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State of Florida Division of Administrative Hearings

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State of Florida Division of Administrative Hearings STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS ODYSSEY HEALTHCARE OF COLLIER ) COUNTY, INC., d/b/a ODYSSEY ) HEALTHCARE OF CENTRAL FLORIDA, ) ) Petitioner, ) ) vs. ) Case No. 10-1605CON ) HPH SOUTH, INC., AND AGENCY FOR ) HEALTH CARE ADMINISTRATION, ) ) Respondents, ) ) and ) ) THE HOSPICE OF THE FLORIDA ) SUNCOAST, INC., d/b/a SUNCOAST ) HOSPICE, ) ) Intervenor. ) ) THE HOSPICE OF THE FLORIDA ) SUNCOAST, INC., d/b/a SUNCOAST ) HOSPICE, ) ) Petitioner, ) ) vs. ) Case No. 10-1862CON ) AGENCY FOR HEALTH CARE ) ADMINISTRATION AND HPH ) SOUTH, INC., ) ) Respondents. ) ) HPH SOUTH, INC., ) ) Petitioner, ) ) vs. ) Case No. 10-1863CON ) AGENCY FOR HEALTH CARE ) ADMINISTRATION; THE HOSPICE OF ) THE FLORIDA SUNCOAST, INC., ) d/b/a SUNCOAST HOSPICE; AND ) ODYSSEY HEALTHCARE OF COLLIER ) COUNTY, INC., d/b/a ODYSSEY ) HEALTHCARE OF CENTRAL FLORIDA, ) ) Respondents. ) ) RECOMMENDED ORDER Pursuant to notice, the Division of Administrative Hearings, by its designated Administrative Law Judge, R. Bruce McKibben, held the final hearing in the above-styled cases on June 11, 21 through 25, 28 through 30, and July 1 and 2, 6 through 8, 2010, in Tallahassee, Florida. APPEARANCES For HPH South, Inc.: Geoffrey D. Smith, Esquire Susan C. Smith, Esquire Corrine Porcher, Esquire Smith and Associates 2873 Remington Green Circle Tallahassee, Florida 32308 2 For Odyssey Healthcare of Central Florida: Mark A. Emanuele, Esquire Deborah S. Platz, Esquire Panza, Maurer, & Maynard, P.A. Bank of America Building, Third Floor 3600 North Federal Highway Fort Lauderdale, Florida 33308 For Suncoast Hospice: Paul H. Amundsen, Esquire Julia Smith, Esquire Ruden McClosky, P.A. 215 South Monroe Street, Suite 815 Tallahassee, Florida 32301 For Agency for Health Care Administration: Lorraine M. Novak, Esquire Agency for Health Care Administration Fort Knox Building III, Mail Stop 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 STATEMENT OF THE ISSUES Whether the Certificate of Need (CON) applications filed by Odyssey Healthcare of Collier County, Inc., d/b/a Odyssey Healthcare of Northwest Florida, Inc. (Odyssey), and HPH South, Inc. (HPH), for a new hospice program in the Agency for Health Care Administration (AHCA or the Agency) Service Area 5B, satisfy, on balance, the applicable statutory and rule review criteria to warrant approval; and whether such applications establish a need for a new hospice based on special circumstances, and, if so, which of the two applications best meets the applicable criteria for approval. 3 Holding: Neither applicant proved the existence of special circumstances warranting approval of an additional hospice program in Service Area 5B. Although neither application is recommended for approval in this Recommended Order, both applicants, on balance, satisfy the applicable statutory and rule criteria. Of the two, HPH best satisfies the criteria. PRELIMINARY STATEMENT On October 2, 2009, the Agency published a fixed need pool (FNP) for one new hospice program in Service Area 5B, a single county area consisting of Pinellas County, for the second batching cycle of 2009. AHCA's projection of need was based, in part, on information submitted by the existing provider of hospice services in Service Area 5B, i.e., The Hospice of the Florida Suncoast, Inc. d/b/a Suncoast Hospice (hereinafter "Suncoast"). On October 7, 2009, Suncoast submitted a letter to AHCA addressing the FNP and provided revised semiannual utilization data for the time period January 1 through June 30, 2009. Upon review of the revised Suncoast data, AHCA published a revised notice changing the FNP to zero. HPH, Odyssey, and LifePath Hospice (a co-batched applicant who is not a party to the instant action) each timely submitted a letter of intent and a CON application seeking approval of a new hospice program in Service Area 5B despite the existence of 4 a zero FNP. Each of the applicants also filed a challenge to the revised FNP. Suncoast petitioned to intervene in the FNP challenge, however, each of the parties then voluntarily dismissed its challenge to the FNP. On February 19, 2010, AHCA issued its State Agency Action Report (SAAR) preliminarily approving HPH's CON application and denying the other co-batched applications. AHCA's decision was published in the March 5, 2010, Florida Administrative Weekly, Vol. 26, No. 9. Odyssey timely filed a petition to contest the denial of its application and the approval of HPH's CON application. HPH filed an approved applicant petition in support of its own application and in opposition to the Odyssey application. Life Path Hospice did not contest the denial of its application. Suncoast, as an existing hospice provider in Service Area 5B, filed a petition in opposition to the HPH and Odyssey CON applications and was granted intervenor status in this matter. HPH, as an approved applicant, requested that the final hearing in this matter be commenced within 60 days in accordance with Section 408.039, Florida