consists of hospice

nurses, social workers, and a chaplain. The team continues to

see the patient while in the hospital and helps coordinate the

care and, frequently, the discharge of the patient.

The 36 Patients Hospitalized in 6A

50. The 36 patients originally reported by LifePath as

admissions in Service Area 6B were all eligible for admission to

hospice at the time LifePath undertook to admit them to hospice

care. All 36 were admitted while physically located in Service

Area 6A. The admission process for the 36 patients included a

professional initial assessment by the admitting nurse of the

social, psychological, spiritual and financial needs of the

patient as well as a physical assessment.

51. LifePath was not reimbursed by Medicare for 34 of the

patients in question for hospice care in the hospital. Nor did

LifePath seek compensation from Medicare for the care in the

hospital provided these patients. As to those patients who

returned home or were transferred to another residential setting

in Service Area 6B, LifePath received Medicare reimbursement for

the hospice care provided in the residential setting. LifePath

explained that it did not receive Medicare reimbursement for the

care provided during the time the 34 spent in the hospital

because the hospitals would not allow the patients to elect

hospice Medicare benefits while in the hospital. Hospitalized

patients, moreover, LifePath explained, can be admitted as

patients who pay privately without the involvement of a third

party payer.

CONCLUSIONS OF LAW

Jurisdiction

52. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings. Sections 120.569 and 120.57(1), Florida Statutes.

Hospices in General, Chapter 400, Part IV, Florida Statutes

53. The Legislature has made two basic findings with regard

to both terminally ill individuals who are no longer pursuing

curative medical treatment and their families. First, they

"should have the opportunity to select a support system that

permits the patient to exercise maximum independence and dignity

during the final days of life." Section 400.6005, Florida

Statutes. Second, "hospice care provides a cost-effective and

less intrusive form of medical care while meeting the social,

psychological, and spiritual needs" of the patients and their

families. Id.

54. Services provided by hospice programs are governed by

Section 400.609, Florida Statutes. The services to be provided

constitute a continuum "tailored to specific needs and

preferences of the patient and family at any point in time

throughout the length of care for the terminally ill patient and

during the bereavement period." Section 400.609, Florida

Statutes. Physician services may be provided directly by the

hospice or through contract but the treatment by the physician

must be palliative in nature (as are hospice services in general)

as opposed to curative medical treatment. Pain management would

be an example of palliative services that a physician might offer

a hospice patient. Core hospice services, provided by the

hospice team, are: "nursing services, social work services,

pastoral or counseling services, dietary counseling, and

bereavement counseling services." Section 400.609(1)(a), Florida

Statutes.

55. Other services, such as physical therapy, home health

aide services, provision of medical supplies and durable medical

equipment, and funeral services must be provided or arranged for

by hospices as needed to meet the palliative and support needs of

the patient and family.

56. "Hospice care and services provided in a private home

shall be the primary form of care." Section 400.609(2), Florida

Statutes (emphasis supplied). In keeping with this statutory

declaration, "[t ]he goal of hospice home care shall be to provide

adequate training and support to encourage self-sufficiency and

allow patients and families to maintain the patient comfortably

at home for as long as possible." "Home" may be a place of

temporary or permanent residence. See Section 400.601(6),

Florida Statute, the definition of "Hospice Services." But

hospice services in a hospice inpatient facility or with

contracted institutions (such as a hospital) also qualify as

hospice services for purposes of the statute. Id.

57. It is recognized throughout Chapter 400, Part VI,

devoted to hospices, moreover, that hospice services may be

provided outside the home even though in-home care is the primary

form of hospice care. Section 400.609, Hospice services , for

example, recognizes three places for hospice services to be

rendered : 1) at the patient's home; 2) in a residential setting

other than the home; and 3) in an inpatient facility (such as a

hospital):

400.609 Hospice services. -- Each hospice

shall provide a continuum of hospice services

which afford the patient and the family of

the patient a range of service delivery which

can be tailored to specific needs and

preferences of the patient and family at any

point in time throughout the length of care

for the terminally ill patient and during the

bereavement period. These services must be

available 24 hours a day, 7 days a week, and

must include:

* * *

(2 ) HOSPICE HOME CARE.-–Hospice care and

services provided in a private home shall be

the primary form of care. The goal of

hospice home care shall be to provide

adequate training and support to encourage

self-sufficiency and allow patients and

families to maintain the patient comfortably

at home for as long as possible. The

services of the hospice home care program

shall be of the highest quality and shall be

provided by the hospice care team.

