Christine Jordan Sexton
Residents in Glades, Hendry and Lee counties will have more than one hospice provider to choose from thanks to a new court ruling.
A state administrative judge issued a pair of rulings this week that, in tandem, clear the way for VITAS Healthcare to open a new hospice in Southwest Florida in the coming year.
Hope Hospice and Community Services Inc. tried unsuccessfully on two fronts to stop VITAS Healthcare Corporation from opening a hospice program in the tri-county area.
But Judge Robert Cohen dismissed one challenge that alleged the project did not meet statutory or regulatory criteria and that the new certificate of need (CON) program would adversely impact its ability to continue to provide services in the area.
Cohen also issued a final order dismissing Hope’s allegation that the state relied on an unofficial policy when it approved VITAS’ request for a CON for a new hospice program.
Hospice describes both the care that is delivered and the provider that delivers the care.
Hospice care is provided to people who are nearing the end of life. The goal is to maximize comfort and ease treatment for underlying medical conditions causing death. Hospice services are provided by a team of health care professionals led by a physician. Medicare, Medicaid and commercial health insurance provide coverage for hospice care.
Florida requires a CON to establish a hospice and also regulates hospice care through statutes. In order to obtain a CON, there must be a “need” for the service. The Agency for Health Care Administration (AHCA) twice annually publishes what’s called a “fixed need pool” which determines whether there is a need for new hospice programs.
AHCA published an analysis in February 2021 showing no additional need for hospice services in District 8C, which comprises Glades, Hendry and Lee counties.
Despite the state’s findings, VITAS Healthcare, which operates hospices across the state, submitted an application citing special circumstances. AHCA’s summary of the application shows VITAS plans on offering a dozen different programs, from end-stage renal disease to a veteran’s program and a cardiac care program, among others.
It also agreed to have offices in Glades and Hendry counties, which have below average hospice uptick rates.
According to the court documents, VITAS conducted an analysis that showed Hope focuses its efforts on residents in heavily populated Lee County and that the focus has resulted in unmet need of residents in Hendry and Glades counties, which have large Black and Hispanic populations.
VITAS maintained its analysis also showed minority patients are not accessing hospice at the same rate as non-minorities. Residents in those counties, according to VITAS, are out-migrating for hospice services.
Hope argued VITAS did not meet the requirements for a CON application under special circumstances though because VITAS did not document any specific patients who could not access hospice services, which it claimed was a requirement.
While VITAS couldn’t document the identity of specific patients who did not receive care, Judge Cohen said, “It’s rarely a simple matter for a provider without a presence in a service area to get full cooperation from existing healthcare providers since they are generally tied financially or through business relationships through the incumbent provider.”
Cohen lauded VISTA for having done the legwork in advance of its administrative challenge by sending “key personnel” into the district to “better understand the needs of the specialized populations of patients who will need hospice care for themselves, family members and friends at some point in the future and who will be in a position to refer patients to VITAS upon their discharge from inpatient care.”
Attorneys for Hope also argued that if the state approved a CON for VITAS, it would adversely affect its ability to continue to provide care because Hope would have to compete with VITAS — which had 43,000 patients in 2020 and provided 3.93 million days of patient care — for staff and for hospice patients.
According to the court records, Hope ended the 2020 fiscal year with $3.5 million in revenue with its bottom line “significantly” improved by federal CARES funding.
Cohen’s ruling acknowledges VITAS’ entrance into the hospice market would have an adverse impact on Hopes’ cost of doing business, its ability to attract staff, and on the number of patients it serves.
But Cohen opined that with the population growth in the area, especially Lee County, “the ability to make up any number of patients who chose VITAS over Hope is well within Hope’s reach and professional ability for marketing and outreach.”
Meanwhile, Cohen dismissed Hope’s second challenge to the project. Attorneys for Hope argued unsuccessfully that the state’s position that a single provider in a hospice service area constitutes a regional monopoly. In his final order, Cohen noted that the “claim by Hope that AHCA employed an unadopted rule in this case to approve VITAS’s application ‘is not borne out by the facts and evidence presented at hearing.”
