15-002008CON Gulfside Hospice And Pasco Palliative Care, Inc. vs. Agency For Health Care Administration Status: Closed Recommended Order on Monday, March 21, 2016.

Summary: On balance, Seasons best satisfied the criteria for approval of its Certificate of Need application in this comparative review.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LIFEPATH HOSPICE, INC

Petitioner,

vs. Case No. 15 - 2001CON

WEST FLORIDA HEALTH, INC.;

AND AGENCY FOR HEALTH CARE

ADMINISTRATION,

Respondents.

_______________________________/

SEAS ONS HOSPICE & PALLIATIVE

CARE OF TAMPA, LLC,

Petitioner,

vs. Case No. 15 - 2003CON

WEST FLORIDA HEALTH, INC.;

AND AGENCY FOR HEALTH CARE

ADMINISTRATION,

Respondents.

_______________________________/

WEST FLORIDA HEALTH, INC.,

Pet itioner,

vs. Case No. 15 - 2 007CON

GULFSIDE HOSP ICE AND PASCO

PALLIATIVE CARE, INC.; SEASONS

HOSPICE & PALLIATIVE CARE OF

TAMPA, LLC;LIFE PATH HOSPICE,

INC.,

Respondent s .

_______________________________/

GULFSIDE HOSPICE AND PASC O

PALL I ATIVE CARE, INC.,

Petitioner,

vs. Case No. 15 - 2008CON

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its desig nated Administrative Law Judge, R. Bruce

McKibben , held the final hearing in the above - styled case s on

November 30 a nd December 1 through 4, 7 through 10, and

14 through 16, 2015 , in Tallahassee, Florida.

APPEARANCES

For LifeP ath Hospice , Inc. :

Seann M. Frazier, Esquire

Parker, Hudson, Rainer & Dobbs , LLP

215 South Monroe Street, Suite 750

Tal lahassee, Florida 32301

Jonathan L. Rue, Esquire

Parker, Hudson, Rainer & Dobbs LLP

303 Peachtree Street Northeast , Suite 3600

Atlanta, Georgia 30308

For Seasons Hospice & Palliative Care , Inc. :

Ste phen C. Emmanuel, Esquire

Michael J. Glazer, Esquire

Ausley & McMullen

123 South Calhoun Street

Post Office Box 391

Tallahassee, Florida 32301

For West Florida Health, Inc. :

Stephen K. Boone, Esquire

Boone, Boone, Boone and Koda, P.A.

1001 Avenida Del Circo

Post Office Box 1596

Venice, Florida 34284

For Agency for Health C are Administration:

Lorraine M arie Novak , Esquire

Agency for Health Care A dministration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

For Gulfside Hospice and Pasco Palliative Care, Inc.

Karl David Acuff, Esquire

Law Office of Karl David Acuff, P.A.

1615 Village Square Boulevard, Suite 2

Tallahassee, Florida 32309 - 2770

S TATEMENT OF THE ISSUE S

Whether the Certificate of Need ( Ð CON Ñ ) applications filed

by Seasons Hospice and Palliative Care , Inc. ( Ð Seasons Ñ );

Gulfside Hospice and Pasco Palliativ e Care , Inc. ( Ð Gulfside Ñ );

and West Florida Health , Inc. ( Ð West Florida Ñ ) ; for a new

hospice program in Agency for Health Care Administration ( Ð AHCA Ñ

or the Ð Agency Ñ ) Service Area 6A /Hillsborough County , satisfy

the applicable statutory and r ule review cri teria sufficiently

to war rant a pproval , and, if so, which of the three applications

best meets the applicable criteria , on balance, for approval.

PRELIMINARY STATEMENT

On October 3 , 20 14 , the Agency published a fixed need pool

for one new hospice progra m to be established in Service

Area 6A, which consists of Hillsborough County, Florida .

See Fla. Admin. Reg. , Vol. 40, No. 193, ID. No. 15126391. Nine

applicants filed competing CON applications in response to the

fixed need pool. On October 24 , 2015 , L ifepath Hospice, Inc.

(ÐLifepathÑ ), submitted a letter to AHCA indicating its

opposition to the applications filed by West Florida an d another

applicant not a party to this proceeding.

After a comparative review of the applications, o n

February 2 0 , 2007, the Agency announced its intent to approve

the application filed by West Florida (CON No. 10302), and to

deny the other competing applications.

Seasons and Gulfside timely filed petitions to contest the

denial of their own applications (Nos. 10298 and 1 0294,

respectively) and the approval of West Florida 's application.

West Florida filed an approved applicant petition in support of

its own application and in opposition to the Seasons and

Gulfside applications.

The Agency forwarded the petitions to t he Division of

Administrative Hearings ( Ð DOAH Ñ ) for the assignment of an

a dministrative l aw j udge to conduct a final hearing.

LifeP ath , as the only existing hospice provider in Service

Area 6A , filed a petition opposing the approval of the

application fi led by West Florida. LifeP ath did not contest the

approval of the applications filed by Seasons or Gulfside.

On November 2 5 , 2015 , the parties filed a joint pre - hearing

stipulation.

During the final hearing, West Florida presented the

testimony of Dr. Jim Burkhart, president and CEO of Tampa

General Hospital ( Ð TGH Ñ or Ð Tampa General Ñ ), accepted as an

expert in hospital operations and administration; Mike Schultz,

division president of Adventist Health Systems West Florida

(ÐFlorida HospitalÑ) , accepted as an expert in hospital

operation and administration; Dr. Howard Tuch, director of

palliative medicine at TGH, accepted as an expert in hospice and

palliative care med icine; Dr. Vincent Perron, vice - president of

medical affairs and associate chief medica l officer at TGH,

accepted as an expert in hospice and palliative care medicine;

Rev . William Baugh, retired director of pastoral care and

clinical pastoral education ( Ð CPE Ñ ) at TGH, accepted as an

expert in clinical chaplai ncy and CPE; Rev . Wayne Maberry,

director of pastoral care and CPE at TGH, accepted as an expert

in clinical chaplaincy and CPE; Ann Tellini, case manager and

discharge planner at Florida Hospital , accepted as an expert in

hospital case management and discharge planning; Rema Cole,

direc tor of Florida Hospital - Flagler hospice care, accepted as

an expert in hospice operations ; Armand Balsano, CON consultant,

accepted as an expert in financial analysis and financial

feasibility ; and David Levitt, CON consultant, accepted as an

expert in hea lth planning . The testimony of Jennifer Cacioppo

was also introduced into evidence by way of her deposition

transcript. West Florida E xhibits 1 through 3, 5 through 8 , 8A,

10 , 12 A through J, 14, and 15A through Z were admitted into

evidence.

Lifepath pr esented the testimony of Jay Cushman, hospital

consultant, accepted as an expert in health planning; Darryl

Weiner, CON consultant, accepted as an expert health care

finance; and Kathy Fernandez, president and CEO of Chapters

Hospice Systems, accepted as a n expert in hospice

administra tion. LifeP ath E xhibits 18 through 19, 22 through 29,

32 through 37, 39, and 42 through 48 were admitted into

evidence.

Seasons presented the testimony of Todd Stern, CEO,

accepted as an expert in hospice development and admi nistration;

Joyce Simard, geriatric consultant, accepted as an expert in

dementia; Dr. Balakrishana Natarjan, medical director, accepted

as an expert in internal care medicine and hospice and

palliative care medicine; Dr. Russell Hilliard, senior vice

pres ident for patient experience and staff development, accepted

as an expert in music therapy, social work, hospice compliance,

and hospice programs; Pedro Del Campo , executive director of

Seasons H ospice in Miami, Florida, accepted as an expert in

hospice op erations ; Sharon Gordon - Girvin, CON consultant,

accepted as an expert in CON review and health care planning;

and Steven Jones, CPA, accepted as an expert in health care

finance and financial feasibility. The testimon ies of Rabbi

Elchonon B. Freedman, Dr. Daniel Maison, and Mary Lynn McPherson

were presented by way of deposition transcript s . Seasons

E xhibits 1 through 30 and 32 through 36 were admitted into

evidence.

