STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
VITAS HEALTHCARE CORPORATION )
OF CENTRAL FLORIDA, )
)
Petitioner, )
)
vs. )
)
AGENCY FOR HEALTH CARE )
ADMINISTRATION, ) CASE NO. 96-1401
)
Respondent, )
)
and )
) WUESTHOFF HEALTH SERVICES, INC., ) and HOSPICE INTEGRATED HEALTH ) OF DISTRICT VII-B, INC., )
)
Intervenors. ) HOSPICE INTEGRATED HEALTH SERVICES ) OF DISTRICT VII-B, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 96-4077
) WUESTHOFF HEALTH SERVICES, INC., )
)
Respondent. ) VITAS HEALTHCARE CORPORATION )
OF CENTRAL FLORIDA, )
)
Petitioner, )
)
vs. ) CASE NO. 96-4078
)
AGENCY FOR HEALTH CARE ) ADMINISTRATION, HOSPICE INTEGRATED ) OF DISTRICT VII-B, INC., and ) WUESTHOFF HEALTH SERVICES, INC., )
)
Respondents. )
WUESTHOFF HEALTH SERVICES, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 96-4079
)
AGENCY FOR HEALTH CARE )
ADMINISTRATION, and HOSPICE ) INTEGRATED OF DISTRICT VII-B, INC., )
)
Respondents. )
)
RECOMMENDED ORDER
On November 18-26, 1996, a formal administrative hearing was held in this case in Tallahassee, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.
APPEARANCES
For Petitioner Seann M. Frazier, Esquire
Hospice Integrated Panza, Maurer, Maynard & Neel, P.A. Health systems of 3600 North Federal Highway, Third Floor District VII-B,Inc.:Ft. Lauderdale, Florida 33308
For Petitioner David C. Ashburn
Wuesthoff Health Gunster, Yoakley, Valdes-Fauli & Services, Inc.: Stewart, P.A.
515 North Adams Street Tallahassee, Florida 32301
For Intervenor J. Robert Griffin
Vitas Healthcare J. Robert Griffin & Associates, P.A. Corporation: 2559 Shiloh Way
Tallahassee, Florida 32308
For Respondent Richard Patterson
Agency for Health Agency for Health Care Administration Care Administration: 2727 Mahan Drive, Suite 3431
Tallahassee, Florida 32308-5403
STATEMENT OF THE ISSUES
The issues in this case are whether the Agency for Health Care Administration (AHCA) should grant Hospice Integrated’s Certificate of Need (CON) Application No. 8406 to establish a hospice program in AHCA Service Area 7B, CON Application No. 9407 filed by Wuesthoff, both applications, or neither application.
PRELIMINARY STATEMENT
On February 2, 1996, the Agency for Health Care Administration (AHCA) published notice that, according to its rule methodology, there was a need for one additional hospice program in AHCA Service Area 7B. Shortly thereafter, an existing hospice provider in Service Area 7B, Vitas Healthcare Corporation of Central Florida, Inc. (formerly Hospice of Central Florida, Inc., and hereinafter “Vitas”) challenged the ACHA’s determination (the “fixed need pool challenge”). AHCA referred the fixed need pool challenge to the Division of Administrative Hearings (DOAH), where it was given DOAH Case No. 96-1401.
Initially, final hearing in DOAH Case No. 96-1401 was set for September 6, 1996.
In response to its announcement of a fixed need pool, the AHCA received two applications to establish a new hospice program: Hospice Integrated of District VII-B, Inc. (Hospice Integrated) filed CON Application No. 8406; and Wuesthoff Health Services, Inc. (“Wuesthoff”) filed CON Application No. 8407. The
two applications were competitively and comparatively reviewed by AHCA officials.
After reviewing both applications and balancing the review criteria, the AHCA concluded that Hospice Integrated’s application best met the needs of patients in Osceola and Orange Counties. The AHCA announced in a publication dated July 19, 1996, its preliminary intent to award a CON to Hospice Integrated and to deny the application made by Wuesthoff.
Wuesthoff challenged the grant of Hospice Integrated’s application instead of its own; Vitas challenged the grant of either application. Hospice Integrated thereafter filed a petition supporting the AHCA’s initial decision. These petitions were referred to DOAH, given DOAH Case Nos. 96-4079, 96-4078 and 96-4077, respectively, and consolidated with DOAH Case No. 96- 1401 (the Vitas fixed need pool challenge), and final hearing in the consolidated cases was scheduled for November 12-15 and 18- 21, 1996. Later, final hearing was continued to November 18-22 and 25-27, 1996.
The parties filed a Prehearing Stipulation on November 6, 1996. On the first day of the final hearing, they also filed a supplemental Stipulation of Facts.
At final hearing, Hospice Integrated called eight witnesses (including AHCA’s Chief of CON and Budget Review Office) and had IHS Exhibits 1-7 and 9-11 admitted in evidence. AHCA called one additional witness and had AHCA Exhibits 1 and 2 admitted in
evidence. Wuesthoff called 11 witnesses and had Wuesthoff Exhibits 1-5, 7-11, 13-14, 17-18, 20-21, 25, 32-33, 35-36
admitted in evidence. Vitas called five witnesses and had Vitas Exhibits 1-9 and 11-12 admitted in evidence.
After presentation of the evidence, the parties ordered the preparation of a transcript of the final hearing and requested 30 days from the filing of the transcript in which to file proposed recommended orders. The last of the 13 volumes of transcript was filed on February 4, 1997. Vitas moved for an extension of time to March 31, 1997, for filing proposed recommended orders, but the applicants opposed the motion, and it was denied.
The parties’ proposed recommended orders were timely filed on March 6, 1997. Vitas also filed a Notice of Voluntary Dismissal of its fixed need pool challenge, DOAH Case No. 96- 1401.
FINDINGS OF FACT
Hospice
Hospice is a special way of caring for patients who are facing a terminal illness, generally with a prognosis of less than six months. Hospice provides a range of services available to the terminally ill and their families that includes physical, emotional, and spiritual support. Hospice is unique in that it serves both the patient and family as a unit of care, with care available 24 hours a day, seven days a week, for persons who are
dying. Hospice provides palliative rather than curative or life- prolonging care.
To be eligible for hospice care, a patient must have a prognosis of less than six months to live. When Medicare first recognized hospice care in 1983, more than 90% of hospice cases were oncology patients. At that time, there was more information available to establish a prognosis of six months or less for these patients.
Since that time, the National Hospice Organization (“NHO”) has established medical guidelines which determine the prognosis for many non-cancer diseases. This tool may now be used by physicians and hospice staff to better predict which non- cancer patients are eligible for hospice care.
There is no substitute for hospice. Nothing else does all that hospice does for the terminally ill patient and the patient’s family. Nothing else can be reimbursed by Medicare or Medicaid for all hospice services. However, hospice must be chosen by the patient, the patient’s family and the patient’s physician. Hospice is not chosen for all hospice-eligible patients. Palliative care may be rejected, at least for a time, in favor of aggressive curative treatment. Even when palliative care is accepted, hospice may be rejected in favor of home health agency or nursing home care, both of which do and get reimbursed for some but not all of what hospice does.
Sometimes the choice of a home health agency or nursing home care represents the patient’s choice to continue with the same caregivers instead of switching to a new set of caregivers through a hospice program unrelated to the patient’s current caregivers.
There also is evidence that sometimes the patient’s nursing home or home health agency caregivers are reluctant, unfortunately sometimes for financial reasons, to facilitate the initiation of hospice services provided by a program unrelated to the patient’s current caregivers.
Existing Hospice in Service Area 7B
There are two existing hospice providers in Service Area 7B, which covers Orange County and Osceola County: Vitas Healthcare Corporation of Central Florida (Vitas); and Hospice of the Comforter (Comforter).
Vitas
Vitas began providing services in Service Area 7B when it acquired substantially all of the assets of Hospice of Central Florida (HCF). HCF was founded in 1976 as a not-for-profit organization and became Medicare-certified in 1983. It remained not-for-profit until the acquisition by Vitas.
In a prior batching cycle, HCF submitted an application for a CON for an additional hospice program in Service Area 7B under the name Tricare. While HCF also had other reasons for filing, the Tricare application recognized the desirability, if
not need, to package hospice care for and make it more palatable and accessible to AIDS patients, the homeless and prisoners with AIDS. HCF later withdrew the Tricare application, but it continued to see the need to better address the needs of AIDS patients in Service Area 7B.
In 1994, HCF began looking for a “partner” to help position it for future success. The process led to Vitas. Vitas is the largest provider of hospice in the United States. Nationwide, it serves approximately 4500 patients a day in 28 different locations. Vitas is a for-profit corporation. Under a statute grandfathering for-profit hospices in existence on or before July 1, 1978, Vitas is the only for-profit corporation authorized to provide hospice care in Florida. See Section 400.602(5), Fla. Stat. (1995).
HCF evaluated Vitas for compatibility with HCF’s mission to provide quality hospice services to medically appropriate patients regardless of payor status, age, gender, national origin, religious affiliation, diagnosis or sexual orientation. Acquisition by Vitas also would benefit the community in ways desired by HCF.
Acquisition by Vitas did not result in changes in policy or procedure that limit or delay access to hospice care. Vitas was able to implement staffing adjustments already contemplated by HCF to promote efficiencies while maintaining quality. Both HCF and Vitas have consistently received 97%
satisfaction ratings from patients’ families, and 97% good-to- excellent ratings from physicians.
Initially, Vitas’ volunteer relations were worse than the excellent volunteer relations that prevailed at HCF. Many volunteers were disappointed that Vitas was a for-profit organization, protested the proposed Vitas acquisition, and quit after the acquisition. Most of those who quit were not involved in direct patient care, and some have returned after seeing how Vitas operates.
Vitas had approximately 1183 hospice admissions in Service Area 7B in 1994, and 1392 in 1995. Total admissions in Service Areas 7B and 7C (Seminole County) for 1995 were 1788.
Comforter
Hospice of the Comforter began providing hospice care in 1990. Comforter is not-for-profit. Like Vitas, it admits patients regardless of payor status.
Comforter admitted approximately 100 patients from Service Area 7B in 1994, and 164 in 1995. Total admissions in Service Areas 7B and 7C for 1995 were 241. For 1996, Comforter was expected to approach 300 total admissions (in 7B and 7C), and total admissions may reach 350 admissions in the next year or two. As Comforter has grown, it has developed the ability to provide a broader spectrum of services and has improved programs.