(3 ) HOSPICE RESIDENTIAL 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, adult family care home,

nursing home, hospice residential unit or

facility, or other nondomestic place of

permanent or temporary residence. A resident

or patient living in an assisted living

facility, adult family care home, nursing

home, or other facility subject to state

licensing who has been admitted to a hospice

program shall be considered a hospice

patient, and the hospice program shall be

responsible for coordinating and ensuring the

delivery of hospice care and services to such

person pursuant to the standards and

requirements of this part and rules adopted

under this part.

(4 ) HOSPICE INPATIENT CARE.-–The inpatient

component of care is a short-term adjunct to

hospice home care and hospice residential

care and shall be used only for pain control,

symptom management, or respite care. The

total number of inpatient days for all

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. Hospice inpatient care

shall be under the direct administration of

the hospice, whether the inpatient facility

is a freestanding hospice facility or part of

a facility licensed pursuant to chapter 395

or part II of this chapter. The facility or

rooms within a facility used for the hospice

inpatient component of care shall be

arranged, administered, and managed in such a

manner as to provide privacy, dignity,

comfort, warmth, and safety for the

terminally ill patient and the family. Every

possible accommodation must be made to create

as homelike an atmosphere as practicable. To

facilitate overnight family visitation within

the facility, rooms must be limited to no

more than double occupancy; and, whenever

possible, both occupants must be hospice

patients. There must be a continuum of care

and a continuity of caregivers between the

hospice home program and the inpatient aspect

of care to the extent practicable and

compatible with the preferences of the

patient and his or her family. Fees charged

for hospice inpatient care, whether provided

directly by the hospice or through contract,

must be made available upon request to the

Agency for Health Care Administration. The

hours for daily operation and the location of

the place where the services are provided

must be determined, to the extent

practicable, by the accessibility of such

services to the patients and families served

by the hospice.

58. If a patient may be provided hospice services while

hospitalized and hospices are required to be capable of providing

hospice inpatient care (care to the hospitalized patient) it

follows that a patient may be admitted to hospice while in the

hospital. It is not a rare event for a hospitalized patient or

the patient's family to request hospice services for the first

time while the patient is in the hospital, whether the patient is

likely to return home or, in the case of imminent death, to die

in the hospital. It is clear from reading of Chapter 400, Part

VI, that a patient may be admitted legally to hospice while in

the hospital no matter where the patient resides or the location

of the patient's permanent residence.

The Admissions Process According to Statute

59. Patient admission is governed by Section 400.6095,

Florida Statutes. As the catchline to the statute recognizes,

the section deals with more than just admissions. It contains

provisions related to "assessment; plan of care; discharge;

death."

60. The opening provisions of the statute prohibit

discrimination and require respect for the hospice patient's

belief system. Subsections (5) through (9) of the statute deal

with plans of care, ongoing assessments, withholding of

resuscitation and death of hospice patients.

61. Three of the statutes subsections govern admissions,

subsections (2), (3) and (4):

(2 ) Admission to a hospice program shall be

made upon a diagnosis and prognosis of

terminal illness by a physician licensed

pursuant to chapter 458 or chapter 459 and

shall be dependent upon the express request

and informed consent of the patient.

(3 ) At the time of admission, the hospice

shall inquire whether advance directives have

been executed pursuant to chapter 765, and if

not, provide information to the patient

concerning the provisions of that chapter.

The hospice shall also provide the patient

with information concerning patient rights

and responsibilities pursuant to s. 381.026.