Gulfside presented the testimony of Linda Ward, president

and CEO, accepted as an expert in hospice administration and

health care administration; Gene Nelson, CON consultant,

accepted as an expert in health planning, CON review criteria,

and CON procedures; Rick Knapp, CON consultant, accepted as an

expert in financial feasibility and CON pro jects; and Kathy

Postiglione, chief op erating officer and senior vice - president

of business development, accepted as an expert in hospice

operations. Gulfside E xhibits 1 through 8, 9 A through G , and

10 A through K (including the deposition transcripts of D eborah

Gilles, Suzanne Johnson, Rabbi Aaron M. Lever, Tara Scalise,

Shelley Schneider, Dr. Charles L. Suggs, and Anthony Trovato)

were admitted into evidence.

AHCA presented the testimony of Marisol Fitch , Health

Services and Facilities consultant superv isor, accepted as an

expert in healt h care planning and CON. AHCA E xhibits 1 and

2 were admitted into evidence.

The partiesÓ request for additional time to file proposed

recommended orders (PROs) and for extension of the page limit

for PROs to 50 pages was granted. The parties were given until

February 12, 2016, to file PROs. Each party timely submitted

its PRO. All post - hearing submissions have been considered in

the preparation of this Recommended Order.

Unless specifically stated otherwise herein, all references

to Florida Statutes shall be to the 2015 version.

FINDINGS OF FACT

I. Procedural History

A. The Fixed Need Pool

1. On October 3, 2014, the Agency published a need for one

additional hospice program in Hospice Service Area 6A,

Hillsb orough County, for the January 2016 planning horizon.

2. Under the Agency's need methodology, numeric need for

an additional hospice program exist s when the difference between

projected hospice admissions and the current admissions in a

service area is equal to or greater than 350.

3. The need methodology promotes competition and access

because numeric need exists under the methodology when the

hospice use rate in a service area falls below the statewide

average use rate.

4. I n a service area in which there is a sole hospice

provider, as in the present case, the existing provider has an

incentive to continually improve access to hospice services in

the service area in order to avoid numeric need for an

additional program under th e formula.

5. For the January 2016 planning horizon, the Agency

determined that the difference between projected hospice

admissions and current admissions in Hospice Service Area 6A

was 759, and therefore a numeric need for an additional hospice

program exists in Hillsb orough County.

6. AHCA is the s tate a gency authorized to evaluate and

render final determinations o n CON applications pursuant to

s ection 408.034(1) , Florida Statutes.

A. The Proposals and Preliminary Decision

7. Nine applicants submitted CON applicat ions seeking to

establish a new hospice program in AHCA Service Area 6A,

Hillsborough County, in response to the fixed need pool .

LifePath , the only existing provider of hospice care in the

service area, opposed the hospice application which was

sponsored by a hospi tal system , i.e., West Florida Ós .

8. After reviewing the applications, the Agency

preliminar il y approved West Florida's CON Application No. 10302

and preliminarily denied the remainder of the applications,

including Seasons Ó CON Application N o. 10298 and Gulfside's CON

Applica tion No. 10294 .

9. At the final hearing, Marisol Fit ch, s upervisor of

AHCA's CON unit, testified that the Agency approved West

Florida's CON a pplication because it determined that West

Florida's a pplication best promot es increased access to hospice

services for residents of Hillsborough County. The Agency

concluded that Tampa General and Florida Hospital, West

Florida's parent organizations, already have large

infrastructures in place in Hillsborough County. According ly,

the Agency determined that West Florida's proposed hospice

program, if approved, would benefit from built - in access points

that would enable West Florida to improve hospice accessibility.

B . The Applicants , AHCA and Lifepath

West Florida

10. West F lorida is a joint venture with 50 - 50 ownership

and control by Tampa General and Florida Hospital , two acute

care hospitals in Hillsborough County . The entity was created

for the purpose of seeking the CON at issue in this proceeding

for a new hospice in S ervice Area 6A. West Florida recently

became the owner/operator of three home health agencies which

had been operated for several years by the Florida Hospital

System. Tampa General has not operated hospices in the past,

while Flo rida Hospital has, and t he CON a pplication submitted by

W est Florida relied heavily upon the Florida Hospital - affiliated

hospiceÓs programs and history .

West Florida is the only applicant in this proceeding that is

hospital affiliated .

Seasons

11. Seasons, the applicant, is a single purpose entity

created for the purpose of seeking a CON to operate a new

hospice in Service Area 6A. It is affiliated with Seasons

Hospice and Palliative Care, a for - profit company (hereinafter

referred to as ÐSeasons HPCÑ).

Seasons HPC is the largest family - owned hospice organization in

the country .

12. The first Seasons HPC - affiliated hospice opened in

Chicago, Illinois , in 1997 . In 2003, Seasons HPC opened its

second hospice in Milwaukee, Wisconsin, and in 2004 , it acquired

a third hospic e in Baltimore, Maryland. Since 2004, Seasons HPC

has continued to grow nationally by opening, or in some cases

acquiring , hospices in new markets. Today, Seasons HPC is the

fourth largest hospice compa ny in the United States with

25 separate hospices op erating in 18 different states.

13. Each Seasons HPC - affiliated hospice is a separate

entity, with its own license, executive director, and staff.

However, each Seasons HPC hospice is connected via overlapping

ownership and via contracts with Seasons H ealthcare Management ,

its management company . Among the services that Seasons

Healthcare Management provides to each Seasons HPC hospice are :

education and training, quality management, financial planning

support, management of payrolls, tax preparation, cost report

preparation and coordination, IT services, corporate compliance

policies and programs, marketing and development expertise, in -

house legal services, and a wide variety of policies and

consultations including, but not limited to, clinical suppo rt

and physician oversight.

14. Todd Stern is the CEO of Seasons Healthcare Management

and is also the CEO of the 25 separate hospices that Seasons HPC

operates throughout the country. Mr. Stern joined Seasons HPC

in 2001, and was appointed CEO in 2008 .

Gulfside

15. Gulfside is a 501(c)3 community - based, not - for - profit

organization and is licensed by AHCA . Gulfside has been

providing hospice services in Pasco County (which is contiguous

to Hillsborough County) for more the 25 years. Gulfside

provide s service to all patients in need regardless of race,

creed, color, gender, sexual orientation, national origin, age,

qualified individual with a disability, military status, marital

status, pregnancy, or other protected status.

LifePath

16. LifePath is the sole existing, licensed hospice

provider in Hospice Service Area 6A, Hillsborough County.

LifePath is a subsidiary of Chapters Health System.

17. LifePath has provided hospice services in Hillsborough

County since 1983. It was the first hospice pr ogram in the state

to be accredited by The Joint Commission and has continuously

maintained that accreditation. LifePath is also accredited by

the National Institute for Jewish Hospice s .

18. In addition to providing routine, continuous, and

respite car e to residents of Hillsborough County, LifePath also

provides inpatient hospice care in two , 24 - bed hospice houses

located in Temple Terrace and Sun City, Florida. Additionally,

LifePath has scatter - bed contracts with all of the acute care

hospitals in Hi llsborough C ounty to provide inpatient care .

