CORNERSTONE HOSPICE AND PALLIATIVE CARE, INC.,
Petitioner,
vs.
AGENCY FOR HEALTH CARE ADMINISTRATION,
Respondent.
/ VITAS HEALTHCARE CORPORATION OF FLORIDA,
Petitioner,
vs.
AGENCY FOR HEALTH CARE ADMINISTRATION,
Respondent.
/ SUNCOAST HOSPICE OF HILLSBOROUGH, LLC,
Case No. 20-1711CON
Case No. 20-1713CON
vs.
Petitioner,
Case No. 20-1733CON
CORNERSTONE HOSPICE AND PALLIATIVE CARE, INC.; AND VITAS HEALTHCARE CORPORATION OF FLORIDA,
Respondents.
/
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on August 24 through 28, September 8 through 11, 14 through 18, 23, and 24, and October 14 through 16, 2020, before W. David Watkins, a duly designated Administrative Law Judge of the Division of Administrative Hearings (“DOAH”).
APPEARANCES
For Cornerstone Hospice and Palliative Care, Inc.:
D. Ty Jackson, Esquire Allison Goodson, Esquire GrayRobinson, P.A.
301 South Bronough Street, Suite 600 Post Office Box 11189
Tallahassee, Florida 32302
For VITAS Healthcare Corporation of Florida:
Stephen A. Ecenia, Esquire Gabriel F.V. Warren, Esquire Amanda Marci Hessein, Esquire Rutledge Ecenia, P.A.
119 South Monroe Street, Suite 202
Tallahassee, Florida 32301 For Suncoast Hospice of Hillsborough, LLC:
Seann M. Frazier, Esquire Marc Ito, Esquire
Kristen Bond Dobson, Esquire Jonathan L. Rue, Esquire
Parker, Hudson, Rainer & Dobbs, LLP 215 South Monroe Street, Suite 750
Tallahassee, Forida 32301
For the Agency for Health Care Administration:
Julia Elizabeth Smith, Esquire Maurice Thomas Boetger, Esquire
D. Carlton Enfinger, Esquire
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 7
Tallahassee, Florida 32308
STATEMENT OF THE ISSUES
Whether the certificate of need (“CON”) applications filed by Cornerstone Hospice & Palliative Care, Inc. (“Cornerstone”); Suncoast Hospice of
Hillsborough, LLC (“Suncoast”); and VITAS Healthcare Corporation of Florida (“VITAS”), for a new hospice program in Agency for Health Care Administration (“AHCA” or the “Agency”) Service Area 6A (Hillsborough County), satisfy the applicable statutory and rule review criteria sufficiently to warrant approval, and, if so, which of the three applications, on balance, best meets the applicable criteria for approval.
PRELIMINARY STATEMENT
On October 4, 2019, AHCA published a fixed need pool for one new
hospice program in AHCA Hospice Service Area 6A (“SA 6A”), a single county area consisting of Hillsborough County (“Hillsborough”), for the second
“Other Beds and Programs” batching cycle of 2019. There was no challenge to the Agency’s need determination.
Suncoast, Cornerstone, and VITAS each timely submitted a letter of intent and CON application seeking approval of a new hospice program in SA 6A. In total, the Agency received six CON applications for Hillsborough. On February 21, 2020, AHCA issued its State Agency Action Report (“SAAR”) preliminarily approving Suncoast’s CON application and denying all of the
other co-batched applications. AHCA’s decision was published in the Florida Administrative Register on February 21, 2020.
VITAS and Cornerstone filed Petitions for Formal Administrative
Proceeding challenging the Agency’s preliminary decision to approve
Suncoast’s CON application, pursuant to sections 120.569, 120.57(1), and 408.039, Florida Statutes, and Florida Administrative Code Chapter 28-106. The Agency referred Cornerstone’s and VITAS’s Petitions to DOAH on
April 1, 2020. Suncoast filed Cross-Petitions in both cases supporting the Agency’s decision to approve Suncoast’s application and to deny the Cornerstone and VITAS applications. On April 20, 2020, these matters were consolidated and subsequently noticed for final hearing.
On August 21, 2020, the parties filed their Joint Pre-hearing Stipulation, which included numerous stipulated facts. To the extent relevant, those stipulated facts have been incorporated in this Recommended Order.
The final hearing convened on August 24 through 28, September 8 through 11, 14 through 18, 23, and 24, and October 14 through 16, 2020. Suncoast presented testimony from: Rafael Sciullo, accepted as an expert in hospice and healthcare administration; Kathy Rabon, accepted as an expert in community needs assessments and philanthropy; Karen Davis-Pritchett, accepted as an expert in community outreach and hospice administration; Marci Pruitt, accepted as an expert in nursing and hospice administration; Dr. Larry Kay, accepted as an expert in medicine, palliative medicine, and specialized programs for hospice patients; Dr. Janet Roman, accepted as an expert in cardiovascular disease programs and nursing; Stacy Orloff, Ed. D., LCSW, ACHP-SW, accepted as an expert in hospice administration, pediatric hospice care, and Partners in Care/Together for Kids (“PIC/TFK”); Melissa More, accepted as an expert in volunteer services and specialized programs
for veterans; Joy Winheim, accepted as an expert in community outreach and hospice care for the AIDS/HIV and LGBTQ1 communities; Kerry Hoerner, accepted as an expert in nursing and care navigation; Jennifer Kaminsky, accepted as an expert in the Program of All-Inclusive Care for the Elderly (“PACE”); Armand Balsano, accepted as an expert in health planning, healthcare finance, and financial feasibility; and David Levitt, accepted as an expert in health planning. Suncoast also presented the testimony of the following witnesses that testified in preservation depositions as they were not able to attend the final hearing: Dr. Jasmin Jerez-Marte; Suzanne Rice, RN CHPN CPHQ; Dr. Laura Szalacha; Dr. Mary Waechter; Lynne Craver; and Rachelle Hutchens. Suncoast's Exhibit Nos. 1 through 6, 8 through 12, 14
through 17, 19, 22, 23, 25 through 43, 63 through 65, 71, 76, and 78 were admitted into evidence.
Cornerstone presented testimony from Charles Lee, accepted as an expert in hospice administration; Rhonda White, accepted as an expert in hospice administration; Jason D’Auria, accepted as an expert in hospice operations; Ursula Cutler, accepted as an expert in hospice outreach and marketing;
Dr. Michael Shapiro, accepted as an expert in hospice and palliative medicine, family medicine, and hospice medical directorship; Nick Buchholz, accepted as an expert in hospice philanthropy and support; Todd Webb, accepted as an expert in hospice finance; Roy Brady, accepted as an expert in health planning; W. Eugene Nelson, accepted as an expert in health planning; and Rick Knapp, accepted as an expert in healthcare finance and financial feasibility. Cornerstone also presented the testimony of witnesses that testified in preservation depositions: Claudia Casey; Colonel Gary Clark; Lisa Conradi; Vincent Evans; Dean Forman; Andrea Kowalski; Eric Luetkemeyer; Jeanne S. Mulkeen; Reginald Riley; and Valerie
1 Lesbian, gay, bisexual, transgender, and queer (or questioning).
Zolman. Cornerstone’s Exhibit Nos. 1 through 23, 26, 27, 29 through 34, 38,
39a, 42a, 44, 46 through 67, 70, 71, 74, and 82 through 90 were admitted into evidence.
VITAS presented the testimony of Patty Husted, RN, Executive Vice President of Operations for VITAS; Peggy Pettit, RN, Executive Vice President for VITAS; Joseph Shega, MD, Senior Vice President and Chief Medical Officer for VITAS; Erika Gaudio, Senior Vice President of Sales for VITAS; Kellie Newman, National Patient Care Administrator for VITAS; Anthony Cosma, Regional Director of Market Development for VITAS; Ileana Leyva, MD, Regional Medical Director for VITAS; Robin Fiorelli, Senior Director of Bereavement & Volunteer Services for VITAS; Lou Tamburro, Vice President of Development for VITAS; Mary Donovan, Senior Vice President for Caregiver Services, Inc.; and Kathy Platt, President of Platt HMC, Inc. VITAS also entered into evidence the deposition testimony of Diane Deese, Vice President of Community Affairs at VITAS; Mark Hayes, Vice President of Operations for VITAS; Mary Fields, Executive Director & COO of Volunteers in Medicine; and Margaret Lynn Duggar, President and CEO of MLD & Associates, Inc. VITAS’s Exhibit Nos. 2 through 31, 34, 36, 38
through 44, 50 through 53, 55, 57 through 70, 72 through 81, 89, 95, and 98 were admitted into evidence.
The Agency presented the testimony of James McLemore, accepted as an expert in CON and healthcare planning. AHCA’s Exhibit Nos. 1 through 4 were admitted into evidence.
In addition to the above-referenced Exhibits, the parties’ offered numerous joint exhibits, which they referred to as “composite exhibits.” Composite Exhibit Nos. 1 through 3, 5, 6, 11 through 13, 19, 21, 22, 24, 26,
28, 32, 33, 38, 41 through 43, 46, 54 (pages 144 through 146), 57, 59 (page 29,
line 17 through page 32, line 13), and 69 through 71 were admitted into evidence.
The final hearing Transcript, consisting of 33 volumes and 4808 pages, was filed with DOAH on October 28, 2020.
While the hearing concluded on October 16, 2020, the record was kept open to address evidentiary rulings on deposition testimony. On November 24, 2020, the undersigned issued an Order on Post-Hearing
Written Objections to Witness Deposition Transcripts Received in Evidence and Confirming Due Date of Proposed Recommended Orders. The filing deadline for proposed recommended orders was set at 30 days from the date of November 24, 2020. However, at the request of the parties, that deadline was extended to January 8, 2021. All parties timely filed Proposed Recommended Orders, each of which has been carefully considered in the preparation of this Recommended Order.
Unless otherwise noted, all statutory references are to the 2020 version of the Florida Statutes.
FINDINGS OF FACT
Based upon the credibility of the witnesses and evidence presented at the final hearing, and on the entire record of this proceeding, the following Findings of Fact are made:
The Parties AHCA
AHCA is designated as the single state agency for the issuance, denial, and revocation of CONs, including exemptions and exceptions in accordance
with present and future federal and state statutes. AHCA is also the state health planning agency. See §§ 408.034(1) and 408.036, Fla. Stat. In addition, AHCA is the agency designated as responsible for licensure and deficient practice surveys for health facilities, including hospices. See ch. 408, Part II and § 400.6005-.611, Fla. Stat.
Pursuant to Florida Administrative Code Rule 59C-1.0355(4)(a), the Agency established a numeric formula for determining when an additional hospice program is needed in a service area. The Agency's need formula determined a need for one new hospice program in SA 6A in the application cycle at issue. That determination is unchallenged. None of the applicants argued that more than one new hospice program should be approved for Hillsborough in this cycle.
Suncoast
The Hospice of the Florida Suncoast (“Suncoast Pinellas”) was founded in 1977, and was one of the first hospices in Florida, and in the nation. Although it operates only in Pinellas County, Suncoast Pinellas has grown to become one of the largest nonprofit hospices in the country.
Suncoast Pinellas is a subsidiary of Empath Health (“Empath”), which also provides a number of non-hospice services. As discussed further below, Empath is currently undergoing a merger with Stratum Health System (“Stratum”), which operates Tidewell Hospice in Sarasota and Manatee Counties.
The Chief Executive Officer (“CEO”) of Empath and Suncoast Pinellas is Rafael Sciullo. Mr. Sciullo was recruited to be CEO of Suncoast Pinellas in 2013, where he has served ever since. When Mr. Sciullo arrived at Suncoast Pinellas, the company operated a human immunodeficiency virus (“HIV”) testing and treatment program, a PACE program, a home health program, and a palliative care program.
Mr. Sciullo became concerned that patients in the HIV, PACE, and
home health programs were not comfortable hearing the word “hospice,” as those patients did not view themselves as hospice patients. Mr. Sciullo reorganized Suncoast Pinellas by creating Empath in order to alleviate this concern with a more inclusive and mission directed organization.
Empath is an administrative services provider that provides support to its affiliates, which include Suncoast Pinellas, Empath Partners in Care (“EPIC”),2 Suncoast PACE, Suncoast Hospice Foundation, and programs for palliative care, pharmacy, durable medical equipment (“DME”), and infusion services. Through its affiliates, Empath already provides several services within Hillsborough, including EPIC HIV services and support, and palliative care.
The federal definition of hospice care requires a prognosis of a six- month or less life expectancy. However, Florida’s definition permits patients with a 12-month prognosis. Under its supportive care program, Suncoast Pinellas offers hospice services to patients with a prognosis of six to
12 months.
As one of the largest not-for-profit hospices in the nation, Suncoast Pinellas offers specialized programs for veterans, the Jewish population, African Americans, the Hispanic population, and disease groups such as heart failure, Alzheimer’s, and COPD.
The applicant entity for the CON is Suncoast Hospice of Hillsborough, LLC. If approved, Suncoast will appear beside Suncoast Pinellas in Empath’s organizational chart, operating as a subsidiary under the Empath Health, Inc., family of companies.
Empath has entered into a Memorandum of Understanding with Stratum to merge the two organizations. The merger has not yet been accomplished; the companies are currently in the process of conducting due
2 Empath’s EPIC program provides programs and services to persons impacted by HIV and
AIDS throughout the Tampa Bay area.
diligence. However, the two companies have already agreed that if the merger is consummated, Mr. Sciullo will serve as the CEO of the merged entity, and will be in charge of both original entities after the merger.
According to Mr. Sciullo, the merger will not distract or otherwise serve as an impediment to Suncoast’s plans to implement its new hospice program in Hillsborough.
Cornerstone
Cornerstone is a 501(c)(3) community-based, not-for-profit entity, founded in 1981 by compassionate nurses in Eustis, Florida, to care for patients during their last days of life. Licensed in 1984, Cornerstone (formerly, Hospice of Lake and Sumter, Inc.) has since grown to serve three hospice service areas (3E, 6B, and 7B) which encompass seven central Florida counties, including Polk County, which is contiguous to Hillsborough. Cornerstone has spent more than 35 years serving tens of thousands of patients and their loved ones in the Central Florida region.
As a local, not-for-profit hospice, Cornerstone’s governing body is comprised of leaders from the communities it serves, and its board would be expanded to include new members from Hillsborough. This fosters local accountability to the populations Cornerstone serves. Due to its not-for-profit status, Cornerstone is also legally and ethically bound to benefit its communities, and its earnings are reinvested locally rather than inuring to the benefit of private owners.
The Cornerstone Hospice Foundation is an independent, 501(c)(3), nonprofit foundation led by community volunteers. The purpose of the Foundation is to raise money for Cornerstone’s community programs, hospice houses, and for people with no method of paying for hospice.
Cornerstone Health Services, LLC, is an affiliated entity which provides non-hospice palliative care services to patients. Cornerstone also includes Care Partners, LLC, which is a consulting and group purchasing
organization that provides information and materials to other hospices and group purchasing options.
Cornerstone leadership has extensive experience in hospice, including development and expansion of new programs in Florida and elsewhere. Cornerstone has achieved significant growth and expansion within its existing service areas in recent years, led largely by the team that would lead Cornerstone’s expansion into Hillsborough.
Cornerstone serves all patients in need regardless of race, creed, color, gender, sexual orientation, national origin, age, disability, military status, marital status, pregnancy, or other protected status. Hospice and palliative care are the only healthcare services Cornerstone provides. This focus assures that Cornerstone is committed to providing high quality care to meet the needs of hospice patients and their families.
VITAS
VITAS Healthcare Corporation (“VITAS Healthcare”), the corporate
parent of VITAS, is the largest provider of end-of-life care in the nation.
VITAS Healthcare was initially founded in 1978 in South Florida. At that time, its leaders helped organize bipartisan legislative efforts to establish the state and federal regulatory mechanisms that guide the provision of hospice services today. Upon its inception, VITAS programs in Dade and Broward Counties participated in a federal demonstration project that resulted in the development of model clinical protocols and procedures used by hospice programs across the country.
In 2018, VITAS Healthcare served 85,095 patients and maintained an average daily census of 17,743 patients among its 47 hospice programs in
14 states and the District of Columbia. As of 2018, VITAS Healthcare employed 12,176 staff members, including over 4,700 nurses nationwide.
VITAS currently serves 46 of Florida’s 67 counties, which covers about 72% of Florida’s population. VITAS serves 16 of AHCA’s 27 hospice service areas under three separate licenses. VITAS successfully operates 34 satellite offices in Florida and provides facility-based care through freestanding inpatient units as well as its contracts with hospitals and nursing homes.
In Florida in 2018, VITAS served over 36,000 patients, providing
3.3 million days of care with an average daily census of 9,028 patients. This was no aberration—at the time of the filing of its 6A CON application, VITAS had admitted over 35,000 patients in Florida during 2019.
In addition to providing the four required levels of hospice care (see
¶ 35), VITAS also provides a full continuum of palliative and supportive care, and additional unreimbursed services that are beneficial to the hospice population it serves.
VITAS has over 40 years of experience as a hospice provider, and has developed comprehensive outreach, education, and staff training programs and resources designed specifically to address the unique needs of a wide range of patient types, communities, and clinical settings. Similarly, VITAS recognizes that the needs of Florida patients vary between service areas, and it has endeavored to provide programs and services tailored to meet the needs of each community.
In its Florida programs, VITAS provides complete hospice care, including medications, equipment and supplies, expert nursing care, personal care, housekeeping assistance, emotional counseling, spiritual support, caregiver education and support, grief counseling, dietary, physical, occupational and speech therapy, and volunteer support.
VITAS has a long history of providing significant levels of care to all patients without regard to the ability to pay, as well as a demonstrated commitment to underserved populations such as the homeless, veterans, AIDS population, and minorities. VITAS provided almost $7 million in charity care in Florida in 2018, and $7.25 million in 2019 at the time it
submitted its CON application. VITAS ensures that anyone who is appropriate for hospice services has the right to access them.
VITAS is committed to giving back to the communities it serves through meaningful donations. It accomplishes this goal through VITAS Community Connections, a nonprofit organization, which makes donations and grants to local organizations and families. In 2018, VITAS made over
$161,000 in charitable contributions to organizations in Florida. In that same year, VITAS contributed over $700,000 to sponsoring Florida community events.
At the time of filing its Hillsborough application, VITAS employed nearly 5,500 persons in Florida, 2,235 of which are nurses. VITAS encourages and assists its nurses in obtaining board certification in hospice and palliative care through training, compensation incentives, and support. Due to VITAS Healthcare’s multi-state operations, VITAS can readily recruit staff to Florida from other markets. VITAS also relies on volunteers in a variety of roles to enhance patient care. In 2018, VITAS used 1,165 active volunteers in Florida, who provided over 145,054 volunteer hours.
VITAS is led by an extremely experienced and highly qualified leadership team, many of which have long and successful tenures with the company.
Hospice Care Generally
Hospice refers both to care provided to terminally ill patients and the entities that provide the care. Hospice care is palliative care. Palliative care relieves or eliminates a patient's pain and suffering and helps patients remain at home. It differs from curative care, which seeks to cure a patient's illness or injury. 42 C.F.R. § 418.24(d); §§ 400.6005 and 400.601(6), Fla. Stat. Hospices provide physical, emotional, psychological, and spiritual comfort and support to patients facing death and to their families.
