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HERNANDO-PASCO HOSPICE, INC. vs AGENCY FOR HEALTH CARE ADMINISTRATION, 00-001067CON (2000)

Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Mar. 09, 2000 Number: 00-001067CON Latest Update: Aug. 23, 2001

The Issue Whether the numeric need for hospice programs in health planning subdistrict 6A for the March 2000, batching cycle should be one, as originally published by the Agency for Health Care Administration, or zero, as published in a revision of the original publication?

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Agency for Health Care Administration determining the fixed need pool for health planning subdistrict 6A for the March 2000 batching cycle to be zero. DONE AND ENTERED this 18th day of May, 2001, in Tallahassee, Leon County, Florida. DAVID M. MALONEY 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 18th day of May, 2001. COPIES FURNISHED: Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308-5403 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308-5403 Richard A. Patterson, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308-5403 Gerald B. Sternstein, Esquire Frank P. Rainer, Esquire Sternstein, Rainer & Clarke, P.A. 101 North Gadsden Street Tallahassee, Florida 32301 H. Darrell White, Esquire McFarlain, Wiley, Cassedy & Jones, P.A. 215 South Monroe Street, Suite 600 Post Office Box 2174 Tallahassee, Florida 32316-2174

Florida Laws (7) 120.569, 120.57, 381.026, 400.6005, 400.601, 400.609, 400.6095 Florida Administrative Code (3) 59C-1.008, 59C-1.033, 59C-1.0355

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BEVERLY HEALTH AND REHABILITATION CENTER - RIO PINAR vs AGENCY FOR HEALTH CARE ADMINISTRATION, 97-002017 (1997)

Division of Administrative Hearings, Florida Filed:Orlando, Florida Apr. 30, 1997 Number: 97-002017 Latest Update: Jul. 06, 1998

The Issue Whether the Petitioner was properly issued a conditional license on March 24, 1997.