19. LifePath is an important part of the healthcare

continuum in Hillsborough County and works collaboratively with

other healthcare providers in the community, including hospitals,

nursing homes, and assiste d - living facilities.

AHCA

20. AHCA is the state agency responsible for administering

the Florida CON program.

I. Overview of Hospice Services

21. In Florida, a hospice program is required to provide a

continuum of palliative and supportive care for te rminally ill

patient s and their famil ies . A terminally ill patient has a

medical prognosis that his or her life expectancy is one year or

less if the illness runs its normal course. Under the Medicare

program administered by the federal government, a ter minally ill

patient is one who has a life expectancy of six months or less.

22. Hospice services must be available 24 hours a day,

seven days a week, and must include certain core services, such

as nursing services, social work services, pastoral or

cou nseling services, dietary counseling, and bereavement

counseling services. Physician services may be provided by the

hospice directly or through contract.

23. Hospice care and services provided in a private home

shall be the primary form of care. Hosp ice care and services

may also be provided by the hospice to a patient living in an

assisted living facility, adult family - care home, nursing home,

hospice residential unit or facility, or other non - domestic

place of permanent or temporary residence.

24 . 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 hospice bereavement program must be a

comprehensive program, und er professional supervision, that

provides a continuum of formal and informal support services to

the family for a minimum of one ye ar after the patient's death.

25. The goal of hospice is to provide physical, emotional,

psychological, and spiritual com fort and support to a dying

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.

26. Hospice care is provided pursuant to a plan of c are

that is developed by an interdisciplinary team consisting of ,

e.g. , physicians, nurses, social workers, counselors, chaplains ,

and other disciplines .

27. There are four levels of service in hospice care:

routine home care, continuous care, general inpatient care, and

respite care. Generally, hospice routine home care comprises

the vast majority of patient days and respite care is typically

a very minor percentage of days.

28. Continuous care is basically emergency room - lik e or

crisis care that c an be provided in a home care setting or in

any setting where the patient resides. Continuous care is

provided for short amounts of time usually when symptoms become

severe and skilled and individual interventions are needed for

pain and symptom managemen t.

29. The inpatient level of care provides the intensive

level of care within a hospital setting, a skilled nursing unit,

or in a free - standing hospice inpatient unit. Respite care is

generally designed for caregiver relief.

30. Medicare reimburses different levels of care at

different rates. Approximately 85 - to - 90 percent of hospice care

is paid for by Medicare.

31. There are certain services required or desired by some

patients that are not necessarily covered by Medicare and/or

private or com mercial insurance. These services include music

therapy, pet therapy, art therapy, massage therapy, and

aromatherapy , a mong others . There are other , more complicated

and expensive non - covered services , such as palliative

chemotherapy and radiation , that may be indicated for severe

pain control and symptom control. Hospices which provide these

additional services are said to have Ðopen accessÑ and foot the

bill for such services.

I I. The PartiesÓ Proposals

32. Each of the applicants - - as well as LifeP ath and the

Agency Î - agree that any one of the applicants could provide

quality hospice services if approved. The following paragraphs

set out some of each applicantÓs attributes. Before each of the

applicantsÓ proposals is discussed more fully below, it is clear

that all of the applicants would likely be successful if

approved . As stated by the parties themselves: ÐAll three

applicants . . . have the ability to operate a high quality

hospice.Ñ West Florida counsel, Tr ., p. 12 . ÐT hese are all

excellen t providers Ñ and ÐThere are no bad choices here.Ñ AHCA

counsel, Tr., pp. 1802 and 2009 . ÐAll [applicants] would be

qualified; they all do good.Ñ Lifepath counsel, Tr., p. 1980 .

ÐAll applicants will undoubtedly provide the same level of

quality care.Ñ West Flo rida PRO, ¶ 59 . The ultimate concern of

AHCA regarding a new hospice provider in Hillsborough County is

not the quality of care that the applicants can provide. All

applicants will undoubtedly provide the same level of quality

care. The real con cern is costs, access, and availability.

The Agency believes that West Florida will be best suited to

promote cost effectiveness , as well as increase access and

availability .

A. West Florida

33. West Florida is a collaborative effort by two existing ,

licensed hospitals in the service area. West Florida justifiably

touts its connection to educational institutions. West Florida

conditioned its approval on the funding of an additional

palliative care fellowship at the U niversity Of South Florida

Colle ge of Medicine at an annual cost of roughly $80,000 and an

additional CPE resident in Tampa GeneralÓs CPE program at an

annu al cost of $30,000 .

34. H aving West Florida as part of the Tampa General

Ð f amilyÑ will expose not only the new palliative care fel low,

but also medical students, medical interns and residents, other

fellows, nurses, and a wide variety of allied health

professionals , to hospice services and the benefits of hospice

care.

35. The new CPE resident could help to expand knowledge

about en d - of - life care and ultimately improve acc ess to hospice

services . West Florida will benefit the Tampa General pastoral

care and CPE program by extending pastoral palliative care and

end - of - life care training and experiences for all CPE students.

36. Flo rida Hospital is a part of the Adventist Health

System, which operates all types of healthcare facilities

throughout the nation , including hospitals, rehab facilities,

h ome health agencies, hospices, long term acute care hospitals ,

nursing homes, and more. In Florida, Adventist operates a range

of facilities , including statutory teaching hospitals,

quaternary - level service providers, critical - access hospitals,

and safety net hospitals. In Hillsborough County, Florida

Hospital operates Florida Hospital Tam pa and Florida Hospital

Carrollwood, both acute care facilities, in addition to a

variety of outpatient facilities, physician practices, and the

like .

37. West Florida has proposed and is committed to opening

a four - bed hospice inpatient unit at Florida Hospital

Carrollwood, located in the northwestern portion of the county.

Currently , there are two other inpatient hospice house units in

Hillsborough County, one on the eastern side and one in the far

south , both operated by LifePath . The unit w ould theor etically

benefit hospice patients by increasing the number of inpatient

beds and improving geographic distribution, thereby provid ing

more access to hospice care.

38. An inpatient unit may operate better than contracted

Ðscatter bedsÑ because hospice st aff trained in end - of - life care

and symptom management would be the medical personnel providing

care to the patient ra ther than other hospital staff.

39. Florida Hospital is an experienced provider of hospice

services in the State of Florida, operating Florida Hospital

Hospice Care in Volusia and Flagler Counties, as well as Hospice

of the Comforter in Orange and Osceola Counties. Ms. Rema Cole

is the a dministrator for Florida Hospital Hospice in Flagler and

Volusia Counties. She has been responsible f or opening two new

hospice programs in the State of Florida.

40. West Florida will provide a wide variety of unfunded

Ðopen accessÑ services to its patients, such as : radiation and

chemotherapy, caring for patients on ventilators, and train ing

staff to provide these services.

41. Combined, Florida Hospital and Tampa General touch

tens of thousands of lives in Hillsborough County, totaling

approximately 52,000 patients each year. Tampa General or

Florida Hospital could tell its patients and their fam ilies

about the goals and b enefits of hospice care . It is likely West

Florida would tend to promote its own hospice more prominently

than it would pro mote its competitor Ós (LifePath) services.

42. West Florida suggests the possibility of a fully

integr ated electronic medical record. It would entail a long

process, but steps have already been taken to begin the

integration. The ability of the medical records of both Tampa

General Hospital and Florida Hospital to ÐtalkÑ to each other

and all related anc illary providers, including its clinically

integrated network, home health agency, and West Florida c ould

improve the abili ty to reduce costs, as well as emergency room

visits and unplanned admissions of hospice patients to

hospitals. Having a streamlined system that communicates

between the hospice, hospitals, and their ancillary providers

could reduce workload, unnecessary paperwork, and increase the

efficiency at which the hospice staff is able to operate. There

is no such system in operation yet, but West Florida has plans

to implement it once it is available.

