The Issue The issues are whether Respondent failed to maintain emergency medications, in violation of Florida Administrative Code Rule 59A-9.0225(1), and failed to ensure that a defibrillator was available for immediate use, in violation of Florida Administrative Code Rule 59A-9.0225(2). If so, another issue is the penalty that should be imposed.
Findings Of Fact At all material times, Respondent has operated, under the jurisdiction of Petitioner, a licensed abortion clinic facility, bearing license number 899. The facility in question is located in North Miami Beach. At the time of the surveys described below, Respondent also operated another facility in south Miami, but that facility is not involved in this case. All references to "facility" will therefore refer to the North Miami Beach location. On June 8, 2010, one of Petitioner's surveyors conducted a relicensure survey of Respondent's facility. As is typical of such surveys, this survey was unannounced. During the survey, the surveyor discovered three expired medications in the facility: 0.2 mg Isuprel®--expired August 2009, 0.4 mg atropine--expired February 2010, and an unspecified dosage of nalbuphone--expired February 2010. These expired medications were on a shelf in the operating room. During the survey, the surveyor also discovered that the facility did not have a defibrillator. At the conclusion of the survey, the surveyor conducted an exit conference with the sole employee present at the facility. During this conference, the surveyor explained these deficiencies and gave Respondent until July 8, 2010, to correct them. Subsequently, the surveyor prepared a report showing these violations and confirming that the deadline for correcting both deficiencies was July 8, 2010. On April 21, 2011, the surveyor returned, again unannounced, to the facility to conduct a followup survey and again found only one employee present at the facility. During this survey, the surveyor discovered three expired medications in the facility: one 500-ml IV bag of Lactated Ringer's-- expired April 2009, 1 mg atropine--expired November 2010, and 2% lidocaine hydrochloride injection--expired November 2010. The surveyor found these expired medications in a locked storage box on the crash cart, which is the cart used for medical emergencies. During the followup survey, the surveyor also discovered that the facility did not have a defibrillator. On the dates of both surveys, the facility did not have any surgical procedures scheduled. Also, no patients were present at anytime during either survey. During each survey, the surveyor selected five dates at random to determine if the facility had performed any second- trimester abortions, and she found that no such procedures had been performed on any of these dates. For this reason, the surveyor did not cite the facility for any violations that are contingent on the actual performance of second-trimester abortions--such as, the failure to have a registered nurse in the recovery room. Similarly, because no patient was present during the surveys, the surveyor testified that she did not cite the facility for a failure to maintain anaesthesia equipment in the operating room; the surveyor explained that the anaesthesiologist brings his or her own equipment when attending a surgical procedure. The surveyor explained that she cited Respondent for the deficiencies alleged in this case because they are contingent upon licensure only, not licensure and the actual performance of second-trimester abortions. At the time of each survey, regardless of the level of patient activity, the facility was open and capable of supporting the procedures for which it is licensed. Dr. Rosenthal offered an explanation for each of the deficiencies cited in this case. As he testified, the expired medications found during the followup survey were in a locked storage box maintained by a certified registered nurse anesthetist, who had not worked at the facility for several years, but had never returned to retrieve her storage box. However, Dr. Rosenthal's explanation does not account for why the surveyor missed the Lactated Ringer's IV fluid during the original relicensure survey, if, in fact, she did miss this item. (The other two items were not expired at the time of the earlier survey.) Notwithstanding any shortcoming in Dr. Rosenthal's explanation, more importantly, the record fails to establish the absence of current emergency medications and IV fluids at the facility. As noted below, the cited rule requires that the facility contains these items; as long as it does, the cited rule is not violated by the presence of expired medications and fluids at the facility. The presence of such expired items is insufficient, especially when the standard of proof, as noted below, is clear and convincing evidence, to support an inference that adequate, current medications and IV fluids were not also available at the facility. As Dr. Rosenthal testified, at the time of both surveys, Respondent maintained a single defibrillator, which he transferred from one facility to another, depending on which facility was to be the site of surgical procedures on a given day. This explanation is not responsive to the requirement of a defibrillator at each facility.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order finding Respondent guilty of failing to maintain a defibrillator and imposing an administrative fine of $500 for this violation and dismissing the charge pertaining to expired medications and IV fluids. DONE AND ENTERED this 10th day of July, 2012, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge 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 10th day of July, 2012. COPIES FURNISHED: Vlad Van Rosenthal A Medical Office for Women Suite 402 909 Northeast 163rd Street Miami, Florida 33160 Nelson E. Rodney, Esquire Agency for Health Care Administration Suite 300 8333 Northwest 53rd Street Miami, Florida 33166 nelson.rodney@ahca.myflorida.com Richard J. Shoop, Agency Clerk 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
Findings Of Fact Answers on the Application Amer Alanbari, M.D., applied to the Board of Medicine for licensure as a physician by endorsement on February 19, 1992. The application form he filled out and submitted asks two questions on page 4 under no. 8: "Are you now or have you ever been emotionally/mentally ill?" and "Have you ever received psychotherapy?" To both questions, Dr. Alanbari answered "No." Under "POSTGRADUATE TRAINING," Dr. Alanbari listed "[f]rom 7/1/88 to 6/30/89: No training." The application form also asked, "Have you ever had to discontinue practice for any reason for a period of one month or longer?" To this question, Dr. Alanbari answered "No." Events Prior to the Application Amer Alanbari, M.D., naturalized in Newark, New Jersey, as a citizen of the United States on August 29, 1989, was born in Damascus, Syria in 1958. He received his medical degree in the same city on September 7, 1982, from the University of Damascus. Within a month he began specialty training in pulmonary diseases at the University of Nancy, Centre Hospitalier Regional de Nancy, in Nancy, France. His attendance in the program in France was from October 1, 1982 until July 30, 1984, From August 1984 until November 1986 he resided in Prospect Park, New Jersey, where he has family, a time during which he received no medical training. For the next year and one-half, approximately, from December 1, 1986, until June 30, 1988, Dr. Alanbari enjoyed an Internship in Internal Medicine at The University of Toronto, The Toronto Western Hospital in Toronto, Ontario, Canada. He completed training in Core Internal Medicine on June 30, 1988, and left the program in good standing. Sometime shortly before completing the training in Internal Medicine in Toronto, Dr. Alanbari suffered a crisis brought on by serious family and financial problems following the death of his father. The chief resident at The Toronto Western Hospital arranged for Dr. Alanbari to see a psychiatrist. The psychiatrist's diagnosis of Dr. Alanbari's condition was "depression"; an anti-depressant medication was prescribed. Dr. Alanbari took the medication for three weeks. After the three weeks, not convinced that he was suffering from depression and having received some training in psychiatry, himself, Dr. Alanbari ceased the medication. He has not seen a psychiatrist since. Upon leaving Toronto, Dr. Alanbari returned to Prospect Park, New Jersey. On November 18, 1989, Dr. Alanbari entered the Internal Medicine Program at the Department of Veterans Affairs Medical Center in Wilkes-Barre, Pennsylvania. He entered the program as a first year medical resident even though he had completed a first year residency earlier because, for whatever reason, he was unable to obtain a second year residency. Dr. Alanbari was not given an official letter from the VA facility informing him of the status of his training because it was an unusual time of the year to begin training. He was told by the VA Medical Center that he could remain until June and then his status would be determined. Dr. Alanbari, however, did not remain at the facility until June. He left the Medical Center on April 18, 1989, under the affectation that his ulcer had begun bleeding. Although Dr. Alanbari had an ulcer at the time, it was, in fact, not bleeding. In truth, Dr. Alanbari left the program because of difficulties in an engagement to be married. Dr. Alanbari did not reveal the true nature of the basis of his departure from the Wilkes-Barre VA facility because the issue of difficulties in his personal relationship with his fiancee was sensitive to him at least, in part, because of the Syrian culture in which he was raised. Moreover, he did not want to suffer a suggestion from supervisory medical personnel at the VA facility, as had been made earlier at the Toronto facility, that he see a psychiatrist again. He resisted such a suggestion because he felt he was capable of solving the problem himself. Dr. Alanbari's fiancee, a Syrian woman residing in New York, wanted to return to Syria while Dr. Alanbari was intent on conducting the practice