STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
HOSPICE OF NAPLES, INC.,
Petitioner,
vs.
AGENCY FOR HEALTH CARE ADMINISTRATION,
Respondent.
)
)
)
)
) Case No. 07-1264CON
)
)
)
)
)
)
HOPE HOSPICE AND COMMUNITY SERVICES, INC., f/k/a HOPE OF SOUTHWEST FLORIDA, INC.,
Petitioner,
vs.
AGENCY FOR HEALTH CARE ADMINISTRATION,
Respondent.
)
)
)
)
)
)
) Case No. 07-1654CON
)
)
)
)
)
)
VITAS HEALTHCARE CORPORATION OF ) FLORIDA, )
)
Petitioner, )
)
vs. )
) EVERCARE HOSPICE OF COLLIER ) COUNTY, INC.; HCR MANOR CARE ) SERVICES OF FLORIDA, INC.; HOPE ) OF SOUTHWEST FLORIDA, INC.; ) ODYSSEY HEALTHCARE OF COLLIER ) COUNTY, INC.; and AGENCY FOR ) HEALTH CARE ADMINISTRATION, )
)
Respondents. )
Case No. 07-1656CON
)
RECOMMENDED ORDER
These consolidated cases were heard by David M. Maloney, Administrative Law Judge of the Division of Administrative Hearings, from August 13 through 16,
20 through 24, 27 through 31, September 4 through 6 and 11, 2007, in Tallahassee, Florida.
APPEARANCES
For Petitioner Hospice of Naples, Inc.
Robert D. Newell, Jr., Esquire Newell, Terry & Douglas P.A.
817 North Gadsden Street Tallahassee, Florida 32303-6313
For Petitioner Hope Hospice and Community Services, Inc., f/k/a Hope of Southwest Florida, Inc.:
W. David Watkins, Esquire Karl David Acuff, Esquire Watkins & Associates, P. A.
3051 Highland Oaks Terrace, Suite D Post Office Box 15828
Tallahassee, Florida 32317-5828
and
J. Robert Griffin, Esquire
J. Robert Griffin, P.A.
1342 Timberlane Road, Suite 102-A Tallahassee, Florida 32312-1762
For Petitioner Vitas Healthcare Corporation of Florida:
Geoffrey D. Smith, Esquire Susan C. Smith, Esquire Smith and Associates
2873 Remington Green Circle Tallahassee, Florida 32308
For Respondent Agency for Health Care Administration:
Karin M. Byrne, Esquire
Agency for Health Care Administration 2727 Mahan Drive, Building 3
Mail Station 3
Tallahassee, Florida 32308 STATEMENT OF THE ISSUE
Which of two applications for a Certificate of Need (CON) to operate a hospice in Service Area 8B, Collier County, Florida, should be granted: CON 9967 filed by Hope Hospice and Community Services, Inc., or CON 9969 filed by VITAS Healthcare Corporation of Florida?
PRELIMINARY STATEMENT
The fixed need pool for the second "Other Beds and Programs" 2006 batching cycle was published by the Agency for Health Care Administration ("AHCA" or "the Agency") on October 6, 2006. It identified a need for one new hospice program in Service Area 8B, Collier County.
On October 27, 2006, Hospice of Naples, Inc. (HON), an existing provider of hospice services in Collier County, filed a challenge to the fixed need pool. The challenge was denied by final order of the Agency. An appeal was filed by HON and ultimately dismissed.
In the meantime, five hospice organizations submitted letters of intent and filed CON applications to meet the need in Collier County. Along with AHCA and HON, two of
the five are parties to this proceeding: VITAS Healthcare Corporation of Florida (VITAS) and Hope Hospice and Community Services, Inc. (Hope); three are not: HCR Manor Care Services of Florida (HCR), Evercare Hospice of Collier County (Evercare) and Odyssey Healthcare of Collier County, Inc. (Odyssey).
The Agency issued its State Agency Action Report (the "SAAR") on February 23, 2007. The SAAR approved VITAS' application and denied the other four.
Timely petitions challenging the Agency's action in the SAAR were filed by HON (as to approval of VITAS' application), Hope (as to approval of VITAS' application and denial of its own), HCR (as to approval of VITAS' application and denial of its own) and Odyssey (as to approval of VITAS' application and denial of its own.) The petitions all support AHCA's denials of applications not their own.
VITAS also filed a petition. Its petition supports the Agency's action taken in the SAAR in every respect.
The five petitions were referred to DOAH and assigned case numbers 07-1264CON (HON's), 07-1653CON (HCR's), 07- 1654CON (Hope's), 07-1655CON (Odyssey's) and 07-1656CON
(VITAS'). Shortly after assignment of the case numbers,
the undersigned was designated as the administrative law judge to conduct the proceedings in each case.
The five cases were consolidated by order of the Division of Administrative Hearings (DOAH) and noticed for hearing. Prior to the commencement of hearing, HCR and Odyssey dismissed their petitions leaving Case Nos. 07- 1264CON, 07-1654CON, and 07-1656 pending.
A final hearing in the three consolidated cases commenced on August 13, 2007, and concluded on September 11, 2007.
VITAS presented the testimony of Deirdre Law, accepted as an expert in nursing, hospice management and operations, and new hospice development; Rabbi Barry Kinzbrunner, M.D., accepted as an expert in medical oncology and hematology, hospice medicine, hospice medical directorship and rabbinical studies and Judaism; Margaret McFarland;
Ron Fried; Sarah McKinnon, accepted as an expert in education hospice services; Freddie J. Negron, M.D., accepted as an expert in hospice and palliative care medicine, internal medicine, and pulmonary care medicine; Reverend Martha Rutland, accepted as an expert in hospice chaplaincy, spiritual care, and clinical pastoral education; Robin Fiorelli, accepted as an expert in clinical social work, hospice bereavement services, hospice
volunteer services, and the psychosocial needs of hospice patients; Dian Backoff, accepted as an expert in hospice operations; Elizabeth Nolton; Diane Deese; Kathy LaPorte, accepted as an expert in hospice operations; Thad Jaracz; and Patricia Greenberg, accepted as an expert in health care, financial planning and analysis, financial feasibility analysis, and hospice planning.
VITAS offered Exhibits numbered 1-147, 149-196, 211-
299, 307-314, 442, 453 and 475. All are admitted with the hearsay noted as to certain exhibits or portions of the exhibits. VITAS offered Exhibit 148 but withdrew it since it was a duplicate of VITAS 57 which had been admitted earlier in the proceeding. VITAS also offered Exhibits numbered 197-210, but withdrew them.
Among the VITAS exhibits admitted into evidence were the depositions of Pamela Africk, Harold Brown,
Marco Carrasco, George Geans, Barbara Gill, Rosemary Hall, Mike Hansen, Jim Harbilas, Tarri Harbilas, Susan Jackson, Kathy Kestler, Michael Loscalzo, Michael Mastej,
Bob Miller, Karen Miller, Geoffrey Moebilius,
Mark Niemeyer, Richard Payne, Mari-Lily Pujals, Susan Reed- Betts, James Sinclair, Lou Tamburro, RosalynZ Watson,
Hugh Westbrook, Fred Wilcoxson, David Willens, Sylvin Wolf, Theodore Zaravinos, Jeffrey Gregg, Toni Granchi,
Nancy Harrod, Charles Idelson, and Debbie Prichard. The admitted VITAS exhibits included excerpts of the depositions of Karen Rollins, Richard Akin, Allison Brown, Daniel Button, William Enslen, Mary Stegman, Jill Lampley, Dawn Platt, Donald Wenninger, and Jackie Trosterud.
Hope presented the testimony of Samira Beckwith, accepted as an expert in the fields of hospice program administration and hospice social work; Darryl Weiner, an expert in the field of health care finance including financial feasibility determination, with an emphasis on health care finance for hospice programs; Daniel Button, accepted as an expert in the fields of hospice social work and hospice interdisciplinary team management and direction; Pamala Grottanelli, accepted as an expert in the fields of hospice clinical care, hospice nursing, and clinical staff education and training; Dr. John Guercio, accepted as an expert in the fields of medicine and hospice medical direction and patient treatment; Donald Wenninger, accepted as an expert in the field of information technology including information technology systems for hospice operations and disaster preparedness for IT systems; Jackie Trosterud, accepted as an expert in the fields of hospice nursing and clinical staff education and training; Jill Lampley, accepted as an expert in the fields
of hospice financial management and healthcare finance; William Enslen, accepted as an expert in the fields of hospice pastoral counseling and bereavement; and
Jay Cushman, an expert in healthcare planning. On rebuttal, Mr. Weiner was recalled to testify for Hope.
Hope offered Exhibits numbered 1 through 21 (except 10K through 10P), 23, 25-40, 44-53, 59-61, 64-73, 76, 81,
88-91, 93-95, 97-98, 118-120, 128-132, 140-176, 178-180,
184-187, and 193-196. All are in evidence. In addition, official recognition was taken of Hope Exhibits numbered 193-195.
Among the exhibits were deposition transcripts or portions of transcripts of Richard Akin, Denise Lujan Blanton, Allison Brown, Marty Bryson, Anthony Chioccarelli, Joseph Cleveland, Mary Curtis, Terry Duncombe, W. Theodore Etzel III, Gwen Feather, Thomas Giles, Guenther Gosch,
Toni Granchi, Gary Green, Nancy Harrod, Charles Idelson, Colleen Kvetko, Dr. Bruce Lispchutz, David Lucas, Barbara Monti, Enrico Monti, James Nathan, Dawn Platt, Deborah Prichard, Dotty St. Amand, Erin Sakmar, Jonathan Scalone, Rabbi Benjamin Sendrow, Dr. Marty Stegman, Thomas Taylor, Gary Trippe, Larry Turbeville, Allen Weiss, Regina Williams, Douglas Allemong,
Kirt Anderson, Robert Beiseigel, Phil W. Cole,
Christine D'Angelo, Stephanie Foster, Karen Rollins, George M. Walters, Jr., Elaine Williams, and Millard J. Younkers.
HON presented the testimony of Karen Rollins, accepted as an expert in health services administration, hospice and palliative care nursing and hospice administration;
Gina Lambert, accepted as an expert in hospice and palliative care nursing and hospice clinical services; Mary Brodeur, accepted as an expert in hospice community relations and outreach; Stephanie Foster, accepted as an
expert in hospice development; Thomas Davidson, accepted as an expert in healthcare planning; Robert Beiseigel, accepted as an expert in healthcare financial analysis and forensic financial analysis; and Paul Mitchell, M.D., accepted as an expert in medicine, hospice medical direction and board-certified in internal medicine.
HON offered Exhibits numbered 1-55 and 62-68. All are in evidence. Official recognition was taken of HON Exhibits numbered 62-67.
The Agency did not present the testimony of any witnesses at hearing. It offered two exhibits numbered 1 and 2. The exhibits, marked for identification in the record as AHCA 1 and 2, are duplicates of VITAS' Exhibits numbered 274-1 and 274-2 with the exception that the
exhibit that is the SAAR presented by AHCA is executed whereas the SAAR presented by Vitas is not signed. The signed page of AHCA Ex. 2 was admitted.
On August 20, 2007, Hope filed written objections to portions of depositions and exhibits tendered into evidence by VITAS. On September 24, 2007, VITAS filed its response. Upon consideration of these two filings, all of Hope's objections are overruled.
On September 11, 2007, VITAS filed a list of objections related to Hope Exhibits numbered 150, 151, 163,
175 and 178. The hearsay nature of the testimony objected to in Hope Exhibit numbered 150 is noted. The remainder of the objections are overruled.
On September 21, 2007, Hope filed a document entitled "Hope's Notice of Designation of Deposition Transcript Excerpts for Receipt into Evidence." Excerpts of the deposition of Karen Rollins taken on June 14, 2007 (Hope Exhibit 184) and the deposition of Stephanie Foster taken on June 13, 2007 (Hope Exhibit 180) were designated for admission into evidence. VITAS filed a response on September 28, 2007. On the same date, HON adopted VITAS' response. The response objects to admission into evidence of the excerpts in Hope Exhibits 180 and 184 and requests that if the objections are not sustained that the
entireties of the two exhibits be admitted rather than just the excerpts. The objections are overruled and Hope Exhibits 180 and 184 are admitted in their entireties.
