15-005655 Agency For Health Care Administration vs. Gainesville Woman Care, Llc, D/B/A Bread And Roses Well Woman Care Status: Closed Recommended Order on Thursday, April 28, 2016.

Summary: Agency failed to prove that the clinic provided abortion services beyond the scope of its license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Petitioner,

vs. Case No. 15 - 565 5

GAINESVILLE WOMAN CARE, LLC,

d/b/a BREAD & ROSES WELL WOMAN

CARE,

Respondent.

_______________________________/

RECOMMENDED ORDER

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

on March 1, 2016, before Lawrence P. Stevenson, a duly -

designated Administrative Law Judge of the Division of

Administrative Hearings, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Segundo J. Fernandez, Esquire

Timothy P. Atkinson, Esquire

Oertel, Fernandez, Bryant &

Atkinson, P.A.

Post Office Box 1110

Tallahass ee, Florida 3230 2

John E. Bradley, Esquire

Agency for Health Care Administration

The Sebring Building, Suite 330

525 Mirror Lake Drive North

St. Pete rsburg, Florida 33701

For Respondent: Robert A. Weiss, Esquire

Karen A. Putnal, Esquire

Moyle Law Firm, P.A.

118 North Gadsd en Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Respondent,

Gainesville Woman Care, LLC, d/b/a Bread & Roses Well Woman Care

(ÐBread & RosesÑ), provided services in excess of the scope of

its license by providing abortions to five patients beyond the

first trimester of pregnancy, as alleged in the Administrative

Complaint.

PRELIMINARY STATEMENT

In a single - count Administr ative Complaint dated

September 3, 2015, Petitioner , Agency for Health Care

Admin istration (ÐAHCAÑ) , alleged that Bread & Roses had provided

services in excess of its license for five patients identified

in an unannounced survey conducted by AHCA on August 5, 2015.

On September 23, 2015, Bread & Roses timely filed a Petition for

Forma l Administrative Proceeding contesting the allegations of

the Administrative Complaint. On October 9, 2015, AHCA referred

the matter to the Division of Administrative Hearings (ÐDOAHÑ)

for the assignment of an Administrative Law Judge and the

conduct of a formal evidentiary hearing.

The case was initially scheduled for hearing on January 19

and 20, 2016. One agreed continuance was granted and the case

was rescheduled for March 1 and 2, 2016. The hearing was

convened and completed on March 1, 2016.

At the hearing, AHCA pre sented the testimony of

Kristin Davy, the owner and director of Bread & Roses. AHCAÓs

Exhibits 1 through 4 and 6 through 9 were admitted into

evidence. Bread & Roses presented the testimony of Mary E.

Raum, M.D., the medical director of Bread & Roses and an expert

in the field of gynecology. Br ead & RosesÓ Exhibits 1

through 3, 9, and 10 were admitted into evidence. Bread &

RosesÓ Exhibit 10 is the deposition transcript of Kriste J.

Mennella, the AHCA f ield o ffice m anager who performed the survey

that led to the Administrative Complaint.

The one - volume Transcript of the final hearing was filed at

DOAH on March 9, 2016. On March 21, 2016, both parties timely

filed P roposed R ecommended O rders.

Unless otherwise stated, all statutory refe rences are to

the 2015 edition of the Florida Statutes.

FINDING S OF FACT

Based on the oral and documentary evidence adduced at the

final hearing, and the entire record in this proceeding, the

following F indings of F act are made:

1. AHCA is the state agen cy responsible for the licensing

of abortion clinics and the enforcement of the statutes and

rules governing their operations in Florida, pursuant to

chapter 390 and chapter 408, part II, Florida Statutes.

2. Bread & Roses is a womenÓs health care clini c licensed

to provide first - trimester abortions pursuant to chapter 390,

Florida Statutes , and Florida Administrative Code C hapter 59A - 9 .

