ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Court (“ALC” or “Court”) pursuant to a contested case hearing filed by Peachtree Manor Residential Care Home, LLC (“Peachtree”) challenging the South Carolina Department of Health and Environmental Control’s (“DHEC” or “Department”) imposition of a $20,100 monetary penalty on Peachtree for alleged violations of 25A S.C. Code Ann. Regs. 61-84, Standards for Licensing Community Residential Care Facilities, (Supp. 2006). Pursuant to notice to the parties, a hearing on the merits of this matter was held before me in the offices of the ALC on February 12 and 15, 2007 in Columbia, South Carolina.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion of the parties, I make the following findings of fact by a preponderance of evidence:
1. Peachtree is a community residential care facility (“CRCF”) located in Winnsboro, Fairfield County, South Carolina. It provides assisted living services to residents.
2. David A. Donnelly, Jr. is the sole owner of Peachtree. His wife, Verna M. Donnelly, was the licensed administrator at Peachtree from its licensure until approximately July 9, 2006. Mr. and Mrs. Donnelly jointly own Myrtlecrest Residential Care Home (“Myrtlecrest”), a CRCF located in Richland County, South Carolina.
3. Prior to Peachtree’s opening and its licensure by the Department to operate as a CRCF, the Department conducted an on-site initial inspection of it on January 5, 2006. During the inspection, the Department cited Peachtree for a number of violations of various sections of Reg. 61-84, such as the failure: (1) to have documentation that staff member(s) had been trained in the management/care of persons with contagious and/or communicable disease, in the use of restraints, in OSHA standards regarding bloodborne pathogens, in fire response, and in recreational activities; (2) to have documentation that two staff members had received physical exams prior to their hire date; and (3) to have documentation that two staff members had completed the 2nd step of the two-step tuberculin (“TB”) skin test.
4. At the conclusion of the January 5, 2006 inspection, the Department’s inspector discussed each of the alleged violations with Ms. Donnelly and gave to her a copy of the inspection report. Subsequently, Peachtree timely notified the Department of the corrective actions that had or would be taken to become compliant with Reg. 61-84.
5. On January 18, 2006, Peachtree received its initial license to operate as a CRCF from the Department. As of that date Peachtree had not had any contact with any residents nor had it conducted any business as a CRCF. Peachtree received its first resident in March 2006.
6. On April 5, 2006, Department staff returned to Peachtree to conduct a follow-up inspection to ensure that violations noted during the January 5, 2006 initial inspection had been corrected. In addition, Department staff intended to conduct a complaint investigation, kitchen inspection, and food and sanitation inspection. Upon arrival, the Department’s inspector opted to turn the inspections and investigation into a consultation.
7. On May 31, 2006, Department staff returned to Peachtree to conduct a complaint investigation, a food and sanitation inspection, and a follow-up inspection to its initial inspection of January 5, 2006. During this visit, the Department cited Peachtree for numerous violations of various sections of Regulation 61-84.
8. On May 31, 2006, the Department found that for two of four staff records reviewed, there was no documentation of a background check by the State Law Enforcement Division (“SLED”). Further, the Department found that for one of four staff records reviewed, there was no documentation to indicate that the facility had coordinated with local registries for a certified nursing assistant.
In addition, the Department cited Peachtree for failing to have documentation of initial training in first aid for one of four staff records reviewed. Although documentation was not contained in the employee’s file at the time of the inspection, the employee did receive universal training in first aid from the American Safety and Health Institute on March 25, 2006.
The Department also cited Peachtree for failing to have documentation of initial training in medication management in one out of four staff records reviewed. Although not completed prior to the inspection, the employee did receive training in medication management by Long-Term Care Pharmacy on July 17, 2006.
The Department also found that there was no documentation of restraint training for a designated staff person. Two employees did receive training in non-violent crisis intervention and restraints on January 7, 2006. However, documentation of this training was not available during the May 31, 2006 inspection.
Peachtree was also cited for not having documentation of initial training in OSHA standards for bloodborne pathogens in one of four staff records reviewed. The staff member whose file lacked this documentation received training in bloodborne pathogens from the American Safety and Health Institute on March 25, 2006.
Also, the Department found that there was no documentation of appropriate recreation/activity training for the designated activity coordinator. At least one employee at Peachtree received some activity training in 2000 and 2001, and held a certification as an Activity Director from the National Certification Council for Activity Professionals which expires on January 1, 2009. However, the certification did not indicate when it was issued.
In addition, for five of five resident records reviewed, the Department found that there was no documentation of an initial assessment within 72 hours available.
For one of five resident records reviewed, Department staff found that there was no documentation of a care plan being performed for a patient admitted on April 4, 2006. However, a care plan was performed for that patient on April 6, 2006. Also, for two of five resident records reviewed, the care plan was not signed by the resident and/or responsible party. Further, no notations were made on these care plans that the residents were unable to sign the plans themselves.
Peachtree also received the following citations on May 31, 2006: (a) for two of five resident records reviewed, only a one step TB test was available for review; (b) for one of five resident records reviewed, the resident had a 2 step tuberculin skin test but neither test was performed within 30 days of admission; and (c) for one of five resident records reviewed, a chest x-ray was observed, but there was no documentation of a positive TB test or an emergency admission.
Department staff cited Peachtree because they could not determine if special diets were being served as the menus provided to them for review did not reflect special diets or indicate that they were signed by a dietitian or reviewed by a healthcare authority.
Finally, the Department cited Peachtree because for one of four staff records reviewed only a one-step TB test was available for review.
9. Because of a complaint it received that there was no telephone service available at Peachtree, the Department conducted an unannounced inspection on June 21, 2006 to ensure its residents were not in any imminent danger. While there, the Department cited violations of various sections of Regulation 61-84.
10. On June 21, 2006, the Department found that Peachtree did not have enough staff on duty during peak hours, as only two staff members were on duty at the time of the inspection while 18 residents were present.