43. Florida Hospital Hospice Care provides a wide range of

non - compensated programs, including a pet partner program called

ÐHosPoochÑ that provides pet therapy to patients in inpatient

units, nursing homes, ALFs, and even to non - hospice patients at

their cancer centers. They also have a recording project called

Project Storytellers that has a group of volunteers going into

patientsÓ homes or wherever they may be to talk to the patient

about t heir life, record things that were important to them, and

give that recording to the families as a keepsake. Florida

Hospital Hospice Car e is involved with their local Veterans

A dministration nursing home and clinic, where volunteers perform

pinnings of v eterans. There is also music therapy, a group of

quilters, and vigil volunteers, who sit at the bedside of

patients to keep watch if the caregiver needs to take a break or

run errands.

4 4 . West Florida can immediately tap into the existing

connections that both Florida Hospital and Tampa General have in

the community. These include relationships and connections with

physicians, churches, civic groups, and other organizations,

both healthcare and non - healthcare related. These existing

relationships w ou ld serve not only as opportunities to market

West Florida, but could also serve as educational opportunities

to inform more individuals, groups, and organizations about the

benefits of hospice care and the availability of the West

Florida.

45. West Flor ida agreed to condition approval of its CON

application on the following eleven concepts :

1) Annual funding for an additional

palliative care fellowship at the University

of South Florida;

2) Annual funding for an additional CPE

resident;

3) Annual s ponsorship of up to $5,000 for

childrenÓs bereavement camps;

4) Up to $10,000 annually for a special

wish fund;

5) Operating a 4 - bed inpatient unit at

Florida Hospital Carrollwood;

6) Programs which are not paid by Medicare;

7) Offices on the camp us of Tampa General

and Florida Hospital;

8 ) Using a licensed clinical social worker

with at least a MasterÓs degree to lead the

psychological department;

8 ) Establish an education program on

hospice care accessible to medical staff;

10 ) Progr ams fo r the Hispanic population;

and

11 ) Creation of a community resource

information website.

A. S easons

46. Seasons described its proposal for services through

various key players within its parent organization .

47. Dr. Balakrish an a Natarjan is the ch ief medical o fficer

for Seasons Healthcare Management. Dr. Natarjan plays an active

role in recruiting the medical directors for each Seasons

hospice, and the medical director of each hospice reports

directly to him. Dr. Natarjan has developed a detailed list of

the medical directorÓs qualifications and responsibilities, and

a list of what he deems to be Ð non - negotiable company values Ñ to

which each medical director must agree. It is difficult to

imagine how some of those values can be monitored (e.g., Ð T he

Medical Director must love holding the patientÓs hand Ñ ; ÐThe

Medical Director must go to bed each night knowing they made a

difference in the lives of specific dying patients, Ñ etc . ), but

the idea of non - negotiables is recognized as positive. Seasons

has also recently hired Daniel Maison, M.D. , as the associate

chief medical o fficer for the company.

48. Dr. Russell Hilliard is Seasons Ó vice - p resident for

Patient Experience and Staff Development. He has a Ph.D. in

music education , with an emphasis i n music therapy and social

work from Florida State University. His work is well - recognized

in the hospice community. He was instrumental is starting the

music therapy programs at Big Bend Hospice in Tallahassee,

Florida, and at Hospice of Palm Beach Coun ty (Florida). His

concept of music therapy is innovative, inclusive, and well -

proven to achieve positive results. Dr. Hilliard will assist

Seasons in doing a community - oriented needs assessment to

ascertain what needs exist in Hillsborough County, examin e how

to meet those needs, and establish programs to be implemented

upon approval as a hospice provider in the area. SeasonsÓ music

therapies would then be implemented as necessary to meet the

identified needs.

49. Seasons ha s also assembled a team of national experts

who are available to assist in various areas. One such expert

is Mary Lynn McPherson, Pharm.D. Dr. McPherson has developed an

online course entitled ÐMedication Management at the End of Life

for Clinical, Supportive, Hospice an d Palliati ve Care

Practitioners , Ñ that is offered through Seasons.

Dr. McPherson is purportedly available 24 hours a day, seven

days a week , to field numerous calls from Seasons physicians and

other staff regarding complex medication management issues.

50. Joyc e Simard , a national expert in caring for people

with dementia , developed for Seasons HPC hospices a specialized

program for patients in the advanced stages of dementia. The

program uses person - centered approaches to improve the quality

of life for people suffering from dementia through meaningful

sensory activities that stimulate the senses and promote comfort

and serenity.

51. Seasons Hospice Foundation ( Foundation ) is an

independent 501(c)(3) , non - profit foundation founded in 2011.

The Foundation wa s established because Seasons was receiving

unsolicited donations from grateful families and friends of

patients, and it wanted these funds to go to a charitable

purpose. Today the mission of the Foundation is to serve the

needs of patients outside the ho spice benefit. For example, the

Foundation will assist patients who are unable to cover basic

non - hospice needs, such as restoring electricity to a patientÓs

home or air fare so family members can travel to see a patient.

52. Seasons do es not rely on ch aritable contributions or

other philanthropy to support its operations, nor does it rely

on any other types of non - hospice revenue sources such as thrift

shops.

53. Unlike some new hospices which try to conserve

resources and hire part - time staff wh en o pening, Seasons invests

100 percent in new programs up front. All of the initial core

staff is full - time, even when the hospice may be starting out

with just a handful of patients. This allows the hospice team

to develop trust among the group and to beco me familiar with

SeasonsÓ policies, procedures and culture.

54. Each Seasons HPC program and staff is reflective of

the ethnic and cultural make - up of the area it serves. However,

the mission statement, core values, service standards, operating

practic es, protocols, and policies are uniform in each Seasons

HPC hospice.

55. Seasons provide s a large depth and breadth of programs

in its hospices. Included among those services are music

therapy, pet therapy (using certified pet therapy animals , as

well a s a specialized robotic seal for certain patients),

Namaste (a specialized program for patients in the advanced

states of dementia), Kangaroo Kids summer camp, Volunteer Vigil

program, Leaving a Legacy, and Careflash . Seasons also

partici pates in the We H onor Veterans p rogram.

56. Seasons would provide Ð o pen a ccessÑ services in

Hillsborough County. Seasons w ould provide these services for

patients choosing to continue them so long as their prognosis

remains six months or less , and the treatment is appro ved by the

clinical leadership team for appropriateness. Such

interventions may include IV antibiotics, blood transfusions,

palliative cardiac drips, ventilator support, radiation therapy,

heart therapy, dialysis and other palliative therapies.

57. As discussed earlier, Seasons offers a very robust and

highly professional music therapy program. But Seasons also

provides music companions when simple entertainment is what is

called for and Seasons makes sure the entire interdisciplinary

staff is trained in this subject.

58. Seasons actively work s with hospitals in the markets

it serves to educate physicians and allied health professionals

in hospice and end - of - life care. Seasons hospices have

affiliation agreements with several medical schools around the

country to offer internships, fellowships, and other educational

opportunities to pre - med students, medical students, and

residents.

59. Seasons hire s experienced nurses who have previously

worked in emergency rooms and intensive care unit s, and

con sequently is able to provide a much more clinically complex

service than some other hospices. As a result, Seasons is able

to serve patients that other organizations typically may not

have served.

