07-003359 Today`s Women Medical Center Of Broward vs. Agency For Health Care Administration Status: Closed Recommended Order on Friday, May 30, 2008.

Summary: Petitioner twice refused to allow AHCA surveyor to review patient medical records during inspection in conjunction with application for re-licensure. Application for re-licensure to operate as an abortion clinic should be denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TODAY'S WOMEN MEDICAL CENTER OF )

BROWARD, )

)

Petitioner, )

)

vs. ) Case No. 07-3359

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on February 19, 2008, by video teleconference, with the parties

appearing in Fort Lauderdale, Florida, before Patricia M. Hart,

a duly-designated Administrative Law Judge of the Division of

Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: Vladimir Rosenthal, M.D., pro se

Rosenthal, Inc.

3250 South Dixie Highway

Miami, Florida 33313

For Respondent: Nelson E. Rodney, Esquire

Agency for Health Care Administration

Spokane Building, Suite 103

8350 Northwest 52nd Terrace

Miami, Florida 33166

STATEMENT OF THE ISSUE

Whether the Petitioner's renewal application for licensure

to operate as an abortion clinic should be granted or denied.

PRELIMINARY STATEMENT

In a Notice of Intent to Deny dated June 20, 2007, the

Agency for Health Care Administration ("AHCA") notified Vladimir

Rosenthal, M.D., Administrator, that it intended to deny the

Abortion Clinic Renewal Application # 943 submitted by Today's

Women Medical Center of Broward ("Medical Center of Broward")

for failure to comply with Section 408.806, Florida Statutes

(2006), and with Florida Administrative Code Rule 59A-9.020(6).

AHCA asserted as the factual bases for the intended denial of

the Medical Center of Broward's application for license renewal

that an AHCA surveyor had been denied access to medical records

during an inspection of the Medical Center of Broward conducted

on February 27, 2007, and that, on a subsequent visit on

April 5, 2007, to the Medical Center of Broward to examine the

medical records, the surveyor was denied access to the facility.

The Medical Center of Broward timely requested a hearing to

resolve disputed issues of material fact, and AHCA transmitted

the matter to the Division of Administrative Hearings for

assignment of an administrative law judge. After two

continuances, the final hearing was conducted on February 19,

2008.

At the hearing, the Medical Center of Broward presented the

testimony of Yisel Arce and Arlene Mayo-Davis. Petitioner's

Exhibits 1 through 9 and 11 through 14 were offered and received

into evidence; Petitioner's Exhibit 10 marked for identification

was rejected. AHCA presented the testimony of Deatrice Bartley

and Alexandra Pelin; Respondent's Exhibits 4 through 7 were

offered and received into evidence. The parties also filed a

Joint Prehearing Statement that included several facts on which

the parties agree.

The one-volume transcript of the proceedings was filed with

the Division of Administrative Hearings on March 13, 2008. An

extension of time to file proposed findings of fact and

conclusions of law was granted, and the parties timely filed

their Proposed Recommended Orders, which have been considered in

the preparation of this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the agreed facts contained in the Joint

Prehearing Stipulation, and on the entire record of this

proceeding, the following findings of fact are made:

1. AHCA is the state agency responsible for licensing

abortion clinics. See §§ 390.011(3); 390.012; 390.015;

408.802(3); and 408.806, Fla. Stat. 1

2. The Medical Center of Broward is located at 6971 West

Sunrise Boulevard, Suite 206, Plantation, Florida, and is

licensed to operate as an abortion clinic pursuant to

Chapter 390, Florida Statutes, and Florida Administrative

Code Rule Chapter 59A-9.

3. On February 16, 2007, AHCA conducted a survey at the

Medical Center of Broward in conjunction with the Medical Center

of Broward's application to renew its license to operate as an

abortion clinic.

4. The Medical Center of Broward refused to give the AHCA

surveyor access to patient medical records during the inspection

on February 16, 2007.

5. In a letter dated February 20, 2007, Diane Reiland,

AHCA's field office manager in Delray Beach, Florida, advised

Dr. Rosenthal, the administrator of the Medical Center of

Broward, that no deficiencies had been found during the

re-licensure survey but that "the Agency will contact you

regarding a decision on the medical records concern [sic] that

was discussed during the Re-Licensure survey." 2

6. Counsel for AHCA sent a letter to the Medical Center of

Broward dated February 27, 2007, setting out a procedure for

review of medical records that was agreed to by counsel for the

Medical Center of Broward and counsel for AHCA.