The Department also cited Peachtree for failing to have phone service available to residents or staff during the inspection. However, personal cell phones were available for use by residents that day. Phone service was restored on June 23, 2006.
Finally, the Department cited Peachtree for not having any diabetic menus available for review. Further, the Department noted that menus for such diets must be planned by a professionally qualified dietitian or be reviewed and approved by a physician. Peachtree uses the same menu for special and regular diets, and makes adjustments as needed to the menu items for special diets. Also, Peachtree utilizes the same menu that Myrtlecrest uses, and those menus are reviewed by a physician. Additionally, Peachtree now posts two menus, instead of one.
11. Department staff returned to Peachtree on June 22, 2006 to see if telephone service had been reconnected, and to conduct a follow-up of its June 21, 2006 investigation. On that date, the Department cited Peachtree for additional violations, including a citation for having insufficient funds which prevented some payroll checks from being cashed. Department staff spoke with the administrator of Peachtree, who admitted having some trouble with the payroll due to non-receipt of state funds totaling approximately $30,000.00 which were owed to the facility.
In addition, the Department cited Peachtree for failing to have documentation of a SLED background check for four of five staff records reviewed, and for failing to have documentation of a FBI check for one staff member who moved to South Carolina in July 2005 and was hired on April 17, 2006. Peachtree did not conduct a SLED check for the first staff member until after the violation was cited and did not maintain a copy of a SLED report for the second staff member, the administrator of the facility, although one had previously been run as a part of the application for the administrator’s license. Further, no SLED check was done at all on a third employee, who is no longer employed by Peachtree. A SLED check for the fourth employee was not done until after the facility was cited for the violation. Peachtree was not aware of the requirement for an FBI check on the one individual.
Peachtree was also cited because two of five staff records reviewed contained no documentation of First Aid training. However, those employees had received First Aid training on January 7, 2006 and April 10, 2006, respectively, at Myrtlecrest Residential Care Home.
Additionally, for two of five staff records reviewed, the Department found there was no documentation of contagious/communicable disease training available. Both employees had received training at Myrtlecrest Residential Care Home, but documentation of that training was not present in their files at Peachtree at the time of the inspection. One employee’s training was completed on February 5, 2006. However, the other employee’s training was completed on September 26, 2003 and had not been updated on an annual basis as required.
Peachtree was also cited for having no documentation of medication management training available for four of five staff records reviewed. Three of the employees in question had undergone training on January 10, 2006, May 11, 2005, March 24, 2006 and July 11, 2006. Therefore, three of the four employees had received training in medication management prior to the violation being written.
Department staff cited Peachtree on June 22, 2006 for failure to have documentation available for a person/staff member who was designated to be trained in the use of restraints. Although not available at the time of the Department’s inspection, a person on staff was trained in the use of restraints on January 7, 2006.
For four of five staff records reviewed on June 22, 2006, the Department found no documentation of OSHA standards/bloodborne pathogens training available. Two of the four members whose records were reviewed had received the appropriate training prior to the violation date, on January 7, 2006 and March 25, 2006; however, the two other staff members received OSHA training after the date of the violation, on July 15, 2006 and August 9, 2006.
Also, on June 22, 2006, for two of five staff records reviewed there was no documentation available for fire response training. These employees did receive fire response training at another facility, Myrtlecrest Residential Care Home. However, that training was not specific to Peachtree. Peachtree later provided additional fire response training specific to Peachtree to those two individuals, but that training was not documented.
Department staff also cited Peachtree for failing to have documentation available for anyone designated to do recreational training. At least one employee at Peachtree received some activity training in 2000 and 2001, and held a certification as an Activity Director from the National Certification Council for Activity Professional which expires on January 1, 2009. However, the certification did not indicate when it was issued.
Additionally, for an employee hired on April 17, 2006, there was no documentation of a pre-employment health assessment available. The employee worked at both Peachtree and Myrtlecrest Residential Care Home, and a pre-employment health assessment for the employee was completed on February 18, 2006.
Peachtree was also cited on June 22, 2006 for not having documentation of a written assessment within 72 hours available for review.
Additionally, for one of four resident records reviewed, there was no documentation of an individual care plan available for review. Although an individual care plan was completed for the resident, it was dated June 23, 2006, after the violation occurred.
Peachtree was also cited again because the care plan for a resident admitted on April 17, 2006 had not been signed by the resident or responsible party. Peachtree did later obtain the appropriate signatures after the June 22, 2006 violation date.
The Department also cited Peachtree with a violation because for one of four resident records reviewed, the statement “Does this person require the daily care of a registered or licensed nurse?” was answered “yes.” However, an addendum to the patient’s history from the VA Administration noted that the physician who examined the patient made an error on the form submitted to Peachtree regarding the patient’s physical examination. The note indicated that at the time of the patient’s discharge, the patient did not need the daily care of a registered nurse at the time of his discharge.
Also, Peachtree was issued a citation because two of four resident records reviewed contained no documentation of a second step of the two step PPD available. One resident at issue had a chest x-ray done prior to admission and Peachtree considered the resident’s admission to be an emergency; however there was no documentation of the admittance being an emergency. Further, one of the residents had a second-step TB test performed after the date of the last inspection.
The Department also cited Peachtree because for three staff members hired March 17, 2006, April 17, 2006, and April 27, 2006, there was no documentation of the second step of the two step PPD available, and there was no documentation of an annual PPD for a staff person available for review. One of the employees at issue did have a second step of a TB test performed at another facility, but Peachtree did not have documentation of that second step test. A second employee did have a 2-step PPD test, one read on December 7, 2005 and one read on April 24, 2006. However, that documentation was not available for review at the time of the Department’s inspection. The third employee did not have a second step test. With regard to the annual PPD test, the employee at issue was due for his annual test.
Finally, the Department cited Peachtree for failure to have phone service to the facility, which made the alarm system inoperable and required that emergencies be reported by personal cell phones.