The Medicare and Medicaid programs pay for the vast majority of hospice care. The services those programs require hospices to offer and the services the programs will pay for have become, de facto, the default definition of hospice care, the arbiter of hospice services, and the decider of when a patient is terminally ill. Florida requires a CON to establish a hospice program and regulates hospices through licensure. §§ 400.602 and 408.036(1)(d), Fla. Stat.
Florida considers a patient with a life expectancy of one year or less to be terminally ill and eligible for Medicaid payment for hospice care.
§ 400.601(10), Fla. Stat. To be eligible for Medicare payment for hospice services, a patient must have a life expectancy of six months or less.
42 C.F.R. § 418.20; 42 C.F.R. § 418.22(b)(1).
A hospice must provide a continuum of services tailored to the needs and preferences of the patient and the patient’s family delivered by an interdisciplinary team of professionals and volunteers. §§ 400.601(4) and 400.609, Fla. Stat. Hospice programs must provide physical, emotional, psychological, and spiritual support to their patients. A hospice must provide physician care, nursing care, social work services, bereavement counseling, dietary counseling, and spiritual counseling. 42 C.F.R. § 418.64;
§ 400.609(1)(a), Fla. Stat. In Florida, hospices must also provide, or arrange for, additional services including, but not limited to, “physical therapy, occupational therapy, speech therapy, massage therapy, home health aide services, infusion therapy, provision of medical supplies and durable medical equipment [DME], day care, homemaker and chore services, and funeral services.” § 400.609(1)(b), Fla. Stat. Federal requirements are similar.
42 C.F.R. § 418.70.
Hospices are required to provide four levels of care. The levels are routine home care, general inpatient care, crisis care (also called continuous care), and respite care. Since hospice’s goal is to support a patient remaining at home, hospices provide the majority of their services in a patient’s home.
Routine home care is the predominant form of hospice care. Routine care is for patients who do not need constant bedside support. A hospice may provide routine care wherever the patient lives. The location could be a residence, a skilled nursing facility (SNF), an assisted living facility (ALF), some other residential facility, or a homeless camp.
Continuous care, sometimes called crisis care, may also be provided wherever the patient resides. It is more intense services for a short period of time. Continuous care supports a patient whose pain and symptoms are peaking and need quick management. With continuous care, unlike routine care, a nurse may be at a patient’s bedside 24 hours a day, seven days a week. Continuous care is an option allowing a patient to avoid admission to an inpatient facility.
Hospices provide general inpatient care in a hospital, a dedicated nursing unit, or a freestanding hospice inpatient facility. To qualify for inpatient care, a patient must be acutely ill and need immediate assistance and daily monitoring to the extent that they cannot be cared for at home. Hospices must offer around-the-clock skilled nursing coverage for patients receiving general inpatient care.
Respite care is caregiver relief. It allows patients to stay in an inpatient setting for up to five days in order to provide caregivers respite.
Florida law requires hospices to accept all medically eligible patients. Each hospice must make its services available to all terminally ill persons and their families without regard to age, gender, national origin, sexual orientation, disability, diagnosis, cost of therapy, ability to pay, or life circumstances. A hospice may not impose any value or belief system on its patients or their families, and must respect the values and belief systems of its patients and their families. § 400.6095(1), Fla. Stat.
Hospices frequently offer additional, uncompensated services that are not required by Florida licensure laws or federal Medicare requirements. Pre- hospice care and community counseling are two examples. Hospices often
establish programs to meet the needs of particular populations, such as the Hispanic, African American, Jewish, veteran, and HIV/AIDS communities.
Cornerstone, Suncoast Pinellas, and VITAS provide the hospice services required by state laws and funded by the Medicare benefit. All three providers also offer services beyond those required by, or paid for by, government programs.
The Fixed Need Pool and Preliminary Agency Decision
Pursuant to its rule-based numeric need methodology, AHCA determined and published a fixed need for one new hospice program in SA 6A, Hillsborough, in the second batching cycle of 2019. Under the
Agency's need methodology, numeric need for an additional hospice program exists when the difference between projected hospice admissions and the current admissions in a service area is equal to or greater than 350. In this instance, the difference between projected hospice admissions and current admissions in SA 6A was 863, and therefore a numeric need for an additional hospice program exists in Hillsborough.3
In addition to the three litigant applicants, three other entities filed applications seeking approval for the new program. Those three applications have been deemed abandoned and are not at issue herein.
On February 21, 2020, the Agency published its preliminary decision to award the hospice CON to Suncoast, and to deny the remaining applications. Thereafter, Cornerstone and VITAS both filed timely petitions for formal administrative hearing contesting the Agency’s preliminary
decision. On April 1, 2020, Suncoast filed a “Cross Petition, Notice of Related Cases and Notice of Appearance” in support of the Agency decision on the competitively reviewed applications. None of the applicants petitioning for
3 According to AHCA’s need methodology, absent a showing of “not normal” circumstances,
only one new hospice program may be approved for a SA at a time, regardless of the
multiples of 350 “need” that may be shown. Fla. Admin. Code R. 59C-1.0355(4)(c).
hearing alleged “special circumstances” or “not normal” circumstances in
their application.
Service Area 6A: Hillsborough County
As can be seen by the map below, Hillsborough is located on the west coast of Florida along Tampa Bay. It includes 1,048 square miles of land area and 24 square miles of inland water area. Hillsborough is home to three incorporated cities: Tampa, Temple Terrace, and Plant City, with Tampa being the largest and serving as the county seat. The county is bordered by Pasco County to the north, Polk County to the east, Manatee County to the south, and Pinellas County to the west.
(Source: Google Maps)
According to AHCA’s Florida Population Estimates 2010-2030,
published February 2015, Hillsborough’s total population as of January 2020 was estimated to be 1,439,041. Hillsborough’s total population is expected to grow to 1,557,830 by January 2025, or 8.25% over that five-year period. In 2020, 14% of Hillsborough’s population was aged 65 and older.
According to the 2010 U.S. Census, 35.4% of the county population age 65 and older has a disability, and 17.2% of the county population is below the poverty level, compared to 12.2% statewide.
The Hillsborough County Department of Health (“HCDOH”) reports that the county has a diverse mix of residents, with 52% White, 16% African American, 26% Hispanic, and 5% other races. Of the Hillsborough households living below the poverty level, 23.73% are Hispanic/Latino and 31.07% are African American. Nearly 10% of Hillsborough residents report not speaking English “very well.”
The most recent U.S. Census indicates that the median income for households in Hillsborough is $54,742, considerably below the national average, with 17.2% reported below poverty level. A larger percentage of the county’s residents (3.3%) received cash assistance than did the state’s residents (2.2%), and a larger percentage (15.7%) received food stamp benefits than is the case for the state overall (14.3%), as reported by HCDOH.
Hillsborough is currently served by two hospice providers: Lifepath Hospice (“Lifepath”); and Seasons Hospice and Palliative Care of Tampa, LLC (“Seasons”), a for-profit company. Following approval after an administrative hearing, Seasons was newly licensed to begin operations in Hillsborough in December 2016. Florida’s hospice CON rule prevents need for a new program from being shown for a period of two years following the addition of a new program to a service area. The purpose of the two-year forbearance is to allow new programs to gain a foothold in the market, and to potentially avoid a repeated need determination in future batching cycles.
Hospice admissions at Lifepath for the period of July 1, 2018, through June 30, 2019, were 6,195, and for Seasons were 601. The addition of Seasons to the service area was not successful in deterring the need for yet another new program in Hillsborough.
The Application Proposals and CON Conditions Suncoast
Suncoast recently applied for approval for a hospice program in neighboring Pasco County, but, after a DOAH hearing, that application was denied in favor of another applicant. From that experience, Suncoast determined to better identify local needs before applying for approval in Hillsborough.
Upon learning that a fixed need pool would be announced for Hillsborough, Mr. Sciullo directed his team of executives and staff over a series of strategy meetings to conduct an independent community needs assessment of Hillsborough. Mr. Sciullo tasked Kathy Rabon to oversee the development of a community needs assessment of Hillsborough to identify potential needs of Hillsborough residents, based on key informant surveys and other assessment tools. Ms. Rabon has significant experience in conducting feasibility studies for capital projects funded by the Suncoast Hospice Foundation, which she leads.
Ms. Rabon began by reviewing existing community needs assessments of the county. Those assessments identified the health needs of
Hillsborough’s underserved patients, and identified community leaders that informed the assessments. Ms. Rabon then contacted many of those key informants.
At hearing, Ms. Rabon described the process she used to develop a community needs assessment for Hillsborough as follows:
Q. When tasked with doing an assessment for Hillsborough's hospice, where did you start? What documents did you first review?
A. A community needs assessment can take quite a while when you engage focus groups and need to meet with stakeholders. We didn't have the luxury of a lot of time. We also had the luxury of knowledge that other hospitals in Hillsborough County that are not-for-profit have to periodically do a community needs assessment.
So rather than start from a blank piece of paper, I turned to those community needs assessments and I began compiling and gathering as many as I could that I felt were relevant to, A, the geographic boundaries of the entire county, which some did not, but B, also were timely.
And I found that the Department of Health had done a very comprehensive community needs assessment in 2015-16 that had been updated in March of 2019 that I felt would provide a lot of good information.
* * *
I was responsible for identifying need and, if possible, identifying perhaps solutions that could be developed as a result of a partnership or a relationship or an engagement or a future plan that we could put together that would help solve a need in Hillsborough County relative to chronic and advanced illness.
In addition to the HCDOH needs assessment and update, Ms. Rabon also obtained quantitative information for her assessment from the following sources:
Community Health Improvement Plan 2016- 2020, Florida Department of Health in Hillsborough County, Revised January, 2018;
Moffitt Cancer Center Community Health Needs Assessment Report 2016;
Florida Hospital Tampa Community Needs Assessment Report 2016;
Florida Hospital Carrollwood Community Needs Assessment Report 2016;
South Florida Baptist Hospital 2016 Community Needs Assessment Report;
Tampa General Hospital;
Community Health Needs Assessment 2016; and
Community Needs Assessment St. Joseph’s
Hospitals Service Area 2016.
Ms. Rabon also developed a key informant survey tool to elicit qualitative information regarding the healthcare needs of Hillsborough residents. The survey specifically asked about the strengths and weaknesses of the community for treatment of persons with chronic or advanced illness, and other pressing issues relating to end of life care. Those survey questions included, among others:
What is your role, and responsibilities within your organization?
What do you consider to be the strengths and assets of the Hillsborough community that can help improve chronic and advanced illness?
What do you believe are the three most pressing issues facing those with chronic or advanced illness in Hillsborough County?
From your experience, what are the greatest barriers to care for those with chronic or advanced illness?
What are the strategies that could be implemented to address these barriers?
Once meetings with key informants were complete, and 25 key informant surveys were returned, Ms. Rabon summarized her findings in a final Community Needs Assessment Summary. Ms. Rabon’s findings were consistent with assessments conducted by other organizations, including HCDOH, and local hospitals.
The results of the Community Health Needs Assessments, Suncoast Key Informant Surveys, and detailed letters of support, identified the following gaps in end-of-life care for residents of Hillsborough:
High cardiovascular disease mortality rates (higher than the state average and the highest of the six most populous counties in Florida) and low percentage of patients served by existing hospice providers.
Other areas where there appears to be a gap in specific end-of-life programming and a large need in terms of Hillsborough resident deaths include: Alzheimer's Disease and Chronic Lower Respiratory Disease, both of which are in the top 5 leading causes of death in the county.
Nearly 30 percent of the Hillsborough population is Hispanic, with 19 percent of the county's 65+ population falling into the Hispanic ethnic category. The concentration of 65+ Hispanic residents in Hillsborough is higher than the state average.
Surveys and assessments indicate a lack of knowledge in the Hispanic/Latinx[4] community in Hillsborough regarding end-of-life care.
Many of these residents speak Spanish at home and/or have limited English proficiency.
Hillsborough Hispanic population has low utilization of hospice due to factors including lack of regular physician and medical care, lack of information and cultural barriers.
With the 5th largest homeless population in the state, Hillsborough has 1,650 homeless residents as of a Point in Time Count conducted in February 2019.
Nearly 60 percent of the area’s homeless population is considered ‘sheltered’, yet there are no resources for end-of-life care for these patients where they live, whether it be an emergency shelter, safe haven or transitional housing.
Additionally, 17.2 percent of the Hillsborough population lives below the poverty level and has limited access to coordinated care, including end-of- life services.
More than 93,000 veterans currently reside in Hillsborough, with more than one-third over the age of 65.
4 Latinx is a gender-neutral neologism, sometimes used to refer to people of Latin American cultural or ethnic identity in the United States. The ⟨-x⟩ suffix replaces the ⟨-o/-a⟩ ending of Latino and Latina that are typical of grammatical gender in Spanish. See “Latinx,” Wikipedia (last visited March 19, 2021).
While most hospice programs provide special services for veterans, Suncoast Pinellas has obtained Partner Level 4 certification by We Honor Veterans, a program of the National Hospice and Palliative Care Organization (“NHPCO”) in collaboration with the Department of Veterans Affairs (“VA”).
Pediatric hospice programming in Hillsborough is limited, as there are no specialized pediatric hospice providers in the county.
Hillsborough is home to approximately 338,000 residents ages 0-17 in 2020, and is projected to increase to more than 368,000 by 2025.
The pediatric utilization rate of hospice services in Hillsborough is low compared to the general population. For the year ended March 31, 2019, there were only five pediatric patients discharged from the hospital setting to home hospice or an inpatient hospice facility, while 106 pediatric patients died in the hospital.
Navigation of the healthcare system was highlighted as a key driver that will bring positive improvements to overall continuum of care in Hillsborough.
Hillsborough residents are not accessing hospice services at a rate consistent with the rest of the state, and either access hospice programs very late in the disease process, or not at all.
Transportation challenges as a deterrent to seeking medical care, particularly in rural areas of Hillsborough.
Approximately one-third of the Hillsborough population is considered “transportation disadvantaged” meaning they are unable to transport themselves due to disability, older age, low income or being a high-risk minor/child.
Suncoast retained David Levitt and his firm as its healthcare
consultant and primary drafter of its CON application. To develop Suncoast’s application, Mr. Levitt utilized numerous reliable data sources and worked with Suncoast Pinellas’s staff. Mr. Levitt credibly confirmed the need for an additional hospice program in Hillsborough based on reliable healthcare planning data.
AHCA’s CON application form, adopted by rule, requires applicants to submit letters of support with their CON applications. Suncoast complied with this requirement and included numerous letters of support from the Hillsborough community.
One of the key informants identified by Ms. Rabon was Dr. Douglas Holt of the HCDOH. Dr. Holt agreed to meet with Mr. Sciullo and ultimately agreed to provide a letter of support, which was included with the Suncoast application.
Mr. Sciullo also personally met with Dr. Larry Fineman, the regional medical director of HCA West Florida, who provided a letter of support. HCA West Florida hospitals are key referral sources of Suncoast Pinellas’s current hospice admissions. In addition to HCA West Florida, Suncoast Pinellas has an existing relationship with other Hillsborough hospitals: St. Joseph’s, Moffitt Cancer Center and Tampa General Hospital. Suncoast received letters of support from St. Joseph’s and Tampa General. The Agency’s
witness, James McLemore, testified that letters from such referral sources were highly persuasive to the Agency, as they indicate the likelihood of successful operations.
Suncoast’s witness, Dr. Larry Kay, credibly testified that he obtained letters of support from Dr. Howard Tuch, Director of Palliative Medicine at Tampa General Hospital; Dr. Larry Feinman, Chief Medical Officer at HCA West Florida; and Dr. Harmatz, the Chief Medical Officer at Brandon Regional Hospital, an HCA hospital within HCA West Florida. Those letters were included with the Suncoast application.
Suncoast Pinellas currently has working relationships with BayCare, HCA, AdventHealth West Florida, Tampa General, and Moffitt hospital systems. Suncoast submitted letters from BayCare and HCA, which were included with its application. Suncoast received letters specifically related to partnering with Suncoast for inpatient services from St. Joseph’s (BayCare) and Brandon Regional (HCA).
Suncoast also received a letter of support related to partnering with Suncoast for inpatient services from the Inn at University Village, a long- term care facility in Hillsborough; and support from a pediatric hospitalist who provides care to terminally ill and medically fragile children at
St. Joseph’s Children’s Hospital and Johns Hopkins All Children’s Hospital.
Suncoast also received letters of support from numerous community organizations, including Balance Tampa Bay and The AIDS Institute. Also included with the Suncoast application were several letters of support from
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the veterans’ community, including one from the Military Order of the World
Wars.5
After considering Ms. Rabon’s Community Needs Assessment, and input from key informants, Suncoast developed programs and plans to meet each of the needs identified above. Suncoast conditioned the approval of its CON on the provision of those services. In all, Suncoast offered 19 conditions in its CON application intended to meet the unique needs of Hillsborough.
Condition 1: Development of Disease Specific Programing:
Suncoast is committed to providing disease-specific programming in Hillsborough: Empath Cardiac CareConnections, Empath Alzheimer’s CareConnections, and Empath Pulmonary CareConnections. Dr. Larry Kay and Dr. Janet Roman credibly testified that Suncoast will fulfill Condition 1 for disease specific programming.
To fulfill Condition 1, Suncoast will provide Empath Cardiac CareConnections in Hillsborough. Dr. Roman designed and currently runs the CardiacCare Connections program in Pinellas County. Dr. Roman is a national expert in developing programs across the continuum of care to assist heart failure patients. Although Suncoast Pinellas has always treated patients with heart failure, since Dr. Roman’s arrival, cardiologists have been referring patients to Suncoast Pinellas earlier than before.
Dr. Roman has trained Suncoast Pinellas’s nurses in all advanced
heart failure therapies, including IV inotropes, and mechanical circulatory
5 As correctly noted by Cornerstone in its Proposed Recommended Order, letters of support included in the three applications, unless adopted by the sponsoring author at hearing or in sworn deposition received in evidence, are uncorroborated hearsay, and the contents therein may not form the basis of a finding of fact. However, the letters are not being received for the truth of the matters set forth therein, but rather the number and types of support letters included in the applications are relevant generally as a gauge of the level of community support for the proposals. The Hospice of the Fla. Suncoast, Inc. v. AHCA and Seasons Hospice and Palliative Care of Pasco Cty., DOAH Case No. 18-4986 (Fla. DOAH Sept. 5, 2019; Fla. AHCA Oct. 15, 2019) (“In a broad sense, comparison of each applicant's letters of support illuminates the differences between each applicant's engagement with the
community.” FOF No. 127.).
supports such as left ventricular assist devices (“LVAD”) and artificial hearts.
Dr. Roman’s program has been successful at reducing hospital readmissions.
Suncoast’s application provided significantly more detail about the
operations of its heart program than either Cornerstone or VITAS.
Cornerstone and VITAS’s descriptions of their heart programs do not reach the level of specificity of operation as Suncoast’s and are not backed up with a measure of success such as a reduction in readmissions.
In furtherance of Condition 1, Suncoast will also offer Empath Alzheimer’s CareConnections. Suncoast Pinellas has already created the foundation for Empath Alzheimer’s CareConnections in Pinellas County, but has not yet been marketing the program under the brand of CareConnections. As part of Empath Alzheimer’s CareConnections, Suncoast will deploy a Music in Caregiving program for Hillsborough hospice patients, including those suffering from Alzheimer’s Disease.