Proposed recommended orders (PROs), after several extensions of time jointly sought by the parties or to which there were no objection, were timely filed by all parties on December 10, 2007.
FINDINGS OF FACT
The Parties
AHCA
The Agency for Health Care Administration is responsible for the administration of the Certificate of Need (CON) Program in Florida and for carrying out Florida's CON Law. See § 408.031, Fla. Stat., et seq.
The Agency is designated both "as the state health planning agency for purposes of federal law . . . [and as] the single state agency to issue, revoke, or deny certificates of need . . . in accordance with present and future federal and state statutes." § 408.034(1), Fla. Stat.
HON
Hospice of Naples, Inc. (HON), a not-for-profit corporation qualified as a "501(c)(3)" charitable organization under the Internal Revenue Service Code, is a
community-based full service hospice. Founded in 1983 by a group of volunteers who wanted to improve care for those suffering terminal illnesses in Collier County, HON is governed today by community representatives that comprise a 19-member board of directors.
HON is the only hospice currently licensed to provide hospice services in Service Area 8B, Collier County. It is licensed to provide hospice program services and to operate a freestanding general inpatient program facility in the county.
Since 1988, HON has been continuously Medicare and Medicaid certified. It has been accredited by the Joint Commission for Accreditation of Health Care Organizations since 2001.
HON accepts all Collier County patients, regardless of religious beliefs, sexual orientation, and circumstances, including how the patient may be challenged physically or mentally. HON provides its services wherever the Collier County patient resides: in their own homes (approximately 50%); in skilled nursing facilities and assisted living facilities (45%); in jails, shelters and the Georgeson Hospice House (5%); and in a small fraction of cases in hospitals. Patients are also accepted regardless of ability to pay. In 2006, HON provided
$344,000 in charity care to those who did not have the resources to pay for hospice care.
HON's principal office is located on the same campus with the Frances Georgeson Hospice House (the "Georgeson House"), HON's 16-bed freestanding hospice general inpatient facility. The main office and Georgeson House are centrally located and geographically accessible in relation to the most populated portions of the county.
HON has four branch offices placed where the greatest number of hospice patients reside in the county. The offices are in Marco Island, Immokalee, North Naples (near the Collier-Lee County line), and South Naples.
HON consistently relies on donations from the community to cover shortfalls from operations.
From 2002-2006, HON lost between $1.5 million and
$4.5 million annually on operations, before contributions were considered. Contributions over the same period ranged from $1.5 million to $4.4 million. HON relies on contributions to allow it to continue to provide a wide array of enhanced core, non-core and community services beyond what reimbursement covers.
Collier County has been well served by HON, an available, accessible, high quality, not-for-profit community-based hospice.
VITAS
VITAS is a for-profit Florida corporation licensed to provide hospice services in Florida. It is a wholly-owned subsidiary of VITAS Healthcare Corporation ("VITAS Healthcare") which operates more than 40 hospice programs in the nation and is the largest hospice provider in the country.
VITAS has a sister corporation, VITAS of Central Florida, Inc. The two operate hospice programs in Hospice Service Areas 4B, 7A, 7B, 7C, 9C, 10, and 11 that include Orange, Osceola, Seminole, Brevard, Volusia, Flagler, Miami-Dade, Monroe, Broward, and Palm Beach Counties.
VITAS and its predecessor entities have provided comprehensive hospice services throughout South Florida in excess of 28 years. It has a storied history that commenced in the mid-seventies with the organization of a group of hospice volunteers by Hugh Westbrook, an ordained United Methodist minister, and Esther Colliflower. These initial efforts led to the incorporation of Hospice Care, Inc., in Miami as one of the nation's first hospice programs. Reverend Westbrook and Ms. Colliflower continued their pioneering endeavors in hospice as leaders in the successful effort to create a federal payment system for hospice.
In the early 1990's Hospice Care, Inc., was converted into a for-profit entity. The term VITAS, derived from the Latin word for "lives," was incorporated into the name of the corporation to symbolize the mission of VITAS Healthcare: the preservation of the quality of life for those who have a limited time to live.
VITAS Healthcare is a wholly owned subsidiary of Chem-Ed, a for-profit corporation. Chem-Ed has had an interest in VITAS Healthcare at least since 1991 when it was an owner of 25% of VITAS Healthcare stock and one of its executives, Tim O'Toole took a seat on the VITAS Healthcare board of directors. In 2004, the majority ownership of VITAS Healthcare was sold to Chem-Ed and
Tim O'Toole became VITAS Healthcare's Chief Executive Officer.
Most of the senior management stayed intact after the acquisition by Chem-Ed. Among the reasons for retaining senior management was to continue VITAS Healthcare's values in the wake of the acquisition. The main value is "putting patients and their families first."
Hope
Hope Hospice and Community Services, Inc. (Hope), is a not-for-profit community-based hospice organization
incorporated as a 501(c)(3) charitable corporation under the Internal Revenue Code.
Hope is governed by a board of directors, all of whom are residents of Hope's service area. As business and community leaders in Southwest Florida, Hope's Board members know the Hope service area well. Their in depth knowledge of the community enhances their sensitivities to the needs of the communities served by Hope.
Founded in 1979 by a group of clergy, nurses, and other volunteers in Lee County, Hope became a Medicare certified hospice in 1984. Since 1991, Samira Beckwith has served as Hope's President and CEO. Ms. Beckwith has been actively involved in hospice since 1976, and has received numerous state and national awards for her work in hospice and end-of-life issues.
Originally licensed to serve Service Area 8C (Lee, Hendry, and Glades Counties), Hope has been licensed since 2006 to serve Service Area 6B (Polk, Hardee, and Highlands Counties) as well.
Hospice Care
Hospice care may be provided in any location where a patient has lived or is temporarily residing such as a private home, family member's home, assisted living facility (ALF), nursing home, hospital or other
institution. There are four levels of hospice care: routine home care, general inpatient care (GIP), continuous care and respite care.
The majority of hospice patients receive routine home care. This level of care may be provided in the patient's home, a family member's home, a nursing home or an ALF. Routine care comprises the bulk of hospice patient days.
Continuous care is also provided in the patient's home. Unlike routine home care, continuous care is nursing assistance at a time of crisis for the patient. Typically, it is for control of acute care pain or symptom management on a short-term basis.
Continuous care is usually intermittent. The use of the term "continuous" as a descriptive adjective to describe this type of hospice care, therefore, makes "continuous care" a misnomer.
Continuous care requires a minimum of 8 hours of one-on-one care in a 24-hour period with at least 50% of the care provided by a nurse. The other half of the care may be provided by personal care assistants or nurses' aids.
General inpatient care or GIP refers to the care a hospice patient receives in an inpatient setting such as
a hospital, a Medicare-certified nursing home or in a freestanding hospice unit. This type of care involves increased nursing and physician care for patients with symptoms temporarily out of control and in need of round- the-clock nursing to manage complications.
The least used level of hospice care, respite care is provided to patients in an institutional setting such as a nursing home, ALF or freestanding hospice unit in order to allow care givers at home, such as family members, a short break or "respite" from the demands of caring for a terminally ill patient.
Penetration Rates
An objective measure of accessibility of a hospice program is the penetration rate ("P-rate") in the hospice's service area. P-rate is the ratio of hospice admissions to total deaths in a service area. It is a basis for planning for hospice programs in the state of Florida.
Hope touts its P-rate in Service Area 8C as a basis for its superiority over VITAS. Its P-rate in Service Area 8C has always exceeded the state-wide average. For the June 2006 reporting period, its P-rate was 62% when the statewide average was 56%. Hope has continually
increased its P-rate at a rate higher than the rate of increase of the statewide average.
The Fixed Need Pool and the SAAR
On October 6, 2006, AHCA published a fixed need pool for one new hospice program in Service Area 8A for the second batching cycle of 2006.
On October 27, 2006, HON filed a challenge to the fixed need pool. The challenge was denied by final order. HON appealed. The appeal was dismissed.
In the meantime, five hospice organizations submitted letters of intent and CON applications for a new hospice in Service Area 8A: VITAS, Hope, HCR Manor Care Services of Florida (HCR), Evercare Hospice of Collier County (Evercare), and Odyssey Healthcare of Collier County, Inc.
AHCA issued its State Agency Action Report (SAAR) on February 23, 2007. The SAAR approved VITAS' application and denied the others. Notice of AHCA's decision was published in the March 9, 2007, edition of the Florida Administrative Weekly.
Between March 12, 2007 and March 29, 2007, HON and three of the denied applicants (Hope, Odyssey, and HCR) filed petitions challenging the approval of VITAS' application. The petitions of Hope, Odyssey, and HCR also
challenged the denials of their respective applications. Evercare did not challenge any of the Agency's decision.
On March 23, 2007, VITAS filed a petition supporting the decisions of the Agency and requesting comparative review of its application with the applications of the other applicants that had challenged AHCA's decision.
In their applications, VITAS and Hope aspire to meet the need published for a single new hospice in Service Area 8A. They also contend in their applications that "special circumstances" demonstrate need for an additional hospice program in Collier County.
The need formula in Florida Administrative Code Rule 59C-1.0355 (the "Hospice Programs Rule"), produces
a fixed need pool for "1" or "0." The Agency's position is that the formula can never generate a fixed need pool in excess of 1. See Fla. Admin. Code R. 59C-1.0355(4)(a):
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 elect a hospice program is
350 or greater. The net need for a new hospice program in a service area is calculated as follows . . . .
(Emphasis supplied).
The existence of a fixed need pool of "1," alone, does not prove there are gaps in service if there is an existing hospice provider in the service area. HON's expert, Mr. Davidson elaborated on this point at hearing:
The purpose of the rule is not to identify service areas where existing providers are not getting the job done now . . . it's a temptation to interpret a fixed-need pool that way but it's an incorrect temptation.
[T]he rule . . . identifies service areas where the growth in hospice admissions is projected to be sufficiently large to enable a new program to be approved without digging into the level of service of the existing provider.
Tr. 3708-3709. In this case, the fixed need pool of 1 was attributable more to projection of service area deaths than the use of penetration values used in the formula for calculating fixed need.
When a fixed need pool of "1" has been published, and an applicant responds to the numeric need and also alleges that special circumstances exist to justify approval of a new hospice, the Agency views the special circumstance allegation, even if proved, to be a potential preference for the applicant in the context of comparative review. The existence of a special circumstance is not a
basis for the approval of more than one applicant in a batching cycle.
The Hospice Programs Rule is interpreted by AHCA to permit the approval of only one hospice program in any one batching cycle. This interpretation stands so that only the superior application may be approved even in cases where: a.) there are two hospice organizations qualified to meet numeric need and b.) coincidentally there are special circumstances that would otherwise justify the inferior application's approval.
Adverse Impact to HON if Two Programs Approved
If the applications of both VITAS and Hope were to be simultaneously approved, HON would experience a significant reduction in average daily census (ADC). By 2009, it is reasonably projected that its census would be reduced to 180 patients, a decrease from 2007 of about 61 patients in the second year of operation for the two new programs.
Net income (including donations) for HON in the second year of operation for two new programs, if ADC were decreased by 61 patients, would likely be reduced by approximately $1.2 million.
Historically, HON has a net operating loss before contributions ranging from $1.5 million to $4.5 million.
The likely reduction in net income would be significant. Reduction in HON's programs would be necessary to make up for the lost revenue. A number of community programs would have to be eliminated. Core and non-core services would have to be reduced. It is possible that there would an indirect adverse impact to HON as well: a breach of trust perceived by the community and donors when community services which have come to be expected are reduced or withdrawn.
Service Area 8B: Collier County
Service Area 8B, located in Southwest Florida along the coast of the Gulf of Mexico, consists of one county. Collier County is relatively large in area. Its population of around 360,000 is most dense along the coast in the county's westerly parts.
Service Area 8A borders Service Area 8C to the north and Service Area 10 and 11. The more populated communities in Collier County are more congruent with communities in adjacent Service Area 8C, where Hope operates. Service Areas 10 and 11, where VITAS operates, on the other hand, are separated from the densely populated areas of Collier County by wide expanses of relatively unpopulated borderlands.
