PU as STATE OF FLORIDA & AGENCY FOR HEALTH CARE ADMINISTRATION. “1.2 Qe 48 CON NOS. 9783 & 9784 HeMisye Oe VITAS HEALTHCARE CORPORATION OF FLORIDA, Petitioner, DOAH CASE NO. 04-3856CON : AHCA NO. 2004008923 ve STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION and HEARTLAND SERVICES OF FLORIDA, INC., Respondents, and COMMUNITY HOSPICE OF NORTHEAST FLORIDA, INC., Intervenor. / COMMUNITY HOSPICE OF NORTHEAST FLORIDA, INC., Petitioner, DOAH CASE NO. 04-3886CON AHCA NO. 2004008446 Vv. STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, HEARTLAND SERVICES OF FLORIDA, INC. and VITAS HEALTHCARE CORPORATION OF FLORIDA, Respondents. FINAL ORDER Uo é py c This case was referred to the Division of Administrative Hearings “DOAHSAvbere the ae ‘Oey sy a assigned Administrative Law Judge (“ALJ”), David M. Maloney, copes &eformap Hy We peo 4 administrative hearing. At issue in this proceeding is whether the Agency for Geol Care Administration (“Agency”) should approve the Certificate of Need (“CON”) applicatichs filed by Vitas Healthcare Corporation of Florida, Inc. (“Vitas”) and Heartland Services of Florida, Inc. (“Heartland”) to establish a new hospice program in Duval County, Hospice Service Area 4A. The Recommended Order dated October 18, 2006, is incorporated herein by reference, except’ where noted infra. RULINGS ON EXCEPTIONS Both Community Hospice of Northeast Florida, Inc. (“Community Hospice”) and Heartland filed exceptions. The Agency and Vitas did not file any exceptions. Both Community Hospice and Heartland took exception to Paragraphs 43, 203 and 204 of the Recommended Order. Both parties first argued that Paragraph 43 of the Recommended Order, though labeled by the ALJ as a finding of fact, was, in reality, a conclusion of law within the substantive jurisdiction of the Agency since Paragraph 43 contained the ALJ’s interpretation of an Agency rule. It is not necessarily the labeling of a particular section within a recommended order that determines its status as a finding of fact or conclusion of law. As one court noted, We give no great weight to the labeling of the conflicting findings as “conclusions of law” rather than “findings of fact.” Though the hearing officer’s labeling informs us that he properly sensed the presence of policy and legal considerations in the task of weighing the evidence...we nevertheless give the hearing officer’s finding effect to the extent the issue was “simply the weight or credibility of testimony by witnesses,” or was determinable “by ordinary methods of proof,” “or was in a factual realm concerning which we agency may not rightfully claim special insight.” McDonald v. Dept. of Banking and Finance, 346 So.2d 569, 579 (Fla. lst DCA 1977). On the other hand, to the extent that “the ultimate facts are increasingly matters of opinion and opinions are increasingly infused by policy considerations for which the agency has special responsibility,” we shall honor the [agency’s] substituted findings. Sch. Bd. of Leon County v. Hargis, 400 So.2d 103 (Fla. Ist DCA 1981). The last sentence of Paragraph 43 of the Recommended Order, wherein the ALJ stated that “[a] conclusion to be drawn from Subsection (4) (d) of the Hospice Programs rule is that in the absence of a showing of special circumstances, the number of applications granted may not exceed the numeric need yielded by the Hospice Numeric Need Methodology,” is a matter of opinion by the ALJ that is thoroughly “infused by policy considerations” for which the Agency has “special responsibility.” Thus, Paragraph 43 of the Recommended Order, though labeled as a finding of fact, is, in actuality, a conclusion of law. However, neither party argued why the ALJ’s conclusion of law in Paragraph 43 of the Recommended Order should be rejected. In fact, the ALJ’s conclusion of law in Paragraph 43 of the Recommended Order is a correct interpretation of Subsection (4) (d) of Rule 59C-1.0355, Florida Administrative Code. Thus, the Agency finds that, while it does have substantive jurisdiction over the conclusion of law in Paragraph 43 of the Recommended Order, it could not substitute a conclusion of law that was as or more reasonable than that of the ALJ. Therefore, both Community Hospice and Heartland’s exceptions to Paragraph 43 of the Recommended Order are denied. In regards to Paragraphs 203 and 204 of the Recommended Order, both Community Hospice and Heartland argued that the ALJ’s conclusions of law in these paragraphs were contrary to the plain language of Rule 59C-1.0355, Florida Administrative Code. In these paragraphs, the ALJ concluded