12-001140 Agency For Health Care Administration vs. A Medical Office For Women, Inc., D/B/A Medical Office For Women
 Status: Closed
Recommended Order on Tuesday, July 10, 2012.


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Summary: Recommend $500 fine for failure of abortion clinic to maintain a defibrillator. Other count is dismissed as proof of expired medications and IV fluids is not proof, in itself, that facility failed to maintain adequate emergency medications and IV fluids.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8AGENCY FOR HEALTH CARE )

13ADMINISTRATION , )

15)

16Petitioner , )

18)

19vs. ) Case No. 12 - 1140

26)

27A MEDICAL OFFICE FOR WOMEN, )

33INC., d/b/a MEDICAL OFFICE FOR )

39WOMEN , )

41)

42Respondent . )

45_ )

47RECOMMENDED ORDER

49On June 8, 2012, Robert E. Meale, Administrative Law Judge,

59conducted the final hearing by video teleconference in

67Tallahassee and Miami, Florid a.

72APPEARANCES

73For Petitioner: Nelson E. Rodney, Esquire

79Senior Attorney

81Agen cy for Health Care Administration

87Suite 300

898333 Northwest 53rd Street

93Doral, Florida 33166

96For Respondent: Vl ad Van Rosenthal, M.D.

103Qualified Representative

105Medical Office for Women

109Suite 402

111909 Northeast 163rd Street

115Miami, Florida 33160

118STATEMENT OF THE ISSUE S

123The issues are whether Respondent failed to maintain

131emergency medications, in violation of Florida Administrative

138Code Rule 59A - 9.0225(1), and failed to ensure that a

149defibrillator was available for immediate use, in violation of

158Florida Administrative Code Rule 59A - 9.0225(2). If so, another

168issue is the penalty that should be imposed.

176PRELIMINARY STAT EMENT

179By Administrative Complaint dated February 7, 2012,

186Petitioner alleged that Respondent operates a licensed abortion

194clinic in North Miami Beach. The Administrative Complaint

202contains two counts.

205Count I alleges that, during a relicensure survey conducted

214on June 8, 2010, Petitioner ' s surveyor determined that

224Respondent " failed to maintain sterile suturing equipment and

232supplies, and their crash cart, which includes emergency

240medications. " During a followup survey conducted on April 21,

2492011, Pet itioner ' s surveyor determined that medications on the

260crash cart wer e out - of - date: one 500 - ml bag o f Lactated

277Ringer ' s Intravenous Solution bore an expiration date of April

2882009, a one - mg vial of Atropine bore an expiration date of

301November 2010, and one 2% Lid ocaine Hydrochloride injection bore

311an expiration date of November 2010. For this uncorrected

320deficiency, which allegedly violates Florida Administrative Code

327Rule 59A - 9.0225(1), the Administrative Complaint seeks an

336administrative fine of $500.

340Count II alleges that, during a relicensure survey on

349June 8, 2010, Petitioner ' s surveyor determined that Respondent

359failed to ensure that emergency equipment was provided for

368immediate use. In particular, the surveyor found that

376Respondent ' s facility la cked a defibrillator. During a followup

387survey conducted by the surveyor on April 21, 2011, the surveyor

398determined that Respondent ' s facility still did not have a

409defibrillator. For this uncorrected deficiency, which allegedly

416violates Florida Administr ative Code Rule 59A - 9.0225(2), the

426Administrative Complaint seeks an administrative fine of $500.

434At the hearing, the Administrative Law Judge determined

442that Dr. Rosenthal was a Qualified Representative of Respondent.

451Petitioner called four witne sses and offered into evidence the

461following pages from its exhibit binder: 1 - 12, 18, 21, 32, 39 -

47542, and 47 . Respondent calle d one witness and offered into

487evidence no exhibits. All exhibits we re admitted into evidence .

498The court reporter filed the transcript o n June 2 7, 2012.

510Petitioner filed a proposed recommended order on July 9, 2012 .

