STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HOSPICE OF NAPLES, INC., )

)

Petitioner, )

)

vs. )

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent, )

)

and )

) HOPE OF SOUTHWEST FLORIDA, INC. ) AND HCR MANOR CARE SERVICES OF ) FLORIDA, INC., AND ODYSSEY ) HEALTHCARE OF COLLIER COUNTY, ) INC., )

)

Intervenors. )

Case No. 06-4289

)

ORDER RELINQUISHING JURISDICTION

This proceeding involves a challenge to the Agency for Health Care Administration's (Agency or AHCA) preliminary determination that no error occurred when it published a net need for one new hospice program in Hospice Service Area 8B. This determination has been challenged in this proceeding by Petitioner, Hospice of Naples, Inc. (HON).

STATEMENT OF THE CASE

On October 6, 2006, the Agency published its Notice of Hospice Program Fixed Need Pool (Notice) for the January 2008 hospice planning horizon in Volume 32, Number 40 of the Florida Administrative Weekly. This Notice indicated a net need for one new hospice program and provided, in part:

Any person who identifies any error in the fixed need pool numbers must advise the agency of the error within ten (10) days of the publication. If the agency concurs with the error, the fixed need pool number will be adjusted and republished in the first

available edition of the F.A.W. Failure to notify the agency of the error during this ten day period waives a person's right to raise the error at subsequent proceedings.

See also Fla. Admin. Code R. 59C-1.008(2)(a)2.

On October 13, 2006, HON, the existing provider of hospice services in Hospice Service Area 8B, timely advised the Agency in writing of an alleged error in the fixed need pool calculation, which if corrected, would result in a fixed need pool number of zero in this service area.

On October 18, 2006, the Agency stated that it did not concur with HON and that the Agency did not intend to correct the alleged error in the published fixed need pool at issue in this proceeding. The Agency provided HON with a point of entry to contest this preliminary agency action.

On or about October 27, 2006, HON filed a Petition for Formal Administrative Hearing (Petition) with the Agency challenging the Agency's preliminary agency action. HON attached several documents to its Petition including HON's "Semi-Annual Report of Hospice Utilization," which, in part, provided utilization numbers on a monthly basis for "new patients admitted" between July 1, 2005, and December 31, 2005. For the month of October 2005, HON stated that the total number of new patients admitted was 95. The total number of new patients admitted for the 12-month period was 650.

In essence, HON alleges in its Petition that, as a result of Hurricane Wilma (a force majeure), which struck Collier County in October 2005, HON had no actual admissions for the five-day period October 22-26, 2005, inclusive. By examining HON's admission experiences, HON contends that it "lost (conservatively calculated) 18 admissions which HON would have otherwise secured and counted in October 2005," and that by adding these 18 projected admissions to HON's previously reported 95 admissions for the month of October 2005, HON would have had a total of 113 admissions for October 2005, rather than 95. HON further states that if these 18 admissions are counted, the need methodology would have yielded a zero net need rather than one for the service area. HON concludes by stating that the Agency's failure to recognize these projected 18 admissions is an "error," which ultimately resulted in an erroneous positive fixed need pool net need number.

There is no dispute that HON reported to the Agency a total of 95 new patients admitted for October 2005 and that there were only 95 new patients actually admitted for this month.

HON does not contend that the Agency made any mathematical errors or incorrectly applied its rule methodology, except for not considering the projected 18 admissions.

On or about November 3, 2006, the Agency referred HON's Petition to the Division of Administrative Hearings (DOAH). Several parties were granted intervenor status.

On November 15, 2006, the Agency filed a motion to dismiss the Petition and essentially argued that the Agency does not have the authority under its rules to consider the effect on patient admissions for HON for October 2005 caused by the impact of Hurricane Wilma. The Agency argues that "[t]his request for relief is patently inconsistent with the definition of the (HP) factor in the rule, which definition clearly requires AHCA to input the actual number of reported historical admissions, not projections of admissions lost due to a hurricane." (emphasis in original).