of medicine in the United States. Forced to choose between his fiancee and his career, a decision with at least the potential for affecting the remainder of his life, Dr. Alanbari returned to Prospect Park, New Jersey, in order to make a decision free of the pressures of residency and the practice of medicine. For several months, Dr. Alanbari lived with family in New Jersey. In July of 1989, less than three months after leaving the Wilkes-Barre VA facility, Dr. Alanbari moved to New York and entered a first-year residency for the third time, again in Internal Medicine, but this time at the Methodist Hospital at 506 Sixth Street in Brooklyn, New York. At the time Dr. Alanbari submitted his application in February of 1992, he had completed the first two years of his residency at the Methodist Hospital in Brooklyn and was in the second half of his third year of residency in internal medicine. Events after the application's submission During the processing of Dr. Alanbari's application, the Board received a profile from the American Medical Association revealing the training Petitioner received at the Wilkes-Barre VA hospital. The contradiction between the profile and Dr. Alanbari's application led the Board to inquire further. On May 24, 1992, two months after the filing of the application, Dr. Alanbari appeared in the office of the Board to discuss problems with his application. The visit was followed by letters from Dr. Alanbari to the Board less than one month later. Although copies of the letters were stricken from the record, Dr. Alanbari testified at hearing that he informed the board by letter of the crisis he had suffered following his father's death shortly before leaving Toronto, the single visit to a psychiatrist at the suggestion of the Chief Resident, the psychiatrist's diagnosis of depression and the prescription of the anti-depressant. Dr. Alanbari answered "No," to the question on the application as to whether he had ever been emotionally or mentally ill because he was not convinced that he suffered from depression, was hesitant to reveal matters that were private and was not sure he could obtain a report from the psychiatrist because of his limited treatment. Dr. Alanbari also related to the Board in the same letter that he had started training at the Wilkes-Barre VA facility in December of 1988 but left in April of 1989 because of serious problems in his marital engagement. In November of 1992, Dr. Alanbari appeared before the Board's Credentials Committee. The meeting's minutes relate: After receiving testimony, it was determined that Dr. Alanbari has been less than truthful not only during the application process, but during his medical training and the independent psychiatric evaluation which was arranged through PRN. Dr. Alanbari stated that he was very hesitant to give details about his personal problems because he feels it is a matter of privacy. The minutes go on to reflect that Dr. Goetz of the Physicians Recovery Network recommended that Dr. Alanbari undergo a five-day inpatient evaluation through the Physicians Recovery Network. After a discussion with Dr. Goetz outside the Committee's meeting room, the minutes report, "Dr. Alanbari stated that he is agreeable to undergoing the five-day evaluation through PRN as suggested by Dr. Goetz." Motion was made, seconded and carried unanimously to retain jurisdiction until no later than the March, 1993, meeting to allow Dr. Alanbari to undergo evaluation through PRN and to complete a new, complete and accurate application. The Credentials Committee reconvened on March 19, 1993. Minutes of this second meeting show that, On March 10, 1993, a letter was received from Dr. Alanbari stating that he could not afford the cost of the PRN evaluation. Motion was made, seconded and carried unanimously to recommend denial of application based on his testimony at the November, 1992 Committee meeting, attempting to obtain a license by fraud and misrepresentation, failure to comply with the Board's request that he undergo five-day inpatient evaluation through PRN and failure to submit a new, complete and accurate application. The minutes also show, apparently, that an inde- pendent evaluation, an evaluation other than the five-day inpatient evaluation the board had requested Dr. Alanbari to undergo, had been conducted of Dr. Alanbari. Dr. Goetz of the Physicians Recovery Network opined to the board that "he felt Dr. Alanbari had not been forthright during the independent evaluation . . ." Dr. Goetz did not testify at the hearing. There was, therefore, no foundation laid for the opinion; nor, was it elaborated upon or explained by Dr. Goetz. No evidence was introduced as to who conducted the evaluation, of what it consisted or anything else about it. On November 4, 1993 the Order of the Board denying Dr. Alanbari's application was rendered. There is nothing of record to indicate what, if anything, relevant to this case transpired during the eight month period between the March meeting of the Credentials Committee and the Board's order. In the order's statement of grounds for the denial is the following, "Your mental condition interferes with your ability to practice medicine with skill and safety." Although nothing was produced by the Board at hearing to show what happened between March of 1993 and November of 1993, the minutes of the Credentials Committee contain the grounds found by the committee in support of a recommendation to the Board that the application be denied. Dr. Alanbari's "mental condition" as "interference with his ability to practice medicine" was not among the Credential Committee's grounds supporting the recommendation to the Board formulated in March of 1993. The hearing. Following Dr. Alanbari's explanation at hearing of the reasons for filling out his application as he had, the Board presented no witnesses to support its action in entering the denial order. The remainder of the Board's case was comprised of four exhibits: (1) Dr. Alanbari's application; (2) A letter from Robert A. Bear, M.D., stating that Dr. Alanbari left the program at the University of Toronto "in good standing. He did not break a contract. He was not offered a contract to continue training"; (3) the Credential Committee's minutes from its November 1992 meeting, and; (4) the Credential Committee's minutes from its March 1993 meeting. Aside from the four exhibits, the Board's case for denial rests on the "admission" under oath by Dr. Alanbari that his replies on the application were false, an "admission" made by an unrepresented applicant under withering cross- examination by substitute counsel for the board: Q . . . First of all, I want to establish, is it not true that you stated on your application to the Board of Medicine that you have never had any mental illness or been treated with any psychotherapy? A Yes, it was true, and that's why -- Q Doctor, however, isn't it also true that, in fact, you were seen by a psychiatrist and given medication? A Only once and I gave all the details, that's why I made my trip from New Jersey to meet with higher authorities to explain that special situation. It's my privacey [sic]. Q Doctor, that was after you said no, isn't that correct? A Yes. Q You keep talking about privacy here. Do you believe that you have a right to give a false answer on your application because you believe it to be a private matter. A It was delicate situation, I tried to deal with it with honesty, that's why I made my trip to Florida. I wanted to speak to someone. Q Doctor, was your answer on the application honest? A Yes. Q When you said no on the application, was that an honest answer? A If you asked me if any question on the application was honest, yes. Q No, I asked you if your answer on the application was honest, your answer to the question about psychotherapy and you said no. A The honest question, I don't know. Not yes, not no. Q But you answered no, didn't you, Doctor? A It was a very delicate situation and I presented the events as they happened and I left it to you to appreciate -- Q Doctor, did you submit such an explanation with your application when you said no? A No. Q You didn't, did you? A No. Q Now, did you honestly answer that question as to whether or not you had psychotherapy? A Initially, I said no, but -- Q Is that an honest answer, Doctor? A No, its not. Q Thank you. Do you believe, Doctor, that you have a right to tell a lie about something just because you consider it to be private? A I don't believe in telling lies. Q But you did, Doctor, didn't you? A I initially wrote down this, but again, the issue was very delicate, there was no good answer to this. Not a yes, not a no. Q Doctor, the truthful answer to that question was yes, wasn't it? A No. Q Doctor, did you receive psychotherapy? A No, sir. (Tr. 40-43, emphasis supplied). At hearing, Dr. Alanbari was also asked in light of the fact that he had discontinued the practice of medicine for more than a month on several questions why he had answered "no," to the question on the application, "Have you ever had to discontinue practice for any reason for a period of one month or longer?" (emphasis supplied). From his testimony, it was apparent that Dr. Alanbari believed "no" to be a correct answer because although he had ceased to practice medicine for more than a month on several occasions after graduation, he had never been forced by a licensing authority or anyone else to cease practicing medicine. Whenever he had lapses in practice of more than a month they were always by choice. He, therefore, had never had to discontinue practice, the precise question posed by the application. Dr. Alanbari's testimony on this subject squares with the remainder of his application from which it is obvious that he informed the board from the moment he first applied that he had not practiced for several periods of more than one month's duration subsequent to his graduation from medical school. This included a period from August of 1984 until November of 1986 and the time that he did not practice between July of 1988 and June of 1989 that preceded and followed his practice at the VA Medical Center.