521FINDING S OF FACT

5251. At all material times, Respondent has operated , under

534the jurisdiction of Petitioner, a licensed abortion clinic

542facil ity, bearing license number 899 . The facility in question

553is located in North Miami Beach. At the time of the surveys

565described below , Respondent also operated another facility in

573south Miami , but that facility is not involved in this case.

584All references to " facility " will therefore re fer to the North

595Miami Beach location.

5982. On June 8, 2010, one of Petitioner ' s surveyor s

610conducted a relicensure survey of Respondent ' s facility. As is

621typical of such surveys, this survey was unannounced.

6293. During the survey, the surveyor discovered three

637expired medications in the facility: 0.2 mg Isuprel ® -- expired

648August 2009, 0.4 mg atropine -- expired February 2010, and an

659unspecified dosage of nalbuphone -- expired February 2010. These

668expired medications were on a shelf in the operating room.

678During the survey, the surveyor also discovered that the

687facility did not have a defibrillator.

6934. At the conclusion of the survey, the surveyor conducted

703an exit conference with the sole employee present at the

713facility. During this conference, the surv eyor explained these

722deficiencies and gave Respondent until July 8, 2010, to correct

732them. Subsequently, the surveyor prepared a re port showing

741these violations and confirming that the deadline for correcting

750both deficiencies was July 8, 2010.

7565. On Apr il 21, 2011, the surveyor returned , again

766unannounced, to the facility to conduct a followup survey and

776again found only one employee present at the facility . During

787this survey, the surveyor discovered three expired medications

795in the facility: one 500 - ml IV bag of Lactated Ringer ' s --

810expired April 2009, 1 mg atropine -- expired November 2010, and 2%

822lidocaine hydrochloride injection -- expired November 2010. The

830surveyor found these expired medications in a locked storage box

840on the crash cart, which is the cart used for medical

851emergencies. During the followup survey, the surveyor also

859discovered that the facility did not have a defibrillator.

8686. On the dates of both surveys, the facility did not have

880any surgical procedures scheduled. Also, no patient s were

889present at anytime during either survey.

8957. During each survey, the surveyor selected five dates at

905random to determine if the facility had performed any second -

916trimester abortions, and she found that no such procedures had

926been performed on any of the se dates. For this reason, the

938surveyor did not cite the facility for any violations that are

949contingent on the actual performance of second - trimester

958abortions -- such as, the failure to have a registered nurse in

970the recovery room. Similarly, becau se no patient was present

980during the survey s , the surveyor testified that she did not cite

992the facility for a failure to maintain anaesthesia equipment in

1002the operating room; the surveyor explained that the

1010anaesthesiologist brings his or her own equipment when attending

1019a surgical procedure .

10238. The surveyor explained that she cited Respondent for

1032the deficiencies alleged in this case because they are

1041contingent upon licensure only, not licensure and the actual

1050performance of second - trimester abortions. A t the time of each

1062survey , regardless of the level of patient activity, the

1071facility was open and capable of supporting the procedures for

1081which it is licensed.

10859 . Dr. Rosenthal offered an explanation for each of the

1096deficiencies cited in this case. As h e testified , t he expired

1108medications found during the followup survey were in a locked

1118storage box maintained by a certified registered nurse

1126anesthetist, who had not worked at the facility for several

1136years , but had never returned to retrieve her storage box .

1147However, Dr. Rosenthal ' s explanation does not account f or why

1159the surveyor missed the Lactated Ringer ' s IV fluid during the

1171original relicensure survey, if, in fact, she did miss this

1181item . (The other two items were not expired at the time of the

1195ea rlier survey.)

119810. Notwithstanding any shortcoming in Dr. Rosenthal ' s

1207explanation, more importantly, the record fails to establish the

1216absence of current emergency medications and IV fluids at the

1226facility . As noted below, the cited rule requires that the

1237facility contains these items; as long as it does, the cited

1248rule is not violated by the presence of expired medications and

1259fluids at the facility . The p resence of such expired items is

1272insufficient, especially when the standard of proof, as noted

1281below, is clear and convincing evidence, to support an inference

1291that adequate, current medications and IV fluids were not also

1301available at the facility.