Suncoast will also offer Empath Pulmonary CareConnections in Hillsborough. Suncoast Pinellas has already created the foundation for Empath Pulmonary CareConnections in Pinellas County, but has not yet been marketing the program under the brand of CareConnections. Suncoast Pinellas already has several respiratory therapists full time caring for COPD and asthma patients. In Hillsborough, Suncoast plans to engage a pulmonologist as a consultant and to hire dedicated respiratory therapists as volume increases in Hillsborough.
Condition 2: Development of Ethnic Community-Specific Programming
Suncoast conditioned its CON application on the purchase of a mobile van staffed by a full-time bilingual LPN and a full-time bilingual social worker to discuss advanced care planning and education, and increase access to care to diverse populations.
The van will operate eight hours a day, five days a week, and drive to areas in Hillsborough that have a need for the services offered by Suncoast
and Empath. This outreach is intended to enhance access to care to diverse communities. The van will spend time at the HCDOH and its satellite clinics, and use Metropolitan Ministries as a resource for identifying additional locations that could benefit. The van will also visit key Latinx community locations within Hillsborough and offer Spanish language assistance.
The van will be equipped with telehealth technology capabilities to link the LPN and social worker to the care navigation office to further enhance the care navigation function of the mobile van. The purpose of the mobile outreach van is to build relationships with, and trust in, the community, enhance visibility, and bring care navigation to areas of
Hillsborough that may not typically access it. Suncoast Pinellas’s EPIC program has significant experience operating a mobile outreach unit. EPIC currently operates a mobile outreach and testing unit that provides HIV testing and sexually transmitted infection testing in the community.
Condition 3: Development of Resources for Homeless and Low-Income Populations
Suncoast conditioned its application on the development of resources for homeless and low-income populations. Under this condition, Suncoast will provide up to $25,000 annually for five years to Metropolitan Ministries. Metropolitan Ministries is a leading community-based organization in Hillsborough that serves homeless and low-income individuals. Christine Long, Chief Programs Officer for Metropolitan Ministries, provided a letter of support which was included in Suncoast’s CON application.
Condition 4: Development of Specialized Veterans Program
Suncoast conditioned its CON application on the development of a specialized veterans program, which includes a dedicated Veterans Professional Relations Liaison to collaborate with the local VA hospital, outpatient clinics, and veterans organizations.
Suncoast Pinellas provides a wide range of specialized care for veterans, through its Empath Honors program, including Honor Flight and pinning ceremonies. Additionally, Suncoast Pinellas holds a Level 4 Certification from We Honor Veterans, a national program through the National Hospice and Palliative Care Organization (“NHPCO”) whose mission is to honor military veterans in hospice care. The NHPCO recently added a new Level 5 Partnership, for which Suncoast Pinellas has already applied for its Pinellas hospice program. Suncoast will also pursue a Level 5 Certification in Hillsborough, if awarded the CON.
Condition 5: Development of Specialized Pediatric Hospice Program in Hillsborough County
Suncoast will also develop a specialized pediatric hospice program in Hillsborough. Dr. Stacy Orloff started the Children’s Hospice Program at Suncoast Pinellas in 1990 and has been with Suncoast Pinellas for 30 years. Dr. Orloff helped draft the first waiver that the State of Florida submitted to CMS for approval to operate a PIC/TFK program. Once the PIC/TFK waiver was approved, Ms. Orloff led Florida’s PIC/TFK steering committee for
12 years.
PIC/TFK is a Medicaid waiver program that provides palliative care services for children with a risk of a death event by age 21, and also provides counseling support for family members who lived at the child’s home, such as parents, siblings, and grandparents. A PIC/TFK provider must be a licensed hospice provider in the service area.
Suncoast Pinellas has operated a PIC/TFK program in Pinellas since 2004, utilizing a pediatric interdisciplinary team to provide its PIC/TFK
services. Suncoast Pinellas’s PIC/TFK program averages a census of approximately 40 children. Combining the PIC/TFK patients with pediatric patients, Suncoast Pinellas’s census averages approximately 50 children.
Suncoast Pinellas has already received acknowledgment from Children’s
Medical Services to permit it to operate a PIC/TFK program in Hillsborough if awarded the hospice CON.
Initially, pediatric patients will be serviced by the Suncoast Pinellas pediatric staff. Suncoast Pinellas currently has sufficient staff availability to service Hillsborough at the commencement of the program. Suncoast anticipates that by the second year, the Hillsborough pediatric program will have a sufficient census to have a staff that serves only Hillsborough.
VITAS’s regional Medical Director, Dr. Leyva, acknowledged that a pediatric patient will receive better care from a care team with pediatric expertise than with an adults-only team. Of the three applicants, Suncoast has demonstrated the most experience providing care to pediatric patients.6
In addition, Suncoast Pinellas has longstanding relationships with the
local children’s hospitals, St. Joseph’s Children’s Hospital, and Johns
Hopkins All Children’s Hospital.
Concurrent care is a benefit created as part of the Affordable Care Act that allows children admitted to hospice care to continue to receive their curative care. Although all applicants have proposed providing concurrent care, only Suncoast has proposed a PIC/TFK program.
Suncoast is the only applicant currently operating a perinatal loss program and miscarriage at home program. Dr. Orloff credibly confirmed that Suncoast will implement the perinatal loss program if approved in Hillsborough.
Condition 6: Development of Continuum of Care Navigation Program
Suncoast’s Community Needs Assessment identified that Hillsborough
lacks effective access to the full continuum of healthcare services. Suncoast
6 AHCA’s witness, James McLemore, credibly testified that this is an area where Suncoast enjoys an advantage over the other applicants because “Suncoast went with an entire pediatric program.”
Pinellas operates an entire care navigation department that can address any inquiry or referral regarding hospice and Empath’s other services, in order to direct that patient to the right care at the right time. All services offered by Empath, including hospice, palliative care, home health, EPIC, and PACE are available to individuals who call the Care Navigation Center. Care Navigation staff can also assist existing patients with questions involving, for example, DME.
Suncoast Pinellas’s care navigation center is available 24 hours a day, 7 days a week, 365 days a year. If its application is approved, Suncoast will also offer its Care Navigation Department in Hillsborough.
Condition 7: Development of a Program to Address Transportation Challenges for Rural Areas
Suncoast has conditioned its application on developing a program to address transportation challenges for rural areas in Hillsborough. As part of this condition, Suncoast will provide up to $25,000 annually in bus vouchers for the first five years to current hospice patients and their families, as well as non-hospice patients.
Critics of Suncoast’s plans to offer bus vouchers claimed that Hillsborough’s bus system does not reach all areas within the county.
However, Suncoast has also conditioned its application on the provision of funds that may be used to purchase transportation, including ridesharing providers such as Uber.
Condition 8: Interdisciplinary Palliative Care Consult Partnerships
Suncoast will implement interdisciplinary palliative care partnerships with hospitals, ALFs, and nursing homes located in Hillsborough. Suncoast has already identified potential partnerships, including with Dr. Harmatz at Brandon Regional Medical Center, to launch the program.
Condition 9: Dedicated Quality-of-Life Funds for Patients and Families
Suncoast is committed to providing quality of life funds as described in Condition 9 in Suncoast’s CON application. Suncoast Pinellas has extensive experience with providing each interdisciplinary team with $1,200 of quality of life funds to be used to facilitate a safe environment for its patients, such as paying rent, getting rid of bedbugs, paying utilities such as electricity for air conditioning, and to power specialized medical equipment. On occasion these funds are also used to provide meaningful patient experiences, similar to the Make-a-Wish programs.
Conditions 10 – 13: Development of Advisory Committees and Councils
Suncoast has committed to establishing care councils and advisory committees to learn firsthand the needs and concerns of the community. A care council is made up of members from a particular community who provide input regarding the needs of the community. Suncoast Pinellas offers similar councils and committees in Pinellas County. These groups are critical to the
success of Suncoast Pinellas’s mission.
Condition 14: Development of Open Access Model of Care
Suncoast has committed to implementing an open access model of care in Hillsborough. This condition recognizes that while some patients may be receiving complex medical treatments that may lead some to question whether the patient is terminal, those treatments are actually required for palliation and the patient’s comfort. Under this condition, Suncoast promises to admit these patients and provide coverage for their treatments.
Condition 15: SAGECare Platinum Level Certification
Joy Winheim testified at the final hearing regarding the HIV positive community and the LGBTQ community. Over her many years working with the HIV/AIDS community, Ms. Winheim has built lasting relationships with
community partners in the Tampa Bay area, including HCDOH and the Pinellas County Health Department. Empath’s EPIC program has a permanent staff member housed within the HCDOH, and the HCDOH has physicians housed in EPIC’s Tampa office to provide medical care to EPIC’s clients.
Ms. Winheim has built lasting relationships with community partners in the Tampa Bay LGBTQ community, including Metropolitan Community Church, an LGBTQ friendly church; the Tampa Bay Gay and Lesbian Chamber of Commerce; and Balance Tampa Bay.
SAGE is a national organization dedicated to improving the rights of LGBTQ seniors by providing education and training to businesses and non- profits. The platinum level of SAGECare certification is the highest level and indicates that 80% of an organization’s employees and 100% of its leadership have been trained by SAGE. Leadership training is in the form of a four-hour in-person training. Employee training is in the form of a one-hour training conducted either in person or web-based.
All of Empath’s entities are SAGECare certified at the platinum level. Although the platinum level certification requires only 80% of its employees to receive training, Empath Health required that 100% of its employees attend the training.
SAGECare certification makes a difference to members of the LGBTQ community choosing a healthcare provider. Suncoast is committed to fulfilling this condition.
Condition 16: Jewish Hospice Certification
Suncoast Pinellas has a specialized Jewish Hospice Program and holds a Jewish Hospice Certification from the National Institute of Jewish Hospices. Suncoast has conditioned its CON application on achieving this same certification in Hillsborough by the end of year one.
Condition 17: Joint Commission Accreditation
The Joint Commission on Accreditation of Healthcare Organizations (“Joint Commission”) accreditation is the “gold standard” for hospitals, nursing homes, hospices, and other healthcare providers. Suncoast is currently accredited by the Joint Commission, and if approved, is committed to achieving Joint Commission accreditation for its Hillsborough program.
Condition 18: Provision of Value-Added Services Beyond Medicare Hospice Benefit
Suncoast has committed to provide its integrative medicine program in Hillsborough. Suncoast Pinellas’s existing integrative medicine program is staffed by an APRN who is also certified in acupuncture. Suncoast Pinellas’s integrative medicine program is a holistic approach for helping patients manage their symptoms with such therapies as acupuncture, Reiki,7 and aromatherapy.
Suncoast Pinellas recently established a Wound, Ostomy, and Continence Nurse Program in Pinellas County to provide expertise in end-of- life wounds and incontinence issues in long-term care settings, particularly smaller ALFs that may not have the necessary staffing. Suncoast will also offer this program in Hillsborough.
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7 Reiki (霊気, /ˈreɪki/) is a Japanese form of alternative medicine called energy healing. Reiki practitioners use a technique called palm healing or hands-on healing through which a “universal energy” is said to be transferred through the palms of the practitioner to the patient in order to encourage emotional or physical healing.
Condition 19 – Limited Fundraising in Hillsborough County
Suncoast has committed to limiting fundraising activities in Hillsborough. Ms. Rabon credibly testified that Suncoast can, and will, fulfill this condition.8
Suncoast’s PACE Program
In addition to its conditions, Suncoast’s proposal also includes several other non-hospice services that will be made available in Hillsborough. For example, Suncoast Pinellas operates a PACE program. The PACE program provides everything from medical care to transportation for medical needs and adult daycare services, as well as respite services for caregivers. The overall goal of the PACE program is to reduce unnecessary hospital visits and nursing home placement and keep elderly participants at home.
Suncoast Pinellas’s PACE program currently operates at capacity, with 325 participants enrolled. Over the last four years, Suncoast Pinellas PACE has referred 175 people to Suncoast Pinellas. And although there are approximately 14,000 eligible PACE participants in Hillsborough, there is not a PACE provider in the county. In recognition of this unmet need, Suncoast Pinellas is currently in the process of expanding PACE services to residents of Hillsborough. Suncoast’s PACE program distinguishes Suncoast from Cornerstone and VITAS, neither of which currently operates a PACE program in any of their service areas.
Suncoast’s Volunteer Program
Under the Medicare Conditions of Participation, hospice programs must use volunteers “in an amount that, at a minimum, equals 5 percent of
8 Both Suncoast and Vitas condition their applications on eschewing fundraising activities in SA 6A, apparently in an effort to minimize adverse impact on the two existing providers in the service area. However, neither Lifepath nor Seasons participated as a party to this litigation, or presented evidence at hearing as to revenues received through their fundraising activities. Thus, it is impossible to determine whether the conditions proposed by Suncoast and VITAS would have a material impact on either of the existing providers.
the total patient care hours of all paid hospice employees and contract staff.” 42 C.F.R. § 418.78(e). Suncoast Pinellas regularly exceeds that 5% requirement and, in fact, reached 12% in the last fiscal year.
Suncoast Pinellas currently has over 1,000 volunteers who support the hospice program by assisting with palliative arts, including Reiki and aromatherapy, Lifetime Legacies, pediatric patients, and transportation. Suncoast Pinellas’s volunteers also assist with Suncoast’s Pet Peace of Mind Program, for which Suncoast Pinellas won the inaugural award for program of the year in 2019.
Suncoast is the only applicant that operates a teen volunteer program. Suncoast Pinellas’s teen volunteer program was established in 1994 and was the first of its kind in the entire country. In 1998, it was awarded the Presidential Point of Light award. Suncoast Pinellas’s Volunteer Services Director, Melissa More, regularly consults with hospices across the country on the development of teen volunteer programs.
Ninety of Suncoast Pinellas’s 1,000 volunteers currently live in Hillsborough, but travel to Pinellas to volunteer at Suncoast Pinellas. Nine of those volunteers submitted letters of support for Suncoast’s CON application to serve Hillsborough.
Doctor Direct Program
Suncoast Pinellas’s existing Doctor Direct Program enables physicians in the community and their ancillary referral partners to contact a Suncoast Pinellas physician 24/7, who can answer any questions about a patient they think might be eligible for hospice, and questions related to other Suncoast Pinellas programs. Suncoast will provide its Doctor Direct Program in Hillsborough.
Plan for Inpatient Services
Suncoast received letters of support from hospitals and a nursing home indicating a willingness to enter into a contract for inpatient services with Suncoast. Suncoast intends to offer both inpatient units and “scatter- bed” arrangements with these providers. Suncoast received letters
specifically related to potential partnerships with St. Joseph’s (BayCare) and
Brandon Regional (HCA) for the provision of inpatient hospice services. Suncoast also received a letter related to a potential partnership with the Inn at University Village, a long-term care facility in Hillsborough, for the provision of inpatient services.
Telehealth
Suncoast Pinellas offers telehealth services using CMS and HIPAA- approved software so that patients can keep meaningful connections with their family and friends, regardless of ability to travel. In Hillsborough, Suncoast will provide nurses, social workers, and chaplains with traveling technology for use in the patient’s home to connect with family and friends. Utilizing telehealth in this way will help to minimize emergency room visits and hospitalizations. Suncoast will be prepared to implement its telehealth program in Hillsborough on day one of operation if awarded the CON.
Outreach Efforts to Diverse Communities
Suncoast is committed to, and has a proven track record of, community outreach efforts to diverse communities. As part of its outreach efforts in Hillsborough, Empath’s Vice President of Access and Inclusion, Karen Davis-Pritchett, met with the Executive Director of the Hispanic
Service Council, Maria Pinzon, to discuss the organization’s outreach efforts and gain insight into the Hispanic community in Hillsborough. Ms. Davis- Pritchett learned that the Hispanic community in Hillsborough differs from the Hispanic community in Pinellas, in that Hillsborough has a large and
spread out migrant population. Ms. Davis-Pritchett and Ms. Pinzon also discussed the transportation issues facing residents of Hillsborough.
To address these transportation issues, Suncoast conditioned its CON application on the purchase and use of a mobile outreach van with bilingual staff to conduct outreach to the Hispanic and other diverse communities. Suncoast also conditioned its application on the provision of vouchers that may be used for buses or ride-sharing services. Ultimately, Suncoast obtained a letter of support from Ms. Pinzon, which was submitted with its CON application.
Additionally, Suncoast conditioned its application on recruiting four community partnership specialists, who will conduct outreach to the African American community, the Hispanic community, the Veterans community, and the Jewish community, and six professional liaisons who will conduct outreach to clinical partners in Hillsborough. All of these positions will be dedicated to Hillsborough and be filled by individuals who are connected to these communities, and understand the importance of access to hospice care.
Suncoast’s proposal includes a bilingual medical director, Dr. Jerez- Marte, for its Hillsborough program. Dr. Jerez-Marte regularly speaks Spanish with patients and staff, which would be a benefit to Hispanic patients in Hillsborough.
Mr. Sciullo credibly testified that Suncoast will offer high quality hospice services in SA 6A, and will fulfill the 19 conditions proposed in its application.
Cornerstone
Based on its review of data and analytics that Cornerstone relies upon and conducts as part of its ongoing operations in Florida, Cornerstone recognized in the second quarter of 2019, long before AHCA published its need projections, that there was need for an additional hospice program to enhance access to hospice services in Hillsborough.
Regardless of the service area, Cornerstone offers quality hospice care through consistent policies, protocols, and programs to ensure that patients are getting the highest quality care possible. Cornerstone will bring all aspects of its existing hospice programs and services to Hillsborough, including all of the programs and services described throughout its application.
However, Cornerstone recognizes each service area is different in terms of the needs and access issues patients face, whether based on demographics, geography, infrastructure, a lack of information about hospice, or other factors. When looking to enter a market, Cornerstone conducts a detailed community-oriented needs assessment to determine the specific needs of the community with regard to hospice to best understand how to enhance access to quality hospice services.
Cornerstone explores each potential new area to identify the cultural, ethnic, and religious makeup of the community, the current providers of end- of-life care in the community, and the unmet needs and gaps in care, which is critical to understanding where issues may lie. This allows Cornerstone to build and develop an appropriate operational plan to meet the needs identified in a particular market. Cornerstone conducted this type of analysis for its recent successful expansion in Marietta, Georgia, and has had success expanding access to hospice in its existing markets through ongoing similar analyses.
Cornerstone conducted an analysis of Hillsborough similar to those it conducts in its existing markets and in expansion efforts outside its existing markets. In its assessment of Hillsborough, Cornerstone relied, in part, on the extensive knowledge of its senior leaders and outreach personnel, many of whom live and previously worked in Hillsborough, with regard to the population characteristics and needs of the Hillsborough area. This experience in the target service area affords Cornerstone’s team a detailed knowledge of the hospice-related needs of the county.
Mr. D’Auria, who conducted much of the analytics internally for Cornerstone, also oversaw a team of Cornerstone staff who spent several weeks canvassing Hillsborough at a grassroots level. The Cornerstone team spoke to residents, medical professionals, community leaders, SNFs, ALFs, and hospitals, among others, on the local experience of hospice care, to identify any areas of concern regarding unmet needs or perceived improvements necessary relative to the provision of hospice care by the current providers.
Cornerstone’s retained health planning experts, Mr. Roy Brady and Mr. Gene Nelson, further undertook an extensive data-driven analysis of Hillsborough’s health-related needs to explore the access issues and service gaps identified in Cornerstone’s analytics, knowledge of and discussions in the local community, as well as the issues raised in community health needs assessments,9 letters of support, and other resources.
