STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION z ie hye PAG _ RENDITION NO.: AHCA-08- Of305 -FOF-CON 703 AL SB Ay 48 CON NO. 9954, 9955 & 9971 OE ODYSSEY HEALTHCARE OF NORTHWEST FLORIDA, INC., Petitioner, : DOAH CASE NO. 07-1658CON AHCA NO. 2007003691 vs. AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent. / UNITED HOSPICE OF WEST FLORIDA, INC., Petitioner, DOAH CASE NO. 07-1659CON AHCA NO. 2007003718 vs. AGENCY FOR HEALTH CARE ADMINISTRATION and REGENCY HOSPICE OF NORTHWEST FLORIDA, INC., Respondents. / REGENCY HOSPICE OF NORTHWEST FLORIDA, INC., Petitioner, vs. DOAH CASE NO. 07-1878CON AHCA CASE NO. 2007004287 AGENCY FOR HEALTH CARE ADMINISTRATION, ODYSSEY HEALTHCARE OF NORTHWEST FLORIDA, INC. and UNITED HOSPICE OF WEST FLORIDA, INC., Respondents. FINAL ORDER 3 This case was referred to the Division of Administrative Hearings (DOAH) wheré”} Ce assigned Administrative Law Judge (ALJ), Charles A. Stampelos, conducted a formal administrative hearing. At issue in this proceeding is whether the Certificate of Need (CON) applications filed by Regency Hospice of Northwest Florida, Inc. (“Regency”), Odyssey Healthcare of Northwest Florida, Inc. (“Odyssey”), and United Hospice of West Florida, Inc. (“United”) for a new hospice program in Agency for Health Care Administration (“Agency” or “AHCA”) Service Area 1, satisfy, on balance, the applicable statutory and rule review criteria sufficiently to warrant approval, and, if so, which of the three applications best meets the applicable criteria for approval. The Recommended Order dated April 30, 2008 is attached to this final order and incorporated herein by reference. RULINGS ON EXCEPTIONS Odyssey filed exceptions to the recommended order to which Regency filed responses. In its First Exception, Odyssey took exception to the findings of fact in Paragraph 31 of the Recommended Order, arguing that the findings were irrelevant and should be stricken. However, Odyssey made no showing that the findings of fact in Paragraph 31 of the Recommended Order were not based on competent, substantial evidence. The Agency can only reject or modify findings of fact in a recommended order if those findings are not based on competent, substantial evidence. See § 120.57(1)(D, Fla. Stat.; 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”). Odyssey’s argument is irrelevant because the findings of fact in Paragraph 31 of the Recommended Order were based on competent, substantial evidence. See Transcript, Volume 8, Pages 1008, 1012-1013 and 1047-1048. Thus, the Agency cannot reject or modify them. Further, Odyssey is, in essence, asking the Agency to overturn the ALJ’s ruling on an evidentiary issue, which the Agency cannot do. See Barfield v. Dep’t of Health, 805 So.2d 1008 (Fla. Ist DCA 2002) (an agency does not have substantive jurisdiction to reverse or modify an ALJ’s conclusion of law on an evidentiary issue). Therefore Qdyssey’s First Exception is denied. . In its Second Exception, Odyssey took exception to the finding of fact in Paragraph 110 of the Recommended Order, arguing that the finding was not supported by competent, substantial evidence. However, contrary to Odyssey’s argument, the finding of fact in Paragraph 110 of the Recommended Order was based on competent, substantial evidence. See, e.g., Transcript, Volume 1, Pages 55-57, 64 and 139-144; Transcript, Volume 3, Pages 461-462; and Regency Exhibits 2, 20 and 76. Thus, the Agency is prohibited from rejecting or modifying it. See § 120.57(1)(D), Fla. Stat.; Heifetz. Therefore, Odyssey’s Second Exception is denied. In its Third Exception, Odyssey took exception to the findings of fact in Paragraph 166 of the Recommended Order, arguing that the findings were not based on competent, substantial record evidence. However, contrary to Odyssey’s argument, the findings of fact in Paragraph 166 of the Recommended Order were based on competent, substantial evidence. See, ¢.g., Transcript, Volume 14, Pages 1715-1716; and Odyssey Exhibit 43. Thus, they cannot be disturbed by the Agency. See § 120.57(1)(D, Fla. Stat.; Heifetz. Therefore, Odyssey’s Third Exception is denied. In its Fourth Exception, Odyssey took exception to the finding of fact in Paragraph 172 of the Recommended Order, arguing that the finding was not supported by competent, substantial record evidence. Odyssey is, in essence, asking the Agency to re-weigh the evidence in order to reach ultimate findings that are more favorable to its position, which the Agency cannot do. See § 120.57(1)(), Fla. Stat.; Heifetz. Paragraph 172 of the Recommended Order was an ultimate finding of fact’ made by the ALJ after weighing the competent, substantial evidence presented in this case. See, e.g., Paragraph 169 of the Recommended Order; Transcript, Volume 7, Pages 