21-000889CON The Hospice Of Florida Suncoast, Inc. vs. Agency For Health Care Administration Status: Closed Recommended Order on Wednesday, June 16, 2021.

Summary: Petitioners have failed to demonstrate that the FNP determination under challenge herein is in error. Not proper to consider "provisional" deaths data and VA hospice admissions.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

S EASONS H OSPICE A ND P ALLIATIVE C ARE

OF P INELLAS C OUNTY , LLC ,

Petitioner ,

vs. Case No. 21 - 0888CON

A GENCY FOR H EALTH C ARE

A DMINISTRATION ,

Respondent,

and

C ORNERSTONE H OSPICE & P ALLIATIVE

C ARE , I NC .; VITAS H EALTHCARE

C ORPORATION OF F L OR IDA ; A ND

H ERNANDO - P ASCO H OSPICE , I NC .,

Intervenors.

/

T HE H OSPICE OF F LORIDA S UNCOAST ,

I NC .,

Petitioner,

vs. Case No. 21 - 0889CON

A GENCY FOR H EALTH C ARE

A DMINISTRATION ,

Respondent,

and

C ORNERSTONE H OSPICE & P ALLIATIVE

C ARE , I NC .; VITAS H EALTHCARE

C ORPORATION OF F L OR IDA ; A ND

H ERNANDO - P ASCO H OSPICE , I NC .,

Intervenors.

/

R ECOMMENDED O RDER

Pursuant to notice, a formal hearing was held in th ese case s on May 3

and 4, 2021, before W. David Watkins, a duly designated Administrative Law

Judge (ÑALJÒ) of the Division of Administrative Hearings (ÑDOAHÒ) .

A PPEARANCES

For Petitioner The Hospice of the Florida Suncoast, Inc.:

Seann M. Frazier , Esquire

Kristen Bond Dobson , Esquire

Parker , Hudson, Ra i ner & Dobbs , LLP

215 South Monroe Street, Suite 750

Tallahassee, Florida 32301

For Petitioner Seasons Hosp ice and Palliative Care of Pinellas County,

Inc.:

Stephen C. Emmanuel , Esquire

E ugene Dylan Rivers , Esquire

Ausley & McMullen

123 South Calhoun Street

Tallahassee, Florida 3230 1

For Respondent Agency for Health Care Administration:

Julia E lizabeth Smit h, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

For Intervenor Cornerstone Hospice and Palliative Care, Inc.:

D. Ty Jackson , Esquire

GrayRobinson, P.A.

301 South Bronough Street, Suite 600

Post O ffice Box 11189

Tallahassee, Florida 32302

Karl David Acuff , Esquire

Law Office s of Karl David Acuff, P.A.

1615 Village Square B oulevard , Suite 2

Tallahassee, Florida 32309 - 2770

For Intervenor VITAS Healthcare Corporation of Florida:

Stephen A. Ece nia , Esquire

Gabriel F. V. Warren , Esquire

Rutledge Ecenia , P.A.

119 South Monroe Street, Suite 202

Post Office Box 551

Tallahassee, Florida 32301

For Intervenor Hernando - Pasco Hospice, Inc.:

David C. Ashburn , Esquire

Michael J. Cherniga , Esquire

Greenb erg Traurig, P.A.

101 E ast College Avenue

Post Office Drawer 1838

Tallahassee, Florida 32301

S TATEMENT OF T HE I SSUE

Whether there is Ñan error in the Fixed Need Pool numbersÒ for hospice as

calculated by the Agency for Health Care Administration (ÑAHCAÒ ) pursuant

to Florida Administrative Code Rule 59C - 1.0355(4)(a), and as published by

AHCA on February 5, 2021, pursuant to r ule 59C - 1.008(2)(a).

P RELIMINARY S TATEMENT

On February 5, 2021, AHCA published a fixed need pool (ÑFNPÒ) for one

new hospice progra m in AHCA Hospice Service Area (ÑHSAÒ) 5B, Pinellas

County.

On February 15, 2021, pursuant to r ule 59C - 1.008(2)(a)2., The Hospice of

the Florida Suncoast, Inc. (ÑSuncoastÒ) , and Seasons Hospice and Palliative

Care of Pinellas County, LLC (ÑSeasons Pinella sÒ) (collectively, ÑPetitionersÒ) ,

timely advised AHCA in writing of errors in the FNP numbers for HSA 5B.

On February 17, 2021, AHCA notified both Suncoast and Seasons Pinellas

that it had reviewed the information provided and concluded that the

published need was correct, and a revision to the FNP was not warranted.

Suncoast and Seasons Pinellas filed Petitions for Formal Administrative

Proceeding challenging AHCAÔs preliminary determination that there was no

error in the FNP numbers, pursuant to section s 120.569 and 120.57(1),

Florida Statutes, and Florida Administrative Code R ules 28 - 106.201 and

59C - 1.008(2)(a)2. AHCA referred the petitions to DOAH on March 9, 2021.

Cornerstone Hospice & Palliative Care, Inc. (ÑCornerstoneÒ), VITAS

Healthcare Corporatio n of Florida (ÑVITASÒ), and Hernando - Pasco Hospice,

Inc. (ÑHPHÒ) (collectively ÑIntervenorsÒ) , were each granted intervention. On

March 23, 2021, these matters were consolidated and noticed for hearing.

On March 25, 2021, Intervenors filed a Joint Motion to Relinquish

Jurisdiction in which AHCA joined. The motion sought an order relinquishing

jurisdiction on the grounds that there were no disputed issues of material

fact to resolve, and the relief requested in the petitions was not relief that

could be gra nted in the error notification provision contained in r ule 59C -

1.008(2)(a).

On March 26, 2021, AHCA filed a Motion to Dismiss for Failure to State a

Cause of Action Upon which Relief May Be Granted, and incorporated

memorandum of law. This motion was aga in based on the assertion that

there were no material facts in dispute, and the argument that the relief

P etitioners sought, use of an alternate methodology or an order forcing AHCA

to use discretion to cancel the application cycle , was not available in a n FNP

challenge proceeding. On March 31, 2021, Petitioners sought an extension of

time to respond to both motions (to April 5, 2021) , which was granted by

Order dated April 1, 2021. On April 5, 2021, Petitioners filed joint responses

to each of the potentia lly dispositive motions.

During the pendency of the above motions, Suncoast filed a Petition to

Determine the Invalidity of Existing Rule 59C - 1.0355(4)(a), Florida

Administrative Code (Ñrule challengeÒ), alleging that AHCAÔs hospice need

methodology shou ld include admissions to programs designated as ÑhospiceÒ

that are run by the federal Veterans Administration (ÑVAÒ) hospitals in

calculating need. The Hospice of the Florida Suncoast, Inc. v. Ag. for Health

Care Admin. , Case No. 21 - 1250RX Petition to Dete rmine Invalidity of

Existing Rule 59C1.0355(4)(a) (Apr. 7, 2021). On April 8, 2021, Suncoast filed

a Notice of Related Case with respect to its rule challenge and the matter sub

judice .

