FILED STATE OF FLORIDA noc CLERK AGENCY FOR HEALTH CARE ADMINISTRATION “o="™ b+ 21 OF6 13 AW 2u RENDITION NO.: AHCA-O1- O'lteto-FOF-CON CON NOS. 9928 and 9931 HOSPICE OF THE PALM COAST, INC., Petitioner, v. CASE NO. 06-3653CON AHCA NO. 2006008332 STATE OF FLORIDA, AGENCY FOR sys HEALTH CARE ADMINISTRATION; and CATHOLIC HOSPICE, INC., Respondents. CATHOLIC HOSPICE, INC., Petitioner, v. CASE NO. 06-4123CON AHCA NO. 2006009261 STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION; and HOSPICE OF THE PALM COAST, INC., Respondents. / FINAL ORDER This case was referred to the Division of Administrative Hearings (“DOAH”) where the assigned Administrative Law Judge (“ALJ”), David M. Maloney, conducted a formal administrative hearing. At issue in this proceeding is whether the Agency for Health Care Administration (“Agency”) should approve either, both or neither of the certification of need (“CON”) applications of Hospice of the Palm Coast, Inc. (“Palm Coast”) and Catholic Hospice, Inc. (“Catholic Hospice”) to establish a new hospice program in Broward County, Agency Acute Care District 10. The Recommended Order dated October 26, 2007, is attached to this final order and incorporated herein by reference. RULINGS ON EXCEPTIONS Palm Coast filed exceptions to which Catholic Hospice filed a response. In its First Exception, Palm Coast took exception to Paragraph 91 of the Recommended Order, arguing that the finding that Catholic Hospice far surpassed the Medicare guidelines for maintaining contact with families of hospice patients for up to 13 months following the death of the hospice patient was not supported by competent, substantial evidence. However, contrary to Palm Coast’s argument, the finding of fact in Paragraph 91 of the Recommended Order was based on competent, substantial evidence. See Transcript, Volume 3, Pages 311-312; Catholic Hospice Exhibit 1, Pages 624-626; Catholic Hospice Exhibit 5; and Catholic Hospice Exhibit 79 at Page 13. Thus, the Agency is prohibited from rejecting or modifying the ALJ’s finding of fact. See § 120.57(1)(), Fla. Stat.; and Heifetz_ v. Department of Bus. Regulation, 475 So.2d 1277, 1281 (Fla. 1985) (holding that an agency “may not reject the hearing officer’s finding [of fact] unless there is no competent, substantial evidence from which the finding could reasonably be inferred”). Therefore, Palm Coast’s First Exception is denied. In its Second Exception, Palm Coast took exception to the findings of fact in Paragraph 109 of the Recommended Order, arguing that the findings of fact were not supported by competent, substantial evidence. However, contrary to Palm Coast’s assertion, the findings of fact in Paragraph 109 of the Recommended Order were based on competent, substantial evidence. See Transcript, Volume 5, Pages 622-625; Transcript, Volume 6, Pages 695-699 and 746; Transcript, Volume 7, Pages 896-897; Palm Coast Exhibit 34 at Pages 92-94 and 104-105; and Catholic Hospice Exhibit 75 at Page 10. Thus, the Agency cannot reject or modify them. See § 120.57(1)(, Fla. Stat.; and Heifetz. Therefore, Palm Coast’s Second Exception is denied. In its Third Exception, Palm Coast took exception to Paragraph 110 of the Recommended Order, arguing that the finding of fact that “Palm Coast pays a management fee to Odyssey because that is the only way for the case to flow upstream under Florida law” was not supported by competent, substantial evidence. However, despite Palm Coast’s assertions to the contrary, the finding of fact in Paragraph 110 of the Recommended Order was based on competent, substantial evidence. See Palm Coast Exhibit 30 at Pages 16-17. Thus, the Agency is prohibited from rejecting or modifying it. See § 120.57(1)(), Fla. Stat.; and Heifetz. Therefore, Palm Coast’s Third Exception is denied. In its Fourth Exception, Palm Coast took exception to the findings of fact in Paragraph 132 of the Recommended Order, arguing that the findings of fact were not supported by competent, substantial evidence. However, contrary to Palm Coast’s assertions, the findings of fact in Paragraph 132 of the Recommended Order were based on competent, substantial evidence. See, ¢.g., Transcript, Volume 5, Pages 610, 626, 634-635 and 639-640; Transcript, Volume 6, Pages 658-659, 662-663, 675-676, 695-699, 702-703 and 705; Transcript, Volume 10, Pages 1343-1344, 1348 and 1353; Catholic Hospice, Exhibit 4; Catholic Hospice Exhibit 78 at Pages 69-72 and 78-80; Catholic Hospice Exhibit 79 at Pages 10-11. Thus, the Agency cannot reject or modify them. See § 120.57(1)(), Fla. Stat.; and Heifetz. Therefore, Palm Coast’s Fourth Exception is denied. In its Fifth Exception, Palm Coast took exception to the findings of fact in Paragraph 133 of the Recommended Order, arguing that the ALJ’s finding that “Palm Coast emphasizes serving non-cancer patients 65 and older and seeks to emphasize penetration of the market segment represented by the population seeing it as underserved” was not supported by competent, substantial evidence. However, despite Palm Coast’s assertions to the contrary, the afore- mentioned finding of fact was based on competent, substantial evidence. See, ¢.g., Transcript, Volume 