Comforter provides outreach and community education as actively as possible for a smaller hospice.
Comforter does not have the financial strength of Vitas. It maintains only about a two-month fiscal reserve.
Fixed Need Pool
On February 2, 1996, AHCA published a fixed need pool (FNP) for hospice programs in the July 1997 planning horizon. Using the need methodology for hospice programs in Florida found in F.A.C. Rule 59C-1.0355 (“the FNP rule”), the AHCA determined that there was a net need for one additional hospice program in Service Area 7B. As a result of the dismissal of Vitas’ FNP challenge, there is no dispute as to the validity of the FNP determination.
Other Need Considerations
Despite the AHCA fixed need determination, Vitas continues to maintain that there is no need for an additional hospice program in Service Area 7B and that the addition of a hospice program would adversely impact the existing providers.
Essentially, the FNP rule compares the projected need for hospice services in a district using district use rates with the projected need using statewide utilization rates. Using this rule method, it is expected that there will be a service “gap” of
470 hospice admissions for the applicable planning horizon (July, 1997, through June, 1988). That is, 470 more hospice admissions would be expected in Service Area 7B for the planning horizon using statewide utilization rates. The rule fixes the need for
an additional hospice program when the service “gap” is 350 or above.
It is not clear why 350 was chosen as the “gap” at which the need for a new hospice program would be fixed. The number was negotiated among AHCA and existing providers.
However, the evidence was that 350 is more than enough admissions to allow a hospice program to benefit from the efficiencies of economy of scale enough to finance the provision for enhanced hospice services. These benefits begin to accrue at approximately 200 admissions.
Due to population growth and the aging of the population in Service Area 7B, this “gap” is increasing; it already had grown to 624 when the FNP was applied to the next succeeding batching cycle.
Vitas’ argument ignores the conservative nature of several aspects of the FNP rule. It uses a static death rate, whereas death rates in Service Area 7B actually are increasing. It also uses a static age mix, whereas the population actually is aging in Florida, especially in the 75+ age category. It does not take into account expected increases in the use of hospice as a result of an environment of increasing managed health care. It uses statewide conversion rates (percentage of dying patients who access hospice care), whereas conversion rates are higher in nearby Service Area 7A. Finally, the statewide conversions rates
used in the rule are static, whereas conversion rates actually are increasing statewide.
Vitas’ argument also glosses over the applicants’ evidence that the addition of a hospice program, by its mere presence, will increase awareness of the hospice option in 7B (regardless whether the new entrant improves upon the marketing efforts of the existing providers), and that increased awareness will result in higher conversion rates.
It is not clear why utilization in Service Area 7B is below statewide utilization. Vitas argued that it shows the opposite of what the rule says it shows—i.e., that there is no need for another hospice program since the existing providers are servicing all patients who are choosing hospice in 7B. Besides being a thinly-veiled (and, in this proceeding, illegal) challenge to the validity of the FNP rule, Vitas’ argument serves to demonstrate the reality that, due to the nature of hospice, existing providers usually will be able to expand their programs as patients increasingly seek hospice so that, if consideration of the ability of existing providers to fill growing need for hospice could be used to overcome the determination of a FNP under the FNP rule, there may never be “need” for an additional program. Opting against such an anti-competitive rule, the Legislature has required and AHCA has crafted a rule that allows for the controlled addition of new entrants into the competitive arena.
Vitas’ argument was based in part on the provision of “hospice-like” services by VNA Respite Care, Inc. (VNA), through its home health agency. Vitas argued that Service Area 7B patients who are eligible for hospice are choosing VNA’s Hope and Recovery Program.
VNA’s program does not offer a choice from, or alternative to, hospice. Home health agencies do not provide the same services as hospice programs. Hospice care can be offered as the patient’s needs surface. A home health agency must bill on a cost per visit basis. If they exceed a projected number of visits, they must explain that deviation to Medicare. A home health agency, such as VNA, offers no grief or bereavement services to the family of a patient. In addition to direct care of the patient, hospice benefits are meant to extend to the care of the family. Hospice is specifically reimbursed for offering this important care. Hospice also receives reimbursement to provide medications relevant to terminal illnesses and durable medical equipment needed. Home health agencies do not get paid for, and therefore do not offer, these services.
It is possible that VNA’s Hope and Recovery Program may be operating as a hospice program without a license. The marketing materials used by VNA inaccurately compare and contrast the medical benefits available for home health agencies to those available under a hospice program. The marketing material of VNA
also inappropriately identify which patients are appropriate for hospice care.
VNA’s Hope and Recovery Program may help explain lower hospice utilization in Service Area 7B. Indeed, the provision of hospice-like services by a non-hospice licensed provider can indicate an unmet need in Service Area 7B. The rule does not calculate an inventory of non-hospice care offered by non-hospice care providers. Instead, the rule only examines actual hospice care delivered by hospice programs. The fact that patients who would benefit from hospice services are instead receiving home health agency services may demonstrate that existing hospice providers are inadequately educating the public of the advantages of hospice care. Rather than detract from the fixed need pool, VNA’s provision of “hospice-like” services without a hospice license may be an indication that a new hospice provider is needed in Service Area 7B.
Although a home-health agency cannot function as a hospice provider, the two can work in conjunction. They may serve as a referral base for one another. This works most effectively when both programs are operated by the same owner who understands the very different services each offers and who has no disincentive to refer a patient once their prognosis is appropriate for hospice.
The Hospice Integrated Application
Integrated Health Services, Inc. (IHS), was founded in
the mid-1980’s to establish an alternative to expensive hospital care. Since that time it has grown to offer more than 200 long term care facilities throughout the country including home health agencies, rehabilitative agencies, pharmacy companies, durable medical equipment companies, respiratory therapy companies and skilled nursing facilities. To complete its continuum of care, IHS began to add hospice to offer appropriate care to patients who no longer have the ability to recover. IHS is committed to offering hospice care in all markets where it already has an established long-term care network.
IHS entered the hospice arena by acquiring Samaritan Care, an established program in Illinois, in late 1994. Within a few months, IHS acquired an additional hospice program in Michigan. Each of these hospice programs had a census in the thirties at the time of the final hearing. In May of 1996, IHS acquired Hospice of the Great Lakes. Located in Chicago, this hospice program has a census range from 150 to 180. In combination, IHS served approximately 350 hospice patients in 1995.
In Service Area 7B, IHS has three long-term care facilities: Central Park Village; IHS of Winter Park; and IHS of Central Park at Orlando. Together, they have 443 skilled nursing beds. One of these—Central Park Village—has established an HIV spectrum program, one of the only comprehensive HIV care programs in Florida.
When the state determined that there was a need for an additional hospice program in Service Area 7B, IHS decided to seek to add hospice care to the nursing home and home health companies it already had in the area.
Since Florida Statutes require all new hospice programs in Florida to be established by not-for-profit corporations (with Vitas being the only exception), IHS formed Hospice Integrated Health Services of District VII-B (Hospice Integrated), a not- for-profit corporation, to apply for a hospice certificate of need.
IHS would be the management company for the hospice program and charge a 4% management fee to Hospice Integrated, although the industry standard is 6%-7%. Although a for-profit corporation, IHS plans for the 4% fee to just cover the costs of the providing management services. IHS believes that the benefits to its health care delivery system in Service Area 7B will justify not making a profit on the hospice operation. However, the management agreement will be reevaluated and possibly adjusted if costs exceed the management fee.
In return for this management fee, IHS would offer Hospice Integrated its policy and procedure manuals, its programs for bereavement, volunteer programs, marketing tools, community and educational tools and record keeping. IHS would also provide accounting, billing, and human resource services.
Perhaps the most crucial part of the management fee is
the offer of the services of Regional Administrator, Marsha Norman. She oversees IHS’ programs in Illinois and Missouri.
Ms. Norman took the hospice program at Hospice of the Great Lakes from a census of 40 to 140. This growth occurred in competition with 70 other hospices in the same marketplace. While at Hospice of the North Shore, Ms. Norman improved census from 12 to 65 in only eight months. Ms. Norman helped the Lincolnwood hospice program grow from start up to a census of 150. Ms. Norman has indicated her willingness and availability to serve in Florida if Hospice Integrated’s proposal is approved.
IHS and Ms. Norman are experienced in establishing interdisciplinary teams, quality assurance programs, and on-going education necessary to provide state of the art hospice care.
Ms. Norman also has experience establishing specialized programs such as drumming therapy, music therapy for Alzheimer patients and children’s bereavement groups. Ms. Norman has worked in pediatric care and understands the special needs of these patients. Ms. Norman’s previous experience also includes Alzheimer’s care research conducted in conjunction with the University of Chicago regarding the proper time to place an Alzheimer patient in hospice care.
Through its skilled nursing facilities in Service Area 7B, IHS has an existing working relationship with a core group of physicians who are expected to refer patients to the proposed Hospice Integrated hospice. Although its skilled nursing homes
account for only six percent of the total beds in Service Area 7B, marketing and community outreach efforts are planned to expand the existing referral sources if the application is approved.
IHS’ hospices are members of the NHO. They are not accredited by the Joint Commission on the Accreditation of Health Care Organizations (JCAHO).
Hospice Integrated would serve pediatric patients. However, IHS’ experience in this area is limited to a pilot program to offer pediatric hospice care in the Dallas/Ft. Worth area, and there is little reason to believe that Hospice Integrated would place a great deal of emphasis on this aspect of hospice care.
The Hospice Integrated application proposes to provide required grief support but does not include any details for the provision of grief support groups, resocialization groups, grief support volunteers, or community grief support or education activities.
In its application, Hospice Integrated has committed to five percent of its care for HIV patients, 40% for non-cancer patients, ten percent for Medicaid patients, and five percent indigent admissions. These commitments also are reflected in Hospice Integrated’s utilization projections. At the same time, it is only fair to note that IHS does not provide any charity care at any of its Service Area 7B nursing home facilities.
The Hospice Integrated application includes provision for all four levels of hospice care—home care (the most common), continuous care, respite care and general inpatient. The latter would be provided in one of the IHS skilled nursing home facilities when possible. It would be necessary to contract with an inpatient facility for acute care inpatient services.