On April 8, 2021, a motion hearing was held on the Motion to Relinqui sh

Jurisdiction and on the Motion to Dismiss for Failure to State a Claim Upon

Which Relief May Be Granted. During the hearing, Suncoast stated its intent

to seek consolidation of its rule challenge with this case. At the close of the

motion hearing, AHCA and Intervenors were granted until April 13, 2021 , to

file written argument in opposition to consolidation with SuncoastÔs rule

challenge.

On April 9, 2021, Suncoast filed its motion to consolidate the instant case

with the rule challenge. Also , on April 9, 2021, Cornerstone filed a motion to

intervene in the rule challenge. On April 12, 2021, Hospice of the Treasure

Coast and Hospice of Martin & St. Lucie, Inc. , each moved to intervene in the

rule challenge. Also , on April 12, 2021, Suncoast filed a notic e of voluntary

dismissal pursuant to which the rule challenge was closed without hearing.

See The Hospice of the Florida Suncoast v. Ag. For Health Care Admin. ,

Case No. 21 - 1250RX, Notice of Voluntary Dismissal (Apr. 12, 2021) , and

Order Closing Case File (Apr. 13, 2021).

On April 12, 2021, an Order Denying IntervenorsÔ Joint Motion to

Relinquish Jurisdiction was entered. Also , on April 12, 2021, an O rder was

entered denying AHCAÔs Motion to Dismiss.

On April 29, 2021, the parties filed their Joint Pre - h e aring Stipulation,

which included several stipulated facts. To the extent relevant, those

stipulated facts have been incorporated in this Recommended Order.

The final hearing convened on May 3 and 4, 2021. Suncoast presented

testimony from: James McLemore ; Kerry Hoerner; and Armand Balsano,

accepted as an expert in health care planning. Suncoast also presented the

testimony of two witnesses who testified in video - taped preservation

depositions: Shaun Hilzman, Acting Assistant Chief for Health

Administratio n Service, Bay Pines VA Healthcare System (ÑBay PinesÒ); and,

Laura Fowkes, Government Information Specialist and designated

Privacy/FOIA Officer for Bay Pines. SuncoastÔs Exhibit Nos. 1 through 30, 32,

33, and 38 through 40 were admitted into evidence.

S easons Pinellas did not present testimony from any additional witnesses.

Seasons PinellasÔs Exhibit No. 1 was admitted into evidence.

AHCA did not present testimony from any additional witnesses. AHCAÔs

Exhibit Nos. 20 and 21 were admitted into evidence.

Intervenors did not present testimony from any additional witnesses.

Intervenors provided one set of exhibits, which they referred to as

ÑIntervenorsÔ Joint Exhibit List.Ò IntervenorsÔ Exhibit Nos. 1 and 2 were

admitted into evidence.

In addition to the above - referenced e xhibits, the parties offered several

joint exhibits. Joint Exhibit Nos. 1 through 8 were admitted into evidence.

The final hearing T ranscript, consisting of three volumes and 327 pages,

was filed with DOAH on May 10, 2021.

While the hea ring concluded on May 4, 2021, the record was kept open to

address evidentiary rulings on the deposition testimony and exhibits of

Shaun Hilzman and Laura Fowkes. On May 14, 2021, the undersigned issued

an Order On IntervenorsÔ Joint Objections to Depositi on Testimony and

Exhibits Concerning ÑHospice AdmissionsÒ to Bay Pines Healthcare System.

The filing deadline for p roposed r ecommended o rders was set for May 18,

2021, so, at the request of Petitioners, the undersignedÔs Recommended Order

would be due bef ore AHCA issued its initial decisions in the Hospital

Facilities and Hospice: 1st Batching Cycle Ï 2021. All parties timely filed

Proposed Recommended Orders, each of which has been carefully considered

in the preparation of this Recommended Order.

Unless otherwise noted, all statutory references are to the 2020 version of

the Florida Statutes.

F INDINGS OF F ACT

Based upon the credibility of the witnesses and evidence presented at the

final hearing and on the entire record of this proceeding, the following

F indings of F act are made:

The Parties

1. AHCA is designated as the single state agency for the issuance, denial

and revocation of certificates of need (ÑCONsÒ), including exemptions and

exceptions in accordance with present and future federal and stat e statutes.

2. Suncoast is a licensed hospice program serving HSA 5B, which is

comprised entirely of Pinellas County. As an existing hospice provider in

HSA 5B, Suncoast is substantially affected by the publication of the FNP at

issue in this proceeding a nd has standing to challenge Ñan error in the Fixed

Need Pool numbersÒ as set forth in r ule 59C - 1.008(2)(a)2.

3. Seasons is also a licensed hospice program serving HSA 5B. As an

existing hospice provider in HSA 5B, Seasons is substantially affected by the

publication of the FNP at issue in this proceeding and has standing to

challenge Ñan error in the Fixed Need Pool numbersÒ as set forth in r ule 59C -

1.008(2)(a)2.

4. Cornerstone is an applicant for a CON for a new hospice program in

HSA 5B predicated, at le ast in part, on the publication of the FNP under

challenge in this proceeding. Cornerstone is substantially and adversely

affected by the potential change of the FNP from a determination of need for

a new hospice program to no need for a new hospice progra m in HSA 5B, and

therefore has standing to intervene in this proceeding.

5. HPH is an applicant for a CON for a new hospice program in HSA 5B

predicated, at least in part, on the publication of the FNP under challenge in

this proceeding. HPH is substantial ly and adversely affected by the potential

change of the FNP from a determination of need for a new hospice program to

no need for a new hospice program in HSA 5B, and therefore has standing to

intervene in this proceeding.

6. VITAS is an applicant for a C ON for a new hospice program in HSA 5B

predicated, at least in part, on the publication of the FNP under challenge in

this proceeding. VITAS is substantially and adversely affected by the

potential change of the FNP from a determination of need for a new h ospice

program to no need for a new hospice program in HSA 5B, and therefore has

standing to intervene in this proceeding.

AHCAÔs Calculation and Publication of the Fixed Need Pool

7. As part of its responsibilities under the CON laws, AHCA is required t o

establish, by rule, uniform need methodologies for CON - regulated health

facilities and services. Those need methodologies must take into account Ñthe

demographic characteristics of the population, the health status of the

population, service use patterns , standards and trends, geographic

accessibility, and market economics.Ò £ 408.034(3), Fla. Stat.

8. Rule 59C - 1.0355 codifies the uniform need methodology that applies to

hospice programs. The rule defines twenty - seven (27) service areas, and

AHCA uses the need methodology in rule 59C - 1.0355(4)(a) to calculate

numeric need for hospice programs for each of the 27 HSAs. The results of

those calculations determine whether there is a n FNP of one, or zero, in each

of the 27 HSAs.

9. Typically, AHCA publishes nee d projections for hospice programs twice

per year in Ñbatching cycles.Ò See Fla. Admin. Code R. 59C - 1.008(1)(g),

(2)(a). 1 , 2

10. Rule 59C - 1.008(2)(a) allows parties to identify purported ÑerrorsÒ in

the FNP numbers published by AHCA :

2. Any person who ident ifies an error in the Fixed

Need Pool numbers must advise the Agency of the

error within 10 days of the date the Fixed Need

1 As explained below, AHCA cancelled the CON Hospital Facilities and Hospice 2nd Batching

Cycle for 2020.