Recommendation It is, accordingly, RECOMMENDED: That Dr. Alanbari be requested to submit additional information to the Board; and, That Dr. Alanbari's application be denied if he does not submit such additional information within 30 days of the request. If the Board does not choose to request additional information to clarify Dr. Alanbari's application then Dr. Alanbari should be certified by the Board to the Department for licensure by endorsement. DONE AND ENTERED this 21st day of September, 1994, in Tallahassee, Florida. DAVID M. MALONEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1994. APPENDIX Petitioner did not submit a proposed recommended order. Respondent's proposed findings of fact Nos. 1, 2, 3, 5, 7, 8 have been adopted, in substance, insofar as material. With respect to Respondent's proposed finding of fact No. 4, it was the Board which framed the issues of the hearing in its denial order. Dr. Alanbari adopted those issues. In all other respects the finding is accepted. With respect to Respondent's proposed finding of fact No. 6, Petitioner's representation was not fraudulent. With respect to Respondent's proposed finding of fact No. 9, the representation was not fraudulent. With respect to Respondent's proposed finding of fact No. 10, the first sentence of the finding is accepted. The remainder of the finding is rejected. Although counsel stated at hearing that correspondence had been sent to Petitioner inquiring about the Wilkes-Barre program, there was no evidence presented of such correspondence. Nor was there evidence that Petitioner's participation in the program was anything other than temporary. His assertion, therefore, was not false. With respect to Respondent's finding of fact No. 11, the finding is accepted. The finding is relevant only to Petitioner's credibility. As explained in the body of the Recommended Order, under Petitioner's legitimate interpretation of the question, his answer was not false. COPIES FURNISHED: Amer Alanbari, M.D. 51 Layton Road Sussex, NJ 07461 Gregory A. Chaires, Esquire Allen R. Grossman, Esquire Assistant Attorneys General PL-01, The Capitol Tallahassee, Florida 32399-1050 Marm Harris, Executive Director Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay Acting General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether Respondent failed to timely file its application for the renewal of its abortion clinic license, as alleged in the Administrative Complaint. If so, may the Agency for Health Care Administration (Agency) fine Respondent for failing to timely file its renewal application. If the Agency is authorized to impose such a fine, should it exercise such authority. If so, what is the amount of the fine it should impose.
Findings Of Fact The Agency issued an administrative complaint on June 3, 1996, stating an intent to impose an administrative fine in the amount of One Thousand ($1,000.00) Dollars against A Doctor's Office for Women North, Inc., d/b/a A Doctor's Office for Women North (hereinafter referred to as "Respondent"), charging violations of Chapter 390, Florida Statutes, and Rule 59A-9, Florida Administrative Code, as grounds for the imposition of the administrative fine and advising the Respondent of its right to request an administrative hearing. Respondent was served a copy of the administrative complaint on June 4, 1996, by U.S. Certified Mail, Return Receipt Requested, but failed to respond or request a hearing within twenty one (21) days of receipt of notice of the action of the Agency as required pursuant to Section 120.57, Florida Statutes, and Rule 10-2.36, Florida Administrative Code. Respondent is licensed to operate at 1100 N.E. 125th Street, North Miami, Florida 33161, as an abortion clinic in compliance with Chapter 390, Florida Statutes, and Chapter 59A-9, Florida Administrative Code. Respondent has operated such that: (a) The Respondent has violated the provisions of Chapter 390, Florida Statutes, in that License Number 685 was issued to the Respondent for the period of 2/28/95 through 2/27/96. Respondent's application for renewal was due to be received by the Agency on 12/29/95, sixty days prior to expiration; however, it was received on 02/26/96, which was (54) days late. This is in violation of Section 390.016(1), Florida Statutes. Notice was provided in writing to the Respondent of the violations set forth above in paragraph 4(a).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency issue a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 9th day of October, 1997, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1997.