764-765 and 773-777; Transcript, Volume 8, Pages 1036-1037; Transcript, Volume 11, Pages 1412-1415; -and Regency Exhibits 56, 61 and 62. The Agency does not have any grounds to reject or modify that ultimate finding of fact. See § 120.57(1)(D, Fla. Stat.; Heifetz. Therefore, Odyssey’s Fourth Exception is denied. In its Fifth Exception, Odyssey took exception to the findings of fact in Paragraph 203 of the Recommended Order, arguing that the findings of fact were not based on competent, substantial evidence. However, contrary to Odyssey’s argument, the findings of fact in Paragraph 203 of the Recommended Order were based on competent, substantial evidence. See, e.g., Transcript, Volume 1, Pages 85-86 and 178-179; Transcript, Volume 3, Pages 417-418; Transcript, Volume 6, Pages 715-716 and 718; Transcript, Volume 7, Pages 768-769 and 771- ' The “ultimate facts” mentioned above are those “necessary to determine issues in [a] case” or the “final facts” derived from the “evidentiary facts supporting them.” Id. (citing Black's Law Dictionary 1522 (6th ed. 1990)). Ultimate facts are also regularly described as “mixed questions” of law and fact, see, e.g., Antonucci v. Unemp. App. Comm’n, 793 So.2d 1116, 1117 (Fla. 4th DCA 2001), and must generally be made by the fact finder in an administrative proceeding because they are “necessary for proper review of administrative orders.” Tedder, 697 So.2d at 902; see also San Roman y. Unemp. App. Comm’n, 711 So.2d 93 (Fla. 4th DCA 1998) (finding that whether “good cause” exists for unemployment compensation claimant to voluntarily leave work frequently involves mixed question of law and fact, and is an ultimate fact best left to the fact-finder); Heifetz v. Dep’t of Bus. Reg., Div. of Alcoholic Beverages & Tobacco , 475 So.2d 1277 (Fla. ist DCA 1985) (finding that “negligent supervision and lack of diligence are essentially ultimate findings of fact clearly within the realm of the hearing officer's fact-finding discretion.”) (citations omitted). Costin v. Fla. A&M Univ. Bad. of Trustees, 972 So.2d 1084 (Fla. Sth DCA 2008). 772; and Regency Exhibits 59-60. Thus, the Agency cannot reject or modify them. See § 120.57(1)(), Fla. Stat.; Heifetz. Therefore, Odyssey’s Fifth Exception is denied. In its Sixth Exception, Odyssey took exception to the finding of fact in Paragraph 250 of the Recommended Order wherein the ALJ found that the proposed office locations of Regency would enhance access to a greater degree than the ones proposed by Odyssey, arguing that the finding was not supported by competent, substantial record evidence. However, contrary to Odyssey’s assertion, the finding of fact in Paragraph 250 was based on competent, substantial evidence (See Transcript, Volume 1, Pages 85-86 and 178-179; Transcript, Volume 3, Pages 417-418 and 432; Transcript, Volume 6, Pages 715-716 and 718; Transcript, Volume 7, Pages 763, 764, 768-769 and 771-772; Regency Exhibits 7, 56 and 59-60), and thus cannot be disturbed by the Agency. See § 120.57(1)(), Fla. Stat.; Heifetz. Therefore, Odyssey’s Sixth Exception is denied. In its Seventh Exception, Odyssey took exception to the finding of fact in Paragraph 276" of the Recommended Order, arguing that the ALJ’s statement that “[hJaving an office in a particular county such as Walton County, would most likely establish and promote a presence in the area” was not based on competent, substantial evidence. However, despite Odyssey’s argument to the contrary, the finding of fact in Paragraph 276 of the Recommended Order was a reasonable inference based on competent, substantial evidence. See, e.g., Transcript, Volume 1, Pages 85-86 and 178-179; Transcript, Volume 6, Pages 715-716, 718 and 729; and Regency Exhibits 59-60. Thus, the Agency is prohibited from rejecting or modifying it. See § 120.57(1)(), Fla. Stat.; Heifetz. Therefore, Odyssey’s Seventh Exception is denied. ? The exception refers to Paragraph 277 of the Recommended Order. However, it is obvious from Odyssey’s argument that the finding of fact it is taking exception to is located in Paragraph 276 of the Recommended Order. In its Eighth Exception, Odyssey took exception to the finding of fact in Paragraph 288 of the Recommended Order wherein the ALJ found Regency had proposed a better nurse to patient ratio for its hospice program than Odyssey or United, arguing that the finding was not supported by competent, substantial record evidence. However, contrary to Odyssey’s argument, the finding of fact in Paragraph 288 of the Recommended Order was based on competent, substantial evidence. See Transcript; Volume 6, Pages 740-741; Transcript, Volume 9, Page 1149; Transcript, Volume 12, Page 1609; and Regency Exhibit 7. Thus, the Agency cannot alter it. See § 120.57(1)(D, Fla. Stat.; Heifetz. Therefore, Odyssey’s