The federal government requires that five percent of hospice care in a program be offered by volunteers. With a projected year one census of 30, Hospice Integrated would only require 3-4 volunteers to meet federal requirements, and its year one pro forma reflects this level of use of volunteers. However, Hospice Integrated hopes to exceed federally mandated minimum numbers of volunteers.
The IHS hospice programs employ volunteers from all aspects of the community, including family of deceased former hospice patients. Contrary to possible implications in the wording of materials included in the Hospice Integrated application, IHS does not approach the latter potential volunteers until after their bereavement has ended.
The Wuesthoff Application
Wuesthoff Health Services, Inc. (Wuesthoff) is a not- for profit corporation whose sole corporate member is Wuesthoff Health Systems, Inc. (Wuesthoff Systems). Wuesthoff Systems also is the sole corporate member of Wuesthoff’s two sister corporations, Wuesthoff Memorial Hospital, Inc. (Wuesthoff
Hospital) and Wuesthoff Health Systems Foundation, Inc. (Wuesthoff Foundation).
Wuesthoff Hospital operates a 303-bed acute care hospital in Brevard County. Brevard County comprises AHCA Service Area 7A, and it is adjacent and to the east of Service Area 7B. Wuesthoff Hospital provides a full range of health care services including open heart surgical services, a Level II neonatal intensive care unit and two Medicare-certified home health agencies, one located in Brevard and the other in Indian River County, the county immediate to the south of Brevard.
Wuesthoff Foundation serves as the fundraising entity for Wuesthoff Systems and its components.
Wuesthoff currently operates a 114-bed skilled nursing facility which includes both long-term and short-term sub-acute beds, as well as a home medical equipment service.
Wuesthoff also operates a hospice program, Brevard Hospice, which has served Brevard County residents since 1984. Over the years, it has grown to serve over 500 patients during 1995.
Essentially, Wuesthoff’s application reflects an intention to duplicate its Brevard Hospice operation in Service Area 7B. It would utilize the expertise of seven Brevard Hospice personnel currently involved in the day-to-day provision of hospice services, including its Executive Director, Cynthia Harris Panning, to help establish its proposed new hospice in 7B.
Wuesthoff has been a member of the NHO since the inception of its hospice program. It also had its Brevard Hospice accredited by JCAHO in 1987, in 1990 and in March, 1996.
As a not-for-profit hospice, Wuesthoff has a tradition of engaging in non-compensated hospice services that benefit the Brevard community. Wuesthoff’s In-Touch Program provides uncompensated emotional support through telephone and in-person contacts for patients with a life-threatening illness who, for whatever reason, are not ready for hospice. (Of course, Wuesthoff is prepared to receive compensation for these patients when and if they choose hospice.) Wuesthoff’s Supportive Care program provides uncompensated nursing and psychosocial services by hospice personnel for patients with life-threatening illnesses with life expectancies of between six months and two years. (These services are rendered in conjunction with home health care, which may be compensated, and Wuesthoff is prepared to receive compensation for the provision of hospice services for these patients when they become eligible for and choose hospice.) Wuesthoff’s Companion Aid benefits hospice patients who lack a primary caregiver and are indigent, Medicaid-eligible or unable to pay privately for additional help in the home.
If approved in Service Area 7B, Wuesthoff would hope to duplicate these kinds of outreach programs. For the Supportive Care program, that would require its new hospice program to enter into agreements with home health agencies operating in Service
Area 7B. While more difficult an undertaking than the current all-Wuesthoff Supportive Care program, Wuesthoff probably will be able to persuade at least some Service Area 7B home health agencies to cooperate, since there would be benefits to them, too.
Wuesthoff proposes to use 38 volunteers during its first year in operation. As a not-for-profit organization, Wuesthoff has had good success recruiting, training, using and retaining volunteers in Brevard County. Its experience and status as a not-for-profit organization will help it meet its goals in Service Area 7B; however, it probably will be more difficult to establish a volunteer base in Service Area 7B than in its home county of Brevard. Wuesthoff’s proposed affiliation with Florida Hospital will improve its chances of success in this area.
Key to the overall success of Wuesthoff’s proposed hospice is its vision of an affiliation with Florida Hospital. With no existing presence in Service Area 7B, Wuesthoff has no existing relationship with community physicians and no existing inpatient facilities. Wuesthoff plans to fill these voids through a proposed affiliation with Florida Hospital.
In existence and growing for decades, Florida Hospital now is a fully integrated health care system with multiple inpatient sites, including more than 1,450 hospital beds, in Service Area 7B. It provides a full range of pre-acute care
through post-acute care services, including primary through tertiary services. Approximately 1,200 physicians are affiliated with Florida Hospital, which has a significant physician-hospital organization. Wuesthoff is relying on these physicians to refer patients to its proposed hospice.
Florida Hospital and Wuesthoff have signed a letter of intent. The letter of intent only agreed to a forum for discussions; there was no definite agreement concerning admissions, and Florida Hospital has not committed to sending any particular number of hospice patients to Wuesthoff. However, there is no reason to think that Wuesthoff could not achieve a viable affiliation with Florida Hospital. Wuesthoff has recent experience successfully cooperating with other health care providers. It has entered into cooperative arrangements with Jess Parrish Hospital in Brevard County, with Sebastian River Medical Center in Indian River County, and with St. Joseph’s Hospital in Hillsborough County.
Wuesthoff’s existing hospice provides support to children who are patients of its hospice, whose parents are in hospice or whose relatives are in hospice, as well as to other children in the community who are in need of bereavement support services. Wuesthoff employs a full-time experienced children’s specialist. Wuesthoff also provides crisis response services for Brevard County Schools System when there is a death at a school or if a student dies or if there is a death that affects the
school community. Camp Hope is a bereavement camp for children which is operated by Wuesthoff annually for approximately 50 Brevard children who have been affected by death.
Wuesthoff operates extensive grief support programs as part of its Brevard Hospice. At a minimum, Wuesthoff provides 13 months of grief support services following the death of a patient, and more as needed. It employs an experienced, full- time grief support coordinator to oversee two grief support specialists (each having Masters degree level training), as well as 40 grief support volunteers, who function in Wuesthoff’s many grief support groups. These include: Safe Place, an open grief support group which meets four times a month and usually is the first group attended by a grieving person; Pathways, a closed
six-week grief workshop offered twice a year primarily for grieving persons three to four months following a death; Bridges, a group for widows under age 50, which is like Pathways but also includes sessions on helping grieving children and on resocialization; Just Us Guys and Gals, which concentrates on resocialization and is attended by 40 to 80 people a month; Family Night Out, an informal social opportunity for families with children aged six to twelve; Growing Through Grief, a closed six-week children’s grief group offered to the Brevard County School System. Wuesthoff also publishes a newsletter for families of deceased hospice patients for a minimum of 13 months following the death. Wuesthoff also participates in extensive
speaking engagements and provides seminars on grief issues featuring nationally renowned speakers.
Wuesthoff intends to use the expertise developed in its Brevard Hospice grief support program to establish a similar program in Service Area 7B. The Brevard Hospice coordinator will assist in implementing the Service Area 7B programs.
In its utilization projections, Wuesthoff committed to seven percent of hospice patient days provided to indigent/charity patients and seven percent to Medicaid patients. Wuesthoff also committed to provide hospice services to AIDS patients, pediatric patients, patients in long-term care facilities and patients without a primary caregiver; however, no specific percentage committments were made.
In its pro formas, Wuesthoff projects four percent hospice services to HIV/AIDS patients and approximately 40% to non-cancer patients. The narrative portions of its application, together with the testimony of its chief executive officer, confirm Wuesthoff’s willingness to condition its CON on those percentages.
In recent years, the provision of Medicaid at Brevard Hospice has declined. However, during the same years, charity care provided by Brevard Hospice has increased. In the hospice arena, Medicaid hospice is essentially fully reimbursed.
Likewise, the provision of hospice services to AIDS/HIV patients by Brevard Hospice has declined in recent years—from
4.9% in 1993 to 1.4% in 1995. However, this decline was influenced by the migration of many AIDS patients to another county, where a significant number of infectious disease physicians are located, and by the opening of Kashy Ranch, another not-for-profit organization that provides housing and services especially for HIV clients.
Financial Feasibility
Both applications are financially feasible in the immediate and long term.
Immediate Financial Feasibility
Free-standing hospice proposals like those of Hospice Integrated and Wuesthoff, which intend to contract for needed inpatient care, require relatively small amounts of capital, and both applications are financially feasible in the immediate term. Hospice Integrated is backed by a $100,000 donation and a commitment from IHS to donate the additional $300,000 needed to open the new hospice. IHS has hundreds of millions of dollars in lines of credit available meet this commitment.
Wuesthoff questioned the short-term financial feasibility of the Hospice Integrated proposal in light of recent acquisitions of troubled organizations by IHS. It recently acquired an organization known as Coram at a cost of $655 million. Coram recently incurred heavy losses and was involved in litigation in which $1.5 billion was sought. IHS also recently acquired a home health care organization known as First
American, whose founder is currently in prison for the conduct of affairs at First American. But none of these factors seriously jeopardize the short-term financial feasibility of the Hospice Integrated proposal.
Wuesthoff also noted that the IHS commitment letter is conditioned on several “approvals” and that there is no written commitment from IHS to enter into a management contract with Hospice Integrated at a four percent fee. But these omissions do not seriously undermine the short-term financial feasibility of the Hospice Integrated proposal.
Hospice Integrated, for its part, and AHCA question the short-term financial feasibility of the Wuesthoff proposal, essentially because the application does not include a commitment letter from with Wuesthoff Systems or Wuesthoff Hospital to fund the project costs. The omission of a commitment letter is comparable to the similar omissions from the Hospice Integrated application. It does not undermine the short-term financial feasibility of the proposal. Notwithstanding the absence of a commitment letter, the evidence is clear that the financial strength of Wuesthoff Systems and Wuesthoff Hospital support Wuesthoff’s hospice proposal. This financial strength includes the $38 to $40 million in cash and marketable securities reflected in the September 30, 1995, financial statements of Wuesthoff Systems, in addition to the resources of Wuesthoff Hospital.