Findings Of Fact The Respondent is a licensed registered nurse in the State of Florida holding license number 1091372. The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 464 related to the licensure standards for nursing in the State of Florida and the regulation and enforcement of standards of nursing practice. Pursuant to a previous disciplinary proceeding against this Respondent, a Final Order was entered by the Petitioner whereby the Respondent's nursing license number 1091372, which is the subject of this proceeding, was placed on probationary status for a period of one year from August 19, 1985. As a condition of that probation, the Respondent was required to submit to random blood and/or urine tests. Pursuant to the authority of this Order, Charles E. Wheelahan, an investigator with the Investigation Section of the Department of Professional Regulation, attempted to obtain a urine sample from the Respondent, pursuant to the previously entered Final Order, during the period June 13-27, 1986. Mr. Wheelahan first phoned the Respondent on June 13 to set up an appointment and told the Respondent the reason for the appointment. The Respondent appeared to be somewhat incoherent in her conversation by phone that day and so the investigator set up an appointment for another day. He went to her residence on June 25 and asked that she supply a urine sample. She informed him she was unable to do so at that time. He waited approximately one and one-half hours, during which time she made no attempt to furnish him with the requested sample. The following day he requested by phone that she meet him at "University Hospital" on the following day, which would be June 27, 1986. Later that day she called him and cancelled that appointment. He then offered to meet her at any other time on that day and got no cooperation from the Respondent. Thus, after giving the Respondent three opportunities to comply with the requirements of the Order by which her license was placed on probation, Mr. Wheelahan recommended and the Petitioner ultimately instituted the instant prosecution. Witness Elaine Brantley testified and established that she had transcribed the telephone conversation Mr. Wheelahan had with the Respondent on June 27, 1986. That transcript was admitted as Petitioner's Exhibit C, being a transcript of the witness' shorthand notes regarding the telephone conversation. This exhibit, as well as the testimony of Mr. Wheelahan, and the other uncontroverted evidence, establishes that the Respondent evaded and obstructed Mr. Wheelahan's attempts to obtain a urine sample as required by the Final Order which had imposed probation with that random sampling as a condition. Mr. Wheelahan advised the Respondent that her failure to cooperate in arranging to provide the sample would be reported as a refusal to comply with the terms of the probation and he so reported it. She continued her evasiveness and refusal to cooperate in arranging the provision of a urine sample to the Petitioner with this knowledge.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of counsel, it is, therefore RECOMMENDED that the Florida Board of Nursing enter a Final Order suspending the Respondent's license until such time as she appears before the Board and adequately demonstrates her ability to safely engage in the practice of nursing in the State of Florida. DONE and ORDERED this 2nd day of July 1987, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4770 The Petitioner's Proposed Findings of Fact have all been accepted. The Respondent did not file Proposed Findings of Fact. COPIES FURNISHED: Gary D. Beatty, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Delores Eckard 775 Berkley Drive Pensacola, Florida 32503 Judie Ritter, Executive Director Board of Nursing Room 504 111 East Coastline Drive Jacksonville, Florida 32201 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Conclusions Having reviewed the administrative complaint dated June 12, 2009, and Notice of Intent dated July 9, 2009, attached hereto and incorporated herein (Ex. 1 and 2), and all other matters of record, the Agency for Health Care Administration (“Agency”) has entered into a Settlement Agreement (Ex. 3) with the other party to these proceedings, and being otherwise well- advised in the premises, finds and concludes as follows: 1 Filed November 20, 2009 10:37 AM Division of Administrative Hearings. ORDERED: 1. The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. 2. The administrative fine against the Respondent in AHCA Case No. 2009001632 is withdrawn. 3. The Respondent's abortion clinic license is cancelled. 4. The initial application seeking laboratory licensure in Case No. 2009007700 is withdrawn. 5. The Respondent's request for formal hearing is dismissed. 6. Each party shall bear its own costs and attorney’s fees. 7. The above-styled cases are hereby closed. DONE and ORDERED this _// day of hover Ake , 2009, in Tallahassee, Leon County, Florida. El . Arnold, Secretary Y t Health Care Administration Thomas Agenc A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW OF PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Jan Mills Facilities Intake Unit Agency for Health Care Admin. (Interoffice Mail) Thomas M. Hoeler, Esquire | Office of the General Counsel Agency for Health Care Admin. (Interoffice Mail) Laura MacLafferty, Unit Manager Hospital and Outpatient Services Unit Agency for Health Care Admin. (Interoffice Mail) Andrew T. Lavin, Esquire Navon & Lavin, P.A. Emerald Park Office Center 2699 Stirling Road, Suite B-100 Fort Lauderdale, Florida 33312 (U.S. Mail) Karen Rivera, Unit Manager ‘| Laboratory Unit Agency for Health Care Admin. (Interoffice Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the above-named person(s) and entities by U.S. Mail, or the method designated, on this the /8 day of AGI A , 2009. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 922-5873 Certified Mail Receipt (7003 1010 0000 9715 3702) STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, AHCA No.: 2009001632 vs. COMMUNITY HEALTHCARE CENTER OF PENSACOLA, INC., Respondent. ADMINISTRATIVE COMPLAINT COMES NOW the Agency for Health Care Administration (hereinafter “AHCA”), by and through the undersigned counsel, and files this Administrative Complaint. against Community Healthcare Center of Pensacola, Inc. (hereinafter “Community Healthcare Center of Pensacola, Inc.”), pursuant to Section 120.569, and 120.57, Fla. Stat. (2008), alleges: NATURE OF THE ACTION 1. This is an action to impose one (1) administrative fine against Community Healthcare Center of Pensacola, Inc. in the amount of Four Hundred and Thirteen Thousand Dollars ($413.000), based upon one (1) deficiency, pursuant to Section 483.091, Fla. Stat. (2008). EXHIBIT 1. i \ JURISDICTION AND VENUE 2. This Agency has jurisdiction pursuant to 483, Part I and Section 120.569 and 120.57, Fla. Stat. (2008). 3. Venue lies in Escambia County, Pensacola, Florida, pursuant to Section 120.57 Fla. Stat. (2008); Rule 58A-5, Fla. Admin. Code (2008) and Section 28.106.207, Fla. Stat. (2008). PARTIES 4. AHCA, is the regulatory authority responsible for licensure and enforcement of all applicable statutes and rules governing clinical laboratory facilities pursuant to Chapter 483, -Part 1, Fla. Stat. (2008) and Rule 58A-5, Fla. Admin. Code (2008). 5. Community Healthcare Center of Pensacola, Inc. is a for-profit corporation, ABO Group + RH clinical laboratory facility is located at 6770 North Ninth Avenue, Pensacola, Florida 32504. Community Healthcare Center of Pensacola, Inc. is licensed as clinical laboratory facilities license # 800003116; certificate number #60474, effective November 21, 2005 through November 20, 2007. Community Healthcare Center of Pensacola, Inc. was at all times material hereto, licensed facility under the licensing authority of AHCA, and required to comply with all applicable rules, and statutes. COUNTI COMMUNITY HEALTHCARE CENTER OF PENSACOLA, INC. BASED ON RECORD REVIEW, OBSERVATIONS AND INTERVIEW WITH THE FACILITY ADMINISTRATOR ON JANUARY 7, 2009, AT APPROXIMATELY 9:30 A.M., IT WAS DETERMINED THAT THE LABORATORY LICENSE AND HAD CONTINUED TO PERFORM LABORATORY TESTING. STATE TAG L001-CLINICAL LABORATORY LICENSE Section 483.091, Fla. Stat. (2007) CLINICAL LABORATORY LICENSE 6. AHCA re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 7. On or about January 7, 2009, AHCA conducted a biennial survey at the Respondent’s facility. AHCA cited the Respondent based on the findings below, to wit: 8. On or about January 7, 2009, based on record review, observation, and interview with the facility administrator on January 7, 2009, at approximately 9:30 a.m., it was determined that the laboratory had not renewed the State of Florida clinical laboratory license and had continued to perform laboratory testing. 