60. Seasons utilize s a hospice - specific electronic medi cal

record and is the largest hospice client of Cerner , a medical

records provider . When a patient is admitted to a Seasons

hospice, Seasons gathers the medical history of the patient,

including hospital records if the patient has recently been in

the hos pital, and all relevant non - hospital medical records,

including rehab notes, labs and other diagnostic testing

results. This integrated electronic medical record is

accessible to all Seasons hospice team members.

61. Seasons ha s a centralized call center that takes calls

from patients and their families 24 hours a day, seven days a

we e k. At the call center, there are clinicians who are licensed

in every state where Seasons operates who can respond to

questions and provide consultation. The call center s taff has

full access to the patientÓs electronic medical record in real

time. Seasons also requires that all of its staff, including

management at all levels, make calls to check on patients during

the term of their treatment (i.e., not only when a patien t calls

or after the patient has died).

62. In September 2010, Seasons acquired a controlling

interest in a hospice in Miami - Dade County that was formerly

known as Douglas Gardens Hospice. The hospice was acquired from

the Miami Jewish Health System, w hich retains a 20 - percent

ownership in the hospice. At the time Seasons took over Douglas

Gardens Hospice, the census was approximately 63 patients and

the hospice was largely dependent upon referrals from the

relatively small Miami Jewish Health System. Seasons retooled

the makeup of the staff to better reflect the c ountyÓs Hispanic

population and aggressively developed outreach efforts across

the entire c ounty. By the time of the final hearing, Douglas

Gardens had grown to be the second largest hospice in Miami - Dade

County with a census of 520 patients.

63. When Seasons acquired its interest in the Miami - Dade

County hospice, it diligently pursued referrals from assisted

living facilities and nursing homes . In September 2010, Seasons

had 13 admission s from ALFs ; in September 2015 , that number had

risen to 154 admissions.

64. Seasons Ó hospice in Miami - Dade County has contracts

with over 60 percent of the nursing homes in the c ounty. In

September 2015 , the hospice admitted 110 patients from skilled

nursing facilit ie s. It has also pursued marketing to more than

30 acute care hospitals in the county. Today, approximately

40 to 45 percent of Seasons Ó referrals in Miami - Dade County come

from acute care hospitals.

65. The majority of Seasons Ó Miami - Da de County Ós staff,

including its executive director, is bilingual, and the hospice

serves a large number of Hispanic patients. It also employs

five to six chaplains, including non - denominational chaplains, a

rabbi, and a Catholic priest who is able to del iver the

sacrament of l ast rites. Seasons HPC requires all of its

chaplains to be either board - c ertified or become board - certified

within a year of being hired.

66. Seasons HPC has developed a more formalized consulting

arrangement with another national expert, Rabbi Elchonon

Freedman from West Bloomfield, Michigan. Rabbi Freedman has

been involved in the hos pice field since the early 1990 s and has

four CPE units (equivalent to a m asterÓs degree) and is b oard -

certified . He heads t he Jewish Hospice & Ch aplaincy Network in

Michigan which is heavily involved in hospice education across

all denominations.

67. Seasons participate s in the Ð We Honor Veterans Ñ

program, and its Miami program has achieved Level 3 status.

68. Seasons opened a new ho spice in B roward County in

late 2014 , and it became Medicare certified in August 2015.

The Broward hospice h as achieved an average daily census of more

than 50 patients as of the date of the final hearing .

69. Seasons HPC has been successful in opening and grow ing

new hospices in other large metropolitan markets throughout the

country, most of which have no CON requirements and therefore

present significantly higher hospice competition. Examples of

large metropolitan markets where Seasons has successfully opene d

and grown the census of new hospice s include: Phoenix, n orthern

California, San Bernandino, and Houston.

70. Seasons also agreed to condition its CON application

approval on certain agreed services, including:

1) Providing at least two continuing

educ ation units per year to registered

nurses and licensed social workers at no

charge;

2) Offering internship experiences for

various disciplines involved in hospice

care;

3) Donation of $25,000 per year to fund a

wish fulfillment program for its patients

and families;

4) Provision of services outside the

therapies paid for by Medicare; and

5) Voluntary reporting of the Family

Evaluation of Hospice Care survey to AHCA.

C . Gulfside

71. Gulfside is a 501(c)3 community - based, not - for - profit

organizat ion licensed by the AHCA as a hospice .

Gulfside has been providing hospice services in Pasco County for

more the 25 years. Gulfside provides care to all individuals

eligible for care who meet the criteria of terminal illness and

reside within the servic e area. Gulfside is a ccredited by the

Joint Commission with Gold Seal status.

72. Gulfside has grown in scope of services and in terms

of census and coverage. I n July 2004, it had 50 patients and

roughly 30 staff members. It had a limited reach withi n Pasco

County, primarily serving the community of New Port Richey.

Hernando - Pasco Hospice, now known as HPH, was the dominant

hospice provider in Pasco County . Gulfside grew, in part,

through extensive community education to physicians and other

healthc are and service providers, to its current average census

of 360, which makes it the dominant hospice provider in Pasco

County .

73. The leadership at Gulfside has extensive experience in

hospice, senior living , and AlzheimerÓs care and management ,

includ ing the management of senior living and SNF facilities,

and developing new facilities and programs. Gulfside has a

depth of experience in oncology care, social work, nursing,

hospice and palliative medicine, health care administration,

technical developme nt, as well as prog ram and project

development. For example, GulfsideÓs CEO and COO were both part

of the team at LifePathÓs S ervice A rea 6B program (Polk,

Highland and Hardee Counties) as the program was developing ,

growing from a cen sus of 200 to 350 in one year.

74. Each hospice patient at Gulfside meets with its

interdisciplinary team (Ð IDT Ñ) at least bi - weekly to discuss

patients and to review their plan of care and any adjustments to

the care plan. These meetings also include an educational

compo nent for IDT members. IDT meetings also take place when a

patient request s a change in their care plan or should a change

in the patientÓs status trigger a new IDT review.

75. Additionally, the physician member of the IDT will

confer on a regular basis with the h ospice medical d irector to

obtain guidance and advice. The s piritual and pastoral care

staff are also part of the IDT .

76. Gulfside has extensive orientation and training for

newly hired staff, requires that new staff must demonstrate core

c ompetencies before rendering services, and requires all staff

to regularly demonstrate their competencies at GulfsideÓs

recurring Ðskills days.Ñ Gulfside encourage s all disciplines of

its staff to maintain competencies, receive additional training,

and ea rn continuing education units in their respective fields .

77. Field staff use web - connected laptops and smartphones

to assist with documentation and make live updates to the

Electronic Medical Record (Allscripts) which Gulfside phased in

over two years ago. Gulfside also has software programs which

help to identify potential hospice referrals, allowing them to

focus their outreach and education efforts to reach new

patients.

78. Gulfside has inpatient and other hospice service

agreements with every h ospital and nursing home in Pasco County.

79. Gulfside has a very involved structure for internal

improvement and regulatory compliance. There are a series of

audits conducted by supervisors and others throughout its

organization to ensure proper care, documentation and

compliance. This type of review for performance improvement has

been in place at Gulfside since 2005. Gulfside uses the

services of DEYTA, a national organization, to assist it with

the processing and data aggregation of its CHA Ps resu lts as part

of its benchmarking for excellence. GulfsideÓs commitment to

quality and compliance w as recognized in their las t CMS and

State Survey results, both of which were deficiency - free.

80. GulfsideÓs v olunteer s ervices are well - developed,

allowin g trained and supervised v olunteers to work

in administration, patient care, patient support, and even as

part of the spiritual care team.