Together, the team concluded that quality hospice services are available in Hillsborough County through existing providers LifePath and Seasons Hospice. That care is available to patients of all ages and demographic groups with virtually any end-stage disease process. Yet some patients simply are not accessing hospice services at the expected rate in Hillsborough. For example, Cornerstone’s analyses identified specific unmet community need among particular geographic areas, as well as among persons with a diagnosis other than cancer, particularly those under age 65, persons with end-stage respiratory disease, the Hispanic and African American communities, migrant communities, residents of smaller ALFs, and veterans.
Based upon its analysis of the healthcare needs of Hillsborough, Cornerstone included multiple conditions intended to address those needs. In
9 Cornerstone considered the health needs assessments released by Tampa General Hospital and the Moffitt Cancer Center, both published in 2019. Cornerstone also considered the health needs assessment prepared by HCDOH issued on April 1, 2016, as updated, including the March 2019 update.
all, Cornerstone proposed 10 conditions in its CON application targeted to meet the hospice needs of Hillsborough:
Licensure of the Hospice Program: Cornerstone commits to apply for licensure within 5 days of receipt of the CON to ensure that its service delivery begins as soon as practicable to enhance and expand hospice and community education and bereavement services in SA 6A;
Hispanic Outreach: Cornerstone commits to provide two full-time salaried positions for bilingual staff as part of its Community Education Team. These Community Education Team members will be responsible for the development, implementation, coordination and evaluation of programs to increase community knowledge and access to hospice services, particularly designed to reach the Hispanic community in Spanish.
Bilingual Volunteers: Cornerstone commits to recruit bilingual volunteers. Patients’ demographic information, including other languages spoken, is already routinely collected so that the most compatible volunteer can be assigned to fill each patient’s visiting request.
Offices: Cornerstone commits to establish its first program office in the Brandon area (zip code 33511 or 33584) during the first year of operation. Cornerstone commits to establish a satellite office in the Town & Country area (zip code 33615 or 33634) during the second year of operations.
Complimentary Therapies: Cornerstone conditions its application on offering alternative therapies to patients that may include massage therapy, music therapy, play therapy, and holistic (non-drug) pain therapy. These complimentary therapies are not generally considered to be part of the hospice's core services, but are enhancements to the patient’s care which often have a marked impact on the quality of life during their last days.
Veterans: Cornerstone commits to providing services tailored to the military veterans in the community. Cornerstone will immediately upon licensure expand its existing We Honor Veterans Level 4 program to serve Hillsborough and will provide the same broad range of programs and services to veterans in Hillsborough as it currently provides in its existing service areas.
Bereavement Counseling for Parents: Cornerstone will implement a program in its second year of operation which will provide outreach for bereavement and anticipatory grief counseling for parents of infants who have died. The Tampa area has several hospitals which provide high-level newborn and infant services such as Level III NICU and other programs, consequently there is a higher than average infant mortality rate due to this concentration of high-level services. Cornerstone will work with the local hospitals which provide high-level neonatal intensive care to develop and carry out this program.
Cooperation with Local Community Organizations: Cornerstone commits to donate at least $25,000.00 for four years to non-profit community organizations focused upon providing greater healthcare access, disease advocacy groups and professional associations located in SA 6A. These donations will be to assist with their core missions, which foster access to care, and in collaboration with Cornerstone to provide educational content on end-of-life care.
Separate Foundation Account: Cornerstone will donate $25,000.00 to a segregated account for SA 6A maintained and controlled by the Cornerstone Hospice Foundation. Additionally, all donations made to Cornerstone or the Foundation from SA 6A, or identified as a gift in honor of a patient served in the 6A program, shall be maintained in this segregated account and only used for the benefit of patients and services in Hillsborough. This account will be used to meet the special needs
of patients in Hillsborough which are not covered under the Medicare hospice benefit and cannot be met through insurance, private resources, or community organization services or programs.
Continuing Education Programming (CEUs): Cornerstone will commit to extending free CEU in- services to the healthcare community in Hillsborough. Topics will cover a wide range of both required and pertinent subjects and will include information on appropriate conditions and diagnoses for hospice admission, particularly for non-cancer patients. A minimum of 10 in-services will be offered in a variety of healthcare settings during each of the first five years. Additional CEU will be provided on an ongoing basis.
In addition to formulating CON conditions, Cornerstone used information gleaned from its community exploration to develop an operational plan detailing the number and type of staff to hire, which programs to offer, and how to tailor its outreach and education to best enhance access to hospice services in Hillsborough to meet the unmet need.
Given Cornerstone’s existing outreach to area providers in Hillsborough, such as Moffitt, Tampa General Hospital, and the VA, which already discharge patients to Cornerstone in neighboring service areas, Cornerstone fully expects that it will receive referrals to its hospice from providers throughout Hillsborough upon the initiation of operations in the county. Cornerstone will provide hospice services to those and any other patients throughout Hillsborough from day one.
However, when seeking to expand access in new or existing markets, Cornerstone focuses not on taking patients from existing providers but on enhancing access to groups and populations that have been overlooked, or whose needs are not otherwise being met by existing hospices. Cornerstone therefore developed a phased operational plan to focus its outreach and education efforts on areas where there are barriers to access, rather than
simply scattering their efforts haphazardly or concentrating on areas that already have a heavy hospice presence.
Phase One of Cornerstone’s operational plan will begin immediately upon licensure and continue through the first six months of operation. During this time, Cornerstone will focus outreach and education efforts heavily on the underserved southeast portion of Hillsborough, including Plant City, Valrico, Brandon, Riverview, Mango, and Sun City Center. Phase One includes 68 ALFs, six SNFs, and four hospitals. Almost one-third of the population of Hillsborough resides in this area, and an estimated 28 percent of the residents are Hispanic, and 14 percent are African American. There is also a large, underserved migrant population in this area. Cornerstone conditioned its application on opening an office in Brandon during this initial phase in the first year of operation.
Phase Two will expand Cornerstone’s targeted outreach efforts into the southwest quadrant of Hillsborough, including the Apollo Beach, Ruskin, Gibsonton, Progress Village, and Palm River areas. While the population of this phase is smaller than Phase One, the two areas combined make up almost a third of the county’s Hispanic population, and a fourth of the county’s African American population.
Phase Three will reach into the broader Tampa area, including towns such as Temple Terrace, Pebble Creek, University, Ybor City, and Carrollwood. This is the largest and most populated of the four phases; however, it is also currently the most hospice-penetrated area of the county as the two existing providers, LifePath and Seasons, each have offices in Phase Three. There is also a hospice house and two hospice inpatient units in the area as well. Because this area already has better hospice visibility and access, and to avoid siphoning patients from existing providers, Cornerstone will focus on this area after Phases One and Two. Cornerstone will ramp up its outreach staffing consistent with the increased area, facilities, and population added during Phase Three.
Combined, the first three phases of the operational plan will offer enhanced outreach and education to 90% of the Hillsborough population starting at the beginning of year two operations.
Phase Four will encompass the remainder of the county to the west of Tampa in the Town ‘n’ Country area. While this area represents only about 10% of the county’s population, Phase Four has no hospice visibility currently in the form of hospice offices, hospice houses, or hospice inpatient units. Cornerstone has conditioned its application on establishing an office in the Town ‘n’ Country area within project year two to enhance hospice visibility and access in this area of the county. Upon implementation of Phase Four, Cornerstone’s targeted outreach and education will be fully integrated throughout the county.
Cornerstone’s application included more than 174 letters of support for its proposal. The letters of support are from a broad range of individuals and facilities located within and outside Hillsborough, including families, SNFs, ALFs, hospitals, vendors, and local charitable organizations, among others.
Cornerstone presented testimony from three authors of letters of support, Andrea Kowalski, Eric Luetkemeyer, and Colonel (Ret.) Gary Clark.
Ms. Kowalski is an employee benefits coordinator for USI Insurance Representatives in Tampa who works with Cornerstone to build benefits programs for its employees. In addition to authoring her own letter of support, Ms. Kowalski also assisted in gathering approximately 40 additional letters of support for Cornerstone from her colleagues in Hillsborough.
Ms. Kowalski strongly supports Cornerstone’s approval and indicated the community would benefit not only from enhanced access to Cornerstone’s excellence and expertise in caring for those with advanced illness, but also from the addition of a highly-regarded employer, which will provide additional options for healthcare workers and financial benefits as Cornerstone reinvests in the community.
Mr. Leutkemeyer is the COO for Spectrum Medical Partners (“Spectrum”), the largest privately-held hospitalist group in Florida. Spectrum manages roughly 400 providers across the state, the majority of which (85%) are medical doctors or doctors of osteopathic medicine, either in hospital or post-acute settings, and sees roughly 2,000 patients per day.
Spectrum’s footprint includes coverage in Hillsborough for entities such as Simply or Humana with which Spectrum contracts statewide. Spectrum is looking to expand its footprint and services in Hillsborough in the near future. As detailed in his letter, Mr. Luetkemeyer supports Cornerstone’s efforts to establish a hospice program in Hillsborough, indicated a desire to work with Cornerstone in the county if awarded, and believes the community would benefit from the additional resources and quality care that Cornerstone would provide.
Colonel Clark, who retired from the United States Air Force in 1993, is co-founder and current Chairman of the Polk County Veterans Council, a volunteer organization of individuals interested in assisting veterans. Colonel Clark is also affiliated with, and participates in, a number of veterans organizations in Hillsborough, including as an adviser to the Mission United Suncoast Chapter in Hillsborough, which primarily assists veterans in transitioning from service to the civilian world. He also serves on the
management advisory committee of James A. Haley Veterans’ Hospital in Tampa, which provides a broad spectrum of hospital-based care to area veterans.
Colonel Clark has significant experience with Cornerstone through its participation in the Polk County Veterans Council, including on the Council’s committee for the Flight to Honor program, which provides veterans a flight to Washington D.C. to visit war memorials. If a veteran is unable to make the flight, a virtual flight and tour, as well as ceremonies or presentations, are provided by Cornerstone to veterans enrolled in hospice. Cornerstone is heavily involved in the Council’s Flight to Honor program—
participating on the committee, recruiting volunteers, working with local schools to gather letters for the veterans on the flights, arranging for orientation prior to the flights, and putting on the virtual flights for those Veterans unable to make the flight due to various disabilities. Colonel Clark is also familiar with Cornerstone’s efforts to support veterans at James A. Haley Veterans’ Hospital in Tampa. Colonel Clark described Cornerstone’s support not only for veterans but for the community overall as “magnificent,” and detailed his support for Cornerstone’s application in a letter of support that is included in Cornerstone’s application.
Cornerstone is well-positioned to quickly establish a successful hospice program to enhance access in Hillsborough, and its proposal is a carefully considered, long range plan that would bring its established and proven processes, procedures, and programs to the residents of the county. Cornerstone also posits that its existing presence nearby in Lakeland will enhance its ability to topple barriers to care and serve patients in adjacent SA 6A immediately. For example, Cornerstone has existing relationships with veterans groups that serve both Polk and Hillsborough, and will utilize those relationships to enhance access to the large veteran population in Hillsborough, as highlighted through Cornerstone’s condition to provide services tailored to the veteran community.
VITAS
VITAS, which operates a hospice program in adjacent SA 6B, proposes to expand into SA 6A under its existing license. This will allow VITAS to begin serving patients quickly without creating an entirely new administrative infrastructure for the opening.
Although VITAS provides many of the same core programs in each of its service areas, it also recognizes that each community is different. VITAS
performed a qualitative and quantitative assessment that examined the specific needs of Hillsborough regarding hospice care and services.
Through its consultants and internal team, VITAS identified several communities, patient types, and clinical settings that are underserved in
SA 6A. These include: the African American, Hispanic, and migrant communities, particularly those age 65 and older; impoverished, food insecure and homeless communities; patients with non-cancer diagnoses such as pulmonary disease, cardiac disease, Alzheimer’s Disease, and patients with sepsis; cancer patients in need of palliative care; high acuity patients in need of complex services and those needing admissions during evenings and weekends; patients requiring admission after hours and on weekends; and patients who reside in nursing homes and small ALFs.
To understand the hospice needs within Hillsborough, VITAS conducted a two-step review—(1) analyzing data from a wide variety of sources including Medicare, AHCA, Florida Department of Elder Affairs, Florida CHARTS, and demographic and socioeconomic data; and (2) meeting with some healthcare and social service providers in Hillsborough.
Key members of VITAS’s leadership team, including Patty Husted, Mark Hayes, and Dr. Shega, conducted an assessment in Hillsborough to identify the unmet need within the community and underserved populations. VITAS’s needs assessment team physically went into Hillsborough to visit nursing homes, ALFs, hospitals, and physicians to determine the unmet need and how to achieve greater access to hospice services for the residents of Hillsborough. VITAS’s team spent a significant amount of time conducting hospice outreach and education in Hillsborough in furtherance of the needs assessment. Specifically, VITAS’s team met with hospitals including H. Lee Moffitt Cancer Center, Baptist Health, BayCare, St. Joseph’s, and Brandon Regional; nursing homes, such as Hudson Manor, Ybor Health and Rehabilitation Center; and physician and nurse practitioner groups.
VITAS’s needs assessment team also participated in physician advisory council meetings as part of its needs assessment for Hillsborough. During these meetings, VITAS gained perspective from these local physicians regarding the challenges faced by patients in need of hospice services in
SA 6A, as well as insight as to what VITAS could bring from its existing programs to fill the unmet needs. VITAS also drew on the knowledge of the 18 VITAS employees currently living in Hillsborough.
To address the needs it identified in SA 6A, VITAS proposes a broad array of programs and services to be offered in Hillsborough which are specifically targeted to increase the availability and accessibility of hospice services for underserved groups and Hillsborough residents more broadly. To demonstrate its commitment, VITAS conditioned its CON application on providing the following 20 programs and services in SA 6A:
VITAS Pulmonary Care Program.
VITAS Cardiac Care Program.
Clinical research and support for caregivers of
patients with Alzheimer’s and dementia.
VITAS Sepsis Care Program.
Veterans programs, including achieving Level 4 commitment to the We Honor Veterans program within the first two years of operation in SA 6A.
Bridging-the-Gap Program and Medical/Spiritual Toolkit, which is an outreach and end-of-life education tool for African American and other minority communities.
ALF Outreach and CORE Training Program.
Palliative care resources and access to complex and high acuity services, including engaging area residents with serious illness in advance care planning and goals of care conversations, as well as offering palliative chemotherapy,
inotrope drips and radiation to optimize pain and symptom management as appropriate.
Provider clinical education programs for physicians, nurses, chaplains, HHA’s and social workers.
Quality and Patient Satisfaction Program, including hiring a full-time Performance Improvement Specialist within the first six months of operation dedicated to supporting quality and performance improvement programs for the 6A hospice program.
VITAS staff training and qualification, ensuring the medical director covering SA 6A will be board-certified in hospice and palliative care medicine.
Hospice office locations.
Deployment of a mobile van to increase access and outreach to rural counties.
VITAS will not solicit donations.
Outreach and end-of-life education for 6A residents experiencing homelessness, food insecurity, and limited access to healthcare, including advanced care planning for area homeless shelter residents and a partnership to provide a grant for housing and food assistance with a community organization. $5,000 will be distributed during the first two years to the Hispanic Services Coalition or similar qualified organization for promoting academics, healthy communities and engagement of Latinos.
Outreach program for underserved residents of SA 6A.
Educational grant, to the University of South Florida Foundation including $250,000 for fellowships, scholarships, education and
workforce development as well as $20,000 for diversity initiatives.
Inpatient hospice house and shelter for natural disasters and hurricanes.
Medicaid Managed Care education
Services beyond the hospice benefit, including, among others:
24/7 Telecare Program and access to admission on evenings and weekends, including outreach and end-of-life education for residents experiencing poverty, food insecurity, homelessness and/or food insecurity, including nutrition services, advanced care planning for shelter residents, and housing assistance.
Hospice Education and Low Literacy (HELLO) Program.
Multilingual education materials in several languages including Spanish, Chinese, Korean, Portuguese, Russian, Vietnamese and Creole.
CAHPS Ambassador Program to generate interest, awareness and encourage ownership by team members of their team’s performance on CAHPS survey results.
Community outreach and education programs.
Partnership with a local college for fellowships, scholarships, education and workforce development and diversity initiatives.
VITAS’s application contains approximately 50 letters supporting its proposed program, the vast majority of which are from hospitals, nursing
homes, ALFs, physicians, and community organizations in Hillsborough County with direct hospice experience. VITAS obtained these letters of support as part of its community-oriented needs assessment, and they attest to the community’s confidence in VITAS’s ability to meet hospice care needs in Hillsborough. Included are letters of support from Cynthia Chavez, Executive Director at Hudson Manor Assisted Living; Brian Pollett, Administrator at Ybor Health and Rehabilitation Center; and Dr. Jorge Alfonso, Regional Chief Medical Officer at Dedicated Senior Medical Center. All three providers expressed a local need to address high acuity patients, including greater access to continuous home care.
Statutory and Rule Review Criteria
The review criteria are found in sections 408.035, 408.037, and 408.039, and rules 59C-1.008 and 59C-1.0355. (Prehearing Stipulation).
There are currently two licensed hospice programs in hospice SA 6A, and a need for one additional hospice program, as calculated using the need methodology found in rule 59C-1.0355(4), and published by AHCA, without challenge.
AHCA’s need calculation compares reported hospice admissions during the base year with projected admissions in the horizon year and finds need if the difference between base and horizon year admissions exceeds 350, assuming there are no recently-licensed or CON-approved hospice programs in the service area. In this case, AHCA’s calculation revealed a net need of 863 hospice admissions for the January 2021 planning horizon.
Each Applicant has put forth a proposal to meet the calculated need for one additional hospice program in Hillsborough. None of the applicants are advocating the approval of more than one new program.
It is undisputed that quality hospice services are available in Hillsborough today through existing providers LifePath and Seasons, including for patients of all ages and with essentially all end-stage disease processes, as well as for patients of all demographic groups. Relevant data demonstrates discharges to hospice in Hillsborough for a wide range of diagnoses and demographic groups, including African American and Hispanic patients, non-cancer and cancer patients, both over and under age 65; patients with end-stage cardiac disease; end-stage pulmonary disease and dementia, including Alzheimer’s disease, among others.
However, despite the availability of quality hospice services, some patients simply are not accessing hospice services at the rate expected in SA 6A, as reflected by low penetration rates and low discharge-to-hospice rates, particularly within certain major disease categories and demographic groups, including Hispanic and African American residents. All three applicants agreed that the underutilization is concentrated among certain patient populations, including demographic groups and disease groups.
Generally, all three applicants agreed that the Hispanic, African- American, veteran, and homeless populations are currently underserved in Hillsborough. In addition, Suncoast points to the need for a specialized pediatric hospice program in SA 6A; Cornerstone argues that non-cancer patients younger than age 65 are in need of enhanced access, as are residents of smaller ALF’s; and VITAS asserts that patients with respiratory, sepsis, cardiac, and Alzheimer’s diseases are underserved, as are patients requiring continuous care and high acuity services, such as high-flow oxygen.