Statutes (2009).1 Over objection by Odyssey and Suncoast, the final hearing was scheduled to commence on June 11, 2010. The first day of final hearing was used to discuss preliminary matters and pending motions. The 5 hearing then recessed until June 21, 2010, and was held on the dates set forth above. The parties filed a joint pre-hearing stipulation on June 18, 2010, i.e., during the period between the start of the final hearing and its recommencement on June 21, 2009. During the final hearing, HPH presented the testimony of five witnesses: Thomas Barb, president and CEO of HPH; Nancy Brown, senior vice-president for clinical services, accepted as an expert in Hospice operations, nursing and clinical care; Patricia Greenberg, accepted as an expert in health planning, hospice planning, and healthcare finance; Susan Versley, registered nurse; and Dr. David McGrew, managing partner for Hospice and Palliative Care Physician Services, accepted as an expert in hospice and palliative care medicine. HPH Exhibits 1 through 35, 40 through 50, 51(A through D), 52(A through E), 53(A), 54(A through D), 55(A through G), 56 through 62, 66, 68 through 81, 83 through 85, 87, 88, 90, 94, 96, 104, 104A, 109, 112, 113, 115, and 126 were admitted into evidence. Ms. Greenberg was also recalled as a rebuttal witness. AHCA called one witness during its case in chief: Jeffrey Gregg, chief of the Bureau of Health Finance Regulation for AHCA. Agency Exhibits 1 and 2 were admitted into evidence. Odyssey called three witnesses: Sally Parnell, senior vice-president for clinical and regulatory affairs, accepted as 6 an expert in post-acute nursing and operations, clinical and regulatory compliance, and hospice clinical and administrative operations; Jon Marc Creighton, executive director of Odyssey Healthcare Marion, accepted as an expert in hospice and nursing home administration; and Mark Richardson, accepted as an expert in health planning and hospice planning. Odyssey Exhibits 1, 5 through 11, 13 through 25, 30, 34, 43 through 47, 49, 52, 53, 59 through 62, 65, and 79 were admitted into evidence. Suncoast presented the testimony of four witnesses: Dr. Deidra Woods, medical director of Suncoast, accepted as an expert in hospice and palliative medicine; Marci Pruitt, vice-president of hospice programs, accepted as an expert in hospice nursing and hospice administration; Anne Hocksprung, vice-president of finance, accepted an as expert in healthcare finance; and Daniel J. Sullivan, accepted as an expert in healthcare planning. Suncoast Exhibits 5 through 8, 11, 13 through 19, 22 through 25, 27, 43 through 50, 51(a through j), 52(a through e), 53(a and b), 54, 55(a and b), 56(a through i), 57, 58, 64 through 70, and 74 through 76 were admitted into evidence. The following items were officially recognized pursuant to requests by one or more of the parties: ● Recommended Order and Final Order in DOAH Case No. 01-4415CON; 7 ● Recommended Order and Final Order in DOAH Case No. 00-1067CON; ● Florida Hospice Need Projections for Hospice Programs, Background Information for Use in Conjunction with the October 2009 Batching Cycle for the January 2011 Hospice Planning Horizon, as revised October 13, 2009; ● AHCA's Notice of Development of Proposed Rules for Hospice Programs, Rule No. 59C-1.0355, published in the Florida Administrative Weekly, Volume 31, Number 49, December 9, 2005; and ● AHCA's Notice of Development of Proposed Rules for Hospice Programs, Rule No. 59C-1.0355, published in the Florida Administrative Weekly, Volume 32, Number 13, March 31, 2006. Both prior to and at the final hearing, Suncoast raised the issue of whether either of the applicants had improperly amended their CON application. Testimony was taken at final hearing to establish certain facts concerning this issue. The parties were given until no later than ten days after the filing of the hearing transcript at DOAH to submit briefs as to their positions on the illegal amendment issue. Each party timely submitted a brief, and an Order was entered on August 24, 2010, 8 holding that neither applicant improperly amended its application. Parties were given 60 days from the filing of the transcript to submit proposed findings of fact and conclusions of law, limited to 60 pages. The parties subsequently requested and were granted leave to submit their proposed recommended orders no later than October 18, 2010. Odyssey also moved for leave to extend the page limit to 80 pages, but that request was denied. The parties were, within 10 days after proposed recommended orders were filed, to submit any objections they had to findings made by other parties which relied upon uncorroborated hearsay. Each party timely submitted a Proposed Recommended Order, and each was considered in the preparation of this Recommended Order. Objections filed by parties relating to hearsay evidence were duly considered. FINDINGS OF FACT I. The Parties A. AHCA 1. The Agency for Health Care Administration is the state agency authorized to evaluate and render final determinations on CON applications pursuant to Subsection 408.034(1), Florida Statutes.
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