Hospice Integrated also questions the ability of Wuesthoff Systems to fund the hospice proposal in addition to other planned capital projects. The Wuesthoff application indicates an intention to fund $1.6 million of the needed capital from operations and states that $1.4 million of needed capital in “assured but not in hand.” But some of the projects listed have not and will not go forward. In addition, it is clear from the evidence that Wuesthoff Systems and Wuesthoff Hospital have enough cash on hand to fund all of the capital projects that will go forward, including the $290,000 needed to start up its hospice proposal.
Long-Term Financial Feasibility
Wuesthoff’s utilization projections are more aggressive than Hospice Integrated’s. Wuesthoff projects 186 admissions in year one and 380 in year two; Hospice Integrated projects 124 admissions in year one and 250 in year two. But both projections are reasonably achievable. Projected patient days, revenue and expenses also are reasonable for both proposals. Both applicants project an excess of revenues over expenses in year two of operation.
Vitas criticized Hospice Integrated’s nursing salary expenses, durable medical equipment, continuous and inpatient care expenses, and other patient care expenses as being too low. But Vitas’ criticism was based on misapprehension of the facts.
The testimony of Vitas’ expert that nursing salaries
were too low was based on the misapprehension that Hospice Integrated’s nursing staffing reflected in the expenses for year two of operation was intended to care for the patient census projected at year end. Instead, it actually reflected the expenses of average staffing for the average patient census for the second year of operation.
Vitas’ expert contended that Hospice Integrated’s projected expenses for durable medical equipment for year two of operation were understated by $27,975. But there is approximately enough overallocated in the line items “medical supplies” and “pharmacy” to cover the needs for durable medical equipment.
Vitas’ expert contended that Hospice Integrated’s projected expenses for continuous and inpatient care were understated by $23,298. This criticism made the erroneous assumption that Hospice Integrated derived these expenses by taking 75% of its projected gross revenues from continuous and inpatient care. In fact, Hospice Integrated appropriately used 75% of projected collections (after deducting contractual allowances). In addition, as far as inpatient care is concerned, Hospice Integrated has contracts with the IHS nursing homes in Service Area 7B to provide inpatient care for Hospice Integrated’s patients at a cost below that reflected in Hospice Integrated’s Schedule 8A.
Vitas’ expert contended that Hospice Integrated’s
projected expenses for “other patient care” were understated by
$19,250. This criticism assumed that fully half of Hospice Integrated’s patients would reside in nursing homes that would have to be paid room and board by the hospice out of federal reimbursement “passed through” the hospice program. However, most hospices have far fewer than half of their patients residing in nursing homes (only 17% of Comforter’s are nursing home residents), and Hospice Integrated made no such assumption in preparing its Schedule 8A projections. In addition, Hospice Integrated’s projections assumed that five percent of applicants for Medicaid pass-through reimbursement would be rejected and that two percent of total revenue would be lost to bad debt
write-offs.
Notwithstanding Vitas’ attempts to criticize individual line items of Hospice Integrated’s Schedule 8A projections, Hospice Integrated’s total average costs per patient day were approximately the same as Wuesthoff’s--$19 per patient day. Vitas did not criticize Wuesthoff’s projections.
On the revenue side, Hospice Integrated’s projections were conservative in several respects. Projected patients days (6,800 in year one, and 16,368 in year two) were well within service volumes already achieved in hospices IHS recently has started in other states (which themselves exceeded their projections). Medicaid and Medicare reimbursement rates used in Hospice Integrated’s projections were low. Hospice Integrated
projects that 85% of its patients will be Medicare patients and that ten percent will be Medicaid. Using more realistic and reasonable reimbursement for these patients would add up to an additional $74,000 to projected excess of revenue over expenses in year two.
Wuesthoff also raised its own additional questions regarding the long-term financial feasibility of the Hospice Integrated proposal. Mostly, Wuesthoff questioned the inexperience of the Hospice Integrated entity, as well as IHS’ short track record. It is true that the hospices started by IHS were in operation for only 12-14 months at the time of the final hearing and that, on a consolidated basis, IHS’ hospices lost money in 1995. But financial problems in one hospice inherited when IHS acquired it skewed the aggregate performance of the hospices in 1995. Two of them did have revenues in excess of expenses for the year. In addition, Hospice of the Great Lakes, which was not acquired until 1996, also is making money. On the whole, IHS’ experience in the hospice arena does not undermine the financial feasibility of the Hospice Integrated application.
Wuesthoff also questioned Hospice Integrated’s assumption that the average length of stay (ALOS) of its hospice patients will increase from 55 to 65 days from year one to year two of operation. Wuesthoff contended that this assumption is counter to the recent trend of decreasing ALOS’s, and that assuming a flat ALOS would decrease projected revenues by
$262,000. But increasing ALOS from year one to year two is consistent with IHS’ recent experience starting up new hospices. In part, it is reasonably explained by the way in which patient census “ramps up” in the start up phase of a new hospice. As a program starts up, often more than average numbers of patients are admitted near the end of the disease process and die before the ALOS; also, as patient census continues to ramp up, often more than average numbers of patients who still are in the program at the end of year one will have been admitted close to the end of the year and will have been in the program for less than the ALOS. Finally, while pointing to possible revenue shortfalls of $262,000, Wuesthoff overlooked the corresponding expense reductions that would result from lower average daily patient census.
It is found that both proposals also are financially feasible in the long term.
State and Local Plan Preferences Local Health Plan Preference Number One
Preference shall be given to applicants which provide a comprehensive assessment of the impact of their proposed new service on existing hospice providers in the proposed service areas. Such assessment shall include but not be limited to:
A projection of the number of Medicare/Medicaid patients to be drawn away from existing hospice providers versus the projected number of new patients in the service area.
A projection of area hospice costs increases/decreases to occur due to the addition of another hospice provider.
A projection of the ratio of administrative expenses to patient care expenses.
Identification of sources, private donations, and fund-raising activities and their affect on current providers.
Projection of the number of volunteers to be drawn away from the available pool for existing hospice providers.
Both applicants provided an assessment of the impact of their proposed new service on existing hospice providers in the proposed service areas (although both applicants could have provided an assessment that better met the intent of the Local Health Plan Preference One.) There was no testimony that, and it is not clear from the evidence that, one assessment is markedly superior to the other. There also was no evidence as to how the assessments are supposed to be used to compare competing applicants.
Both applicants essentially stated that they would not have an adverse impact on the existing providers. The basis for this assessment was that there is enough underserved need in Service Area 7B to support an additional hospice with no adverse impact on the existing providers.
Vitas disputed the applicants’ assessment. Vitas presented evidence that it and Comforter have been unable, despite diligent marketing efforts, to achieve statewide average hospice use rates in Service Area 7B, especially for non-cancer and under 65 hospice eligible patients, that the existing
hospices can meet the needs of the hospice-eligible patients who are choosing hospice, and that other health care alternatives are available to meet the needs of hospice-eligible patients who are not choosing hospice.
Vitas also contended that the applicants will not be able to improve much on the marketing and community outreach efforts of the existing providers. In so doing, Vitas glossed over considerable evidence in the record that the addition of a hospice program, by its mere presence, will increase awareness of the hospice option in 7B regardless whether the new entrant improves upon the marketing efforts of the existing providers, and that increased awareness will result in higher conversion rates.
Vitas’ counter-assessment also made several other invalid assumptions. First, it is clear from the application of the FNP rule that, regardless of the conversion rate in Service Area 7B, the size of the pool of potential hospice patients clearly is increasing. Second, it is clear that the FNP rule is inherently conservative, at least in some respects. See Finding 24, supra.
The Vitas assessment also made the assumption that the existing providers are entitled to their current market share (87% for Vitas and 13% for Comforter) of anticipated increases in hospice use in Service Area 7B and that the impact of a new provider should be measured against this entitlement. But to the
extent that anticipated increased hospice use in Service Area 7B accommodates the new entrant, there will be no impact on the current finances or operations of Vitas and Comforter.
Finally, in attempting to quantify the alleged financial impact of an additional hospice program, Vitas failed to reduce variable expenses in proportion to the projected reduction in patient census. Since most hospice expenses are variable, this was an error that greatly increased the perceived financial impact on the existing providers.
While approval of either hospice program probably will not cause an existing provider to suffer a significant adverse impact, it seems clear that the impact of Wuesthoff’s proposal would be greater than that of Hospice Integrated.
Wuesthoff seeks essentially to duplicate its Brevard Hospice operation in Service Area 7B. Wuesthoff projects higher utilization (186 admissions in year one and 380 admissions in year two, as compared to the 124 and 250 projected by Hospice Integrated). In addition, Wuesthoff’s primary referral source for hospice patients—Florida Hospital—also is the primary referral source of Vitas, which gets 38% of its referrals from Florida Hospital.
In contrast, while also marketing in competition with the existing providers, Hospice Integrated will rely primarily on the physicians in Orange and Osceola Counties with whom IHS
already has working relationships through its home health agencies and skilled nursing facilities.
Hospice Integrated’s conservative utilization projections (124 admissions in year one and 250 in year two) will not nearly approach the service gap identified by the rule (407 admissions). In total, Hospice Integrated only projected obtaining 6% of the total market share in year one and 12% in year two, leaving considerable room for continued growth of the existing providers in the district.
The hospice industry has estimated that 10% of patients in long-term care facilities are appropriate for hospice care. IHS regularly uses an estimate of five percent. Common ownership of skilled nursing facilities and hospice programs allows better identification of persons with proper prognosis for hospice. These patients would not be drawn away from existing hospice providers.
In addition to the difference in overall utilization projections between the applicants, there also is a difference in focus as to the kinds of patients targeted by the two applicants.
The Hospice Integrated proposal focuses more on and made a greater commitment to non-cancer admissions. In addition, IHS has a good record of increasing hospice use by non-cancer patients. In contrast, Wuesthoff’s proposal focuses more on cancer admissions (projecting service to more cancer patients than represented by the underserved need for hospice for those
patients, according to the FNP rule) and did not commit to a percentage of non-cancer use in its application. For these reasons, Wuesthoff’s proposal would be expected to have a greater impact and be more detrimental to existing providers than Hospice Integrated.