12. When the Department finds non-compliance with licensing standards at a facility, it requires the facility to submit an acceptable written plan of correction to it by the date specified on the inspector’s report left at the facility. Pursuant to the inspector’s report dated May 31, 2006, Peachtree was required to file a response with the Department by June 15, 2006. On July 5, 2006, the Department notified Peachtree in writing that it had not received its response to the May 31, 2006 inspection. In addition, the notification stated, “Failure to provide a written response to these reports within the next ten (10) days may result in an enforcement action.” Peachtree submitted its response to the Department on July 12, 2006, within seven days of the July 5, 2006 notification. Notwithstanding, the Department cited Peachtree for a violation of Section 202(D) for failing to submit its written response to the report of visit dated May 31, 2006 by June 15, 2006.
13. On July 17, 2006 Peachtree was cited for failing to return the June 21 and June 22, 2006 reports of visit and responses to the Department within 15 days of the visit. The date specified on those reports of visit to return an acceptable plan of correction was July 7, 2006. Peachtree mailed its responses to the reports on July 7, 2006; however, the Department did not receive them until July 14, 2006.
14. By letter dated July 21, 2006, the Department imposed a monetary penalty in the amount of $20,100 upon Peachtree for violations of Regulation 61-84. Attached to the letter was a synopsis detailing the basis for each individual citation and the monetary penalty imposed for each individual citation. The Department did not impose any monetary penalties for violations cited on January 5, 2006 or May 31, 2006.
15. By letter dated August 7, 2006, Peachtree requested a Final Review of the Department’s decision by the Board of DHEC. The Clerk of the Board notified Peachtree and the Department that the Board decided on August 24, 2006 not to conduct a Final Review Conference on this matter. Subsequently, Peachtree filed a Notice of Request for Contested Case Hearing with the ALC.
CONCLUSIONS OF LAW AND DISCUSSION
Based upon the foregoing findings of fact, I conclude the following as a matter of law.
1. This tribunal has jurisdiction over this contested case pursuant to S.C. Code Ann. § 1-23-310 to -390 (2005 & Supp. 2006); S.C. Code Ann. § 1-23-600(B) (Supp. 2006); S.C. Code Ann. § 44-1-60(F) (Supp. 2006); S. C. Code Ann. § 44-7-320(B) (2002); and 25A S.C. Code Regs. 61-84 § 302(G) (Supp. 2006).
2. The South Carolina Department of Health and Environmental Control is the State agency charged with the licensure of health facilities and the administration of the State Certificate of Need and Health Facility Licensure Act, S.C. Code Ann. § 44-7-110 et seq. (2002). S.C. Code Ann. § 44-7-140 (2002).
3. Pursuant to S.C. Code Ann. § 44-7-150(3) (2002), the Department promulgated 25A S.C. Code Regs. 61-84, Standards for Licensing Community Residential Care Facilities (Supp. 2006).
4. The construction of a regulation by the agency charged with executing the regulations is entitled to the most respectful consideration and should not be overruled without cogent reasons. Converse Power Corp. v. S.C. Dep’t of Health and Envtl. Control, 350 S.C. 39, 48, 564 S.E. 2d 341, 346 (Ct. App. 2002). Further, S.C. Code Ann. § 1-23-330(4) provides that the Administrative Law Judge may utilize the agency’s “experience, technical competence and specialized knowledge” in the evaluation of the evidence.
5. An initial inspection of a facility by Department staff must be conducted before the facility can receive its initial license. 25A S.C. Code Ann. Regs. 61-84 § 202(A) (Supp. 2006). Further, all CRCFs licensed by the Department are subject to inspection and investigation at any time without prior notice. 25A S.C. Code Regs. 61-84 § 202(B) (Supp. 2006).
6. Department staff conducting an inspection or investigation of a CRCF “shall be granted access to all properties and areas, objects, and records in a timely manner, and have the authority to require the facility to make photocopies of those documents required in the course of inspections or investigations.” 25A S.C. Code Regs. 61-84 § 202(C) (Supp. 2006).
7. When the Department determines that a facility is in violation of a provision of its regulation relating to the operation or maintenance of a CRCF, it may, upon proper notice to the licensee, impose a monetary penalty upon the facility, or deny, suspend, or revoke the facility’s license. 25A S.C. Code Regs. 61-84 § 301 (Supp. 2006).
8. A “facility” is defined as a “community residential care facility licensed by the Department.” 25A S.C. Code Regs. 61-84 § 101(W) (Supp. 2006).
9. In making a decision as to whether to take enforcement action against a facility based upon violations of the regulation, the Department shall consider the following factors:
specific conditions and their impact or potential impact on health, safety or well-being of the residents; efforts by the facility to correct cited violations; behavior of the licensee that would reflect negatively on the licensee’s character such as illegal/illicit activities; overall conditions; history of compliance; any other pertinent conditions that may be applicable to current statutes and regulations.
25A S.C. Code Regs. 61-84 § 302(E) (Supp. 2006).
10. When the Department imposes a monetary penalty on a facility, it shall use the schedule set forth in 25A S.C. Code Regs. 61-84 § 302(F) (Supp. 2006) as a guide to determine the dollar amount of the penalty.
11. The schedule of monetary penalty ranges set forth in 25A S.C. Code Regs. 61-84 § 302(F) (Supp. 2006) is based upon the frequency of the violation within a 36-month time period, and the class level of the violation. However, the regulation states that this schedule is only a guide to determine the monetary penalty to be imposed. Therefore, it is not binding upon this Court. Inherent in and fundamental to the powers of an Administrative Law Judge, as the trier of fact in contested cases under the Administrative Procedures Act, is the authority to decide the appropriate sanction when such is disputed. Walker v. South Carolina ABC Comm'n, 305 S.C. 209, 407 S.E. 2d 633 (1991). The Administrative Law Judge, as fact finder, must impose a penalty based on the facts presented at the contested case hearing. In particular, in assessing a penalty, “each fine must be analyzed individually to determine if it is appropriate under the circumstances.” Midlands Utility, Inc., v. South Carolina Department of Health and Environmental Control , 313 S.C. 210, 212, 437 S.E.2d 120, 121 (1993).