130511 . A s Dr. Rosenthal testified, a t the time of both

1318surveys, Respondent maintained a single defibrillator, which he

1326transferred from one facility to another, depending on which

1335facility was to be the site of surgical procedures on a given

1347day. This explanation is not responsive to the requirement of a

1358defibrillator at each facility.

1362CONCLUSIONS OF LAW

136512 . The Division of Administrative Hearings has

1373jurisdiction. § § 120.569 and 120.57, Fla. Stat.

138113 . Florida Administrative Code Rule 59A - 9.0225(1) and (2)

1392provides:

1393(1) Each abortion clinic providing second

1399trimester abortions shall provide esse ntial

1405clinic supplies and equipment as required in

1412subsections (1) through (7) when performing

1418second trimester abortions. Any such

1423abortion clinic which is in operation at the

1431time of adoption of this rule and providing

1439second trimester abortions shall b e given

1446one year within which to meet these

1453standards as follows:

1456(a) A surgical or gynecological

1461examination table(s);

1463(b) A bed or recliner(s) suitable for

1470recovery;

1471(c) Oxygen with flow meters and masks or

1479equivalent;

1480(d) Mechanical suction;

1483(e) Resuscitation equipment to include,

1488at a minimum, resuscitation bags and oral

1495airways;

1496(f) Emergency medications, intravenous

1500fluids, and related supplies and equipment;

1506(g) Sterile suturing equipment and

1511supplies;

1512(h) Adjustab le examination light;

1517(i) Containers for soiled linen and

1523waste materials with covers; and

1528(j) Appropriate equipment for the

1533administering of general anesthesia, if

1538applicable.

1539(2) Emergency equipment shall be provided

1545for immediate use, maintain ed in functional

1552condition, and capable of providing at least

1559the following services:

1562(a) Inhalation therapy;

1565(b) Defibrillation;

1567(c) Cardiac monitoring;

1570(d) Suctioning; and

1573(e) Maintenance of patient airway.

157814 . The burden of proof is on Petitioner to prove the

1590material allegations by clear and convincing evidence. Dep ' t of

1601Banking & Fin . v. Osborne Stern & Co. , Inc. , 670 So. 2d 932

1615(Fla. 1996) .

161815 . As explained above, Petitioner has failed to prove

1628that the facility lacked adequate emergency medications and IV

1637fluids at the time of either survey. However, Petitioner has

1647provided that the facility lacked the required defibrillator at

1656the time of bo th surveys.

166216. Section 390.018, Florida Statutes, authorizes an

1669administrative fine of up to $1000 for any violation of, among

1680other things, the rules governing an abortion clinic.

1688Petitioner has proved one of the two counts that it asserted in

1700the Admi nistrative Complaint, which seeks a fine of $500 for

1711each count. Thus, a fine of $500 is reasonable for the offense

1723of failing to maintain a defibrillator at the facility.

1732RECOMMENDATION

1733I t is RECOMMENDED that the Agency for Health Care

1743Administration ent er a final order finding Respondent guilty of

1753failing to maintain a defibrillator and imposing an

1761administrative fine of $500 for this violation and dismissing

1770the charge pertaining to expired medications and IV fluids.

1779DONE AND ENTERED this 10 th day of July, 2012 , in

1790Tallahassee, Leon County, Florida.

1794S

1795ROBERT E. MEALE

1798Administrative Law Judge

1801Division of Administrative Hearings

1805The DeSoto Building

18081230 Apalachee Parkway

1811Tallahassee, Florida 32399 - 3060

1816(850) 488 - 9675

1820Fax Filing (850) 921 - 6847

1826www.doah.state.fl.us

1827Filed with the Clerk of the

1833Division of Administrative Hearings

1837this 10 th day of July, 2012 .

