STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner,

vs.

A MEDICAL OFFICE FOR WOMEN, INC., d/b/a A MEDICAL OFFICE FOR WOMEN,

Respondent.

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) Case No. 12-1222

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RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on June 8, 2012, by video teleconference at sites in Miami and Tallahassee, Florida, before Administrative Law Judge (ALJ) Claude B. Arrington of the Division of Administrative Hearings

(DOAH).

APPEARANCES

For Petitioner: Nelson E. Rodney, Esquire

Agency for Health Care Administration Suite 300

8333 Northwest 53rd Street Miami, Florida 33166

For Respondent: Vlad Van Rosenthal, M.D.

Qualified Representative

A Medical Office for Women 3250 South Dixie Highway Miami, Florida 33133

STATEMENT OF THE ISSUE

Whether Respondent, an abortion clinic, failed to maintain emergency medications and related supplies in violation of Florida Administrative Code Rule 59A-9.0225(1) and the penalty, if any, that should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint filed February 7, 2012, the Agency for Health Care Administration (Petitioner) charged A Medical Office for Women, Incorporated, d/b/a A Medical Office for Women (Respondent), with failing to maintain emergency medications in violation of Florida Administrative Code Rule 59A-9.0225(1). That charge was based on factual allegations relating to certain expired medications found at the facility and the condition of certain surgical tools (curettes).1/

Respondent thereafter timely requested a formal administrative hearing before DOAH. The matter was referred to DOAH, and this proceeding followed.

At the final hearing, Petitioner presented the testimony of Kim Ody, Ariesa Render, and Faith Randolph. Ms. Ody and

Ms. Render are employed by Petitioner as Health Facility Evaluators. Ms. Randolph is employed by Petitioner as a Registered Nurse Consultant. Petitioner offered two exhibits, both of which were admitted into evidence without objection.

Respondent presented the testimony of Myrlande Herne and Vlad

Van Rosenthal, M.D. Ms. Herne is the office manager of the subject facility, and she is also a medical assistant and surgical technician. Dr. Rosenthal is the owner and medical director of the subject facility. Respondent offered one exhibit, which it subsequently withdrew.

A Transcript of the hearing was filed June 27, 2012.

Petitioner filed a timely Proposed Recommended Order (PRO), which has been duly considered by the undersigned in the preparation of this Recommended Order. Respondent did not file

a PRO.

FINDINGS OF FACT

1. At all times relevant to this proceeding, Respondent has been licensed as an abortion clinic authorized to perform first and second trimester abortions. The facility at issue in this proceeding is located in North Miami Beach, Florida.

2. Ms. Ody conducted an unannounced inspection of the subject facility on April 21, 2011. Ms. Herne was the only other person at the facility during the inspection. Ms. Ody determined that medications inside an orange box located in the subject facility that served as a crash cart included emergency medications that were out-of-date. Those medications were one 500-ml bag of Lactated Ringer's Intravenous Solution (expired April 2009), a one-mg vial of Atropine (expired November 2010),

   
   

   and one 2 percent Llidocaine Hydrochloride injection (expired November 2010).

3. The crash cart belonged to a certified registered nurse anesthetist, who had worked at the facility at one time. That person had not worked at the facility for several years, and had not returned to claim her property. Dr. Rosenthal's efforts to contact that person were unsuccessful. Dr. Rosenthal and

   Ms. Herne testified, credibly, that they considered the contents of the crash cart to be that of the former employee and they had never used or attempted to use the contents of the crash cart.

4. On April 21, 2011, the facility had no surgical procedures planned, and no patients were present.

5. On September 12, 2011, Ms. Ody and Ms. Render inspected the subject facility. Ms. Herne was the only other person present during the inspection. During the course of their inspection, they found three bottles of antiseptic located inside of a cabinet in the facility's operating room. Each bottle contained the name Humco Strong Iodine. Two of the bottles of iodine expired in August 1995 and the third bottle expired in May 2005.

6. The three bottles of iodine were not used for surgical procedures. The testimony of Ms. Herne and Dr. Rosenthal established that the iodine was used solely to reduce the odor of infectious waste, which was put in a small container in the

   
   

   operating room until it could be transferred to a larger container in an adjacent room.

7. On September 12, 2011, the facility had no surgical procedures planned, and no patients were present.

8. Petitioner failed to prove that the subject facility did not have appropriate emergency medications or supplies on either of the inspection dates.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding pursuant to sections 120.569 and 120.57(1).

10. Florida Administrative Code Rule 59A-9.0225(1)(f) provides as follows:

    1. Each abortion clinic providing second trimester abortions shall provide essential clinic supplies and equipment as required in subsections (1) through (7) when performing second trimester abortions. Any such abortion clinic which is in operation at the time of adoption of this rule and providing second trimester abortions shall be given one year within which to meet these standards as follows:

       
       

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       (f) Emergency medications, intravenous fluids, and related supplies and equipment;

       
       

11. The burden of proof is on Petitioner to prove the material allegations of its Administrative Complaint by clear

    
    

    and convincing evidence. Dep't of Banking & Fin. v. Osborne Stern & Co., Inc., 670 So. 2d 932 (Fla. 1996).

12. Petitioner has failed to meet its burden in this proceeding. The existence of the out-of-date medications descrilbed in this Recommended Order does not establish that appropriate emergency medications and supplies were not

available.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing the charges against A Medical Office for Women, Incorporated, d/b/a Medical Office for Women set forth in its Administrative Complaint.

DONE AND ENTERED this 31st day of July, 2012, in Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

Division of Administrative 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 31st day of July, 2012.

ENDNOTE

1/ At the beginning of the formal hearing, Petitioner announced that it would not pursue the allegations as to the curettes.

COPIES FURNISHED:

Richard J. Shoop, Agency Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Stuart Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Elizabeth Dudek, Secretary

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

Nelson E. Rodney, Esquire

Agency for Health Care Administration Suite 300

8333 Northwest 53rd Street Miami, Florida 33166

Vlad Van Rosenthal, M.D. Qualified Representative A Medical Office for Women 3250 South Dixie Highway Miami, Florida 33133

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.

Docket for Case No: 12-001222

Orders for Case No: 12-001222