3. Kimberly Smoak is AHCAÓs f ield o ffice s upervisor. She

is based in Tallahassee and supervises the operations of A HCAÓs

field offices throughout the state. Kriste Mennella is an AHCA

f ield of fice m anager based in Alachua , who reports directly to

Ms. Smoak.

4. On or about August 5, 2015, Ms. Smoak directed

Ms. MennellaÓs office to conduct an unannounced ÐmonitoringÑ

survey of Bread & Roses and to send Ms. Smoak her survey report

before the end of the day. Ms. Mennella personally conducted

the survey.

5. Ms. Mennella arrived at Bread & Roses at 12:45 p.m. on

August 5, 2015, to conduct the survey. She requested and

reviewed utilization reports and medical records for 16 patients

for whom Bread & Roses had provided abortion services within the

previous year.

6. Section 390.0112(1 ) provides the following reporting

requirement:

(1) The director of any medical facilit y in

which any pregnancy is terminated shall

submit a monthly report to the agency which

contains the number of procedures performed,

the reason for same, the period of gestation

at the time such procedures were performed ,

and the number of infants born al ive during

or immediately after an attempted abortion.

The agency shall be responsible for keeping

such reports in a central place from which

statistical data and analysis can be made.

(Emphasis added) .

7. Chapter 390 does not define the terms Ðgestatio nÑ or

Ðpregnancy.Ñ Section 390.011(11) defines Ðthird trimesterÑ to

mean Ðthe weeks of pregnancy after the 24th week of pregnancy.Ñ

From this definition, it is possible to infer that the first

trimester includes the first 12 weeks of pregnancy and that t he

second trimester includes the second 12 weeks of pregnancy.

8. Consistent with this inferred definition, r ule 59A -

9.019(14) provides as follows:

(14) ÐTrimesterÑ means a 12 - week period of

pregnancy.

(a) First Trimester. The first 12 weeks of

pregna ncy (the first 14 completed weeks from

the last normal menstrual period) .

(b) Second Trimester. That portion of a

pregnancy following the 12th week and

extending through the 24th week of

gestation.

(c) Third Trimester. That portion of

pregnancy begin ning with the 25th week of

gestation. (Emphasis added) .

9. Ms. Mennella found the following in the clinicÓs

utilization reports for five of the 16 patients in the survey

sample:

Patient #5: no last normal menstrual period

(ÐLNMPÑ) recorded; ultrasound r eflected

13 weeks of pregnancy.

Patient #7: no LNMP recorded; ultrasound

reflected 13.2 weeks 1/ of pregnancy.

Patient #8: no LNMP recorded; ultrasound

reflected 13.4 weeks of pregnancy.

Patient #9: no LNMP recorded; ultrasound

reflected 13 weeks of pregnancy.

Patient #15: no LNMP recorded; ultrasound

reflected 13.4 weeks of pregnancy.

10. During the survey, the clinic manager for Bread &

Roses, who prepares the clinicÓs utilization reports, explained

to Ms. Mennella that the ÐweeksÑ reflected on Bread & RosesÓ

utilization reports reflected the length of pregnancy as counted

from the first day of the LNMP. Therefore, all five of the

patientsÓ abortions were within the 14 - week window afforded by

rule 59A - 9.019(14)(a). Ms. Mennella documented her c onversation

with the clinic manager in her formal survey notes and in her

August 5, 2015, formal survey report to Ms. Smoak.

11. At the conclusion of the survey, Ms. Mennella reported

to Ms. Smoak by telephone, though Ms. Mennella testified that

she could not recall the details of the discussion.

12. At 4:50 p.m. on August 5, Ms. Mennella telephoned

Kristin Davy, the owner and director of Bread & Roses.

Ms. Mennella told Ms. Davy that AHCA had determined that Bread &

Roses had acted in violation of its license by performing

second - trimester abortions, based on the clinicÓs utilization

reports and the medical records reviewed by Ms. Mennella during

the on - site survey.