Findings Of Fact Survey Background Rio Pinar (Petitioner) is a 180-bed nursing home in Orlando, Florida, licensed by the Respondent pursuant to Chapter 400, Florida Statutes. Pursuant to its licensing authority the Respondent conducts surveys of nursing homes to determine compliance with statutes and regulatory standards that are established by the state, as well as the federal Medicare and Medicaid programs. On February 13, 1997, the agency conducted an annual re- certification survey of Petitioner. The multi-disciplinary survey team was comprised, in part, of Sharon Hudson, Zola Whitmore, James Lang, and Lisa Privett. The team met with facility staff, then toured the facility to develop a sample of residents on which to conduct an in-depth review. Two of the issues on which the team focused were falls and restorative care by patients. The information was obtained by the team from patient examinations, records' review, and discussions with staff. At the conclusion of the survey inspection, Respondent issues a survey report which sets forth the factual findings made by the surveyors (which are organized as deficiencies by Tag numbers), the applicable federal and state regulations which the surveyors believe have been violated by the facility, and a federal scope and severity rating and state class rating for each tag numbered deficiency. Respondent issues a nursing facility a conditional license anytime it finds a state Class I or II deficiency or anytime it finds a Class III deficiency that is not corrected within the time frame mandated by AHCA. (Section 400.023, Florida Statutes.) In each of the nine annual surveys preceding February 1997, Petitioner received a Superior licensure rating. Falls The nursing home is required to ensure that each patient receives adequate supervision and assistance devices to prevent accidents. An accident is an unexpected, unintended event that can cause bodily injury. It does not include adverse side effects or reactions to drugs. The most common accidents in nursing homes are falls by patients. The facility is expected to provide the supervision necessary to prevent those falls, and each patient must be assessed for being at risk. Tag F324 of the survey report alleges that Petitioner violated 42 CFR s. 483.25(h)(2), which provides that a facility "must ensure that a resident receives adequate supervision and assistive devices to prevent accidents." Respondent's surveyors testified that 11 residents: residents numbered 1, 2, 3, 5, 8, 10, 11, 12, 14, 23, 27, and 30 identified under Tag F324 of the survey report did not receive adequate supervision to prevent accidents because the facility did not timely assess these residents for interventions to prevent falls. They also testified that one of the residents, Resident number 4, did not receive appropriate restorative training that could have prevented a fall suffered by that resident. Finally, Respondent alleged that the number of surveyed residents at Rio Pinar who had fallen was exceptionally high and reflected inappropriate care. Petitioner comprehensively assesses each of its residents for their risk for falls and, where appropriate, provides a preventive care plan for those residents. An assessment is a thought process designed to lead a care-giver to determine the appropriate plan of care for a resident. Each resident is assessed for his or her risk for falls through a variety of assessment mechanisms. Resident 1 fell on November 24, 1996, after having been admitted to the facility on October 28, 1996. No preventable cause of the fall was found. Resident 1 was assessed by Petitioner upon admission for her risk for falls using the MDS assessment and Physical Therapy Assessments. She was determined to be independently ambulatory but cognitively impaired so that there was no care plan to prevent falls that could have been written or implemented for her other than "common sense" nursing. While sitting in a chair in her room, Resident 8 fell asleep, slumped over and hit her head on the windowsill next to her chair. No preventable cause of the fall was found. Resident 8 had been comprehensively assessed for her risk of falls by Petitioner, was determined to be totally dependent upon the facility for assistance in transfers and ambulation, and had a written care plan in place to prevent falls at the time she slumped over and hit her head on the windowsill. The resident was not considered to be at risk for falls while sitting in her chair, and there were no care plan interventions written to address that risk. The use of a helmet would be highly intrusive and is not a viable preventative measure in this case. Resident 14 fell on January 15, 1997. No preventable cause of the fall was found. Prior to her January 15, 1997, fall, Resident 14 had been at Petitioner for four years and had not fallen. However, she had been assessed for her risk for falls and was determined to be independent in her ambulatory skills so that she needed no care plan to prevent falls. There was no evidence submitted by Respondent regarding Resident 30. Resident 5 fell on December 7 and December 17, 1996. Resident 5 had been assessed by Petitioner using the Minimum Data Set (MDS) and Physical Therapy Assessments. Like many of the other cited residents, she was independently ambulatory and had dementia. She had a tendency to wander and thus a specific care plan was in place to address that problem. However, her other conditions did not merit a specific care plan to prevent falls. Resident 5's fall on December 7, 1996, was investigated and no cause was found. However, because the Resident fractured her femur and suffered a decline, the facility re-assessed her and properly deemed her to be at risk for future falls. A care plan to prevent falls was drawn up by the physical therapy department that included providing the Resident with assistance in all transfers and ambulation, putting the side rails up while the Resident was in bed, and providing the Resident with a wheelchair and a walker. Her fall of December 17, 1996, was investigated and no cause was found, nor was there any supervision or assistive device that was lacking. Resident 11 did not fall during this period. Petitioner assessed Resident 11 for her risk for falls and had a care plan in place to address her need for assistance in transfers and ambulation. In addition, she was put on an ambulation program, was given a wheelchair and had a "lap buddy" to use to prevent falls from the wheelchair. Resident 3 fell twice over the course of four months, once on August 5, 1996, and once on November 10, 1996. Resident 3 was assessed by Rio Pinar when she was admitted to the facility and four days prior to her initial fall. Those assessments determined that the Resident was independent in ambulation and transfers and had dementia. Accordingly, there was no written care plan to prevent falls prior to August 5, 1996. After her fall on August 5, the incident was investigated and no preventable cause for the fall was identified. However, the facility prepared a written care plan to prevent falls that essentially emphasized common sense preventative measures because the Resident's assessed conditions did not merit additional supervision or assistive devices. Likewise, the November fall was investigated and no preventable cause was found that merited a change in this Resident's care plan. Resident 2 wore a halo device and was found sitting on her floor on December 4, 1996. The Resident's fall was investigated by nursing but the investigation did not identify any preventable cause that merited a change in the care plan approaches. The Resident had been assessed for falls and a care plan had been in place to prevent falls since November 19, 1996. That plan included physical therapy, a wheelchair and walker, assistance in ambulation, and side rails while in bed. Because the halo device was heavy, the Resident was also instructed to be careful; however, she would frequently ignore those warnings. Resident 10 was found sitting on the floor on January 21, 1997, and slipped on February 1, 1997. No preventable causes were identified for either fall. The first fall was caused by the Resident being startled by another resident in the facility. The second fall occurred because the Resident slipped while wearing shoes with slippery soles. Neither of the falls could have been prevented by Petitioner with interventions that were not already addressed in the Resident's plan of care. The Resident had been assessed for her risk for falls and, even though she was independent in her ambulation, had a care plan in place in September of 1996 to prevent falls. The facility was particularly concerned that the Resident, who was capable of dressing herself, would put on shoes that had slippery soles. Accordingly, the care plan provided that the facility would encourage the Resident to wear shoes with non-slip soles. The facility could do nothing more than encourage the Resident to wear appropriate shoes since the Resident could dress herself and her choices had to be respected by the facility. Resident 27 fell on December 8, 1996. No preventable cause of the fall was identifiable. Resident 27 was assessed upon admission to the facility in November 1996, and was determined to be at high risk for falls. A care plan to address falls was developed for this Resident that included assistance with ambulation, a daily ambulation program and side rails up while the Resident was in bed. Resident 4 fell twice on February 1, 1997. The February 1st fall was investigated by nursing and was determined to have been caused when the Resident attempted to get in bed by herself and missed the bed. The Resident was cognizant enough to know that she should call for assistance when needed so that it was determined that there was no additional supervision or assistive device that could have prevented the fall that was not already in place. This Resident had a care plan in place to prevent falls that was based on common sense preventative measures. The common sense approach was used because the Resident was independent in ambulation. Because of that independence, there was never any recommendation made by physical therapy or nursing that the Resident receive gait or balance programs, and none was given. Resident 23 fell on January 29, 1997. The Resident fell while going to the bathroom. No preventable cause of the fall was determined. This Resident had been assessed for her risk for falls, and her fall on January 29, 1997, was thoroughly investigated. The Resident had been initially assessed as being at risk for falls, but that risk was addressed through physical therapy and restorative ambulation. Respondent suggested that deficient care was given at Rio Pinar to prevent falls because there was an unusually high number of residents at Rio Pinar who experienced falls. Respondent surveyed 30 residents at Rio Pinar and 12 of them -- 40 percent of the sample -- had fallen. However, the sample pool of residents was compiled from the files of residents who had fallen. The sample used by the surveyors -- and the percentage of residents who fell -- was not randomly created but produced a high percentage of residents who had fallen. Petitioner experiences approximately 360 falls per year by its residents. Three hundred and sixty falls a year by its residents is within the average number predicted by one clinical study. Respondent proposed that a facility must provide one- on-one care, 24-hours a day to residents who are at risk for falling if that is the only way to ensure that a resident will not fall. This type of staffing would significantly exceed the staffing requirements set forth in the state regulations and is unreasonable. Petitioner was not cited as being in violation of any minimum staffing requirements. Such a high level of supervision would require a tremendous increase in staff which would, in turn, result in a tremendous cost to the facility and its residents. Petitioner would be required to double its current staff. Providing that level of care is neither feasible nor consistent with generally accepted standards of care. Restorative Care Tag F311 of the survey report alleges that Petitioner violated 42 CFR 483.25(a)(2), which provides that a facility must ensure that "a resident is given appropriate treatment and services to maintain or improve" his or her activities of daily living ("ADLs"). Specifically, Respondent alleged that five residents did not receive restorative ambulation programs, two residents did not receive bowel and bladder programs, and one resident did not receive a restorative feeding program. A resident's ADLs include ambulating, feeding, toileting, grooming and bathing. When a resident's ability to do these activities has declined, the facility will frequently implement a restorative care program to address the decline, or will implement a maintenance program to maintain the resident's status if the resident's decline cannot be improved. At Petitioner Rio Pinar restorative or maintenance programs are developed by one of the therapy departments in the facility after an assessment of the resident's needs by the appropriate therapist. The programs are implemented by the nursing staff based upon instruction from the therapist who developed the program. Programs dealing with ambulation are developed by the Physical Therapist. Programs dealing with feeding are developed by the Occupational Therapist. The bowel and bladder program at Petitioner is developed and implemented by the nursing staff. Most bowel or bladder programs which are implemented for residents in a nursing home are for residents who have suffered irreversible declines in their bowel or bladder functions. In these cases, there is little prospect that they can be restored to independent status. The objectives for those residents are preventing incontinent episodes from occurring, keeping the resident dry and free of skin breakdown, and maintaining the resident's dignity. At Petitioner, the preferred toileting program for incontinent residents is a program that requires a staff member to check on a resident every two hours and toilet the resident if appropriate. An alternative program for residents is a "patterning program" which attempts to determine the resident's bathroom pattern and uses that pattern to schedule when a resident should be toileted. Either of these programs can meet the needs of an incontinent resident, and neither program is a demonstrably better program than the other. Although the program of choice at Petitioner is the two-hour program, Petitioner does attempt to ascertain toileting patterns for residents, and will follow those patterns instead of the two-hour system where the patterns can be ascertained. Respondent alleged that three Certified Nursing Assistants ("CNAs") at Petitioner had not completed a restorative training course offered at the facility and implied that they were inadequately prepared to give restorative care. The training course the CNAs missed was only an in-house refresher course of restorative care techniques which the CNAs had previously been taught during their certification training. The course was not required by any state or federal regulation. Furthermore, the CNAs received individualized instruction for restorative care from the Physical Therapy department for each resident for whom restorative care was ordered. Respondent alleged that Resident 1 had an unsteady gait and did not receive any restorative ambulation program for that problem. This was based upon an assessment done when the Resident was admitted to the facility which indicated that the Resident's gait was "wide based." That assessment was interpreted to mean that the Resident was unsteady when she walked. Resident 1 was assessed by the Physical Therapy Department upon her admission to the facility and it was that Department which determined that the Resident had a wide-based gait. A wide-gait is a steady gait. Resident 1 was further assessed to be independent and at her optimal level of ambulation. No restorative ambulation program was needed by or ordered for the Resident. It was alleged that Resident 7 did not receive required restorative ambulation, and that he had family members who were concerned about their ability to ambulate this Resident as a result of the absence of that program. Resident 7's ambulation program was daily ambulation with hand-held assistance from the nursing staff. It was not a restorative program but was designed to maintain the Resident's ambulatory abilities because he was ambulating at his highest capability. Resident 17 was admitted to Petitioner with orders for physical and occupational therapy. She began taking her occupational therapy; however, due to a bad experience she had with physical therapy while in the hospital, she refused to take physical therapy while in the hospital. She also refused to take physical therapy at Petitioner. She was given a psychiatric evaluation which recommended that the physical therapist go by and say "hello" to the Resident to try and help increase the Resident's confidence. Petitioner was required to honor the Resident's choice not to participate in physical therapy. It was alleged that there was no evidence to indicate that the physical therapist acted on the psychiatrist's recommendation. Going by and saying hello to a resident is not part of physical therapy or restorative care. Nonetheless, the physical therapist went by and visited with Resident 17 in an effort to build rapport with her. Because she was not giving physical therapy to this Resident, the physical therapist did not document these visits in her notes. Furthermore, the Resident's restorative needs were being met by the Occupational Therapy department at Petitioner. The Resident was in need of upper body strengthening, and the therapy provided by the Occupational Therapist was addressing that need. The Resident was not deprived of any ADL by her failure to participate in a physical therapy program. Resident 28 had declined, but maintained some ability to feed himself with assistance. He was discharged to a restorative self-feeding program. It was alleged that there was no evidence that the program was ever implemented for this Resident. Resident 28 had only minimal ability to feed himself, and the Occupational Therapist who developed his restorative feeding program was not optimistic that the program could improve the resident because he had declining dementia. The prescribed program was started but had to be discontinued almost immediately. The Resident suffered a significant weight loss, and the nurses were instructed to discontinue the feeding program in that event. Thereafter, the program was not re-started because the Resident suffered a further decline due to his dementia and could not have any of his feeding abilities improved. In the brief time between the implementation of the program and its termination, the Resident's wife attempted to feed the Resident by herself. This act, motivated out of an understandable difficulty in watching her husband struggle to feed himself in the restorative program, was counter-productive to the goal of the program that the Resident learn to feed himself. The wife had been involved in the training instructions for the program and had been reminded frequently of the need for the Resident to feed himself, but she fed him anyway. The Occupational Therapist was not interviewed prior to citing this deficiency. There was no deficiency if the Occupational Therapist determined that the Restorative Program for this Resident should be discontinued. The Occupational Therapist made that determination for this Resident. Resident 27 was discharged from physical therapy to a restorative ambulation program. It was alleged that there was no evidence that the ambulation program was administered in December. However, the program was given for 14 of the 17 days that the Resident was in the facility. Respondent claimed that Residents 19 and 30 suffered declines in bowel and bladder functions and were not further assessed to determine if they could be placed in a retraining program. The Residents were not observed to be wet or otherwise unattended regarding their toileting needs. Both Residents were assessed using the MDS, which contains a comprehensive assessment (including a RAP key) for incontinence. Neither Resident could be restored to continence or independent status. They were both placed on a two-hour toileting program.

Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent enter its Final Order granting Petitioner's request to change its conditional license rating for the period contemplated by the February 1997 survey. DONE AND ENTERED this 29th day of April, 1998, at Tallahassee, Leon County, Florida. COPIES FURNISHED: R. Davis Thomas, Jr., Esquire Qualified Representative Donna H. Stinson, Esquire Broad and Cassel Post Office Box 11300 DANIEL M. KILBRIDE 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 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1998. Tallahassee, Florida 32302-1300 Thomas W. Caufman, Esquire Agency for Health Care Administration 7827 North Dale Mabry Highway Tampa, Florida 33614 Jerome W. Hoffman, General Counsel Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308

CFR (2) 42 CFR 483.25(a)(2), 42 CFR 483.25(h)(2) Florida Laws (4) 120.569, 120.57, 400.023, 400.23 Florida Administrative Code (1) 59A-4.128

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PLANTATION NURSING HOME vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 85-001286 (1985)

Division of Administrative Hearings, Florida Number: 85-001286 Latest Update: Mar. 03, 1986

Findings Of Fact At all times material hereto, Plantation was a licensed nursing home facility and participated in the Medicaid program. A nursing home that receives a superior rating is entitled to incentives based on the Florida Medicaid Reimbursement Plan. Plantation has met all the requirements for a superior rating that are enumerated in Rule lOD-29.128, Florida _Administrative Code. The only reason Plantation was not granted a superior rating was based on the Medicaid Inspection of Care, Team report. (stipulated facts) From August 21 through August 31, 1984, Plantation underwent a routine inspection by the HRS Medicaid Inspection of Care (IOC) Team. The purpose of the inspection was to review the care and treatment of Medicaid recipient patients in accordance with state and federal standards in order for the facility to receive Medicaid payment for those individuals. During the course of the inspection, several deficiencies were found by IOC Team. The deficiencies were summarized in the Medicaid Inspection of Care Team report, entitled Facility Evaluation Summary, prepared by Ms. Tranger. The report listed the deficiencies as follows: Fifteen skilled and two intermediate out of 46 medical records reviewed failed to have medication revalidated by the attending physician within the proper time frame Four of forty-six records reviewed failed to have available documentation that laboratory tests were completed in accordance with doctors' orders and medication regimen, Fourteen skilled and thirteen intermediate out of 46 medical records reviewed failed to have the Plan of Care reviewed within the proper time frame: Ten medical records were not certified within the proper time frames and fifteen medical records were not current for recertification. As to the first deficiency noted, the problem was not that the physician failed to revalidate medication, but that Ms. Tranger did not think that the physician appropriately dated the revalidation. In almost all of the cases, the problem was that Ms. Tranger did not think that the physician had personally entered the date because the date was written with a different color of ink than the doctor's signature or the handwriting appeared to be different. Ms. Tranger did not know whether the dates were written by someone in the physician's office or someone at the nursing home. It is very difficult for a nursing home to get a physician to sign and date orders properly. Plantation had a procedure for securing the doctor's signature and having records dated. When a record was received that was not properly signed and dated, Plantation returned the record to the doctor with a letter or note telling the doctor what needed to be done. When returned by the doctor to Plantation, the record would bear the later date, which caused some records to be out of' compliance with the required time frames. The return to the doctor of records that were not properly dated may also explain why some of he dates were written in a different color ink than the doctor's signature. In those few cases where the dates on the report were not within the proper time frame, the dates were only a few days off. In one case a 34 day period, from July 7, 1984 to August 10, 1984, elapsed before the medication was revalidated. In another case, there were 33 days between the dates. In both cases the medication should have been revalidated every 30 days. The problem with the revalidation dates was strictly a paperwork problem and not one that affected the care of the patients. As stated before, in the majority of the cases the medication was revalidated within the proper time frame. The problem was simply that it appeared that someone other than the doctor had written down the date. The second deficiency was a finding by the surveyors that 4 of the 46 medical records reviewed failed to have available documentation regarding laboratory tests being completed in accordance with doctors' orders. However, Jean Bosang, Administrator of Plantation, reviewed all of the records cited by the IOC Team as the basis for these deficiencies and could only find two instances in which laboratory tests were not performed. HRS did not present any evidence to establish the two other alleged instances. Dr. Lopez reviewed the medical records of the two residents in question and determined that there was no possibility of harm to the patient as a result of failure to perform these tests. One of the two residents is Dr. Lopez' patient, and he normally sees her every day. He stated that the test, an electrolyte examination, was a routine test, that the patient had had no previous problems, and if any problem had developed, she would have had symptoms which would have been observable to the nurses. The tests performed before and after the test that was missed were normal, and the failure to perform the one test had absolutely no effect on the patient. Dr. Lopez was familiar with the other resident upon whom a test was not performed and had reviewed her records. This resident was to have a fasting blood sugar test performed every third month. Although this test was not performed in April of 1984, it was performed timely in every other instance. All tests were normal, and the failure to perform this test did not have any effect on the resident. Had she been suffering from blood sugar problems, there would have been physical signs observable to the nurses. The fourth deficiency listed in the report was a paperwork problem similar to the first deficiency. Patients in a nursing home are classified by level of care and must be recertified from time to time. Certification does not affect the care of the resident. The recertification must be signed and dated by the physician. Again, there was a problem on the recertification because some of the dates were in a different color ink than the physician's signature. Again, the problem was primarily caused by difficulty in getting proper physician documentation. The deficiency did not affect the care of the residents. Mr. Maryanski, who made the decision not to give Plantation a superior rating, testified that of the four deficiencies cited in the IOC report, he believed that only the third deficiency listed, in and of itself, would have precluded a superior rating. An analysis of that deficiency, however, shows that it also was mainly a paperwork deficiency and had no impact on patient care. The third deficiency listed involved a purported failure to have the plans of care reviewed within the proper time frames. Patient care plans are to be reviewed every 60 days for "skilled" patients, those that need the most supervision, and every 90 days for "intermediate" patients, those that need less supervision. A patient's plan of care is a written plan establishing the manner in which each patient will be treated and setting forth certain goals to be reached. A discharge plan is also established, which is basically what the nursing home personnel believe will be the best outcome for the patient if and when he or she leaves the hospital. The patient plan of care is established at a patient care plan meeting. Patient care plan meetings are held by the various disciplines in the nursing home, such as nursing, dietary, social work and activities, to review resident records and discuss any problems with specific residents. The manner in which the problem is to be corrected is determined and then written down on the patient's plan of care record. The evidence revealed that the basis of the deficiency was not a failure to timely establish or review a plan of care, but a failure to timely write down and properly date the plan of care. During the time in question, care plan meetings were held every Wednesday, and all of the disciplines attended the meetings. However, all disciplines did not write their comments on the patients' records at the meeting; some wrote them later. Usually, when they were added later, the comments were dated on the day they were written, rather than on the day the meetings were held. The evidence presented did not show any case in which all disciplines were late in making notes, but revealed only that specific disciplines were tardy. Since all the disciplines attended one meeting, it is apparent that when the date for any discipline was timely, the later dates of other disciplines merely reflected a documentation or paperwork problem. In late 1984 or early 1985, Plantation changed its system to avoid the problem in the future. There appeared to be problems with some of the discharge plans being untimely. The discharge plan is not utilized in the day-to-day care of the resident. Discharge plans at Plantation were kept in two places, and Ms. Tranger recognized that she may have overlooked some plans if they had been written only on the separate discharge sheet. The four deficiencies cited all involved time frames. There are innumerable time frames that must be met by a nursing home. The great majority of the deficiencies involved a failure to properly document. None of the deficiencies affected the care of the patients. Indeed, Ms. Tranger indicated that the patients were all receiving proper nursing care. The decision to give Plantation a standard rating was made by Mr. Maryanski based solely on the IOC report. He relied upon section 400.23,(3) Florida Statutes, which states: "The department shall base its evaluation on the most recent annual inspection report, taking into consideration findings from other official reports, surveys, interviews, investigations and inspections." There are no regulations or written or oral policies implementing this provision. Mr. Maryanski looked solely at the face of the IOC report and did not do any independent investigation. He never visited the nursing home, and he never talked to the on-site surveyors to determine whether the deficiencies cited by the IOC Team were significant. He never saw the underlying documentation which formed the basis of the report. Mr. Maryanski has no background either in nursing or medicine and had no knowledge of purpose the tests that were allegedly not performed. On October 4, 1984, the HRS Office of Licensure and Certification (OLC) conducted the annual survey of the facility. Mr. Maryanski did not determine whether the deficiencies found by the IOC Team had been corrected at the time of the annual survey. An IOC Team surveyor returned on November 21, 1984, and found that all of the deficiencies cited during the IOC inspection had been corrected. A resurvey of the facility was conducted on December 27, 1984, by OLC. All deficiencies noted in OLC's original inspection had been corrected. All nursing home facilities in Florida are rated by HRS as conditional, standard, or superior. In addition to its financial significance, the rating of a facility is important because it affects the facility's reputation in the community and in the industry. The rating for a facility goes into effect on· the day of the follow-up visit of OLC if all deficiencies have been corrected. Therefore, Plantation would have received a superior rating, effective December 27, 1984, had it not been for the IOC report Mr. Maryanski never tried to determine whether the deficiencies in the IOC report had been corrected subsequent to the report being issued. Under rule lOD-29.128, Florida Administrative Code, there are extensive regulatory and statutory requirements which must be met for a facility to be granted a superior rating. Plantation met all of the enumerated requirements, yet it received only a standard rating. Mr. Maryanski based his determination on the IOC report despite the fact that it was outdated and the deficiencies in that report were corrected by November, 1984, prior to the December, 1984, resurvey by the OLC. There was nothing in the annual survey report of the OLC to preclude a superior rating. This is the first time a facility has been denied a superior rating based upon a report other than the annual report.