7. The procedure set out in the February 27, 2007, letter

contemplated a return visit to the Medical Center of Broward by

an AHCA surveyor, who would select a sample of approximately

10 clinic patients whose records would be reviewed. The

surveyor was to remain at the Medical Center of Broward while

office personnel redacted from the records all patient

identifying information, and the AHCA surveyor was then to

review the records for compliance with the applicable rules and

statutes.

8. On April 4, 2007, Deatrice Bartley, a health facility

evaluator supervisor employed by AHCA, telephoned the Medical

Center of Broward and confirmed an appointment for an AHCA

surveyor to review medical records on April 5, 2007, at

9:30 a.m. Ms. Bartley asked the person with whom she spoke if

any patients would be present at the time of the record review

and was told that no patients would be present on the morning of

April 5, 2007.

9. Shortly after 8:00 a.m. on April 5, 2007, Ms. Bartley

contacted Alexandra Pelin, a health facility evaluator employed

by AHCA, via the cell phone AHCA provided Ms. Pelin.

Ms. Bartley advised Ms. Pelin of the 9:30 a.m. appointment at

the Medical Center of Broward to review medical records.

Ms. Bartley further advised Ms. Pelin that the Medical Center of

Broward's office opened at 9:00 a.m. 3

10. After speaking with Ms. Bartley, Ms. Pelin left her

home in Palm Beach County, Florida, and drove to the address at

which the Medical Center of Broward's office in Plantation,

Florida, was located. She arrived at the Medical Center of

Broward's office at 9:50 a.m., and went to the second floor of

the building, where the office was located. She tried to enter

the office, but the office door was locked; she knocked on the

door, but there was no answer. She also looked in the window of

the office but did not see anyone inside.

11. Ms. Pelin immediately called Ms. Bartley and told her

that she was unable to enter the Medical Center of Broward's

office. Ms. Bartley gave Ms. Pelin two telephone numbers that

had been given to Ms. Bartley by the person she had spoken with

at the Medical Center on April 4, 2007. It was Ms. Bartley's

understanding that one phone number was for the Medical Center

office located in Broward County, Florida, and that the other

phone number was for a Today's Women Medical Center clinic

located in Miami, Florida.

12. At 9:55 a.m., Ms. Pelin placed a call to 954-792-9171,

which was one of the numbers Ms. Bartley had given her. 4

Ms. Pelin became confused when the call was answered, and she

hung up and redialed the same number. Ms. Pelin's call was

answered by the Medical Center of Broward's answering service.

She was told by the answering service that someone would be at

the office at about 10:30 a.m. The answering service also told

her that they could not give her the telephone numbers of the

physicians working at the Medical Center of Broward, who

received telephone calls at the same number she had dialed.

13. Ms. Pelin then telephoned Ms. Bartley again and gave

Ms. Bartley the information Ms. Pelin had received from the

answering service. Ms. Pelin suggested to Ms. Bartley that she

wait until 10:45 a.m. for someone to arrive at the Medical

Center of Broward's office, and Ms. Bartley agreed.

14. Ms. Pelin waited in her car in the parking lot outside

the Medical Center of Broward's office from 9:57 a.m. until

10:47 a.m. From her location in front of the building that

housed the Medical Center of Broward's office, Ms. Pelin had a

direct view of the office door, which was located on the second

floor of the building. Ms. Pelin did not see anyone enter or

leave the office through that door.

15. Ms. Pelin's telephone records indicate that, at

10:44 a.m., she placed another call to 954-792-9171. She

expected the call to be answered by the answering service, but,

instead, someone in the Medical Center of Broward's office

answered the telephone. Although Ms. Pelin had not seen anyone

enter the Medical Center of Broward's office, the content of the

telephone conversation led Ms. Pelin to conclude that the person

was inside the Medical Center of Broward's office.

16. Ms. Pelin talked with this person, who identified

herself only as "Yersel," for approximately five minutes.

Ms. Pelin asked if she was inside the office, and "Yersel" told

Ms. Pelin that she was. "Yersel" told Ms. Pelin that Ms. Pelin

could not come into the Medical Center of Broward's office

because she was with a patient and that patients would be coming

into the office that day. "Yersel" told Ms. Pelin that AHCA

inspectors should come to the office before 10:30 a.m. because

patients started arriving at that time. "Yersel" also confirmed

with Ms. Pelin that she arrived at the office late that morning.