(4 ) The admission process shall include a

professional assessment of the physical,

social, psychological, spiritual, and

financial needs of the patient. This

assessment shall serve as the basis for the

development of a plan of care.

Section 400.6095, Florida Statutes.

62. The statute goes on to require a plan of care for the

patient and to describe in detail what, at a minimum, the plan of

care must contain. At no point in the statute is there any

reference to the existence of a plan of care or initiation of

care for the patient as a prerequisite to the patient having

achieved the status of "admission" to the hospice.

63. From the statute, it appears that the admission process

is considered complete once the appropriate assessments have been

conducted in the form of a professional assessment. There is no

set requirement that each of the assessments must be conducted by

a professional within the specific five areas decreed by the

statute : physical, social, psychological, spiritual and

financial. In other words, the statute does not specifically

require that a social worker conduct the "social" assessment just

as it does not require that an accountant conduct the "financial"

assessment. It simply requires that the (singular) assessment in

the five required areas be "professional." This statement is

open to LifePath's interpretation that the assessment in the five

areas may be conducted by a single professional, such as an

admissions nurse. Accepting this interpretation, LifePath met

this requirement with regard to the 36 patients when it conducted

assessments in the required areas, even though some of the

assessments were incomplete. The 36 patients were admitted in

Service Area 6A while in Hillsborough County hospitals.

Compliance with the Reporting Requirement

64. The rule requires that new patients admitted in each

six-month period be reported in several ways. First, they must

be reported in categories of over and under 65 and then by type

of diagnosis. Second, they must be reported "by service area of

residence." The term "service area of residence" is not defined.

65. Hernando-Pasco does not contend that LifePath did not

comply with the reporting requirements initially. LifePath

provided second reports that were different. The changes showed

a location of each patient at the time of admission in a hospital

in 6A rather than the patient's permanent residence.

66. Hernando-Pasco claims that the changes were of bad

faith, even misrepresentation. There is no question that

LifePath deliberately changed its way of reporting in the second

report at issue. The changes produced a numeric need of "zero"

rather than "one," a revision in LifePath's favor and one sought

by LifePath. A change in a reporting method that favors a party,

alone, does not amount to bad faith. And there is no evidence of

misrepresentation. The approach of the second report did no more

than to beg the question: in what service area should a patient

be counted as admitted if the patient has a permanent residence

in 6B but is admitted while hospitalized in 6A?

67. The Agency has accepted the changes in the second

report with full knowledge of the circumstances. In so doing,

AHCA relies on an interpretation of "service area of residence"

to mean the service area in which the patient is located at the

time of admission rather than the service area in which the

patient permanently resides.

68. An agency's interpretation of its own rules is entitled

to great weight and will not be disregarded unless clearly

erroneous, Orange Park Kennel Club, Inc. vs. State, Department of

Business Regulation , 644 So. 2d 574 (Fla. 1st DCA), even if not

the sole interpretation, the most logical, or even the most

desirable. State, Board of Optometry vs. Florida Society of

Ophthalmology , 538 So. 2d 878, 885 (Fla. 1st DCA 1988).

69. AHCA, the agency whose rule it is, supports counting

the patient as admitted in 6A for purposes of calculating numeric

need. AHCA's interpretation results in the most accurate

projection of need because every possible admission is reported.

Hernando-Pasco's interpretation would result in an exclusion of

admissions of non-Florida residents and those patients (such as

the homeless) for whom no permanent residence can be established.

The Agency's approach is consistent with the definition of HP,

that is, "the number of patients admitted to hospice programs

serving a service area during the most recent [year]." Section

(4)(a) of the Rule. If the definition of HP does not square with

the Rule's reporting requirements, that is a matter of internal

rule consistency AHCA should address. As a matter of attempting

to construe the terms of its rule to achieve consistency in a

manner that most effectuates the purposes of the rule, AHCA's

interpretation is not clearly erroneous.