Service Areas 8A and 8C have some similar demographics. For example, both are less densely populated than the state as a whole. Both service areas are growing at a rate that is faster than the rate of growth of the state as a whole. The percentage of the two service areas in the 65+ age cohort is the same and is higher than the statewide average for that age cohort. The two have a similarity in the percentage of Hispanic population. The median household net worth in both service areas is higher than the statewide average, considerably so in the case of Collier County. The two service areas have similar mortality rates and a similar array of causes of death for their residents.
Proximity of Hope to Collier County Health Care Facilities
Collier County has four hospitals, two within each local health care system. NCH Health System (NCH) operates Naples Community Hospital and, less than 10 miles from the Lee County line, North Naples Hospital. Health Management Associates (HMA) operates Physicians' Regional Hospital at Pine Ridge Road and at Collier Boulevard. The two NCH hospitals have 681 beds, while the HMA hospitals have approximately 180 beds. Collier County has many skilled nursing facilities.
Collier County hospitals serve some residents of Service Area 8C. The import of the proximity of Hope's current operations in Lee County and Service Area 8C to Service Area 8A was summed up at hearing by Hope's expert planner, Jay Cushman:
Because of Hope's proximity to the proposed service area, it has relationships that already exist between important providers of health services in service area 8B including hospitals. From time to time, residents of Hope's service area are hospitalized in Collier County, and Hope's staff visits them if they are going to be referred back to Lee County or other counties in service area 8C as hospice patients.
Hope Hospice also operates a long-term care diversion program ["LTCD Program"] which includes services to residents of Collier County. So Hope Hospice is already engaged in providing social and health services to service area 8B in a way that puts them in a natural position to identify patients who are in need of hospice care and to see that their admission to hospice care is accessible and a matter of continuity of care between their participation in the [LTCD Program] and potential admission to hospice.
Tr. 2899-2900. Furthermore, of Collier County residents requiring hospitalization, six percent are admitted to hospitals in Lee County. In contrast, the relationship between Collier County residents and admissions to Miami- Dade or Broward County hospitals is insignificant.
Having a presence in an adjacent service area does not guarantee success for Hope. When Hope sought to expand to Service Area 6B (Polk, Highland, and Hardee Counties), it made arguments of "contiguous" communities and "established referral networks." Yet, Hope only achieved approximately one-third of its projected first year admissions in Service Area 6B.
If Hope is approved as a result of this proceeding and Hope continues its management of the LTCD program in Collier, moreover, it is likely to have an adverse impact on HON with regard to certain referrals. If VITAS is approved, the potential for a hospice operated LTCD program to facilitate referral advantages will not exist. VITAS will not start an LTCD program if its application is approved.
The differing impact that co-batched applicants might have on an existing provider is considered by AHCA to be relevant to comparative review.
COMPARATIVE REVIEW
Relative Impact on HON; Donations
Unlike VITAS, which has an affiliated foundation that accepts memorials, bequests and unsolicited donations, Hope and HON actively solicit and depend on donations to cover operating losses annually.
HON's only source of revenues are Medicare, Medicaid, and Insurance (combined 82%); Contributions and fundraising (16%); and thrift shop revenue (2%).
From 2002-2006 inclusive, HON lost between $1.5 million and $4.5 million on operations, before contributions were considered. Contributions over the same period ranged from $1.5 million to $4.4 million. HON relies heavily on contributions to make up annual shortfalls in revenue and to allow it to continue providing a wide array of core, non-core and community services beyond what reimbursement covers.
HON's operational expenses annually exceed revenue, because of HON expenses incurred to ensure quality and accessible care. For example, HON employs highly trained clinicians and deploys them on specialty teams. In addition to its regular home care teams, HON has a Float Team, to ensure there are no service gaps. It also has a Central Facilities Team, comprised of RNs and Aides, experienced with the unique needs of nursing home based hospice patients who exclusively serve HON's patients in nursing homes and assisted living facilities. It also has an On-Call/After Hours Team, a special Weekend Home Care Team, an Admissions and Intake Team, and complementary therapies.
Besides the RNs assigned to direct patient care, HON also employs RNs for all key managerial positions. At HON the CEO, Director of Compliance, Clinical Services Directory, Quality Manager, Clinical Education Director, General Inpatient Care (GIP) Clinical Manager and all team managers are all experienced RNs. This depth in personnel allows more clinicians to spend more time with patients and families and to deliver high quality specialized care. It is expensive. It involves hiring and retaining the most experienced, specialized and certified clinicians available.
HON has one of the lowest nurse to patient ratios in Collier County: 1 nurse to every 11 patients in home care and 1 nurse to every 4 patients in GIP. These lower ratios mean more care at the bedside and more support for the patient and family.
HON uses certified home health aides and nurses assistants rather than homemakers to perform homemaker services for patients.
HON has placed certified RNs in all of its key management and care giver positions, with high concentrations of certified RNs on the specialty teams. The certification of hospice and palliative care nurses and
home health aides signifies the highest level of competency and specialization in the end of life clinical care.
Charitable contributions received by HON, to offset operational losses are broadly categorized as "solicited" and "unsolicited." Solicited funds are monies that HON raises through newsletters, direct solicitation, special events, and individual and corporate underwriting. Unsolicited money comes from memorial gifts and bequests, primarily from patients and patient families.
Although Naples may be the one of the wealthiest communities in Florida in terms of disposable wealth, it does not mean there is an inexhaustible pool of money for charitable contributions.
The window of opportunity to sponsor a well attended charitable fundraising event in Collier County is January through April. A Naples Charity Register is published annually, to confirm for the donors and event sponsors how the limited space on the calendar of charitable events has been allocated. Each year, there are over 300 not-for-profit organizations in Collier County competing for a weekend, between January and April, to schedule their fundraiser.
Solicited funds received from special events are the result of relationship HON nurtures with other
organizations in the community. Special event funding is not limited to HON; the market for fundraising in Collier County is highly competitive. Each new fundraising season requires that HON renew relationships, which can be preempted at any time by another charity. HON's historical relationships simply do not guarantee that a community organization will in the future choose to give charitable dollars to HON.
HON's ability to maintain these relationships with donors is enhanced by the fact that it is currently the only not-for-profit hospice in Collier County.
Like HON, Hope is also heavily dependent on donations and charitable contributions to cover Hope's annual operating losses, which historically range from $1 million to $5.1 million annually.
As in the case of HON, Hope is a 501(c)(3) charitable organization, authorized to solicit donations from the general public and to provide receipts for those donations, so that donors can take tax deductions for their donations.
The amount of contributions Hope solicits is impressive. In 2006, when all contributions and net assets released from restrictions/satisfaction of donor
requirements were considered, Hope raised $4.3 million in charitable contributions.
Hope is more successful than the average hospice at raising charitable donations for its hospice program. It has a track record of being committed to raising substantial amounts of money in its own service area through special events. Hope solicits its larger donations from the same sort of activities (tennis and golf charity events) as does HON.
Hope's enthusiasm for special event soliciting is exemplified by Hope's decision to include a notice of the "Hope Gala" in the 2006-2007 Naples Charity Register, to directly solicit funds from the Naples area in which Hope is not licensed as a hospice, to fund a Hospice House that Hope had already built in its own service area.
It is reasonable to expect that if awarded a CON, Hope would solicit contributions by sponsoring special events in Collier that would directly compete with HON for a seasonally limited pool of solicited special event and corporate donations. It is also reasonable to expect that corporate and individual donors with a history of giving to HON would instead split hospice donations between Hope and HON.
In CY/FY 2006, 71% of the charitable contributions received by HON were from solicited sources. Solicited sources can be divided into three broad categories. Special events accounted for 18% of charitable contributions, solicited corporate underwriting 19%, and direct mail and newsletters 34%. Unsolicited bequests and memorials accounted for the remaining 29% of charitable contributions.
Solicited contributions from special events and corporate donations exceeded $750,000. If Hope is awarded a CON, HON's fundraising expert project Hope will reduce solicited donations from special events and corporations, which HON would have otherwise received, by at least one half the first year and potentially more than one half in successive years. While the projection may overstate the immediate reduction in HON's share of solicited donations, it is reasonable to project that HON's share of all solicited donations will be reduced roughly by half at some point not long after Hope received a CON were it to do so. It is logical also to conclude that Hope would compete for and reduce HON's receipts from direct mail and newsletter solicitations.
VITAS is a for-profit corporation. It is not likely to compete with Hospice of Naples for charitable
contributions from the community. Nor does VITAS' charitable Foundation receive contributions on the scale of Hope. VITAS raises approximately $1 to 1.5 million per year nationwide from its hospice programs, most of which is the result of memorial gifts, rather than community fundraising. It is virtually certain that VITAS' entry into the community will have minimal impact on HON's fundraising efforts.
VITAS has committed to working collaboratively with HON to limit the impact VITAS would have on HON's donations. VITAS has agreed, as a condition subsequent to approval of its CON, to provide HON's charitable donation solicitation materials and brochures to VITAS patients and families.
VITAS' charitable foundation primarily helps fund and support end of life research, such as the Duke Institute for End-of-Life Care, which benefits all hospices.
It is reasonable to expect that if VITAS was awarded a CON, HON would continue to receive much needed solicited donations from direct mail, newsletters, corporations, and special events, in an amount approximating HON's historical solicitations.
In sum, an approved VITAS program will have significantly less adverse impact on donations to HON than will an approved Hope program.
VITAS' offer to accept as a condition on its CON a requirement that VITAS make HON donation solicitation literature available to VITAS' patients is significant. It confirms a collaborative approach to informing the community. It also gives potential donors a choice:
donate to a hospice that uses its donated dollars locally or to one that funds end of life care research and
improvement.
Different Models of Care
VITAS offers a model of care different than that provided by HON or that would be provided in Collier County by Hope.
The difference flows from the nature of VITAS' organization as a business. It is a wholly-owned subsidiary of a large, for-profit corporation with national resources, VITAS Healthcare Corporation. VITAS Healthcare Corporation, in turn, is a wholly-owned subsidiary of
Chem-Ed, a for-profit corporation that is publicly traded and that engages in business unrelated to hospice with nation-wide scope.
Chem-Ed, operates under a business model that seeks to maximize shareholder value and returns. Publicly traded companies often make strategic decisions based upon the stock's performance rather than the business' viability or services provided. Chem-Ed provides its executives at VITAS with performance-based compensation incentives that reward them with bonuses premised upon performance.
Chem-Ed monitors the financial performance of its hospice programs with respect to the Medicare spending limit (the "Medicare Cap"). The Medicare Cap is a limit on the total annual payments Medicare makes to a hospice based on the number of first time hospice beneficiaries served by the hospice. The Medicare Cap is intended to ensure that Medicare does not spend more for hospice patients, on average, than for conventional medical care patients at the end-of-life. From Chem-Ed's perspective, hospice programs that operate just below or just above the Medicare Cap optimize profitability.
A Medicare provider that exceeds its Medicare Cap must pay back to the government the money it was paid by the government above the cap. In the event that VITAS Healthcare determines that one of its subsidiary programs is going to exceed its cap, there is incentive, especially under a business model of delivering hospice care, to take
corrective action. Corrective action could be directed at patient mix and patient admissions. This potential was described at hearing by Hope's expert health planner as:
[M]anaging patient mix and admissions from the highest levels of the company for a local program in order to protect the bottom line.
And this is without regard . . . to whether or not the needs of the community are being met; whether or not changing the patient mix would enhance or deny access to groups of patients; whether the admission discharge rate and length of stay are appropriate or not. It's all regard to whether the [hospice] program is exposing the [parent] company to a financial risk.
Tr. 3034.
The business organization context within which VITAS Healthcare operates will provide VITAS with the benefits of economies of scale in a number of its activities.
In stark contrast, HON and Hope are two local, not-for-profit, community-based hospice providers.