VITAS’s argument is based largely on a claim that the existing providers are not providing “any measurable continuous care,” as well as hearsay reports from area hospitals indicating a lack of high-acuity services
available through existing hospice providers. However, VITAS’s health planning expert conceded that, in fact, existing providers are offering continuous care, and she was unable to quantify any purported dearth of continuous care in Hillsborough as compared to other providers or the statewide average. The record establishes that continuous care is part-and- parcel of the hospice benefit, and there was no evidence presented at final hearing to support the claimed lack of availability of that service from existing providers.
Based on the foregoing, the evidence tended to show quality hospice care is available in SA 6A, that it is underutilized, and that the underutilization is driven by accessibility challenges among particular patient groups, and supports AHCA’s determination that another hospice program is needed in Hillsborough.
Cornerstone is the only applicant accredited by the Joint Commission, which is a national symbol of quality that reflects its commitment to meeting high quality performance standards. Cornerstone’s Joint Commission accreditation, which was just recertified in 2020, and the accompanying high standards of quality care, will carry over to its new SA 6A program.
As a new entity, Suncoast is not Joint Commission accredited, but conditions its application on achieving such accreditation by the end of year two. Suncoast Pinellas is Joint Commission accredited, and indeed, is one of only a handful of hospices nationwide, along with Cornerstone, to hold Joint Commission accreditation and/or certification.
While VITAS represents that some affiliated VITAS hospice programs are Joint Commission accredited, VITAS, the applicant here, is not accredited by the Joint Commission, and makes no representation that it will seek or attain such accreditation for its new hospice program in SA 6A.
There are two universal metrics codified in federal law that are used as a proxy for assessing the quality of care offered by hospice programs— Hospice Item Set (“HIS”) scores and Consumer Assessment of Healthcare Providers and Systems (“CAHPS”) survey scores. See 42 C.F.R. § 418.312; see also § 400.60501, Fla. Stat. (2020).
CAHPS surveys are a subjective metric sent to family members and other caregivers months after a patient's death. The survey asks respondents to provide ratings like: “would definitely recommend,” “would probably recommend,” “would probably not recommend,” and “would definitely not recommend.” It also seeks yes or no responses to statements like: the hospice team “always communicated well,” “always provided timely help,” “always treated the patient with respect,” and “provided the right amount of emotional and spiritual support.” It also asks if the patient always got the help they needed for pain and symptoms, and if “they” received the training they needed.
The CAHPS survey was created by CMS in conjunction with the Agency for Healthcare Research and Quality to measure and assess the care experience provided by a hospice. The purpose of the Hospice Compare Website is to allow the public to compare quality scores for CAHPS among different hospice providers.
CAHPS scores are one measure of quality that is intended to allow for comparison across hospice programs. Significant time at final hearing was dedicated, through multiple witnesses, to discussing the strengths and weaknesses of CAHPS scores as a measure of quality. Ultimately, the greater weight of the evidence supports that CAHPS scores are an indicator of quality, but are not the only consideration, and suffer from limitations that prohibit drawing distinctions from minor differences in scores.
The three applicants’ CAHPS scores are summarized in this
chart:
(Suncoast Ex. 42, BS p. 12203)
While it is true that Suncoast Pinellas’s scores on all CAHPS measures are higher than those of Cornerstone, the slight difference between Suncoast Pinellas and Cornerstone is not significant given the subjective nature of the survey instrument. However, both Suncoast Pinellas and Cornerstone do score significantly higher than VITAS on most measures.
Cornerstone’s CAHPS scores meet or exceed state averages on six of the eight measures, are within one to three points of the state average on the remaining two measures, and its average CAHPS score exceeds the state average. As a new entity, Suncoast does not have CAHPS scores. Suncoast Pinellas’s CAHPS scores meet or exceed state averages on six of the eight measures, are within one to two points of the state average on the remaining two measures, and its average CAHPS score exceeds the state average. In contrast, VITAS’s CAHPS scores fall below the state average on all eight metrics, fall five to seven points below the state average on seven of the eight
metrics, and its average CAHPS score for all measures combined falls five points below the state average.
Cornerstone and Suncoast Pinellas are within one to three points of each other on every CAHPS metric. The difference in scores between Cornerstone and Suncoast Pinellas is not statistically significant or
meaningful, particularly given the shortcomings of CAHPS scoring. VITAS’s CAHPS scores are below both Cornerstone and Suncoast Pinellas, falling six and eight points below Cornerstone and Suncoast Pinellas, respectively, on the average of all CAHPS metrics. This difference is meaningful, particularly when viewed in the context of VITAS’s history of substantiated complaints discussed below.
HIS scores, which assess documentation of various items, are more a process or compliance measure than a quality measure. Suncoast Pinellas’s HIS scores exceed the state and national average on all metrics, albeit most scores are within two points of the state average.
Cornerstone’s HIS scores are on par with state averages on most metrics and meet or exceed the national average on every metric, except Pain Assessment. Cornerstone has worked to substantially improve its Pain Assessment score through better documentation protocols, raising its score from 52.1 to 89.1 in the last few years, and is implementing a new Electronic Records Management system to further improve its scores.
VITAS’s HIS scores are on par with state averages on most metrics, and meet or exceed the national average on all metrics except Visits When Death Imminent. VITAS scores 68.4 on Visits When Death Imminent compared to the state and national averages of 83.2 and 82.4, respectively.
As measured by the HIS scores, there was no credible, persuasive testimony establishing a meaningful difference among the three applicants.
In contrast to CAHPS and HIS scores, the number and substance of complaints substantiated against each applicant by AHCA is a more direct indicator of quality of care.
Suncoast has no prior hospice operations history, and therefore no prior substantiated complaints. Suncoast Pinellas has had only three substantiated complaints since 2008, and none since 2013.
Cornerstone has only two substantiated complaints since 2008, and only one since Mr. Lee took over as CEO of Cornerstone in late 2012.
VITAS has 73 substantiated complaints since 2008, including
10 substantiated complaints in the three years ending November 20, 2019, just prior to submission of the CON application at issue here. Between November 20, 2019, and June 17, 2020, VITAS had five additional
substantiated complaints. VITAS’s health planning expert, Ms. Platt, also considered all AHCA survey deficiencies, whether based upon a complaint, life safety survey, or otherwise. Ms. Platt’s analysis demonstrates that VITAS had 80 such surveys with deficiencies since 2012, including 26 between January 2018 and June 2020.
VITAS argues that its greater number of substantiated complaints are the consequence of higher patient volumes than Suncoast and Cornerstone. However, even taking into consideration the greater number of patient days provided by VITAS, VITAS had infinitely more surveys with deficiencies in 2019 than Cornerstone, which had zero. And VITAS had five times as many surveys with deficiencies for 2018 and 2019 as Cornerstone. A comparison of VITAS to Suncoast Pinellas yields similar results, with VITAS having significantly more surveys with deficiencies than Suncoast Pinellas, even when taking into consideration the greater number of patient days provided by VITAS.
Complaints substantiated against VITAS demonstrate failures in many areas of patient care, including some of the specific aspects of hospice care at which VITAS claims to excel beyond other providers, such as after- hours care, the provision of continuous care, and care to patients wherever they live, including smaller ALFs. For example, a substantiated complaint against VITAS in November 2019 included a finding of “immediate
jeopardy”—the most severe level of deficiency possible—for a patient who failed to receive proper care after-hours at end-of-life, resulting in a particularly painful death for the patient, and an excruciating experience for the patient’s daughter who witnessed her mother’s painful death, unaccompanied by hospice personnel. Two additional substantiated complaints from January and February 2020 found deficiencies in VITAS’s care to patients on continuous care, including one where the VITAS nurse had headphones in and was not paying attention when the patient fell.
Indeed, VITAS’s own internal review of the substantiated complaint involving the patient who fell confirmed an upward trend in falls among VITAS patients. And, as recently as June 2020, a separate substantiated complaint found that VITAS abandoned a patient on continuous care, requiring the patient to be transferred to the hospital rather than continue to receive care in the “small ALF” where the patient resided.
VITAS acknowledged the patients at issue in the substantiated complaints discussed at final hearing did not receive quality hospice care. Those five examples are only a sampling of the complaints substantiated against VITAS, and the others demonstrate similar quality deficiencies.
The number of substantiated complaints weighs in favor of Cornerstone and Suncoast, and heavily against VITAS with regard to record of providing quality of care. There is no meaningful difference between Cornerstone and Suncoast in regard to substantiated complaints, and neither is entitled to preference in this regard.
On balance, among the three applicants, the quality of care provided by Suncoast and Cornerstone is on equal footing, with both having a distinct advantage over VITAS.
The parties stipulated that each of the applicants have available funds for capital and operating expenditures in the short term for purposes of project accomplishment and operation.
Suncoast demonstrated that it has the resources to accomplish its proposed project. Suncoast provided detailed descriptions of the personnel that would be required to successfully implement its proposed program. Suncoast has reasonably projected the types of staff necessary to operate Suncoast in year 1 and 2 of operation.
At hearing, Suncoast witnesses credibly described the roles of the
staff contained in Suncoast’s Schedule 6, including the roles of administrator, care team manager, administrative assistant, regional hospice scheduler, business development liaisons, physicians, program director, nurses, hospice aides, respiratory therapists, staff for the mobile van in Condition 2 of its application, community partnership specialists, social workers, patient social team lead, chaplain, volunteer coordinator, and senior staff nurse.
Suncoast’s financial expert, Armand Balsano, testified that part of
his role in preparing Suncoast’s CON application was working with Suncoast Pinellas’s Chief Financial Officer, Mitch Morel, to develop Suncoast’s financial projections that were included on Schedules 1 through 8 of the application. Mr. Balsano, in collaboration with Mr. Morel, utilized Suncoast Pinellas’s internal financial modeling system to develop the financial schedules and financial narrative for the application. Mr. Balsano credibly testified that financial Schedules 1 through 8 are accurate and reasonable.
Suncoast projects admissions of 460 patients for project year one and 701 patients for project year two. Suncoast’s health planner, David Levitt, developed Suncoast’s projected admissions based on experience of other providers entering a market with two existing providers. Suncoast’s projected number of admissions for years one and two are reasonable projections of admissions for a new hospice program in Hillsborough.
Suncoast was criticized as having a lackluster record for admissions in its existing Pinellas hospice. While it is true that Suncoast Pinellas’s admissions declined slightly from 2013 to 2014, the overall trend has been one of increasing admissions. For example, based on Medicare claims data, from 2005 to 2019, Suncoast Pinellas’s admissions grew from 4,679 to 6,534.10
Financial feasibility may be proven by demonstrating the expected revenues and expenses upon service initiation, and determining whether a shortfall or excess revenue results. The projection of revenue is not complicated for hospice services. The vast majority of hospice care, more than 90%, is funded by the Medicare Program which pays uniform rates to all hospice providers.
Mr. Balsano testified that Suncoast’s projected revenues in Schedule 7 are based on the revenues that are currently realized for the various payer categories, including Medicare, Medicaid, Commercial, and self-pay. Mr. Balsano credibly testified that the assumptions reflected on Schedule 7 of Suncoast’s CON application are reasonable and appropriate.
10 Suggestions by VITAS and Cornerstone that Suncoast’s internal data indicate a history of low utilization or inaccurate reports to AHCA are without merit. Mr. Sciullo credibly testified that the data reported to AHCA is the most accurate admissions data. Mr. Sciullo further credibly testified that the Utilization Trend Reports contained in Cornerstone’s exhibits 82 through 88, relied on by VITAS and Cornerstone, contain duplicate hospice admissions and admissions from non-hospice programs such as Suncoast’s home health program. Mr. Sciullo also credibly testified that the most accurate admissions numbers reported to AHCA are not generated from the Utilization Trend Reports. Rather, the admissions numbers reported to AHCA are produced by Suncoast’s reimbursement department. Mr. Sciullo’s testimony under cross examination demonstrated a confident and credible understanding of the nuances of the Utilization Trend Reports. Additionally, the suggestion that Suncoast would intentionally under-report admissions to AHCA lacks credibility because hospice providers in Florida are incentivized to report higher numbers of admissions.
In Year 2, Suncoast projects net operating revenue of $7,138,000, which breaks down to approximately $172 per day of overall net revenue per patient day. Mr. Balsano’s credibly testified that this is a reasonable forecast of net operating revenue.
Projected expenses were also reasonably projected by Suncoast. Mr. Balsano testified that Suncoast’s projected income and expenses in Schedule 8A includes salaries and wages, fringe benefits, medical supplies and ancillary services, and approximately 1.5% of inpatient days. Suncoast also included a separate allowance for administrative and overhead cost.
Suncoast also allocated $752,000 in management fees to account for “back office services” and other support services that would be provided to the Hillsborough program through the Empath home office. Mr. Balsano arrived at this number by determining that a reasonable assessment would be the cost per patient day of $18, as reflected on Schedule 8 for year two.
Mr. Balsano credibly testified that, for a startup program, it is appropriate to include the costs associated with services provided by the corporate office because one must be cognizant of what services are provided locally, and what services will be provided through the corporate office.
Mr. Balsano further testified that it would not be reasonable to assume that 100% of the costs associated with corporate services to a new hospice program would be fixed. As Mr. Balsano explained, the variable costs must be accounted for as well.
Mr. Balsano credibly testified that Suncoast’s net profit in year two as reflected in Schedule 8A is $615,416. It is found that Suncoast has reasonably projected the revenues and expenses associated with its proposed hospice, and that Suncoast’s proposal is financially feasible in the long term.
Cornerstone projected admissions of 448 patients in year one, and 819 patients in year two, for the highest year two admissions of the three applicants. In comparison, Suncoast projected admissions of 460 patients in year one and 701 in year two, while VITAS projected 491 patients in year one
and just 593 in year two. Cornerstone’s projected admissions were developed by health planning experts Roy Brady and Gene Nelson based on the experience of recent new hospice programs in the state of Florida, were discussed and confirmed by Cornerstone personnel prior to being finalized, and are a reasonable projection of admissions for years one and two of operations in Hillsborough.
Despite the highest anticipated year two admissions, Cornerstone’s projection still fell below the SA 6A service gap of 863 patients and therefore did not, standing alone, establish any greater adverse impact on area providers than Suncoast or VITAS. Cornerstone emphasized its mission as an organization, and intent for this proposal, to expand penetration by resolving unmet need as opposed to capturing patients already served by existing providers. The adverse impact analysis in Cornerstone’s application therefore represents a worst-case scenario by assuming all of its patients otherwise would be served by existing providers, a premise undercut by the substantial published need.
Using this approach, Cornerstone anticipated that LifePath would bear the overwhelming burden of its entry into Hillsborough, with a projected adverse impact on LifePath of 408 patients in year one, and 747 in year two. Cornerstone anticipated adverse impact to Seasons of 39 patients for year one, and 72 patients for year two. Even in this worst-case scenario, existing
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providers’ volumes in Cornerstone project years one and two exceed their
historical volumes.11
Cornerstone has available health personnel and management personnel for project accomplishment and operation. Cornerstone’s existing staff, as well as its projected incremental staff for the new program, is reflected in schedule 6A of its application. The projected incremental staff shown in schedule 6A is based on established ratios and methodologies Cornerstone uses in its existing hospice programs. The projected incremental staff is all the incremental staff Cornerstone will need to establish the new program in Hillsborough, and combined with its existing personnel, are sufficient to achieve program implementation as proposed in the application.
Both Suncoast and VITAS criticized Cornerstone’s financial projections as flawed because they did not present the fully allocated costs of the project. According to Mr. Balsano, Cornerstone’s projected profit margin is unreasonable and, in fact, is “an extreme outlier.” As he explained,
Cornerstone’s financial schedules make no allocation of shared service costs for critical services to be provided by the home office. According to Suncoast and VITAS, this omission is unreasonable when viewed in context with Cornerstone’s Schedule 6, which does not allocate any FTEs to back office support services. Not shown are the expenses Cornerstone will incur for
finance, billing, revenue cycle, accounts receivable, payroll, human resources,
11 Relative adverse impact on existing hospice programs of competing applicants has been used as a dispositive factor for favoring one applicant over another. See, Hospice of Naples, Inc. v. Ag. for Health Care Admin., DOAH Case No. 07-1264, ¶ 274 (Fla. DOAH Mar. 3, 2008; Fla. AHCA Jan. 22, 2009) (“One factor outweighs all others, however, in favor of VITAS. VITAS's 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.”).
However, as noted here, neither of the existing providers presented evidence as to the relative impact that any of the applicants would potentially have on its existing operations, or whether such impacts would be material. Accordingly, there is no evidentiary basis for providing an advantage to one or another of the applicants based upon consideration of adverse impact.
and contract negotiations, among others. Notably, hospice providers include home office costs as part of their Medicare cost reports filed with CMS.12
Because Cornerstone did not allocate home office costs in its application, its profit margins are substantially higher than all other applicants for the October 2019 Batching Cycle. While most applicants fall within the $100,000 – $500,000 range, Cornerstone projected a staggering
$4.9 million profit margin.
There is nothing in the CON application form or instructions that require that financial projections be presented on a “fully allocated” basis. Notably, in its review of the financial projections, AHCA determined that each applicant’s proposed program appeared to be financially feasible in the long-term.
Cornerstone’s financial feasibility analysis included consideration of payer mix, level of service mix, admissions, average lengths of stay, patient days and incremental staffing needs, among others, and focused on the resulting incremental revenues and expenses generated by addition of the new program in Hillsborough.
Cornerstone’s projected admissions are reasonable and appropriate for the proposed new program in Hillsborough. Cornerstone’s proposed incremental staff, combined with its existing staff, is sufficient for project accomplishment and operation.
Cornerstone’s projected payer mix is based upon consideration of Cornerstone’s own historic experience, the demographics and recent hospice payer characteristics of Hillsborough, and consideration of Cornerstone’s goal to serve the non-cancer under-65 population, which may reduce Medicare
12 In terms of its budgeting process, Cornerstone has one “bucket” for its administrative overhead/home office expenses and then separate buckets for each of its hospice programs. Home office expenses include human resources, IT, compliance, and facility maintenance. Cornerstone does not allocate its home office expenses to each of its hospice programs within its internal books. However, when an audit is performed, the performances of each hospice program and the home office expenses are all included, and the home office expenses are allocated to each of its hospice programs.
levels slightly from what they otherwise may be, and is reasonable and appropriate for its proposed hospice program in Hillsborough.
Cornerstone’s projected level of service mix and average length of
stay are based upon Cornerstone’s historical experience, and are reasonable and appropriate for the proposed hospice program in Hillsborough. Likewise, Cornerstone’s projected revenues as set forth in schedule 7A are based upon the projected volumes, service level mix, payer mix projections, and Medicare service level specific rates, and are a reasonable projection of revenues for the proposed project in Hillsborough.
Cornerstone has established the long-term financial feasibility of its proposed SA 6A program.
VITAS’s financial projections were prepared through the work of an internal team led by Lou Tamburro, Vice President of Development for VITAS. VITAS reasonably based these projections on the successful opening and ramp up of new hospice programs in Service Areas 1, 3E, 4A, 6B, 7A, 8B, and 9B, and other Florida communities. VITAS has a clear understanding of what startup costs will be, and it was appropriate for VITAS to rely on its past history of success in developing these projections.
VITAS projects admissions of 492 patients for project year one and 593 patients for project year two. Mr. Tamburro developed the projected admissions using an internal model based upon VITAS’s prior experience. While Mr. Tamburro is an expert in health finance, not health planning, Ms. Platt reviewed VITAS’s projections and credibly concluded they are reasonable.
