10-001862CON The Hospice Of The Florida Suncoast, D/B/A Suncoast Hospice vs. Agency For Health Care Administration And Hph South, Inc. Status: Closed Recommended Order on Tuesday, November 30, 2010.

Summary: Neither applicant for a CON proved the existence of special circumstances warranting approval of a new hospice in Service Area 5B.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ODYSSEY HEALTHCARE OF COLLIER )

COUNTY, INC., d/b/a ODYSSEY )

HEALTHCARE OF CENTRAL FLORIDA , )

)

Petitioner , )

)

vs. ) Case No. 10 - 1605CON

)

HPH SOUTH, INC., AND AGENCY FOR )

HEALTH CARE ADMINISTRATION , )

)

Respondents , )

)

and )

)

THE HO SPICE OF THE FLORIDA )

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

HOSPICE, )

)

Intervenor. )

)

THE HOSPICE OF THE FLORIDA )

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

HOSPICE , )

)

Petitioner , )

)

vs. ) Case No. 10 - 1862CON

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION AND HPH )

SOUTH, INC. , )

)

Respondents . )

)

HPH SOUTH, INC., )

)

Petitioner , )

)

vs. ) Case No . 10 - 1863CON

)

AGENCY FOR HEALTH CARE )

ADMINIST RATION; 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 . )

)

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 Ju ly 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 Ass ociates

2873 Remington Green Circle

Tallahassee, Florida 32308

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 C are 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 Admi nistration (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.

Holding: Neither applicant proved the existence of special

circumstances warranting approval of an additional hospice

program in Service Area 5B. Although neither application is

r ecommended 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 p ool

(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

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 - batche d 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 a pplicant 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 oppositio n 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 (2 009). 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

hearing then recessed until June 21 , 2010, and w as 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, p resident 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 plan ning,

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

throu gh 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, 104 A , 109,

112, 113, 115, and 126 were admitted into evidence.

Ms. Greenberg was als o recalled as a rebuttal witness.

AHCA called one witness during its case in chief: Jeffrey

Gregg, c hief of the Bureau of Health Finance Regulation for

AHCA. Agency Exhibits 1 and 2 were admitted into evidence.

Odyssey called three witnesses: Sally Parn ell, senior

vice - president for clinical and regulatory affairs, accepted as

an expert in post - acute nursing and operations, clinical and

regulatory compliance, and hospice clinical and administrative

operations; Jon Marc Creighton, executive director of Od yssey

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 E xhibits 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 hospic e 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 Exhibi ts 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 official ly recognized pursuant to

requests by one or more of the parties:

Ʊ Recommended Order and Final Order in DOAH Case

No. 01 - 4415CON;

Ʊ Recommended Order and Final Order in DOAH Case

No. 00 - 1067CON;

Ʊ Florida Hospice Need Projections for Hospice

Programs, Background Information for Use in

Conjunction with the October 2009 B atching Cycle for

the January 2011 Hospice Planning Horizon, as

revised October 13, 2009;

Ʊ 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, Dece mber 9, 2005; and

Ʊ 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

he aring 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,

holding that neither applicant improperly amended its

application.

Parties w ere 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 Octobe r 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 P roposed

R ecommended O rder , and each was considered in the preparation of

this Recommended Order. Objections filed by parties relating to

hearsay evidence were duly considered.

FIN DINGS 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.

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 Flori da.

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 servic e 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 hospic e 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.

6. HPH operates multiple facilities tha t 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 Cen ters 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

p rograms, 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

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 ser vices. 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 state s, including established programs in

Miami - Dade (Service Area 11) and Volusia (Service Area 4B)

C ounties 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

inves tigation 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

CIA allow OHC to self - audit to ensure compliance with the

Medicare condi tions 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 pr ovider 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, Suncoas t 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 U nited States and the world. Suncoast has a large depth and

breadth of programs, includ ing 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 tha t 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 expectan cy of 12 months or

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. O verview of Hospice Services

15. In Florida, hospice programs are required to provi de 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

Med icare, a terminally ill patient is eligible for the Medicare

Hospice b enefit s 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 nursin g, 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, contin uous, 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 t he patient

needs short - term institutionalization, the services are

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 stat es 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 - do mestic place of permanent or temporary residence. A

resident or patient living in an ALF, nursing home, or ot her

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 requ irements.

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 car e 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

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 d esigned 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 relie f.

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. Th ere is no

" 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 ref ers 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 m usic 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. Sun c oast 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 determin ing the need for an additional hospice program in a

s ervice a rea. 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 s pecial 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 t wo - 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 6 5, 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

determine the number of pro jected 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 serv ed.

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 P roposals

A. HPH ' s P roposal

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

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 a pproval 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 b eing 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 hospic e 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 applicatio n.