17. After talking with "Yersel'", Ms. Pelin telephoned

Ms. Bartley, who told her to contact AHCA's field office

manager. Ms. Pelin did so, and the field office manager advised

Ms. Pelin to leave the premises. Ms. Pelin left the parking lot

of the Medical Center of Broward's office and drove to AHCA's

field office in Delray Beach, Florida, where she arrived at

11:34 a.m. 5

18. Although AHCA surveyors attempt to schedule

appointments when no patients are present at an abortion clinic,

the surveyors will conduct an inspection even if patients are

present under certain circumstances. The surveyors attempt to

conduct inspections in a manner that does not disrupt the

business of the clinic, and they will try to find a place to

work where they do not bother patients. Ms. Pelin could have

reviewed the medical records on April 5, 2007, with the

permission of the Medical Center of Broward but did not do so

because she was told that she could not enter the office.

19. It is AHCA's practice to deny an application to renew

a license to operate an abortion clinic after two unsuccessful

attempts to inspect the clinic's facility and patient medical

records because AHCA has not been able to determine whether the

clinic is in compliance with the statutes and rules governing

such clinics.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2007).

21. Because the Medical Center of Broward has applied for

renewal of its license to operate as an abortion clinic,

it has the burden of proving by a preponderance of the evidence

that it meets all the requirements for receiving approval of its

application. See Department of Banking & Fin. v. Osborne Stern ,

670 So. 2d 932, 934 (Fla. 1996)("[W]hile the burden of producing

evidence may shift between the parties in an application dispute

proceeding, the burden of persuasion remains upon the applicant

to prove [] entitlement to the license."); see also

a preponderance of the evidence, except in penal or licensure

disciplinary proceedings or except as otherwise provided by

statute . . . .").

22. With some exceptions not pertinent in this proceeding,

an "'[a]bortion clinic' or 'clinic' means any facility in which

abortions are performed. § 390.011(2), Fla. Stat. 6 Pursuant to

Section 390.015, Florida Statutes, "an application for a license

to operate an abortion clinic shall be made to the agency

[AHCA]," and, pursuant to Section 390.014(1), Florida Statutes,

[t]he requirements of part II of chapter 408

shall apply to the provision of services

that require licensure pursuant to

ss. 390.011-390.018 and part II of

chapter 408 and to entities licensed by or

applying for such licensure from the Agency

for Health Care Administration pursuant to

ss. 390.011-390.018. A license issued by

the agency is required in order to operate a

clinic in this state.

23. Abortion clinics regulated by Sections 390.011 through

.018, Florida Statutes, are also governed by the licensure

provisions of Chapter 408, Part II, Florida Statutes. See

§ 408.802(3), Fla. Stat. Section 408.806(7)(a), Florida

Statutes, provides in pertinent part that an applicant for an

initial license and an applicant for renewal of a license "must

demonstrate compliance with the requirements in this part,

authorizing statutes, and applicable rules during an inspection

pursuant to s. 408.811, as required by authorizing statutes."

24. Section 408.811, Florida Statutes, provides in

pertinent part:

(1) An authorized officer or employee of

the agency may make or cause to be made any

inspection or investigation deemed necessary

by the agency [AHCA] to determine the state

of compliance with this part, authorizing

statutes, and applicable rules. . . . Any

application for a license issued under this

part, authorizing statutes, or applicable

rules constitutes permission for an

appropriate inspection to verify the

information submitted on or in connection

with the application.

* * *

(3) The agency shall have access to and the

licensee shall provide copies of all

provider records required during an

inspection at no cost to the agency.

25. Pursuant to Section 408.815(1)(c), Florida Statutes, a

license may be denied if there has been "[a] violation of this

part, authorizing statutes, or applicable rules." Florida

Administrative Code Rule 59A-9.020(6) likewise provides that

"[w]here the agency finds that there has been a failure to

comply with the requirements established under this part or in

rules promulgated hereunder, the agency is authorized to deny,

modify, suspend, or revoke a license."

26. Based on the findings of fact herein, the Medical

Center of Broward has failed to prove by a preponderance of the

evidence that its license to operate as an abortion clinic

should be renewed. Rather, the evidence establishes that the

Medical Center of Broward failed to provide AHCA's surveyor with

access to redacted patient medical records, inspection of which

was required by AHCA in order to determine if the Medical Center

of Broward's license to operate as an abortion clinic should be

renewed. By failing to provide such access, the Medical Center

of Broward has violated Section 408.811(3), Florida Statutes,

which violation is a ground for denial of the Medical Center of

Broward's license renewal application. See § 408.815(1)(c),

Fla. Stat., and Fla. Admin. Code Rule 59A-9.020(6). 7

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 denying the application of

Today's Women Medical Center of Broward for renewal of its

license to operate an abortion clinic.