Hope employs a model of care called the Open Access Model because it emphasizes the elimination of barriers to access to hospice care. These barriers may include costliness and the difficulty posed for a patient having to choose between parenteral nutrition and hospice
care as described in Hope Ex. 27. The exhibit is an article described by Mr. Cushman as:
[S]uggest[ing] that the financial exposure that a hospice assumes when it adopts an open access model of care may be too great to bear for hospice programs that are less than an average daily census of 200. [The article] also discusses some of the issues facing patient and physician who want to refer patients to hospice, as they transition between curative and palliative care, and how open access programs, by providing an easier transition . . . assume a greater cost
. . . provide more access to hospice services and lengthen the hospice stay.
Tr. 3005-3006. Other barriers include a primary language of the patient other than English, cultural traditions, remote location of the patient's home, lack of access to basic social and health services, lack of information about hospice care, and the reluctance of the attending physician to deal with end-of-life issues.
An example of Hope's use of the Open Access Model is its willingness to pay for necessary palliative chemotherapy and radiation therapy when there are no other resources available to a hospice patient to cover such care.
Hope's related social and health services such as the Long Term Care Diversion Program enhance access to hospice services in Hope's service area. Employment of the
model is reflected in Hope's higher than average hospice penetration rates for Service Area 8C.
There are other differences between the approaches to hospice care taken by VITAS and Hope. For example, Hope favors Freestanding Hospice Houses for inpatient care whereas VITAS favors Hospital Dedicated Inpatient Units.
Freestanding Hospice Houses vs.
Hospital Dedicated Inpatient Units
Both freestanding hospice houses and hospital dedicated inpatient units have advantages and disadvantages. See VITAS Ex. 57, Ch. 2, p. 35.
VITAS sees Hospital Dedicated Inpatient Units as superior particularly from the viewpoint of doctors and ancillary services.
VITAS frequently contracts for dedicated hospital inpatient units. It has never built a freestanding hospice house and does not intend to build one in Collier County. VITAS proposes, instead, to begin providing care in scatter beds in hospitals and then would seek to establish dedicated units when the census justified it.
Two Collier County hospitals have indicated intention to enter contracts with VITAS if its application is approved. Naples Community Hospital has done the same.
Hope prefers freestanding hospice houses because with a homelike environment they provide a secure and comfortable place for those who prefer not to die at home or who may not have a caregiver at home. Furthermore, consistent with the nature of Hope as a community-based hospice, freestanding hospice houses provide community identity and visibility.
Hope operates three freestanding hospice houses to provide GIP and residential hospice services. They are HealthPark (16 GIP beds), Cape Coral (24 GIP beds and 12 residential beds) and Joanne's House/Bonita Springs (16 GIP and 8 residential beds). They are staffed by on-site nurses social workers, aides, therapists, and physicians. Medications and other supplies are available on site.
Hospice houses are Hope's primary mechanism for providing inpatient care but it also provides GIP services in a dedicated unit at Shell Point, a SNF/CCRC located in Lee County. Hope developed the polices and procedures in place in the unit and is responsible for managing patient care. The unit is jointly staffed by Hope and Shell Point employees with Shell Point providing the routine nursing care. Even though the unit is dedicated for use by Hope, Hope pays a per diem only for the beds actually occupied by
its hospice patients. No costs were incurred by Hope to renovate the space for use as a hospice unit.
Hope also provides GIP through a "scatter bed" arrangement with other nursing homes and hospitals within Service Areas 8C and 6B. Hope staff provide daily visits to Hope patients in the hospital setting and regular visits in the nursing homes. Hope staff attend team meetings in nursing homes and ALFs for purposes of reviewing care plans and participating in joint care planning with facility staff. Hope staff also regularly meet with the facility administrators and nurses to obtain feedback on the quality of services provided by Hope.
For Collier County, Hope's CON application proposed a mixture of scatter beds in hospitals and nursing homes and to use Joanne's house in Bonita Springs. Just as VITAS intends to resort to its primary mechanism for the delivery of inpatient services once its census in Collier County justifies it, Hope intends to build a freestanding hospice house in Collier County when its census reaches 100 patients. It projects that it will reach such a census in Year 4 of operation.
HON operates a freestanding hospice house in Collier County. While it has some scatter beds, most of HON's inpatient care is provided in its hospice house.
Hope, in its current operations, builds and utilizes hospice houses as its main mechanism for providing inpatient service. VITAS does not.
VITAS provides inpatient service in dedicated units in hospitals. The criteria for a patient to receive GIP are substantially the same as the criteria for continuous care: emergency care or control of acute pain or symptom management. The big difference between the two is where GIP is provided. Inpatient care, for the most part, is provided by VITAS in the hospital. The patient's home is generally the site of where the hospice patient receives continuous care.
Aside from the different models of care and approaches to GIP care, there are other differences between
Hope and Vitas.
VITAS
CON Conditions
In its application, VITAS offered to condition its CON in the following ways:
Core Services
Provide palliative radiation, chemotherapy and transfusions as appropriate for treating symptoms: It is VITAS Healthcare Corporation's position that these
services are a core service as appropriately provided palliative care is a requirement of Medicare conditions of participation. This will be measured via a signed declaratory statement by VHCF which may be supported via review of patient medical records.
Provision of hospice services 24 hours a day, seven days a week as indicated by the patient's medical condition: It is VHCF's position this is a requirement of Medicare conditions of participation. This will be measured by VHCF's continued Medicare certification.
VHCF will admit all eligible patients without regard to their ability to pay: It is VHCF's position this is a requirement of Medicare conditions of participation. This will be measured by VHCF's continued Medicare certification.
Non-Core Services
Commit to having every patient being assessed by a physician upon admission to the hospice: This will be measured via a signed declaratory statement by VHCF which may be supported via review of patient medical records.
A physician will serve as a member on every care team and provide patient visits as required: This will be measured via a signed declaratory statement by VHCF which may be supported via review of patient medical records.
On the first day of hospice care responsive patients will be asked to rate their pain on the 1-10 World Health Organization pain scale (severe pain to worst pain imaginable). A pain history will be created for each patient.
These measures will be recorded in Vx via a telephone call using the telephone keypad for data entry.
These outcome measures will include greater than 60 percent of patients who report severe pain on a 7-10 scale will report a reduction to 5 or less within 48 hours.
Implement a Pet Therapy program to begin immediately: This will be measured via a signed declaratory statement by VHCF.
Operational/Programmatic Conditions
Establish satellite hospice offices in Immokalee and Marco Island during the first year of operation: This will be measured via submission of the office address and location to AHCA and publication of such addresses in the provider's collateral material.
Implement a TeleCare Program to begin immediately: This will be measured via publication of the relevant collateral materials for the provider and patient community.
Establish a Local Ethics Committee to begin upon certification: This will be measured via publication of the names and relevant information
of the Ethics Committee members and the related scheduled of meetings.
Implementation of CarePlanIT, a handheld bedside clinical information system, by the end second year of operation: This is measured by identification of the CarePlanIT budget on Schedule 2 of this application and will be measured at the time of implementation via a signed declaratory statement by VHCF.
See VITAS Ex. 1, Tab 5, Summary of Conditions attached to Schedule C of CON 9969. In its PRO, the Agency lists five other conditions1 provided by VITAS:
Offer VHCF educational programs to Hospice of Naples staff, physicians and patients.
Provide Hospice of Naples Foundation information to VHCF patients and their families seeking to donate funds to hospice services.
Upon certification of VHCF Collier, its parent entity - VITAS Healthcare Corporation - will make a $20,000 charitable contribution to Hospice of Naples.
65% Non-Cancer patients.
Establish a Clinical Pastoral Education program to begin immediately.
Core services are required to be offered by hospice programs. The three conditions in VITAS' application related to "Core Services," therefore, cover services that are not typically subject to conditions since they must be provided whether the application is conditioned upon them or not. The advantage to making them subject to a condition, however, is that the CON holder can be fined for not meeting the condition.
The Agency approved the VITAS application and denied the others because in its estimation the VITAS application was clearly superior. See VITAS Ex. 274, Deposition of Jeffrey Gregg, at 16.
The decision was described as an "easy call," id., at 17 because no other applicant proposed conditions that were close to the significance of the conditions proposed by VITAS.
In its PRO, the Agency continues to maintain that the VITAS' conditions are far superior to those offered by Hope:
Hope's conditions, by contrast [to those offered by VITAS], were less impressive:
Hope Hospice will open an office in Naples and an office in Immokalee during the first year of operation.
Hope Hospice will conduct education and outreach programs in Collier County aimed at enhancing access to the population under 65 and to cancer patients who require palliative therapies.
Hope Hospice will implement an emergency preparedness plan capable of maintaining the hospice admissions function during hurricane emergencies.
To show conformance with the condition related to office locations, Hope Hospice will forward to the Agency copies of the business licenses and/or certificates of occupancy that who that Hope Hospice has occupied office space in Naples and in Immokalee in Service Area 8B during the first year of operation.
Hope Hospice will also forward to the Agency copies of educational and outreach programs and attendance sheets that document efforts to enhance access to the population under 65 and to cancer patients who require palliative therapies.
Hope Hospice will also forward to the Agency copies of its emergency preparedness plan for Service Area 8B.
Recommended Order Proposed by the Agency for Health Care Administration, at 8, paragraph 26.
Experienced Staff/Industry Leaders
Many VITAS employees have 15-20 years of hospice experience, including employees in positions of leadership. VITAS' management team consists of recognized leaders in the hospice industry. Its founders were founding members of the National Hospice and Palliative Care Organization (NHPCO). VITAS has maintained an active leadership within the organization. VITAS' employees serve on a number of significant NHPCO committees. They have actively participated in shaping NHPCO's guidelines on a multitude of topics and are frequent lecturers at NHPCO conferences.
The size of VITAS allows it to attract and recruit high caliber physicians, RNs, social workers and chaplains. Ability to grow within the company allows VITAS to retain its best employees.
Extensive Education and Training Resources
VITAS' economies of scale have allowed it to amass extensive hospice internal and external education materials. VITAS has developed unique training materials for staff. It has also developed specific physician and easy to understand community educational materials for patients and families. Many educational materials are translated into other languages including Spanish. All of VITAS materials are easily accessible on VITAS Intranet Service.
VITAS, because of size, is able to dedicate significantly more resources to staff education and training than most hospices. VITAS has a significant distance learning program, as well as ongoing dedicated corporate personnel that visit local programs for training. It also maintains teaching affiliates with universities and community colleges for residency and fellowship training of RNs, physicians, and other healthcare professions.
Among its training and education efforts is the coordination of specialized training. For example,
Dr. Kinzbrunner has dedicated substantial time to writing the Jewish Hospice Manual and traveling to various programs to help educate them to become certified by the National Institute for Jewish Hospices. Similarly, Colonel Jaracz's full-time responsibility is to formulate VITAS' Choices for Veterans initiatives and visit local programs to ensure they are carrying out these initiatives.
VITAS places a great deal of emphasis on educational materials for the patient and family. Hope has a different philosophy, at least at the time of admission. On some occasions Hope might provide brochures related to specific therapies if the patient will be receiving them at home. Usually, however, Hope limits the educational materials it provides at admission to a single brochure
about Hope Hospice in general. As Toni Granchi, Professional Relations Coordinator for Hope Hospice, explained in her deposition: "I don't want to inundate them with a bunch of brochures . . . . I don't want to give them everything on the first visit. It's very overwhelming." Hope Ex. 152, at 9-10.
In contrast to Hope's approach at the difficult moment of admission to hospice, VITAS sees "reinvesting in the materials that will improve [VITAS'] care and educate the family [as] critical." Tr. 116. Whichever approach is superior, the extent of VITAS' educational materials that would be available in Service Area 8 if VITAS is approved will add a new dimension to hospice education in Collier County.
Dedicated New Start Team
VITAS has had a dedicated start up team since 2002. This group is headed by Executive Vice President Deirdre Law, an RN with more than 20 years of hospice experience. The team includes several RNs with extensive hospice experience. They train clinical managers, ride with new hire nurses and provide patient care until the new nurses demonstrate competency.
