STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CATHOLIC HOSPICE OF BROWARD, INC., )

)

Petitioner, )

)

vs. )

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, ) CASE NO. 94-4453RX

)

Respondent, )

and )

)

HOSPICE OF MARTIN, INC. and )

FLORIDA HOSPICES, INC., )

)

Intervenors. )

)

FINAL ORDER

Pursuant to notice, final hearing in the above-styled case was held in Tallahassee, Florida, on September 1, 1994, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Paul H. Amundsen

Amundsen & Moore

909 East Park Avenue Tallahassee, Florida 32301

For Respondent: Richard A. Patterson, Senior Attorney

Agency for Health Care Administration

325 John Knox Road Suite 325, The Atrium

Tallahassee, Florida 32303

For Intervenor Darrell White Hospice of McFarlain Wiley

Martin, Inc.: 215 South Monroe Street, Suite 600

Tallahassee, Florida 32301

For Intervenor David Gluckman Florida Gluckman and Gluckman Hospices, Inc.: Route 5, Box 3965

Tallahassee, Florida 32311

STATEMENT OF THE ISSUE

The issue in this case is whether Rule 59C-1.035(4), Florida Administrative Code, is invalid.

PRELIMINARY STATEMENT

On August 11, 1994, Petitioner filed a Petition Challenging the Validity of an Existing Agency Rule. The petition alleges that, on or about February 4, 1994, Respondent published fixed need pools for new hospice programs in the Florida Administrative Weekly. The published fixed need pool for District 10 was zero.

The petition alleges that Petitioner filed an application for a certificate of need on March 23, 1994. The application was for a new hospice program in District 10, which is Broward County. The petition alleges that Respondent's State Agency Action Report dated July 6, 1994, advised that Petitioner's application was denied.

The petition alleges that Respondent denied the application because of the fixed need pool of zero, as calculated pursuant to Rule 59C-1.035(4).

The petition alleges that Rule 59C-1.035(4) is arbitrary, capricious, anticompetitive, not supported by fact or logic, and contains assumptions that exist solely to protect existing providers from competition. Citing a dozen specific deficiencies in the rule, the petition requests that the rule be declared invalid.

On August 30, 1994, Hospice of Martin, Inc. filed a Petition to Intervene and an Emergency Motion for Continuance. On August 31, 1994, Florida Hospices, Inc. filed a Petition to Intervene, Motion to Dismiss, and Motion for Continuance. Both parties sought to defend the rule.

At the commencement of the hearing, the petitions to intervene were granted, and the motions to continue and motion to dismiss were denied.

Respondent orally moved for an order either dismissing the petition and closing the file or abating the case. Respondent disclosed that it had filed a Notice of Intent to Withdraw Rule 59C-1.035, which is to be published in the Florida Administrative Weekly on September 9, 1994. The issue was whether the Notice of Intent mooted the subject proceeding, at least when the time ran for a party to challenge the repeal of the rule or, if a hearing was demanded, following the final disposition of the case.

Petitioner stated that it had commenced a Section 120.57(1) proceeding challenging the denial of its application for a certificate of need. Petitioner argued that a final order invalidating Rule 59C-1.035(4) would increase Petitioner's chances of prevailing in the Section 120.57(1) case. Respondent disagreed, but declined an opportunity to forego the final hearing in return for a summary final order invalidating the rule.

The hearing proceeded because the undersigned could not definitively reject Petitioner's argument that an order invalidating the rule might have some bearing in the Section 120.57(1) proceeding.

As announced at the hearing by counsel for Hospice of Martin, Inc., two more petitions to intervene were filed the day after the hearing concluded. The

petitions were filed by Hospice of Palm Beach County, Inc., Hospice by the Sea, Inc., and Hospice Care of Broward County, Inc. Petitioner filed a response and request for attorneys' fees. The three petitions to intervene and Petitioner's request for attorneys' fees are denied.

At the hearing, Petitioner called two witnesses and offered into evidence

13 exhibits. Respondent called no witnesses and offered into evidence one exhibit. Intervenor Hospice of Martin, Inc. called one witness and offered into evidence two exhibits. Intervenor Florida Hospices, Inc. called one witness and offered into evidence one exhibit. The exhibits were admitted except for Exhibit 2 of Hospice of Martin, Inc. However, Petitioner Exhibits 7-11 and Exhibit 1 of Florida Hospices, Inc. were admitted as hearsay in support of the opinion of an expert witness and not to prove the truth of the contents of the exhibits.