DONE AND ENTERED this 30th day of May, 2008, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA M. HART

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of May, 2008.

ENDNOTES

1 / All references to Florida Statutes herein are to the 2007

edition unless indicated otherwise.

2 / Petitioner's Exhibit 1.

3 / Ms. Pelin is also the surveyor who conducted the re-licensure

survey at the Medical Center of Broward on February 16, 2007,

when she attempted to review the Medical Center of Broward's

medical records.

4 / This is also the telephone number of the Medical Center of

Broward included in its Petition for Formal Hearing.

5 / The Medical Center of Broward offered the testimony of Yisel

Arce to rebut the testimony of Ms. Pelin regarding the events of

the morning of April 5, 2007. At the time pertinent to this

proceeding, Ms. Arce was employed in the Medical Center of

Broward's office on Sunrise Boulevard in Broward County,

Florida. She worked Mondays through Fridays during the Medical

Center of Broward's office hours, which were from 9:00 a.m.

until 4:00 p.m.

On direct examination by Dr. Rosenthal, Ms. Arce testified

that she recalled that an AHCA surveyor visited the Medical

Center of Broward's office in February 2007, but that she could

not recall anything about the surveyor's visit. She further

testified that she recalled Dr. Rosenthal's telling her to

expect another visit from an AHCA inspector and telling her to

allow the inspector to review medical records, but she could not

recall whether anyone from AHCA came to the office to inspect

medical records.

Ms. Arce's timesheet for April 5, 2007, reflects that she

arrived at the Medical Center of Broward's office at 9:30 a.m.

She testified, however, that she could not recall anything that

happened at the Medical Center of Broward on that date, and she

testified specifically that she had no recollection of refusing

to allow an AHCA surveyor access to the premises at any time.

Ms. Arce also testified that she had no recollection of having

ever spoken on the telephone with anyone from AHCA, either to

schedule an appointment for a surveyor's visit or for any other

purpose.

After careful consideration of Ms. Arce's testimony, it is

concluded that her testimony is not persuasive. Ms. Arce's

testimony was vague throughout, and her inability to recall

anything about the events of the morning of April 5, 2007,

especially in light of the subsequent denial of the Medical

Center of Broward's license renewal application, seriously

diminishes her credibility as a witness. Upon weighing the

credibility of Ms. Arce's testimony and of Ms. Pelin's

testimony, Ms. Pelin's testimony regarding the events of the

morning of April 5, 2007, is accepted over that of Ms. Arce, and

Ms. Pelin's testimony forms the basis for the findings of fact

regarding those events.

6 / It is the general rule in Florida that "a change in a

licensure statute that occurs during the pendency of an

application for licensure is operative as to the application, so

that the law as changed, rather than as it existed at the time

the application was filed, determines whether the license should

be granted." Lavernia v. Department of Professional Regulation,

Bd. of Medicine , 616 So. 2d 53, 53-54 (Fla. 1st DCA 1993). See

also Agency for Health Care Admin. v. Mount Sinai Medical Ctr. ,

690 So. 2d 689, 691 (Fla. 1st DCA 1997)("Where there is a change

in law in a licensure matter, the law at the time of the

decision, rather than when the application was filed, determines

whether the license should be granted."). Accordingly, the

licensure statutes and rules currently in effect are applicable

in this proceeding.

7 / Because the denial of the Medical Center of Broward's

application for a license renewal was not based on a substantive

violation of any laws or rules governing the operation of

abortion clinics, the denial should not be an impediment to

Medical Center of Broward's re-application for a license.

COPIES FURNISHED:

Vladimir Rosenthal, M.D.,

Rosenthal, Inc.

3250 South Dixie Highway

Miami, Florida 33313

Nelson E. Rodney, Esquire

Agency for Health Care Administration

Spokane Building, Suite 103

8350 Northwest 52nd Terrace

Miami, Florida 33166

Holly Benson, Secretary

Agency for Health Care Administration

Fort Knox Building, Suite 3116

2727 Mahan Drive

Tallahassee, Florida 32308

Craig H. Smith, General Counsel

Agency for Health Care Administration

Fort Knox Building, Suite 3431

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.