Florida Laws (3) 120.57, 400.062, 400.23

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AGENCY FOR HEALTH CARE ADMINISTRATION vs IHS AT CENTRAL PARK VILLAGE, INC., D/B/A INTEGRATED HEALTH SERVICES AT CENTRAL PARK VILLAGE, 02-003606 (2002)

Division of Administrative Hearings, Florida Filed:Orlando, Florida Sep. 18, 2002 Number: 02-003606 Latest Update: Jan. 19, 2025

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HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, D/B/A HEARTLAND OF PALM BEACH COUNTY vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 84-003337 (1984)

Division of Administrative Hearings, Florida Number: 84-003337 Latest Update: Jul. 08, 1986

Recommendation Based upon the foregoing, it is recommended that the Department of Health and Rehabilitative Services, pursuant to Rule 10-5.11(21)(b)10, Florida Administrative Code, and Section 381.494(8)(c), Florida Statutes, issue a certificate of need to Health Care and Retirement Corporation of American, d/b/a Heartland of Palm Beach, for 120 community nursing home beds limited and conditioned upon all such beds being dedicated only to the provision of such services and facilities for victims of Alzheimer's disease as described by the Petitioner in this case and set forth in findings of fact 18 through 21 of this order, with 30 of such beds established for sub-acute care needs of Alzheimer's disease patients. It is further recommended that the certificate of need not contain approval for general community nursing home beds, but be limited to Alzheimer's disease patients. DONE and ORDERED this 8th day of July, 1986, in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-3337 Pursuant to section 120.59(2), Fla. Stat., the following are specific rulings upon all proposed findings of fact submitted by the parties which have been rejected in this Recommended Order. Findings of Fact Proposed by the PETITIONER: 7. Sentences 3 and 4 have been rejected because the evidence was not sufficiently complete to describe nursing homes in Florida in general, and because the issue in this case is the need in Palm Beach County, thus making these proposed facts not relevant. 10. Sentence 3 is rejected since the testimony did not clearly show that therapeutic kitchens "should be available." 13. Sentences 9 and 10 are rejected because the evidence did not categorically show that it "would not be possible" to use actual physician orders, or that "physicians do not typically arrange their records so that orders of that kind could be extracted from their records." Similarly sentence 12 is rejected for lack of categorical evidence to prove impossibility. 17. Evidence that the entire facility is "completely fenced and enclosed" cannot be located in the record, and thus sentence 7 is rejected. The bulk of the discussion in proposed finding of fact 20 has been rejected because it is argument or conclusions of law. Those portions of this proposed finding which propose a finding that the Respondent's interpretation of rule 10-5.11(21)(b)10, Florida Administrative Code, is wrong or unreasonable are rejected as argument or conclusions of law. Most of the factual statements were adopted. Findings of Fact Proposed by the RESPONDENT: All proposed findings of fact by the Respondent have been adopted in substance. COPIES FURNISHED: Harden King, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32301 Kenneth A. Hoffman, Esquire G. Steven Pfeiffer, Esquire Laramore & Clark, P.A. 325 North Calhoun Street Tallahassee, Florida 32301 William Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 =================================================================

Florida Laws (1) 120.57

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AGENCY FOR HEALTH CARE ADMINISTRATION vs MANDEL, LLC, D/B/A HERITAGE VIEW ALF OF PLANT CITY, 06-003538 (2006)

Division of Administrative Hearings, Florida Filed:Tampa, Florida Sep. 19, 2006 Number: 06-003538 Latest Update: Jan. 19, 2025

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ODYSSEY HEALTHCARE OF COLLIER COUNTY, INC., D/B/A ODYSSEY HEALTHCARE OF CENTRAL FLORIDA vs HPH SOUTH, INC., AND AGENCY FOR HEALTH CARE ADMINISTRATION, 10-001605CON (2010)

Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Mar. 25, 2010 Number: 10-001605CON Latest Update: Feb. 04, 2011

The Issue Whether the Certificate of Need (CON) applications filed by Odyssey Healthcare of Collier County, Inc., d/b/a Odyssey Healthcare of Northwest Florida, Inc. (Odyssey), and HPH South, Inc. (HPH), for a new hospice program in the Agency for Health Care Administration (AHCA or the Agency) Service Area 5B, satisfy, on balance, the applicable statutory and rule review criteria to warrant approval; and whether such applications establish a need for a new hospice based on special circumstances, and, if so, which of the two applications best meets the applicable criteria for approval. Holding: Neither applicant proved the existence of special circumstances warranting approval of an additional hospice program in Service Area 5B. Although neither application is recommended for approval in this Recommended Order, both applicants, on balance, satisfy the applicable statutory and rule criteria. Of the two, HPH best satisfies the criteria.