The transcript was filed September 20, 1994. Rulings on timely filed proposed findings are in the appendix.

Despite the fact that the record was closed at the conclusion of the hearing, Petitioner and Respondent brought to the attention of the hearing officer post-hearing developments that they perceived as useful to the administration of justice. On October 10, 1994, Respondent filed a Notice of Repeal and Suggestion of Mootness, which indicates that the subject rule was in fact repealed. The next day, Petitioner filed a Notice of Related Case, in which a petition to intervene of Hospice of Martin, Inc. was denied. The hearing officer has noticed these matters, and they do not affect the result.

FINDINGS OF FACT

1. Background

   
   

   1. Petitioner is a nonprofit corporation sponsored by the Roman Catholic Archdiocese of Miami and managed by Catholic Health Services, Inc. Catholic Health Services, Inc. is a nonprofit corporation that manages the health-related entities of the Archdiocese of Miami. A common board of directors serves Catholic Health Services, Inc. and Petitioner.

      
      

   2. Intervenor Hospice of Martin, Inc. (Martin) is a nonprofit corporation operating a licensed hospice program in Subdistrict 9B in Martin County.

      
      

   3. Intervenor Florida Hospices, Inc. (Florida Hospices) is a nonprofit corporation that represents the interests of the 36 hospice organizations that are its members.

      
      

   4. By application for a certificate of need (CON) dated March 23, 1994, Petitioner requested a CON to operate a new hospice program in Broward. By letter dated May 12, 1994, Respondent stated that it determined that the application was complete effective May 6, 1994.

      
      

   5. The CON application notes that the Hospice Program Need Methodology finds that District X, which is Broward County, is not in need of another hospice program. In the application, Petitioner criticizes the formula, including its excessive reliance on cancer deaths.

      
      

   6. By letter dated July 6, 1994, Respondent advised Petitioner that its application for a CON had been denied. The State Agency Action Report (SAAR), dated June 25, 1994, notes that the application does not respond to a need, as

      identified by a fixed need pool. The SAAR also cites other reasons, not involving need, as grounds for denying the application.

      
      

   7. Petitioner consequently filed a Petition for Administrative Hearing to challenge the decision of Respondent not to award a CON.

      
      

2. The Rule

   
   

   1. Rule 59C-1.035 states:

      
      

      1. Agency Intent. This rule implements the provisions of subsection 408.032(2), paragraphs 408.036(1)(c), (e), and (f), and subsection 408.043(3), Florida Statutes. It is the intent of the agency to ensure the availability of hospice programs as defined in this rule to all persons who could benefit from a hospice program, regardless of ability to pay, type of illness, or county of residence. This rule regulates the establishment of new hospice programs, the con- struction of a freestanding inpatient hospice facility as defined in this rule, and a change

         in licensed bed capacity of a freestanding inpatient hospice facility.

      2. Definition.

         (a) "Approved Hospice Program." A hospice program for which the agency has issued an intent to grant a certificate of need, or has issued a certificate of need, and which is not licensed as of 3 weeks prior to publication of the fixed need pool.

         * * *

         (e) "Fixed Need Pool." The fixed need pool defined in subsection 59C-1.002(13), Florida Administrative Code. The agency shall publish a fixed need pool for hospice programs twice a year.

         * * *

         (g) "Hospice Program." A program defined in subsections 400.601(3) and 400.602(3), Florida Statutes, which is autonomous, centrally administered, medically directed, and nurse-coordinated, and which provides a continuum of home, outpatient, and homelike inpatient care for the terminally ill patient and his family, employing an interdisciplinary team to assist in providing palliative and supportive care to meet the special needs arising out of the physical, emotional, spiritual, social, and economic stresses which are experienced during the final stages of illness and during dying and bereavement. This care must be available 24 hours a day, 7 days a week, and must be provided regardless of ability to pay.

         * * *

         (k) "Service Area." . . . For District ... 10

         . . ., the service area is the entire district.

         * * *

      3. General Provisions.

         1. Quality of Care. Hospice programs shall comply with the agency standards for program licensure

            described in Chapter 59A- 2, Florida Administrative Code. Applicants proposing to establish a new hospice program shall show that they will meet the agency standards.

         2. Conformance with Statutory Review Criteria.

            A certificate of need for the establishment of a new hospice program, construction of a freestanding inpatient hospice facility, or change in licensed bed capacity of a freestanding inpatient hospice facility, shall not normally be approved unless

            the applicant meets the applicable review criteria in section 408.035, F.S., and the standards and need determination criteria set forth in this rule.