An example of the work of the VITAS start up team was offered at hearing by Kathy Laporte, VITAS' Senior
General Manager for the Brevard and Volusia County programs. When VITAS' program started in Brevard County, a patient care administrator helped Ms. Laporte learn VITAS' policies, procedures and support tools. Support was offered to the business manager and in managing continuous care. The start-up team stayed with the Brevard Program until the program could be sustained without them, for "about a year." Tr. 1224. The success of the VITAS start- up team is demonstrated by VITAS' growth in five years to become the largest provider in the Brevard market despite competition from three exiting providers, two affiliated with hospitals.
In addition to the full-time dedicated start-up team, VITAS uses specialized personnel who are active in new start programs. Among them are Sarah McKinnon who provides start-up services in general staff education,
Dr. Kinzbrunner in Jewish hospice training and certification and medical directorship, Colonel Jaracz in Veteran training and outreach, Robin Fiorelli in bereavement and volunteer services and Mike Hansen in IT services.
VITAS start up teams and specialized start-up services have had significant new start experience in opening hospices in a number of competitive environments.
It has opened 20 programs in the last five years, three in Florida. VITAS has never had a start-up program fail.
As a community-based hospice much smaller relative to VITAS, Hope has not had start-up experience comparable to that of VITAS. Its one new start is in Service Area 6B. In its CON application, Hope had projected 321 admissions in Year 1. In its first year of operation, Hope achieved 92 admissions. Service Area 6B is Hope's only experience in a competitive market because it is the only provider of hospice services in Service Area
6C.
Advanced Information Technology
Because of the strength of its financial
resources, VITAS has been able to invest $10 million into its customer computer system called Vx or "VITAS Exchange." The system allows it to perform patient analysis and research studies that improve hospice care.
After testing in the Fall of 2007, VITAS will begin to roll out VxNext to make Vx more user friendly allow the gathering of more detailed patient information. A technology refresher to Vx, VxNext requires an investment of $13 million.
The latest VITAS Information Technology (IT) project is CarePlanIT, a customized care planning system
and electronic medical record. Currently 14 hospice programs, about one in three VITAS programs, are operational on CarePlanIT. The rollout of CarePlanIT has been going on for about three years. Increase in the percentage of VITAS hospice programs over those years has been slowed by the addition of so many new VITAS programs in the past five years.
VITAS reasonably conditioned its CON on having CarePlanIT operational in Collier County by Year 2.
Hope uses an "off-the-shelf" system, Misys, for its medical records. Unlike CarePlanIT customized for VITAS, Misys was not customized for Hope; nor is it specifically designed for hospice. Put simply, Hope's system is not "leading edge" information technology like CarePlanIT. Customized, leading edge, information technology is too expensive for Hope, as one would expect for a community-based hospice.
Telecare
VITAS' Telecare system is a centralized call center that answers the telephone calls for VITAS' programs after hours. There are several advantages to Telecare. Clinicians are available to answer questions immediately. The system uses defined criteria to determine if an after hours visit should be made. It divides responsibility between the decision-maker as to whether an after hours visit is needed and the RN who actually makes the visit. This division is advantageous because after hours care occurs at a time that is regarded by many as inconvenient. When the decision is made to undertake a visit, the local on-call RN is dispatched immediately.
Many of VITAS' clinicians at the call center are fluent in Spanish and other languages minimizing the barrier that language can be at a moment of stress.
Disaster Capability
VITAS' IT systems have built-in redundancy. The main site is in a bunker in Miami above the 100 year floodplain in a facility that had been an AT&T switching center. The walls are three feet thick concrete. In addition, VITAS is running concurrent dual systems in Chicago and has 100% redundancy for all systems in a bunker in Phoenix, Arizona. The Miami site has generator capacity
to run for two weeks without power but could be switched to Phoenix with little to no down time in the event of a disaster.
VITAS' size gives it the advantage of the ability to bring in clinical personnel from other parts of the country should there be a disaster that displaces some
staff.
Outreach Programs
There are no existing hospice outreach programs for the Jewish population in Collier County, but the special needs of Collier County Jewish hospice patients are being served by HON.
Dr. Kinzbrunner championed the Jewish hospice initiative for VITAS. At hearing, he offered reasons why some Jewish people might be less likely to utilize hospice service than non-Jewish people. Through its educational and training programs, VITAS teaches staff to be sensitive to Jewish cultural and religious issues including understanding specific Jewish customs and traditions.
VITAS also makes an effort to reach the Hispanic populations in the areas it serves. It has a significant number of Spanish speaking staff. Its experience in South Florida and Texas consists of work with highly concentrated Hispanic populations. Furthermore, VITAS offers all of its
standard hospice forms and much of its educational materials in Spanish.
The African American population in Collier County is not as high as other parts of the state; it constitutes 20,000, just less than 7% of the population.
VITAS' efforts to educate and reach into minority communities is significant. Its staff is recognized in the industry as providing substantial resources to increase minority access to hospice.
Collier County has a significant population of Veterans. The Department of Veteran Affairs has determined that in recent years the number of Veterans' deaths in the county has been approximately 1550 annually.
Veterans have special needs at the end of life.
These include unique psychosocial needs related to military service, retrieval and obtaining military awards and medals and coordination of military benefits to which patients and families may be entitled. VITAS has a well-developed, detailed program targeted to meet the special needs of veterans.
Hope makes an effort to recognize and serve the special needs of Veterans as well. Its psychosocial staff must participate in a special training program designed to educate the staff on the needs of Veterans. Its "Wounded
Warrior" program sensitizes Hope staff to the special needs of combat veterans as opposed to those who did not experience combat, the psychosocial needs of veterans of different wars, the special needs of women veterans and special needs of veterans suffering from post-traumatic stress disorder.
Hope staff and volunteers, many of them veterans themselves, are trained to build a rapport with Veterans and to help them deal with guilt, anger and anxiety when associated with the Veteran patient's service. Hope regularly reaches out to the Veteran population through local veterans organizations such as the Veterans of Foreign Wars. The special needs of its patients who are Veterans are provided for in a number of other ways as well
by Hope.
HOPE
Required Services
Hope provides all of the required Medicare core services directly through its employees, including physicians. It also provides all of the required Medicare non-core services. Unlike some hospices, Hope provides home health aide services and homemaker services directly through its employees in order to better assist its patients and their families.
Complementary Therapies
Hope offers complementary therapies that enhance the quality of care and the quality of life for hospice patients. Hope offers music therapy through its six licensed music therapists. Other complementary therapies offered by Hope are art therapy, pet therapy and aromatherapy.
Hope also offers massage therapy as part of its holistic approach to the care of its patients. Massage therapy can reduce the amount of pain medication that a patient requires and can help alleviate other symptoms as well.
Non-required Services
In addition to the required core and non-core services, Hope provides non-required services to its patients. They include residential care, a caregiver program for patients who do not have a caregiver at home or whose caregiver at home is not able to provide necessary home care services, and grief services beyond the scope of hospice bereavement services.
Other non-required services offered by Hope include the "Dream a Dream" Program. Through this program, Hope patients with a final wish are assisted in making it a reality. Examples include fishing in a private fishing
pond, providing plane tickets for far away loved ones to visit the hospice patient, and holding a wedding in the hospice house chapel to enable the Hope patient to attend. Hope has also provided funds for home improvements to make a patient's home more comfortable, providing memorial services conducted by a Hope chaplain at a Hope chapel free of charge to the family of a Hope patient.
Hope exceeds the Medicare COP requirement that volunteers provide 5% of patient care. It has done so through special volunteer programs that include "vigil volunteers" sitting at the bedside of the patient, "video volunteers" who make video and audio remembrances for the family and "personal treasure volunteers" who make keepsake items for the family from an article of the patients clothing.
Hope offers classes in Continuing Education (CEUs) to all nurses and social workers in the community. It has conducted workshops on coping with grief and loss during the holidays and presentations by Rabbi Kushner on loss and issues related to death and dying.
Since 1990 Hope has offered an annual bereavement camp for children aged 6 to 16. The weekend camp is attended by about 70 children from across southwest Florida.
Hope sponsors numerous programs designed to educate the physician community about hospice and special programs to help the community deal with specific tragedies or life events. These have included programs for families of service men and women deployed to the Middle East, a 9/11 support group and programs for persons dealing with stress and loss caused by hurricanes.
Community Services and Programs
Hope provides other community services not required for Medicare certification that are also not provided by HON or VITAS.
Hope Life Care is a long term care diversion Medicaid-waiver program Hope provides together with AHCA and the Florida Department of Elder Affairs. PACC is a program for all-inclusive care for children who have a life-limiting illness but may not be eligible yet for hospice. Located in central Lee County, the HOPE Adult Day Health Center is available for elders who cannot be at home by themselves during the day and require a setting with limited supervision. Funded through the Area Agency on Aging, HOPE Connections is a continuing care for the elderly program designed to help frail elderly continue to live in their homes and avoid being admitted to a nursing home or hospital.
These community-based non-hospice programs are consistent with Hope's mission of assisting all in need, especially the frail and the elderly who may not qualify for hospice services, across different levels of care that best meet their needs. They also enhance continuity of care for the those who ultimately qualify for hospice care and receive it from Hope.
Hope's Clinical Services
Hope has received numerous awards in recognition of the excellent quality of care it provides. There are other outward signs of the excellence of its quality of care. For example, it completed its most recent Medicare/Medicaid certification survey with no deficiencies.
Hope is accredited by the Community Health Accreditation Program (CHAP) although not by JCAHO. CMS relies upon CHAP certification for participation in Medicare and Medicaid programs. Hope chose to seek accreditation through CHAP rather than JCAHO because of its view that CHAP's accreditation process is more stringent and comprehensive.
Hope exceeds the voluntary standards established by NHPCO. It is also a participant in the NHPCO Quality
Initiative, which requires a self-assessment as well as other activities related to quality assurance.
Hope places emphasis on an individualized approach to every patient and family members over making printed materials available. Hope staff spends time with patients and family in order to establish an individualized
plan of care.
Hope's Admission Process
Hope's Care Resources Department has a staff of
16 who handle the intake of patient referrals to hospice.
The Department handles initial inquiries and coordinates the collection of medical records and the physician's order that certifies the patient's condition as terminal. This admission process ensures that the patient meets Medicare eligibility guidelines.
All calls pertaining to patient referrals are taken by Hope immediately. Staff typically responds to a referral within 24 hours of request for services. After normal working hours and on weekends and holidays, the After Hours Triage Staff of local registered nurses responds to a referral as well as answering questions of families and dispatching staff, including on-call physicians, as needed.
The referred patient is assigned to an inter- disciplinary care team (the "IDT Team") that will provide care for the admission visits, development of the patient's plan of care, and care thereafter. Having the IDT Team conduct admission visits provides the advantage of continuity of care. It fosters early development of a relationship between the IDT and the patient and family and promotes arrangements for the unique and special needs that a patient and family may have.
Hope's Medical Team
Hope's Medical Director, Mary Stegman, M.D., is board-certified in Hospice and Palliative Medicine, Pain Management and Internal Medicine. She is board-eligible in Hematology-Oncology. Hope employs five physicians other than Dr. Stegman including Dr.Guercio who is board- certified in internal medicine. Dr. Guercio is also board- eligible in pulmonary medicine and serves as the medical director of Joanne's House and the physician on one of Hope's IDT teams.
Hope employs ten part-time physicians, including a surgical and pediatric specialist. Dr. Lipschutz is board certified in Hospice and Palliative Care Medicine. A liaison as needed to facilitate patient care discussions
between Hope staff and community physicians, Dr. Lipschutz has been involved with Hope since 1992.
Hope provides several different types of therapies not provided by other hospices. It has developed evidence-based algorithms for the care of its patients. They include specific clinical pathways or protocols for dealing with specific diseases or symptoms.
Veteran Care
All of Hope's psychosocial staff must participate in a special training program designed to educate them on the special needs of veterans. The "Wounded Warrior" program sensitizes Hope staff to the special needs of combat vs. non-combat veterans, the psychosocial needs of veterans of the different wars, women veterans, and veterans suffering the effects of post- traumatic stress disorder ("PTSD"). Hope staff and volunteers (many of whom are themselves Veterans) are trained to build a rapport with these veterans and to help them address the feelings of guilt, anger, and anxiety they may have. In addition, Hope nurses are trained to recognize the physical symptoms of patients with PTSD (such as terminal restlessness) and in effective methods to treat such symptoms.