Findings Of Fact The Parties AHCA The Agency for Health Care Administration is the state agency authorized to evaluate and render final determinations on CON applications pursuant to Subsection 408.034(1), Florida Statutes. HPH HPH is a newly created not-for-profit corporation formed to initiate hospice services in Pinellas County. HPH is a wholly-owned subsidiary of Hernando-Pasco Hospice, Inc., d/b/a HPH Hospice and is one of the oldest, not-for-profit community hospices in Florida. HPH Hospice was incorporated in 1982 to serve terminally ill persons within Hernando and Pasco Counties. HPH was approved to expand its services north to Citrus County in 2004. HPH is a high-quality provider of hospice services in the service areas where it currently operates. It provides pain control and symptom management, spiritual care, bereavement, volunteer, social work, and other programs. HPH employs a physician-driven model of hospice care, with significant involvement of hospice and palliative care physicians who are physically present treating patients in their homes. The number of physician home visits provided to hospice patients by HPH physicians is larger than many hospices in Florida and throughout the United States. In 2009, HPH provided over 35,000 visits by physicians, advanced registered nurse practitioners, and licensed physician assistants to its hospice patients. The majority of these visits occurred in the patients' homes. HPH operates multiple facilities that allow for provision of services to patients in various settings and hospice levels of care. Among its facilities, HPH operates four buildings it calls Care Centers, at which patients can receive general in-patient care. Additionally, HPH operates four units which it calls Hospice Houses. Those units provide for residential care in a home-like environment for patients who do not have caregivers at home or who otherwise are in need of a home. HPH receives no reimbursement for room and board for the care provided at its Hospice Houses and expends over $1.4 million annually in charity care to operate these Hospice Houses for the benefit of its patients. HPH has an established record of providing all levels of hospice care and does not use its Care Centers as a substitute for providing continuous care in the patient's home when such care is needed. Annually, HPH provides approximately percent of its patient days for continuous care patients. HPH has well-developed staff education and training programs, including specialized protocols for care and treatment of patients by terminal disease type such as Alzheimer's, COPD, cancer, failure to thrive, and pulmonary diseases. Odyssey Odyssey is the entity applying for a new hospice program in Service Area 5B. The sole shareholder of Odyssey is Odyssey HealthCare Operating B, LP, which is a wholly-owned subsidiary of Odyssey HealthCare, Inc. (OHC), Odyssey's parent and management affiliate. Odyssey was formed for the purpose of filing for CON applications in Florida and, thereafter, for owning and operating hospice programs in Florida. OHC is a publicly-traded company founded in 1996 and focuses on caring for patients at the end of life's journey. OHC's sole line of business is hospice services. OHC's patient population consists of approximately 70 percent non-cancer and 30 percent cancer patients. OHC is one of the largest providers of hospice care in the United States. OHC has approximately 92 Medicare-certified programs in 29 states, including established programs in Miami-Dade (Service Area 11) and Volusia (Service Area 4B) Counties and a start-up program in Marion County (Service Area 3B), which was licensed in January 2010. Over four years ago, OHC was the subject of an investigation by the United States Department of Justice that ultimately resulted in a settlement and payment of $13 million to the federal government in July 2006. The settlement did not involve the admission of liability or acknowledgement of any wrongdoing by OHC. As part of the settlement, OHC entered into a corporate integrity agreement (CIA) with a term of five years. Odyssey is now in the final year of the CIA. The settlement and CIA allow OHC to self-audit to ensure compliance with the Medicare conditions of participation, which is the first and only time the OIG has allowed a provider to self audit. Suncoast Suncoast is a large and well-developed comprehensive hospice program serving Pinellas County, Service Area 5B. Suncoast is the sole provider of hospice services in Service Area 5B. According to data reported to the Department of Elder Affairs, Suncoast had 7,375 admissions and provided 795,102 patient days of care in 2009, more than any other Florida hospice. In that same year, Suncoast provided 115,247 patient days of care in assisted living facilities, the third highest total in Florida. Suncoast considers itself a model for hospice across the United States and the world. Suncoast has a large depth and breadth of programs, including community programs offered by its affiliate organizations, such as the AIDS Service Association of Pinellas County, the Suncoast Institute, and Project Grace. Suncoast is active in the national organization for hospices and interacts with programs that use it as a model and resource. Unlike the applicants, Suncoast does not use the Medicare conditions or definitions to limit or define the scope of services it provides. Under the Florida definition, hospice is provided to patients with a life expectancy of 12 months or less. HPH, by way of contrast, uses the Centers for Medicare and Medicaid Services definition for hospice, i.e., a prognosis of six months or less. Overview of Hospice Services In Florida, hospice programs are required to provide a continuum of palliative and supportive care for terminally ill patients and their families. Under Florida law, a terminally ill patient has a prognosis that his/her life expectancy is one year or less if the illness runs its normal course. Under Medicare, a terminally ill patient is eligible for the Medicare Hospice benefits if their life expectancy is six months or less. Hospice services must be available 24 hours a day, seven days a week, and must include certain core services, including nursing, social work, pastoral care or counseling, dietary counseling, and bereavement counseling. Physician services may be provided by the hospice directly or through contract. Hospices are required to provide four levels of hospice care: routine, continuous, in-patient, and respite. Hospice services are furnished to a patient and family either directly by a hospice or by others under contractual arrangements with a hospice. Services may be provided in a patient's temporary or permanent residence. If the patient needs short-term institutionalization, the services are furnished in cooperation with those contracted institutions or in a hospice in-patient facility. Routine home care comprises the vast majority of hospice patient days. Florida law states that hospice care and services provided in a private home shall be the primary form of care. Hospice care and services, to the extent practicable and compatible with the needs and preferences of the patient, may be provided by the hospice care team to a patient living in an assisted living facility (ALF), adult family-care home, nursing home, hospice residential unit or facility, or other non-domestic place of permanent or temporary residence. A resident or patient living in an ALF, nursing home, or other facility, who has been admitted to a hospice program, is considered a hospice patient, and the hospice program is responsible for coordinating and ensuring the delivery of hospice care and services to such person pursuant to the statutory and rule requirements. The in-patient level of care provides an intensive level of care within a hospital setting, a skilled nursing unit or in a freestanding hospice in-patient facility. The in- patient component of care is a short-term adjunct to hospice home care and home residential care and should only be used for pain control, symptom management, or respite care in a limited manner. In Florida, the total number of in-patient days for all hospice patients in any 12-month period may not exceed 20 percent of the total number of hospice days for all the hospice patients of the licensed hospice. Continuous care, similar to in-patient care, is basically emergency room or crisis care that can be provided in a home care setting or in any setting where the patient resides. Continuous care, like in-patient care, was designed to be provided for short amounts of time, usually when symptoms become severe and skilled and individual interventions are needed for pain and symptom management. Respite care is generally designed for caregiver relief. It allows patients to stay in hospice facilities for brief periods to provide breaks for the caregivers. Respite care is typically a very minor percentage of overall patient days and is generally designed for caregiver relief. Medicare reimburses the different levels of care at different rates. The highest level of reimbursement is for continuous care. Approximately 85 to 90 percent of hospice care is covered by Medicare. The goal of hospice is to provide physical, emotional, psychological, and spiritual comfort and support to a terminally ill patient and their family. Hospice care provides palliative care as opposed to curative care, with the focus of treatment centering on palliative care and comfort measures. There is no "bright line test" as to what constitutes palliative care and what constitutes curative care. The determination is made on a case-by-case basis depending upon the facts and circumstances of each such case. However, palliative care generally refers to services or interventions which are not curative, but are provided for the reduction or abatement of pain and suffering. Hospice care is provided pursuant to a plan of care that is developed by an interdisciplinary group consisting of physicians, nurses, social workers, and various counselors, including chaplains. There are certain services required by individual hospice patients that are not necessarily covered by Medicare and/or private or commercial insurance. These services may include music therapy, pet therapy, art therapy, massage therapy, and aromatherapy. There are also more complicated and expensive non-covered services, such as palliative chemotherapy and radiation that may be indicated for severe pain control and symptom control. Suncoast provides, and both Odyssey and HPH propose, to provide hospice patients with all of the core services and many of the other services mentioned above. Fixed Need Pool The Agency has a numeric need formula within its rule for determining the need for an additional hospice program in a service area. See Fla. Admin. Code R. 59C-1.0355(4)(a). When applying the formula in the present case, AHCA ultimately determined that the fixed need was zero for the second batching cycle of 2009. In the absence of numeric need, an applicant must document the existence of one of three delineated special circumstances set forth in Florida Administrative Code Rule 59C-1.0355(4)(d), i.e., (1) That a specific terminally ill population is not being served; (2) That a county or counties within the service area of a licensed hospice program are not being served; or (3) That there are persons referred to hospice programs who are not being admitted within 48 hours. Absent numeric need or one of the