12. There are three class levels of violations of 25A S.C. Code Regs. 61-84 (Supp. 2006). The levels are as follows:
Class I violations are those that the Department determines to present an imminent danger to the health, safety, or well-being of the persons in the facility or a substantial probability that death or serious physical harm could result therefrom. A physical condition or one or more practices, means, methods or operations in use in a facility may constitute such a violation. The condition or practice constituting a Class I violation shall be abated or eliminated immediately unless a fixed period of time, as stipulated by the Department, is required for correction. Each day such violation exists after expiration of the time established by the Department shall be considered a subsequent violation.
Class II violations are those, other than Class I violations, that the Department determines to have a negative impact on the health, safety or well-being of persons in the facility. The citation of a Class II violation shall specify the time within which the violation is required to be corrected. Each day such violation exists after expiration of this time shall be considered a subsequent violation.
Class III violations are those that are not classified as Class I or II in these regulations or those that are against the best practices as interpreted by the Department. The citation of a Class III violation shall specify the time within which the violation is required to be corrected. Each day such violation exists after expiration of this time shall be considered a subsequent violation.
25A S.C. Code Regs. 61-84 § 302(F) (Supp. 2006).
January 5, 2006 initial inspection
13. A “facility” is defined as a “community residential care facility licensed by the Department.” 25A S.C. Code Regs. 61-84 § 101(W) (Supp. 2006). However, at the time of the initial inspection on January 5, 2006, Peachtree was not yet licensed by the Department and therefore did not meet the definition of a “facility” as set forth in Section 101(W) of Regulation 61-84. Therefore, I conclude that the Department does not have the authority pursuant to Section 301 to cite Peachtree for violations or impose any monetary penalties upon Peachtree for noncompliance with Regulation 61-84 at the time of the initial inspection on January 5, 2006. Accordingly, all violations issued against Peachtree on January 5, 2006 are dismissed.
May 31, 2006 inspection
14. On May 31, 2006, Peachtree was cited for not having documentation of a background check by SLED in two of four staff records reviewed in violation of Section 501(B) of Regulation 61-84. Section 501(B) mandates that no staff members or direct care volunteers of a facility may have a prior conviction or have pled no contest for child or adult abuse, neglect, or mistreatment. 25A S.C. Code Ann. Regs. 61-84 § 501(B) (Supp. 2006). Although S.C. Code Ann. §§ 44-7-2910(A)(1), (B)(1)(d) and 44-7-2920 (Supp. 2006) require employers who provide direct caregiving, including a CRCF, must request a criminal background check conducted by SLED prior to employing any direct caregiver, Peachtree was not cited for a violation of those statutes. Peachtree was cited for a violation of Section 501(B) of Regulation 61-84. Further, there was no evidence presented that Peachtree hired any individuals who had a prior conviction or pled no contest for child or adult abuse, neglect, or mistreatment.
Additionally, the facility was cited for not having documentation to indicate that it had coordinated with local registries for a certified nursing assistant in violation of Section 501(B). That section requires that the facility coordinate with applicable registries if licensed or certified individuals are employees of the facility. However, it does not require that written documentation of that coordination be maintained by a facility, only that a copy of the license or certificate of staff members or volunteers who are licensed or certified be available for review. Therefore, I find no violation of Section 501(B) on May 31, 2006.
15. On May 31, 2006, the facility was cited because one of four staff records reviewed lacked documentation of initial training in first aid. Section 504(A)(1) requires that all staff members receive training in basic first aid, to include emergency procedures as well as procedures to manage/care for minor accidents or injuries, prior to resident contact and at least annually thereafter. 25A S.C. Code Ann. Regs. 61-84 § 504(A)(1) (Supp. 2006). However, this section only requires that training be completed, not that documentation of the training be maintained. Nonetheless, the employee whose file did not contain the documentation Peachtree was cited for did receive universal training in first aid on March 25, 2006 by the American Safety and Health Institute. Accordingly, I find no violation of Section 504(A)(1) on May 31, 2006.
16. On May 31, 2006 the facility was cited because one of four staff records reviewed lacked documentation of initial training in medication management. Section 504(A)(4) requires that all staff members receive training in medication management including storage, administration, receiving orders, securing medications, interactions, and adverse reactions, prior to resident contact and at least annually thereafter. 25A S.C. Code Ann. Regs. 61-84 § 504(A)(4) (Supp. 2006). Although the employee whose file lacked this documentation received training in medication management by Long-Term Care Pharmacy on July 17, 2006, it was not completed until after the May 31, 2006 inspection. Accordingly, I conclude that Peachtree was in violation of Section 504(A)(4) on May 31, 2006. However, as the Department did not assess a monetary penalty against Peachtree for its first violation of Section 504(A)(4), a Class I violation, no penalty will be assessed.
17. Section 504(A)(6) requires that at least one staff member employed by the facility receive training in the use of restraints prior to resident contact and at least annually thereafter. 25A S.C. Code Ann. Regs. 61-84 § 504(A)(6) (Supp. 2006). Peachtree was cited for failure to have documentation available for review to indicate that a staff member had been trained in the use of restraints on May 31, 2006. At the hearing, Peachtree produced evidence that was not available on the dates of the Department’s inspections, showing that it did have employees trained in restraints. Records for two employees reflected training in non-violent crisis intervention and restraints was completed on January 7, 2006, which would have been prior to any resident contact. Accordingly, I conclude that Peachtree did not violate Section 504(A)(6) on May 31, 2006 as it had two employees trained in restraints as of January 7, 2006.
