CORNERSTONE HOSPICE AND PALLIATIVE CARE, INC.,
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2021 JUN - 2 A 11: ti2
Petitioner,
V.
CASE NO. 20-171 lCON AHCA NO. 2020004573
fJ.ENDI TI ON NO.: AHC/\- \- -$": 4 -FOF-OLC
STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION,
Respondent.
I
VITAS HEALTHCARE CORPORATION OF FLORIDA,
Petitioner, CASE NO. 20-1713CON
AHCA NO. 2020004562
V.
STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION,
Respondent.
/
SUNCOAST HOSPICE OF HILLSBOROUGH, LLC,
Petitioner, CASE NO. 20-l 733CON
AHCA NO. 2020005324
V.
CORNERSTONE HOSPICE AND PALLIATIVE CARE, INC.; and VITAS HEALTHCARE CORPORATION OF FLORIDA,
Respondents.
!
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 ("VITAS") 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.
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 VITAS' exceptions and whether to adopt the ALJ's Recommended Order in whole or in part, the Agency must follow Section 120.57(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 VITAS' 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 1297-
1313 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, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985) (holding that an agency "may not reject the hearing officer's finding [of fact] unless there is no competent, substantial evidence from
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 ALJ'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 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, 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)(/), 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 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.
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 of Cornerstone'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 ALJ'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, VITAS takes exception to Paragraph 73 of the Recommended Order, arguing the findings of fact 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 611- 617, 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 VITAS' first exception.
In its second exception, VITAS 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, VITAS takes exception to Paragraph 107 and Footnote 8 of the Recommended Order, arguing they are not supported by competent, substantial evidence. Despite VITAS' 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 VITAS' third exception.
In its fourth exception, VITAS takes exception to Paragraph 161 of the Recommended Order, arguing the portions of the 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 VITAS' 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, VITAS' 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 Suncoast points out in its response to VITAS' 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 VITAS· 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. 18- 4986CON (AHCA 2019) is not applicable to this matter. Therefore, the Agency denies VITAS' sixth exception.
In its seventh exception, VITAS takes exception to Paragraph 169 of the Recommended Order, arguing the first sentence of the paragraph is not based on competent, substantial evidence
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 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 VITAS' seventh exception.
In its eighth exception, VITAS 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 ALJ Newton in Hospice of the Florida Suncoast v.
AHCA, DOAH Case No. l 8-4986CON (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)(!), 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 VITAS' 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)(/), 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. l 8-4986CON (AHCA 2019) is not applicable to this matter. Therefore, the Agency denies VITAS' ninth exception.
In its tenth exception, VITAS 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. l 8-4986CON (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. l 8-4986CON (AHCA 2019) is not applicable to this matter. Therefore, the Agency denies VITAS· 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)(/), 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 VITAS' 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 2247 and 231O; 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 3408- 3409; 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 VITAS' 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 VITAS' fifteenth exception.
In its sixteenth exception, VITAS 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)(/), 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 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 VITAS' 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 VITAS'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 1335- 1337; 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, VITAS 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 VITAS' 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 VITAS' 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,
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 1 at Pages
83-84. Thus, the Agency cannot disturb them. See§ 120.57(1 )(/),Fla.Stat.; Heifetz, 475 So. 2d at 1281. Therefore, the Agency denies VITAS' twenty-first exception.
In its twenty-second exception, VITAS takes exception to Paragraph 237 of the Recommended Order, arguing the last sentence of the paragraph is not based on competent, substantial evidence. Contrary to VITAS' 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§ 120.57(1)(/), Fla. Stat.; Heifetz, 475 So. 2d at 1281. Therefore, the Agency denies VITAS' 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 13, Pages 1780-1781 and 1778-1783.
Thus, the Agency is prohibited from rejecting or modifying them. See § 120.57(1 )(/), Fla. Stat.;
Heifetz, 475 So. 2d at 1281. Therefore, the Agency denies VITAS' 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 1 at Page 210. 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' 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 VITAS' fifth - sixteenth exceptions supra, which are hereby incorporated by reference, the Agency denies VITAS' 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 641- 642, 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 ALJ's conclusion of law that Suncoast would enhance hospice access for pediatric patients is reasonable. Therefore, the Agency denies VITAS' 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
are not supported by competent, substantial evidence and contradict Agency policy. Based on the Agency's rulings on VITAS' fifth - sixteenth exceptions supra, which are hereby incorporated by reference, the Agency denies VITAS' twenty-eighth exception.
The Agency hereby adopts the findings of fact set forth in the Recommended Order.
The Agency hereby adopts the conclusions of law set forth in the Recommended Order.
t
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. 10606 is hereby denied. The parties shall govern themselves accordingly.
DONE and ORDERED this j.5 day of :rIAJ\ e_,,. , 2021, in Tallahassee,
Florida.
SIMONE MARSTILLER, SECRETARY
AGENCY FOR HEALTH CARE ADMINISTRATION
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH THE FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA
APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
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
--- _,,,.,,·s.L ==---' 2021.
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)
OOP, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, MS #3
Tallahassee, Florida 32308-5403
(850) 412-3630
D. Ty Jackson, Esquire Allison Goodson, Esquire GrayRobinson, P.A.
301 South Bronough 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)
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 of Need Unit
(via electronic mail to Erin.Bailey@ahca.myflorida.com)
Jan Mills
Facilities Intake Unit
(via electronic mail to Janice.Mills@ahca.myflorida.com)
| 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 
3 
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. 
4 
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, 
14 
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. |
