Hospice Maui is asking a 2nd Circuit Court judge to throw out a state permit for Islands Hospice to establish a seven-bed, inpatient hospice facility in a Kahului home.
At issue is the State Health Planning and Development Agency's July 29 decision to grant a certificate of need to Islands Hospice over the objections of Hospice Maui.
According to an announcement of its judicial appeal this week, Hospice Maui said Islands Hospice's application was reviewed only by SHPDA staff, using an abbreviated "administrative review" process.
"Administrative review bypasses the 'standard review' process in which input is gathered and considered by a panel consisting of Maui citizens called the Tri-Isle Subarea Council," the agency said.
Hospice Maui's appeal asks a judge to require SHPDA to re-examine Islands Hospice's application using a standard review process, "so that Maui people can participate in deciding whether it is in the best interest of this community for another hospice program to operate here."
Greg LaGoy, chief executive officer of Hospice Maui, said the granting of a certificate of need to Islands Hospice bypassed a review by a panel with Maui residents as decision makers.
"The CON process is intended to give communities a voice in decisions that will affect them,"
he said. "Hospice care touches people deeply in their most vulnerable moments, and I believe that a proposal that might have unintended impacts on that care deserves to be properly considered by this community in a standard review process, and not just by the staff of SHPDA's Oahu office."
Dr. Michael Duick, Islands Hospice chief executive officer, said Wednesday afternoon that Maui is "one of the most underserved Hawaiian islands in terms of hospice care," and he maintained that Maui's population "will easily support two hospice agencies."
"Having two hospices operating on Maui will allow for patient and family choice with respect to end-of-life care," he said.
Islands Hospice is closing escrow on a home in Kahului to establish what could be the island's first inpatient facility, Duick said.
"We don't have keys to the house yet, but we're almost there," he said. "All plans are moving forward."
He noted that Hospice Maui received a certificate of need for 12 hospice beds under SHPDA's "administrative review" on Oct. 23, 2007, "however, not one inpatient hospice bed has been opened on Maui."
"The Maui medical community and the public at large support an additional hospice agency," he said.
Duick said that Hospice Maui already sought an appeal from a three-member reconsideration committee, and that panel found about a month ago that "there was no grounds for reconsideration," Duick said.
There have been opportunities for public comment on Islands Hospice's proposed plans, and both Hospice Maui and Hospice Hawaii voiced opposition, he said. Hawaii law permits an administrative review process for some certificate of need applications, and "this is one of those circumstances," he said.
In a statement of its case, Hospice Maui cites the July 17 testimony of four health care providers.
Those included Tony Kreig, chief executive officer of Hale Makua Health Services, and Dr. Donna McCleary, who sits on the boards of directors of Hospice Maui, Hale Makua and the Maui Regional System of the Hawaii Health Systems Corp.
In his testimony, Kreig said he didn't believe Maui's population would support two hospice providers and that splitting up hospice services with the addition of Islands Hospice would "compromise the fiscal viability" of both hospice agencies.
Also according to Hospice Maui's appeal, McCleary testified that another hospice entity "would only duplicate services, dilute each hospice's ability to hire qualified staff and potentially increase costs."
Hospice Maui's appeal points out that in its administrative decision approving Islands Hospice's certificate of need SHPDA's approval letter made 19 findings of fact, "18 of which . . . were supplied verbatim by Islands Hospice or its supporters. The agency approval letter made no findings of fact as to any opposing assertions."
On Aug. 9, Hospice Maui sought a reconsideration hearing of SHPDA's decision based upon, among other arguments, "errors, misunderstandings and things taken out of context" in both the certificate of need application and SHPDA's July 29 letter granting the permit to Islands Hospice.
In a hearing Sept. 16, Hospice Maui representatives provided oral and written testimony, according to the appeal. But the reconsideration panel denied the request for reconsideration at the hearing and later in writing Sept. 24.
Hospice Maui's appeal says that Islands Hospice's proposal for a seven-bed inpatient facility is in violation of Hawaii law that limits the number of hospice beds in a residential community to only five. The appeal quotes county Department of Planning Deputy Director Michele Chouteau McLean as saying that Islands Hospice would need to obtain a special use permit from the Maui Planning Commission to operate a facility with more than five beds.
The appeal contends that Islands Hospice's seven-bed facility would be in violation of the legal limit of beds and the granting of the state permit should be reversed.
"Because Islands Hospice does not have a special use permit and because the (state) agency does not have the authority to allow the additional beds, the agency's decision was both clearly erroneous, and arbitrary, capricious or characterized by abuse of discretion in that it relied on an illegal or unestablished premise," the appeal says.
It also maintains that SHPDA erred by not granting Hospice Maui's request for reconsideration and when it relied on findings of fact from 2007 that are no longer accurate.
SHPDA relied on the 6-year-old finding that Maui has a need for 12 inpatient beds, and it adopted Islands Hospice's reasoning that because Hospice Maui had scaled back its proposed 12-bed facility to five beds that there remained a need for seven beds.
"Maui does not currently need 12 inpatient beds," Hospice Maui's appeal says.
The agency said its change from a 12-bed to a five-bed facility was "the result of fundamental changes in health care reimbursement that restricted patient access to inpatient hospice care," the appeal says. "The available reimbursement has been decreased by one-half to one-third of what it was when Hospice Maui's certificate of need was approved in 2007."
Duick said he believes "the public will find it troubling that so much opposition is coming from the one and only hospice provider on the island of Maui.
"The public may also have concerns that Hospice Maui is spending significant resources on legal fees to prevent the opening of an additional hospice unit - funds that could be used for patient care," he said.
Currently, Maui has no inpatient hospice beds. Hospice Maui provides care to terminally ill patients in their homes, at Hale Makua and at Roselani Place.
Hospice Maui has been awaiting a building permit to begin construction on a five-bed inpatient facility on its property off Mahalani Street near Maui Memorial Medical Center. Construction was planned to begin as early as January.
* Brian Perry can be reached at firstname.lastname@example.org.