18. On May 31, 2006, Peachtree was cited because one of four staff records reviewed lacked documentation of OSHA bloodborne pathogen training. Section 504(A)(7) requires that all staff members receive training in OSHA standards regarding bloodborne pathogens prior to resident contact and at least annually thereafter. 25A S.C. Code Ann. Regs. 61-84 § 504(A)(7) (Supp. 2006). At the hearing, Peachtree presented evidence that the employee whose record lacked this documentation did receive training in bloodborne pathogens pursuant to OSHA standards from the American Safety and Health Institute on March 25, 2006. Therefore, I conclude Peachtree did not violate Section 504(A)(7).
19. On May 31, 2006, the facility was cited for not having documentation of appropriate recreational activity training for the designated activity coordinator. Section 504(B) requires that staff members responsible for providing/coordinating recreational activities for the residents receive appropriate training prior to contact with residents and at least annually thereafter. 25A S.C. Code Ann. Regs. 61-84 § 504(B) (Supp. 2006). At least one employee at Peachtree received some activity training in 2000 and 2001, and held a certification as an Activity Director from the National Certification Council for Activity Professionals which expires on January 1, 2009. However, the certification did not indicate when it was issued. Accordingly, the Court was unable to determine whether the employee had received the training prior to resident contact and at least on an annual basis. Therefore, I conclude that Peachtree violated Section 504(B) on May 31, 2006. The Department did not impose a monetary penalty for Peachtree’s violation of Section 504(B), a Class I violation. Accordingly, Peachtree is not assessed a monetary penalty for this violation.
20. Section 702 requires a complete written assessment of the resident by a direct care staff member, to be conducted within a time period determined by the facility, but no later than 72 hours after admission. 25A S.C. Code Ann. Regs. 61-84 § 702 (Supp. 2006). On May 31, 2006, the facility was cited because five of five resident records reviewed lacked documentation of an initial assessment within 72 hours of admission. Peachtree did not present any evidence with regard to this violation at the hearing. Accordingly, I conclude that Peachtree violated Section 702 on May 31, 2006. The Department did not impose a monetary penalty for Peachtree’s first violation of Section 702, a Class II violation. Accordingly, Peachtree is not assessed a monetary penalty for this violation.
21. On May 31, 2006, Peachtree was cited because one of five resident records reviewed lacked documentation of a care plan. Section 703 requires that each resident have an individual care plan developed within seven days of admission to address the needs of the resident, including the activities of daily living for which the resident requires assistance, arrangements for visits by or to physicians, recreational activities suitable to the well-being of the resident, and dietary needs. 25A S.C. Code Ann. Regs. 61-84 § 703 (Supp. 2006). The patient who lacked documentation of a care plan was admitted on April 4, 2006. However, at the hearing, Peachtree presented a care plan for that patient dated April 6, 2006, indicating that a care plan had been performed on the patient within seven days of admittance. Accordingly, I find that Peachtree did not violate Section 703 on May 31, 2006.
22. Section 703(A) requires that the resident and/or the responsible party for the resident sign the individual care plan to evidence that the resident and/or responsible party participated in the development of the care plan. 25A S.C. Code Ann. Regs. 61-84 § 703(A) (Supp. 2006). On May 31, 2006, Peachtree was cited because two of five resident records reviewed lacked the signature of the resident and/or responsible party on the care plan. Further, there were no notations made on these care plans that the residents were unable to sign the plans themselves. Therefore, I find that based upon the above facts Peachtree violated Section 703(A). The Department did not impose a monetary penalty for Peachtree’s first violation of Section 703(A), a Class II violation. Accordingly, Peachtree is not assessed a monetary penalty for this violation.
23. On May 31, 2006, Peachtree received the following citations: (a) for two of five resident records reviewed, only a one step TB test was available for review; (b) for one of five resident records reviewed, the resident had a 2 step tuberculin skin test but neither test was performed within 30 days of admission; and (c) for one of five resident records reviewed, a chest x-ray was observed, but there was no documentation of a positive TB test or an emergency admission. Section 1101(B) requires that the admission physical examination include a two-step tuberculin skin test, as described in Section 1702. 25A S.C. Code Ann. Regs. 61-84 § 1101(B) (Supp. 2006). Accordingly, based upon the evidence presented, I conclude that Peachtree violated Section 1101(B). The Department did not impose a monetary penalty for Peachtree’s first violation of Section 1101(B), a Class I violation. Accordingly, Peachtree is not assessed a monetary penalty for this violation.
24. Section 1306(A) states that “[i]f the facility accepts or retains residents in need of medically-prescribed special diets, the menus for such diets shall be planned by a professionally qualified dietitian or shall be reviewed and approved by a physician or other authorized healthcare provider.” 25A S.C. Code Ann. Regs. 61-84 § 1306(A) (Supp. 2006). On May 31, 2006 Peachtree was cited for violating this section because Department staff could not determine if special diets were being served (e.g., no sugar, low sodium, low cholesterol) because the menus provided did not reflect special diets or indicate that they were signed by a dietitian or reviewed by a healthcare authority. However, I find insufficient evidence to support a finding that Peachtree violated Section 1306(A) on May 31, 2006.
25. Section 1702(B)(1) requires that staff members and direct care volunteers have evidence of a two-step tuberculin skin test within three months prior to resident contact. 25A S.C. Code Ann. Regs. 61-84 § 1702(B)(1) (Supp. 2006). On May 31, 2006, the facility was cited as follows: for one of four staff records reviewed only a one-step tuberculin (TB) test was available for review. Based upon the evidence presented, I find that Peachtree violated Section 1702(B)(1) on May 31, 2006. The Department did not impose a monetary penalty for Peachtree’s violation of Section 1702(B)(1), a Class I violation. Accordingly, Peachtree is not assessed a monetary penalty for this violation.
