vs.
Respondent.
Case No. 15-5655
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.
For Petitioner: Segundo J. Fernandez, Esquire
Timothy P. Atkinson, Esquire Oertel, Fernandez, Bryant &
Atkinson, P.A. Post Office Box 1110
John E. Bradley, Esquire
525 Mirror Lake Drive North St. Petersburg, Florida 33701
For Respondent: Robert A. Weiss, Esquire
Karen A. Putnal, Esquire Moyle Law Firm, P.A.
At issue in this proceeding is whether Respondent, Gainesville Woman Care, LLC, d/b/a Bread & Roses Well Woman Care (“Bread & Roses”), 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.
In a single-count Administrative Complaint dated September 3, 2015, Petitioner, Agency for Health Care
Administration (“AHCA”), 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 Formal Administrative Proceeding contesting the allegations of the Administrative Complaint. On October 9, 2015, AHCA referred the matter to the Division of Administrative Hearings (“DOAH”) 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.
Kristin Davy, the owner and director of Bread & Roses. AHCA’s 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. Bread & Roses’ Exhibits 1
through 3, 9, and 10 were admitted into evidence. Bread & Roses’ Exhibit 10 is the deposition transcript of Kriste J. Mennella, the AHCA field office manager 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 Proposed Recommended Orders.
Unless otherwise stated, all statutory references are to the 2015 edition of the Florida Statutes.
Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following Findings of Fact are made:
AHCA is the state agency 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.
Bread & Roses is a women’s health care clinic licensed to provide first-trimester abortions pursuant to chapter 390, Florida Statutes, and Florida Administrative Code Chapter 59A-9.
Kimberly Smoak is AHCA’s field office supervisor. She is based in Tallahassee and supervises the operations of AHCA’s field offices throughout the state. Kriste Mennella is an AHCA field office manager based in Alachua, who reports directly to Ms. Smoak.
On or about August 5, 2015, Ms. Smoak directed
Ms. Mennella’s office to conduct an unannounced “monitoring” survey of Bread & Roses and to send Ms. Smoak her survey report before the end of the day. Ms. Mennella personally conducted the survey.
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.
Section 390.0112(1) provides the following reporting requirement:
The director of any medical facility 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 alive 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).
Chapter 390 does not define the terms “gestation” or “pregnancy.” Section 390.011(11) defines “third trimester” to mean “the weeks of pregnancy after the 24th week of pregnancy.” From this definition, it is possible to infer that the first trimester includes the first 12 weeks of pregnancy and that the second trimester includes the second 12 weeks of pregnancy.
Consistent with this inferred definition, rule 59A- 9.019(14) provides as follows:
(14) “Trimester” means a 12-week period of pregnancy.
First Trimester. The first 12 weeks of pregnancy (the first 14 completed weeks from the last normal menstrual period).
Second Trimester. That portion of a pregnancy following the 12th week and extending through the 24th week of gestation.
Third Trimester. That portion of pregnancy beginning with the 25th week of gestation. (Emphasis added).
Ms. Mennella found the following in the clinic’s utilization reports for five of the 16 patients in the survey sample:
Patient #5: no last normal menstrual period (“LNMP”) recorded; ultrasound reflected
13 weeks of pregnancy.
Patient #7: no LNMP recorded; ultrasound reflected 13.2 weeks1/ 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.
During the survey, the clinic manager for Bread & Roses, who prepares the clinic’s utilization reports, explained to Ms. Mennella that the “weeks” reflected on Bread & Roses’ utilization reports reflected the length of pregnancy as counted from the first day of the LNMP. Therefore, all five of the patients’ abortions were within the 14-week window afforded by rule 59A-9.019(14)(a). Ms. Mennella documented her conversation with the clinic manager in her formal survey notes and in her August 5, 2015, formal survey report to Ms. Smoak.
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.
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 clinic’s utilization reports and the medical records reviewed by Ms. Mennella during the on-site survey.
Ms. Davy replied that AHCA’s 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.
After her discussion with Ms. Davy, Ms. Mennella submitted her formal survey report to Ms. Smoak. Ms. Mennella’s survey notes and her survey report to Ms. Smoak each documented Ms. Davy’s dispute of AHCA’s conclusion and her explanation of the ultrasound reports.
At 6:15 p.m. on August 5, Ms. Mennella faxed a letter to Ms. Davy with the heading, “Notice of Activity Without Proper Licensure.” 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. Mennella’s survey report nor any other document reflecting the specifics of AHCA’s allegations regarding the clinic’s operation.