2 Although AHCA typically publishes need projections for hospice programs twice per ye ar,

Florida law requires only one FNP publication per year. See £ 408.039(1), Fla. Stat. (ÑThe

agency by rule shall provide for applications to be submitted on a timetable or cycle basis;

provide for review on a timely basis; and provide for all completed applications pertaining to

similar types of services or facilities affecting the same service district to be considered in

relation to each other no less often than annually .Ò) . (emphasis added).

Pool was published in the Florida Administrative

Register. If the Agency concurs in the error, the

Fixed Need Pool number will be ad justed and re -

published in the first available edition of the

Florida Administrative Register. Failure to notify

the Agency of the error during this time period will

result in no adjustment to the Fixed Need Pool

number for that batching cycle.

3. Except as provided in subparagraph 2. above, the

batching cycle specific Fixed Need Pools shall not

be changed or adjusted in the future regardless of

any future changes in need methodologies,

population estimates, bed inventories, or other

factors which would le ad to different projections of

need, if retroactively applied.

Fla. Admin. Code R. 59C - 1.008(2)(a)2. and 3.

11. It is undisputed that AHCAÔs rules do not define ÑerrorÒ as that term

is used in r ule 59C - 1.008(2)(a)2. Although there is no definition of the word

Ñerror,Ò AHCA limits its interpretation of the word to only ÑmathematicalÒ

errors or late - filed hospice admissions by Florida licensed hospice programs

pursuant to r ule 59C - 1.0355(8).

PetitionersÔ Fixed Need Pool Challenge

12. On February 5, 2021, A HCA published a n FNP for one new hospice

program in HSA 5B. Suncoast timely advised AHCA in writing of two

purported errors it had identified in the FNP. Specifically, Suncoast asserted

that: (1) AHCAÔs calculations incorrectly predict future need based up on a

spike in admissions caused by the COVID - 19 pandemic that will not exist

when the planning horizon arrives 3 ; and (2) AHCA has not accounted for

actual hospice admissions by VA hospitals that provide hospice care in

Pinellas County.

3 Even before AHCAÔs publication on February 5, 2021, Suncoa st requested that AHCA

suspend the Hospital Facilities and Hospice 1st Batching Cycle for 2021, citing the

COVID - 19 pandemic.

13. Seasons Pinella s also timely advised AHCA in writing of the same two

purported errors in the FNP.

14. On February 17, 2021, AHCA issued separate but identical responses

to Suncoast and Seasons Pinellas, stating that Ñthe published need is correct

and a revision to the f ixed need pool is not warranted.Ò

The Hospice Need Methodology

15. Under AHCAÔs hospice need methodology, numeric need for an

additional hospice program is demonstrated if the projected number of

unserved patients who would elect a hospice program is 35 0 or greater.

16 . The net need for a new hospice program in a n HSA is calculated as

follows:

Numeric Need for a New Hospice Program. Numeric need for an

additional Hospice program is demonstrated if the projected number of

unserved patients who would elec t a Hospice program is 350 or greater. The

net need for a new Hospice program in a service area is calculated as follows:

(HPH) -- (HP) ² 350

where:

(HPH) is the projected number of patients electing

a Hospice program in the service area during the

12 - month period beginning at the planning horizon.

(HPH) is the sum of (U65C x P1) (65C x P2)

(U65NC x P3) (65NC x P4)

w here:

U65C is the projected number of service area

resident cancer deaths under age 65, and P1 is the

projected proportion of U65C electing a Hospice

program.

65C is the projected number of service area

resident cancer deaths age 65 and over, and P2 is

t he projected proportion of 65C electing a Hospice

program.

U65NC is the projected number of service area

resident deaths under age 65 from all causes except

cancer, and P3 is the projected proportion of

U65NC electing a Hospice program.

65NC is the proje cted number of service area

resident deaths age 65 and over from all causes

except cancer, and P4 is the projected proportion of

65NC electing a Hospice program.

The projections of U65C, 65C, U65NC, and 65NC

for a service area are calculated as follows:

U65C = (u65c/CT) x PT

65C = (65c/CT) x PT

U65NC = (u65nc/CT ) x PT

65NC = (65nc/CT) x PT

where:

u65c, 65c, u65nc, and 65nc are the service area's

current number of resident cancer deaths under

age 65, cancer deaths age 65 and ov er, deaths

under age 65 from all causes except cancer, and

deaths age 65 and over from all causes except

cancer.

CT is the service area's current total of resident

deaths, excluding deaths with age unknown, and is

the sum of u65c, 65c, u65nc, and 65nc.

P T is the service area's projected total of resident

deaths for the 12 - month period beginning at the

planning horizon.

ÑCurrentÒ deaths means the number of deaths

during the most recent calendar year for which

data are available from the Department of Heal th,

Office of Vital Statistics at least 3 months prior to

publication of the Fixed Need Pool.

ÑProjectedÒ deaths means the number derived by

first calculating a 3 - year average resident death

rate, which is the sum of the service area resident

deaths for t he three most recent calendar years

available from the Department of Health, Office of

Vital Statistics at least 3 months prior to

publication of the Fixed Need Pool, divided by the

sum of the July 1 estimates of the service area

population for the same 3 years. The resulting

average death rate is then multiplied by the

projected total population for the service area at

the mid - point of the 12 - month period which begins

with the applicable planning horizon. Population

estimates for each year will be the most recent

population estimates from the Office of the

Governor at least 3 months prior to publication of

the Fixed Need Pool.

The projected values of P1, P2, P3, and P4 are

equal to current statewide proportions calculated

as follows:

P1 = (Hu65c/Tu65c)

P 2 = (H65c/T65c)

P3 = (Hu65nc/Tu65nc)

P4 = (H65nc/T65nc)

where:

Hu65c, H65c, Hu65nc, and H65nc are the current

12 - month statewide total admissions of Hospice

cancer patients under age 65, Hospice cancer

patients age 65 and over, Hospice patients under

a ge 65 admitted with all other diagnoses, and

Hospice patients age 65 and over admitted with all

other diagnoses. The current totals are derived

from reports submitted under subsection (8) of this

rule.

Tu65c, T65c, Tu65nc, and T65nc are the current

12 - mont h statewide total resident deaths for the

four categories used above.

(HP) is the number of patients admitted to Hospice

programs serving an area during the most recent

12 - month period ending on June 30 or

December 31. The number is derived from reports

s ubmitted under subsection (8) of this rule.

350 is the targeted minimum 12 - month total of

patients admitted to a Hospice program.

( Fla. Admin. Code R. 59C - 1.0355(4)(a)) .

17 . While daunting in its length and complexity, the methodology can

succinctly be summarized as follows: AHCA makes a projection of future

hospice need in a n HSA which is abbreviated as Ñ(HPH)Ò; AHCA then

subtracts from that projection the actual number of hospice admissions in the

HSA, which is abbreviated Ñ(HP) . Ò If the result of tha t subtraction is 350 or

greater, AHCA publishes a n FNP for an additional program for that HSA.

18 . (HPH) is calculated by determining the projected number of deaths in

four categories Ð (1) cancer, 65 and older; (2) cancer, under 65; (3) non - cancer,

65 and older; and (4) non - cancer, under 65. The methodology then projects

the percentage of people within those four categories that would elect hospice

care, which is calculated by employing the statewide penetration rate for

those four categories to a service areaÔs community. These penetration rates

or, P - values, are calculated by using the entire stateÔs admissions in each of

the four categories divided by the entire stateÔs deaths in each of those four

categories.