June 21, 2006 inspection
26. According to Section 503(B)(1), there must be at least one staff member or volunteer on duty for each eight residents of a facility during all periods of peak hours. 25A S.C. Code Ann. Regs. 61-84 § 503(B)(1) (Supp. 2006). On June 21, 2006, the facility was cited for having only two staff members on duty for a total of 18 residents during peak hours. However, Peachtree was not cited with a violation of 503(B)(1) but rather with a violation of 503(A), which merely requires that a staff member be on duty at all times who is immediately accessible to residents and to whom residents can report injuries, illness or emergencies. Peachtree admits there was an insufficient number of staff on duty at the time, because one person did not show up for work; Peachtree has since decided to hire “prn” staff, which is on an as-needed basis, so that they can call one of those people to come to work if a regular employee does not report to work in the future. However, in this instance the Department cited Peachtree with a violation of 503(A) rather than 503(B)(1). There is no evidence that the two staff members on duty at the time of the inspection were inaccessible to residents. Therefore, I conclude there was no violation of Section 503(A) as charged by the Department on June 21, 2006.
27. On June 21, 2006, Peachtree was cited because there was no telephone service available to residents or staff during the inspection. Peachtree admits that it did not have telephone service on that date, but cell phones were available for the residents at that time. Section 1001(L) mandates that residents be permitted to use the telephone and be allowed privacy when making telephone calls. 25A S.C. Code Ann. Regs. 61-84 § 1001(L) (Supp. 2006). However, it does not require that the facility have a specific type of phone for residents to use. Accordingly, I conclude that Peachtree did not violate Section 1001(L) on June 21, 2006.
28. On June 21, 2006, Peachtree was cited for violating Section 1306(A) because there were no diabetic diet menus available for review. Section 1306(A) states that “[i]f the facility accepts or retains residents in need of medically-prescribed special diets, the menus for such diets shall be planned by a professionally qualified dietitian or shall be reviewed and approved by a physician or other authorized healthcare provider.” 25A S.C. Code Ann. Regs. 61-84 § 1306(A) (Supp. 2006). However, this section does not require that the menus signed by a dietitian or a physician be kept on the premises, but merely that the menus be planned and approved by a dietitian or physician. Peachtree testified that it uses the same menu for special and regular diets, and that it simply makes adjustments as needed to the menu items for special diets. Further, Peachtree utilizes the same menu at Peachtree as it does at another facility, and a physician has reviewed its menu at the other facility. Peachtree also now posts two menus, instead of one. Therefore, I conclude that Peachtree did not violate Section 1306(A) on June 21, 2006.
June 22, 2006 inspection
29. One of the requirements for a CRCF licensee is to be financially able to meet all obligations necessary to the proper operation of the facility. 25A S.C. Code Ann. Regs. 61-84 § 103(K) (Supp. 2006). On June 22, 2006, Department staff spoke with the administrator of Peachtree, who admitted to having some trouble with the payroll. Specifically, some payroll checks were unable to be cashed due to insufficient funds. As a result, the Department imposed a $300 penalty for the facility’s first violation of Section 103(K). However, I conclude that Peachtree should not be cited for a violation of Section 103(K) because that section is a requirement of a CRCF seeking to obtain an initial license from the Department. At the time of this violation, Peachtree had already obtained a license from the Department. Accordingly, the citation is not proper in this case.
30. On June 22, 2006, the facility was cited for not having documentation of a SLED background check for four of five staff records reviewed. Additionally, the facility was cited for failure to maintain documentation of an FBI check for one staff member hired April 17, 2006, who had just moved to South Carolina in July of 2005. Again, although S.C. Code Ann. §§ 44-7-2910(A)(1), (B)(1)(d) and 44-7-2920 (Supp. 2006) require that an employer providing direct caregiving, including a CRCF, must run a criminal background check conducted by SLED prior to employing any direct caregiver, and Section 44-7-2910(C)(2), -2920 (Supp. 2006) requires that an employee who has not resided in the State for the twelve months preceding employment must have a federal criminal record check from the FBI, Peachtree was not cited for a violation of those statutes, but merely for a violation of Section 501(B) of Regulation 61-84. Further, there was no evidence presented that Peachtree hired any individuals who had a prior conviction or pled no contest for child or adult abuse, neglect, or mistreatment. Therefore, I find no violation of Section 501(B) on June 22, 2006.
31. Section 504(A)(1) requires that all staff members receive training in basic first aid, to include emergency procedures as well as procedures to manage/care for minor accidents or injuries, prior to resident contact and at least annually thereafter. 25A S.C. Code Ann. Regs. 61-84 § 504(A)(1) (Supp. 2006). On June 22, 2006, the facility was cited because two of five staff records reviewed lacked documentation of first aid training. Peachtree provided evidence at the hearing showing that the two individuals in question with regard to the June 22, 2006 violation did have such training, though the evidence of their training was not available at the facility at the time of the Department’s inspection. Therefore, I conclude that there was no violation of Section 504(A)(1) by Peachtree on June 22, 2006.
32. Section 504(A)(3) requires that all staff members receive training in management/care of persons with contagious and/or communicable diseases prior to resident contact and at least annually thereafter. 25A S.C. Code Ann. Regs. 61-84 § 504(A)(3) (Supp. 2006). On June 22, 2006 the facility was cited because two of five staff records reviewed lacked documentation of contagious/communicable disease training. Peachtree produced evidence showing that those two individuals had received the training in contagious/communicable diseases; however, that training had been conducted at another facility, and the documentation of the training was not available at Peachtree at the time of the Department’s inspection. Furthermore, Peachtree acknowledged that the training had not been updated as required by the regulation for one employee. Accordingly, I conclude that Peachtree violated Section 504(A)(3) with regard to one employee who had not received training within the last year, and that a monetary penalty of $400 should be imposed for Peachtree’s first violation of Section 504(A)(3), a Class I violation.
33. On June 22, 2006 Peachtree was cited again with a violation of Section 504(A)(4) because four of five staff records reviewed lacked documentation of medication management training. With regard to this citation, Peachtree produced evidence that had not been available at the time of the Department’s inspection to show that three of the four individuals had received medication management training before the date of the citation. However, one of the individuals did not have training at the time of the violation, but has since received training. Therefore, Peachtree violated Section 504(A)(4) by failing to have one employee trained in medication management prior to the date of the violation.