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 b eds ( " scatter beds " ) throughout Service Area 5B.

HPH then projects that it could offer in - patient services in the

local neighborhoods of patients and families where they live, as

opposed to transferring patients to a single in - patient facility

for the pro vider ' 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 H ospice

H ouse residential care to patients in a home - like environment.

36. Like its hospi ce 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 physici an home visits.

B. Odyssey ' s P roposal

37. Odyssey proposes to address lack of competition 2 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

demonst rate 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 statis tical

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

(31 percent of admissions) and 2,300 (38 percent of admissions)

o f 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 bas ed 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 sp ecial

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), F lorida 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. "

V. Facts Concerning Special Circumstances Argume nts

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 Stat e 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 Stat e 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 populat ion 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 h ospice 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).

46. In assessing the extent of utilization of h ospice

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 pat ients 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 patie nts 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 a nd 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.

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 HP H 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 pati ents 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

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 Sun coast, 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 Suncoa st because it took a long time to get medications for

her resident. Another felt like Suncoast's quality of care was

inferior.

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 w as 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 s ervice a rea ; n or 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, cont act the physician in order to evaluate

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 candidl y 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 t o 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:

Ʊ Commitment to serve populations with unmet need. - -

There is no numeric need in this matter. Neither

applica nt proved the existence of a population with

unmet need.

Ʊ 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.

Ʊ 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.

Ʊ Not Applicable.

Ʊ 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 consideratio n 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 c ircumstances 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.

61. Each applicant pro vided 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 bot h 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 ap plication. 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 als o 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 se t 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.

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 - fa mily 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 depar tments,

located in Largo. In central Pinellas County is Suncoast's

ten - a cre, 72 - bed Woodside facility. Thirty - six of the beds are

in - patient and 36 are residential. On the back of the property

are 18 efficiency apartments called " Villas " with separate

l iving, 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 ca re

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. Howev er,

the most credible evidence is that Suncoast is effectively

serving the needs of hospice - eligible residents of Service

Area 5B.

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.

Physic ian 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 applic ants meet this

criterion.

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 provi der 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 n ursing 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

Are a 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 t his

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

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 a nd 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) -- de signation as a Gold Seal

Program

84. This criterion is not applicable to the instant case.

VII. Ultimate F indings of F act

85. The Agency determined that there is no need for an

additional hospice in the service area based upon the fixed need

pool formula .

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 identifi ed 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, e ntitlement 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

to be given to each individual criterion is not fixed, but

rather , must vary on a case - by - case basi s, 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 whic h the

A dministrative L aw J udge 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 i ts 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

applicabl e planning horizon.

94. The statutory review criteria are set forth in

Subsection s 408.035(1)(a) through (j), Florida Statutes. As

shown by the F indings of F act herein, both HPH and Odyssey

generally satisfy the criteria and either one of them could be

ap proved if there was a numeric need under the FNP or if there

was a showing of special circumstances warranting a new hospice.

That is, neither applicant had a fatal flaw in its CON

application.

95. Subsection 408.043(2), Florida Statutes, provides:

HO SPICES. 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 certif icate

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 s ervices, but there was no showing

that it is a regional monopoly, per se .

96. Regarding the statutory review criteria set forth in

Subsection s 408.035(1)(a ) through (j), Florida Administrative

Code Rule 59C - 1.0355(3)(b) state s :

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

freestanding inpatient hospice facility,

shall not be approved unles s 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 o f 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

approva l 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 establis hes 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 cas e . 4

98 . There being no numeric need for a new hospice in this

case, HPH or Odyssey must establish the existence of special

circumstances, which are addressed in Florida Administrative

Code Rule 59C - 1.0355(4)(d), which states:

Approval Under Special Circumstanc es. 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. Th at 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 R ule to

allow for the demonstration that the specific terminally ill

population groups identified by HPH in its CON a pplication 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

establis h 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 t he 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 amoun t of time at final

hearing and in its P roposed R ecommended O rder arguing that

Suncoast misreported its admissions data, and thereby resulting

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 f ixed

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 showi ng

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.

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 a nd 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 Fl a.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 Conclusio ns of

Law, it is

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 ENT ERED 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

T allahassee, 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/ The re 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,

Inc. v. Agency for Health Care Admin. , Case Nos. 01 - 0445CON and

02 - 0880C ON (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 -

that an applicant f or 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 circumstan ces; 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 59 C - 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 R ule 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

272 7 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

Lorraine M. Novak, Esquire

Agency for Health Care Administration

Fort Knox Building III, Mail Stop 3

2727 Mahan Drive, Suite 3431

Ta llahassee, 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 S UBMIT 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.