19 . In calculating the number of deaths for (HPH), the rule calls for AHCA

to use data from the most recent calendar year for which data are available

from the Department of Health, Office of Vital Statistics , at least three

months prior to publication of the FNP.

20 . (HP) is calculated by using se mi - annual utilization reports that are

required to be completed by each licensed hospice program in the state on or

before July 20 of each year and January 20 of the following year. ÑThe July

report shall indicate the number of new patients admitted during the

6 - month period composed of the first and second quarters of the current yearÒ

and the ÑJanuary report shall indicate the number of new patients admitted

during the 6 - month period composed of the third and fourth quarters of the

prior year.Ò

21 . Usin g this need methodology, the net need for HSA 5B for the July

2022 hospice planning horizon was 414, resulting in a need of one (1) new

hospice program in the service area.

22 . Because the rule requires death data from the most recent calendar

year that w as available at least three months prior to the publication of the

FNP, AHCA used the final death reports from 2019 in calculating need for

the July 2022 hospice planning horizon. However, because the rule requires

admissions data from the most recent 12 - m onth period ending on June 30

or December 31, AHCA used admissions from 2020 in calculating need for the

July 2022 hospice planning horizon.

23 . As pointed out by Petitioners, just 65 more hospice admissions in

H SA 5B in 2020 would have resulted in a net n eed of zero (0) new hospice

programs in that HSA for the July 2022 planning horizon.

Legal Presumption Created by FNP Determination

24 . A positive FNP determination will establish a rebuttable presumption

of need. Balsam v. DepÔt of HRS , 486 So. 2d 1341, 1349 (Fla. 1st DCA 1986);

VITAS Healthcare Corp. of Cent. Fla., Inc. v. Ag. for Health Care Admin. ,

Case No. 04 - 3858CON (Fla. DOAH June 14, 2005; Fla. AHCA July 7, 2005).

The converse is also true that Ñ[a] lack of numeric need under the rule

formula esta blishes a rebuttable presumption of no need.Ò Beverly Enter . -

Fla . , Inc. v. Ag. for Health Care Admin. , Case Nos. 92 - 6656, 92 - 6659 - 6662,

92 - 6669 (Fla. DOAH July 24, 1994; Fla. AHCA Oct. 17, 1994).

25 . In a hospice CON case, the absence of numeric need proh ibits the

approval of a new hospice program unless special circumstances found in the

hospice need rule are present, or applicable criteria outweigh the lack of

need. See Fla. Admin. Code R. 59C - 1.0355(3)(b), (4)(d); Compassionate Care

Hospice of the Gulf Coast, Inc. v. State, Ag. for Health Care Admin. , 247 So.

3d 99, 101 - 02 (Fla. 1st DCA 2018). In most cases, the establishment of a

positive FNP nearly always results in the approval of a new hospice program,

and the determination of zero need results in a denial of all applications.

Thus, AHCAÔs calculation of hospice need as reflected in its FNP

determination will substantially affect each of the parties in this case.

26 . Suncoast and Seasons Pinellas have identified two purported errors in

AHCAÔs need de termination: (1) the challenged FNP is based on data that

was skewed by the COVID - 19 pandemic; and (2) the FNP numbers fail to

account for hospice admissions to Bay Pines. Petitioners contend that, in

light of these factors, AHCAÔs calculation of a net nee d for one new hospice

program in HSA 5B for the July 2022 planning horizon is not accurate. While

both of these arguments are cognizable within a n FNP challenge, neither is

persuasive in this instance, as explained below.

Does the Impact of the Pandemic W arrant U se of Updated Deaths Data?

27 . In March 2020, a worldwide pandemic erupted due to the outbreak of

the novel coronavirus (ÑCOVID - 19Ò). (Office of the Governor, Executive Order

No. 20 - 52 (ÑE.O. 20 - 52Ò) ) . COVID - 19 is Ña severe acute respiratory illnes s that

can spread among humans through respiratory transmission and presents

with symptoms similar to those of influenza.Ò E.O. 20 - 52.

28 . On March 9, 2020, Florida Governor Ron DeSantis declared a state of

emergency due to the outbreak of COVID - 19. E.O. 2 0 - 52. The Governor noted

that, as of March 9, 2020, Ñeight counties in Florida have positive cases for

COVID - 19, and COVID - 19 poses a risk to the entire state of Florida.Ò Id .

29 . Upon the GovernorÔs direction, on March 1, 2020, the State Surgeon

General Ñ declared a Public Health Emergency exists in the State of Florida as

a result of COVID - 19.Ò E.O. 20 - 52. The World Health Organization also

Ñdeclared COVID - 19 a Public Health Emergency of International Concern.Ò

Id .

30 . On March 15, 2020, the Florida Divisi on of Emergency Management

issued an Emergency Order Ñprohibiting all individuals from visiting

facilities within the State of Florida,Ò including nursing homes, long - term

care hospitals, and assisted living facilities. (Div. of Emerg . Mgmt., In Re:

Suspen sion of Statutes, Rules, and Orders, Pursuant to Executive Order

Number 20 - 52, Made Necessary By the COVID - 19 Public Health Emergency ,

DEM Order. No. 20 - 006 (Mar. 15, 2020) ) .

31 . The CON Hospital Facilities and Hospice 2nd Batching Cycle was

scheduled to b egin on the third Friday in July 2020. (Fla. Admin. Code R.

59C - 1.008(1)(g) (2019) . 4 However, due to the outbreak of the COVID - 19

pandemic, and under the authority of the GovernorÔs Executive Order, AHCA

issued an Emergency Order cancelling the Hospital Fa cilities and Hospice

2nd Batching Cycle. (AHCA, In Re: Temporary Suspension of Certificate of

Need Batching Cycle , AHCA 20 - 004 (July 17, 2020) ) .

32 . In that Emergency Order, AHCA noted that Ñall counties in Florida

have confirmed cases of COVID - 19 that are growing in number daily and

straining virtually every health care resource available within the State.Ò Id .

33 . AHCA also considered cancelling the Hospital Facilities and Hospice

1st Batching Cycle Ï 2021 (the batching cycle at issue here). Although the

4 In December 2020, the Agency issued a new Final Rule changing the dates of the hospice

batching cycles. (See Fla. Admin. Code R . 59C - 1.008(1)(g) (2020). Under the new Rule, the

Hospital Facilities and Hospice 2nd Batching Cycle will begin on the first Friday in August.

State of Florida was still under a state of emergency when AHCA announced

need for an additional hospice program in HSA 5B, AHCA decided to move

forward with the batch because, according to AHCAÔs representative, James

McLemore, it was Ñtrying to get to a normal.Ò

34 . In deciding not to change or adjust the FNP at issue, AHCA did not

compare hospice penetration rates from this batch with any other batch. In

other words, AHCA did not compare previous hospice penetration rates to see

if the need predictions made in this batching cycle were unusual in any way.

SuncoastÔs health planning expert, Armand Balsano, testified that if AHCA

had examined the hospice penetration rates for this batching cycle with

previous batching cycles, it would have noticed a signif icant anomaly in the

FNP numbers used to calculate hospice need for the July 2022 planning

horizon for HSA 5B.