9. Review of state licensure records prior to the survey showed that the facility's laboratory license, number 800003116, had expired on November 20, 2007 and there was no pending application. 10. Review of Rh testing, hematocrit testing records, and pregnancy testing records showed documentation of test results for patient testing that had been performed between November 20, 2007 and January 6, 2009. ll. Observation of the Florida Clinical Laboratory license on display in a frame in the laboratory showed that the license had expired on November 20, 2007. 12. The administrator stated that the laboratory did not have a new state clinical laboratory license and did not realize they had not renewed the Florida license. The administrator stated that the facility had not received the renewal letter prior to the expiration of the license and had not received the "failed to renew" letter from the Agency for Health Care Administration following expiration of the license. Plan of Correction must be completed by February 21, 2009. 13. The regulatory provision of the Florida Statutes and Agency Rules (2008), that are pertinent to this alleged violation read as follows: 483.091 Clinical laboratory license A clinical laboratory may not send a specimen drawn within this state to any clinical laboratory outside the staté for examination unless the out-of-state laboratory has obtained a license from the agency. A new license may be secured for thé new location before the actual change, if the contemplated change complies with this part, part II of chapter 408, and the applicable rules. ek 483.221 Administrative fines.— In determining the penalty to be imposed, the Agency must consider, inter alia, the severity of the violation, actions taken by the licensee to correct the violation, any previous violations by licensee, and the financial benefit to the licensee of committing or continuing the violation. * ko ® 408.804 License required; display.— (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity.— (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under. this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. 15. Despite being unlicensed, Respondent continued to conduct laboratory testing and continued to reap the financial benefit of conducting said testing. 16. The violation alleged herein constitutes a deficiency, and warrants a fine of $413,000. 17. The Respondent's history of failing to timely renew its license, coupled with Respondent’s performance of unlicensed clinical laboratory testing resulting in financial gain in the face of Agency notification advising of the expiration of the license and the consequences of unlicensed activity, serve as a basis for the instant action and are, inter alia, a consideration of the Petitioner in determining the penalty sought herein. 18. Unlicensed laboratory testing is testing without Agency oversight and may result in substandard laboratory protocols and results which place the health and welfare of Respondent’s patients in danger. 19. The violation alleged herein constitutes a deficiency, and warrants a fine of $413,000. WHEREFORE, AHCA demands the following relief: 1. Enter factual and legal findings as set forth in the allegations of this administrative complaint. 2. Impose a fine in the amount of $413,000. CLAIM FOR RELIEF WHEREFORE, the Petitioner, State of Florida Agency for Health Care Administration requests the following relief: 1. Make factual and legal findings in favor of the Agency on Count I. 2. Impose upon Community Healthcare Center of Pensacola, Inc. an administrative fine in the amount of $413,000 for the violation cited above. 3. Grant such other relief as the court deems is just and proper. Respondent is notified that it has a right to request an administrative hearing pursuant to Section 120.569, Florida Statutes (2008). Specific options for administrative action are set out in the attached Election of Rights (one page) and explained in the attached Explanation of Rights (one page). All requests for hearing shall be made to the Agency for Health Care Administration, and delivered to the Agency for Health Care Administration, Building 3, MSC #3, 2727 Mahan Drive, Tallahassee, Florida 32308; Michael O. Mathis, Senior Attorney. RESPONDENT IS FURTHER NOTIFED THAT THE FAILURE TO REQUEST A HEARING WITHIN 21 DAYS OF RECEIPT OF THIS COMPLAINT WILL REASULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. Florida. Michael O. Mathis Fla. Bar. No. 0325570 Counsel of Petitioner, Agency for Health Care Administration . Bldg. 3, MSC #3 2727 Mahan Drive Tallahassee, Florida 32308 (850) 922-5873 (office) (850) 921-0158 (fax) CERTIFICATE OF SERVICE L HEREBY CERTIFY, that a true and correct copy of the foregoing has been served by certified mail on pat day of ark , 2009 to Warren Do Taylor, Administrator, Community Healthcare Center of Pensacola, Inc., 6770 North Ninth Avenue, Pensacola, Florida 32504. Michael O. Mathis, Esq. STATE OF FLORIDA : AGENCY FOR HEALTH CARE ADMINIS: RATION RE: Case Name: COMMUNITY HEALTHCARE CENTER OF PENSACOLA, INC. CASE NO: 2009001632 ELECTION OF RIGHTS This Election of Rights form is attached to a proposed administrative action by the Agency for Health Care Administration (AHCA). The title may be Notice of Intent to Deny, Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine, Administrative Complaint, or some other notice of intended action by AHCA. An Election of Rights must be returned by mail or by fax within 21 days of the day you receive the attached Notice of Intent to Deny, Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine, Administrative Complaint or any other proposed action by AHCA. If an election of rights with your selected option is not received by AHCA within twenty-one (21) days from the date you received a notice of proposed action by AHCA, you will have given up your right to contest the Agency’s proposed action and a final order will be issued. PLEASE RETURN YOUR ELECTION OF RIGHTS TO: Agency for Health Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308. Phone: 850-922-5873 Fax: 850-921-0158. PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS OPTION ONE (1) I admit to the allegations of facts and law contained in the Notice of Intent to Deny, the Notice of Intent to Levy a Late Fee, the Notice of Intent to Levy a Late Fine, the Administrative Complaint, or other notice of intended action by AHCA and I waive my right to object or to have a hearing. | understand that by giving up my right to a hearing, a final order will be issued that adopts the proposed agency action and imposes the penalty, fine or action. OPTION TWO (2) I admit to the allegations of facts contained in the Notice of Intent to Deny, the Notice of Intent to Levy a Late Fee, the Notice of Intent to Levy a Late . Fine, the Administrative Complaint, or other proposed action by AHCA, but I wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. OPTION THREE (3)___ I do dispute the allegations of fact contained in the Notice of Intent to Deny, the Notice of Intent to Levy a Late Fee, the Notice of Intent to Levy a Late Fine, the Administrative Complaint, or other proposed action by AHCA, and I request a formal hearing (pursuant to Section 120.57(1), Florida Statutes (2006) before an Administrative Law Judge appointed by the Division of Administrative Hearings. PLEASE NOTE: Choo ; OPTION THREE (3), by itself, i ‘OT sufficient to obtain a formal hearing. You musi file a written petition in order to obt. «a formal hearing before the ‘Division of Administrative Hearings under Section 120.57(1), Florida Statutes. It must be received by the Agency Clerk at the address above within 21 days of receipt of this proposed administrative action. The request for formal hearing must conform to the requirements of Rule 28-106.201, Florida Administrative Code, which requires that it contain: 1. The name and address of each agency affected and each agency’s file or identification number, if known; 2. Your name, address, and telephone number, and the name, address, and telephone number of your representative or lawyer, if any; 3. An explanation of how your substantial interests will be affected by the Agency’s proposed action; 4. A statement of when and how you received notice of the Agency’s proposed action; ; 5. A statement of all disputed issues of material fact. If there are none, you must state that there are none; . 6. A concise statement of the ultimate facts alleged, including the specific facts you contend warrant reversal or modification of the Agency’s proposed action; 7. A statement of the specific rules or statutes you claim require reversal or modification of the Agency’s proposed action; and 8. A statement of the relief you are seeking, stating exactly what action you wish the Agency to take with respect to its proposed action. Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees. Facility type: (ALF? nursing home? medical equipment? Other type?) Facility Name: License number: Contact person(or attorney or representative): Name Title Address: ; Street and number City Zip Code Telephone No. ; Fax No. Email Signed: Date: NOTE: If your facility is owned or operated by a business entity (corporation, LLC, etc.) please include a written statement from one of the officers or managers that you are the authorized representative. If you are one of the managers or officers, please state which office you hold. ‘Entity name: Name of office you hold: You, your attorney or representative may reply according Subsection 120.54 Florida Statutes (2006) and Rule 28, Florida Administrative Code or you may use this recommended form. Lee teoF 70d FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RN on T Better Health Care for all Floridians Oana N July 9, 2009 CERTIFIED MAIL / RETURN RECEIPT REQUESTED WARREN TAYLOR MD COMMUNITY HEALTHCARE CTR OF PENSACOLA INC LICENSE NUMBER: 800003116 6770 NORTH NINTH AVENUE PENSACOLA, FL 32504-7346 CASE #: 2009007700 NOTICE OF INTENT TO DEEM APPLICATION INCOMPLETE AND WITHDRAWN FROM FURTHER REVIEW Your application for license RENEWAL is deemed incomplete and withdrawn from further consideration pursuant to Section 408.806(3)(b), Florida Statutes, which states that “Requested information omitted from an application for licensure, license renewal, or change of ownership, other than an inspection, must be filed with the agency within 21 days after the agency’s request for omitted information or the application shall be deemed incomplete and shall be withdrawn from further consideration and the fees shall be forfeited’’. You were notified by correspondence dated June 05, 2009 to provide further information addressing identified apparent errors or omissions within twenty-one days from the receipt of the Agency’s correspondence. Our records indicate you received this correspondence by certified mail on June 09, 2009. As this requested information was not timely received by the Agency, your application is deemed incomplete and withdrawn from further consideration. The outstanding issues remaining for licensure are: Failure to submit upon written request: e Health Care Licensing Application Addendum with ownership information in Section 2A. EXPLANATION OF RIGHTS Pursuant to Section 120.569, F.S., you have the right to request an administrative hearing. In order to obtain a formal proceeding before the Division of Administrative Hearings under Section 120.57(1), F.S., your request for an administrative hearing must conform to the requirements in Section 28-106.201, Florida Administrative Code (F.A.C), and must state the material facts you dispute. ECTION AND EXPLANATION OF RIGHTS FORMS. Karen Rivera, Manager — . Laboratory Licensure Unit Certified Article Number 7460 3901 9848 4334 8301 SENDERS. RECORD cc: Agency Clerk, Mail Stop 3 Legal Intake Unit, Mail Stop 3 2727 Mahan Drive,MS#32 Tallahassee, Florida 32308 h EXHIBIT STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR DOAH No. 09-3585 HEALTH CARE ADMINISTRATION, Petitioner, vs. AHCA No. 2009001632 COMMUNITY HEALTHCARE CENTER OF PENSACOLA, INC., Respondent. COMMUNITY HEALTHCARE CENTER OF PENSACOLA, INC., Petitioner, vs. AHCA No. 2009007700 STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent. / SETTLEMENT AGREEMENT The State of Florida, Agency for Health Care Administration (“the Agency”), and the licensee/applicant, Community Healthcare Center of Pensacola, Inc. (“the Provider”), pursuant to Section 120.57(4), Florida Statutes, enter into this Settlement Agreement (“Agreement”) and agree as follows: WHEREAS, the Provider is a licensed abortion clinic pursuant to Chapter 408, Part II, Chapter 390, Florida Statutes, and Chapter 59A-9, Florida Administrative Code, and is also an applicant for clinical laboratory licensure pursuant to Chapter 408, Part II, Chapter 483, Part I, Florida Statutes, and Chapter 59A-7, Florida Administrative Code; and WHEREAS, the Agency has jurisdiction by virtue of being the licensiy EXHIBIT Page 1 of 5 authority over the Provider pursuant to the above referenced provisions of law; and WHEREAS, the Agency served an Administrative Complaint dated June 12, 2009, on the Provider; and WHEREAS, the Agency served a Notice of Intent to Deem Application Incomplete and Withdrawn from Further Review (“NOIW”) dated July 9, 2009, on the Provider; and WHEREAS, the parties have agreed that a fair, efficient, and cost effective resolution of this dispute would avoid the expenditure of substantial sums to litigate the dispute; and WHEREAS, the parties have negotiated in good faith and agreed that the best interest of all the parties will be served by a settlement of this proceeding; NOW THEREFORE, in consideration of the mutual promises and recitals herein, the parties intending to be legally bound, agree as follows: 1. All recitals are true and correct, are incorporated into the Agreement and are binding findings of the parties. 2. Upon full execution of this Agreement, the Provider agrees to waive any and all appeals and proceedings to which it may be entitled including, but not limited to, an informal proceeding under Subsection 120.57(2), Florida Statutes, a formal proceeding under Subsection 120.57(1), Florida Statutes, appeals under Section 120.68, Florida Statutes; and declaratory and all writs of relief in any court or quasi-court (DOAH) of competent jurisdiction; and agrees to waive compliance with the form of the Final Order (findings of fact and conclusions of law) to which it may be entitled, provided, however, that no agreement herein shall be deemed a waiver by either party of its right to judicial enforcement of this Agreement. 3. Upon full execution of this Agreement, the Agency agrees to voluntarily dismiss the Administrative Complaint against the Provider with prejudice foregoing the administrative fine sought to be imposed against the Provider in its entirety, and the Provider agrees to: (1) the Page 2 of 5 voluntarily relinquishment of its abortion clinic license (License No. 821) and closure of the abortion clinic effective on or before October 31, 2009, (2) the surrender of the license certificate to the Agency at “Hospital and Outpatient Unit, Agency for Health Care Administration, 2727 Mahan Drive, MS #31, Tallahassee, Florida 32308” immediately upon the discontinuance of the operation of its clinic, (3) the withdrawal of its petition for formal hearing with regard to the pending Administrative Complaint, and (4) the withdrawal of its initial application for clinical laboratory licensure which is the subject of the NOIW. As part of the closure of its clinic, the Provider recognizes that it must comply with all statutes and rules regarding its closure, including but not limited to, Section 408.810 and Section 456.057, Florida Statutes. Until the license is voluntarily relinquished, the Provider recognizes that it must comply with all statutes and rules required by its licensure, including but not limited to, the reporting requirements under Section 390.0112, Florida Statutes, and Rule 59A-9.034, Florida Administrative Code. The Provider agrees to submit a final report for the final month or partial final month of operation, and if unable to do so through the Agency’s on-line system, may do so by United States mail at the above-referenced address. 4. Venue for any action brought to interpret, enforce or challenge the terms of this Agreement and its corresponding Final Order shall lie solely in the Circuit Court of Florida, in and for Leon County, Florida. 5. By executing this Agreement, the Provider does not admit the allegations raised in the Administrative Complaint and NOIW, but recognizes that the Agency continues in good faith to assert these allegations. 6. Upon full execution of this Agreement, the Agency shall enter a Final Order adopting and incorporating the terms of this Agreement and closing the above-styled cases. 7. Each party shall bear its own costs and attorney’s fees. Page 3 of 5 8. This Agreement shall become effective on the date upon which it is fully executed by all parties. 9. The Provider, for itself and any controlling interests, parent corporations, subsidiary corporations, successors, transferees, and any related entities, discharges the State of Florida, Agency for Health Care Administration, and its agents, representatives, and attorneys of and from all claims, demands, actions, causes of action, suits, damages, losses, and expenses, of any and every nature whatsoever, arising out of or in any way related to this matter and the Agency’s actions, including, but not limited to, any claims that were or may be asserted in any federal court, state court or administrative forum, including any claims arising out of this Agreement, by or on behalf of the Provider. 