Best Policies vs. Existing Law

70. Hernando-Pasco advances numerous reasons for why the 36

patients should not count as Service Area 6A admissions. For

example, Hernando-Pasco proved that LifePath did not comply with

its own policy contained in its admissions manual. LifePath

offered an explanation for why hospitalized patients are an

exception (not expressed in the manual) to its general admissions

policy. Hernando-Pasco argues in favor of LifePath's written

policy. Hernando-Pasco argues that an admission has not occurred

until a plan of care has been developed and care has been

initiated.

71. No such requirement exists in law. From a reading of

the admissions statute, Section 400.609, it appears that

admissions assessments lead to adoption of a plan of care and the

initiation of hospice care, but there is no requirement that

adoption of the plan of care and the initiation of care take

place prior to a patient's achievement of the status of

"admitted." Perhaps it would be better admissions practice for

LifePath's admissions policy to apply to hospital patients before

they count as admissions but there is no statute or agency rule

in existence now that defines admission as requiring all the

steps in LifePath's written admissions policy.

72. Another argument advanced by Hernando-Pasco is that

since LifePath did not seek Medicare reimbursement for 34 of the

36 patients in question for the hospice care provided while the

patients were hospitalized, the patients could not have been

admitted to hospice while in the hospital. Hernando-Pasco argues

that LifePath's position that these patients were not allowed

access to Medicare benefits by the hospitals and were private

paying patients to be "faulty, not supportable and quite possibly

illegal." Petitioner's Proposed Recommended Order , p. 27.

Whatever the merit of this argument, it does not defeat the

conclusion that the facts support that the 36 patients were

admitted while hospitalized in Service Area 6A as admission is

presently defined in law.

73. Perhaps Hernando-Pasco's numerous arguments for what

should constitute admission and its definition of "service area

of residence" should be incorporated into an agency rule but that

is a decision for the Agency on another day. This is not a rule-

making proceeding. It is a proceeding challenging the validity

of agency action : revision of a fixed need pool.

AHCA's Revision Should Stand

74. In sum, LifePath admitted 36 patients hospitalized in

Service Area 6A that it originally reported as having been

admitted in Service Area 6B, the service area that was the locus

of their permanent residence. When the Agency received new

reports reflecting admissions in Service Area 6A, it recalculated

numeric need from "one" to "zero." The evidence demonstrates

that the 36 patients achieved the status of admission in Service

Area 6A as "admission" is delimited by statute. With full

knowledge of the circumstances, AHCA maintains that the patients

should count as Service Area 6A admissions and reported as such.

In doing so, the Agency has engaged in interpretations of its own

rules that are neither unreasonable nor clearly erroneous.

Whatever merit Hernando-Pasco's many arguments have with regard

to what agency policy should be on the subject of admissions and

reporting of admissions by hospices, there is nothing in law that

compels a result different from the one last reached by AHCA and

maintained throughout this proceeding. Hernando-Pasco has failed

to carry its burden of proof to overturn AHCA's revision of the

fixed need pool. The Agency's revision of the fixed need pool to

"zero" as published in February, 2000 should stand.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Agency for

Health Care Administration determining the fixed need pool for

health planning subdistrict 6A for the March 2000 batching cycle

to be zero.

DONE AND ENTERED this 18th day of May, 2001, in Tallahassee,

Leon County, Florida.

___________________________________

DAVID M. MALONEY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of May, 2001.

COPIES FURNISHED:

Sam Power, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building Three, Suite 3431

Tallahassee, Florida 32308-5403

Julie Gallagher, General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building Three, Suite 3431

Tallahassee, Florida 32308-5403

Richard A. Patterson, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building Three, Suite 3431

Tallahassee, Florida 32308-5403

Gerald B. Sternstein, Esquire

Frank P. Rainer, Esquire

Sternstein , Rainer & Clarke, P.A.

101 North Gadsden Street

Tallahassee, Florida 32301

H. Darrell White, Esquire

McFarlain , Wiley, Cassedy & Jones, P.A.

215 South Monroe Street, Suite 600

Post Office Box 2174

Tallahassee, Florida 32316-2174

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.