After receiving an unopposed extension of time, HON filed an amended response to AHCA's motion to dismiss. Like HON, Intervenors were authorized to file responses to the Agency's motion to dismiss and did so by filing responses agreeing with the Agency's position.

LEGAL DISCUSSION

In considering AHCA's motion to dismiss the Petition, all of the allegations set forth in the Petition, including those documents attached to and incorporated by reference in the Petition, must be accepted as true, and no factual matters outside the Petition may be considered. St. Francis Parkside Lodge of Tampa Bay v. Department of Health and Rehabilitative Services, 486 So. 2d 32, 34 (Fla. 1st DCA 1986); Harry Pepper & Associates, Inc. v. Lasseter, 247 So. 2d 736 (Fla. 3d DCA 1971). See also Florida Real Estate Commission v. Frost, 373 So. 2d 939, 940 (Fla. 4th DCA 1979).

Notwithstanding this standard, Section 120.57(1)(i), Florida Statutes, provides, in part, that "[w]hen, in any proceeding conducted pursuant to this subsection, a dispute of material fact no longer exists, any party may move the administrative law judge to relinquish jurisdiction to the agency. An order relinquishing jurisdiction shall be rendered if the administrative law judge

determines from the pleadings, depositions, answers to interrogatories, and admissions on file, together with supporting opposing affidavits, if any, that no genuine issue as to any material fact exists."

Based upon a review of the Petition and documents attached thereto, the Agency's motion to dismiss and responses, it is concluded that there is no dispute of material fact and no genuine issue as to any material of fact and, therefore, jurisdiction may be relinquished to the Agency. § 120.57(1)(i), Fla. Stat.

"'Fixed Need Pool' means the identified numerical need, as published in the Florida Administrative Weekly, for new beds or services for the applicable planning horizon established by the agency and in accordance with the need methodologies which are in effect by rule at the time of publication of the fixed need pools for the applicable batching cycle." Fla. Admin. Code R. 59C- 1.002(19).

In 1995, the Agency adopted Florida Administrative Code Rule 59C-1.0355, as amended, pertaining to hospice programs. Within this rule, the Agency developed criteria enabling the Agency to determine need for a new hospice program. These criteria are set forth in Florida Administrative Code Rule 59C-1.0355(4). In particular, the Rule sets forth a numeric need methodology for a new hospice program which enables the Agency to calculate the net need for a new hospice program in a service area. One of the factors considered is "(HP)," which "is the number of patients admitted to hospice programs serving an area during the most recent 12-month period ending on June 30 or December 31. The number is derived from reports submitted under subsection (9) of this rule." Fla. Admin. Code R. 59C-1.0355(4)(a).

Subsection (9) of Florida Administrative Code Rule 59C- 1.0355 requires each hospice program to submit semi-annual utilization reports to the Agency and provides in part:

Each hospice program shall report utilization information to the agency or its designee on or before July 20 of each year and January 20 of the following year. The July report shall indicate the number of new patients admitted during the 6-month period composed of the first and second quarters of the current year, the census on the first day of each month included in the report, and the number of patient days of care provided during the

reporting period. The January report shall indicate the number of new patients admitted during the 6-month period composed of the third and fourth quarters of the prior year, the census on the first day of each month included in the report, and the number of patient days of care provided during the reporting period. The following detail shall also be provided.

(a) For the number of new patients admitted:

1. The 6-month total of admissions under age

   65 and age 65 and over by type of diagnosis (e.g., cancer; AIDS).

   
   

2. The number of admissions during each of the 6 months covered by the report, by service area of residence. (emphasis added).

Section 400.6095, Florida Statutes, governs patient admissions and states in pertinent part:

1. Admission to a hospice program shall be made upon a diagnosis and prognosis of terminal illness by a physician licensed pursuant to chapter 458 or chapter 459 and shall be dependent on the expressed request an informed consent of the patient.