81. Gulfside was awarded the Florida Hospices and

Palliative Care AssociationÓs Excellence Award in 2015 for its

specialized Spiritual Care Volunteer Program. That p rogram uses

volunteers with spiritual or counseling training, including

Stephen Ministers (lay - ministers) and retired clergy, to

primarily serve patients with memory impairments , allowing the

hospice ch aplains to focus their efforts on patients with a more

involved spiritual plan of care that might involve complicated

unresolved r elationships and life review.

82. Community o utreach and e ducation and marketing efforts

by hospices are important for a ho spice to be part of the

community. Gulfside has an extensive history of outreach

programs that include educational programs for physicians and

facility staff, programs to honor local veterans, and to provide

education and support to caregivers, patients, and to others

caring for family and loved ones with life limiting illnesses.

83. Local fundraisers and events help keep Gulfside in

touch with the community at large, in addition to raising fund s

which help support its mission. GulfsideÓs Thrift Shop

o perations are part and parcel of this community presence. The

thrift shop operations are a significant source of GulfsideÓs

operating revenues.

84. If approved, Gulfside would focus its attention to

end - stage heart disease patients, as its research sho wed that

fewer patients with this diagnosis were currently being served

in Hillsborough County. Gulfside has developed special program

to serve these pati ents and their unique needs. The end - stage

heart disease incidence rate in Hillsborough County for t he

Hispanic population was 25 percent , much higher than the

incidence rate for the population at large of seven percent .

Gulfside sees this fact as evidence of need for more focused

services.

85. Another unique trend Gulfside identified in

Hillsborough County is a comparatively higher infant mortality

rate when compared to the state average. In response to that

identified trend, Gulfside proposed a program to meet the need

for anticipatory grief and bereavement counseling for the

parents and siblings o f these infants and children.

86. Gulfside currently has well - established relationships

with providers in Hillsborough County, physicians, hospitals,

SNFs, and conducts outreach and education as part of its mission

to educate about hospice , as well as t o serve the increasing

number of patients its serves who are Hillsborough County

residents.

87 . Gulfside agreed to a number of conditions for approval

of its CON application:

• Condition 1 is for enhanced services to

Veterans. Gulfside is a Level 4 W e Honor

Veterans provider.

• Condition 2 is for special bereavement

programs and is consistent with GulfsideÓs

programs and includ es the traumatic loss

program.

• Condition 3 is for special programs not

covered by Medicare, and these programs all

complimen t the patient and family hospice

experience and are incorporated into how

Gulfside provides care. These programs

include:

• (a) Pet Peace of Mind program for ensuring

patients and families are not burdened with

additional stress worrying about the care of

their pets.

• (b) Treasured Memories, an interactive

craft - based activity to express feelings and

to create a tangible reminder of the

patient .

• (c) Heartstrings, a program using Reverie

Harps to provide a soothing focus for

patients and families, and include the

patient playing the Harp. The Reverie Harp

is a unique instrument which is auto - tuned

and harmonizing; anyone can play it and make

beautiful soothing music.

• Condition 4 provides for an Ethics Committee

to assist with dilemmas and concer ns for

professionals and others when there is a

question regarding cultural, religious, or

clinical questions about the appropriateness

or compatibility of a course of care or

other decisions related to a patient .

• Condition 5 is for GulfsideÓs Crisis

Stab ilization program which has become a

significant program as troubled family

dynamics and other at - risk situations seem

to arise with more frequency.

• Condition 6 is for the Patient and Family

Resource Navigator, a program already being

used in Pasco Coun ty which assists patients

and families to identify community and

governmental benefits and resources which

may be available to them and assisting them

with applying or acces sing the benefits or

resources.

• Condition 7 is to provide programs for

patients whose primary language is not

English. This will include providing for

translations and to recruit bilingual staff

and volunteers.

• Condition 8 reflects that Gulfside is an

Ðopen accessÑ hospice, providing complex

therapies such as infusion therapies,

d obutamine, special wound care, palliative

chemotherapy and palliati ve radiation to its

patients.

• C ondition 9 was for Gulfside to offer non -

cancer patient outreach and education. This

includes the previously discussed end - stage

heart disease and Alzheim erÓs patients.

• Condition 10, Gift of Presence for the

actively dying , will require the provision

of specially trained volunteers to be

present with patients and families during

the last stages to assist and c omfort them .

• Condition 11 is related to phy sician and

clinician education , and networking programs

to educate community practitioners and

aligned professionals about hospice and

palliative care and to provide peer - to - peer

networks.

• Condition 12, provides for professional and

physician internshi ps and residencies, as

well as the use of professional volunteers

to educate about hospice and pal liative care

services .

• Condition 13 is for the development and

implementation of the Patient and Family

s ecure web - portal .

• Condition 14 provides that Gu lfside will

establish a separate foundation for

Hillsborough County to help cover patient

needs and expensive treatments. Gulfside

will provide seed - money of $25,000 and

donations will remain in Hillsborough Cou nty

as part of this Condition.

• Condition 15 is for the rapid licensure of

the new Gulfside program in Hillsborough

County. Gulfside will file its licensure

application to add Hillsborough County to

its existing license within 5 days of

receipt of the CON.

88. GulfsideÓs corporate office in L and OÓLakes and its

freestanding hospice inpatient facility in Zephyrhills would be

used to support the Hillsborough County program. Both are

located just north of the county line. Gulfside will not need

to add administrative capabilities or staff at its c orporate

o ffice to initially support staff and the incremental additional

patients served in Hillsborough County. The existing supports

for the new program would allow it to enjoy improved economies

of scale and efficiencies.

89. Gulfside projects it will take approximately 45 days

to receive a license from AHCA . During that time, existing

staff will be canvassed to see which of them would like to work

in the new Hillsborough County program. Gulfside would only

need to assemble one additional IDT in itially to begin serving

the new service area. G ulfside would provide services in

Hillsborough County through existing experienced staff now

working in Pasco Countyavel requirements for the

Hillsborough County staff would not differ much from what is

commonly seen in Pasco County, because Pasco has many remote

areas that Gulfside serves. Gulfside already has 25 current

staff who reside in Hillsborough County.

90. Because Gulfside is not creating a new Medicare

provider or newly licensed entity in Florida, it c ould begin

offering services as a fully - licensed and Medicare Certified

provider as soon as it has a license from AHCA. All of

GulfsideÓs current ancillary services and supply contractors

already serve Hillsborough (as well as Pasco) County a nd all of

these contracts necessary for delivering hospice care can

readily be expanded to include Hillsborough County.

91. Gulfside will serve all of Hillsborough County through

its extensive network of relationships throughout the county.

Pasco and H illsborough Counties are part of the same recognized

healthcare market with patients flowing between the two

counties. Gulfside expects its initial referrals will origina te

in the northern part of the c ounty due to its strong referral

relationships with p roviders in that area , and GulfsideÓs

assessments showed greater unmet need in that same area. It

will later expand to cover the entire county.

92. GulfsideÓs operations in Hillsborough County would be

more profitable on average than its current operat ions in Pasco

County despite the allocation of administration and corporate

overhead costs to the Hillsborough County program , and despite

the assessment of a seven percent fee for corporate services and

management from the Pasco home office. The cause of this

difference is that the new program in Hillsborough County will

benefit from economies of scale . A dding service volume does not

require the duplication of costs and services for administrative

and other support in place in Pasco County.

93. Gulfsi de had a loss in fiscal year 2015 due to several

sig nificant non - recurring expenses . GulfsideÓs projected budget

for the 2016 fiscal year included a profit of $337,000, and

Gulfside for the first four months of the new fiscal year w as

ahead of budget. Th e 2016 fiscal year budget did not include

those items which Gulfside had identified as non - recurring, and

yet they out - performed that conservative budget, corroborating

that these were non - recurring expenses, and that Gulfside will

be more profitab le than projected in the 2016 fiscal year

budget.