         3. The certificate of need issued for a new hospice program will identify all counties in each service area approved for the hospice program.

      4. Criteria for Determination of Need for a New Hospice Program.

         1. Numeric Need for a New Hospice Program. Subject to the provisions of paragraph (4)(b) of this rule, the net need for a new hospice program in a service area shall be determined by first calculating a projected hospice patient volume

            for the service area and then subtracting the most recent 12-month actual patient volume and projected growth in patient volume for all licensed hospices in the service area. The total projected hospice patient volume shall be the estimated number of terminally ill patients with a cancer or noncancer diagnosis who will need a hospice program during the 12-months period beginning at the planning horizon. The projected growth in patient volume

            for licensed hospices shall be based on the historical growth in patient volume of the licensed hospices.

            Numeric need for a new hospice program is demonstrated if the projected number of unserved patients needing a hospice program is 200 or greater. The net need for a new hospice program in a service area shall be calculated as follows:

            (HPH - HP + HPINCR) _ 200

            where:

            1. HPH is the expected number of patients needing a hospice program in the service area during the

               1. month period beginning at the planning horizon, calculated as CD x (.60 + .07)

                  where:

                  1. CD equals the projected 12-months total of resident cancer deaths for the service area. To determine CD the agency will calculate a 3-year average resident cancer death rate by dividing the sum of the resident cancer deaths for the three most recent calendar years, available from the [HRS] Office of Vital Statistics at least 3 months prior to the beginning date of the quarter of the publication of the fixed need pool, by the sum of the July 1 estimates of the service area population

                     for the same 3 years. CD is the result of multiply-

                     ing the 3-year average resident cancer death rate by the estimated population for the service area for

                     the applicable planning horizon. Population estimates for each year will be the most recent population estimates published by the Office of the Governor at least 3 months prior to publication of the fixed need pool.

                  2. .60 is the expected proportion of persons dying from cancer who will need a hospice program.

                  3. .07 is the factor added to the number of hospice patients with cancer to represent the number of terminally ill non- cancer patients in need of a hospice program. Non-cancer patients are projected to be approximately 10 percent of the total patients in need of a hospice program.

            2. HP is the number of patients served by all hospice programs in the service area for the 12- months period ending 6 months prior to the beginning date of the quarter of the publication of the fixed need pool.

            3. HPINCR = ((HP - HP2) _ 2) x 3 where:

               1. HPINCR is the projected growth in patient volume for licensed hospices.

               2. HP2 is the number of hospice patients served in the service area during the 12-months period ending 2 years prior to the 12-month period ending

                  6 months prior to the beginning date of the quarter of the publication of the fixed need pool.

               3. 3 is the number of 12-month periods elapsing between the end of the 12- month period included in HP and the planning horizon.

            4. 200 is the minimum number of unserved patients necessary for approval of a new hospice program.

         2. Existing and Approved Hospice Programs. Regardless of need shown under the formula paragraph (4)(a), the agency shall not approve a new hospice program for a service area unless all hospice programs in the service area had been licensed and were operational for 1 year as of 3 weeks prior to publication of the fixed need pool. No new hospice programs shall be approved for a service area that

            is included within the geographic area authorized to be served by an approved hospice program.

         3. The agency will not normally authorize a hospice program to serve more than two adjacent service areas.

         4. A provider proposing to serve adjacent service areas shall require a separate certificate of need for each service area that will be served.

         5. Approval Under Special Circumstances. In the absence of need identified in paragraph (4)(a), the applicant must provide evidence that residents of the proposed service area are being denied access

            to hospice services. Such evidence must demonstrate that existing hospices are not serving the persons the applicant proposes to serve and are not

            implementing plans to serve those persons. This evidence shall include at least one of the following:

            1. Waiting lists for licensed hospice programs

               whose service areas include the proposed service area.

            2. Evidence that a specifically terminally ill population is not being served.

            3. Evidence that a county or counties within the service area of a licensed hospice program are not being served.

         6. Preferences Among Applicants for a New Hospice Program. The agency shall give preference to an applicant meeting one or more of the criteria specified in subparagraphs 1. through 4. of this paragraph. The agency shall also consider these criteria in its review of a single applicant proposing to establish a new hospice program.

            1. Preference shall be given to an applicant who proposed to serve specific populations with unmet needs, such as children.