Ms. Mennella made a follow-up visit to Bread & Roses on August 19 to determine whether there had been any more procedures performed that appeared to be beyond the scope of the
clinic’s license. Based on her review of the clinic’s files, she determined that there had not.
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. Mennella’s 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 patients’ records.
Ms. Mennella’s 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 testified 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.
Ms. Mennella’s letter of September 1 directed Bread & Roses to submit a written corrective 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 performed:
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, abortions 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 “WEEKS OF GESTATION” is correctly completed using “weeks of gestation” as that phrase is used in rule 59A-9.019, F.A.C., and not erroneously using the last normal menstrual period.
On September 3, 2015, one day prior to expiration of the deadline for submission of Bread & Roses’ 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.
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 follows, 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 performed in excess of 14 weeks from the last normal menstrual period (LNMP), and
Second, that staff are educated to report “WEEKS OF GESTATION”--in the monthly online ITOP reports, filed pursuant to rule 59A- 9.034, F.A.C.--“using ‘weeks of gestation’ as that phrase is used in rule 59A-9.019, F.A.C.,” and not using LNMP.
As to the first requirement, Bread & Roses has always provided abortion care only through and including 13.6 weeks LNMP, or
13 completed weeks and 6 days as measured from LNMP. Our staff records 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 examinations. 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 measurements 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 “LMP” [sic] after each indication of 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: “First Trimester. The first 12 weeks of pregnancy (the first 14 completed weeks from the last normal menstrual period).” 59A-9.019(14)(a),
F.A.C. Based on your letter dated September 1, 2015, all staff will now report “WEEKS OF GESTATION” in the monthly online [Induced Termination of Pregnancy or “ITOP”] reports using “weeks of gestation” 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 “WEEKS OF GESTATION.”
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: “up to 12 weeks,” “13 to 24 weeks,” and “25 and over weeks.” The form, at least in the printed version submitted by AHCA, uses neither the term “pregnancy” nor “gestation.”
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 “LNMP” 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 corrective action plan was implemented on the day it was submitted to AHCA.
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 abortions. She had always understood that “weeks of gestation” 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 forms out incorrectly or had attempted to infer that the clinic was operating beyond the scope of its license.
AHCA’s 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.
AHCA presented no evidence to counter Ms. Davy’s 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 suddenly believed that Bread & Roses’ ITOP reports showed that the clinic was performing second-trimester abortions.
Ms. Davy testified that Bread & Roses does not rely on a patient’s reported LNMP to measure length of pregnancy because such reports are inherently unreliable. Thus, whether or not a patient’s 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 ultrasound machine.
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 Services.
Bread & Roses’ written policies and procedures include the following, under the heading “Sonography”:
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.
Mary E. Raum, M.D., is a gynecologist and has been the 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 issue in this case.
Dr. Raum testified that the “ultimate determinant” as to whether a patient is in the first or second trimester is the ultrasound. She stated that the ultrasound is “definitive” and has become the standard of care for assessing the length of pregnancy.
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. Raum’s assessment of the ultrasound equipment.
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 doesn’t 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, it’s 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 crown-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 first day of the last menstrual period.
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 frankly tells her patients that if the measurement is even one day beyond the 14-week limit, she will not perform the abortion.
AHCA did not call any witness to explain the basis for the Administrative Complaint. The facts alleged are that the medical records 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 “weeks of gestation in excess of 12.” AHCA presented no evidence in support of its allegation concerning the length of gestation.
It might have been reasonable at the time of
Ms. Mennella’s 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 reasonable 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
documentation of her conversations with the office manager and Ms. Davy were excised from the final version of her survey report.
AHCA’s theory of the case appears to be that the lack of a handwritten notation of “LNMP” 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 “conception” or “gestation,” rather than the LNMP. This premise is unfounded, and the failure of the premise destroys the logic of AHCA’s 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 Bread & Roses’ ITOP reports were based on the ultrasound results. The missing LNMP notes are a red herring.
AHCA’s case consisted largely of an argument premised on applying the dictionary definition of the term “gestation” to the medical records of Bread & Roses, which do contain a “Patient Procedure Record” that makes reference to “gestation” in the section regarding the physician’s examination of the evacuated tissue post-abortion. Indeed, if these abortions had been performed after 13 weeks of “gestation,” as that term is defined in some medical dictionaries,2/ then they would have been beyond the first trimester.