13. Ms. Davy replied that AHCAÓs conclusion was incorrect

because the weeks and days recorded on the ultrasound reports

measured from the first day of the LNMP, meaning that all five

of the questioned procedures had been performed within the first

trimester of pregnancy.

14. After her discussion with Ms. Davy, Ms. Mennella

submitted her formal survey report to Ms. Smoak. Ms. MennellaÓs

survey notes and her survey report to Ms. Smoak each documented

Ms. DavyÓs dispute of AHCAÓs conclusion and her explanation of

the ultrasound reports.

15. At 6:15 p.m. on August 5, Ms. Mennella faxed a l etter

to Ms. Davy with the heading, ÐNotice of Activity Without Proper

Licensure.Ñ The letter stated that AHCA had determined that

Bread & Roses was providing services beyond the scope of its

license. The letter did not attach a copy of Ms. MennellaÓs

su rvey report nor any other document reflecting the specifics of

AHCAÓs allegations regarding the clinicÓs operation.

16. Ms. Mennella made a follow - up visit to Bread & Roses

on August 19 to determine whether there had been any more

procedures performed tha t appeared to be beyond the scope of the

clinicÓs license. Based on her review of the clinicÓs files,

she determined that there had not.

17 . On September 1, 2015, AHCA faxed to Bread & Roses a

letter signed by Ms. Mennella reporting the findings of its

survey and requiring the facility to file a corrective action

plan. The letter was accompanied by a statement of deficiencies

recorded during Ms. MennellaÓs August 5 survey. The statement

of deficiencies stated that Bread & Roses had performed services

beyond the scope of its license as follows:

For sampled patients #5, #7, #8, #9 and #15,

no date was recorded for the last normal

menstrual period (LMP); however, the

ultrasound reflected weeks of gestation in

excess of 12 as documented in the patientsÓ

re cords.

1 8 . Ms. MennellaÓs documentation of her conversations with

the office manager and Ms. Davy were excised from the version of

the survey report faxed to Bread & Roses on September 1, 2015.

Ms. Mennella had no explanation for this deletion, and test ified

that she could not recall whether she told Ms. Smoak about the

explanations offered by the office manager and Ms. Davy as to

the meaning of the ultrasound reports.

1 9 . Ms. MennellaÓs letter of September 1 directed Bread &

Roses to submit a written c orrective action plan to AHCA by the

close of business on September 4, 2015. The letter stated that

the corrective action plan must do the following, at a minimum:

* Demonstrate procedures are in place to

ensure that first trimester abortions are

not per formed:

In excess of 14 weeks (up to but not

including the 105th day) from the last

normal menstrual period (LNMP), and in

excess of the 12th week (up to but not

including the 91st day) of gestation; or

When LNMP is not determined or not

documented, abor tions are not performed

beyond the 12th week (up to but not

including the 91st day) of gestation.

* Educate staff to ensure that when

reporting pursuant to rule 59A - 9.034,

F.A.C., on the online reporting system,

that the field titled ÐWEEKS OF GESTATIONÑ

is correctly completed using Ðweeks of

gestationÑ as that phrase is used in rule

59A - 9.019, F.A.C., and not erroneously

using the last normal menstrual period.

20 . On September 3, 2015, one day prior to expiration of

the deadline for submission of Bread & RosesÓ corrective action

plan, AHCA filed the Administrative Complaint that initiated this

proceeding. The Administrative Complaint seeks to impose an

administrative fine of $2,500 on Bread & Roses, or $500 for each

instance in which AHCA alleges that the clinic performed an

abortion during the second trimester, beyond the scope of its

license.

2 1 . Bread & Roses submitted a responsive letter to AHCA

shortly after 1:00 p.m. on September 4, 2015. The letter,

written and signed by Ms. Davy, stated as fol lows, in relevant

part:

This letter responds to your letter dated

September 1, 2015, which requested a summary

of a corrective action plan demonstrating two

things:

First, that procedures are in place to ensure

that first trimester abortions are not

perfo rmed in excess of 14 weeks from the last

normal menstrual period (LNMP), and

Second, that staff are educated to report

ÐWEEKS OF GESTATIONÑ -- in the monthly online

ITOP reports, filed pursu ant to rule 59A -

9.034, F.A.C. -- Ðusing Òweeks of gestationÓ as

that phrase is used in rule 59A - 9.019,

F.A.C.,Ñ and not using LNMP.