All of Hope's veteran patients are presented with a personalized certificate of appreciation and "Thank You letter" from Hope's CEO in a formal ceremony honoring their service to our country. Hope regularly reaches out to local veterans organizations such as the VFW and Knights of Columbus, and provides speakers to educate their members about hospice. Hope is successful in providing for the special needs of its veteran patients.
Hope's Pastoral Counseling/Chaplaincy Program
Hope employs 15 chaplains who provide spiritual support and counseling to patients and their families. As members of the IDT, Hope chaplains participate in the team meetings, provide resources to patients and families, and serve as an advocate for the patient. Team chaplains regularly consult with other members of the IDT as spiritual issues arise with individual patients or family members. When requested, Hope chaplains also perform memorial or funeral services for Hope patients. Hope chaplains serve as liaisons with community clergy and community leaders, and attend ministerial association meetings. Finally, Hope chaplains provide in-service training for other Hope staff, as well as for community clergy interested in learning about hospice care.
All of Hope's chaplains have Masters of Divinity or masters degrees in religious training. All are ordained and certified by their faith group, and all must complete Hope's orientation, clinical training, and mentoring programs. In addition, many of Hope's chaplains have undergone CPE training.
Following admission, every patient and the patient's family are visited by the IDT chaplain unless they decline such a visit. The chaplain assesses the spiritual care needs of the patient and family. Hope chaplains do not approach spiritual care in a "cookie cutter" fashion, since even persons of the same faith may have different spiritual needs. Rather, Hope addresses each patient's needs on an individual basis, and strives to meet those specific needs. For example, depending on the patient, Hope chaplains may provide active or passive counseling, life reviews, facilitate the resolution of problems among family members, join in prayer or read scripture. Spiritual care is available to Hope patients on a 24-hour/7-day per week.
If a patient requests clergy of a particular faith, the IDT chaplain serves as a liaison to community clergy to ensure that the appropriate clergy visits the patient. Hope's interdenominational chaplains have
successfully met the spiritual care needs of patients of a variety of faiths including Buddhism.
All of Hope's chaplains are educated and trained in different faiths, including the Jewish faith. When a Hope patient wishes to be attended by a rabbi, those arrangements are made by Hope. Hope has a good relationship with all of the rabbis in its service area and provides excellent care to its Jewish patients. Many local rabbis serve on Hope committees, and some have provided training to Hope staff. Local rabbis also have participated in educational programs which Hope has presented or sponsored which touch upon grieving and mourning in a Jewish context, including lectures by authorities like Rabbi Grolman and Rabbi Kushner.
Although Hope at one time sponsored a CPE Program, Hope now sponsors and participates in programs leading to certification by the Association of Death Educators and Counselors ("ADEC"). Persons completing the ADEC program are certified in thanatology (the study of death, dying, grief, and bereavement). Unlike CPE, ADEC certification is not restricted to chaplains, but rather is open to other IDT members, social workers, private therapists, school counselors and other professionals. For
these reasons the ADEC curriculum is preferred by Hope over CPE.
Hope's Bereavement Services
Hope provides a comprehensive array of bereavement and grief counseling services. Each of Hope's IDT's includes a master's level social worker or bereavement counselor trained to assist the patient and family in addressing issues of grief and providing bereavement support. Volunteers who have received special training in helping persons cope with grief and loss are also involved in providing bereavement support.
All patients receive a psychosocial assessment at the time of admission, which includes a bereavement assessment. That information is then provided to the IDT, and a determination made as to whether an "anticipatory grief referral" requiring immediate attention is necessary. If so, a counselor will visit with the patient and family within 24 hours to begin assisting the patient and family.
Once the patient dies, another assessment is done of the patient's family and loved ones to determine whether early bereavement counseling is required, or whether the normal bereavement process will be followed. Ordinarily, three weeks following death, Hope counselors will contact all persons who have been identified by the
IDT as significant in the patient's life to determine whether they would like to receive bereavement counseling, on either an individual or group basis.
Letters are sent to family and significant others at 3 weeks, 3 months, 6 months, 12 months, and 15 months following the patient's death. Each of the letters includes an invitation to attend one of the many support group meetings offered by Hope, or to arrange for individual counseling if desired. About 800 persons attend one or more of the Hope-sponsored group sessions each month. Although Medicare guidelines require that bereavement support be provided for up to 13 months following the patient's death, Hope provides bereavement counseling for a minimum of 15 months and for as long as an individual chooses.
Hope offers bereavement counseling and grief support to the community at large. This includes the Rainbow Trails Program, a camp for children ages 6 to 16 who have suffered a loss. Hope also offers a Healing Hearts Program which is specifically geared to persons whose loss is the result of a suicide, and another program for persons who have lost a same-sex partner, among others. Hope also offers special crisis response counseling for persons dealing with deaths in school or the workplace.
If approved, Hope will provide excellent quality chaplaincy and bereavement programs for its patients in Collier County.
Hope's Success in Staff Recruitment and Retention
Hope has in its management several people who have obtained certification as Senior Professionals in Human Resources ("SPHR"). SPHR certification assures that these individuals have demonstrated expertise in the core principals of human resource practices such as staff training, development, performance management and assessing current as well as future workforce needs.
Hope provides a benefits package which actually attracts new staff to seek employment with Hope. Hope provides quality education to its staff and has supervisory staff certified to assist new staff in achieving accreditation and certification, including certified hospice and palliative care nurses (CHPN). Hope provides cross-training, assistance, and management to avoid burn-
out.
Hope has considerable experience in recruitment
in Southwest Florida. Hope recruits staff through advertising, job fairs and on-site recruiting at local schools. Hope has partnerships with Hi-Tech, Lorenzo Walker, Edison College and Florida Gulf Coast University
(FGCU) for developing new nurses and social workers. Hope serves as a clinical site for student interns, who participate in rotations at Hope. These are primarily nursing students, but health care administration, social work and music therapy students also participate. Both Edison and FGCU have campuses in Lee and Collier Counties.
HON and Hope currently compete for staff.
Healthcare providers in Lee and Collier advertise and compete in both counties to recruit new staff. Hope has some staff living in Collier County. Numbers of staff members have worked for one of the two at one time and the other hospice at another time. The competition would intensify and the overlap increase if Hope's application is approved.
Hope also has many employees living in the Bonita Springs area, close to Collier County. One is Dr. Guercio, the IDT physician for Team 100, which would help serve Collier County. He lives in Bonita Springs.
Before joining Hope he practiced medicine in Collier County for over 20 years.
Hope has not had any difficulties maintaining staff. Hope's salaries are in-line with other local healthcare providers, and Hope could successfully recruit the staff needed for its Collier County program.
Hope's Proposed Program for SA 8B
Hope will use contract facilities in Collier County for most of the GIP and respite services required by its patients in Service Area 8B. Hope plans to open at least one dedicated GIP unit in a nursing home within Collier County soon after approval of its application. Hope will also be able to enter into contracts for GIP with all four local hospitals. Hope's three hospice houses, moreover, will be available to meet some of the needs of the residents of Service Area 8B for GIP, respite and residential services.
Hope has commitments in writing from two hospitals and two SNFs. These contracts will provide for coordinated care whenever a hospice patient is also a nursing home resident or a hospital patient. Hope has inpatient, nursing facility, and ambulatory care service contracts in areas accessible to patients in both Service Areas 8B and 8C.
Hope's proposed Service Area 8B hospice program will provide a comprehensive range of hospice services, including physician services, nursing services, home health aide services, social services, and all other services required by state and federal law. Hope will provide services that are not reimbursed by Medicare or other
insurance, such as bereavement and chaplain services, massage, music, art, and pet therapies. If approved, Hope will provide the required core and non-core services in its Collier County program as well as the non-required services it now offers in 8C and 6B. Hope currently operates in conformance with Medicare COPs and will do so should its Collier County program be approved.
If approved, Hope will establish team offices in Bonita Springs, South Naples, and Immokalee. These locations will provide visibility for Hope's program and increase access to hospice services throughout Collier county. Joanne's House is located in Bonita Springs, less than two miles from the Lee/Collier County line. This new facility will be available and convenient to most northern Collier County patients requiring GIP, residential, and respite care.
The IDT assigned to Hope's Immokalee office will serve the entire eastern region of Collier County. This office will be approximately 25 miles from Hope's Lehigh office and therefore convenient if staff are needed to travel between those offices. In addition to servicing the IDT, the Immokalee location will also be available for volunteer training, bereavement support meetings and providing information about hospice.
Like Service Area 8C, Service Area 8B is also culturally diverse. As with its Service Area 8C program, Hope will also be successful in addressing the special needs of the culturally diverse communities of Service Area 8B.
Hope's startup experience in Collier County will differ from the startup of its Service Area 6B program, where Hope served the more rural areas first. As noted, Lee and Collier counties are contiguous and continuous and Hope already has a substantial presence in Collier County, including its long term care diversion program, staff and volunteers who live there, and the numerous existing relationships with physicians, hospitals, nursing homes, and ALFs. Hope will be even more successful in expanding its hospice program into Collier County. Since they are frequently in Collier County on a regular basis, Hope's key leadership staff are familiar with Collier County and will be available to assist with Hope's Collier startup.
If approved, Hope will be successful in implementing its proposed hospice program. Hope has the manpower, expertise and know-how to successfully implement a quality program in Collier County.
Community Support for Hope
Hope's application is supported by at least 133 local letters of support submitted to AHCA. A number of the letter writers testified by deposition in support of the application. They include hospital CEOs; the CEOs of SNFs, ALFs and other elder services; heads of regional businesses; and other involved in Collier County community organizations.
The Lee and Collier County communities are related. The business and residential corridor is continuous between the two counties and there is no visible demarcation between them. Many businesses that operate in Lee also operate in Collier. Over the years, Hope has developed relationships with community leaders whose business serve both counties. Hope has volunteers who live in Collier County and has identified others who would volunteer for Hope if its application is approved.
There are several physician group practices with offices and hospital practices in both Lee and Collier County. Hope has relationships with physicians located in Bonita Springs and northern Collier County whose practices include residents of both Lee and Collier counties. These physicians include oncologists, cardiologists,
pulmonologists, gerontologists, and family practitioners, many of whom refer patients to Hope.
Hope staff are familiar with Collier County health care providers and it enjoys a good reputation in Collier County. Through the Hope Life Care Program, Hope has contracts with two SNFs and seven ALFs in Collier County. A number of Collier County SNFs have transferred patients to Joanne's House. Naples Community Hospital and two HMA hospitals in Collier County have indicated intention to enter contracts for GIP with Hope if its application is approved.
Underserved Groups?
In its CON Application, Hope identified four groups in Service Area 8B it claims to be underserved. One of the groups is "patients under the age of 65." Hope's proof that the group is underserved consists of a comparison between historical deaths for the group to projected admissions for the group. Although the Hospice Program Rule uses this approach in its formula for calculating the Fixed Need Pool, the approach does not support the conclusion that existing providers have not historically been accessible to a particular demographic cohort or that the group suffers due to a gap in service. As Mr. Davidson opined at hearing, the approach:
could suggest that there is [a gap in service]. But the data [relied on by Hope]. . . do not provide any kind of a reliable basis for . . . substantial levels of underservice . . . with rare exceptions. And this case is not one of those exceptions.
(Tr. 3698). In order to establish the existence of a service gap using a penetration rate as the measure, it is necessary to compare historical deaths to historical admissions. Hope did not do so. Its comparison of historical deaths to projected admissions renders unpersuasive its claim that patients under the age of 65 are underserved in Collier County.
Hope claims there are other underserved groups:
(1) cancer patients in need of palliative chemotherapy and/or palliative radiation (PC/PR); (2) residents of the Immokalee area, and (3) patients needing access to hospice services during periods before and after hurricanes.