Peachtree was also cited for a violation of Section 504(A)(4) on May 31, 2006. However, I concluded that no violation of that section occurred on May 31, 2006. Therefore, I find that this is Peachtree’s first violation of Section 504(A)(4) and impose a penalty in the amount of $125.00.
34. On June 22, 2006, Peachtree was again cited for a violation of Section 504(A)(6) for failing to have documentation available for review to indicate that a staff member had been trained in the use of restraints. Peachtree produced evidence at the hearing that was not available on the dates of the Department’s inspections, showing that it did have employees trained in restraints. This training was completed on January 7, 2006. Accordingly, I find no violation of Section 504(A)(6) by Peachtree on June 22, 2006.
35. On June 22, 2006, the facility was also again cited for a violation of Section 504(A)(7) because there was no training in OSHA standards/bloodborne pathogens documented for four of five staff records reviewed. Peachtree submitted evidence at the hearing to show that two of the four staff members from the June 22, 2006 violation had received the appropriate training prior to the violation date and that the two other staff members received OSHA training after the date of the violation. Therefore, I conclude that Peachtree violated Section 504(A)(7) on June 22, 2006 by failing to have two employees trained in OSHA standards/bloodborne pathogens.
Peachtree was also cited for a violation of Section 504(A)(7) on May 31, 2006. However, I concluded that no violation of that section occurred on May 31, 2006. Therefore, I find that this is Peachtree’s first violation of Section 504(A)(7) and impose a penalty in the amount of $300.00.
36. Section 504(A)(10) requires that all staff members receive training in fire response within 24 hours of their first day on the job in the facility. 25A S.C. Code Ann. Regs. 61-84 § 504(A)(10) (Supp. 2006). Peachtree was cited for a violation of this section on June 22, 2006, because there was no documentation for two of five staff records reviewed to indicate that fire response training had been conducted. Peachtree produced evidence at the hearing to show that its employees had received fire response training at another facility. However, that training was not specific to Peachtree. It later provided additional fire response training specific to Peachtree to those two individuals, but that training was not documented. Based upon the evidence presented, I conclude that Peachtree violated Section 504(A)(10) on June 22, 2006. For Peachtree’s first violation of Section 504(A)(10), a Class I violation, a monetary penalty of $500.00 is imposed.
37. On June 22, 2006, the facility was cited again for not having documentation available for review to indicate that a designated staff person had received recreational training. At the hearing, Peachtree produced documentation not available at the time of the Department’s inspections to show that an individual employed by it had received initial training in recreational activity. However, the Court was unable to determine whether the employee had received the training prior to resident contact and at least on an annual basis. Therefore, I find that Peachtree violated Section 504(B) on June 22, 2006. Further, I find that a monetary penalty in the amount of $1,000.00 is appropriate for Peachtree’s second violation of Section 504(B), a Class I violation.
38. Section 505(A) requires that all staff members and direct care volunteers who have contact with residents have a health assessment within twelve months prior to initial resident contact. 25A S.C. Code Ann. Regs. 61-84 § 505(A) (Supp. 2006). On June 22, 2006, the facility was cited because an employee hired on April 17, 2006 lacked documentation of a pre-employment health assessment. At the hearing, Peachtree produced evidence to show that the employee in question had received a physical exam prior to his hire date at Peachtree; however, it was not available to the Department at its facility at the time of the June 22, 2006 inspection. Because a pre-employment health assessment was completed on the employee prior to his hire date at Peachtree, I find no violation of Section 505(A).
39. Section 702 requires a complete written assessment of the resident by a direct care staff member, to be conducted within a time period determined by the facility, but no later than 72 hours after admission. 25A S.C. Code Ann. Regs. 61-84 § 702 (Supp. 2006). On June 22, 2006, one of four resident records reviewed lacked documentation of a written assessment within 72 hours, and the facility was again cited. Peachtree admitted that it did not document a 72 hour assessment for the individual resident at issue with regard to the June 22, 2006 violation. Accordingly, I find that Peachtree violated Section 702 on June 22, 2006. Because Peachtree was also found to violate Section 702 on May 31, 2006, a monetary penalty in the amount of $500.00 is imposed for Peachtree’s second violation of Section 702, a Class II violation.
40. Section 703 requires that each resident have an individual care plan developed within seven days of admission to address the needs of the resident, including the activities of daily living for which the resident requires assistance, arrangements for visits by or to physicians, recreational activities suitable to the well-being of the resident, and dietary needs. 25A S.C. Code Ann. Regs. 61-84 § 703 (Supp. 2006). On June 22, 2006, the facility was again cited, because one of four resident records reviewed lacked documentation of an individual care plan. Peachtree provided evidence at the hearing that a care plan was done for the individual at issue but it was not done until after the June 22, 2006 inspection. Peachtree was also cited for a violation of Section 703 on May 31, 2006. However, I concluded that no violation of that section occurred on May 31, 2006. Therefore, I find that this is Peachtree’s first violation of Section 703, a Class II violation, and impose a penalty in the amount of $300.00.
41. Section 703(A) requires that the resident and/or the responsible party for the resident sign the individual care plan to evidence that the resident and/or responsible party participated in the development of the care plan. 25A S.C. Code Ann. Regs. 61-84 § 703(A) (Supp. 2006). On June 22, 2006, the facility was again cited for violating this section, as a care plan for a resident admitted on April 17, 2006 had not been signed by the resident or responsible party. Peachtree admitted that it did not obtain the signature of the resident at issue with respect to the June 22, 2006 violation until after the date of the violation because the resident in question was difficult to deal with. Therefore, I conclude that Peachtree violated Section 703(A). Peachtree also violated Section 703(A) on May 31, 2006. Therefore, this is Peachtree’s second violation of Section 703(A), a Class II violation, and a monetary penalty in the amount of $500.00 is appropriate.