   
   

2. At the time of admission, the hospice shall inquire whether advance directives have been executed pursuant to Chapter 765, and if not, provide information to the patient concerning the provisions of that chapter. The hospice shall also provide the patient with information concerning patient rights and responsibilities pursuant to s. 381.026.

   
   

3. The admission process shall include a professional assessment of the physical, social, psychological, spiritual, and financial need of the patient. This assessment shall serve as the basis for the development of a plan of care.

§ 400.6095(2)-(4), Fla. Stat. See also Fla. Admin. Code R. 58A- 2.026(7)("On admission, each hospice patient and, where applicable, home hospice caregiver shall be informed. ")

"The construction of a rule by the agency charged with its enforcement and interpretation is entitled to great weight.

Courts should not depart from that construction unless it is clearly erroneous." Falk v. Beard, 614 So. 2d 1086 (Fla.

1993)(citing PW Ventures, Inc. v. Nichols, 533 So. 2d 281 (Fla. 1988)). See also Colonnade Medical Center, Inc. v. Agency for Health Care Administration, 847 So. 2d 540 (Fla. 4th DCA 2003). Deference is also accorded to rules "which have been in effect over an extended period and to the meaning assigned to them by officials charged with their administration." Pan American World Airways, Inc. v. Florida Public Service Commission, 427 So. 2d 716, 719 (Fla. 1983)(citing State Department of Commerce, Division of Labor v. Matthews Corporation, 358 So. 2d 256 (Fla.

1st DCA 1978)).

Further, "[s]o long as the agency's interpretation 'is within the range of possible and reasonable,' it should be affirmed." Sanfiel v. Department of Health, 749 So. 2d 525 (Fla. 5th DCA 1999).

"In interpreting rules or statutes, words should be given their plain and ordinary meaning." Gar-Con Development, Inc. v. Department of Environmental Regulation, 468 So. 2d 413, 415 (Fla. 1st DCA 1985)(citing Department of Health and Rehabilitative Services v. McTigue, 387 So. 2d 454 (Fla. 1st DCA 1980)).

The Agency is obligated to follow its own rules. Vantage Healthcare Corporation v. Agency for Health Care Administration, 687 So. 2d 306, 308 (Fla. 1st DCA 1997). An agency action which conflicts with an agency's own rules is erroneous. Id. See also

§ 120.68(7)(e)2, Fla. Stat.

This case does not involve an alleged error occurring because of an alleged failure to update population data from a previous batching cycle, a mis-application of the rule methodology, one or more imputing errors by a provider such as HON when submitting utilization data including but not limited to admissions per month, here October 2005, or revised actual admission data supplied by HON. See generally Big Bend Hospice, Inc. v. Agency for Health Care Administration, DOAH Case No. 01- 4415CON, 2002 Fla. Div. Adm. Hear. LEXIS 1584 (DOAH Nov. 7, 2002;

AHCA April 8, 2003), aff'd, 904 So. 2d 610 (Fla. 1st DCA 2005);

Hernando-Pasco Hospice, Inc. v. Agency for Health Care

Administration, DOAH Case No. 00-1067, 2001 Fla. Div. Adm. Hear. LEXIS 2594 (DOAH May 18, 2001; AHCA Aug. 5, 2001); National

Healthcorp v. Department of Health and Rehabilitative Services, DOAH Case Nos. 88-1836 and 88-1839, 1989 Fla. Div. Adm. Hear.

LEXIS 6164 (DOAH June 1, 1989; AHCA July 18, 1989).

Florida Administrative Code Rule 59C-1.0355(9) requires HON to report utilization information to the Agency. Reported information includes "the number of new patients admitted" during a particular 6-month period. Part of the numeric need methodology requires consideration of "(HP)" which "is the number of patients admitted to hospice programs serving an area during the most recent 12-month period ending on June 30 or December 31. The number is derived from reports submitted under subsection (9) of this rule." (emphasis added). The Agency's rules do not include a "force majeure" provision. Compare Fla. Admin. Code R. 53ER05-19(7), 60H-9.005(3)(b)42, and 61B-6.006(8)(d).