Patients in Need of PC/PR
The claim that there is an underserved group of patients in need of PC/PR in Collier County is problematic. The Agency does not have a standard for evaluating the appropriateness of PC/PR; nor is there a standard universally accepted in the hospice industry. In the absence of a standard, the propriety of using PC/PR in any one case, therefore, is up to the clinician. Whether it
goes forward, too, is additionally dependent on patient choice. Patient choice requires adequate information and understanding on the part of the patient and family, in other words, "fully informed choice."
Hope relies on its level of spending on PC/PR compared to levels of spending elsewhere to support its claim that there is a gap in PC/PR service in Collier County. Hope has spending on PC/PR that is high compared to other hospice programs. Hope attributes the high levels to its Open Access Model of Care, a model that reveals, in its view, need for PC/PR that might not be discovered in service areas without a provider that follows the Open Access Model. Comparing PC/PR delivered in different service areas on the basis of dollars spent or volume of patients receiving PC/PR, however, is not sufficient to show that PC/PR is required more often in service areas in which less is spent on PC/PR.
The record in this proceeding does not show that Hope patients were inappropriately provided PC/PR. Nonetheless, it does not support the level of PC/PR service provided to Hope patients either. Hope did not provide case-by-case clinical evidence that its PC/PR service were required. Furthermore, and most significantly, Hope did
not submit clinical evidence that patients in need of PC/PR in Collier County did not receive it.
Both applicants indicate they will provide PC/PR to patients in need of such service. Only VITAS, however, agreed to a condition of its CON to have patient records audited to determine that receipt of the service was supported by fully informed choice.
Immokalee
The Immokalee area is a low income migrant community. Predominantly Hispanic, Immokalee also has a Haitian Creole community. Much of the population lacks education.
Hope proposes to establish an office in the Immokalee area. It would serve the entire eastern Collier County area and will be a center where people can come for volunteer training, for bereavement support meetings, and for getting information about hospice care. Hope plans to locate an IDT in Immokalee. The IDT will serve the county's eastern region.
From a service perspective, HON views Immokalee as part of North Collier County. North Collier County includes north Naples, portions of Bonita Springs located in Collier County, Immokalee, Golden Gate, and adjacent rural areas. North Collier County is served by HON's
Central and North Teams. The Central team is a specialty team that sees only patients residing in nursing homes or ALFs. The North Team sees patients receiving home care and who are residing in their homes, halfway houses or anywhere else their home may be.
HON has two offices to serve North Collier County; the North Branch Office located about 1/2 miles from the Collier/Lee County line, and an office located in Immokalee. HON's presence in Immokalee, however, has not been constant since it was first initiated. The office had been opened and then closed before being opened again.
HON opened the North Branch Office in 2003. It accommodates the North Interdisciplinary Team. The office has two suites, appropriate signage, and ample space to accommodate the IDT and various groups who meet there for bereavement and other events. The geographic location of the North Branch Office is appropriate to allow the team members to reach Immokalee. But it would be a service improvement for an IDT to be located in Immokalee as proposed by Hope.
HON's office in Immokalee is located in the Career and Service Center, also known as the "One Stop." The One Stop consists of approximately nine different social service organizations located in one building. The
One Stop is considered a key location in Immokalee. Immokalee residents can access the services of the Department of Children and Families, as well as food stamps, Medicaid, employment and vocational-rehabilitation services. By having its office located in the One Stop, people are easily able to access information on end-of-life care services. As a tenant of the One Stop, HON's hospice office has use of the One Stop conferences rooms, which have capacity for over 200 people. HON uses the conferences rooms to hold different functions, such as volunteer training or seminars on coping with the holidays.
HON's ADC for the north Collier area is 50-60 patients, and of those, the Immokalee area has an ADC of approximately 6-7 patients.
The North Team is staffed and organized to deliver direct hands-on hospice care to Immokalee and adjacent rural areas, especially to the Hispanic population.
The North Team includes 5 RNs, two social workers, a chaplain, four home health aides, a volunteer coordinator, a physician, a bereavement counselor, an RN clinical manager, and a clinical assistant. Staffing ratios are 10 patients per RN, which is a more intense level of staffing and patient care than the prevailing
NHPCO guidelines of 12 patients per RN. The Team includes an additional RN who is a pediatric nurse specialist and who speaks Creole and Spanish. Seven of the IDT members of the North Team are bilingual. Fluency in Spanish, French, and Creole allows North Team clinicians serving this area to directly communicate with patients, a better alternative than resort to non-clinician employees or telephonic language services. When not deployed in the field visiting patients, the Team uses the north branch office and the Immokalee branch office. Three of the nurses and two of the certified home health aides on the North Team are certified in Hospice and Palliative Care. The sparse populations in large portions of the North Team's service area has not justified in HON's view the addition of a third branch office in North Collier County.
All HON patients and families receive a Caregivers Guide, either in a Spanish or English version. In addition to general patient care information, which is reviewed and re-reviewed with the patients and families by IDT members, the Guide includes a number where hospice clinicians can be reached 24 hours a day, 7 days a week.
HON's Immokalee office is staffed with a full time community resource coordinator, whose primary function is to support the communities in Immokalee. HON's resource
coordinator is the contact person for education, referrals and access to HON's services in Immokalee. She speaks English and Spanish. Another role of the resource coordinator is to provide bereavement support to the community. The resource coordinator facilities a monthly bereavement community support group for grief and loss in Immokalee. She also recruits volunteers from Immokalee.
Immokalee residents primarily get their information by word of mouth. HON has been successfully involved in Immokalee social service events, not only to support the community, but also to provide education and information to the different social service organizations and the participants of the programs. HON's presence in Immokalee has made it easier for people to develop a rapport and dialogue regarding the end-of-life care issue.
HON's community resource coordinator in Immokalee is an active member of the Immokalee Interagency Council, the Weed and Seed initiative, and the HIV and AIDS Network Coalition for Collier County.
The Immokalee Interagency Council consists of over 90 different agencies, which provide services in the Immokalee Community. The Council meets monthly. Their general purpose is to inform the community and the other organizations of their individual services.
The Immokalee Weed and Seed initiative is a federal government, juvenile justice initiative that was provided to the Immokalee community to better establish relations between community residents and law enforcement. It is in its fifth and final year.
The HIV and AIDS Network Coalition for Collier County is a committee comprised of individuals that come together from different medical and social service organizations to better understand and meet the needs of the Immokalee community.
The involvement by HON's community resource coordinator in these important organizations promotes awareness of hospice services.
When an emergency such as a hurricane is declared in Immokalee, HON's community resource coordinator reports to the hurricane shelter in Immokalee. Seventy-two hours before a hurricane, she is provided with a list of HON patients. Her role is to maintain contact with HON home care staff, and if they are unable to make contact with a hospice patient during that time, she will physically check on the patient and report back to the main office.
All services provided by HON are available to the residents of Immokalee.
HON provides information on hospice services to the library, for distribution to the public, on a regular basis.
The Immokalee Friendship House is a temporary emergency homeless shelter in Immokalee that serves as a referral source for the community. Annually it assists approximately 1,000 homeless families and individuals. Friendship House has 8 to 15 residents per year who are HON hospice patients.
HON has never declined to see a hospice patient at Friendship House or declined to deliver care there. Immokalee Friendship House is completely satisfied with Hospice of Naples. Their clients are well taken care of by HON. From Friendship House's perspective, HON is one of the stronger agencies in Immokalee.
HON's community resource coordinator comes to the Immokalee Friendship House for individual and group bereavement counseling. She has also provides bereavement training to the Friendship House staff.
Despite HON's efforts toward serving residents of the Immokalee area, they have less access to hospice than do residents of the more urban portions of Collier County. Hope would be able to serve Immokalee through its new local office, through the use of contracted inpatient
beds in Lehigh and their planned new hospice house. These locations would provide a real option to hospice patients from Immokalee as evidenced, for example, by travel patterns from the Immokalee area. They trend toward Lehigh and Fort Myers rather than to Naples.
Collier Health Services is a not-for-profit primary care provider with multiple locations throughout Collier County. It operates a primary care clinic in Immokalee, provides about half of all services provided AIDS/HIV patients in the county and is part of a program to bring Florida State University medical students to Immokalee for training in rural family medicine. Collier Health Services has indicated a willingness to coordinate care with Hope in the Immokalee community and believes it would be a good relationship based upon past experience with Hope.
Hope criticizes HON's commitment to Immokalee because of the lack of a continuous presence there as shown by the opening, closing and the re-opening of its office. But a continuous presence by Hope is not guaranteed either. It conditioned its application on opening "an office in the first year of operation." Hope Ex. 1, Schedule C. To show conformance with the condition, as a special feature of the condition, Hope promised to forward to the Agency copies of
the business license and/or certificate of occupancy that show occupation of office space in Immokalee during the first year of operation. Neither the condition nor the special feature of the condition guarantees that Hope's office in Immokalee will be present after the first year of operation. Nonetheless, Hope's presence if continuous, would aid and enhance effective service of the Immokalee community's hospice needs.
Hope conditioned its application on having an office in Immokalee but so did VITAS. Unlike VITAS, Hope has a history of serving rural areas in Florida.
However much Hope's presence would enhance service to the Immokalee area, the evidence is unpersuasive that the Immokalee area is underserved. HON efforts to serve the Immokalee area are effective.
Patients in Need of Service When Disaster Strikes
Hope's claim that there have been underserved patients in Collier County in times of disaster is based on events associated with Hurricane Wilma.
The eye of Hurricane Wilma made landfall just south of Naples in Collier County on October 24, 2005. The impact of the storm was greater in Collier County than it was in Lee County. More services were interrupted and more people were without power and transportation in Collier
County than in Lee County. In Collier County, "all of the government services and most community agencies, physicians' offices, . . . were shut down and . . . went into lockdown mode." Tr. 3462.
During the hurricane and in its wake, HON continuously operated the Georgeson House. It accommodated the needs of 23 patients who were relocated to the House right before the arrival of the storm. The Georgeson House is rated to withstand a Category 4 hurricane and can accommodate up to 32 patients with all the equipment, supplies and staff to support those patients in an emergency. In the event of evacuation, HON has an agreement with Physicians Regional Hospital, about 1/8th of a mile from Georgeson House to relocate the patients to hospital beds.
For a five-day period, two days before the arrival of the hurricane, the day of the storm and the two days after, HON received no referrals. Consequently, it admitted no patients from October 22 through October 26, 2005. Had it received referrals during the five days, HON was accessible and had the ability to admit patients.
On the day the hurricane made landfall and for the two days afterward, in addition to the service provided at the Georgeson House, HON contacted its patients by
telephone. As soon as the authorities allowed road travel, HON was able to visit its patients. It visited the majority within 48 hours of the storm event.
Hope admitted approximately 20 patients during the same five-day period. In Lee County, there was only a short time that Hope was not able to admit or visit patients. It ended shortly after Hurricane Wilma made landfall when the emergency operations center announced that road travel was safe.
Hope has a detailed Disaster Management Plan.
See Hope Ex. 1, CON 9967 Vol. 2, Supplementary Appendices, Tab 22. In the event of a Disaster Watch, the plan dictates, "Admissions to Hope Hospice and Hospice Houses will be discontinued." Id., I. Disaster Watch, 1. e. iii.
There is no persuasive evidence that had Lee County suffered the same impact that Collier County did from Hurricane Wilma that it would have been able to respond any better than HON did in October of 2005. There is, in short, no evidence that there has been unmet need for hospice services by disaster victims in Collier County.
Utilization Projections and Financial Feasibility
Each Applicant's projected utilization appears reasonable and achievable.
Each applicant demonstrated short-term and long- term financial feasibility.
Medicaid Patients and the Medically Indigent
Both Hope and VITAS have documented a history of service to Medicaid and medically indigent patients. Hope will serve Medicaid patients and the medically indigent if its application is approved. So will VITAS.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569, 120.57(1), and 408.039(5), Fla. Stat.
As co-batched applications, VITAS and Hope have standing to participate in this proceeding. § 408.039(5), Fla. Stat.
A possible outcome of this proceeding involving comparative review is approval of Hope's application. HON has demonstrated that if Hope is approved, it will suffer competitive advantages particularly with regard to fundraising, an activity essential to HON's operation and providing hospice services. HON has standing.
§ 408.039(5), Fla. Stat.; Memorial Healthcare Group Inc. v.