Hospice Integrated also is uniquely positioned to increase hospice use by AIDS/HIV patients in Service Area 7B due to its HIV spectrum program at Central Park Village. It focused more on and made a greater commitment to this service in its application that Wuesthoff did it its application. To the extent that Hospice Integrated does a better job of increasing hospice use by AIDS/HIV patients, it is more likely to draw patients from currently underutilized segments of the pool of hospice-eligible patients in Service Area 7B and have less impact on existing providers than Wuesthoff.
Vitas makes a better case that its pediatric hospice program will be impacted by the applicants, especially Wuesthoff. Vitas’ census of pediatric hospice patients ranges between seven and 14. A reduction in Vitas’ already small number of pediatric hospice patients could reduce the effectiveness of its pediatric team and impair its viability.
Wuesthoff proposes to duplicate the Brevard Hospice pediatric program, creating a pediatric program with a specialized pediatric team and extensive pediatric programs, similar to Vitas’ program. On the other hand, Hospice Integrated
proposes a pediatric program but not a specialized team, and it would not be expected to compete as vigorously as Wuesthoff for pediatric hospice patients.
The evidence was not clear as to whether area hospice costs would increase or decrease as a result of the addition of either applicant in Service Area 7B. Vitas, in its case-in- chief, provided an analysis of projected impacts from the addition of either hospice provider. As already indicated, Vitas’ analysis incorporated certain invalid assumptions regarding the fixed/variable nature of hospice costs. However, Vitas’ analysis supported the view that Wuesthoff’s impact would be greater.
Wuesthoff’s ratio of administrative expenses to patient care expenses (24% to 76% in year one, dropping to 22% to 78% in year two) is lower than Hospice Integrated’s (26% to 71%).
Wuesthoff also appears more likely to compete more directly and more vigorously with the existing providers than Hospice Integrated for private donations, in fund-raising activities, and for volunteers.
Local Health Plan Preference Number Two
Preference shall be given to an applicant who will serve an area where hospice care is not available or where patients must wait more than 48 hours for admission, following physician approval, for a hospice program. Documentation shall include the number of patients who have been identified by providers of medical care and the reasons resulting in their delay of obtaining hospice care.
There was no direct evidence of patients who were
referred for hospice services but failed to receive them.
Local Health Plan Preference Number Three
Preference shall be given to an applicant who will serve in addition to the normal hospice population, an additional population not currently serviced by an existing hospice (i.e., pediatrics, AIDS patients, minorities, nursing home residents, and persons without primary caregivers.)
State Health Plan Factor Four
Preference shall be given to applicants which propose to serve specific populations with unmet needs, such as children.
State Health Plan Preference Number Five
Preference shall be given to an applicant who proposes a residential component to serve patients with no at- home support.
When Medicare first recognized hospice care in 1983, more than 90% of hospice cases were oncology patients. Although use of hospice by non-cancer patients has increased to 40% statewide, it lags behind in Service Area 7B, at only 27%.
Both applicants will serve non-cancer patients. But Hospice Integrated has made a formal commitment to 40% non-cancer patient days and has placed greater emphasis on expanding the provision of hospice services for non-cancer patients.
The clinical background of employees of IHS and Hospice Integrated can effectively employ NHO guidelines to identify the needs of AIDS patients and other populations. In its other hospice programs, IHS has succeeded in achieving percentages of non-cancer hospice use of 60% and higher.
Wuesthoff projects over 40% non-cancer patient days,
and is willing to accept a CON condition of 40% non-cancer patient days, but it did not commit to a percentage in its application.
In Service Area 7B, there are 1,200 people living with AIDS and 10,000 who are HIV positive. Both applicants would serve AIDS/HIV patients, but Hospice Integrated has demonstrated a greater commitment to this service. Not only does IHS have its HIV spectrum program at Central Park Village, it also has committed to five percent of its care for HIV patients.
Wuesthoff has agreed to serve AIDS/HIV patients, projects that about four percent of its patient days will be provided to AIDS/HIV patients, and would be willing to condition its CON on the provision of four percent of its care to AIDS/HIV patients. But Wuesthoff did not commit to a percentage in its application.
Both applicants will serve children, but Wuesthoff has demonstrated greater commitment and ability to provide these services. Ironically, Wuesthoff’s advantage in the area of pediatric hospice carries with it the disadvantage of causing a greater impact on Vitas than Hospice Integrated’s proposal. See Findings 101-102, supra.
While neither applicant specifically addressed the provision of services to minorities, both made commitments to provide services for Medicaid patients and the indigent.
Hospice Integrated’s commitment to Medicaid patients
is higher (ten percent as compared to seven percent for Wuesthoff). But the commitment to Medicaid patients is less significant in the hospice arena because Medicaid essentially fully reimburses hospice care.
Meanwhile, Wuesthoff committed seven percent to indigent/charity patients, as compared a five percent commitment to the indigent for Hospice Integrated. But there was some question as to whether Wuesthoff was including bad debt in the seven percent.
Both applicants will provide care for patients without primary caregivers.
Earlier in its short history of providing hospice, IHS required patients to have a primary caregiver. However, that policy has been changed, and IHS now accepts such patients.
Wuesthoff has long provided care for patients without primary caregivers.
Local Health Plan Preference Number Four
Preference shall be given to an applicant who will commit to contracting for existing inpatient acute care beds rather than build a free-standing facility.
State Health Plan Preference Number Six
Preference shall be given to applicants proposing additional hospice beds in existing facilities rather than the construction of freestanding facilities.
Neither applicant plans to build a free-standing facility for the provision of inpatient care. Both plan to
contract for needed inpatient acute care beds, to the extent necessary.
IHS’ common ownership of existing skilled nursing facilities in Service Area 7B allows Hospice Integrated access to subacute care at any time. However, not all physicians will be willing to admit all hospice patients to skilled nursing facilities for inpatient care, and Hospice Integrated also will have to contract with acute care facilities to cover those instances.
Wuesthoff relies on its proposed affiliation with Florida Hospital for needed inpatient care for its proposed Service Area 7B hospice.
State Health Plan Preference Number Two
Preference shall be given to an applicant who provides assurances in its application that it will adhere to the standards and become a member of the National Hospice Organization or will seek accreditation by the JCAHO.
Both applicants meet this preference.
Wuesthoff’s Brevard Hospice has JCAHO as well as membership in the National Hospice Organization (NHO).
IHS’s hospices are NHO members, and Hospice Integrated’s application states that it will become a member of the NHO.
Wuesthoff’s JCAHO accreditation does not give it an advantage under this preference.
Other Points of Comparison
In addition to the facts directly pertinent to the State and Local Health Plan Preference, other points of comparison are worthy of consideration.
General Hospice Experience
Wuesthoff went to great lengths to make the case that its experience in the hospice field is superior to that of Hospice Integrated and IHS. Wuesthoff criticized the experience of its opponent as being short in length and allegedly long on failures.
It is true that IHS was new to the field of hospice when it acquired its first hospice in December, 1994, and that it has had to deal with difficulties in venturing into a new field and starting up new programs. Immediately after IHS acquired Samaritan Care of Illinois, Martha Nickel assumed the role of Vice-President of Hospice Services for IHS. After several weeks in charge of the new acquisition, and pending the closing of the purchase of Samaritan Care of Michigan from the same owner set for later in 1995, Nickel uncovered billing improprieties not discovered during IHS’ due diligence investigations. As a result, IHS was required to reimburse the Health Care Financing Administration (HCFA) approximately $3.5 million, and the purchase price for Samaritan Care of Michigan was adjusted.
After this rocky start, IHS’ hospice operation settled down. Hospice Integrated’s teams have completed five to seven
start up operations and understand what it takes to enter a new market, increase community awareness, and achieve hospice market penetration.
Personnel who would implement Hospice Integrated’s approved hospice program have significant experience establishing new hospice programs, having them licensed and receiving accreditation. Without question, IHS’ Marsha Norman has the ability to start up a new hospice program.
In contrast, Wuesthoff has operated its hospice in Brevard County since 1984. It is true that Wuesthoff’s Brevard Hospice appears to have been highly successful and, compared to the IHS experience, relatively stable in recent years. But, at the same time, Wuesthoff personnel have not had recent experience starting up a new hospice operation in a new market.
Policies and Procedures
A related point of comparison is the status of the policies and procedures to be followed by the proposed hospices. Wuesthoff essentially proposes to duplicate its Brevard Hospice in Service Area 7B and simply proposes to use the same policies and procedures.
In contrast, IHS still is developing its policies and procedures and is adapting them to new regulatory and market settings as it enters new markets. As a result, the policies and procedures included in the Hospice Integrated application serve
as guidelines for the new hospice and more of them are subject to modification than Wuesthoff’s.
Regulatory Compliance
A related point of comparison is compliance with regulations. Wuesthoff contends that it will be better able to comply with Florida’s hospice regulations since it already operates a hospice in Florida.
In some respects, IHS’ staffing projections were slightly out of compliance with NHO staffing guidelines. However, Ms. Norman persuasively gave her assurance that Hospice Integrated would be operated so as to meet all NHO guidelines.
One of IHS’ hospice programs was found to have deficiencies in a recent Medicare certification survey, but those deficiencies were “paper documentation” problems that were quickly remedied, and the program timely received Medicare certification.
In several respects, the policies and procedures included in Hospice Integrated’s application are out of compliance with Florida regulations and will have to be changed. For example, the provision in Hospice Integrated’s policies and procedures for coordination of patient/family care by a social worker will have to be changed since Florida requires a registered nurse to fill this role. Similarly, allowance in the policies and procedures for hiring a lay person in the job of pastoral care professional (said to be there to accommodate the
use of shamans or medicine men for Native American patients) is counter to Florida’s requirement that the pastoral care professional hold a bachelor’s degree in pastoral care, counseling or psychology. Likewise, the job description of social worker in the policies and procedures falls below Florida’s standards by requiring only a bachelor’s degree (whereas Florida requires a master’s degree).
Although IHS does not yet operate a hospice in Florida, it has three long-term care facilities and two home health agencies in Service Area 7B, as well as 25 other skilled nursing facilities and several other new home health care acquisitions in Florida. Nationwide, IHS has nursing homes in 41 different states, home health care in 31 different states, and approximately 120 different rehabilitation service sites.
Through its experiences facing the difficulties of entering the hospice field through acquisitions, IHS well knows federal regulatory requirements and is quite capable of complying with them. IHS also has had experience with the hospice regulations of several other states. There is no reason to think that Hospice Integrated will not comply with all federal and state requirements.