94. Gulfside had a one - year loss for the 2015 fiscal year,

but in that year , it also acquired a significant asset with the

purchase of its corporate center office. Gulfside also

maintained a good cash position and had significant additional

credit available should it have needed to draw on those

resources.

D . Life P ath Ós Position vis - à - vis Competition

95. Due to Life P athÓs growth and its penetration rate

within Service Area 6A , there has not been a need esta blished by

AHCA for another hospice in Hillsborough County until recently.

96. The events leading to the newly establi shed need are

partially of LifeP athÓ s own making, to wit: In May 2013 , the

Centers for Medicare and Medicaid Services (ÐCMSÑ) announce d a

decision to eliminate two categories of diagnosis often used for

hospice care Î Ðdebility, undefinedÑ and Ðfailure to thrive.Ñ The

initial pronouncement from CMS indicated the change would take

effect in approximately October 2013. LifeP ath decided to

immediately stop accepting patients with those diagnoses so as

to be in compliance with the new federal regulatio ns when they

took effect. LifeP ath also informed all its referring partners,

physicians, hospitals, discharge planners, etc., that it would

no t be taking those types of patients any longer. Then CMS

decided to delay implementation of the new policies fo r a year.

By then, LifeP ath had already taken actions resulting in the

loss of some 700 potential admissions. When AHCA did its

hospice need c alculations shortly thereafter, lo and behold ,

there was a ÐshortageÑ of some 700 cases in the use rate portion

of the need calculation formula. As a result, AHCA determined

there was a need for one additional hospice provider in Service

Area 6A. LifeP at h had been hoisted on its own petard.

97. LifeP ath does not challenge the AgencyÓs fixed need

calculation or that another hospice should be approved for

Hillsborough County Service Area 6A. Rather, LifeP ath is

desirous that only the hospice with least potent ial for negative

impact on LifeP ath should be approved.

98. Based on the preponderance of evidence, West Florida

would have the most negative impact on LifePath. Gulfside, due

to its lower census development, would have the least impact.

However , as Seasons would be more likely to completely meet the

need projected by AHCA and would impact LifePath less than would

West Florida, its proposal is the most acceptable.

IV . Statutory and Rule Review Criteria

99. The parties stipulate that: (1) All three applicantsÓ

letters of intent and CON applications were timely and properly

filed with required fees; (2) AHCA duly noticed its preliminary

intent to approve West FloridaÓs CON application and to deny

Seasons and Gulfside; (3) Seasons, Gulfside and Life P ath timely

filed Petitions for Formal Administrative Hearings challenging

AHCAÓs preliminary decision; and (4) Each application contains

the minimum application content prescribed by sections 408.037

and 408.039, Fl orida Stat utes . Also, Schedules A, D - 1, and 10

in each CON application are acceptable and reasonable .

Section 408.035(1) C riteria S tipulations

100. (1)(a) ÐThe need for the health care facilities and

health services being proposed.Ñ Î - T here is a need for one

additional hospice program in Service Area 6A.

101. (1)(b) ÐThe availability, quality of care,

accessibility, and extent of utilization of existing health care

facilities and health services in the service district of the

applicant.Ñ - Î A consideration of this criterion supports the

n eed for one new hospice program in the service area.

102. (1)(d) ÐThe availability of resources, including

health personnel, management personnel, and funds for capital

and operating expenditures, for project accomplishment and

operation.Ñ Î - Each applica nt has adequately projected the

availability of personnel. Each partyÓs Schedul e 6 and staffing

projections are reasonable. Each partyÓs audited financial

statements present an adequate financial condition .

103. (1)(f) ÐThe immediate and long - term f inancial

feasibility of the proposal.Ñ Î - Schedules 1, 2, and 3 in each

application are reasonable and indicate that each applicantÓs

proposal is financially feasible in the short term and long

term.

104. (1)(h) Î ÐThe costs a nd methods of the proposed

cons truction, including the costs and methods of energy

provision and availability of alternative, less costly, or more

effi cient methods of construction.Ñ - This criterion is not

applicable.

Florida Administrative Code Rule 59C - 1.030 S tipulations :

105. (2)(d ) Î ÐIn determining the extent to which a

proposed service will be accessible, th e following will be

considered : . . . T he performance of the applicant in meeting

any applicable Federal regulations . Ñ - Î This criterion w ould

support approval of any of the t hree applicants.

Florida Administrative Code Rule 59C - 1.0355 S tipulations

106. ( 6) Ð An applican t for a new hospice program shall

provide a detailed program description in its certificate of

need appli cation . . . . Ñ Î - Each application contained adequate

evidence regarding the applicantsÓ proposals .

II I. Factors Mitigating Against Approval of West Florida

107. West Florida's proposal to establish a hospital - based

hospice program in Service Area 6A materially differs from

Seasons Ó and Gulfside's propo sals seeking to establish community -

based hospice programs in the service area. There are key

differences between a freestanding or community - based hospice, on

the one hand, and a hospital - based hospice, on the other.

108. Most significantly, in contra st to a community - based

hospice, a hospital - based hospice has ready access to a patient

population ( i.e. , acute care patients at its sponsoring hospital)

from which it may receive referrals.

109. Further, a hospital - based hospice primarily serves

patient s discharged from its sponsoring hospital and not the

community at large, thereby creating a silo of care in which

patients are funneled from the sponsoring hospital to the

affiliate d hospice. Nationally , for the period 2010 through

2014, hospital - based h ospice programs obtained approximately

71 percent of their admissions from hospitals within their own

health system and only six percent of admissions from out - of -

system hospitals.

110. Further, it is possible for a hospital - based hospice

program to quick ly obtain a large volume of admissions by virtue

of its relationship with its sponsoring hospital. The census

development for a community - based hospice program is more

gradual. H ospital - based hospices do not tend to serve the

broader community ; once they have captured all of the admissions

coming out of their own hospital or health system,

they cease to continue to achieve significant market share

growth.

111. Moreover, hospital - based hospices tend to have shorter

average lengths of stay and provide h igher levels of inpatient

care than community - based hospices because they tend to treat

patients with a higher acuity and have easy access to inpatient

beds where they can provide inpatient hospice care. Medicare

reimbursement for general inpatient care i s significantly higher

than for some other types of hospice care. T o the extent that a

hospice provider provides more inpatient care, they will

exper ience higher revenues. This would result in a concomitant

reduction in revenues for a competing hospice i n the same service

area.

112. A pproximately 36 percent of patients discharged from

an acute care hospital in Hillsborough County and admitted to a

hospice program are discharged from one of West Florida's

sponsoring hospitals. I n 2014, approximately 46 percent of

LifePath's admissions were referred from acute care hospitals.

Accordingly, even if West Florida made no effort to obtain

referrals to its program from sources other than its affiliate

organizations, approximately 16.6 percent of LifePath's

ad missions could be at risk if West Florida's proposed project is

approved.

113. Mr. Michael Schultz, the CEO of Florida Hospital's

West Florida Region, testified that the goal of Tampa General and

Florida Hospital is to manage a patient's entire episode of care

and that if West Florida's application were approved, both

hospital organizations would "absolutely" prefer to have West

Florida provide hospice care to patients discharged from its

hospitals. LifeP ath 's projection that it would lose 20 percent

o f its admissions if West Florida's a pplication w as approved is

reasonable.