As to the first requirement, Bread & Roses

has always provided abortion care only

through and i ncluding 13.6 weeks LNMP, or

13 completed weeks and 6 days as measured

from LNMP. Our staff reco rds the date that

the woman remembers for her LNMP if and only

if she remembers such a date (and if she had

such a date: some women do not menstruate,

such as when using certain contraceptives).

If the woman did not have or does not

remember the date of her LNMP, we do not

include such a date in her record.

Regardless of whether she remembers such a

date, we do not determine the length of her

pregnancy based on that memory. Rather, in

accordance with the standard of care, we

determine the length of her pregnancy based

on ultrasound examin ations. Please be aware

that -- again, as is absolutely standard

practice throughout Florida and the U.S. -- our

ultrasound machine provides a length of

pregnancy as measured from LNMP. In other

words, based on the measure ments of the

embryo or fetus, the ultrasound machine

produces an estimated length of pregnancy as

measured from LNMP. Our corrective plan of

action is to ensure that henceforth, in all

medical records, all staff include ÐLMPÑ

[sic] after each indication o f length of

pregnancy,

including when staff record the results of an

ultrasound examination.

As to the second requirement, for clarity,

here is the relevant regulation: ÐFirst

Trimester. The first 12 weeks of pregnancy

(the first 14 completed weeks fr om the last

normal menstrual period).Ñ 59A - 9.019(14)(a),

F.A.C. Based on your letter dated

September 1, 2015, all staff will now report

ÐWEEKS OF GESTATIONÑ in the monthly online

[Induced Termination of Pregnancy or ÐITOPÑ]

reports using Ðweeks of gestat ionÑ as

measured not from LNMP, but from two weeks

after LNMP. In other words, we will

henceforth report an abortion at 13.1 weeks

LNMP as an abortion at 11.1 weeks in the

online field for ÐWEEKS OF GESTATION.Ñ

2 2 . The ITOP form referenced in the letter is a monthly

summary report filed by the clinic with AHCA regarding the timing

of the abortion procedures performed at the clinic. Printed

examples of the forms were submitted into evidence by AHCA. The

form sets forth three reporting categories: Ðup t o 12 weeks,Ñ

Ð13 to 24 weeks,Ñ and Ð25 and over weeks.Ñ The form, at least in

the printed version submitted by AHCA, uses neither the term

ÐpregnancyÑ nor Ðgestation.Ñ

2 3 . At the hearing, Ms. Davy testified that she wrote the

corrective action plan to ensure there would be no more

misunderstanding about what Bread & Roses was doing. She was

adamant that Bread & Roses was not performing second - trimester

abortions. She stated that the clinic was not changing its

medical standards, but was clarifying its reports to AHCA. From

that point forward, Bread & Roses would include ÐLNMPÑ after

every notation of length of pregnancy in its medical records, and

its ITOP reports to AHCA would subtract the two - week LNMP

interval. Ms. Davy testified that the correcti ve action plan was

implemented on the day it was submitted to AHCA.

2 4 . Ms. Davy further testified that Bread & Roses had been

submitting its reports to AHCA in the same manner for the

ten years in which it has restricted its license to first -

trimester ab ortions. She had always understood that Ðweeks of

gestationÑ on the ITOP form was meant to be dated from the first

day of the last normal menstrual period, which is standard

industry practice. No other surveyor ever told her that she was

filling the form s out incorrectly or had attempted to infer that

the clinic was operating beyond the scope of its license.