35 . According to Mr. Balsano, typically, overall hospice penetration rates

are very consistent year over year, hovering around .67 or .68 (meanin g that

67% - 68% of recorded deaths received hospice care before passing). However,

for the February 2021 batching cycle, AHCA calculated that the overall

penetration rate had dramatically increased to .727, which Mr. Balsano

considered to have a Ñprofound Ò effect on the FNP calculation. According to

Petitioners, because AHCAÔs need projections relied on 2020 hospice

admissions, which included COVID - 19 - related hospice admissions, and 2019

deaths, which necessarily excluded COVID - 19 - related deaths, the data

showed a larger spike in hospice admissions than deaths, which caused the

overall penetration rate to increase dramatically from prior years.

36 . To illustrate the effect caused by using hospice admissions during a

year in which Florida (and the rest of th e world) was battling a highly

contagious virus (2020) and deaths from a year in which the world was not

(2019), Mr. Balsano recast the overall penetration rates using 2020 hospice

admissions and 2020 deaths. According to Mr. Balsano, when using 2020

hospi ce admissions and 2020 hospice deaths, the penetration rate actually

decreases from AHCAÔs overall penetration rate of .727 to .629.

37 . When 2020 deaths were substituted for 2019 deaths , and AHCAÔs

calculated penetration rate of .727 was substituted with the recast

penetration rate of .629, the rule need methodology would result in a

negative numeric need, and thus, no need for an additional hospice program,

according to Mr. Balsano.

38 . Mr. Balsano acknowledged that AHCAÔs use of deaths from one year

and hospice admissions from another year to predict need is not inherently

unreliable in projecting future need. Petitioners also conceded that AHCA

complied with its rules when it used 2019 death data to calculate the FNP

numbers at issue.

39 . The parties sti pulated that when performing its FNP calculation at

issue, AHCA used the number of Ñcurrent deathsÒ as defined in , and required

by , r ule 59C - 1.0355(4)(a). The parties further stipulated that when

performing the FNP calculation, AHCA used the number of pati ents admitted

to hospice programs serving HSA 5B during the most recent 12 - month period

ending December 31, 2020, as derived from the reports submitted under

r ule 59C - 1.0355(8), as required by r ule 59C - 1.0355(4)(a).

40 . PetitionersÔ alternative FNP calcula tion is not permitted by r ule 59C -

1.0355(4). Rather, it is uncontroverted that when performing its FNP

calculations, AHCA used the number of Ñcurrent deathsÒ as defined in and

required by r ule 59C - 1.0355(4)(a). Likewise, AHCA used the number of

patients ad mitted to Hospice Programs serving HSA 5B during the most

recent 12 - month period ending December 31, 2020, as derived from the

reports submitted under r ule 59C - 1.0355(8), as required by r ule 59C -

1.0355(4)(a).

41 . Moreover, PetitionersÔ alternative need cal culation is based on

provisional death data for calendar year 2020 from the Office of Vital

Statistics as of April 3, 2021. This data could not have been available three

months prior to the February 5, 2021, publication of the FNP numbers, since

calendar y ear 2020 did not conclude three months prior to February 5, 2021.

Despite advocating for the use of 2020 death data, SuncoastÔs expert witness

did not know whether any 2020 death data, even provisional data, were

available from the Office of Vital Statisti cs by February 5, 2021. Additionally,

Mr. Balsano conceded that he did not know if the provisional data he used for

his alternative FNP calculation were different from any death data available

from the Office of Vital Statistics as of the date of the final hearing.

42 . Had AHCA used the provisional death data used by SuncoastÔs expert

witness in creating Suncoast Exhibits 11 through 20, then AHCA would have

violated r ule 59C - 1.0355(4), and its calculation of the FNP numbers would

have been erroneous.

43 . W hile the impacts of the COVID - 19 pandemic have been profound and

devastating, particularly in the number of individuals who have succumbed

to the disease, the effects of the pandemic will, fortunately, be transitory. As

of the time of the final hearing, a number of vaccines had become available to

protect individuals from COVID - 19. AHCAÔs witness acknowledged that

vaccines developed by Pfizer and Moderna (as well as Johnson and Johnson)

have been reported to be very effective in reducing the number of death s

among individuals who have been vaccinated. AHCA further acknowledged

that, in part, due to the availability of these vaccines, Florida has seen a

significant decline in COVID - 19 deaths.

Inclusion of VA Hospital Hospice Admissions in the FNP Calculation ?

44 . Petitioners further argue that AHCAÔs failure to consider hospice

admissions to VA hospitals has led to an incorrect projection of need under

the rule formula.

45 . In making FNP calculations for hospice, AHCA only considers

admissions to hospice pr ograms licensed by AHCA. Thus, VA admissions are

not considered because AHCA does not license VA facilities or programs.

However, all deaths are factored into the FNP calculation, including deaths

in a VA facility. Petitioners argue that this is an additio nal error, and created

a flawed and unreliable calculation of need in HSA 5B, where there is a

significant population of veterans.

46 . There are multiple VA hospitals in Florida that operate inpatient

hospice units, including Bay Pines. The main facility of the Bay Pines VA

system is the C.W. Bill Young Department of Veterans Affairs Medical

Center (ÑCWBY VA Medical CenterÒ) located in Bay Pines, Pinellas County,

Florida.

47 . The CWBY VA Medical Center is part of the Department of Veterans

Affairs, a fed eral agency. The CWBY VA Medical Center holds no type of

health care facility or health services license issued by the State of Florida.

The CWBY VA Medical Center is not a ÑHospice ProgramÒ as that term is

defined in r ule 59C - 1.0355(2)(f).

48 . The CWBY V A Medical Center does not report utilization information

to AHCA pursuant to r ule 59C - 1.0355(8). Nor is it required to do so. At

hearing, AHCAÔs representative confirmed that AHCA lacks jurisdiction over

the CWBY VA Medical Center to require it to submit a ny report to AHCA.

49 . It was not clear from the testimony at final hearing what hospice

services the CWBY VA Medical Center provides. At most, the facility only

provides inpatient end of life services. For example, SuncoastÔs Exhibit 6

purported to depic t Suncoast discharges to CWBY VA Medical Center during

2020. But SuncoastÔs Care Navigator was asked whether she knew Ñwhat

services specifically any of these patients received while they were at the VAÒ

and she admitted, ÑI do not.Ò

50 . For ÑoutpatientÒ o r ÑcommunityÒ hospice services , the CWBY VA

Medical Center refers veterans to a local hospice for admission for hospice

services.

51 . Although Suncoast tracks patient referrals from the CWBY VA

Medical Center, Suncoast did not present any evidence demonstr ating that

those patients received hospice care at the VA.

52 . SuncoastÔs expert witness conceded that AHCA followed the

requirements of r ule 59C - 1.0355, by not including VA patient data, and that

including such data would be contrary to the rule.

53 . Sun coastÔs expert witness stated that SuncoastÔs argument that AHCA

should include any patients receiving hospice services at the VA in the FNP

calculation was simply a Ñconceptual issue,Ò and that he could not obtain

useable data from other VA centers in Flo rida to create an exhibit that could

be introduced into evidence.