AHCA, 879 So. 2d 72, 74 (Fla. 1st DCA 2004).
A CON applicant has the burden of proving by a preponderance of the evidence that its application should be approved. Boca Raton Artificial Kidney Center v. Department. of Health & Rehabilitative Services, 475 So. 2d
(Fla. 1st DCA 1985). Each applicant bears the burdens of going forward with the evidence and the burden of ultimate persuasion. Young v. Department of Community Affairs, 625 So. 2d 831 (Fla. 1993).
Evaluation of CON applications entails balanced consideration of the applicable statutory and rule criteria. Department of Health and Rehabilitative Services v. Johnson and Johnson Home Healthcare, Inc., 447 So. 2d
(Fla. 1st DCA 1984). The weight to be given to each criterion depends on the facts of the case. Collier
Medical Center, Inc. v. Department of Health and Rehabilitative Services, 462 So. 2d 83 (Fla. 1st DCA 1985).
Statutory Review Criteria
Review criteria are contained in Section 408.035, Florida Statutes. The criteria appear in Subsections (1) through (10) of the statute. Subsections
(8) and (10) are not applicable in this proceeding.
Conclusions of Law with regard to Subsections (1) through
and (9) follow.
Need
The Agency determined that there is a need for one new hospice program in Service Area 8B. Both Hope and VITAS propose to meet that need.
The Agency interprets Florida Administrative Code Rule 59C-1.0355 to allow the approval of only one hospice program in any one batching cycle even when special circumstances exist that might otherwise support the approval of more than one hospice program. "[T]he plain language of Subsections (4)(a) [the fixed need pool calculation] and (4)(d) [special circumstances] of Rule 59C-1.0355, Florida Administrative Code, state[s] that the two standards are mutually exclusive." VITAS Healthcare Corporation of Florida v. AHCA and Community Hospice of
Northeast Florida, Inc., Case No. 06-3653 (DOAH October 18, 2006; AHCA December 18, 2006, at 4). Not only is AHCA's interpretation to be followed in this case based on stare decisis but it is a reasonable interpretation; furthermore, there is no basis of record to depart from it. As summed up by HON in its proposed order:
The Applications, the SAAR, and record in this case do not individually or collectively contain any factual basis nor support any rationale for awarding more than one new program in the batch cycle at issue in this case. Nor is there any legal basis, in light of the
limitations inherent in Rule 59C- 1.0355, FAC, for approving more than one applicant in this batch cycle.
Hospice of Naples, Inc.'s Proposed Recommended Order, at 66.
Availability, quality of care, accessibility and utilization of existing facilities and services.
HON is an available, accessible, full service, not-for-profit hospice operating in Service Area 8B. It provides high quality hospice care.
HON's programs have been available and accessible to eligible patients, including patients under 65, patients desiring palliative chemotherapy and radiation, patients living in the Immokalee area and patients during Hurricane Wilma as appropriate under the circumstances of that storm.
Core services and required non-core services are currently available and accessible in Collier County. Many community outreach and service enhancements typical of a full service not-for-profit hospice (although not all of those proposed by Hope) are currently available and accessible in Collier County.
Nonetheless, Hope and VITAS would enhance availability and accessibility in some ways. See
paragraphs under (5), below.
Most importantly for the purpose of comparative review in this case in which the need for one new hospice program in Collier County is not at issue, approval of the VITAS application would have considerably less impact on HON than would approval of the Hope application. HON proved that the impact to it from approval of Hope's application would reduce utilization of its services in a number of significant ways. Approval of the VITAS application would not have such an impact adverse to HON.
Applicant's Ability to Provide and Record of Quality of Care
Hope and VITAS each have a record of quality of care.
Hope and VITAS each have the ability to provide quality of care.
Availability of Resources
VITAS demonstrated a more positive financial position than Hope because of the extent of resources available to VITAS. But Hope and VITAS each have the resources available to them for project accomplishment and operation. These resources include all delineated in the statute: health personnel, management personnel, and funds for capital and operating expenditures.
Access Enhancement
VITAS will enhance continuous care and access for Hispanics, African Americans, and the Jewish population in Service Area 8B. VITAS, moreover, proposes measurable conditions on its CON that correspond to its proposed service enhancements.
Hope failed to prove that there were gaps in service in the four categories it claims in its application to have gaps.
Nonetheless, it is likely that Hope will enhance access to patients under the age of 65. Furthermore, it conditioned its application to focus on education and outreach programs for these patients.
Hope did not prove that there was a need for more palliative chemotherapy and radiation for cancer patients in Collier County. It did not prove, therefore, that its aggressive employment of these palliative measures will enhance needed access to them by cancer patients in the county.
Approval of Hope's application is likely to enhance access to residents of the Immokalee area. It will have an office in Immokalee for at least one year from start up that, unlike HON's office, will include an IDT onsite. The degree of the enhancement is difficult to
ascertain on the state of this record. HON certainly makes an effort to provide hospice services in the Immokalee area. But the residents of the area do not receive services to the same degree as residents in the more populated urban areas of the county. Establishment of Hope's office with its IDT will be an enhancement even if the enhancement is only marginal.
Immediate and Long-term Financial Feasibility
Both applicants demonstrated immediate and long- term financial feasibility.
Competition that Promotes Quality and Cost Effectiveness
The approval of either application will bring competition for hospice services to Service Area 8B for the first time.
The two applicants represent very different types of competitors. Hope's model of care, while not without significant differences with HON's, is much more similar to HON's than that of VITAS. Between the two applicants, VITAS will present greater choice for those in Collier County in need of hospice services with less adverse and detrimental impact to the accessible and high quality programs HON already provides in the community.
(9) Past and Proposed Services to Medicaid patients and the Medically Indigent
Both VITAS and Hope have a documented history of service to Medicaid patients and the medically indigent and propose to serve them. VITAS has proposed a higher amount of charity and Medicaid patient days in its projections.
Preferences
Subsection (4)(e) of the Hospice Programs Rule provides the following:
Preferences for a New Hospice Program. The agency shall give preference to an applicant meeting one or more of the criteria specified in subparagraphs 1. through 5.:
Preference shall be given to an applicant who has a commitment to serve populations with unmet needs.
Preference shall be given to an applicant who proposes to provide the inpatient care component of the hospice program through contractual arrangements with existing health care facilities, unless the applicant demonstrates a more cost-efficient alternative.
Preference shall be given to an applicant who has a commitment to serve patients who do not have primary caregivers at home; the homeless; and patients with AIDS.
In the case of proposals for a hospice service area comprised of three or more counties, preferences shall be given to an applicant who has a commitment to establish a physical
presence in an underserved county or counties.
Preference shall be given to an applicant who proposes to provide services that are not specifically covered by private insurance, Medicaid, or Medicare.
Fla. Admin. Code R. 59C-1.0355(4)(e).
Hope and VITAS took different approaches under the preference expressed in paragraph 1, above. Hope alleged gaps in service in four identifiable populations of patients and offered to condition a CON on serving those patients. VITAS targeted Jewish persons, Hispanics and Veterans and those in continuous care as identifiable populations with unmet needs. While these approaches constitute access enhancements in one way or another, neither Hope nor VITAS proved that there were populations with unmet needs in Service Area 8B. Neither gains preference under paragraph 1. of Section (4)(e) of the Hospice Programs Rule.
Both VITAS and Hope propose GIP through contractual arrangements initially. Hope asserts, however, that it will provide GIP in its existing hospice house in Bonita Springs and eventually in a freestanding hospice house to be constructed when the census justifies it. Hope did not prove that this would be a more cost effective
alternative. VITAS will contract with existing health care facilities for the inpatient component of hospice care for the duration. VITAS receives preference under paragraph 2., above.
Hope sums up its entitlement to preference under paragraph 3., above as "HOPE has a proven track record of providing services to all persons in need, and HOPE's Caregiver program will ensure access to hospice services by those without caregivers at home." Hope Hospice and Community Services, Inc.'s Proposed Recommended Order, at
VITAS sums up its position on the preferences as "VITAS better demonstrated a long history of service to AIDS patients, and dedicated programs for the homeless." RECOMMENDED ORDER, proposed and filed by VITAS on December 10, 2007, at 79. Neither applicant clearly wins the preference.
The preference in Paragraph 4., above, is not applicable to this proceeding.
Both applicants propose services that are not specifically covered by private insurance, Medicaid, or Medicare. VITAS has conditioned its application on its non-reimbursable pet therapy program. Both applicants are entitled to favorable consideration under the preference expressed in paragraph 5., above.
Approvable Applications
VITAS' application meets statutory and rule criteria for CON approval. Whether Hope's application does or not is not as clear because of the adverse impact Hope's hospice program in Service Area 8B will have on HON. However that balance should be struck, in the context of all statutory and rule criteria, the adverse impact on HON by Hope is the heaviest factor against Hope and in favor of VITAS when it comes to comparative review.
Comparative Review
VITAS will enhance access to continuous care for hospice patients that need it and access to the Hispanic, African American and Jewish populations in Service Area 8B. Furthermore, it proposes measurable conditions that correspond to these access enhancements. Hope will enhance access to patients under 65. It conditioned its application on education and outreach programs for these patients. Approval of Hope's application will enhance access marginally to patients in the Immokalee area of Collier County.
VITAS' application will present greater choice to patients in Service Area 8B than will Hope's.
VITAS receives preference under paragraph 2., of Subsection (4)(e) of the Hospice Programs Rule.
One factor outweighs all others, however, in favor of VITAS. VITAS' application will have much less impact on HON and its fundraising efforts and in turn on the high quality services that HON presently provides in Service Area 8B.
Comparative review favors approval of VITAS' application over Hope's.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration approve CON 9969, an application for a new hospice program in Service Area 8B filed by VITAS Healthcare Corporation of Florida, and deny CON 9967, an application for a similar program filed by Hope Hospice and Community Services, Inc.
DONE AND ENTERED this 3rd day of March, 2008, in Tallahassee, Leon County, Florida.
S
DAVID M. MALONEY
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2008
ENDNOTE
1/ If AHCA is correct about these five additional conditions then it appears from an examination of VITAS Ex. 1, Tab 5, that a page is missing from Volume I of VITAS Ex. 1, the page that would have contained them. In all likelihood the Agency's assertion is correct. The third of the five is that VITAS Healthcare Corporation will make a
$20,000 charitable contribution to HON if VITAS' application is approved. This condition was the subject of testimony at hearing. Furthermore, there is a letter attached to VITAS' Schedule C that immediately follows the summary of the conditions referred to in Schedule C. In the letter, VITAS confirms its commitment to the charitable contribution.
COPIES FURNISHED:
Richard J. Shoop, Agency Clerk
Agency for Health Care Administration 2727 Mahan Drive, Building 3
Mail Station 3
Tallahassee, Florida 32308
Holly Benson, Secretary
Agency for Health Care Administration 2727 Mahan Drive, Building 3
Mail Station 3
Tallahassee, Florida 32308
Craig H. Smith, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Building 3
Mail Station 3
Tallahassee, Florida 32308
Karin M. Byrne, Esquire
Agency for Health Care Administration 2727 Mahan Drive, Building 3
Mail Station 3
Tallahassee, Florida 32308
Robert D. Newell, Jr., Esquire Newell, Terry & Douglas P.A.
817 North Gadsden Street Tallahassee, Florida 32303-6313
Geoffrey D. Smith, Esquire Susan C. Smith, Esquire Smith and Associates
2873 Remington Green Circle Tallahassee, Florida 32308
J. Robert Griffin, Esquire
J. Robert Griffin, P.A.
1342 Timberlane Road, Suite 102-A Tallahassee, Florida 32312-1762
W. David Watkins, Esquire Karl David Acuff, Esquire Watkins & Associates, P. A.
3051 Highland Oaks Terrace, Suite D Post Office Box 15828
Tallahassee, Florida 32317-5828
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 exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 03, 2008 | Agency Final Order | |
| Mar. 03, 2008 | Recommended Order | With need in Collier County stipulated, VITAS is the superior applicant to Hope Hospice primarily because of adverse impact Hope`s application would have on the existing provider. |