1845COPIES FURNISHED :

1848Vlad Van Rosenthal

1851A Medical Office for Women

1856Suite 402

1858909 Northeast 163rd Street

1862Miami, Florida 33160

1865Nelson E. Rodney, Esquire

1869Agency for Health Care Administration

1874Suite 300

18768333 Northwest 53rd Street

1880Miami, Florida 33166

1883nelson.rodney@ahca.myflorida.com

1884Richard J. Shoop, Agency Clerk

1889Agency for Health Care Administration

18942727 Mahan Drive, Mail Stop 3

1900Tallahassee, Florida 32308

1903Stuart Williams, General Counsel

1907Agency for Health Care Administration

19122727 Mahan Drive, Mail Stop 3

1918Tallahassee, Florida 32308

1921Elizabeth Dudek, Secretary

1924Agency for Health Care Administration

19292727 Mahan Drive, Mail Stop 1

1935Ta llahassee, Florida 32308

1939NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

1945All parties have the right to submit written exceptions within

195515 days from the date of this Recommended Order. Any exceptions

1966to this Recommended Order should be filed with the agency that

1977will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 08/13/2012
Proceedings: Agency Final Order filed.
PDF:
Date: 08/09/2012
Proceedings: Agency Final Order
PDF:
Date: 07/17/2012
Proceedings: Transmittal letter from Claudia Llado forwarding Petitioner's Exhibits numbered 13-17, 19-20, 22-31, 33-38, 43-46, and 48, and Respondent's Exhibits numbered 1-10, which were not admitted into evidence to the agency.
PDF:
Date: 07/10/2012
Proceedings: Recommended Order
PDF:
Date: 07/10/2012
Proceedings: Recommended Order (hearing held June 8, 2012). CASE CLOSED.
PDF:
Date: 07/10/2012
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 07/09/2012
Proceedings: Petitioner's Proposed Recommended Order filed.
Date: 06/27/2012
Proceedings: Transcript of Proceedings (not available for viewing) filed.
Date: 06/08/2012
Proceedings: CASE STATUS: Hearing Held.
Date: 06/05/2012
Proceedings: Respondent's List of Exhibits (exhibits not available for viewing)
PDF:
Date: 06/05/2012
Proceedings: Respondent's List of Witnesses filed.
Date: 06/01/2012
Proceedings: Respondent's List of Exhibits (exhibits not available for viewing)
PDF:
Date: 06/01/2012
Proceedings: Respondent's List of Witnesses filed.
PDF:
Date: 06/01/2012
Proceedings: Petitioner's Witness List filed.
Date: 05/31/2012
Proceedings: Petitioner's Proposed Exhibits (exhibits not available for viewing)
PDF:
Date: 05/31/2012
Proceedings: Notification of Recordation at Final Hearing filed.
PDF:
Date: 05/31/2012
Proceedings: Notification of Recordation at Final Hearing (unsigned) filed.
PDF:
Date: 05/31/2012
Proceedings: Notice of Filing filed.
PDF:
Date: 05/10/2012
Proceedings: Notice of Unavailability filed.
PDF:
Date: 04/18/2012
Proceedings: Notice of Filing Admissions, Interrogatories, and Request to Produce filed.
PDF:
Date: 04/09/2012
Proceedings: Notice of Hearing by Video Teleconference (hearing set for June 8, 2012; 9:00 a.m.; Miami and Tallahassee, FL).
PDF:
Date: 04/03/2012
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 03/30/2012
Proceedings: Notice of Substitution of Counsel and Request for Service (filed by Nelson Rodney).
PDF:
Date: 03/29/2012
Proceedings: Initial Order.
PDF:
Date: 03/28/2012
Proceedings: Notice (of Agency referral) filed.
PDF:
Date: 03/28/2012
Proceedings: Request for Hearing filed.
PDF:
Date: 03/28/2012
Proceedings: Administrative Complaint filed.

Case Information

Judge:
ROBERT E. MEALE
Date Filed:
03/28/2012
Date Assignment:
03/29/2012
Last Docket Entry:
08/13/2012
Location:
Miami Beach, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
 

Counsels

Related Florida Statute(s) (3):