54 . This Ñconceptual issue , Ò which forms a significant part of SuncoastÔs

allegation that there is an error in the FNP numbers, is essentially the claim

that hospice admissions at VA facilit ies were not counted , while deaths of

patients in VA facilities under the VAÔs inpatient hospice care were being

counted as Florida resident deaths. SuncoastÔs expert conceded that he did

not know whether these patients had been reported to AHCA as hospice

admissions as a result of care they may have received at a state - licensed

hospice program, or whether the patients admitted to VA facilities actually

died, much less whether they were counted as Florida resident deaths.

55 . Indeed, SuncoastÔs evidence mad e clear that it admits patients

referred from the CWBY VA Medical Center, and that those patients are

included in utilization reports submitted to AHCA under r ule 59C - 1.0355(8).

56 . Suncoast also presented evidence that its hospice patients are

frequently discharged for acute care services at the CWBY VA Medical

Center, and that Suncoast reports such patients as separate admissions if the

patient returns to Suncoast. SuncoastÔs witness acknowledged that this

results in a single patient being counted as mult iple admissions in its

utilization reports.

57 . SuncoastÔs witnesses acknowledged that this discharge and re -

admission pattern only occurred with VA patients and would not be the case

for patients who were placed on inpatient hospice care in a Suncoast ho spice

house, or in a hospital or skilled nursing facility.

58 . SuncoastÔs expert acknowledged that accounting for any VA

admissions would change the penetration rate statewide, and as a result , any

VA admissions identified in HSA 5B could not simply be su btracted from the

total number of projected hospice admissions to recalculate the FNP for

H SA 5B.

59 . Ultimately, Mr. Balsano could not opine on what the correct need

number would have been , and had no idea what the calculated result would

have been if the purported VA admissions were counted. Absent reliable data

in this regard, there is no basis to deviate from the data source utilized by

AHCA in its FNP calculation, even if such deviation was permissible by rule.

60 . The existence of potential alternativ es to the FNP calculation in

r ule 59C - 1.0355, and in particular the use of different death and admissions

data than that used by AHCA, as advocated by Petitioners, is not warranted

for the reasons discussed above. Petitioners have failed to carry their bur den

to establish that the FNP calculations that AHCA made using the rule -

required data was in error.

C ONCLUSIONS OF L AW

Jurisdiction and Standing

61 . DOAH has jurisdiction over the parties to and the subject matter of

this proceeding. §§ 120.569 and 120 .57(1), Fla. Stat. AHCAÔs preliminary

FNP determination for HSA 5B, timely challenged by Suncoast and Seasons

Pinellas, is the proposed action at issue in this proceeding.

62 . As existing providers of hospice services in HSA 5B, Suncoast and

Seasons Pinell as have standing to challenge AHCAÔs preliminary

determination of need because they are substantially affected by AHCAÔs

need determination. §§ 408.039(5)(c), Fla. Stat. (conferring standing to

substantially affected existing providers in certificate of ne ed proceedings).

63 . As potential applicants for a hospice CON, Cornerstone, HPH, and

VITAS each have standing to participate in this proceeding. Additionally, the

parties have stipulated to standing.

Burden of Proof and Fixed Need Pool Challenge Procedur e

64 . Suncoast and Seasons have the burden of proving by a preponderance

of the evidence that AHCA made an error in the FNP determination for

H SA 5B for the first batching cycle of 2021. See generally Balino v. DepÔt of

HRS , 348 So. 2d 349, 350 (Fla. 1st DCA 1977); § 120.57(1)(j), Fla. Stat.

65 . AHCA announced the need for an additional hospice program in

HS A 5B for the July 2022 planning horizon in the February 5, 2021, edition

of the Florida Administrative Register, in accordance with r ule 59C -

1.008(2)( a)1. While the parties agree that Suncoast and Seasons Pinellas filed

timely challenges to AHCAÔs publication of the FNP , as contemplated in the

remainder of the rule, the parties sharply disagree about the scope and

nature of permitted challenges to the F NP.

66 . The FNP concept was developed to address problems sorting out

comparative review rights, which were described in Gulf Court Nursing

Center v. Department of Health and Rehabilitative Services , 483 So. 2d 700

(Fla. 1st DCA 1985). See also Hernando - Pa sco Hospice, Inc. v. Ag. for Health

Care Admin. , Case No. 14 - 5121 (Fla. DOAH Mar. 11, 2015; Fla. AHCA

May 7, 2015). In Gulf Court , FloridaÔs First District Court of Appeal held that

in order to stay true to the right to comparative review, HRS (AHCAÔs

pred ecessor agency) should require that CON applications filed in a batching

cycle address the same, specific need projection, which would be the ÑfixedÒ

need pool applicable to the batching cycle. In other words, after a period

made available for challenge, t he need pool should become ÑfixedÒ and free

from challenge based upon future developments, as those future

developments should be addressed in a subsequent batching cycle, which may

involve other applicants whose rights might be affected if late developed

ÑneedÒ is used by applicants from an earlier batching cycle. 5 AHCAÔs

r ule 59C - 1.008 formalized this process, creating a 10 - day window in which

parties may identify an error in the FNP numbers, advise AHCA of the error,

and in doing so, provide a chance for AHCA to correct any error before the

need became fixed.

Errors That May Be Brought in a Fixed Need Pool Challenge

67 . Rule 59C - 1.008(2)(a)2. clearly codifies the right to identify an ÑerrorÒ

in the FNP numbers. However, neither that subparagraph nor any other

provision in chapter 59C provides any definition of the ÑerrorÒ that may be

challenged.

68 . AHCA and Intervenors insist that challengeable errors are limited to

only: (1) mathematical errors in AHCAÔs calculations; or (2) disputes

regarding the coun t of self - reported admissions from AHCA - licensed hospice

5 Additionally, as ALJ McArthur has explained:

Prior to fixed need pools, HRS calculated numeric need under

the applicable rule methodology at the time of its initial

review of CON applications, plugging into the calculations

data available at that time. But if HRSÔs initial decisions were

challenged, as they often were, numeric need would be

recalculated in subsequ ent administrative hearings based on

new data admitted as evidence. Hearings were frequently

delayed at the request of parties hoping for new favorable

data, which could be used as evidence. The problem tackled

by Gulf Court was how to sort out comparative review rights

when numeric need is the product of new data issued after

HRSÔs initial decisions, when several batching cycles might be

pending at DOAH, with later batches sometimes going to

hearing before earlier batches.

Hernando - Pasco Hospice, Inc. v. Ag . for Health Care Admin. , Case No. 14 - 2151, ¶ 6 n.2 (Fla.

DOAH Mar. 11, 2015; Fla. AHCA May 12, 2015).

providers. AHCA and Intervenors do not cite to any rule for authority for this

position, other than the language in rule 59C - 1.008(2)(a)2. which requires a

potential challenger to identify an Ñerro r in the Fixed Need Pool numbers.Ò

AHCA and Intervenors insist that the advocated limitation of what is meant

by ÑerrorÒ is based upon AHCAÔs interpretation of its own rule and past

AHCA precedent.