            2. Preference shall be given to an applicant who proposes to provide the inpatient care component

               of the hospice program through contractual arrangements with existing health care facilities, rather than proposing a freestanding inpatient hospice facility.

            3. Preference shall be given to an applicant who has a commitment to serve patients who do not have primary caregivers at home.

            4. Preference shall be given to an applicant who proposes to locate its principal place of business within the proposed service area.

            * * *

            (10) Effect of this Rule on the Service Area of Licensed Hospice Programs. A hospice program licensed as of the effective date of this rule

            is authorized to serve all counties in the service area where its principal place of business is located. A hospice program whose current license permits hospice services in a county or counties in an adjacent service area may continue to serve those adjacent counties. Any expansion to provide service to other counties in an adjacent service area is subject to regulation under this rule.

            
            

   2. Pursuant to action approved August 26, 1994, Respondent requested, by letter dated August 30, 1994, the publication in the Florida Administrative Weekly of a notice that Respondent "proposes to repeal [Rule 59C-1.035]. A new rule regarding review of hospice programs is being prepared." The notice, which was to have been published September 9, 1994, gives interested persons 21 days within which to request a hearing, which would take place on October 4, 1994.

      
      

3. Hospice Operations

   
   

   1. A hospice is an organization that provides palliative, rather than curative, care to a patient suffering from a terminal illness and the family of such a patient. Typically, the care extends through the patient's last six months of life. Some proponents of hospices offer the program as an alternative

      to euthanasia. In the past, all or nearly all hospice patients suffered from cancer. Today, significant portions of the hospice population suffer from other illnesses, such as heart disease or AIDS.

      
      

   2. The first hospices began operating in Florida in 1976. By 1979, the State of Florida regulated their operation. In the mid-1980s, Medicaid and Medicare began to reimburse hospices.

      
      

   3. From the start, hospices have had to rely heavily upon charitable donations and volunteer efforts in order to operate-- a financial fact of life now incorporated to some extent in federal and state regulations. Providing for the physical and emotional needs of the patient, the hospice must be able to provide care to its patients even while they are in the care of another health- care provider, such as a hospital.

      
      

   4. Traditionally, a community's hospice has become a visible focal point of public service and public trust. Typically, these public perceptions have been crucial to a hospice's financial well-being. Some hospice operators believe that the identification of a hospice as a community resource is facilitated by the presence of fewer, rather than more, hospices in a given area.

      
      

   5. However, due in part to the introduction of reimbursements almost ten years ago, the hospice has emerged in the last three years as a potential source of revenues in excess of expenses. At the same time, public use of hospices has grown.

      
      

   6. There are 35 or 36 hospices operating in Florida. All but one are nonprofit organizations.

      
      

   7. At present, about 36 percent of the hospice patients in Florida are diagnosed with a condition other than cancer. The remaining 64 percent of the hospice patients are diagnosed with cancer.

      
      

4. The Operation of the Rule: HPH - HP + HPINCR _ 200 A. HPH = CD x (.60 + .07)

   1. HPH is the expected number of patients needing a hospice program. HPH is calculated by first identifying CD, which is the number of cancer deaths.

      
      

   2. To determine CD, the rule requires the calculation of a cancer death rate. The numerator of the ratio is the annual average total number of cancer deaths in the service area during the preceding three years. The denominator is the population of the service area during the same three-year period. The resulting ratio is multiplied by the projected population for the planning horizon to yield CD.

      
      

   3. To calculate HPH, CD is then multiplied by .67, which is the total of two ratios. The larger ratio is .60, which is an estimate of the percentage of persons dying from cancer who will use a hospice program. The smaller ratio is

      .07, which is an estimate that the number of terminally ill noncancer patients will be ten percent of the number of cancer patients. The rule rounds off .067 to .07.

      1. HP

         
         

   4. HP is not in controversy in this case. HP is merely the number of patients served by all hospice programs in the service area for the 12 month period ending six months prior to the beginning date of the quarter of publication of the subject fixed need pool.

      
      

      1. HPINCR = ((HP - HP2) _ 2) x 3

      
      

   5. HPINCR is the projected growth in patient growth for licensed hospices. HP2 is the number of hospice patients served in the service area during the 12 month period ending two years prior to the 12 month period ending six months prior to the beginning date of the quarter of publication of the subject fixed need pool. Because the difference between HP and HP2 covers a two-year interval, the difference is divided by two to yield an average annual increase. The dividend is then multiplied by three, which is the number of years to the planning horizon.