Wuesthoff now knows how to operate a hospice in compliance with federal and state regulatory requirements. But, while Wuesthoff’s intent was to simply duplicate its Brevard Hospice in Service Area 7B, that intention leads to the problem
that its board of directors does not have the requisite number of residents of Service Area 7B. Measures will have to be taken to insure appropriate composition of its board of directors.
140. On balance, these items of non-compliance are relatively minor and relatively easily cured. There is no reason to think that either applicant will refuse or be unable to comply with regulatory requirements.
Not-for-Profit Experience
Wuesthoff clearly has more experience as a not-for- profit entity. This includes extensive experience in fund- raising and in activities which benefit the community. It also gives Wuesthoff an edge in the ability to recruit volunteers. See Findings 56-58, supra. Ironically, Wuesthoff’s advantages over Hospice Integrated in these areas probably would increase its impact on the existing providers. See Finding 105, supra.
Presence and Linkages in Service Area 7B
Presently, Wuesthoff has no presence in Service Area 7B. As one relatively minor but telling indication of this, Wuesthoff’s lack of familiarity with local salary levels caused it to underestimate its Schedule 8A projected salaries for its administrator, patient coordinator, nursing aides and office manager.
IHS has an established presence in Service Area 7B. This gives Hospice Integrated an advantage over Wuesthoff. For example, its projected salary levels were accurate.
Besides learning from experience, Wuesthoff proposes to counter Hospice Integrated’s advantage through its proposed affiliation with Florida Hospital.
While IHS’ presence and linkages in Service Area 7B is not insignificant, it pales in comparison to Florida Hospital’s. To the extent that Wuesthoff can developed the proposed affiliation, Wuesthoff would be able to overcome its disadvantage in this area.
Wuesthoff also enjoys a linkage with the Service Area 7B market through its affiliate membership in the Central Florida Health Care Coalition (CFHCC). The CFHCC includes large and small businesses, as well as Central Florida health care providers. Its goal is to promote the provision of quality health care services.
Quality Hospice Services
Both applicants deliver quality hospice services through their existing hospices and can be expected to do so in their proposed hospices. As an established and larger hospice than most of IHS’ hospices, Brevard Hospice can provide more enhanced services than most of IHS’. On the other hand, IHS has been impressive in its abilty to expand services to non-cancer patients, and it also is in a better position to provide services to AIDS/HIV patients, whereas Wuesthoff is better able to provide quality pediatric services.
Wuesthoff attempted to distinguish itself in quality of services through its JCAHO accreditation. Although Hospice Integrated’s application states that it will get JCAHO accreditation, it actually does not intend to seek JCAHO accreditation until problems with the program are overcome and cured.
Not a great deal of significance can be attached to JCAHO hospice accreditation. The JCAHO hospice accreditation program was suspended from 1990 until 1996 due to problems with the program. Standards were vague, and it was not clear that they complied with NHO requirements. Most hospices consider NHO membership to be more significant.
None of IHS’s new hospices are even eligible for JCAHO accreditation because they have not been in existence long enough.
Bereavement Programs
Wuesthoff’s bereavement programs appear to be superior to IHS’. Cf. Findings 44, and 63-64, supra. To some extent, Wuesthoff’s apparent superiority in this area (as in some others) may be a function of the size of Brevard Hospice and the 14-year length of its existence.
The provisions in the policies and procedures included in the Hospice Integrated application relating to bereavement are cursory and sparse. IHS relies on individual programs to develop their own bereavement policies and procedures.
The provisions in the policies and procedures included in the Hospice Integrated application relating to bereavement include a statement that a visit with the patient’s family would be conducted “if desired by the family and as indicated by the needs of the family.” In fact, as Hospice Integrated concedes, such a visit should occur unless the family expresses a desire not to have one.
Continuum of Care
One of IHS’ purposes in forming Hospice Integrated to apply for a hospice CON is to improve the continuum of care it provides in Service Area 7B. The goal of providing a continuum of care is to enable case managers to learn a patient’s needs and refer them to the appropriate care and services as the patient’s needs change. While IHS already has an integrated delivery system in Service Area 7B, it lacks hospice. Adding hospice will promote the IHS continuum of care.
Since it lacks any existing presence in Service Area 7B, granting the Wuesthoff application will not improve on an existing delivery system in the service area.
I. Continuous and Respite Care
Though small components of the total hospice program, continuous or respite hospice care should be offered by every quality provider of hospice and will be available in IHS’ program.
Wuesthoff’s application failed to provide for continuous or respite hospice care. However, Wuesthoff clearly is capable of remedying this omission.
Result of Comparison
Both applicants have made worthy proposals for hospice in Service Area 7B. Each has advantages over the other. Balancing all of the statutory and rule criteria, and considering the State and Local Health Plan preferences, as well as the other pertinent points of comparison, it is found that the Hospice Integrated application is superior in this case. Primary advantages of the Hospice Integrated proposal include: IHS’ presence in Service Area 7B, especially its HIV spectrum program at Central Park Village; its recent experience and success in starting up new hospice programs; its success in expanding hospice to non-cancer patients elsewhere; Hospice Integrated’s greater commitment to extend services to the underserved non- cancer and AIDS/HIV segments of the hospice-eligible population; and IHS’ ability to complete its continuum of care in Service Area 7B through the addition of hospice. These and other advantages are enough to overcome Wuesthoff’s strengths. Ironically, some of Wuesthoff’s strengths, including its strong pediatric program and its ability (in part by virtue of its not- for-profit status) and intention generally to compete more vigorously with the existing providers on all fronts, do not serve it so well in this case, as they lead to greater impacts on
the existing providers.
CONCLUSIONS OF LAW
Certificate of need review criteria generally are found in Section 408.035, Fla. Stat. (1995). However, Section 408.043(2), Fla. Stat. (1995), makes special provisions for hospices, including the following:
When an application is made for a certificate of need to establish or to expand a hospice, the need for such hospice shall be determined on the basis of the need for and availability of hospice services in the community. The formula on which the certificate of need is based shall discourage regional monopolies and promote competition.
The “formula on which the certificate of need is based” is contained in F.A.C. Rule 59C-1.0355 (the “rule”). Paragraph (1) of the rule states that it implements Section 408.043(2), Fla. Stat. (1995), among others. Paragraph (4) of the rule sets out the “Criteria for Determination of Need for a New Hospice Program.”
Subparagraph (4)(a) of the rule sets out a formula for determined the numeric need for a new hospice program. It essentially compares the projected number of patients electing a hospice program in a planning service area, such as 7B, in the planning year, using statewide hospice use rates for each of four components of patients (terminal cancer patients age 65 and over, terminal cancer patients under 65, terminal non-cancer patients age 65 and over, and terminal non-cancer patients under 65), with actual current hospice use. If the result of the comparison is a
“gap” of 350 or more hospice admissions, the formula establishes a numeric need for an additional hospice program.
. Subparagraph (4)(b) of the rule provides:
Regardless of numeric need shown under the formula in paragraph (4)(a), the agency shall not normally approve a new hospice program for a service area unless each hospice program serving that area has been licensed and operational for at least 2 years . . ..
Subparagraph (4)(c) of the rule provides:
Regardless of numeric need shown under the formula in paragraph (4)(a), the agency shall not normally approve another hospice program for any service area that has an approved hospice program that is not yet licensed.
Subparagraph (4)(d) of the rule provides that, in the absence of numeric need, the following special circumstances must be shown to justify approval of an additional hospice program:
That a specific terminally ill population is not being served.
That a county or counties within the service area of a licensed hospice program are not being served.
That there are persons referred to hospice programs who are not being admitted within 48 hours . . ..
In this case, it has been demonstrated that, under the rule, there is a need for an additional hospice program in Service Area 7B. There is numeric need under subparagraph (4)(a) because the “gap” far exceeds 350. With reference to subparagraph (4)(b), each hospice program serving 7B has been licensed and operational for at least 2 years. With reference to subparagraph (4)(c), there are no approved but unlicensed hospice programs in 7B. As a result, the agency published notice of a
fixed need pool (FNP) of one additional hospice program for Service Area 7B. It was not necessary for the applicants to resort to or demonstrate the special circumstances set out in subparagraph (4)(d) of the rule.
In addition to the clear provisions of the “Criteria for Determination of Need for a New Hospice Program” found in
F.A.C. Rule 59C-1.0355(4), other AHCA rules support this view.
F.A.C. Rule 59C-1.008(2)(d) requires the agency to award the “services identified in a fixed need pool . . . based on the availability of a qualified applicant and proposed project which meets statutory review criteria . . ..” F.A.C. Rule 59C- 1.008(2)(e) provides:
The fixed need pools and other relevant planning information shall be used by the agency to review the application against all statutory criteria contained in paragraphs 408.035(1)(a) through (n), F.S., and applicable rules, and policies.
It then goes on to give guidance in the event there is no need methodology in place.
From the time of its initial pleading in Case No. 96- 1401 up to the filing of its proposed recommended order in these consolidated cases, Vitas took the position that the FNP determination in this case was incorrect for various reasons. (Vitas did not file a challenge to the FNP rule under Section 120.56, Fla. Stat. (1995).) However, when Vitas filed its proposed recommended order, Vitas dismissed its FNP challenge.
Instead, Vitas has maintained that, notwithstanding the FNP, there is no need for a new hospice program in Service Area 7B. Vitas’ argument derives from the general statutory certificate of need review criteria found in Section 408.035, Fla. Stat. (1995), and referenced in the FNP rules. But, as will be seen, Vitas’ argument actually amounts to an improper challenge to AHCA’s rules.
At the outset of considering Vitas’ arguments, it should be noted that Section 408.035(1), Fla. Stat. (1995), does not establish minimum criteria for approval of a CON application. Rather, it only requires AHCA to “review applications for certificate-of-need determinations . . . in context with the following criteria . . ..” Some of the 408.035(1) review criteria overlap, some are mutually inconsistent, and some are hard to understand. It is apparent from the statutory criteria that cost containment is not the only purpose to be served by the certificate of need statute. In reviewing CON applications “in context with” the criteria, the conflicting goals and objectives of certificate of need regulation--the desire for effective cost containment, the desire to provide health services for the poor, and the desire for an efficient, effective and certain administrative processing of certificate of need applications-- must be reconciled. For these reasons, a balanced consideration must be given to the criteria. See Balsam v. Dept. of Health and Rehab. Services, 486 So.2d 1341 (Fla. 1st DCA 1986); Humana,
Inc., v. Dept. of Health and Rehab. Services, 469 So.2d 889 (Fla. 1st DCA 1985). “[T]he appropriate weight to be given to each individual criterion contained in the statute regarding CON applications is not fixed, but rather must vary on a case-by-case basis, depending on the facts in each case.” Collier v. Dept. of Health and Rehab. Services, 462 So.2d 83 (Fla. 1st DCA 1985).