delineated special circumstances, there cannot be approval of a new hospice program. In forecasting need under the hospice rule's methodology, AHCA uses an average three-year historical death rate. It applies this average against the forecasted population for a two-year planning horizon. AHCA also uses a statewide penetration rate, which is the number of hospice admissions divided by hospice deaths. The statewide average penetration rate is subdivided into four categories: cancer over age 65, cancer under age 65, non-cancer over age 65, and non-cancer under age 65. The projected hospice admissions (based on death rate and projected population growth) in each category are then compared to the most recent published actual admissions to determine the number of projected un-met admissions in each category. If the total un-met admissions in all categories exceed 350, a new hospice is warranted, unless there is a recently approved hospice in the service area or a new hospice provider has not been operational for two years. In the instant case, AHCA's final projections showed the net un-met need for hospice's admissions in Service Area 5B was 318, i.e., below the threshold amount of 350 necessary to establish need for an additional hospice program. The fixed need pool for the purpose of this administrative hearing is zero. HPH is primarily basing its determination of need for a new hospice on its contention that there are three specific terminally ill population groups in Pinellas County that are not being served. Odyssey is primarily basing its determination of need for a new hospice on its contention that there are persons being referred to the existing hospice program in Pinellas County who are not being admitted within 48 hours. The Proposals HPH's Proposal HPH proposes to establish its new hospice program in Pinellas County, Service Area 5B. HPH is currently licensed to provide hospice care in three contiguous sub-districts north of Service Area 5B, i.e., in Hernando, Pasco, and Citrus counties. HPH's corporate headquarters is located in Pasco County, ten to 15 minutes from the Pinellas County border. HPH currently operates a home health agency in Pinellas County. HPH's CON application identifies special circumstances justifying approval of its proposal, including four sub-populations of terminally ill persons who are currently underserved in Service Area 5B: (1) patients living in ALFs; (2) patients requiring continuous care; (3) medically complex patients; and (4) patients not being admitted within 48-hours. Another circumstance identified by HPH to support approval of its application is the fact that Pinellas County is one of the most populous and most elderly service areas in the State, and yet, it only has a single hospice provider. HPH argues that the fact Suncoast is a sole hospice provider for the service area exacerbates and contributes to the problems of gaps in available hospice services to the specific terminally ill sub-populations identified in its CON application. HPH proposes a de-centralized model of hospice service delivery similar to its model in the three contiguous counties where HPH presently provides hospice services. HPH proposes contracting with existing nursing homes and hospitals for in-patient beds ("scatter beds") throughout Service Area 5B. HPH then projects that it could offer in-patient services in the local neighborhoods of patients and families where they live, as opposed to transferring patients to a single in-patient facility for the provider's convenience. As census increases, HPH commits to establish, by month seven of operation, a dedicated in-patient unit to provide in-patient level of care and Hospice House residential care to patients in a home-like environment. Like its hospice operations in Hernando, Pasco and Citrus Counties, HPH proposes to implement its "physician- driven" model of hospice care in Service Area 5B, allowing for greater involvement of physicians in the care and treatment of hospice patients, including physician home visits. Odyssey's Proposal Odyssey proposes to address lack of competition2 in Service Area 5B and the special circumstance of patients not being admitted within 48 hours of referral. Under AHCA's hospice rule, an applicant may demonstrate the need for a new hospice provider if there are persons referred to a hospice program who are not being admitted within 48 hours. However, the applicant must indicate the number of such persons. Odyssey relies upon referral of admission statistical information previously provided by Suncoast to a sister Odyssey entity in a 2005 hospice CON matter. Suncoast at that time provided three years of data that demonstrated between 1,700 (31 percent of admissions) and 2,300 (38 percent of admissions) of patients admitted to Suncoast were admitted 72 hours or more after referral. The definition of referral by Suncoast, however, differs from the definition of referral relied upon by Odyssey. (See Paragraph 56, herein.) Odyssey also provided letters of support from the community to further evidence the existence of the 48-hour special circumstance. However, the letters of support originally appeared in an application filed by Odyssey in 2007 and were not given any weight in the instant proceeding based on their staleness. Odyssey also contends that the existence of a sole provider in Service Area 5B has created a monopolistic situation in the service area. It further contends that the lack of competition has led to the existence of a 48-hour special circumstance in Service Area 5B. Approval of Odyssey's application will, it says, eliminate the monopoly currently existing in Service Area 5B and will address the lack of competition currently occurring in Service Area 5B. Subsection 408.045(2), Florida Statutes, speaks of a "regional monopoly," but there is no credible evidence in the record to suggest that Suncoast's position as a sole provider in Pinellas County constitutes a "regional monopoly." Facts Concerning Special Circumstances Arguments Service Area Demographics Hospice Service Area 5B, Pinellas County, is a single-county hospice service area with a population of approximately one million residents. Pinellas County is currently ranked as the fourth largest county in the State in total numbers of elderly persons over 65 years of age, as well as elderly persons over 75 years of age, behind only Miami-Dade, Broward and Palm Beach Counties. Pinellas County also experienced the fourth highest number of total deaths in the State in 2008--11,268. Pinellas County's mortality rate in recent years has slowed. However, even considering a slower growth rate in the number of deaths, Pinellas County likely will remain the fourth largest county in the State in both elderly population and number of deaths through 2015. Although it is the fourth largest service area in terms of likely hospice patients, Suncoast is the sole hospice provider in Service Area 5B. By contrast, the other three largest service areas all have multiple hospice programs to serve their large elderly populations with eight providers in Service Area 11 (Miami-Dade), five providers in Service Area 10 (Broward), and three providers in Service Area 9C (Palm Beach). In assessing the extent of utilization of hospice services in Service Area 5B, HPH through its health planner, Patricia Greenberg, noted that Suncoast appears to have over-stated its utilization rate in its semi-annual reports to AHCA. Ms. Greenberg testified that Suncoast's AHCA data includes patients who are not truly hospice patients and are, instead, patients who are participating in non-hospice programs operated by Suncoast, including palliative care programs known as "Suncoast Supportive Care" and "Hospital Support." The number of such patients was not quantified by Ms. Greenberg.3 Suncoast counters that it does not let the conditions of participation define the scope and breadth of hospice services it offers. Suncoast tries not to be defined by the Medicare conditions of participation and has programs that are not covered by the benefit, including but not limited to its residential care at Woodside and its caregiver services. Specific Terminally Ill Populations HPH identified as under-served in Service Area 5B medically complex patients with complex medical needs, including multiple IVs, wound vacs, ventilator, complex medications, or acutely uncontrolled symptoms in multiple domains. These are the same kinds of patients who would require continuous care within their homes. Hospice patients have become more highly acute in recent years. More patients are being discharged from hospitals with highly complex medical conditions, often directly from hospital intensive care units. Patients discharged directly from hospitals tend to have higher acuity levels. Ms. Greenberg reviewed Suncoast's data on hospital discharges and found Suncoast statistically lags behind HPH in caring for medically complex patients discharged from hospitals. Looking at a three-year average, HPH had 3.7 percent of its hospice discharges directly admitted from hospitals, compared to percent for Suncoast. This is more than a 50-percent deviation between hospital discharges to hospice for HPH versus Suncoast. However, a comparison of Suncoast to HPH does not establish that there is a specific underserved population in Service Area 5B which is not receiving services. One case manager testified to sometimes not being able to timely find hospice placements for medically complex patients. Such patients would then have to be transferred from the hospital to a nursing home or rehabilitation facility. However, she did not testify that this specific terminally ill population was not being served, only that they were being served somewhere other than in an in-patient hospice bed. Medically complex patients, including those needing continuous care, were another specific terminally ill population identified by HPH. At page 54 of her deposition, Deborah Casler, a case manager at Helen Ellis Hospital, addressed those populations, saying, "[w]hat I am going to say is if anybody needed continuous care through Suncoast, it would happen, but it wasn't always a quick and easy process." HPH compared its percentage of continuous care patient days with Suncoast, showing that HPH had more. That does not equate to an absence of service for any specific terminally ill population. HPH attempts to create a presumption that services are not being provided by conditioning its application on a certain percentage (3 percent) of days for continuous care patients. That is merely a projection of intent; it is not evidence that a certain population is not currently being served. Assisted Living Facility Residents HPH provided anecdotal evidence that some ALFs in Pinellas County were not pleased with the services being provided by Suncoast. One ALF administrator was dissatisfied that Suncoast took a long time to admit her resident (but the resident was ultimately admitted). Another was disappointed with Suncoast because it took a long time to get medications for her resident. Another felt like Suncoast's quality of care was inferior. HPH provides a greater percentage of hospice services to ALF residents in Pasco (12.7 percent), Hernando (26.5 percent), and Citrus (23.5) counties than Suncoast provides to ALF residents in Pinellas County. There are approximately 215 ALFs in Pinellas County of varying sizes, i.e., from three beds to almost 500 beds. Suncoast did not provide services to all of