4, Pages 424-425; and Transcript, Volume 7, Pages 808-810 and 948. Thus, the Agency is prohibited from rejecting or modifying it. See § 120.57(1)(), Fla. Stat.; and Heifetz. Therefore, Palm Coast’s Fifth Exception is denied. In its Sixth Exception, Palm Coast took exception to Paragraph 134 of the Recommended Order, arguing that the ALJ’s finding that “Palm Coast’s belief that non-cancer patients 65 and older are underserved” was not supported by competent, substantial evidence. However, despite Palm Coast’s argument to the contrary, the finding in question was based on competent, substantial evidence. See Transcript, Volume 7, Pages 806-807, 808-811 and 948-949; and Palm Coast Exhibit 1 at Pages 51-54. Thus, the Agency cannot reject or modify it. See § 120.57(1)(), Fla. Stat.; and Heifetz. Therefore, Palm Coast’s Sixth Exception is denied. In its Seventh Exception, Palm Coast took exception to Paragraph 141 of the Recommended Order, arguing that the ALJ’s finding that “[nJon-cancer patients tend to be less costly” was not based on competent, substantial evidence. However, notwithstanding Palm Coast’s argument, the afore-mentioned finding was based on competent, substantial evidence. See Transcript, Volume 4, Pages 413-418. Thus, the Agency is prohibited from rejecting or modifying it. See § 120.57(1)(), Fla. Stat.; and Heifetz. Therefore, Palm Coast’s Seventh Exception is denied. In its Eighth Exception, Palm Coast took exception to the findings of fact in Paragraph 142 of the Recommended Order, arguing that the findings were not supported by competent, substantial evidence. However, despite Palm Coast’s assertions to the contrary, the findings of fact in Paragraph 142 of the Recommended Order were based on competent, substantial evidence. See Transcript, Volume 4, Pages 413-418 and 427-429; and Transcript, Volume 5, Page 647. Thus, the Agency cannot reject or modify them. See § 120.57(1)(), Fla. Stat.; and Heifetz. Therefore, Palm Coast’s Eighth Exception is denied. In its Ninth Exception, Palm Coast took exception to Paragraph 144 of the Recommended Order, arguing that the ALJ’s finding that “Palm Coast’s focus on profitability will negatively impact existing providers within the service areas it operates” was not based on competent, substantial evidence. However, in spite of Palm Coast’s assertions to the contrary, the finding in question was based on competent, substantial evidence. See Transcript, Volume 6, Pages 695- 699. Thus, the Agency is prohibited from rejecting or modifying it. See § 120.57(1)(), Fla. Stat.; and Heifetz. Therefore, Palm Coast’s Ninth Exception is denied. In its Tenth Exception, Palm Coast took exception to the finding of fact in Paragraph 158 of the Recommended Order, arguing that the finding was not supported by competent, substantial evidence. However, notwithstanding Palm Coast’s argument, the finding of fact in Paragraph 158 of the Recommended Order was based on competent, substantial evidence. See Transcript, Volume 6, Pages 695-699. Thus, the Agency cannot reject or modify it. See § 120.57(1)(), Fla. Stat.; and Heifetz. Therefore, Palm Coast’s Tenth Exception is denied. In its Eleventh Exception, Palm Coast took exception to the findings of fact in Paragraph 162 of the Recommended Order, arguing that the findings were not supported by competent, substantial evidence. However, despite Palm Coast’s assertions, the findings of fact in Paragraph 162 of the Recommended Order were based on competent, substantial evidence. See, ¢.g., Transcript, Volume 6, Pages 695-699. Thus, the Agency is prohibited from rejecting or modifying it. See § 120.57(1)(D, Fla. Stat.; and Heifetz. Therefore, Palm Coast’s Eleventh Exception is denied. FINDINGS OF FACT The Agency hereby adopts the findings of fact set forth in the Recommended Order. CONCLUSIONS OF LAW The Agency adopts the conclusions of law set forth in the Recommended Order. ORDER Based upon the foregoing, Catholic Hospice’s CON application no. 9928 is approved; and Palm Coast’s CON application no. 9931 is denied. DONE and ORDERED this7 be of Kectukor 200.9, in Tallahassee, Florida. Ee i ee © ANDREW C. AGWUNOBI, M.D., SECRETARY AGENCY FOR HEALTH CARE ADMINISTRATION NOTICE OF RIGHT TO JUDICIAL REVIEW A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH THE FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by U.S. Mail, or by the method indicated, to the persons named below on this (3 tay of _fpec7enber , 200'7 RICHARD J. SHOOP, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308-5403 (850) 922-5873 COPIES FURNISHED TO: David M. Maloney Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Paul H. Amundsen, Esquire Amundsen & Smith, P.A. 502 East Park Avenue Post Office Drawer 1759 Tallahassee, Florida 32302-1759 Mark A. Emmanuele, Esquire Panza, Maurer & Maynard, P.A. 3600 North Federal Highway, Third Floor Fort Lauderdale, Florida 33308 Sandra E. Allen, Esquire Assistant General Counsel Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308 Elizabeth Dudek Health Quality Assurance Jan Mills Facilities Intake Unit

Docket for Case No: 06-003653CON

Orders for Case No: 06-003653CON