Vitas first cites Section 408.035(1)(a), which refers to “need . . . in relation to the applicable district plan and state health plan . . ..” Vitas then points to various district and state plan preferences to be used in comparing proposals and argues that there is no need if an applicant cannot demonstrate that it meets all of the preferences. It is true that F.A.C. Rule 59C-1.0355(5), on “Consistency with Plans,” requires that an applicant “provide evidence in the application that the proposal is consistent with the needs of the community and other criteria contained in local health council plans and the State Health Plan.” But the requirement that an application be consistent with the local and state plans does not transform these preferences into minimum criteria. Secondly, Vitas omits reference to the one provision of the state health plan which does, by its terms, relate to need and establish minimum criteria for assessing need—i.e., the FNP rule.
Vitas made similar arguments with reference to the Section 408.035(1)(b) and (d) criteria. Criterion (1)(b) is: “The availability, quality of care, efficiency, appropriateness,
accessibility, extent of utilization, and adequacy of like and existing health care services and hospices in the service district of the applicant.” Criterion (1)(d) is: “The availability and adequacy of other health care facilities and services and hospices in the service district of the applicant,
. . . which may serve as alternatives . . ..” Vitas argues essentially is that existing hospice providers (Vitas and Hospice of the Comforter), along other health care alternatives available to hospice-eligible patients (including VNA’s Hope and Recovery Program and the continuation of aggressive treatment), are meeting, and can continue to meet the needs of those patients, and that there is no need for an additional hospice program.
Other references to the Section 408.035(1) criteria in the FNP rule also do not transform them into minimum criteria. For example, F.A.C. Rule 59C-1.0355(3)(b), on “Conformance with Statutory Criteria,” provides that an application for a hospice CON will not be approved “unless the applicant meets the applicable review criteria in sections 408.035 and 408.043(2), F.S., and the standards and need determination criteria set forth in this rule.”
Consideration of the Section 408.035(1)(b) and (d) criteria cannot be used to overcome the determination of a FNP under the FNP rule. To do so would defeat the express purpose of the rule and, in effect, amount to a challenge to the validity of the rule. See Sacred Heart Hosp. Of Pensacola v. AHCA, et al.,
14 FALR 5198, 5199 (AHCA 1992)(“the capacity of existing providers is not dispositive”).
Vitas’ arguments also served to demonstrate the reality that, due to the nature of hospice, existing providers usually will be able to expand their programs as patients increasingly seek hospice so that, if consideration of the Section 408.035(1)(b) and (d) criteria could be used to overcome the determination of a FNP under the FNP rule, there may never be “need” for an additional program. Opting against such an anti- competitive rule, the Legislature has required and AHCA has crafted a rule that allows for the controlled addition of new entrants into the competitive arena.
At the very least (at best, from Vitas’ point of view), “a finding of numeric need establishes a rebuttable presumption of need.” Final Order, Martin Memorial Medical Center, Inc. v. Agency for Health Care Administration, et. al.,
17 FALR 1631, 1532 (AHCA, 1995). See also Balsam, supra. At best, Vitas was able to prove: that it and Comforter have been unable, despite diligent marketing efforts, to achieve statewide average hospice use rates in Service Area 7B, especially for non- cancer and under 65 hospice eligible patients; that the applicants may not be able to improve much on the efforts of the existing providers in this regard; that the existing hospices can meet the needs of the hospice-eligible patients who are choosing hospice; and that other health care alternatives are available to
meet the needs of hospice-eligible patients who are not choosing hospice. But those considerations do not defeat the finding of a “health planning need” under a balanced consideration of all of the criteria, including the FNP rule; otherwise, inordinate weight would be given to factors other than the FNP rule.
In addition, Vitas’ arguments glossed over contrary evidence in the record. First, it is clear from the application of the FNP rule that, regardless of the conversion rate in Service Area 7B, the size of the pool of potential hospice patients clearly is increasing. Second, it is clear that the FNP rule is inherently conservative, at least in some respects. See Finding 24, supra. Finally, there was considerable evidence that the addition of a hospice program, by its mere presence, will increase awareness of the hospice option in 7B regardless whether the new entrant improves upon the marketing efforts of the existing providers, and that increased awareness will result in higher conversion rates.
It is possible for consideration of other criteria to override even a FNP determination. Clearly, a proposed project must be financially feasible, both in the immediate and long term, under Section 408.035(1)(i), Fla. Stat. (1995). See Suburban Medical Hosp. v. Dept. of Health and Rehab. Serv., 600 So.2d 1195, 1196-1197 (Fla. 3d DCA 1992); First Hosp. Corp. of Fla. v. Dept. of Health and Rehab. Serv., 589 So.2d 310 (Fla. 1st DCA 1991). But Vitas’ argument on this criterion hinged in part
on its contention that there is no need for an additional hospice program in Service Area 7B. It also was based in part on a misapprehension of the facts. As found, both projects are financially feasible in the immediate and long-term.
Section 408.035(1)(l), Fla. Stat. (1995), requires consideration of the “probable impact of the proposed project on the costs of providing health services proposed by the applicant,
. . . the effects of competition on the supply of health services being proposed and the improvements or innovations in the financing and delivery of health services which foster competition and service to promote quality assurance and cost- effectiveness.” Although Vitas argued that the proposed hospice programs were adversely impact the existing providers, the argument does not clearly articulate an alleged impact under the 408.035(1)(l) criterion. To the contrary, the addition of a hospice program clearly will increase competition, and reduced admissions to a program does not create a quality assurance issue for hospice, as is would, for example, for open heart surgery.
Vitas also pointed to the Local Health Plan’s Preference One, for a proposal that includes a comprehensive assessment of the impact on existing providers. As already indicated, this is a preference for choosing from among more than one competing application. In any event, both applicants assessed the impact on the local providers, albeit not as Vitas would have had them do. As found, there may be an impact on
existing providers, but the extent of the impact is not enough to overcome the FNP determination in this case.
Having rejected Vitas’ arguments that no new hospice program should be approved, the even more difficult decision of choosing between the two applicants in this case remained to be made. As indicated, AHCA (and the Administrative Law Judge) must give a balanced consideration to the applications in light of all the statutory and rule criteria. Neither the statute nor the rules give much guidance as to the relative importance of the various criteria, but the best possible comparison has been made. It has been found, and must be concluded, that the Hospice Integrated application is the better choice in this case.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the AHCA enter a final order approving CON application number 8406 so that Hospice Integrated may establish a hospice program in the AHCA Service Service Area 7B but denying CON application number 8407 filed by Wuesthoff.
RECOMMENDED this 6th day of May, 1997, at Tallahassee, Florida.
J. LAWRENCE JOHNSTON Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675 SUNCOM 278-9675
Fax FILING (904) 921-6847
Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1997.
COPIES FURNISHED:
J. Robert Griffin, Esquire 2559 Shiloh Way Tallahassee, Florida 32308
Thomas F. Panza, Esquire Seann M. Frazier, Esquire
Panza, Maurer, Maynard & Neel, P.A. NationsBank Building, Third Floor 3600 North Federal Highway
Fort Lauderdale, Florida 33308
David C. Ashburn, Esquire
Gunster, Yoakley, Valdes-Fauli & Stewart, P.A.
