Judge Rejects State Claim Against Abortion Clinic
TALLAHASSEE -- An administrative law judge Thursday rejected a state agency's arguments that a Gainesville abortion clinic should be fined for performing second-trimester abortions without a proper license.
In a 25-page ruling, Judge Lawrence P. Stevenson concluded that the Florida Agency for Health Care Administration had failed to make its case against Bread & Roses Well Woman Care.
AHCA filed an administrative complaint against Bread and Roses in August, contending that the clinic, which is licensed to perform only first-trimester abortions, had performed five abortions on women who were in the second trimesters of pregnancies.
"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," Stevenson wrote.
The fines would have cost the clinic $500 for each of the five procedures, or $2,500.
The agency based its complaint on the fact that documentation in the five cases did not include the dates of the women's last normal menstrual periods. The files showed how many weeks of pregnancy were indicated by ultrasound procedures, which the clinic's owner and director, Kristin Davy, said was standard practice.
"Ms. Davy further testified that Bread & Roses had been submitting its reports to AHCA in the same manner for the 10 years in which it has restricted its license to first trimester abortions," Stevenson wrote. "AHCA presented no evidence to counter Ms. Davy's credible testimony that Bread & Roses had been submitting its (monthly summary) reports in the same manner for the previous 10 years without incident. AHCA presented no evidence to explain why it suddenly believed that Bread & Roses' (monthly summary) reports showed that the clinic was performing second-trimester abortions."
Stevenson also wrote that Davy's explanation to Kriste Mennella, the AHCA field office manager who surveyed the clinic's files, was documented in Mennella's notes and report but not in the letter she faxed to the clinic that evening. The letter said AHCA had determined that Bread & Roses was providing services beyond the scope of its license.
"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," Stevenson wrote.
Shelisha Coleman, an AHCA spokeswoman, said in an email late Thursday afternoon that the agency was reviewing Stevenson's decision.
AHCA filed its administrative complaint against Bread & Roses during the same month the agency made similar charges against three Planned Parenthood clinics in St. Petersburg, Naples and Fort Myers, and a fifth clinic in Plantation. All were licensed for first-trimester abortions only.
In response, the clinics contended that AHCA was changing the definition of a first trimester contained in a 2006 rule, which defined the first trimester as "extending through the completion of 14 weeks of pregnancy as measured from the first day of the woman's last menstrual period."
The Plantation clinic, Aastra, settled with AHCA in December. The agency last month dismissed its cases against the three Planned Parenthood clinics, citing a sweeping new abortion law signed by Gov. Rick Scott. At the time, AHCA spokeswoman Mallory McManus said the argument was resolved by Scott's approval of the law (HB 1411), which contains a new definition of the first trimester consistent with the state's position in the administrative complaints.
Stevenson's ruling Thursday is a recommended order, which, under administrative law, goes to the agency. The judge recommended that the agency dismiss the complaint against Bread & Roses.
Bread & Roses has also figured in another recent abortion dispute. Last year, the clinic joined a lawsuit challenging the constitutionality of a state law requiring 24-hour waiting periods before women can have abortions. Last week, the Florida Supreme Court temporarily blocked the law and granted a stay of a lower court's order allowing the law to take effect.
That allows women to get abortions without a waiting period for the time being, until the constitutional challenge finds its way through the courts.