69 . Historically, AHCAÔs interpretation of its own rules w ould have been

entitled to great weight and would not be disregarded unless clearly

erroneous, even if the interpretation was not the most reasonable or logical

one. See Orange Park Kennel Club, Inc. v. State, DepÔt of Bus. Reg. , 644 So. 2d

574, 576 (Fla. 1st DCA 1994); State, Bd. o f Optometry v. Fla. Society of

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

permitted AHCA to use its limited interpretation of the word ÑerrorÒ to

preclude consideration of certain FNP challenges so lon g as an ALJ agreed

that AHCAÔs interpretation was not unreasonable. See, e.g., Hospice of Lake

and Sumter, Inc. et al. v. Ag. for Health Care Admin., Case No. 08 - 6215, et

al., Order Relinquishing Jurisdiction (Fla. DOAH Feb. 2, 2009).

70 . However, the days of deference to state agency interpretation of

statutes and rules are over. See Sch. Bd. of Volusia Cty. v. Fla. E. Coast

Charter Sch. , 312 So. 3d 158, 160 (Fla. 5th DCA 2021); MB Doral, LLC v.

DepÔt of Bus. & ProfÔl Reg., Div. of Alcoholic Beverages & To bacco , 295 So. 3d

850, 853 (Fla. 1st DCA 2020). After an amendment to FloridaÔs Constitution

approved by Florida voters, AHCAÔs interpretation of its rule is no longer

entitled to any deference. See Art. V, £ 21, Fla. Const. (ÑIn interpreting a

state statu te or rule, a state court or an officer hearing an administrative

action pursuant to general law may not defer to an administrative agencyÔs

interpretation of such statute or rule, and must instead interpret such state

or rule de novo.Ò). Thus, the argumen ts raised by Petitioners must be

reviewed de novo , with no deference given to AHCAÔs interpretation.

71 . The ruleÔs use of the word ÑerrorÒ must be given its plain and ordinary

meaning. See W. Fla RegÔl Med. Ctr., Inc. v. See , 79 So. 3d 1, 8 - 9 (Fla. 2012) .

When a term is undefined, dictionary definitions can provide useful guidance.

See Id . at 9; see also Hospice of Lake and Sumter, Inc. et al. v. Ag. for Health

Care Admin ., Case No. 08 - 6215, et al., Order Relinquishing Jurisdiction (Fla.

DOAH Feb. 2, 2009 ) (turning to BlackÔs Law Dictionary to define ÑerrorÒ).

Additionally, r ule 59C - 1.008(2)(a)2. cannot be considered in isolation, but

instead must be read in pari materia with the entire provision. See Fla. DepÔt

of Envtl. Prot . v. ContractPoint Fla. Parks, LLC , 986 So. 2d 1260, 1265 - 66

(citing Fla. State Racing CommÔn v. McLaughlin , 102 So. 2d 574, 575 - 76 (Fla.

1958)).

72 . Merriam - Webster defines ÑerrorÒ as Ñan act involving an unintentional

deviation from truth or accuracy.Ò Merriam - Webster, https://www.m erriam -

webster.com/dictionary/error (last visited June 3, 2021). Merriam - Webster

offers an additional definition of ÑerrorÒ as Ñan act that through ignorance,

deficiency, or accident departs from or fails to achieve what should be done.Ò

Id. These definiti ons of ÑerrorÒ are clearly broader than mathematical or

calculation errors.

73 . Additionally, while subparagraph (2)(a)2. refers to the ability to

identify an error in the FNP, subparagraph (2)(a)3. goes on to provide as

follows:

3. Except as provided in s ubparagraph 2. above, the

batching cycle specific Fixed Need Pools shall not

be changed or adjusted in the future regardless of

any future changes in need methodologies,

population estimates, bed inventories, or other

factors which would lead to different projections of

need, if retroactively applied.

Fla. Admin. Code R. 59C - 1.008(2)(a)3.

74 . By using the phrase Ñexcept as provided in subparagraph 2.,Ò the rule

specifically delineates the types of errors that are cognizable within a n FNP

challenge. Such challenges specifically include those based upon changes in

need methodologies, population estimates, bed inventories, or other factors.

Thus, rather than arbitrarily limiting the types of error that may be raised in

FNP challenges as AHCA and Intervenors contend, subparagraph (2)(a)3.

expressly broadens the scope of FNP challenges to include Ñother factorsÒ that

would lead to a different projection of need. This interpretation is consistent

with the dictionary definitions noted above, and is consistent wit h the

concept of batched review, as it only involves information available at the

time for challenging FNPs (just like newly discovered admissions unreported

when need calculations are made but cited in the midst of a timely filed FNP

challenge).

75 . When read in its entirety, r ule 59C - 1.008(2)(a)2. - 3. makes clear that

while Ñchanges in need methodologies, population estimates, bed inventories,

or other factorsÒ cannot be raised in subsequent proceedings, they can be

identified as errors in AHCAÔs need det ermination and, thus, can be the

subject of a n FNP challenge such as this one. AHCA and Intervenors offer no

other plausible explanation for what is meant by r ule 59C - 1.008(2)(a)3 . Ôs

reference to Ñexcept as otherwise providedÒ in subparagraph (2)(a)2.

76 . AHCA and Intervenors have argued consistently and vehemently that

the proper scope of a n FNP challenge is only as to the calculation and use of

the data required by the rule formula, and not as to other factors, citing, inter

alia, Hope Hospice and Communi ty Services, Inc. v. Agency for Health Care

Administration, et al. , DOAH Case No. 08 - 6218 (2009), per curiam affirmed

Hope Hospice and Community Services, Inc. v. Agency For Health Care

Administration , 23 So. 3d 1185 (Fla. 1st DCA, 2009). According to AHCA and

Intervenors, the errors asserted by Petitioners do not fall within this scope of

a calculation or data error, and therefore would not be contemplated as a

proper challenge to the FNP numbers, according to AHCAÔs precedent.

77 . If AHCA and Intervenors are correct regarding the limited scope of a n

FNP proceeding, no challenge could be brought to a n FNP that is based upon

changes in need methodologies, population estimates, bed inventories, or

other factors which would lead to different projections of nee d. In addition to

an inability to raise such arguments in the context of a n FNP challenge,

AHCA and Intervenors also will undoubtedly argue that those same

prohibitions apply in future litigation concerning the approval or denial of

CON applications. If th ey are correct, the FNP rule is infallible and the

opportunity to file a meaningful FNP challenge is illusory.

78 . AHCA and Intervenors have insisted throughout this proceeding that

AHCA must follow its rules. However, in making this argument they seem to

ignore that AHCAÔs rules very clearly allow for the identification of errors in

the FNP numbers and provide a broad scope for such challenges in subsection

(2)(a)3.

79 . Reading r ule 59C - 1.008(2)(a) in its entirety, as the undersigned must,

and based on AHC AÔs rules and applicable authority and precedent, the

undersigned concludes that the errors identified by Petitioners are

challengeable errors under r ule 59C - 1.008(2)(a), and that this is the proper

forum to address the errors raised by Petitioners.

Petit ioners Have Failed to Carry Their Burden of Proof

80 . The premise of PetitionersÔ challenge to the FNP numbers is that

AHCA followed its duly promulgated r ules 59C - 1.008 and 59C - 1.0355, when

instead it should have deviated from the requirements of those ru les (1) as a

result of the impacts of the COVID - 19 pandemic, and (2) because some

services not clearly identified, but purportedly provided by Bay Pines, should

be counted as Ñhospice admissionsÒ for purposes of the calculation of the FNP.