Eighth Exception is denied. In its Ninth Exception, Odyssey took exception to the finding of fact in Paragraph 292 of the Recommended Order wherein the ALJ found that Odyssey and United’s approach to opening offices on a staggered basis was “not necessarily appropriate given the need for an [sic] additional hospice services over a four-county area,” arguing that the finding of fact was not supported by competent, substantial record evidence. However, contrary to Odyssey’s argument, the finding of fact in Paragraph 292 of the Recommended Order was based on competent, substantial evidence. See, e.g., Transcript, Volume 1, Pages 85-86 and 178-179; Transcript, Volume 3, Pages 417-418; Transcript, Volume 6, Pages 715-716 and 7 18; Transcript, Volume 7, Pages 768-769 and 771-772; and Regency Exhibits 59-60. Thus, the Agency cannot reject or ~modify it. See § 120.57(1)\/, Fla. Stat.; Heifetz. Therefore, Odyssey’s Ninth Exception is denied. In its Tenth Exception, Odyssey took exception to the finding of fact in Paragraph 293 of the Recommended Order, arguing that the finding was not supported by competent, substantial record evidence. However, contrary to Odyssey’s assertion, the finding of fact in Paragraph 293 was based on competent, substantial evidence (See Transcript, Volume 6, Page 716; Transcript, Volume 7, Pages 764-765; Transcript, Volume 8, Pages 1036-1037; Transcript, Volume 11, Pages 1412-1415; and Regency Exhibit 56), and thus cannot be disturbed by the Agency. See § 120.57(1)(), Fla. Stat.; Heifetz. Therefore, Odyssey’s Tenth Exception is denied. In its Eleventh Exception, Odyssey took exception to the finding of fact in Paragraph 297 of the Recommended Order, arguing that the finding was not ‘supported ‘by competent, substantial evidence. Paragraph 297 of the Recommended Order was an ultimate finding of fact made by the ALJ after weighing the competent, substantial evidence presented in this case. See, ¢.g,, the rulings on Odyssey’s First — Tenth Exceptions supra. Odyssey is, in essence, asking the Agency to re-weigh the evidence in order to reach a finding that is more favorable to Odyssey, which the Agency cannot do. See Heifetz. Therefore, Odyssey’s Eleventh Exception is denied. In its Twelfth, Thirteenth, Fourteenth, Fifteenth and Sixteenth Exceptions, Odyssey took exception to the conclusions of law in Paragraphs 331, 333, 334, 344 and 346 of the Recommended Order, arguing that the conclusions of law were findings of fact that were not supported by competent, substantial record evidence. The Agency asserts that Paragraphs 331, 333, 334, 344 and 346 of the Recommended Order are conclusions of law. While there is some question as to whether the Agency has substantive jurisdiction over the conclusions of law in these paragraphs,’ the Agency does not need to reach that point because, even if the Agency has _ substantive jurisdiction over the conclusions of law in Paragraph 331, 333, 334, 344 and 346 of the Recommended Order, it could not substitute conclusions of law that are as or more reasonable than those of the ALJ. See § 120.57(1)(), Fla. Stat. Additionally, as noted by Regency in its response to Odyssey’s exceptions, this matter was already resolved by a previous Agency final order. See In Re: Letters of Intent and CON application of Regency Hospice of 3 See, e.g., Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 So.2d 1140, 1142 (Fla. 2d DCA 2001) (stating an agency does not have substantive jurisdiction to decide whether the doctrine of collateral estoppel applies to a particular case). Northwest Florida, LLC now known as Regency Hospice of Northwest Florida, Inc., Rendition No.. AHCA-07-0044-S-OLC (January 12, 2007). Therefore, Odyssey’s Twelfth, Thirteenth, Fourteenth, Fifteenth and Sixteenth Exceptions are 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, Regency’s CON application No. 9971 is approved, and _Odyssey’s CON application No. 9954 and United’s CON application No. 9955 are denied. DONE and ORDERED this / fd day of bugus t , 2008, in Tallahassee, Florida. four (ase 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 . the method indicated, to the persons named below on this / g day of Aug as , 2008. id XQ 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: Charles A. Stampelos Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Mark A. Emanuele, Esquire Panza, Maurer & Maynard, P.A. 3600 North Federal Highway, Third Floor Fort Lauderdale, Florida 33308 Jay Adams, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Tallahassee, Florida 32301 Geoffrey D. Smith, Esquire Smith & Associates, P.A. 2873 Remington Green Circle Tallahassee, Florida 32308 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: 07-001878CON

Orders for Case No: 07-001878CON