2 5 . AHCAÓs most recent routine survey of Bread & Roses ,

prior to the August 5 survey , had been performed on February 14,

2015. No deficiencies had been found.

2 6 . AHCA presented no evidence to counter Ms. DavyÓs

credible testimony that Bread & Roses had been submitting its

ITOP reports in the same manner for the previous ten years

without incident. AHCA presented no evidence to explain why it

sudde nly believed that Bread & RosesÓ ITOP reports showed that

t he clinic was performing second - trimester abortions.

2 7 . Ms. Davy testified that Bread & Roses does not rely on

a patientÓs reported LNMP to measure length of pregnancy because

such reports are i nherently unreliable. Thus, whether or not a

patientÓs medical record includes a patient - reported LNMP is of

no importance to the length of pregnancy reported on the ITOP.

In all cases, Bread & Roses reports length of pregnancy as

measured by the ultraso und machine.

2 8 . Bread & Roses owns the ultrasound machine used in its

clinic. Ms. Davy testified that she had the machine calibrated

at the time of purchase, about a year and a half ago. The

machine is checked annually by North Florida Biomedical Ser vices.

2 9 . Bread & RosesÓ written policies and procedures include

the following, under the heading ÐSonographyÑ :

A sonogram will be performed on all patients.

Bread and Roses performs abortion procedures

in the first trimester, up to 13 weeks 6 days

from the last menstrual period. A sonogram

will determine how many weeks the patient is

from the last menstrual period. If a patient

is 14 weeks or over she will be referred to

an alternate clinic.

30 . Mary E. Raum, M.D., is a gynecologist and has been t he

medical director at Bread & Roses for 15 years. She has

practiced gynecology since 1983. Dr. Raum performs all of the

ultrasound and abortion procedures done at Bread & Roses. She

performed the ultrasound procedures on each of the five patients

at is sue in this case.

3 1 . Dr. Raum testified that the Ðultimate determinantÑ as

to whether a patient is in the first or second trimester is the

ultrasound. She stated that the ultrasound is ÐdefinitiveÑ and

has become the standard of care for assessing the length of

pregnancy.

3 2 . Dr. Raum testified that the ultrasound equipment she

was using met standards for such equipment. She had no doubt

that the equipment was functioning properly. AHCA offered no

evidence to dispute Dr. RaumÓs assessment of the ultr asound

equipment.

3 3 . Dr. Raum described her manner of performing the

ultrasound procedure as follows:

The patient is laying [sic] flat. I always

hope that I can get an adequate image

abdominally so the patient doesnÓt have to

have a vaginal probe. But there are times

when that is necessary.

The abdomen is spread with the ultrasonic

gel, and then the probe, which is called a

transducer -- that is what actually emits the

sound waves which are higher than the human

ear can hear . . . .

[A]s soon as I see what I feel to be a good

representative picture where I can measure

the pertinent structures, itÓs frozen, and

then I select, on the possible measurements,

the appropriate one.

Early on, the most appropriate ones are

either the gestational sac or the crow n - rump

length, which is measured from the top of the

head to the end of the tailbone, if you will.

There is an algorithm that is programmed into

the ultrasound machines which then translates

those two measurements into the date of the

pregnancy from the f irst day of the last

menstrual period.

3 4 . Dr. Raum testified as to the care she takes in

performing the ultrasound measurement. If she is uncertain, she

will take several measurements until she has the most accurate

possible measurement. Dr. Raum fran kly tells her patients that

if the measurement is even one day beyond the 14 - week limit, she

will not perform the abortion.

3 5 . AHCA did not call any witness to explain the basis for

the Administrative Complaint. The facts alleged are that the

medical re cords for the five patients at issue do not contain an

LNMP date, and that the sonogram in the medical record of each of

the five patients reflects Ðweeks of gestation in excess of 12.Ñ

AHCA presented no evidence in support of its allegation

concerning t he length of gestation.