10. This Agreement is binding upon all parties and those identified in the above paragraph of this Agreement. 11. In the event that the Provider was a Medicaid provider at the time of the occurrences alleged in the administrative complaint, this Agreement does not prevent the Agency from seeking Medicaid overpayments related to the subject issues or from imposing any further sanctions pursuant to Rule 59G-9.070, Florida Administrative Code. 12, The undersigned have read and understand this Agreement and have the authority to bind their respective principals to it. The Provider’s representative has the legal capacity to execute the Agreement and has consulted with independent counsel. The Provider understands that counsel for the Agency represents solely the Agency and that counsel for the Agency has not provided any legal advice to, or influenced, the Provider in its decision to enter into the Agreement. 13. This Agreement contains and incorporates the entire understandings of the parties. This Agreement supersedes any prior oral or written agreements between the parties. This Page 4 of 5 Agreement may not be amended or supplemented except in writing. Any attempted assignment of this Agreement shall be void. 14. All parties agree that a facsimile signature suffices for an original signature. The following representatives acknowledge that they are duly authorized to enter into this Agreement. Elizabeth Deputy Se Agency for Health Care Administration Community Healthcare Center of Pensacola 2727 Mahan Drive, Bldg. #1 6770 North Ninth Avenue Tallahassee, Florida 32308 Pensacola, Florida 32504 DATED: Mf 7 2007 DATED: w\ | 04 COoUNAL 0 Grmun Reronice ht or nn : . Andrew T. Lavin, Esquj Office of the General Counsel Navon & Lavin, P.A. Agency for Health Care Administration Emerald Park Office Center 2727 Mahan Drive, Mail Stop #3 2699 Stirling Road, Suite B-100 Fort Lauderdale, Florida 33312 DATED: u/ 19]04 DATED: “4 Thomas M. Hoeler, Senior Attorney Office of the General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florig& 32708 DATED: Page 5 of 5
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact AHCA is the agency responsible for the licensing and regulation of assisted living facilities in Florida pursuant to Chapter 400, Florida Statutes. At all times material hereto, Northpointe was licensed as an assisted living facility with a capacity of 100 beds. Northpointe is located in Pensacola, Florida. Count I As the result of a complaint received by AHCA, Norma Endress, a registered nurse and agency surveyor employed by AHCA, conducted a survey inspection of Northpointe on March 1 and 2, 2002. According to Nurse Endress, the nature of the complaint was an allegation regarding failure to prevent falls. Upon arriving at Northpointe, Ms. Endress spoke with Rochelle Pitt, a Licensed Practical Nurse who is Director of Nursing at Northpointe, made a quick tour of the facility and then asked for the records of five residents. These records included those of Resident 1 and four others chosen randomly. Included within Resident 1's records was an Outcome Planning Discharge Sheet (discharge sheet) from Sacred Heart Hospital dated January 31, 2002. The discharge sheet noted that Resident 1 had a wound on his left heel. The discharge sheet included a section entitled "Post Discharge Medical Appointments" which included the following hand written notation: "Dr Matthew Ethridge (Podiatrist) (illegible telephone number). Date + time to be arranged within the week by daughter." The discharge sheet also included a section entitled "Medications Dose Frequency" which contained the following hand written notation: "Resume pre-hospital meds. Clean and dress left heel (illegible) everyday with antibiotic ointment and dress with gauze." Also included within Resident 1's records was another document from Sacred Heart Hospital which indicates that Resident 1 subsequently was treated in the Emergency Room on February 2, 2002. This document includes a section entitled "Triage," which indicates that Resident 1 was seen in the Emergency Room because of a fall and that Resident 1's chest hurt. The section of the February 2, 2002, Emergency Room document entitled "Physical Exam" indicates that Resident 1 was awake and alert and was accompanied by his daughter. This section also includes the following: "EXTREMITIES: no clubbing, cyanosis, WITH2+ edema, perpipheral pulses intact, motor and sensation intact. BANDAGE ON FOOT NOT CHANGED AS HOME HEALTH NURSING CHANGING REGULARLY." (emphasis in original) During the survey inspection, Nurse Endress also reviewed Resident 1's medication record. According to Nurse Endress, the medication record did not reference the discharge instructions of the physician from the January 31, 2002, discharge from the hospital.1/ Also included in Resident 1's records was a fax cover sheet dated February 1, 2002, from Rochelle Pitt of Northpointe to Dr. Retzloff. The fax cover sheet contained the following hand written notation: "Returned from hospital 1-31-02, needs new health assessment (with) orders for home health to open area L heel. (see discharge instructions) Thanks, Rochelle Pitt." According to Nurse Endress, there was nothing in Resident 1's medication administration record or medical chart to reflect the physician's discharge instructions of January 31, 2002 nor to indicate that Resident 1 received any treatment to his left foot after his discharge from the hospital on January 31, 2002. Mr. M. H. Mikhchi is the administrator of Northpointe. According to Mr. Mikhchi, the type of license held by Respondent does not permit it to do the dressing changes on Resident 1's foot referenced in the doctor's hospital discharge instructions. That is, Respondent asserts that it holds a standard license, not a mental health license or a limited nursing license. According to Mr. Mikhchi, Respondent received a call from the hospital prior to Resident 1's discharge on Thursday, January 31, 2002, informing them that Resident 1 was being discharged. The following day, Friday, February 1, 2002, Nurse Pitt sent a fax to Dr. Retzloff, requesting a new health assessment with orders for home health care to treat Resident 1's heel. The time of day that this request was faxed is not reflected on the fax cover sheet, although Mr. Mikhchi indicated that it was Friday afternoon. The request was necessary because Resident 1's insurance required a physician's order for home health services. According to Mr. Mikhchi, Respondent did not hear back from Dr. Retzloff's office on Friday, February 1, 2002. As a result, the weekend passed without Resident 1 receiving home health care for his heel wound. Mr. Mikhchi acknowledges that Nurse Pitt viewed the heel wound over the weekend although the record is unclear as to whether or not she changed the dressing or applied ointment. Nurse Pitt's actions in this regard were not recorded in Resident 1's record because of the limitation of Respondent's license. Upon Resident 1's return to the facility, Nurse Pitt noted that Resident 1's discharge order stated that Resident 1's daughter would set up an appointment with Dr. Ethridge. As far as Nurse Pitt or Respondent knew, Resident 1's daughter had not set up an appointment with the doctor as of Monday, February 4, 2002. Accordingly, Nurse Pitt called the office of Dr. Ethridge, a podiatrist, on Monday, February 4, 2002, to set up an appointment which was then scheduled for the following day. Count II Shawn Bolander is a registered nurse and a surveyor for AHCA. According to Nurse Bolander, she went to Respondent's facility on April 5, 2002, to conduct a survey visit as a follow-up to a complaint investigation. However, the record contains no evidence as to the nature or subject matter of the complaint investigation to which this was a follow-up survey visit. There is nothing in Nurse Bolander's testimony to indicate that her visit of April 5, 2002, was related in any way to the events discussed above regarding Count 1 or Resident 1. Upon arriving, Nurse Bolander took a tour of the facility and requested a list of residents to select a sample of records for chart review. She reviewed the records of Resident 22/ and found that there was a missing page to Resident 2's medication administration record. She determined that there was a missing page by comparing the physician's orders to the medication administration record for the month of April. That is, Resident 2's resident health assessment mentioned two medications that were not found on Resident 2's medication administration record. Upon discovering that some medications were not listed on the medication