      
      

      D. 200

      
      

   6. Two hundred is the number of projected unserved patients required for approval of a new hospice program.

      
      

5. Crucial Assumptions in the Rule

1. Downward Bias of HPH--Projected Need

   
   

   1. In defining HPH in terms of cancer deaths, the rule introduces an unnecessary element of distortion into the need projection process. As noted below, the rule introduces a factor that attempts to adjust for noncancer terminally ill patients. But even before considering the factor, the question arises as to why the rule starts with cancer deaths. By so doing, the rule has underprojected patient growth in the noncancer group.

      
      

   2. The number of cancer deaths has remained fairly constant in Florida in recent years. From 1988 through 1993, the number of cancer deaths in Florida increased from 31,305 to 35,593, or an average of 2 percent per year. In District 10, the number of cancer deaths increased from 3501 in 1988 to 4161 in 1993.

      
      

   3. On the other hand, the number of hospice patients has risen dramatically during the same period. From 1988 through 1993, the number of hospice patients in Florida increased from 29,665 to 47,242, or an average of 10 percent per year. In District 10, the number of hospice patients increased from 4942 in 1988 to 7152 in 1993.

      
      

   4. Part of the problem is that the rule defines CD without regard to noncancer hospice patients. Even before applying the ratios, the rule materially understates the hospice patient projection by ignoring the faster- growing component of the group--namely, noncancer patients. This problem is not solved by taking a fixed percentage (10 percent) of the slower-growing cancer patient total and assuming that this accounts for the faster-growing noncancer patient total.

      
      

   5. With the ratios, the rule belatedly addresses the fact that hospice populations extend beyond cancer patients. But the rule makes unsupported

      assumptions in using the .07 factor--or 10 percent of the hospice patients--to project the number of noncancer patients who will actually use a hospice.

      
      

   6. The factor of .07 is entirely arbitrary. If it ever bore any relationship to the percentage of noncancer patients who will use a hospice, it does not do so any longer and has not borne such a relationship for several years. The .07 factor materially understates the percentage of terminally ill noncancer patients who will use a hospice.

      
      

   7. As stated above, the .07 ratio reflects an arbitrary assumption that about 10 percent of hospice patients will not be cancer patients. The actual percentage in the year ending March 1994 was 36.4 percent. Thus, the .07 understates by over three times the number of terminally ill noncancer patients who might reasonably be expected to use hospice programs.

      
      

   8. It is unnecessary to determine the relationship of the .60 ratio to the actual percentage of cancer patients using hospices in view of the above- described distortions in the rule's manner in projecting need. Due to the distortion introduced by the .07 factor, HPH is irrational and does not yield a reasonably accurate projection of hospice need.

      
      

2. Bias Toward Allocating Growth to Existing Providers

1. HPINCR is a formula designed to calculate the average annual growth in number of patients in existing licensed hospice programs. The rule starts with the average annual growth during the two-year period ending six months before the publication of the fixed need pool. This result is multiplied by three for the three-year planning horizon. The rule allocates this increase in patients to existing hospices. Only after the existing hospices are allocated such growth does the rule determine if enough additional growth exists to warrant a new hospice program.

   
   

2. The rule allocates new capacity to existing providers without allowing new providers the chance to compete with existing providers for new hospice patients. The practical effect of this feature of the rule is that Respondent has never determined that a need for a new hospice program exists using the fixed need pool methodology set forth in the rule. At the same time, from 1988 through 1993, the number of hospice patients has almost tripled, from 19,665 to 47,242.

   
   

3. This anticompetitive feature of the rule deviates, without authorization, from the statutorily mandated scheme of comparative review.

   
   

4. The justification offered for this deviation from comparative review is unconvincing. As noted above, existing providers rely on volunteer help and charitable contributions. However, nothing in the record supports the inference that the amount of such help and contributions is fixed or will not respond to increased demands for such charitable activity. Existing providers claim that their programs require such charitable activity in order to survive. Presumably, as existing providers have served increasing numbers of hospice patients, the providers have found corresponding increases in charitable activity.