3 6 . It might have bee n reasonable at the time of

Ms. MennellaÓs survey for the agency to read the ITOP reports and

the patient records and suspect a problem. However, it was not

reasonable for the agency to disregard the reasona ble

explanations provided by the Bread & Roses office manager and by

Ms. Davy. Ms. Mennella herself could not say why AHCA decided to

file an administrative complaint alleging that Bread & Roses

performed five second - trimester abortions, or why her

docume ntation of her conversations with the office manager and

Ms. Davy were excised from the final version of her survey

report.

3 7 . AHCAÓs theory of the case appears to be that the lack

of a handwritten notation of ÐLNMPÑ in the five medical records

at issue requires a conclusion that the days and weeks shown on

the face of the sonogram reflect a length of pregnancy as

measured from the date of ÐconceptionÑ or Ðgestation , Ñ rather

than the LNMP. This premise is unfounded, and the failure of the

premise destroy s the logic of AHCAÓs theory. The ultrasound

measures the same thing , whether or not the medical record

contains a patient - reported LNMP date. The evidence presented at

the hearing showed that the ultrasound dates the pregnancy from

the LNMP, and that Br ead & RosesÓ ITOP reports were based on the

ultrasound results. The missing LNMP notes are a red herring.

3 8 . AHCAÓs case consisted largely of an argument premised

on applying the dictionary definition of the term ÐgestationÑ to

the medical records of Bread & Roses, which do contain a ÐPatient

Procedure RecordÑ that makes reference to ÐgestationÑ in the

section regarding the physicianÓs examination of the evacuated

tissue post - abortion. Indeed, if these abortions had been

performed after 13 weeks of Ðg estation,Ñ as that term is defined

in some medical dictionaries, 2/ then they would have been beyond

the first trimester.

3 9 . However, Ms. Davy testified that, consistent with

standard medical practice, the term ÐgestationÑ on the Patient

Procedure Record means, and has always meant, length of pregnancy

as measured from the first day of the LNMP. Ms. Davy stated that

she has amended the Patient Procedure Record to add ÐLNMPÑ after

every indication of length of pregnancy, in order to prevent any

future misu nderstandings.

40 . Dr. Raum testified that medical practitioners generally

do not attempt to measure the length of pregnancy from the date

of conception because that date is difficult , if not impossible ,

to determine in an accurate and reliable fashion, except perhaps

in cases of in vitro fertilization. AHCAÓs own rule appears to

recognize this difficulty by defining the Ðfirst 12 weeks of

pregnancyÑ as equivalent to the Ðfirst 14 completed weeks from

the last normal menstrual period.Ñ

4 1 . In light o f the overwhelming factual evidence that

Bread & Roses did not in fact perform second trimester

abortions, the dictionary definition of ÐgestationÑ was an

insufficient basis for finding a violation. AHCA made no

attempt at a factual , as opposed to a logic al , demonstration

that these were second - trimester abortions.

4 2 . AHCA presented no testimony or documentary evidence

refuting the credible evidence presented by Bread & Roses that

the sonograms show on their face that the pregnancies for each

1 7

of the five procedures at issue were first trimester pregnancies

and within the scope of Bread & RosesÓ license.

4 3 . AHCA has argued that it should be allowed to show, in

the alternative, that Bread & RosesÓ clinical records were not

accurately documented because th ey showed more than 12 weeks of

ÐgestationÑ for each of the five sampled patients, in both the

sonograms and the Patient Procedure Record, in violation of r ule

59A - 9.031, which requires that clinical records must be

ÐcompleteÑ and Ðaccurately documented.Ñ It is noted that, prior

to the hearing, AHCA made a motion to file an Amended

Administrative Complaint that would have included a second count

alleging a recordkeeping violation. This motion was denied by

Order dated February 26, 2016. At the start of t he final

hearing, AHCA renewed its motion while also arguing that it was

not necessary to amend the Administrative Complaint in order to

raise the recordkeeping issue. The motion was again denied, but

AHCA was given some leeway to pursue its theory that t he

original Administrative Complaint embraced a recordkeeping

allegation.