81 . The parties stipulated that when performing its FNP calculation at

issue, AHCA used the number of Ñcurrent deathsÒ as defined in and required

by r ule 59C - 1.0355(4)(a). Under the formula in subparagraph (4)(a), AHCA

considers current deaths under the need methodology t o be limited to those

available from the Department of Health, Office of Vital Statistics , at least

three months prior to the publication of the FNP. While the rule does not

expressly specify that the report of deaths must be final, it would be

unreasonabl e and impractical for AHCA to use deaths data that are

unverified and provisional, rather than waiting for verified final data.

Indeed, the use of provisional data, subject to future revision after the FNP is

published, would have the potential to result i n erroneous FNP publications,

and the corresponding approval of unneeded new hospice programs, or worse

still, the denial of needed hospice programs. Petitioners did not carry their

burden to establish that different deaths data should have been used in th e

calculation of the FNP under challenge.

82 . A ÑHospice ProgramÒ that would provide an admissions report or

ÑSemi - Annual Utilization ReportÒ to be used within the need formula is

defined as:

A program described in [ s ]ections 400.601(3),

400.602(1), 400.60 9, and 400.6095 (1), F.S.,

that provides a continuum of palliative and

supportive care for the terminally ill patient and

his family. È.

Fla. Admin. Code R. 59C - 1.0355(2)( f ). 6 Indisputably, Chapter 400, Florida

Statutes, by its plain terms, governs the l icensure of Florida Hospice

Programs.

83 . Section 400.601(3) defines a ÑhospiceÒ as Ña centrally administered

corporation or a limited liability company that provides a continuum of

palliative and supportive care for the terminally ill patient and his or h er

family.Ò Bay Pines does not meet this definition, as it was not shown to be a

corporation or a limited liability company. Rather Bay Pines is owned and

operated by the Department of Veterans Affairs, a federal agency. Nor was it

6 ÑApproved Hospice ProgramÒ is defined as a ÑHospice Program for which the Agency has

issued an intent to grant a Certificate of Need, or has issued a Certificate of Need, and that

is not yet licensed as of three weeks prior to publication of the Fixed Need Pool.Ò Fla. Admin.

Code R . 59C - 1.0355(2)(b). The two definitions comprise the entirety of the ÑInventoryÒ

applicable to hospice for purposes of r ule 59C - 1.008(2)(b).

established that Bay Pin es Ñprovides a continuum of palliative and

supportive care for the terminally ill patient and his or her family.Ò Rather,

the testimony and evidence demonstrated that Bay Pines, at most, provides

only inpatient end of life services.

84 . AHCA has no legal a uthority to regulate VA facilities. Nor does AHCA

have the authority to compel VA facilities to submit reports to AHCA,

including hospice utilization reports. Moreover, absent the ability to regulate

VA - operated hospice programs, there is no ability to con trol what is

considered a Ñhospice admissionÒ at a VA facility, and ensure uniformity in

the way admissions are counted statewide.

85 . Bay Pines does not qualify under the statutory requirements to be a

Ñhospice,Ò and by rule or interpretation , AHCA may no t expand its statutory

authority to include Bay Pines admissions within the FNP calculation.

§ 120.52(8), Fla. Stat. Therefore, the Bay Pines hospice inpatient unit

admissions could not properly be included and counted under r ule 59C -

1.0355.

86 . For the re asons described above, VA hospice admissions that stay

within the VA system (as opposed to being referred to a state - regulated

Ñhospice programÒ) , are admissions that are properly excluded by AHCA in

its FNP calculation.

87 . Petitioners have failed to demo nstrate that the FNP determination

under challenge herein is in error. 7

7 The issue determined in this proceeding is narrow. This O rder does not determine what

issues may be raised or relief afforded in a subsequent administrative proceeding involving a

challenge to AHCAÔs preliminary decision to approve or deny a hospice CON application for

the current batching cycle based in part on the positive FNP.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that a final order be entered determining that there is no

error in the Fixed Need Pool numbers for Hospice Service Area 5B and that

there is a calculated net need for one additional hospice program in Hospice

Service Area 5B as published by AHCA on February 5, 2021.

D ONE A ND E NTERED this 16th day of June , 2021 , in Tallahassee, Leon

Co unty, Florida.

S

W. D AVID W ATKINS

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of June , 2021 .

C OPIES F URNISHED :

Stephen C. Emmanuel, Esquire Julia Elizabeth Smith, Esquire

Ausley & McMullen Agency for Health Care Administration

123 South Calhoun Street Mail Stop 3

Tallahassee, Florida 32301 2727 Mahan Drive

Tallahassee, Florida 32308

D. Ty Jackson, Esquire

GrayRobinson, P.A. Euge ne Dylan Rivers, Esquire

301 South Bronough Street, Suite 600 Ausley & McMullen, P.A.

Post Office Box 11189 123 South Calhoun Street

Tallahassee, Florida 32302 Tallahassee, Florida 32301

Gabriel F.V . Warren, Esquire Michael J. Cherniga, Esquire

Rutledge Ecenia, P.A. Greenberg Traurig, P.A.

119 South Monroe Street, Suite 202 101 East College Avenue

Post Office Box 551 Post Office Drawer 1838

Tallahassee, Florida 32301 Tallahassee, Florida 32301

David C. Ashburn, Esquire Marc Ito, Esquire

Greenberg Traurig, P.A. La w Office of Marc Ito, PLLC

101 East College Avenue 411 Wilson Ave.

Post Office Drawer 1838 Tallahassee, Florida 32303

Tallahassee, Florida 32301

Seann M. Frazier, Esquire

Krist en Bond Dobson, Esquire Parker, Hudson, Rainer & Dobbs, LLP

Parker, Hudson, Rainer & Dobbs, LLP Suite 750

Suite 750 215 South Monroe Street

215 South Monroe Street Tallahassee, Florida 32301

Tallahassee, Florida 32301

Christoper E. Gottfried, Esquire

Karl David Acuff, Esquire Greenberg Traurig

Law Office s of Karl David Acuff , P.A. 101 East College Avenue

Suite 2 Tallahassee, Florida 32301

1615 Village Square Boulevard

Tallahassee, Florida 32309 - 277 0 Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

Amanda Marci Hessein, Esquire 2727 Mahan Drive, Mail Stop 3

Rutledge Ecenia, P.A. Tallahassee, Florida 32308

Suite 202

119 South Monroe Street Stephen A. Ecenia, Esquire

Tallahassee, Florida 32301 Rutledge Ecenia, P.A.

119 South Monroe Street, Suite 202

Simone Marstiller, Secretary Post Office Box 551

Agency for Health Care Administration Tallahassee, Florida 32301

2727 Mahan Drive, Building 3

Tallahassee, Florida 32308 - 5407 James D. Varnado, General Counsel

Agency for Health Care Administration

Shena L. Grantham, Esquire 2727 Mahan Drive, Mail Stop 3

Agency for Health Care Administration Tallahassee, Florida 32308

Building 3, Room 3407B

2727 Mahan Drive Thomas M. Hoeler, Esquire

Tallahassee, Florida 32308 Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.