However, Ms. Davy testified that, consistent with standard medical practice, the term “gestation” 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 “LNMP” after every indication of length of pregnancy, in order to prevent any future misunderstandings.
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. AHCA’s own rule appears to recognize this difficulty by defining the “first 12 weeks of pregnancy” as equivalent to the “first 14 completed weeks from the last normal menstrual period.”
In light of the overwhelming factual evidence that Bread & Roses did not in fact perform second trimester abortions, the dictionary definition of “gestation” was an insufficient basis for finding a violation. AHCA made no attempt at a factual, as opposed to a logical, demonstration
that these were second-trimester abortions.
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
of the five procedures at issue were first trimester pregnancies and within the scope of Bread & Roses’ license.
AHCA has argued that it should be allowed to show, in the alternative, that Bread & Roses’ clinical records were not accurately documented because they showed more than 12 weeks of “gestation” for each of the five sampled patients, in both the sonograms and the Patient Procedure Record, in violation of rule 59A-9.031, which requires that clinical records must be “complete” and “accurately documented.” 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 the 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 the original Administrative Complaint embraced a recordkeeping allegation.
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 clinical records and ITOP reports of Bread & Roses and then refused to listen to Bread & Roses’ 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 indication from AHCA that there was a problem. The evidence also established that the term “gestation” 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 & Roses 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
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. §§ 120.569 & 120.57(1), Fla. Stat.
AHCA is the state agency responsible for licensure and inspections of abortion clinics pursuant to chapters 390 and 408, Florida Statutes.
This case was initiated by AHCA pursuant to chapter 408, part II, the Health Care Licensing Procedures Act (the “Act”). Section 408.802(3) specifies that abortion clinics are subject to the Act.
Section 408.817 provides: “Administrative proceedings challenging agency licensure enforcement action shall be reviewed
on the basis of the facts and conditions that resulted in the agency action.”
Bread & Roses is licensed to perform first-trimester abortions only. The Administrative Complaint alleges that Bread & Roses provided services in excess of its license for five patients identified in a survey conducted by AHCA on August 5, 2015.
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 Dep’t of
Banking and Fin., Div. of Sec. and Investor Prot. v. Osborne
Stern & Co., 670 So. 2d 932 (Fla. 1996); and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). See also Dep’t of
Child. & Fams. v. Davis Fam. Day Care Home, 160 So. 3d 854, 856 (Fla. 2015)(reaffirming Osborne Stern’s holding that clear and
convincing evidence is required to impose an administrative fine).
In Evans Packing Company v. Department of Agriculture
and Consumer Services, 550 So. 2d 112, 116 n.5 (Fla. 1st DCA 1989), the Court defined clear and convincing evidence as follows:
[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 as 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).
Judge Sharp, in her dissenting opinion in Walker v.
Florida Department of Business and Professional Regulation, 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 proof 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).
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 & Roses’ 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 “first trimester” found in rule 59A-9.019(14)(a).
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 & Roses’ records were inaccurate or incomplete. Rather, the evidence demonstrated that AHCA misread the Bread & Roses’ records with a puzzling persistence, given the clinic’s repeated efforts to explain matters to the agency.
RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing the Administrative Complaint against Gainesville 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.
LAWRENCE P. STEVENSON
Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 2016.
1/ The numbers in the utilization reports indicate weeks and days of pregnancy, i.e., “13.2 weeks” means 13 weeks and 2 days.
2/ Some, but not all. One of the medical dictionaries offered by AHCA was Taber’s Cyclopedic Medical Dictionary, 14th Edition (1981). Taber’s provided the following definition of “gestation”:
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 days (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 of 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 facility that performs second-trimester abortions. AHCA argued that because the clinic’s records indicated that it was performing second-trimester abortions, Bread & Roses must either have been operating beyond the scope of its license or submitting inaccurate records. ACHA’s “either/or” argument is rejected because the facts established a third option: AHCA was simply misreading the clinic’s records.
Thomas M. Hoeler, Esquire
John E. Bradley, Esquire
525 Mirror Lake Drive North St. Petersburg, Florida 33701 (eServed)
Robert A. Weiss, Esquire Moyle Law Firm, P.A.
Segundo J. Fernandez, Esquire
Oertel, Fernandez, Bryant and Atkinson, P.A. Post Office Box 1110
Timothy P. Atkinson, Esquire
Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110
Karen Ann Putnal, Esquire Moyle Law Firm, P.A.
Richard J. Shoop, Agency Clerk
Stuart Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
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.
