final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Agency for Health Care Administration. Justin
M. Senior, Interim Secretary.
Geoffrey D. Smith and Susan C. Smith, of Smith &
Associates, Melbourne, for Appellant.
Cooper George, Chief Apepllate Counsel for Agency for Health
Care Administration, Tallahassee, for Appellee Agency for
Health Care Administration.
D. Newell, Jr., of Newell, Terry & Douglas, P.A.,
Tallahassee, for Intervenor Tidewell Hospice, Inc.
care in Florida is regulated by industry-specific certificate
of need statutes implemented by the Agency for Health Care
Administration, known as AHCA. To gain entry to the
marketplace, a hospice provider must apply for and obtain a
certificate of need; it cannot simply set up shop and compete
for business. At issue is the application of Compassionate
Care Hospice of the Gulf Coast, Inc. ("CCH"), which
AHCA denied based on its determination that CCH failed to
overcome a presumption that no need existed for a new hospice
program in Hospice Service Area 8D (Sarasota County). CCH
challenges that determination, claiming that AHCA is not
fulfilling its regulatory mission because Service Area 8D is
monopolized by one incumbent provider and denial of CCH's
application perpetuates the existing regional monopoly to the
disadvantage of those whose needs may not be served.
background, AHCA publishes what is called the "fixed
need pool, " which is the agency's assessment of the
need for new facilities in each service area. For Hospice
Service Area 8D in 2014, it determined a fixed need of zero
for new hospice programs, which creates a rebuttable
presumption that no new hospice provider is needed. Fla.
Admin. Code R. 59C-1.0355(3)(b) (2018) ("A Certificate
of Need for the establishment of a new Hospice program . . .
shall not be approved unless the applicant meets the
applicable review criteria . . . and the standards and need
determination set forth in this rule."). CCH-whose
corporate parent provides hospice services in seven Florida
counties including Miami-Dade- did not directly challenge the
fixed need determination (though it could have); instead, it
applied to establish a new hospice program in Service Area
8D, seeking to overcome the presumption based on
"special circumstances, " including the existing
regional monopoly in Sarasota County and the need to promote
competition in the area.
regional monopolies and competition, Florida hospice law
When an application is made for a certificate of need to
establish or to expand a hospice, the need for such hospice
shall be determined on the basis of the need for and
availability of hospice services in the community. The
formula on which the certificate of need is based shall
discourage regional monopolies and promote competition.
§ 408.043(2), Fla. Stat. (2015) (emphasis added). The
Legislature made clear that-to the extent possible in a
government-controlled industry-the economic value of
competition was to be promoted and regional monopolies
discouraged. This pro-competition, anti-monopoly sentiment is
reflected in the administrative rule that governs how an
applicant can obtain a certificate of need despite AHCA's
determination that no need exists:
Applications to establish a new hospice program shall not be
approved in the absence of a numeric need indicated by the
formula in paragraph (4)(a) of this rule, unless other
criteria in this rule and in Sections 408.035 and 408.043(2)
[discouragement of regional monopolies and promotion of
competition], F.S., outweigh the lack of a numeric need.
59C-1.0355(3)(b), Fla. Admin. Code. Thus, even if AHCA has
determined that no need exists, an applicant can still
receive a certificate for a new facility, but must
demonstrate that the discouragement of regional
monopolies/promotion of competition- combined with other
rule-based criteria-"outweigh the lack of a numeric
need." It may also show a "specific terminally ill
population is not being served" and "a county or
counties within the service area of a licensed Hospice
program are not being served." Rule 59C-1.0355(4)(d),
Fla. Admin. Code (2018).
takeaway from the statutory structure of the hospice
certificate of need process, which has been in place for
thirty years, is that AHCA has much play-in-the-joint in
making a determination as to whether to allow a new entrant
into a hospice service district, a point repeatedly confirmed
by the caselaw addressing certificates of need generally,
which says that the "appropriate weight" to be
assigned to each statutory criterion has no fixed value and
"must vary on a case-by-case basis, depending upon the
facts of each case." Collier Med. Ctr., Inc. v.
State, Dep't of Health & Rehab. Servs., 462
So.2d 83, 84 (Fla. 1st DCA 1985); see also N. Ridge Gen.
Hosp., Inc. v. NME Hosps., Inc., 478 So.2d 1138, 1139
(Fla. 1st DCA 1985) ("[T]he legislative purpose behind
the certificate of need law is to provide for a balanced
consideration of all relevant criteria."). In other
words, statutory criteria have a free-floating value that may
vary if sufficiently linked to the facts of a case. One
hospice criterion (say, for example, discouragement of
regional monopolies) may be assigned a lesser value if
another criterion (say, whether a specific terminally-ill
population is being unserved) is assigned great ...