VITAS proposes to dedicate more resources to SA 6A than the other two applicants in the second year of operations; 74% of that expense is focused on direct patient care, with only 23% associated with administrative and overhead, and 2% property costs. In contrast, Suncoast and Cornerstone only dedicate 54% and 56%, respectively, of their expenses on direct patient care and 41% and 42%, respectively, on administrative and overhead.
However, VITAS’s higher direct patient care costs are at least partially explained by the larger number of clinical and ancillary FTE’s associated with the higher levels of continuous care projected by VITAS than either Suncoast or Cornerstone. As would be expected, VITAS also projects to admit a larger number of high acuity patients than Suncoast or Cornerstone.
Given VITAS’s vast experience in the start-up and operation of hospice programs, including 16 within Florida, there is no reason to doubt that the VITAS Hillsborough program would be financially feasible in the long term.
The following table summarizes the three applications’ financial
metrics:
Cornerstone | Suncoast | Vitas | |
Total Project Costs | $286,080 | $703,005 | $1,134,149 |
Operating Costs Yr.2 | $6 million | $5.7 million | $8.6 million |
Net Profit Yr.2 | $4,972,346[13] | $615,416 | $154,913 |
Proj. Admits Yr. 2 | 819 | 701 | 593 |
Routine Home Care | 95.4% | 97.5% | 94% |
General Inpatient | 3.5% | 1.5% | 2.5% |
Continuous Care | 0.3% | 0.5% | 3.5% |
Respite | 0.8% | 0.5% | 0% |
Rule 59C-1.0355 and the criteria for determination of need for a new hospice program found within that rule, is predicated upon the notion that,
13 As noted, Cornerstone’s relatively large profit margin is a function of its incremental cost,
versus fully allocated cost, financial projections.
when need exists, approval of an additional program will foster competition beneficial to potential and prospective hospice patients in the service area.
As between the three applicants, Suncoast did the most thorough and extensive analysis of the current needs of the Hillsborough population. This effort was driven by the fact that Suncoast had recently applied for a new hospice program in neighboring Pasco County, and was denied in favor of a competing applicant. In that case, Administrative Law Judge Newton specifically faulted Suncoast for failing to carefully evaluate the hospice needs of Pasco County residents:
Suncoast, in effect, proposes a branch operation for Pasco County. Suncoast did not conduct the focused, individualized inquiry into the needs of Pasco County that Seasons did. Nor did it begin developing targeted ways to serve the needs or begin establishing relationships to further that service.
The Hospice of the Fla. Suncoast v. Ag. For Health Care Admin., Case No. 18- 4986, ¶ 126 (Fla. DOAH Sept. 5, 2019; Fla. AHCA Oct. 16, 2019).
As explained by Mr. Sciullo at hearing, Suncoast took the above criticism to heart, and determined to conduct an exhaustive evaluation of the hospice needs in SA 6A, and to formulate a strategy for addressing those
needs. Specifically, Suncoast’s intent was to identify issues and gaps in services facing residents of Hillsborough, and to enable a dialogue with existing community partners and providers in order to create shared solutions. As part of this comprehensive effort, Suncoast met with more than 50 key individuals and organizations, representing a broad range of general and special populations within the county. This effort resulted in the development of collaborative strategies and action plans to fill the gaps and meet the unmet need for additional hospice services in Hillsborough, as reflected in the Suncoast application conditions.
In contrast to Suncoast, Cornerstone did not conduct its own needs assessment, but rather relied on the community needs assessments prepared by the HCDOH and two area hospitals. Moreover, rather than reaching out to the Department of Health and to the area hospitals that prepared those assessments to conduct further research or seek their support of its CON application, Cornerstone simply “verified that their documentation was thorough enough.”
Cornerstone’s limited outreach effort in Hillsborough is further demonstrated by the letters of support submitted with its CON application. While Suncoast obtained letters of support from the HCDOH and numerous hospitals and community organizations in Hillsborough, Cornerstone failed to obtain a single letter of support from any hospital in Hillsborough.
Despite submitting approximately 150 letters of support (many of which were form letters, and letters from Cornerstone employees), Cornerstone failed to obtain any letters from the Hispanic community, the African American community, the HIV community, the migrant community, or organizations that assist the homeless, unlike Suncoast.
As Mr. McLemore testified, “a large part” of the review criteria is “hav[ing] the commitment from the organizations in the service area. I think that’s where – a little bit where Cornerstone was a little off base. They did have a bunch of letters of support, but again, they were not specific to the
service area.” Mr. McLemore further testified that, rather than a large pile of letters, he was looking for letters “that are definitely from hospitals, nursing homes and civic organizations, healthcare organizations in the area.”
Cornerstone’s failure to conduct meaningful and thorough outreach efforts in Hillsborough is also demonstrated by its generic list of CON application conditions. As multiple Cornerstone witnesses acknowledged, the services Cornerstone is proposing to offer in Hillsborough are identical to the services Cornerstone already offers in its existing service areas. Specifically, Cornerstone conditions its application on Hispanic outreach, bilingual
volunteers, multiple office locations within a service area, complementary therapies, veterans-specific programming, bereavement counseling for parents, cooperation with local community organizations, a separate foundation account for the specific service area, and continuing education programming, all of which are services that Cornerstone already offers in its existing service areas.
Thus, unlike Suncoast, which used the existing community health needs assessments as a starting point for its own comprehensive needs assessment, and proposed conditions that are reflective of the unique needs of Hillsborough, the conditions proposed by Cornerstone are almost identical to the services Cornerstone currently provides elsewhere.
Cornerstone’s plan to serve Hillsborough in phases does not immediately address the unmet need for hospice services countywide. Cornerstone will not send its marketing team to facilities and other referral sources in those phased areas until Cornerstone has completed each phase of its plan. Although Cornerstone’s witnesses testified that Cornerstone will not turn away referrals from parts of the county before Cornerstone begins operations in those areas, they also confirmed that Cornerstone will not actively seek referrals from other phased areas until it is ready to move into those areas.
Unlike Suncoast, and to a lesser extent VITAS, there is no evidence that Cornerstone conducted a thorough needs assessment of SA 6A before developing its phased implementation plan. Cornerstone simply looked at a map of where existing providers have offices and decided to start elsewhere. Likewise, Cornerstone did not conduct any independent assessment of the needs of the four different geographic areas of its plan to determine whether Cornerstone will be capable of serving all of the county’s residents immediately upon CON approval. Further, Cornerstone did not conduct any review or analysis of comparable start-ups in Florida when preparing its
SA 6A CON application.
VITAS undertook an analysis of information from a variety of sources, including meetings with various individuals within Hillsborough regarding the perceived gaps in care. Based on this review, VITAS identified a number of patient groups with purported unmet needs: African American and Hispanic populations; migrant workers; patients residing in the eastern and southern parts of the county who are not accessing hospice at the same rate as other parts of the subdistrict; patients with respiratory, sepsis, cardiac, and Alzheimer’s diagnoses; patients requiring continuous care and high acuity services such as Hi-Flow oxygen; patients requiring admission in the evening or on weekends; and patients residing in small, less than 10-bed, ALFs. VITAS proposed a number of solutions to address the purported needs identified in Hillsborough, and largely included those proposed solutions as conditions of its application.
However, VITAS failed to identify a specific operational plan for Hillsborough. The purported gaps in care and solutions identified in VITAS’s application for Hillsborough largely mirror those identified in its application for Service Area 2A that was submitted during the same cycle, despite significant differences between the makeups of those two service areas.
VITAS’s application included 47 letters of support. Many of the letters are from persons and organizations outside Hillsborough, and even include a letter from one of VITAS’s employees, Kellie Newman, and two letters in support of its 2A application.
At hearing, VITAS offered testimony from letter of support authors Mary Donovan and Margaret Duggar. Ms. Donovan lives in Miami and is VP for Caregiver Services, Inc., a nurse staffing agency that contracts with VITAS in other areas of the state and hopes to do so in Hillsborough.
Ms. Duggar is the President of MLD & Associates, Inc., located in Tallahassee, which is a management firm that serves as executive staff for a number of entities. Neither of these letters is probative of VITAS’s ability to meet the hospice needs of Hillsborough residents.
Ultimately, the applicants all agreed that the unmet need in SA 6A is not purely numeric: it is concentrated among certain patient populations, including Hispanic and migrant communities; non-cancer patients under age 65, including those with dementia, Alzheimer’s, respiratory, and cardiac disease; and lower income groups. Each applicant tailored their proposal to address the perceived, underlying access barriers accordingly.
Two primary theories concerning the source of access barriers in Hillsborough developed at final hearing: (a) that access barriers, and hence, unmet need in the service area stem from a lack of access to relevant hospice services through existing providers once a patient has entered hospice care; and (b) that access barriers, and hence, unmet need in Hillsborough, stem from a lack of outreach and education necessary to bring awareness of hospice services to Hillsborough residents so that they access hospice services in the first place.
All three applicants proposed to tailor their hospice services and programming to the particular residents of Hillsborough. But Suncoast’s proposal and conditions focused more heavily on outreach and education to bring geographically and culturally-driven awareness of the hospice benefit to patients appropriate for hospice. As noted, Suncoast also did a more comprehensive needs analysis, which allowed Suncoast to focus its CON conditions on those segments of the Hillsborough population most in need of improved access to hospice services.
Among the applicants, Suncoast alone proposes to implement a dedicated pediatric hospice program, which is not currently offered in Hillsborough. Dr. Stacy Orloff, accepted as an expert in pediatric hospice care, confirmed in her testimony the following:
Suncoast's pediatric hospice program includes a dedicated integrated care team comprised of a fulltime pediatric nurse with more than 25 years’ hospice experience, a pediatric medical director, a full-time licensed social worker, a team assistant, a
volunteer coordinator and a pediatric team leader. Additionally, there are part-time staff members including LPNs and CNAs with dedicated pediatric hospice experience. This is an important distinction, as many hospice programs claim to provide pediatric hospice services, but oftentimes they utilize the same care teams that provide care for adult patients.
Suncoast's longstanding expertise and network of community partners for its pediatric program will ensure that the proposed pediatric hospice program fits the specific needs of the pediatric patient and family. Suncoast will use a combination of existing staff and PRN assistance until the pediatric caseload is large enough to warrant addition of new team members in Hillsborough County. Suncoast's existing pediatric hospice team has a strong relationship with St. Joseph's Children's Hospital,
which it will utilize to expand its network of pediatric providers to increase hospice awareness and utilization in Hillsborough.
Suncoast conditions its application on purchasing a $350,000 mobile van, the “Empath Mobile Access to Care,” to conduct mobile outreach activities in Hillsborough for ethnic-specific programming and outreach to
homeless. VITAS also conditioned its application on a “Mobile Hospice
Education Unit” van, and included photos of similar vans that it operates in other service areas. The Suncoast van will be staffed by a full-time bilingual LPN and a full-time social worker prepared to discuss advanced care planning and education, and will be equipped with telehealth technology capable of linking with the Empath Care Navigation Office. In contrast, VITAS did not explain how its van will be staffed, or whether any of the staff will be clinicians. Indeed, from the photos included in the application, the van appears to be more of a mobile advertisement for VITAS, than it does a tool for hospice education and outreach.
VITAS attempted to differentiate its proposal by pointing to disease- specific programming for patients with pulmonary and cardiac conditions, Alzheimer’s, and sepsis. But, Cornerstone and Suncoast are also capable of caring for patients with those conditions. And, specific to sepsis programming—a feature of VITAS’s presentation at final hearing— septicemia is not usually the primary reason a patient enrolls in hospice. Instead, sepsis is a complication of another terminal condition for which a patient is admitted to hospice, and therefore does not represent a need unto itself.
VITAS further attempted to differentiate its program by pointing to its comparatively longer average length of stay, arguing that longer average lengths of stay are indicative of greater access and quality. However, this notion was countered by credible testimony that longer lengths of stay, along with a higher percentage of live discharges and higher 30-day readmission rate, may, alternatively, represent targeting of patients unlikely to experience the types of access barriers at which CON is aimed, and may be indicative of lower quality and higher costs. And VITAS’s healthcare planning expert did not conduct an analysis, and offered no opinion, as to the
specific cause of VITAS’s comparatively longer length of stay. Taken together, the evidence was inconclusive as to whether longer lengths of stay reflect access enhancements generally, or as applied to VITAS’s proposal.
Rule 59C-1.0355(2)(f) provides that hospice services must be available “to all terminally ill persons and their families without regard to age, gender, . . . cost of therapy, ability to pay, or life circumstances.”
Consistent with rule, hospice providers must provide care to Medicaid patients. Medicaid pays essentially the same for hospice care as
does Medicare. As such, there is no financial disincentive to accept Medicaid hospice patients.
VITAS and Cornerstone both have a history of providing Medicare, Medicaid, and medically-indigent care; Suncoast’s affiliated entity, Suncoast Pinellas, has a similar history, and all three applicants propose to provide care to Medicare, Medicaid, and the medically indigent.
While the three applicants project that they will experience different payor mixes for Medicaid and indigent patients, there is no evidence in this record that any of the applicants have discriminated against such patients in the past, or would do so in their Hillsborough program. Cornerstone argues that it is entitled to preference over Suncoast because Cornerstone’s projected percentage of Medicaid and medically indigent admissions (6%) is almost double that of Suncoast (3.3%). However, Cornerstone’s projection is exactly that: a projection of the payor mix it may experience in its new program. Significantly, Cornerstone did not commit to a 6% Medicaid/indigent payor mix within its CON conditions, and therefore that level of Medicaid/indigent admissions is unenforceable. Rather than the applicants’ projected payor mixes, what is significant are plans to reach out to the Medicaid and charity care population to improve their knowledge about, and use of, hospice
services. Suncoast’s application presents a specific plan for doing exactly that. All of the applicants have proposed programs for outreach to financially disadvantaged communities within Hillsborough, and none of the applicants are entitled to preference under this criterion.
Each applicant expressed a commitment to provide hospice services to populations with unmet needs. And to a greater or lesser extent, each applicant conducted an analysis of the specific populations with unmet needs in Hillsborough. No evidence was presented to establish that care for hospice
patients with the varying identified conditions or within the various demographic groups is not available in Hillsborough. Rather, the evidence demonstrates that patients are not accessing hospice services, despite their availability to residents of Hillsborough. Among the three applicants, Suncoast best demonstrated a plan for enhancing access to quality hospice care for these populations, as well as a track record of past experience with enhancing access to quality hospice services for these populations.
Each of the applicants propose to provide the inpatient care component of the hospice program through contractual arrangements, and presented testimony regarding their ability to do so. Likewise, all three applicants presented letters from entities in Hillsborough regarding their purported willingness to contract for the inpatient care component of the hospice program. However, no applicant presented non-hearsay evidence from any entity within Hillsborough regarding a willingness to contract for the inpatient care component of the hospice program. The applicants are on equal footing in terms of the ability to contract for inpatient care.
Notwithstanding its intention to provide the inpatient component of the hospice program through contractual arrangements, VITAS conditioned its application on applying for a CON to construct an inpatient hospice house within the first two years of operation. However, VITAS presented no evidence to establish the need for an additional inpatient hospice house in SA 6A, and no evidence was presented to demonstrate that an inpatient hospice house is a more cost-effective alternative to contracted beds.
The proposals by Cornerstone and Suncoast to contract for the inpatient component of the hospice program represent a better use of existing resources than that of VITAS, which will incur the expense of a freestanding
hospice house for its proposed program. On balance, this preference weighs equally in favor of Cornerstone and Suncoast, and against VITAS.
Each applicant presented evidence of a commitment to serve patients who do not have primary caregivers at home; the homeless; and patients with AIDS. However, the programs proposed by Suncoast to address the needs of these populations are more precisely targeted than those of the other applicants, and Suncoast is therefore entitled to preference.
SA 6A is comprised of a single county, Hillsborough. This preference is therefore not applicable in this case.
All three applicants propose to provide services in Hillsborough that are not specifically required or paid for by private insurance, Medicaid, or Medicare. The added services beyond those covered by private insurance, Medicaid, or Medicare as proposed by the applicants differ slightly, but on balance, weigh equally in favor of approval of each applicant.
Each of the applicants conducted an analysis of the needs of Hillsborough residents and included evidence within their applications and through testimony at final hearing regarding the consistency of their respective plans with the needs of the community. However, Suncoast’s evaluation of the needs specific to Hillsborough was more thorough, and its application is best targeted at meeting the identified needs.
Each applicant provided a detailed program description in its CON application. The elements of the program descriptions are discussed above in the context of the various statutory and rule criteria.
Ultimate Findings Regarding Comparative Review
Suncoast conducted the most comprehensive evaluation of the end of life care needs of Hillsborough residents, and developed targeted programs and services to address those needs. Those programs and services are identified as CON conditions, and are enforceable by AHCA. The depth and breadth of Suncoast’s commitments to the residents of Hillsborough exceed those of Cornerstone and VITAS.
Unlike the other applicants, Suncoast offers needed programs which are not currently available in Hillsborough, including a dedicated pediatric hospice program, and enhanced transportation options for persons living in rural areas of the county.
Suncoast and Cornerstone are comparable in terms of history of providing quality care. VITAS is inferior in this regard, as evidenced by the numerous confirmed deficiencies in recent years. Undoubtedly, VITAS has redoubled its efforts to improve quality in response to the numerous confirmed deficiencies and complaints, but based upon the record in this case, Suncoast and Cornerstone have a better history of providing quality care.
Suncoast would be able to commence operations in SA 6A more quickly than Cornerstone or VITAS. It has connections with other healthcare providers in Hillsborough and could easily transition to that adjacent geographic area.
All three proposals would enhance access to hospice services in the county, but Suncoast’s program would be the most effective at enhancing access.
A careful weighing and balancing of the statutory review criteria and rule preferences favors approval of the Suncoast application, and denial of the Cornerstone and VITAS applications.
Upon consideration of all the facts in this case, Suncoast’s
application, on balance, is the most appropriate for approval.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.
Burden of Proof
As applicants, Suncoast, Cornerstone, and VITAS have the burden of proving, by the preponderance of the evidence, entitlement to a CON. Boca Raton Artificial Kidney Ctr., Inc. v. Dep’t of HRS, 475 So. 2d 260 (Fla. 1st DCA 1985); § 120.57(1)(j), Fla. Stat.
Balancing of Applicable Statutory and Rule Criteria
The award of a CON must be based on a balanced consideration of all applicable statutory and rule criteria. Balsam v. Dep’t of HRS, 486 So. 2d 1341 (Fla. 1st DCA 1986). “[T]he appropriate weight to be given to each individual criterion is not fixed, but rather must vary on a case-by-case basis, depending upon the facts of each case.” Collier Med. Ctr., Inc. v. Dep’t of HRS, 462 So. 2d 83, 84 (Fla. 1st DCA 1985). In the present case, the weighing of criteria must be done comparatively.
An administrative hearing involving disputed issues of material fact is a de novo proceeding in which the administrative law judge independently evaluates the evidence presented. Fla. Dep’t of Transp. v. J.W.C. Co., 396 So.
2d 778, 787 (Fla. 1st DCA 1981); § 120.57(1), Fla. Stat. The Agency's preliminary decisions on CON applications, including its findings in the SAAR, are not entitled to a presumption of correctness. Id.
