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Court Rejects New Hospice In ‘Certificate Of Need’ Fight

May 29, 2018
Originally published on May 29, 2018 6:53 am

Though describing it as a “close call,” an appeals court Friday upheld a decision by the Florida Agency for Health Care Administration to turn down approval of new hospice provider in Sarasota County. 

A three-judge panel of the 1st District Court of Appeal pointed to discretion the agency has in deciding whether to approve a “certificate of need” for the provider.

The case involved an application by Compassionate Care Hospice of the Gulf Coast, Inc., to establish a hospice program.

The ruling said Sarasota County’s hospice market is now “monopolized” by Tidewell Hospice, Inc.

The Agency for Health Care Administration denied the proposal “based on its determination that CCH (Compassionate Care Hospice) failed to overcome a presumption that no need existed for a new hospice program,” the appeals-court ruling said.

The court, however, said its decision to back the agency decision was a “close call,” in part because of Tidewell’s monopoly and that Compassionate Care Hospice is economically viable and would create competition.

“In the end, however, we cannot overturn the denial of CCH’s request to serve the Sarasota hospice market, simply because the record establishes that a regional monopoly exists and that competition would be fostered by entry,” said the ruling, written by appeals-court Judge Scott Makar and joined by Chief Judge Brad Thomas and Judge Thomas Winokur. “Rather, we are constrained to decide whether AHCA was in its rights to reject the proffered basis for CCH to enter the market, that being whether an unserved population exists and whether new facilities would harm the incumbent where no new market growth was shown. Because the record shows ‘a balanced consideration of all relevant criteria’ and a stated basis for rejection of CCH’s application that is plausible, we affirm on all issues presented.”