4 4 . Even if the Administrative Complaint could be said to

include an allegation regarding inaccurate recordkeeping, 3/ AHCA

did not prove anything more than that it misread the clin ical

records and ITOP reports of Bread & Roses and then refused to

listen to Bread & RosesÓ explanation. The evidence established

that Bread & Roses had submitted the ITOP forms to AHCA every

month for ten years in substantially the same form with no

indi cation from AHCA that there was a problem. The evidence

also established that the term ÐgestationÑ in the Patient

Procedure Records was used in its usual medical sense, i.e., the

length of pregnancy as measured from the first day of the LNMP.

Bread & Ros es amended its Patient Procedure Record form and

changed its method of reporting the ITOP not because of any

recordkeeping failure on its part, but in an effort to appease

AHCA and forestall any further misunderstanding.

CONCLUSIONS OF LAW

4 5 . The Divis ion of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569 & 120.57(1), Fla. Stat.

4 6 . AHCA is the state agency responsible for licensure and

inspections of abortion clinics pursuant to chapters 390 and 408,

Florida Statutes.

4 7 . This case was initiated by AHCA pursuant to chapter

408, part II, the Health Care Licensing Procedures Act (the

ÐActÑ). Section 408.802(3) specifies that abortion clinics are

subject to the Act.

4 8 . Section 408.817 pr ovides: Ð Administrative proceedings

challenging agency licensure enforcement action shall be reviewed

on the basis of the facts and conditions that resulted in the

agency action.Ñ

4 9 . Bread & Ros es is licensed to perform first - trimester

abortions only. The Administrati ve Complaint alleges that

Bread & Roses provided services in excess of its license for

five patients identified in a sur vey conducted by AHCA on

August 5, 2015.

50 . As an agency seeking to levy an administrative fine

against a licensee, AHCA has the burden of proof in this case to

show by clear and convincing evidence that the licensee

committed the alleged violations and that the proposed

administrative fine is correct under the law. See DepÓt of

Banking and Fin., Div. of Sec . and Inves tor Prot . v. Osborne

Stern & Co. , 670 So. 2d 932 (Fla. 1996); and Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987). See also DepÓt of

Child. & Fams. v. Davis Fam . Day Care Home , 160 So. 3d 854, 856

(Fla. 2015)(reaffirming Osborne Stern Ós holding that clea r and

convincing evidence is required to impose an administrative

fine).

5 1 . In Evans Packing Co mpany v. Dep artment of Agric ulture

and Consumer Serv ices , 550 So. 2d 112, 116 n.5 (Fla. 1st DCA

1989), the Court defined clear and convincing evidence as

foll ows:

[C]lear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

evidence must be precise and explicit and

the witnesses must be lacking in confusion

a s to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact the firm belief of

conviction, without hesitancy, as to the

truth of the allegations sought to be

established. Slomowitz v. Walker , 429 So.

2d 797, 800 (Fla. 4th DCA 1983).

5 2 . Judge Sharp, in her dissenting opinion in Walker v.

Florida Dep artment of Bus iness and Prof essional Reg ulation ,

705 So. 2d 652, 655 (Fla. 5th DCA 1998)(Sharp, J., dissenting),

reviewed recent pronouncements on clear and convincing evidence:

Clear and convincing evidence requires more

proof than preponderance of evidence, but

less than beyond a reasonable doubt. In re

Inquiry Concerning a Judge re Graziano ,

696 So. 2d 744 (Fla. 1997). It is an

intermediate level of pr oof that entails

both qualitative and quantative [sic]

elements. In re Adoption of Baby E.A.W. ,

658 So. 2d 961, 967 (Fla. 1995), cert.

denied , 516 U.S. 1051, 116 S. Ct. 719, 133

L.Ed.2d 672 (1996). The sum total of

evidence must be sufficient to convince the

trier of fact without any hesitancy. Id.