   
   

5. The existing providers would prefer not to have additional providers licensed in order not to disturb their prominent status in the community. In fact, 17 of 27 subdistricts have only one hospice provider. Visibility is undoubtedly a key ingredient for charitable donations and volunteer help. The

   visibility of any community resource, such as a blood bank or symphony orchestra, is enhanced when it stands alone, free from competition, in that community. Unfortunately for proponents of the rule, the legislature did not embrace this concept when it included hospices in the CON regulatory scheme.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Sections 120.56 and 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

   
   

7. Section 120.56(1) provides that any person "substantially affected" by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an "invalid exercise of delegated legislative authority."

   
   

8. All the parties have standing.

   
   

9. A rule is an "invalid exercise of delegated legislative authority" if it "enlarges, modifies, or contravenes the specific provisions of law implemented" or if it is "arbitrary or capricious." Section 120.52(8)(c) and (e).

   
   

10. Section 408.035(1) provides that Respondent "shall determine the reviewability of applications and shall review applications for [CON] determinations for health care facilities and services, hospices, and health maintenance organizations in context with the following criteria[.]" The review criteria include such factors as need, financial feasibility, and probable economies.

    
    

11. For the reasons set forth above, Rule 59C-1.035(4) is an invalid exercise of delegated legislative authority. The use of the .07 factor is arbitrary. The allocation of projected growth, at least to the extent experienced under the rule, to existing providers contravenes Section 408.035(1).

ORDER

Based on the foregoing, it is hereby ORDERED that Rule 59C-1.035(4) is invalid.

ENTERED on October 14, 1994, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings on October 14, 1994.

APPENDIX

Rulings on Proposed Findings of Petitioner

1-10 (first sentence): adopted or adopted in substance.

1. (second sentence): rejected as irrelevant.

2. and 15: rejected as legal argument. 12-13: rejected as unnecessary.

14: adopted or adopted in substance.

16-18: adopted or adopted in substance.

19-20: rejected as unsupported by the appropriate weight of the evidence. 21-24 (first sentence): adopted or adopted in substance.

24 (remainder): rejected as unnecessary. 25: adopted or adopted in substance.

26-28: rejected as unnecessary.

29-34: adopted or adopted in substance. 35: rejected as unnecessary.

36: rejected as recitation of evidence.

37-42: rejected as unnecessary and repetitious. 43-44: adopted or adopted in substance.

45-48: rejected as unnecessary.

Rulings on Proposed Findings of Hospice of Martin 1-3: adopted or adopted in substance.

4: rejected as irrelevant.

5 and 7: adopted or adopted in substance.

6, 8, and 9-11: rejected as not findings of fact.

12-15 (first sentence): adopted or adopted in substance.

15 (remainder): rejected as legal argument. 16-18: adopted or adopted in substance.

19-27: rejected as subordinate.

28: adopted or adopted in substance. 29-31: rejected as subordinate.

32-40: adopted or adopted in substance. 41: rejected as irrelevant.

42: adopted or adopted in substance. 43: rejected as irrelevant.

44: adopted or adopted in substance.

45-51: rejected as subordinate and irrelevant.

52 and 54-55: rejected as unsupported by the appropriate weight of the evidence.

53: adopted or adopted in substance. 56: rejected as irrelevant.

57: adopted or adopted in substance.

58-65: rejected as subordinate and irrelevant. 66-70: rejected as unnecessary.

Rulings on Proposed Findings of Florida Hospices 11-15: adopted or adopted in substance.

16-17: rejected as irrelevant.

18a: rejected as unnecessary.

18b: rejected as unsupported by the appropriate weight of the evidence. 18c-d: rejected as unnecessary.

19: rejected as unsupported by the appropriate weight of the evidence.

20-21: rejected as unsupported by the appropriate weight of the evidence. 22: rejected as irrelevant.

23: rejected as unsupported by the appropriate weight of the evidence. 24: rejected as irrelevant and legal argument.

25: rejected as unsupported by the appropriate weight of the evidence.

COPIES FURNISHED:

Paul H. Amundsen Amundsen & Moore 909 East Park Ave.

Tallahassee, FL 32301

Richard A. Patterson, Senior Attorney Agency for Health Care Administration

325 John Knox Rd. Suite 325--Atrium Tallahassee, FL 32303

Darrell White McFarlain Wiley

215 S. Monroe St., Suite 600 Tallahassee, FL 32301

David Gluckman Gluckman and Gluckman Route 5, Box 3965

Tallahassee, FL 32311

Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, FL 32399-1300

Ms. Liz Cloud, Chief

Bureau of Administrative Code The Elliott Building Tallahassee, FL 32399-0250

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 94-004453RX

Orders for Case No: 94-004453RX