administration record, Nurse Bolander spoke to Nurse Pitt. Nurse Bolander requested that Nurse Pitt recopy the second page of Resident 2's medication administration record and provide her with a copy of it prior to Nurse Bolander's departure from Respondent's facility. Nurse Pitt did provide Nurse Bolander with a second page to Resident 2's medication administration record prior to Nurse Bolander's departure from the facility on April 5, 2002. At the top of the second page of the medication administration record appears the following hand written notations: "Re-written 4-5-02 2:15pm RP." This was followed by a notation made by Nurse Bolander which read, "Received 4/5/02 SB @2:35." Page two of Resident 2's medication administration record listed six medications, three of which were designated "PRN." Based upon her review of the medication administration record, Nurse Bolander determined that there was no evidence that Resident 2 actually received any of the medications listed on page two from April 1, 2002 to April 5, 2002. There is nothing in the record to support the allegation in Count II that Respondent's alleged failure to maintain an up to date medication observation record is a repeat violation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order dismissing the Amended Administrative Complaint issued against Respondent, Northpointe Retirement Community. DONE AND ENTERED this 8th day of November, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 2002.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times relevant to the charges in this proceeding, respondent was employed as a registered nurse on the 11:00 P.M. to 7:30 A.M. shift aft the Putnam Community Hospital in Palatka, Florida. On or about October 28, 1978, the night supervisor at the Hospital, Ollie Craven, discovered an empty vial of Demerol (Meperidine) in the narcotic box, to which respondent had a key. Normally, the vial would be broken after use, but this vial was not broken. From this date until December 1, 1978, respondent was observed by the staff to exhibit symptoms of being under the influence of drugs. These symptoms included wide mood swings, lethargic behavior, minute-sized pupils and a very dry mouth, all consistent with one taking narcotics. When respondent came on duty on or about December 1, 1978, she appeared to be ill and did vomit. When observed later in the lounge, she was drowsy and lethargic. The night supervisor observed what appeared to be Demerol in her lab coat pocket. Feeling that respondent was not capable of carrying out her duties, Ms. Craven telephoned Ms. Wallace, the Director of Nurses, at about 3:00 A.M. and Ms. Wallace came to the Hospital. When questioned by Ms. Wallace, respondent denied having taken any drugs. Ms. Wallace palpitated the respondent's thighs and found the tissue to be hard and consistent with numerous injections. Respondent was asked to give a blood and a urine sample and did so. She was observed to have blood spots on her girdle. Ms. Wallace observed the respondent to be dull, with an extremely dry mouth and minute, pinpoint sized pupils. The blood and urine samples were positive for Meperidine, also known as Demerol, a controlled substance. By an Administrative Complaint dated December 3, 1978, the petitioner Board charged respondent with unprofessional conduct and a violation of F.S. Section 464.21(1)(b). On January 11, 1979, the respondent signed a form requesting an administrative hearing on the charges. In mid-February, the undersigned received a letter from the respondent reading as follows: Ms. Tremor: The hearing will have to be held without me. I am not now able to attend or will I be able in the next 60 to 90 days. Doctors orders. He states it will be to much tension because of the heart attack I have had. Sincerely yours Mary Pennington The attorney for the Board opposed a continuance without a letter from the respondent's physician. By notice of hearing dated May 3, 1979, the final hearing was noticed for June 4, 1979. The respondent Pennington did not appear at the hearing.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the respondent be found guilty of unprofessional conduct in violation of Section 464.21(1)(b), Florida Statutes, and that her registered nursing license be suspended for a period of six (6) months. Done and entered this 2nd day of July 1979, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Geraldine Johnson Coordinator of Investigation and Licensing State Board of Nursing 111 East Coastline Drive Suite 504 Jacksonville, Florida 32202 Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Mary Wood Pennington Route 2, Box 1480 Palatka, Florida 32077 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA STATE BOARD OF NURSING IN THE MATTER OF: Mary Wood Pennington As a Registered Nurse Case No. 78-764 Route 2, Box 1480 License Number 59864-2 Palatka, Florida 32077 /
The Issue The issues in this case are whether Respondent committed the violation alleged in the Administrative Complaint and, if so, the penalty that should be imposed.
Findings Of Fact The Department and the Board of Nursing have regulatory jurisdiction over licensed nurses such as Respondent. The Department furnishes investigative services to the Board and is authorized to file and prosecute an administrative complaint, as it has done in this instance, when cause exists to suspect that a licensee has committed one or more disciplinable offenses. On January 5, 1999, the Department issued Respondent license number RN3344322, which authorized her to practice as a registered nurse in the state of Florida. Respondent's address of record is 1720 Harrison Street, Apartment 11G, Hollywood, Florida. Though the record is less than explicit, it appears that, in or around July 2011, Respondent was suspected of misappropriating a small quantity of diazepam, a Schedule IV controlled substance. Although the administrative charges stemming from that allegation were ultimately dismissed, Respondent entered into an advocacy contract ("Contract") with the Intervention Project for Nurses ("IPN"), a program2/ which contracts with the Board of Nursing to monitor practitioners struggling with substance abuse issues or other problems. The Contract, which Respondent executed on October 5, 2011, mandated that she abstain from all mood-altering substances——including alcohol——for a period of two years; submit to random toxicology screens; and inform any potential employer of her participation in IPN. Further, by signing the Contract, Respondent acknowledged that she had reviewed the IPN Participant Manual ("Manual") and would abide by its terms. Significantly, the Manual provided that, upon a relapse,3/ Respondent would be required, as a condition of continued enrollment in IPN, to refrain from nursing until such time that an IPN-facilitated evaluation could be performed.4/ Subsequently, on or about December 20, 2011, Respondent obtained employment with Wound Technology Center as a "call-center nurse." In connection with this position, which required licensure as a registered nurse, Respondent provided consultation services to clinicians regarding wound treatment. Thereafter, on January 18, 2012, IPN requested that Respondent furnish a sample of her urine for testing. The results, which IPN received on January 24, 2012, revealed the presence of ethyl glucuronide (a metabolite of ethyl alcohol) and ethyl sulfate. That very afternoon, Patrice Ward, an IPN case manager, contacted Respondent by telephone to discuss the positive test result. During the ensuing conversation, Respondent admitted that she had consumed a glass of wine5/ with dinner, at which point Ms. Ward instructed Respondent to immediately refrain from nursing practice. Regrettably, Respondent failed to comply, without good cause, with Ms. Ward's directive to refrain from practice; indeed, the evidence demonstrates that Respondent continued to perform her regular nursing duties over the next two work days. Respondent's failure to refrain from nursing was quickly brought to the attention of IPN's executive director, who, consistent with the Contract's express provisions, terminated Respondent from IPN on January 26, 2012.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order finding Respondent guilty of violating section 456.072(1)(hh); suspending Respondent's nursing license until such time that an IPN-facilitated evaluation is completed and Respondent is deemed fit to return to practice; and ordering Respondent to enter into a monitoring agreement with IPN, should the IPN-coordinated evaluation demonstrate the need for further treatment. DONE AND ENTERED this 8th day of April, 2014, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge 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 8th day of April, 2014.