them. There was no showing, however, that any resident of an ALF who needed or requested hospice services was denied such care. None of the evidence presented by HPH establishes the existence of a group of ALF residents who were not being served in the service area; nor does the evidence prove that any specific ALF residents are, in fact, terminally ill. The 48-Hour Admission Provision Neither Suncoast, nor Odyssey presented any hard data on timeliness of admissions. In fact, none of the parties could agree as to what action constitutes an admission. Suncoast says an admission must include a physician order and a consent by the patient and family. Odyssey identifies a referral as a telephone call from a family member, even if the call is simply an inquiry as to what services might be available. Odyssey says that the majority of its patients are admitted within three hours of referral and at least 80 percent are admitted within 24 hours. During that three-hour time frame, Odyssey will contact the family, contact the physician in order to evaluate and admit, if appropriate, screen the patient to ensure he or she meets the eligibility guidelines, go out and meet with the family, and provide support while necessary information is being gathered. HPH candidly admits that the issue of admissions within 48 hours does not, in and of itself, justify the approval of a new hospice program in Service Area 5B. However, HPH argues, it is an element of hospice services that HPH would do better than the other parties. There is no credible evidence in the record that an identified number of persons in Pinellas County had not been admitted to hospice within 48 hours of referral. Statutory and Rule Review Criteria Rule Preferences The Agency is required to give preference to an applicant meeting one or more of the criteria specified in Florida Administrative Code Rule 59C-1.0355(4)(e)1 through 5: Commitment to serve populations with unmet need.-- There is no numeric need in this matter. Neither applicant proved the existence of a population with unmet need. Commitment to provide in-patient care through contract with existing health care facilities.-- Both HPH and Odyssey intend to use scatter beds and to contract with existing health care providers. Commitment to serve homeless and AIDS patients, as well as patients without caregivers.--Both applicants have shown a history of serving such groups and commit to do so in Pinellas County. Not Applicable. Commitment to provide services not covered by insurance, Medicare or Medicaid--Both applicants have a good history of providing indigent care and commit to do so in Pinellas County. Consistency with Plans; Letters of Support Florida Administrative Code Rule 59C-1.0355(5) requires consideration of the applications in light of the local and state health plans. The local health council plans are no longer a factor in this proceeding. The state health plan addresses the concept of letters of support. Again, as neither applicant proved special circumstances warranting approval of a new hospice program, this comparison is unnecessary. However, there was considerable testimony and argument at final hearing concerning letters of support and the issue deserves some discussion. Each applicant provided letters of support. In fact, HPH's application contained over 250 letters of support from a wide range of writers, including physicians, nurses, ALF and nursing home administrators, and others. AHCA even complimented HPH's letters of support in both quantity and quality. Such letters are, of course, hearsay and cannot be relied upon to make findings as to the statements made herein. However, the fact that HPH generated so many letters of support is a fact that lends additional credence to their application. Odyssey's letters of support, by comparison, were much fewer in number. The letters were also dated, having come from a CON application filed some three years prior to the application currently at issue. The content of those letters would also be hearsay. And in the present action, the age of the letters would reduce their significance as support for the Odyssey CON application at issue. Statutory Review Criteria The Agency reviews each CON application in context with the criteria set forth in Subsection 408.035(1)(a) through (j), Florida Statutes: Subsection 408.035(1)(a), Florida Statutes--The need for the health care facilities and health services being provided There was no need projected by AHCA under its need methodology. Neither party established the existence of special circumstances warranting approval of a new hospice program in Service Area 5B. Subsection 408.035(1)(b), Florida Statutes-- availability, quality of care, accessibility, and extent of utilization Suncoast is the sole provider of hospice services in Service Area 5B. This service area is one of the largest in the State. There are other service areas which have a single hospice provider, but Service Area 5B is the largest service area to be served by a single hospice provider. Service Area 5B experienced the fourth largest number of deaths in the State in 2008, an important factor in the provision of hospice care. Suncoast has 15 interdisciplinary care teams, each of which, lead by a patient-family care coordinator, includes RNs, home health aides, counselors, volunteers, and a chaplain. Suncoast has a north community service center in Palm Harbor that houses four patient care teams. On the back of that property is Brookside, Suncoast's newly built 30-bed in-patient facility. In central Pinellas County, Suncoast has its main service center with six patient care teams along with administrative and support offices. Suncoast has a pharmacy, as well as durable medical equipment and infusion departments, located in Largo. In central Pinellas County is Suncoast's ten-acre, 72-bed Woodside facility. Thirty-six of the beds are in-patient and 36 are residential. On the back of the property are 18 efficiency apartments called "Villas" with separate living, sleeping and kitchen areas. When patients become too ill to remain at home, their spouse may move into a villa until the patient dies. In the southern portion of the county is Suncoast's south community service area which houses five patient care teams, as well as "ASAP." ASAP is Suncoast's AIDS Service Association of Pinellas County which serves and provides support to patients with HIV and AIDS. Suncoast also has in-patient contracts with every hospital in Pinellas County and a number of contracts with nursing homes for in-patient care. Patients may receive continuous care in the home whether that is a residence, an ALF, or a nursing home or may receive care in the Suncoast in-patient unit. There is disagreement over whether Suncoast accurately reports its admissions and whether all reported admissions are actually hospice patients. Further, HPH points out that its penetration rate in counties where it operates is much higher than Suncoast's penetration rate in Pinellas County. However, the most credible evidence is that Suncoast is effectively serving the needs of hospice-eligible residents of Service Area 5B. Subsection 408.035(1)(c), Florida Statutes--ability to provide quality of care and record of providing quality of care Both applicants satisfy this criterion. Both applicants can provide a broad range of quality hospice services to all its patients. HPH touts its physician model, including physician home visits, as evidence of its commitment to quality care. Physician visits have been proven to help patients get pain under control more quickly, an important factor considering ten percent of hospice patients die within 48 hours of admission. Odyssey is a large company and has extensive operational policies and procedures concerning provision of quality care to its patients. Odyssey has a program called Care Beyond which it believes will enhance quality care in Service Area 5B. Odyssey has had some regulatory violations while HPH has not. However, Odyssey has resolved those violations favorably. Subsection 408.035(1)(d), Florida Statutes-- availability of resources, including health personnel, management personnel, and funds for project accomplishment and operation The parties stipulate that both applicants meet this criterion. Subsection 408.035(1)(e), Florida Statutes--extent to which proposed services will enhance access to health care for residents of the service district Both applicants satisfy this criterion. HPH is the existing provider of hospice services in the adjacent service area to Service Area 5B. HPH can use its existing contacts in Service Area 5B to extend its service to residents of that area. HPH has already established relationships with Airamed Corporation and its 11 nursing homes and ALF in Service Area 5B. HPH also commits to being more directly involved with smaller ALFs in Pinellas County. Odyssey is a large hospice with significant resources which can be utilized to enhance access for residents of Service Area 5B. It commits to bring quality personnel to Service Area 5B as part of its successful start-up procedures. Subsection 408.035(1)(f), Florida Statutes--immediate and long-term financial feasibility The parties stipulate that both applicants meet this criterion. Subsection 408.035(1)(g), Florida Statutes--extent to which proposal will foster competition that promotes quality and cost-effectiveness Both applicants are established providers of hospice services. The absence of any other hospice provider in Pinellas County means there is no effective competition. If either of the applicants was granted a CON for a new hospice in Service Area 5B, it would likely foster competition and promote quality and cost-effectiveness. Subsection 408.035(1)(h), Florida Statutes--costs and methods of construction, etc. This criterion is not applicable to the instant case. Subsection 408.035(1)(i), Florida Statutes--the applicant's past and proposed provision of health care services to Medicaid patients and the medically indigent Both applicants meet this criterion. HPH offers extensive services that go beyond the Medicare requirements of participation. It also operates "Hospice Houses" which provide room and board to homeless hospice patients. Odyssey's record of indigent care is evidenced by the fact that approximately 55 percent of its non-Medicare net revenue is from Medicaid, and 9.5 percent of its non-Medicare services are provided to indigent patients. Subsection 408.035(1)(j)--designation as a Gold Seal Program This criterion is not applicable to the instant case. Ultimate Findings of Fact The Agency determined that there is no need for an additional hospice in the service area based upon the fixed need pool formula. Neither applicant was able to establish the existence of special circumstances warranting approval of a new hospice in the service area. There is no specific terminally ill population which is not receiving hospice services that has been identified by the applicants. There is no persuasive evidence that there is an identifiable number of individuals who were referred to hospice, but were not admitted within 48 hours.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Agency for Health Care Administration denying the CON applications of HPH South, Inc. (No. 10066), and Odyssey Healthcare of Collier County d/b/a Odyssey Healthcare of Central Florida (No. 10068). DONE AND ENTERED this 30th day of November, 2010, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2010.