that, in essence, a Hospice CON applicant could demonstrate both need and special circumstances in cases where the fixed need pool found that there was a need for an additional Hospice program in a particular service area. However, the plain language of Subsections (4) (a) and (4) (d) of Rule 59C-1.0355, Florida Administrative Code, state that the two standards are mutually exclusive. Subsection (4) (d) of Rule 59C-1.0355, Florida Administrative Code, states that “[i]n the absence of numeric need identified in paragraph (4)(a), the applicant must demonstrate that circumstances exist to justify the approval of a new hospice.” (Emphasis added). Further, testimony from the Agency’s authorized representative in this matter demonstrated that the Agency interpreted the two subsections as being mutually exclusive. See Transcript, Volume 5, Pages 494-495. The Agency finds that it has substantive jurisdiction over the ALJ’s conclusions of laws in Paragraphs 203 and 204 of the Recommended Order, and that it could substitute conclusions of law as or more reasonable than those of the ALJ. Therefore, Community Hospice and Heartland’s exceptions to Paragraphs 203 and 204 of the Recommended Order are granted, and Paragraphs 203 and 204 of the Recommended Order are stricken in their entirety. Heartland also took exception to the conclusions of law in Paragraph 205 of the Recommended Order, based upon the reasoning presented by both Community Hospice and Heartland in their exceptions to Paragraphs 203 and 204 of the Recommended Order. Based upon the ruling on Community Hospice and Heartland’s exceptions to ‘Paragraphs 203 and 204 of the Recommended Order supra, Heartland’s exception to the conclusions of law in Paragraph 205 of the Recommended Order is also granted and Paragraph 205 of the Recommended Order is stricken in its entirety. Lastly, Community Hospice took exception to the ALJ’s failure to “make findings of fact regarding the impact on CHNF which would result from approving two new hospice programs simultaneously.” First, to the extent that Community Hospice’s exception could be characterized as such, it fails to clearly identify the disputed portion of the recommended order by page number or paragraph. While Section 120.57(1)(k), Florida Statutes (2006), requires that the Agency’s “final order shall include an explicit ruling on each exception”, the Agency “need not tule on an exception that does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record.” Thus, the Agency declines to rule on it. Second, to the extent that Community Hospice’s exception could be characterized as a Motion for Remand to the ALJ for further findings, the Agency denies Community Hospice’s motion due to the fact that it made no showing that the ALJ failed to make findings of fact on all relevant issues. See Cohn v. Department of Professional Regulation, 477 So.2d 1039, 1047 (Fla. 3° DCA 1985). FINDINGS OF FACT | The Agency hereby adopts the findings of fact set forth in the Recommended Order. CONCLUSIONS OF LAW The Agency adopts the conclusions of law set forth in the Recommended Order, except where noted supra. ORDER ‘Based upon the foregoing, Heartland’s CON Application No. 9783 is approved, and Vitas’ CON Application No. 9784 is denied. is_ [BE tay of Nocember_, 2006, DONE and ORDERED this [Bay of 2006, in Tallahassee, Florida. CHRIS £ CALAMAS, SECRETARY AGENCY FOR HEALTH CARE ADMINISTRATION NOTICE OF RIGHT TO JUDICIAL REVIEW A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH THE FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE. CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by U.S. Mail, or by the method indicated, to the persons named below on this /S—Hhay of fea er” _, 2006. RICHARD J. SHOOP, Agency Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308-5403 (850) 922-5873 COPIES FURNISHED TO: David M. Maloney Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Donna LaPlante, Esquire Assistant General Counsel Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308 Robert D. Newell, Jr., Esquire Newell, Terry & Douglas, P.A. 817 North Gadsden Street Tallahassee, Florida 32303-6313 Stephen A. Ecenia, Esquire R. David Prescott, Esquire Richard M. Ellis, Esquire _ Rutledge, Ecenia, Purnell & Hoffman, P.A. 215 South Monroe Street, Suite 420 Post Office Box 551 Tallahassee, Florida 32302-0551 Geoffrey D. Smith, Esquire Smith & Associates, P.A. 2873 Remington Green Circle Tallahassee, Florida 32308 Elizabeth Dudek Health Quality Assurance Jan Mills Facilities Intake Unit

Docket for Case No: 04-003856CON

Orders for Case No: 04-003856CON