It must produce in the mind of the trier of

fact a firm belief or conviction as to the

truth of the allegations sought to be

established. Inquiry Concerning Davey ,

645 So. 2d 398, 404 (Fla. 1994).

5 3 . AHCA failed to meet this burden. The single count of

the Administrative Complaint alleged that Bread & Roses performed

second - trimester abortions on five patients, which would be

beyond the scope of Bread & RosesÓ license. The only direct

evidence regarding the timing of the abortions in question

consisted of the sonograms of the five patients and the

explanatory testimony of Ms. Davy and Dr. Raum. The evidence

left no doubt that the abortion procedure for each of these

patients was performed within 14 weeks of the LNMP and was

therefore in compliance with the definition of Ðfirst trimesterÑ

found in rule 59A - 9.019(14)(a).

5 4 . The Administrative Complaint did not squarely allege

that Bread & Roses failed to comply with the recordkeeping

requirements of rule 59A - 9.031. Even if it had, AHCA failed to

demonstrate by clear and convincing evidence that Bread & RosesÓ

records were inaccurate or incomplete. Rather, the evidence

demonstrated that AHCA misread the Bread & RosesÓ records with a

puzzling persistence, given the clinicÓs repeated efforts to

explain matters to the agency.

RECOMMENDATION

Based on the foregoing, it is, therefore,

RECOMMENDED that the Agency for Health Care Administration

enter a final order dismissing the Administrative Complaint

against Ga inesville Woman Care, LLC, d/b/a Bread & Roses Well

Woman Care.

DONE AND ENTERED this 28th day of April , 2016 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administra tive Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of April , 2016 .

ENDNOTE S

1/ The numbers in the utilization reports indicate weeks and

days of pregnancy, i.e., Ð13.2 weeksÑ means 13 weeks and 2 days.

2/ Some, but not all. One of the medical dictionaries offered

by AHCA was TaberÓs Cyclopedic Medical Dictionary , 14th Editi on

(1981). TaberÓs provided the following definition of

ÐgestationÑ :

In mammals, the length of time from

conception to birth. The average gestation

time is a species - specific trait. In humans

the average length is 280 days, with a

normal range of 259 d ays (37 weeks) to 287

days (41 weeks). Infants born prior to the

37th week are classed as premature, and

those born after the 41st week are

postmature.

Dr. Raum noted that the numbers contained in this definition are

consistent with measuring the start o f pregnancy from the LNMP,

not from the moment of conception.

3/ This argument was based on the fact that the Administrative

Complaint contained an allegation that Bread & Roses failed to

make an application or keep clinical records consistent with a

fac ility that performs second - trimester abortions. AHCA argued

that because the clinicÓs records indicated that it was

performing second - trimester abortions, Bread & Roses must either

have been operating beyond the scope of its license or

submitting inaccura te records. ACHAÓs Ð either/or Ñ argument is

rejected because the facts established a third option : AHCA was

simply misreading the clinicÓs records.

COPIES FURNISHED:

Thomas M. Hoeler, Esquire

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

John E. Bradley, Esquire

Agency for Health Care Administration

The Sebring Building, Suite 330

525 Mirror Lake Drive North

St. Petersburg, Florida 33701

(eServed)

Robert A. Weiss, Esquire

Moyle Law Firm, P.A.

118 North Gadsden Street

Tallahassee, Florida 32301

(eServed)

Segundo J. Fernandez, Esquire

Oertel, Fernandez, Bryant and Atkinson, P.A.

Post Office Box 1110

Tallahassee, Florida 32302

(eServed)

Timothy P. Atkinson, Esquire

Oertel, Fernandez, Bryant & Atkinson, P.A.

Post Office Box 1110

Tallahassee, Florida 32302

(eServed)

Karen Ann Putnal, Esquire

Moyle Law Firm, P.A.

118 North Gadsden Street

Tallahassee, Florida 32301

(eServed)

Richard J. Shoop, Agency Clerk

Agency for Health Care Administratio n

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Elizabeth Dudek, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

Stuart Williams , General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

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.