Pursuant to its hospice rule need methodology, the Agency determined that there is a projected need for only one new hospice program in SA 6A for the applicable planning horizon.
The existence of a numeric need pursuant to the rule creates a rebuttable presumption of need for an additional hospice program in the service area. Vitas Healthcare Corp. of Cent. Fla. v. Ag. for Health Care Admin., Case No. 04-3858CON (Fla. DOAH June 14, 2005; Fla. AHCA July 7, 2005). There was no evidence presented to rebut the presumption of need.
With the need for one hospice program presumptively established and unrebutted at the final hearing, the question in this case is which of the three applicants best identified the particular hospice needs of Hillsborough residents and best proposed to meet those needs.
Each applicant presented evidence and testimony concerning the specific needs that approval of its respective hospice program would address. Each applicant offered several conditions predicated on the award of its desired CON, and most of those conditions addressed specific needs of underserved groups and services. As detailed in the Findings of Fact, Suncoast best identified the local needs for additional hospice services in Hillsborough, and most appropriately tailored programs and services to effectively meet those needs.
Suncoast also best demonstrated established community relationships, most importantly with the HCDOH, and with several area hospitals. Consideration of the need criteria in section 408.035(1), (5), and (7) favors approval of Suncoast’s CON application. For the same reasons, the Suncoast application is entitled to preference pursuant to the factors set forth in rule 59C-1.0355(4)(e).
Suncoast alone proposed a hospice service not currently available in Hillsborough: a dedicated pediatric hospice program. Although the number of potential pediatric hospice patients is (thankfully) small, Suncoast would enhance hospice access by this population, which is currently underserved in Hillsborough.
Evidence concerning the past and proposed quality of care was heavily contested in this proceeding. However, the greater weight of the evidence established that Suncoast and Cornerstone are on equal footing when it comes to quality of care. If approved, each would offer a high quality hospice alternative in SA 6A. However, by contrast, VITAS’s CAHPS scores were significantly worse than Suncoast and Cornerstone’s. They rank among the lowest scores of any hospice provider in Florida. More concerning, VITAS’s number of substantiated deficiencies is also far greater in number than Suncoast or Cornerstone’s. When it comes to quality of care, VITAS clearly finishes third.
Based upon the totality of the circumstances and for all of the reasons stated in the Findings of Fact, on balance, the advantage goes to Suncoast over Cornerstone and VITAS.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that a final order be entered approving Suncoast Hospice of Hillsborough, LLC’s, CON No. 10605 and denying Cornerstone Hospice and Palliative Care, Inc.’s, CON No. 10602 and VITAS Healthcare Corporation of Florida’s, CON No. 10606.
DONE AND ENTERED this 26th day of March, 2021, in Tallahassee, Leon County, Florida.
COPIES FURNISHED:
D. Ty Jackson, Esquire GrayRobinson, P.A.
301 South Bronough Street, Suite 600 Post Office Box 11189
Tallahassee, Florida 32302
Seann M. Frazier, Esquire
Parker, Hudson, Rainer & Dobbs, LLP Suite 750
215 South Monroe Street Tallahassee, Florida 32301
Kristen Bond Dobson, Esquire Suite 750
215 South Monroe Street Tallahassee, Florida 32301
Marc Ito, Esquire
Parker Hudson Rainer & Dobbs, LLP 215 South Monroe Street, Suite 750
Tallahassee, Florida 32301
S
W. DAVID WATKINS Administrative Law Judge 1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Filed with the Clerk of the
Division of Administrative Hearings this 26th day of March, 2021.
Julia Elizabeth Smith, Esquire
Agency for Health Care Administration Mail Stop 3
2727 Mahan Drive
Tallahassee, Florida 32308
Stephen A. Ecenia, Esquire Rutledge, Ecenia & Purnell, P.A. Suite 202
119 South Monroe Street Tallahassee, Florida 32301
Gabriel F.V. Warren, Esquire Rutledge Ecenia, P.A.
119 South Monroe Street, Suite 202 Post Office Box 551
Tallahassee, Florida 32301
Elina Gonikberg Valentine, Esquire Agency for Health Care Administration Mail Stop 7
2727 Mahan Drive
Tallahassee, Florida 32308
Amanda Marci Hessein, Esquire Rutledge Ecenia, P.A.
Suite 202
119 South Monroe Street Tallahassee, Florida 32301
Allison Goodson, Esquire GrayRobinson, P.A.
Post Office Box 11189 Tallahassee, Florida 32302
Maurice Thomas Boetger, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308
Richard J. Shoop, Agency Clerk
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308
James D. Varnado, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308
Thomas M. Hoeler, Esquire
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308
Jonathan L. Rue, Esquire Parker, Hudson, Rainer and Dobbs, LLC
Suite 3600
303 Peachtree Street Northeast Atlanta, Georgia 30308
D. Carlton Enfinger, Esquire
Agency for Health Care Administration Mail Stop 7
2727 Mahan Drive
Tallahassee, Florida 32308
Simone Marstiller, Secretary
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1
Tallahassee, Florida 32308
Shena L. Grantham, Esquire
Agency for Health Care Administration Building 3, Room 3407B
2727 Mahan Drive
Tallahassee, Florida 32308
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 |
|---|---|---|
| Jun. 02, 2021 | Agency Final Order | r 
STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION 
CORNERSTONE HOSPICE AND PALLIATIVE CARE, INC., 
Petitioner, 
V. 
STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, 
Respondent. 
VITAS HEALTHCARE CORPORATION OF FLORIDA, 
Petitioner, 
V. 
STATE OF FLORIDA, AGENCY FOR 
HEALTH CARE ADMINISTRATION, 
Respondent. 
SUNCOAST HOSPICE OF HILLSBOROUGH, LLC, 
Petitioner, 
u 
CORNERSTONE HOSPICE AND 
PALLIATIVE CARE, INC.; and VITAS 
HEALTHCARE CORPORATION OF 
FLORIDA, 
Respondents. 
2 iJUN-2A Il 2 
CASE NO. 20-171 ICON AHCA NO. 2020004573 
FOF-OLC
RENDITION NO.: 
AHCA-aj-5_44-
CASE NO. 20-1713CON AHCA NO. 2020004562 
CASE NO. 20-1733CON AHCA NO. 2020005324 
FINAL ORDER 
This case was referred to the Division of Administrative Hearings (DOAH) where the assigned Administrative Law Judge (ALJ), W. David Watkins, conducted a fonnal administrative hearing. At issue in this proceeding is whether the Certificate of Need ("CON") applications filed by Cornerstone Hospice and Palliative Care, Inc. ("Cornerstone''), Suncoast Hospice of Hillsborough, LLC ("Suncoasf'), and VITAS Healthcare Corporation of Florida ("VIT AS") satisfY the applicable statutory and rule review criteria sufficiently to warrant approval, and, if so, which of the three applications, on balance, best meets the applicable criteria for approval. The Recommended Order entered on March 26, 2021 is attached to this final order and incorporated herein by reference. 
RULINGS ON EXCEPTIONS 
Cornerstone and VITAS filed exceptions to the Recommended Order, and Suncoast and 
the Agency filed responses to Cornerstone and VITAS' exceptions. 
In determining how to rule upon Cornerstone and VIT AS' exceptions and whether to 
adopt the ALJ's Recommended Order in whole or in part, the Agency must follow Section 
120.57(1)(1), Florida Statutes, which provides in pertinent part: 
The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction. When rejecting or modifYing such conclusion of law or interpretation of administrative rule, the agency must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified. Rejection or modification of conclusions of law may not fonn the basis for rejection or modification of findings of fact. The agency may not reject or modifY the findings of fact unless the agency first detennines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent 
substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements oflaw.... § 120.57(1){/), Fla. Stat. Additionally, "[t]he final order shall include an explicit ruling on each exception, but an agency need not rule on an exception that does not clearly identifY the disputed portion of the recommended order by page number or paragraph, that does not identifY the legal basis for the exception, or that does not include appropriate and specific citations to the record." § 120.57( 1 )(k), Fla. Stat. In accordance with these legal standards, the Agency makes the following rulings on Cornerstone and VIT AS' exceptions: 
Cornerstone's Exceptions 
In Section I of its Exceptions, Cornerstone takes exception to Paragraphs 218, 220, 227, 234, 243, 252, 256-258, 266, 267, and 270 of the Recommended Order, arguing these paragraphs "incorrectly find, or are based in material part on the incorrect finding, that Cornerstone failed to assess the needs in [Service Area] 6A" and are not based on competent, substantial evidence. To the extent these paragraphs are comprised of findings of fact, the findings of fact are all supported by competent, substantial record evidence. See Transcript, Volume 1, Pages 78-82 and 85-98; Transcript, Volume 2, Pages 234-254; Transcript, Volume 3, Pages 307-308, 311, 315-317, and 319; Transcript, Volume 4, Pages 522-532; Transcript, Volume 5, Pages 657-658, 671, and 681-682; Transcript, Volume 7, Pages 871-875; Transcript, Volume 10, Pages 12971313 and 1345-1347; Transcript, Volume 13, Pages 1708-1709, 1714-1716, 1721-1722, 1809, and 1824; Transcript, Volume 32, Pages 4679-4682; Composite Exhibit 3 at Pages 9150-9187 and 9305-9312; Suncoast Exhibits 3 and 4; Cornerstone Exhibit 2. Thus, the Agency is unable to reject or modifY them. See § 120.57(1)(/), Fla. Stat.; Heifetz v. Department of Business Regulation, 4 75 So. 2d 1277, 1281 (Fla. I st DCA 1985) (holding that an agency "may not reject the hearing officer's finding [of fact] unless there is no competent, substantial evidence from 
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which the finding could reasonably be inferred"). To the extent these paragraphs contain conclusions of law, the Agency finds that, while it has substantive jurisdiction over the conclusions of law in these paragraphs, the ALI's conclusions of law are reasonable and should not be disturbed. Therefore, for all the reasons stated above, the Agency denies Section I of Cornerstone's Exceptions. 
In Section II of its Exceptions, Cornerstone takes exception to Paragraphs 93, 226, 234, 235, 243, 250, 252, 253, 256-258, 266-268, and 270 of the Recommended Order, arguing these paragraphs "incorrectly find, or are based in material part on the incorrect finding, that Suncoast had the best plan for serving the unmet needs in [Service Area] 6A" and are not based on competent, substantial evidence. To the extent these paragraphs are comprised of findings of fact, the findings of fact are all supported by competent, substantial record evidence. See Transcript, Volume 1, Pages 78-82 and 85-98; Transcript, Volume 2, Pages 185-186 and 234254; Transcript, Volume 3, Pages 307-308, 311, 315-317, and 319; Transcript, Volume 4, Pages 522-532; Transcript, Volume 5, Pages 657-658, 671, and 681-682; Transcript, Volume 7, Pages 871-875; Transcript, Volume 10, Pages 1297-1313, 1343, 1345-1347, and 1423; Transcript, Volume 13, Pages 1712-1714, 1721-1722, 1789, 1809, 1824, and 1829; Transcript, Volume 32, Pages 4679-4682; Composite Exhibit 3 at Pages 9150-9187 and 9305-9312; Suncoast Exhibits 3 and 4; Cornerstone Exhibit 2. Thus, the Agency cannot reject or modify them. See § 120.57(1)(1), Fla. Stat.; Heifetz, 475 So. 2d at 1281. To the extent these paragraphs contain conclusions of law, the Agency finds that, while it has substantive jurisdiction over the conclusions of law in these paragraphs, the ALI's conclusions of law are reasonable and should not be disturbed. Therefore, for all the reasons stated above, the Agency denies Section II of Cornerstone's Exceptions. 
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In Section III of its Exceptions, Cornerstone takes exception to Paragraphs 227, 256-258, 
266-268, and 270 of the Recommended Order, arguing these paragraphs "incorrectly find, or are based in material part on the incorrect findings, that Cornerstone failed to consider comparable start-ups in Florida when preparing its application for the 6A CON" and are not based on competent, substantial evidence. To the extent these paragraphs are comprised of findings of fact, the findings of fact are all supported by competent, substantial record evidence. See Transcript, Volume 1, Pages 78-82 and 85-98; Transcript, Volume 2, Pages 234-254; Transcript, Volume 3, Pages 307-308,311,315-317, and 319; Transcript, Volume 4, Pages 522-532; Transcript, Volume 5, Pages 657-658, 671, and 681-682; Transcript, Volume 7, Pages 871-875; Transcript, Volume 10, Pages 1297-1313 and 1345-1347; Transcript, Volume 13, Pages 1708, 1716, 1721-1722, 1809, 1824, and 1846; Transcript, Volume 32, Pages 4679-4682; Composite Exhibit 3 at Pages 9150-9187 and 9305-9312; Suncoast Exhibits 3 and 4; Cornerstone Exhibit 2. Thus, the Agency is not at liberty to reject or modify them. See § 120.57(1 )(!), Fla. Stat.; Heifetz, 475 So. 2d at 1281. To the extent these paragraphs contain conclusions of law, the Agency finds that, while it has substantive jurisdiction over the conclusions of law in these paragraphs, the ALJ's conclusions oflaw are reasonable and should not be disturbed. Therefore, 
for all the reasons stated above, the Agency denies Section III of Cornerstone's Exceptions. 
In Section IV of its Exceptions, Cornerstone takes exception to Paragraphs 63-68, 221, 222, 255-258, 266-268, and 270 of the Recommended Order, arguing these paragraphs "are based on letters of support that remained uncorroborated hearsay.'' Cornerstone is asking the Agency to overturn the ALJ's decision to admit certain evidence in this matter, as well as the ALJ's detennination of the relevancy of that evidence. Both issues are clearly outside the 
Agency's substantive jurisdiction. See Barfield v. Department of Health, 805 So. 2d 1008, 1011 
(Fla. 1st DCA 2002). Therefore, the Agency must deny Section IV ofCornerstone's Exceptions. 
In Section V of its Exceptions, Cornerstone takes exception to Paragraphs 221, 256-258, 266-268, and 270 of the Recommended Order, arguing these paragraphs "incorrectly find, or are based in material part on the incorrect finding, that Cornerstone failed to obtain letters of support from any hospitals" and are not based on competent, substantial evidence. To the extent these paragraphs are comprised of findings of fact, the findings of fact are all supported by competent, substantial record evidence. See Transcript, Volume 1, Pages 78-82 and 85-98; Transcript, Volume 2, Pages 234-254; Transcript, Volume 3, Pages 307-308, 311, 315-317, and 319; Transcript, Volume 4, Pages 522-532; Transcript, Volume 5, Pages 657-658, 671, and 681-682; Transcript, Volume 7, Pages 871-875; Transcript, Volume 10, Pages 1297-1313 and 1345-1347; Transcript, Volume 12, Pages 1629-1631; Transcript, Volume 13, Pages 1708, 1716, 1721-1722, 1809, 1824, 1846, and 1850; Transcript, Volume 14, Page 1926; Transcript, Volume 32, Pages 4679-4682; Composite Exhibit 3 at Pages 9150-9187 and 9305-9312; Suncoast Exhibits 3 and 4; Cornerstone Exhibit 2. Thus, the Agency is prohibited from rejecting or modifying them. See § 120.57(1)(!), Fla. Stat.; Heifetz, 475 So. 2d at 1281. To the extent these paragraphs contain conclusions of law, the Agency finds that, while it has substantive jurisdiction over the conclusions of law in these paragraphs, the AU's conclusions of law are reasonable and should not be disturbed. Therefore, for all the reasons stated above, the Agency denies Section V of Cornerstone's Exceptions. 
VITAS' Exceptions 
In its first exception, VIT AS takes exception to Paragraph 73 of the Recommended Order, arguing the findings offact therein are not based on competent, substantial evidence. The 
findings of fact in Paragraph 73 of the Recommended Order are based on competent, substantial 
record evidence. See Transcript, Volume 4, Pages 512-514; Transcript, Volume 5, at Pages 611617, 619-620, and 636; Composite Exhibit 3 at Pages 9150-9151. Thus, the Agency is prohibited from rejecting or modifying them. See§ 120.57(1)(1), Fla. Stat.; Heifetz, 475 So. 2d at 1281. Therefore, the Agency denies VIT AS' first exception. 
In its second exception, VIT AS takes exception to Paragraph 86 of the Recommended Order, arguing the last sentence of the paragraph is not supported by competent, substantial evidence. Contrary to VITAS' argument, the finding of fact in the last sentence of Paragraph 86 of the Recommended Order is based on competent, substantial record evidence. See Transcript, Volume 5, Pages 641-642, 645, 646-647, 653-654, 656, 658, 671-674, 682, and 683-684; Transcript, Volume 32, Page 4762. Thus, the Agency cannot reject or modify it. See § 120.57(1)(!), Fla. Stat.; Heifetz, 475 So. 2d at 1281. Therefore, the Agency denies VITAS' second exception. 
In its third exception, VIT AS takes exception to Paragraph 107 and Footnote 8 of the Recommended Order, arguing they are not supported by competent, substantial evidence. Despite VIT AS' argument to the contrary, the findings of fact in Paragraph 107 and Footnote 8 of the Recommended Order are based on competent, substantial record evidence. See Transcript, Volume 1, Page 97; Transcript, Volume 2, Pages 231-232, 255, and 290-291; Composite Exhibit 3 at Page 9312. Thus, the Agency is not at liberty to reject or modify them. See § 120.57( 1 )(!), Fla. Stat.; Heifetz, 475 So. 2d at 1281. Therefore, the Agency denies VIT AS' third exception. 
In its fourth exception, VIT AS takes exception to Paragraph 161 of the Recommended Order, arguing the portions ofthe paragraph characterizing Kathy Platt's testimony are not based on competent, substantial evidence. The findings of fact in Paragraph 161 of the Recommended 
Order are based on competent, substantial record evidence. See Transcript, Volume 20, Pages 
2795-2796; Transcript, Volume 21, Pages 2959-2960; Transcript, Volume 31, Pages 4520-4522; Composite Exhibit 1 at Pages 17-18, Vitas Exhibit 36 at Page 1369. Thus, the Agency is not at liberty to reject or modify them. See § 120.57(1 )(!), Fla. Stat.; Heifetz, 475 So. 2d at 1281. Therefore, the Agency denies VIT AS' fourth exception. 
In its fifth exception, VITAS takes exception to Paragraph 166 of the Recommended Order, arguing it is not based on competent, substantial evidence and directly contradicts both the evidentiary record and the findings of ALJ Newton in Hospice of the Florida Suncoast v. AHCA, DOAH Case No. 18-4986CON (AHCA 2019). First, the findings of fact in Paragraph 166 of the Recommended Order are based on competent, substantial record evidence. See Transcript, Volume 11, Page 1539; Transcript, Volume 12, Pages 1641, 1649, and 1660; Composite Exhibit 4 at Pages 179-180; 42 C.F .R § 418.312; section 400.60501, Florida Statutes. Thus, the Agency cannot reject or modify them. See § 120.57(1 )(!), Fla. Stat.; Heifetz, 475 So. 2d at 1281. Second, VIT AS' argument concerning the applicability of Hospice of the Florida Suncoast v. AHCA, DOAH Case No. 18-4986CON (AHCA 2019) to this case is misplaced. As Sun coast points out in its response to VIT AS' exceptions, the records of the two cases are markedly different, as are the factual findings. Indeed, in Hospice of the Florida Suncoast, the ALJ noted the lack of record evidence concerning CAHPS and HIS scores. See Paragraph 158 of the Hospice of the Florida Suncoast recommended order. Here, there is extensive record evidence concerning the validity of CAHPS and HIS scores as noted supra. Therefore, for all the reasons noted above, the Agency denies VIT AS' fifth exception. 