215 South Monroe Street, Suite 830 Tallahassee, Florida 32301
Richard Patterson Senior Attorney
Agency for Health Care Administration Fort Knox Building 3, Suite 3431
2727 Mahan Drive
Tallahassee, Florida 32308-5403
Sam Power, Agency Clerk
Agency for Health Care Administration Fort Knox Building 3, Suite 3431
2727 Mahan Drive
Tallahassee, Florida 32308-5403
Jerome W. Hoffman General Counsel
Agency for Health Care Administration 2727 Mahan Drive
Tallahassee, Florida 32308-5403
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Jul. 02, 2004 | Final Order filed. |
| Oct. 02, 1997 | Sam Powers has the case files, case on Agency Appeal. |
| May 06, 1997 | Recommended Order sent out. CASE CLOSED. Hearing held 11/18-26/96. |
| Apr. 28, 1997 | (From D. Ashburn) Notice of Change of Address received. |
| Mar. 06, 1997 | Hospice Integrated Health Services of District VII-B, Inc. and the Agency for Healthcare Administration`s Joint Proposed Recommended Order received. |
| Mar. 06, 1997 | Proposed Recommended Order submitted by Vitas Healthcare Corporation of Central Florida received. |
| Mar. 06, 1997 | Wuesthoff Health Services, Inc.`s proposed findings of fact and conclussions of law received. |
| Mar. 06, 1997 | Notice of Voluntary Dismissal received. |
| Feb. 10, 1997 | (Wuesthoff Health Services, Inc.) Response to Motion for Extension of Time to File Proposed Recommended Orders received. |
| Feb. 10, 1997 | Letter to JLJ from D. Ashburn Re: Deadline for filing proposed recommended orders received. |
| Feb. 10, 1997 | Order Denying Extension of Time sent out. (Re: for PRO's) |
| Feb. 06, 1997 | (Petitioner) Motion for Extension of Time to File Proposed Recommended Orders (filed via facsimile) received. |
| Feb. 04, 1997 | Notice of Filing; (Volumes 10-13 of 13) DOAH Court Reporter Final Hearing Transcript received. |
| Jan. 31, 1997 | Notice of Filing; (Volumes 4-9 of 13) DOAH Court Reporter Final Hearing Transcript received. |
| Jan. 27, 1997 | Notice of Filing; Volumes 1-3 of 13 DOAH Court Reporter Final Hearing Transcript received. |
| Nov. 18, 1996 | (Joint) Stipulation of Facts (filed w/judge at hearing) received. |
| Nov. 18, 1996 | CASE STATUS: Hearing Held. |
| Nov. 18, 1996 | (From S. Frazier) Notice of Telephone Deposition Duces Tecum received. |
| Nov. 06, 1996 | (From S. Frazier) Notice of Deposition Duces Tecum (Cancels Previous Deposition of Friday, October 25, 1996 at 1:00 p.m.) received. |
| Nov. 06, 1996 | AHCA Witness and Exhibit Lists received. |
| Nov. 06, 1996 | (Joint) Prehearing Stipulation; Intervenors, Integrated's, Preliminary Witness List; Hospice Integrated Health Services of District VII-B, Inc.'s Compliance With Order of Prehearing Instructions; Vitas Healthcare Corporation of Central Florida Witness a |
| Nov. 05, 1996 | Wuesthoff Health Services, Inc.'s Responses to Vitas Health Care Corporation of Central Florida's First Request for Production of Documents; Wuesthoff Health Services, Inc.'s Objections to Vitas Health Care Corporation of Central Florida's First Set of |
| Nov. 05, 1996 | Integrated`s Notice of Service of Answers to Vitas` First Set of Interrogatories received. |
| Nov. 05, 1996 | Integrated`s Objections and Response to Vitas` First Request for Production of Documents received. |
| Oct. 30, 1996 | Hospice Integrated Health Services of District VII-B, Inc.`s Compliance With Order of Prehearing Instructions; Intervenor, Integrated`s Preliminary Witness List (filed via facsimile) received. |
| Oct. 28, 1996 | Hospice Integrated Health Services of Florida, Inc.`s Notice of Service of Answers to Wuesthoff Health Services, Inc.`s First Set of Interrogatories received. |
| Oct. 28, 1996 | Integrated`s Objections and Response to Wuesthoff Health Services, Inc.`s First Request for Production of Documents received. |
| Oct. 25, 1996 | (Respondent) Response to Order Continuing and Rescheduling Formal Hearing received. |
| Oct. 25, 1996 | (Integrated) Re-Notice of Deposition Duces Tecum (Cancels Previous Deposition of Friday, October 25, 1996 at 8:00 a.m.) received. |
| Oct. 23, 1996 | Vitas Healthcare Corporation of Central Florida`s Response In Opposition to Motion to Compel Better Answers to Hospice Integrated Health Services Inc.`s First Request for Admissions Upon Hospice of Central Florida (filed via facsimile) received. |
| Oct. 23, 1996 | Vitas Healthcare Corporation of Centeral Florida`s Responses to Wuesthoff Health Services, Inc.`s First Request for Production of Documents (filed via facsimile) received. |
| Oct. 23, 1996 | Notice of Service of Vitas Healthcare Corporation of Centeral Florida`s answers and Objections to Wuesthoff Health Services Inc.`s First Set of Interrogatories (filed via facsimile) received. |
| Oct. 22, 1996 | Order Continuing and Rescheduling Formal Hearing sent out. (hearing reset for Nov. 18-22 & 25-27, 1996; 10:00am; Tallahassee) |
| Oct. 21, 1996 | (Wuesthoff) Response to Joint Motion for Continuance and Motion to Amend Prehearing Order (filed via facsimile) received. |
| Oct. 21, 1996 | Wuesthoff Health Services, Inc.'s Notice of Service of Answers to First Set of Interrogatories of Hospice Integrated Health Services of District VII-B, Inc.; Wuesthoff Health Services, Inc.'s Objections Hospice Integrated Health Services of District 7B' |
| Oct. 21, 1996 | Wuesthoff Health Services Responses to Hospice Integrated Health Services of District 7B's First Request for Admissions; Wuesthoff Health Services, Inc.'s Responses to Hospice Integrated Health Services of District 7B's First Request for Production of D |
| Oct. 21, 1996 | (From S. Frazier) Re-Notice of Deposition Duces Tecum (Cancels Depo of 10/25/96); Notice of Deposition Duces Tecum received. |
| Oct. 21, 1996 | (From S. Frazier) (2) Notice of Deposition Duces Tecum received. |
| Oct. 18, 1996 | Joint Motion for Continuance and Motion to Amend Prehearing Order (filed via facsimile) received. |
| Oct. 18, 1996 | Integrated`s Notice of Hearing On Motion to Continue and Motion to Amend Prehearing Order (filed via facsimile) received. |
| Oct. 16, 1996 | Intervenor, Hospice Integrated Health Services of District VII-B, Inc.`s Request for Admissions to Petitioner, Hospice of Central Florida, Inc. (filed via facsimile) received. |
| Oct. 04, 1996 | Wuesthoff Health Services, Inc.'s First Request for Production to Vitas Healthcare Corporation of Central Florida; Notice of Service of Wuesthoff Health Services, Inc.'s First Set of Interrogatories Upon Petitioner Vitas Healthcare Corporation of Centra |
| Oct. 02, 1996 | Vitas Healthcare Corporation of Central Florida`s First Request for Production of Documents to Hospice Integrated Health Services of District VII-B, Inc. received. |
| Oct. 02, 1996 | Notice of Service of Vitas Healthcare Corporation of Central Florida`s First Set of Interrogatories to Hospice Integrated Health Services of District VII-B Inc. (filed via facsimile) received. |
| Oct. 02, 1996 | Vitas Healthcare Corporation of Central Florida`s First Requests for Production of Documents to Wuesthoff Health Services, Inc. (filed via facsimile) received. |
| Sep. 27, 1996 | (Vitas Healthcare) Notice of Taking Depositions Duces Tecum (filed via facsimile) received. |
| Sep. 24, 1996 | Hospice Integrated Health Services of Florida, Inc.`s First Request for Production of Documents to Wuesthoff Health Services, Inc. received. |
| Sep. 24, 1996 | (Petitioners) First Request for Admissions to Wuesthoff Health Services, Inc. (unsigned); Hospice Integrated Health Services of Florida, Inc.`s Notice of Service of Interrogatories to Wuesthoff Health Services, Inc. received. |
| Sep. 20, 1996 | Notice of Service of Wuesthoff Health Services, Inc.`s First Set of Interrogatories Upon Petitioner Hospice Integrated Health Services of District VII-B, Inc. received. |
| Sep. 20, 1996 | Wuesthoff Health Services, Inc. First Request for Admissions to Hospice Integrated Health Services of District VII-B, Inc.; Wuesthoff Health Services, Inc.'s First Request for Production to Hospice Integrated Health Services of District VII-B, Inc. rec' |
| Sep. 20, 1996 | Notice of Service of Vitas Healthcare Corporation of Central Florida`s Answers to Hospice Integrated Health Services of District VII-B, Inc.`s First Set of Interrogatories received. |
| Sep. 20, 1996 | Responses to Intervenor, Hospice Integrated Health Services of District VII-B, Inc.`s First Request for Production of Documents received. |
| Sep. 18, 1996 | (Respondent) Response to Intervenor, Hospice Integrated Health Services of District VII-B, Inc.`s Request for Admissions to Agency for Health Care Administration received. |
| Sep. 13, 1996 | Notice of Hearing sent out. (hearing set for Nov. 12-15 & 18-21, 1996; 10:00am; Tallahassee) |
| Sep. 11, 1996 | (Petitioner) Response to Prehearing Order (filed via facsimile) received. |
| Aug. 30, 1996 | Amended Prehearing Order and Order of Consolidation sent out. |
| Aug. 30, 1996 | Order Granting Motion for Continuance and Consolidation sent out. (Consolidated cases are: 96-1401, 96-4077, 96-4078 & 96-4079) |
| Aug. 29, 1996 | (Intervenor) Response In Opposition to Continuance and Consolidation (filed via facsimile). |
| Aug. 28, 1996 | Joint Response in Opposition to Motion to Expedite Discovery received. |
| Aug. 27, 1996 | Joint Motion for Continuance and Consolidation (Cases to be consolidated: 96-1401 & 96-4078) received. |
| Aug. 27, 1996 | Integrated`s Notice of Hearing On Motion to Expedite Discovery and Other Pending Motions (filed via facsimile) received. |
| Aug. 23, 1996 | Order Granting Intervention sent out. (by: Hospice Integrated HealthServices of District VII-B) |
| Aug. 22, 1996 | Itervenor, Hospice Integrated Health Services of District VII-B, Inc.`s Request for Admissions to Petitioner, Hospice of Central Florida, Inc. (filed via facsimile) received. |
| Aug. 22, 1996 | Intervenor, Hospice Integrated Health Services of District VII-B, Inc.`s Request for Admissions to Agency for Health Care Administration (filed via facsimile) received. |
| Aug. 22, 1996 | (Intervenor) Motion to Expedite Discovery (filed via facsimile) received. |
| Aug. 21, 1996 | Intervenor, Hospice Integrated Health Services of District VII-B, Inc.`s First Set of Interrogatories to Petitioner, Hospice of Central Florida, Inc. (filed via facsimile) received. |
| Aug. 21, 1996 | Intervenor, Hospice Integrated Health Services of District VII-B, Inc.`s Notice of Service of First Set of Interrogatories to Petitioner, Hospice of Central Florida, Inc. (filed via facsimile) received. |
| Aug. 09, 1996 | (Vitas Healthcare) Notice of Substitution of Parties received. |
| Aug. 07, 1996 | (Intervenor) Integrated`s Petition to Intervene (filed via facsimile)received. |
| Aug. 01, 1996 | (Petitioner) Notice of Relocation and Change of Address of Counsel received. |
| Jul. 03, 1996 | Order Granting Intervention sent out. (by: Wuesthoff Health Services) |
| Jun. 18, 1996 | (Wuesthoff Health Services) Petition to Intervene received. |
| Apr. 08, 1996 | Notice of Hearing sent out. (hearing set for 9/6/96; 10:00am; Tallahassee) |
| Mar. 29, 1996 | Joint Response to Prehearing Order received. |
| Mar. 20, 1996 | (Initial) Prehearing Order sent out. |
| Mar. 19, 1996 | Notification card sent out. |
| Mar. 13, 1996 | Notice, (Exhibits); Petition for Formal Administrative Hearing received. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 11, 1997 | Agency Final Order | |
| May 06, 1997 | Recommended Order | Challenge to hospice fixed need dismissed. Other criteria don't overcome fixed need pool of one. Comparison of two applications close but non-cancer and AIDS focus deciding factors. |