114. Mr. Burkhart discussed West FloridaÓs desire to

develop a Ðcovered livesÑ strategy or network, where the

hospital system can control how the dollars are spent and how

the car e is delivered. West Florida applied for a hospice CON

for two reasons: 1) AHCA had published need; and 2) because Ðwe

wish to have more control over a piece of the hospice continuum

so that when weÓre doing things like narrow networks, we have

that in o ur portfolio under our control.Ñ T r . , p. 99. In a

covered lives network, a hospice patient would pay less if they

went to a West Florida affiliated hospice, and more if they went

to Lifepath or another out - of - network hospice.

115. West Florida plans t o open satellite hospice offices

in Tampa General and in the two Florida Hospitals located in

Hillsborough County. There was no mention of the desire or

possibility of opening satellite hospice offices in any of the

non - West Florida affiliated hospitals l ocated in Hillsborough

County. From a practical perspective, it seems unlikely that

competing hospital systems would welcome such involvement by a

competitor.

Seasons

116. Seasons is the only applicant without a current

connection to the healthcare com munity in Hillsborough County.

It has, however, some experience in other Florida markets.

117. Fewer of SeasonsÓ programmatic proposals are directly

tied to a Condition of CON approval, but the programs are

nonetheless generally universal in Seasons HP C operations.

Gulfside

118. Service Area 6A has a sizeable Hispanic population,

but Gulfside has very limited experience in treating Hispanics.

In fact, only 3.3 percent of its recent admissions are Hispanic.

GulfsideÓs COO did not know how many, if an y, of GulfsideÓs

existing staff was bilingual. Today, Gulfside relies on

interpreters who are accessed through a language line to

communicate with Hispanic patients and family members. Since

Gulfside plans to utilize existing staff to serve Hillsborough

County, it will need to continue to rely upon interpreters to

comm unicate with Hispanics in that c ounty. To the extent the

Hispanic population in Hillsborough County is underserved, or

there is a need to ensure that these patients have a choice of

hospice providers that are committed to meeting their needs,

Seasons demonstrated far more experience and ability than

Gulfside.

119. Seasons projected 516 admissions in year two while

Gulfside pro jected 276 admissions. Seasons ha s reasonably

projected to ac hieve 240 more admissions in year 2 than Gulfside

and thus will do a better job in meeting the unmet need. West

Florida also projects more admissions than Gulfside.

IV. Ultimate Findings of Fact

120. Each of the applicants, as advertised, could provide

quality hospice services to the residents of AHCA Service

Area 6A/Hillsborough County.

121. The proposal by West Florida would be more likely to

serve its own hospital patients than the community at large.

This would have the effect of less penetration by West Florida

in the service area as a whole. It would also likely result in

West Florida retaining more of the most critically ill hospice

patients (i.e., those with shorter lengths of stay) , thereby

benefitting from the new reimbursement rules to the exclusion of

the competing hospice.

122. Gulfside w ould be able to commence operations in

Hillsborough County more quickly than Seasons or West Florida .

It has connections with other healthcare providers in

Hillsborough County and c ould easily transit ion to that

geographic area. However, it proposes less growth and coverage

than either Seasons or West Florida, thus will less likely meet

the need which currently exists .

123. Seasons ha s the financial and operational wherewithal

to be successful in H illsborough County. It has more experience

(and success) in starting a new hospice than the other

applicants. Its programs are well - established and conducted by

experts in their fields. Seasons would meet the need for a new

hospice provider in Service A rea 6A b etter than the other

applicants .

124. Upon consideration of all the facts in this case,

Season s Ó application , on balance, is the most appropriate for

approval.

CONCLUSIONS OF LAW

Jurisdiction

125. The Division of Administrative Hearings has

j urisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

Burden of Proof

126. As applicants, West Florida, Seasons, and Gulfside

each has the burden of proving, by the preponderance of the

evidence, entitlement to a CON. Boca Raton Artificial Kidney

C t r . , Inc. v. Dep Ó t of Health & Rehab . Servs . , 475 So. 2d 260

(Fla. 1st DCA 1985); § 120.57(1)(j), Fla. Stat. Each of the

applicants proved that they met all the necessary criteria for

approval. Howeve r, there is a need for only one of the three to

be approved.

127. The award of a CON must be based on a balanced

consideration of all applicable and statutory rule criteria in

section 408.035, Florida Statues . Balsam v. Dep Ó t of Health &

Rehab . Servs . , 486 So. 2d 1341 (Fla. 1st DCA 1986). Ð [T]he

appropriate weight to be given to each individual criterion is

not fixed, but rather must vary on a case - by - case basis,

depending upon the facts of each case." Collier Med . C tr. , Inc.

v. Dep Ó t of Health & Reha b . Servs . , 462 So. 2d 83, 84 (Fla. 1st

DCA 1985). In the present case, the weighing of criteria must

be done comparatively.

128. An administrative hearing involving disputed issues

of material fact is a de novo proceeding in which the

administrative la w judge independently evaluates the evidence

presented. Fla . Dep Ó t of Transp . v. J.W.C. Co. , 396 So. 2d 778,

787 (Fla. 1st DCA 1981); § 120.57(1), Fla. Stat. The Agency's

preliminary decisions on CON applications, including its

findings in the S tate A gen cy A ction R eport , are not entitled to

a presumption of correctness. Id.

129. Pursuant to the its hospice rule need methodology,

the Agency determined that there is a projected need for only

one new hospice program in Service Area 6A for the applicab le

planning horizon.

130. The existence of a numeric need pursuant to the rule

creates a rebuttable presumption of need for an additional

hospice program in the service area. Vitas Healthcare Corp. of

Cent . Fla . v. Ag. for Health Care Admin . , Case No. 04 - 3858CON,

2005 Fla. Div. Admin. Hear. LEXIS 881, *61 - 62 (DOAH June 14,

2005; AHCA July 7, 2005)(citation omitted).

1 31 . There is no persuasive evi de nce to rebut the

presumption of need.

1 32 . All of the applicants are well qualifie d to meet the

pro jected need for an additional hospice program in the service

area. One of them, Seasons, will meet the need more

appropriately than the other applicants.

1 33 . Based upon the totality of the circumstances and for

all of the reasons stated in the Finding s of Fact, o n balance ,

the advantage goes to Seasons over Gulfside or West Florida .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered approving Season s

Hospice and Palliative C are of Tampa, LLCÓs , CON No. 10298 and

denying West Florida Health, Inc.Ós , CON No. 10302 and Gulfside

Hospice & Palliative Care of Tampa, LLCÓs , CON No. 10294 .

DONE AND ENTE RED this 21st day of March, 2016 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of March, 2016 .

COPIES FURNISHED:

Stephen K. Boone, Esquire

Boone, Boone, Boone and Koda, P.A.

1001 Avenida Del Circo

Post Office Box 1596

Venice, Florida 34284

(eServed)

Lorraine Mar ie Novak, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Seann M. Frazier, Esquire

Parker, Hudson, Rainer and Dobbs, LLP

Suite 750

215 South Monroe Street

Tallahassee, Florida 32301

( eServed)

Jonathan L. Rue, Esquire

Parker, Hudson, Rainer

and Dobbs, LLC

303 Peachtree Street N ortheast , Suite 3600

Atlanta, Georgia 30308

(eServed)

Karl David Acuff, Esquire

Law Office of Karl David Acuff, P.A.

Suite 2

1615 Village Square Boulevard

Ta llahassee, Florida 32309 - 2770

(eServed)

Stephen C. Emmanuel, Esquire

Michael J. Glazer, Esquire

Ausley & McMullen

123 South Calhoun Street

Post Office Box 391

Tallahassee, Florida 32301

(eServed)

Richard J. Shoop, Agency Clerk

Agency for Health Care Ad ministration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Stuart Williams, Gen eral Co unsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Elizabeth Dudek, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

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 e xceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.