In its sixth exception, VITAS takes exception to Paragraph 168 of the Recommended Order, arguing it is not supported by competent, substantial evidence and directly contradicts 
both the evidentiary record and the findings of ALJ Newton in Hospice of the Florida Suncoast 
v. AHCA, DOAH Case No. 18-4986CON (AHCA 2019). First, the findings of fact in Paragraph 168 of the Recommended Order are based on competent, substantial evidence. See Transcript, Volume 24, Pages 3510-3511; Composite Exhibit 3 at Page 9272. Thus, the Agency is not permitted to reject or modify them. See§ 120.57(1)(!), Fla. Stat.; Heifetz, 475 So. 2d at 1281. Second, as noted in the ruling on VITAS' fifth exception supra, which is hereby incorporated by reference, the final order in Hospice of the Florida Suncoast v. AHCA, DOAH Case No. 184986CON (AHCA 2019) is not applicable to this matter. Therefore, the Agency denies VITAS' sixth exception. 
In its seventh exception, VIT AS takes exception to Paragraph 169 of the Recommended Order, arguing the first sentence ofthe paragraph is not based on competent, substantial evidence directly contradicts both the evidentiary record and the findings of ALI Newton in Hospice of the Florida Suncoast v. AHCA, DOAH Case No. 18-4986CON (AHCA 2019). First, the findings of fact in Paragraph 169 of the Recommended Order are based on competent, substantial evidence. See Transcript, Volume 24, Pages 3510-3511; Composite Exhibit 3 at Page 9272. Thus, the Agency is not at liberty to reject or modify them. See § 120.57(1 )(/), Fla. Stat.; Heifetz, 475 So. 2d at 1281. Second, as noted in the ruling on VITAS' fifth exception supra, which is hereby incorporated by reference, the final order in Hospice of the Florida Suncoast v. AHCA, DOAH Case No. 18-4986CON (AHCA 2019) is not applicable to this matter. Therefore, the Agency denies VIT AS' seventh exception. 
In its eighth exception, VIT AS takes exception to Paragraph 171 of the Recommended Order, arguing it is not based on competent, substantial evidence and directly contradicts both the evidentiary record and the findings of ALI Newton in Hospice of the Florida Suncoast v. 
AHCA, DOAH Case No. 18-4986CON (AHCA 2019). First, the findings of fact in Paragraph 
171 of the Recommended Order are based on competent, substantial record evidence. See Suncoast Exhibit 42, which is incorporated into Paragraph 170 of the Recommended Order, to which VITAS did not take exception. Thus, the Agency is not at liberty to reject or modify them. See§ 120.57(1)(1), Fla. Stat.; Heifetz, 475 So. 2d at 1281. Second, as noted in the ruling on VIT AS' fifth exception supra, which is hereby incorporated by reference, the final order in Hospice ofthe Florida Suncoast v. AHCA, DOAH Case No. 18-4986CON (AHCA 2019) is not applicable to this matter. Therefore, the Agency denies VIT AS' eighth exception. 
In its ninth exception, VITAS takes exception to Paragraph 172 of the Recommended Order, arguing the last sentence of the paragraph is not based on competent, substantial evidence and directly contradicts both the evidentiary record and the findings of ALJ Newton in Hospice of the Florida Suncoast v. AHCA, DOAH Case No. 18-4986CON (AHCA 2019). First, the findings of fact in Paragraph 172 are based on competent, substantial evidence. See Suncoast Exhibits 34 and 42; Cornerstone Exhibit 17. Thus, the Agency is prohibited from rejecting or modifying them. See§ 120.57(1)(1), Fla. Stat.; Heifetz, 475 So. 2d at 1281. Second, as noted in the ruling on VIT AS' fifth exception supra, which is hereby incorporated by reference, the final order in Hospice of the Florida Suncoast v. AHCA, DOAH Case No. 18-4986CON (AHCA 20 19) is not applicable to this matter. Therefore, the Agency denies VIT AS' ninth exception. 
In its tenth exception, VIT AS takes exception to Paragraph 173 of the Recommended Order, arguing the third and fourth sentences of the paragraph are not supported by competent, substantial evidence and directly contradicts both the evidentiary record and the clear findings of ALJ Newton in Hospice of the Florida Suncoast v. AHCA, DOAH Case No. 18-4986CON (AHCA 2019). First, the findings of fact in Paragraph 173 of the Recommended Order are based 
on competent, substantial record evidence. See Transcript, Volume 13, Page 1778; Transcript, 
Volume 17, Pages 2247,2254-2256,2259-2261,2298-2306 and 2310; Suncoast Exhibits 34 and 42; Cornerstone Exhibit 17. Thus, the Agency cannot reject or modify them. See§ 120.57(1){!), Fla. Stat.; Heifetz, 475 So. 2d at 1281. Second, as noted in the ruling on VlTAS' fifth exception supra, which is hereby incorporated by reference, the final order in Hospice of the Florida Suncoast v. AHCA, DOAH Case No. 18-4986CON (AHCA 2019) is not applicable to this matter. Therefore, the Agency denies VIT AS· tenth exception. 
In its eleventh exception, VITAS takes exception to Paragraph 174 of the Recommended Order, arguing the first sentence of the paragraph is not supported by competent, substantial evidence and directly contradicts both the record and a policy decision by the Agency to consider Hospice Item Set ("HIS") scores as a quality indicator. The findings of fact in Paragraph 174 of the Recommended Order are based on competent, substantial record evidence. See Transcript, Volume 12, Page 1652; Composite Exhibit 56, at Pages 73-74. Thus, the Agency cannot reject or modify them. See§ 120.57(1)(1), Fla. Stat.; Heifetz, 475 So. 2d at 1281. Furthermore, section 400.60501, Florida Statutes, requires the Agency to consider HIS scores when evaluating hospice programs. Therefore, for all the reasons stated above, the Agency denies VIT AS' eleventh exception. 
In its twelfth exception, VITAS takes exception to Paragraph 177 of the Recommended Order, arguing it is not supported by competent, substantial evidence and directly contradicts the evidentiary record. The findings of fact in Paragraph 177 of the Recommended Order are based on competent, substantial evidence. See Transcript, Volume 10, Pages 1333-1334; Transcript, Volume 17, Pages 224 7 and 231 0; Transcript, Volume 32, Page 4664; VITAS Exhibit 72, Suncoast Exhibit 36. Thus, the Agency is not permitted to reject or modify them. See § 
120.57(1 ){!), Fla. Stat.; Heifetz, 475 So. 2d at 1281. Therefore, the Agency denies VITAS' 
twelfth exception. 
In its thirteenth exception, VITAS takes exception to Paragraph 178 of the Recommended Order, arguing it is not supported by competent, substantial evidence and directly contradicts the evidentiary record. The findings of fact in Paragraph 178 of the Recommended Order are based on competent, substantial evidence. See Transcript, Volume 24, Pages 34083409; Transcript, Volume 27, Page 3987; Transcript, Volume 31, Page 4523; Transcript, Volume 32, Page 4732. Thus, the Agency is not at liberty to reject or modify them. See § 120.57(1 )(/), Fla. Stat.; Heifetz, 475 So. 2d at 1281. Therefore, the Agency denies VITAS' thirteenth exception. 
In its fourteenth exception, VITAS takes exception to Paragraph 182 of the Recommended Order, arguing it is not supported by competent, substantial evidence and directly contradicts the Agency's policy decision to compare complaints among applicants. The findings of fact in Paragraph 182 of the Recommended Order are based on competent, substantial record evidence. See Transcript, Volume 31, Pages 4512-4516 and 4585; Transcript, Volume 33, Pages 4742-4743; Composite Exhibit 56 at Page 166. Thus, the Agency is not at liberty to reject or modify them. See § 120.57(1)(/), Fla. Stat.; Heifetz, 475 So. 2d at 1281. Additionally, the Agency representative testified that the Agency does consider complaints among applicants as part of its decision-making process. See Transcript, Volume 32, Page 4732. Therefore, the Agency denies VIT AS' fourteenth exception. 
In its fifteenth exception, VITAS takes exception to Paragraph 183 of the Recommended Order, arguing it is not supported by competent, substantial evidence and contradicts Agency policy. The findings of fact in Paragraph 183 of the Recommended Order are based on competent, substantial evidence. See Transcript, Volume 25, Pages 3625 -3634; Transcript, Volume 26, Pages 3731-3738; VITAS Exhibits 95a-95e. Thus, the Agency cannot reject or modify them. See§ 120.57(1)(1), Fla. Stat.; Heifetz, 475 So. 2d at 1281. In addition, the Agency representative testified that the Agency does consider complaints among applicants as part of its decision-making process. See Transcript, Volume 32, Page 4732. Therefore, the Agency denies VIT AS' fifteenth exception. 
In its sixteenth exception, VIT AS takes exception to Paragraph 184 of the Recommended Order, arguing it is not supported by competent, substantial evidence and contradicts Agency policy. The findings of fact in Paragraph 184 of the Recommended Order are based on competent, substantial evidence. See Transcript, Volume 26, Pages 3738-3739; VITAS Exhibits 95a -95e; Cornerstone Exhibits 51-60. Thus, the Agency cannot reject or modify them. See § 120.57(1)(1), Fla. Stat.; Heifetz, 475 So. 2d at 1281. In addition, the Agency representative testified that the Agency does consider complaints among applicants as part of its decisionmaking process. See Transcript, Volume 32, Page 4732. Therefore, the Agency denies VITAS' sixteenth exception. 
In its seventeenth exception, VITAS takes exception to Paragraph 185 of the Recommended Order, arguing the first sentence of the paragraph is not supported by competent, substantial evidence and contradicts Agency policy. Based on the Agency's rulings on VITAS' thirteenth -sixteenth exceptions supra, which are hereby incorporated by reference, the Agency denies VIT AS' seventeenth exception. 
In its eighteenth exception, VITAS takes exception to Paragraph 186 of the Recommended Order, arguing the paragraph is not based on competent, substantial evidence and contradicts Agency policy. Based on the Agency's rulings on VITAS · fifth -sixteenth 
exceptions supra, which are all hereby incorporated by reference, the Agency denies VIT AS's 
eighteenth exception. 
In its nineteenth exception, VITAS takes exception to Paragraph 229 of the Recommended Order, arguing "it includes assumptions and speculation that are not supported by competent, substantial evidence." The findings of fact in Paragraph 229 of the Recommended Order are based on competent, substantial evidence. See Transcript, Volume 10, Pages 13351337; Transcript, Volume 18, Pages 2434-2435; Suncoast Exhibit 42 at Pages 12204-12205; Cornerstone Exhibit 70; Agency Exhibit 2. Thus, the Agency cannot reject or modify them. See § 120.57(1 )(!), Fla. Stat.; Heifetz, 475 So. 2d at 1281. Therefore, the Agency denies VITAS' nineteenth exception. 
In its twentieth exception, VIT AS takes exception to Paragraph 231 of the Recommended Order, arguing the paragraph "inappropriately dismisses the testimony presented during the final hearing by VITAS witnesses evidencing VIT AS' ability to meet the hospice needs of Hillsborough residents." The findings of fact in Paragraph 231 of the Recommended Order are based on competent, substantial record evidence. See Transcript, Volume 22, Pages 3077-3080 and 3086-3090. Thus, the Agency cannot disturb them. See § 120.57(1 )(!), Fla. Stat.; Heifetz, 475 So. 2d at 1281. The Agency is also not permitted to re-weigh the evidence to make different findings of fact from those of the ALJ, as VITAS would like. See Heifetz, 475 So. 2d at 1281 ("The agency is not authorized to weigh the evidence presented, judge credibility of witnesses, or otherwise interpret the evidence to fit its desired ultimate conclusion."). Therefore, the Agency denies VIT AS' twentieth exception. 
In its twenty-first exception, VITAS takes exception to Paragraph 236 of the Recommended Order, arguing the last sentence of the paragraph is not based on competent, 
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substantial evidence and directly conflicts with final hearing testimony. The finding of fact in 
the last sentence of Paragraph 236 of the Recommended Order is based on competent, substantial record evidence. See Transcript, Volume 11, Pages 1811-1812; Composite Exhibit I at Pages 83-84. Thus, the Agency cannot disturb them. See§ I20.57(1 )(/),Fla. Stat.; Heifetz, 475 So. 2d at I281. Therefore, the Agency denies VITAS' twenty-first exception. 
In its twenty-second exception, VIT AS takes exception to Paragraph 23 7 of the Recommended Order, arguing the last sentence of the paragraph is not based on competent, substantial evidence. Contrary to VIT AS' argument, the finding of fact in the last sentence of Paragraph 237 of the Recommended Order is based on competent, substantial record evidence. See Transcript, Volume 4, Page 533; Transcript, Volume 32, Page 4685. Thus, the Agency is not pennitted to disturb it. See§ I20.57(1)(/), Fla. Stat.; Heifetz, 475 So. 2d at I281. Therefore, the Agency denies VIT AS' twenty-second exception. 
In its twenty-third exception, VITAS takes exception to Paragraph 238 of the Recommended Order, arguing it is not supported by competent, substantial evidence. The findings of fact in Paragraph 238 of the Recommended Order are based on competent, substantial record evidence. See Transcript, Volume I3, Pages I780-I78I and I778-I783. Thus, the Agency is prohibited from rejecting or modifying them. See § I20.57(1 )(l), Fla. Stat.; Heifetz, 4 7 5 So. 2d at I28I. Therefore, the Agency denies VIT AS· twenty-third exception. 
In its twenty-fourth exception, VITAS takes exception to Paragraph 245 of the Recommended Order, arguing it is not based on competent, substantial evidence. The findings of fact in Paragraph 245 of the Recommended Order are based on competent, substantial record evidence. See Transcript, Volume 20, Pages 2797-2798; Transcript, Volume 33, Page 4777; Composite Exhibit I at Page 2I 0. Thus, the Agency is not at liberty to reject or modifY them. 
15 
See§ 120.57(1)(/), Fla. Stat.; Heifetz, 475 So. 2d at 1281. Therefore, the Agency denies VITAS' 
twenty-fourth exception. 
In its twenty-fifth exception, VITAS takes exception to Paragraph 246 of the Recommended Order, arguing it is not based on competent, substantial evidence. The findings of fact in Paragraph 246 of the Recommended Order are based on competent, substantial record evidence. See Transcript, Volume 20, Pages 2797-2798; Transcript, Volume 33, Page 4777. Thus, the Agency cannot reject or modify them. See § 120.57(1 )(/), Fla. Stat.; Heifetz, 475 So. 2d at 1281. Therefore, the Agency denies VITAS' twenty-fifth exception. 
In its twenty-sixth exception, VITAS takes exception to Paragraph 254 of the Recommended Order, arguing the conclusions of law therein are based on findings of fact that are not supported by competent, substantial evidence and contradict Agency policy. Based on the Agency's rulings on VIT AS' fifth -sixteenth exceptions supra, which are hereby incorporated by reference, the Agency denies VIT AS' twenty-sixth exception. 
In its twenty-seventh exception, VITAS takes exception to Paragraph 268 of the Recommended Order, arguing the conclusions of law therein are based on findings of fact that are not supported by competent, substantial evidence. Paragraph 268 of the Recommended Order is based on competent, substantial record evidence. See Transcript, Volume 5, Pages 641642, 645, 646-647, 653-654, 656, 658, 682, and 683-684; Transcript, Volume 32, Page 4762; Composite Exhibit 3 at Page 9307. Additionally, the Agency finds that the AU's conclusion of law that Suncoast would enhance hospice access for pediatric patients is reasonable. Therefore, the Agency denies VIT AS' twenty-seventh exception. 
In its twenty-eighth exception, VITAS takes exception to Paragraph 269 of the Recommended Order, arguing the conclusions of law therein are based on findings of fact that 
16 
are not supported by competent, substantial evidence and contradict Agency policy. Based on the Agency's rulings on VIT AS' fifth -sixteenth exceptions supra, which are hereby incorporated by reference, the Agency denies VIT AS' twenty-eighth exception. 
FINDINGS OF FACT 
The Agency hereby adopts the findings of fact set forth in the Recommended Order. 
CONCLUSIONS OF LAW 
The Agency hereby adopts the conclusions of law set forth in the Recommended Order. 
ORDER 
Based upon the foregoing, Suncoasfs CON Application No. 10605 is hereby granted, Cornerstone's CON Application No. 10602 is hereby denied, and VITAS' CON Application No. I 0606 is hereby denied. The parties shall govern themselves accordingly. 
DONE and ORDERED this j.5tday of :rIAJ\ e._,. , 2021, in Tallahassee, Florida. 
SIMONE MARSTILLER, SECRETARY AGENCY FOR HEALTH CARE ADMINISTRATION 
NOTICE OF RIGHT TO JUDICIAL REVIEW 
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH THE FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA 
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APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF 
RENDITION OF THE ORDER TO BE REVIEWED. 
CERTIFICATE OF SERVICE 
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has 
~ 
been furnished by the method indicated to the persons named below on this ~day of 
-----\:~--7'"'""'-.
~'-""==------' 2021. 
OOP, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308-5403 (850) 412-3630 
COPIES FURNISHED TO: 
Honorable W. David Watkins Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (via electronic filing) 
D. Ty Jackson, Esquire Allison Goodson, Esquire Gray Robinson, P .A. 301 South Bronaugh Street, Suite 600 Post Office Box 11189 Tallahassee, Florida 32302 (via electronic mail to ty.jackson@gray-robinson.com and allison.goodson@gray-robinson.com) 
Stephen A. Ecenia, Esquire Gabriel F.V. Warren, Esquire Amanda M. Hessein, Esquire Rutledge Ecenia, P .A. 119 South Monroe Street, Suite 202 Tallahassee, Florida 32301 (via electronic mail to steve@rutledge-ecenia.com, gwarren@rutledge-ecenia.com, and amanda@rutledge-ecenia.com) 
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Seann M. Frazier, Esquire Marc Ito, Esquire Kristen Bond Dobson, Esquire Parker, Hudson, Rainer & Dobbs, LLP 215 South Monroe Street, Suite 750 Tallahassee, Florida 32301 (via electronic mail to sfrazier@phrd.com, mito@phrd.com, and kbond@phrd.com) 
Julia E. Smith, Esquire Maurice T. Boetger, Esquire 
D. Carlton Enfinger, Esquire Assistant General Counsels (via electronic mail to Julia.Smith@ahca.myflorida.com, Maurice.Boetger@ahca.myflorida.com, and Carlton.Enfinger@ahca.myflorida.com) 
Erin Bailey Certificate ofNeed Unit (via electronic mail to Erin.Bailey@ahca.myflorida.com) 
Jan Mills Facilities Intake Unit (via electronic mail to Janice.Mills@ahca.myflorida.com) |
| Mar. 26, 2021 | Recommended Order | With a published need for one new program, as between three competing applicants, Suncoast's proposed hospice best satisfies statutory and rule criteria, and should therefore be approved for Hillsborough County. |
| Mar. 26, 2021 | Recommended Order | With a published need for one new program, as between three competing applicants, Suncoast's proposed hospice best satisfies statutory and rule criteria, and should therefore be approved for Hillsborough County. |