42. Section 1101(A) states that a physical examination shall be completed for residents within 30 days prior to admission and at least annually thereafter. The physical examination shall address the appropriateness of placement of the resident in a CRCF. 25A S.C. Code Ann. Regs. 61-84 § 1101(A) (Supp. 2006). On June 22, 2006, the facility was cited for a violation of this section. In one of four resident records reviewed, the question “[d]oes this person require the daily care of a registered or licensed nurse?” was answered “yes,” indicating that the resident was not suited for placement in a CRCF. However, evidence was presented that the response was a mistake, and that this individual did not need the daily care of a registered or licensed nurse. Accordingly, I conclude that no violation of Section 1101(A) occurred on June 22, 2006.
43. Section 1101(B) requires that the admission physical examination include a two-step tuberculin skin test (PPD), as described in Section 1702. 25A S.C. Code Ann. Regs. 61-84 § 1101(B) (Supp. 2006). On June 22, 2006, the facility was again cited for violation of this section, because two of four resident records reviewed lacked documentation of the second step of the two step PPD. Although Peachtree asserted that one resident at issue had a chest x-ray done prior to admission and that it considered the resident’s admission to be an emergency, there was no documentation of the admittance being an emergency. Further, one of the residents had a second-step TB test performed after the date of the last inspection. Accordingly, I conclude that Peachtree violated Section 1101(B) on June 22, 2006. Peachtree also violated Section 1101(B) on May 31, 2006. Therefore, this is Peachtree’s second violation of Section 1101(B), a Class I violation, and a monetary penalty in the amount of $1,000.00 is appropriate.
44. Section 1702(B)(1) requires that staff members and direct care volunteers have evidence of a two-step tuberculin skin test within three months prior to resident contact. 25A S.C. Code Ann. Regs. 61-84 § 1702(B)(1) (Supp. 2006). On June 22, 2006, the facility was cited for violating this section in two ways: (a) for three staff members, there was no documentation of the second step of the two step PPD available for review; and (b) there was no documentation of an annual PPD for a staff person available for review. Peachtree testified with regard to the June 22, 2006 violation that one of the employees at issue did have a second step of a TB test performed at another facility, and that it simply did not have documentation of that second step test. Peachtree also presented documentation not available to the Department during its July 22, 2006 inspection that a second employee did have a 2-step PPD test. However, Peachtree admitted that the third employee did not have a second step test. With regard to the annual PPD test, Peachtree testified that the employee at issue in the July 22, 2006 citation was due for his annual test. Therefore, I find that Peachtree violated Section 1702(B)(1) on June 22, 2006. As this is Peachtree’s second violation of Section 1702(B)(1), I find that a monetary penalty in the amount of $1200.00 should be imposed.
45. Section 2203(A) states that “[w]hen a fire alarm system is required, it shall be provided in accordance with provisions of National Fire Alarm Code (NFPA 72), the SBC, and the State Fire Marshal Regulations.” 25A S.C. Code Ann. Regs. 61-84 § 2203(A) (Supp. 2006).
On June 22, 2006, the facility was cited for violating this section. On that date, there was no telephone service to the facility, rendering the alarm system inoperable. Any emergency had to be reported by personal cell phones. Peachtree admits that the alarm system did not work for two days due to the lack of telephone services. Peachtree testified that had a fire occurred, it would have evacuated the facility and called the fire department; the phone call would have had to have been done manually, rather than automatically, however. Therefore, I conclude that Peachtree violated Section 2203(A) on June 22, 2006 and that a monetary penalty in the amount of $500.00 should be imposed for Peachtree’s first violation of Section 2203(A), a Class I violation.
Other violations
46. When the Department finds non-compliance with the licensing standards, it requires that the facility submit an acceptable written plan of correction to the Department by the date specified on the inspector’s report that is left with the facility. 25A S.C. Code Ann. Regs. 61-84 § 202(D) (Supp. 2006).
On July 5, 2006, Peachtree was cited for a violation of Section 202(D) because the Department had not received a written response to the report of visit dated May 31, 2006. The response was due to the Department by June 15, 2006. On July 5, 2006, the Department notified Peachtree in writing that it had not received its response to the May 31, 2006 inspection. In addition, the notification stated, “Failure to provide a written response to these reports within the next ten (10) days may result in an enforcement action.” Because Peachtree submitted its response to the Department on July 12, 2006, within less than ten days of July 5, 2006, I conclude that Peachtree complied with the Department’s directive and that there was no violation of Section 202(D).
On July 17, 2006 the facility was cited for its failure to return the June 21 and June 22, 2006 reports of visit and responses to the Department within 15 days of the visit. The date specified on those reports of visit to return an acceptable plan of correction was July 7, 2006. Peachtree mailed its responses to the reports on July 7, 2006 and the Department received the responses on July 14, 2006. However, the Department did not retain the postmarked envelope verifying the date that the responses were mailed in to the Department.
The Department asserts that the response to the report of visit must be actually received by the Department within fifteen days of the visit, not simply deposited in the mail by that date. However, Section 202(D) only requires that the response be returned to the Department within fifteen days and does not specify whether it must be mailed or received by the Department within that time frame. Further, the report left with Peachtree states, “Within 15 days (7/7/06), complete this report, sign the administrators certification at the bottom of the page, retain the third copies for your records and mail the original copies of this report, including this page to [the Department].” Therefore, I conclude that Peachtree complied with the Department’s directive and Section 202(D) by mailing the reports to the Department on July 7, 2006. Accordingly, I find no violation of Section 202(D).
ORDER
Based upon the foregoing,
IT IS HEREBY ORDERED that Peachtree shall submit to the Department no later than sixty (60) days from the date of this Order a monetary penalty in the amount of $6,325.00 for violations of Regulation 61-84.
AND IT IS SO ORDERED.
______________________________
Marvin F. Kittrell
Chief Administrative Law Judge |