The admission process is detailed by statute and the process is complete only when assessments are completed by appropriate professionals. § 400.6095(2)-(4), Fla. Stat. See also Hernando- Pasco, Inc., 2001 Fla. Div. Adm. Hear. LEXIS at *38.

HON reported the number of new patients admitted for October 2005, i.e., 95. HON does not contend that more than 95 new patients were actually admitted for this particular month.

Stated differently, HON does not dispute the number of patients actually admitted to its hospice program and reported to the Agency.

In order to prevail in this proceeding, HON is required to identify "an error[1] in the fixed need pool numbers." Fla.

Admin. Code R. 59C-1.008(2)(a)2. However, no error occurred as alleged by HON. While there is a dispute whether HON would have had 18 additional admissions in October 2005, but for Hurricane Wilma, it is not material.

The statutory subsections and rules cited herein do not afford the Agency the authority to proceed as requested by HON. See, e.g., Vantage, 687 So. 2d at 308 ("The agency's argument that it should be permitted to make a case by case determination regarding when to accept late filed letters of intent conflicts with the express language of its own rule.").

CONCLUSION

Based upon all of the documents filed in this proceeding, it is determined that there is no dispute of material of fact or a genuine issue as to any material fact existing in this proceeding regarding whether an error occurred when the Agency determined that there is a net need for one additional hospice program in Hospice Service Area 8B.

Accordingly, it is

ORDERED that jurisdiction is hereby relinquished to the Agency for Health Care Administration.

DONE AND ORDERED this 7th day of December, 2006, in Tallahassee, Leon County, Florida.

S

CHARLES A. STAMPELOS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2006.

ENDNOTE

1/ "Error" is not defined by statute or rule. If a term is not defined, its plain and ordinary meaning generally can be ascertained by reference to a dictionary." Seagrave v. State, 802 So. 2d 281, 286 (Fla. 2001). "Error" means, in part, "1. An act, assertion, or belief that intentionally deviates from what is correct, right, or true. 2. The state of having false knowledge. 3. A deviation from an accepted code of behavior. 4. A mistake. 5. The difference between a computed or measured value and a correct value." Webster's II New College Dictionary

382 (1999). "Error" has also been defined as "[a] mistaken judgment or incorrect belief as to the existence or effect of

matters of fact, or a false or mistaken conception or application of the law." Black's Law Dictionary 542 (6th ed.).

COPIES FURNISHED:

Richard Shoop, Agency Clerk

Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

William Roberts, Acting General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Christa Calamas, Secretary

Agency for Health Care Administration Fort Knox Building, Suite 3116

2727 Mahan Drive

Tallahassee, Florida 32308

Sandra E. Allen, Esquire

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

W. David Watkins, Esquire Watkins & Associates, P. A.

3051 Highland Oaks Terrace, Suite D Post Office Box 15828

Tallahassee, Florida 32317-5828

Stephen A. Ecenia, Esquire Rutledge, Ecenia, Purnell &

Hoffman, P.A.

215 South Monroe Street, Suite 420 Post Office Box 551

Tallahassee, Florida 32302-0551

Robert D. Newell, Jr., Esquire Newell, Terry & Douglas P.A.

817 North Gadsden Street Tallahassee, Florida 32303-6313

Mark A. Emanuele, Esquire Panza, Maurer, & Maynard, P.A.

Bank of America Building, Third Floor 3600 North Federal Highway

Fort Lauderdale, Florida 33308

Geoffrey D. Smith, Esquire Smith and Associates

2873 Remington Green Circle Tallahassee, Florida 32308

Docket for Case No: 06-004289

Orders for Case No: 06-004289