Florida Laws (7) 120.569, 120.57, 408.034, 408.035, 408.039, 408.043, 408.045

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AGENCY FOR HEALTH CARE ADMINISTRATION vs LEESBURG REGIONAL MEDICAL CENTER, INC., D/B/A LRMC NURSING CENTER, 04-002869 (2004)

Division of Administrative Hearings, Florida Filed:Wildwood, Florida Aug. 16, 2004 Number: 04-002869 Latest Update: Jan. 19, 2025

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HOSPICE OF NORTHWEST FLORIDA, INC. vs BAY MEDICAL CENTER; PANHANDLE HOSPICE, INC.; AND AGENCY FOR HEALTH CARE ADMINISTRATION, 96-004073CON (1996)

Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Aug. 28, 1996 Number: 96-004073CON Latest Update: Oct. 02, 1997

The Issue Whether a need exists for an additional hospice in Agency for Health Care Administration service area 1. Whether the certificate of need application of Bay Medical Center to establish the hospice, on balance, meets the criteria for approval.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency For Health Care Administration enter a Final Order issuing CON 8377 to Bay Medical Center to establish a hospice program in service area 1, conditioned on providing annually a minimum of 12.8 percent Medicaid care, 3.65 percent charity care, and service to a minimum of 7 AIDs patients with a minimum of 350 visits. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of May, 1997. ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1997. COPIES FURNISHED: Richard Ellis, Senior Attorney Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Darrell White, Esquire William B. Wiley, Esquire McFarlain, Wiley, Cassedy & Jones, P.A. Post Office Box 2174 Tallahassee, Florida 32315-2174 J. Robert Griffin, Esquire J. Robert Griffin & Associates, P.A. 2559 Shiloh Way Tallahassee, Florida 32308 Sam Power, Agency Clerk Agency For Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Jerome W. Hoffman, General Counsel Agency For Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403

Florida Laws (6) 120.57, 400.601, 408.035, 408.037, 408.039, 408.043 Florida Administrative Code (1) 59C-1.0355

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GREYSTONE HOSPICE OF DISTRICT 7B, LLC vs HALIFAX HOSPICE, INC., AND AGENCY FOR HEALTH CARE ADMINISTRATION, 14-001368CON (2014)

Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Mar. 24, 2014 Number: 14-001368CON Latest Update: May 15, 2014

Conclusions THIS CAUSE came before the State of Florida, Agency for Health Care Administration (“the Agency") for the issuance of a final order. 1. On March 10, 2014, Greystone Hospice of District 7B, LLC, (“Greystone”) requested a formal administrative hearing to contest the preliminary denial of Certificate of Need (“CON”) Application No. 10209, which it submitted to establish a hospice program in the Agency Health Planning Service District 7, Hospice Service Area 7B, and to contest the preliminary approval of Halifax Hospice, Inc.’s (“Halifax”) CON Application No. 10210, to Filed May 15, 2014 4:20 PM Division of Administrative Hearings establish a hospice program in Hospice Service Area 7B. 2. The matter was referred to the Division of Administrative Hearings (CDOAH”) where it was assigned Case No. 14-1368CON. 3. On April 1, 2014, Halifax requested a formal administrative hearing challenging the co-batched applications and supporting the Agency’s preliminary approval of Halifax’s CON Application No. 10210, to establish a hospice program in Service Area 7B, and to support the Agency’s preliminary denial of the co-batched application filed by Greystone. 4. The request was referred to DOAH where it was assigned Case No. 14-1472CON. 5. On April 2, 2014, DOAH issued an Order of Consolidation. 6. On April 18, 2014, Greystone filed a Notice of Voluntary Dismissal. It is therefore ORDERED: 7. The denial of Greystone’s CON Application No. 10209 is upheld. 8. The approval of Halifax’s CON Application No. 10210 is upheld subject to the conditions noted in the State Agency Action Report. ORDERED in Taliahassee, Florida, on this ee day of [hae , 2014. ab hb Ductere Elizabeth Dudek, Secretary Agency for Hegfth Care Administration

Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to 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 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 of 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. Page 2 of 3 CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of this Final Order was served on the below- —~—” named persons by the method designated on this [Pine Les , 2014. Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 412-3630 W. David Watkins Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Lorraine M. Novak, Esquire Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Stephen A. Ecenia, Esquire Rutledge, Ecenia and Purnell, P.A. Post Office Box 551 Tallahassee, Florida 32302-0551 Steve@reuphlaw.com (Electronic Mail) Seann M. Frazier, Esquire Parker, Hudson, Rainer and Dobbs, LLP 215 South Monroe Street, Suite 750 Tallahassee, Florida 32301 Sfrazier@phrd.com (Electronic Mail) R. David Prescott, Esquire Rutledge, Ecenia and Purnell, P.A. Jonathan L. Rue, Esquire Parker, Hudson, Rainer and Dobbs, LLP Post Office Box 551 285 Peachtree Center Avenue, Suite 1500 Tallahassee, Florida 32302-0551 Atlanta, Georgia 30303 David@reuphlaw.com jrue@phrd.com (Electronic Mail) (Electronic Mail) | Gabriel F.V. Warren, Esquire James McLemore, Supervisor Rutledge, Ecenia and Purnell, P.A. Certificate of Need Unit Post Office Box 551 Agency for Health Care Administration Tallahassee, Florida 32302-0551 (Electronic Mail) Gabriel@reuphlaw.com (Electronic Mail) Page 3 of 3

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