ORDERS:
CONSENT AGREEMENT AND ORDER
The parties agree to the following:
1. Kenneth D. Nichols and the now-deceased Omah D. Franks are the licensees of record for Starlite Residential Home #2 (Facility), a community residential care facility licensed by the South Carolina Department of Health and Environmental Control (Department) pursuant to S.C. Code Ann. § 44-7-110 et seq. (2002). The facility, located in Anderson, South Carolina, has a licensed capacity of 13 beds.
2. After the Department received confirmation from Kenneth D. Nichols by letter dated January 17, 2007 that Omah D. Franks had passed away October 29, 2001, the Department wrote the facility a letter dated January 19, 2007 citing the facility for a violation of Section 103 (D) and 103 (J) of 25A S.C. Code Regs. 61-84, Standards for Licensing Community Residential Care Facilities (Supp. 2006). The facility, through its attorney, responded by letter dated January 29, 2007, disputing the violations. By letter dated February 9, 2007, the Department, through its attorney, responded that the violations stand and required a reply within ten days of the date of her February 9, 2007 letter. When the facility failed to reply to the Department’s letter of February 9, 2007, the Department cited the facility for a violation of 202 (D) of R. 61-84 by letter dated March 12, 2007.
3. The Department, by this same letter dated March 12, 2007, also initiated action to impose a $4,500 monetary penalty against the facility. This letter also advised that this decision would become the final agency decision unless the facility filed a Request for Final Review with the Department’s Clerk of the Board within fifteen days from the mailing of the enforcement letter.
4. The facility filed a request for a Final Review Conference with the Clerk of the Board on March 27, 2007.
5. By memo dated April 25, 2007, the Clerk of the Department’s Board advised that the Department’s Board had elected not to conduct a Final Review Conference regarding this matter.
6. The facility then, by letter dated May 17, 2007, filed a request for a contested case hearing.
7. An Administrative Law Court hearing was held on the merits on July 25, 2007. By Order dated August 13, 2007, Administrative Law Judge ordered the following:
A. Starlite Residential Home #2 must submit payment of a $4,500 monetary penalty to the Department for violations of Regulation 61-84 no later than thirty (30) days from the date of the Order;
B. Starlite Residential Home #2 must develop and submit to the Department’s Division of Health Licensing a plan for having the facility come into compliance with current building and fire and life safety codes, approved by the Department’s Division of Health Facilities Construction, no later than thirty (30) days from the date of the Order;
C. Starlite Residential Home #2 must come into full compliance with its approved plan no later than six (6) months from the date of the Order; and
D. Starlite Residential Home #2 must submit monthly progress reports to the Department for the next six (6) months keeping the Department apprised of the status of the work being performed on the facility to bring it into compliance with current building and fire and life safety codes.
8. Prior to the time period for complying with the requirements of this Order had expired, the facility contacted the Department and explained that instead of it meeting these requirements, it wished to close the facility.
THEREFORE, IT IS AGREED
1. In consideration of the licensee’s decision to voluntary close this facility, the Department agrees to suspend $4,050 of the $4,500 monetary penalty. Therefore, the facility agrees to submit payment of a $450 monetary penalty to the Department within thirty days of execution of this Order by certified check or money order made payable to the S.C. Department of Health and Environmental Control. Payment of these monies shall be sent to the following address:
Attention: Earl Bleakley
Division of Health Licensing
S.C. Department of Health and Environmental Control
2600 Bull Street
Columbia, S.C. 29201
2. In regards to the facility’s planned closure as a licensed community residential care facility, the facility agrees to the following:
A. To provide residents, their sponsors, or family members with a thirty-day written notice of the closure of this facility;
B. To assist residents, their sponsors, or family members with resident transfer to other appropriate facilities;
C. To provide residents with a refund, as appropriate. Also, provide the Department with the date of refund;
D. To provide residents with their personal possessions, including monthly spending monies;
E. To provide residents, as appropriate, with their medications;
F. To notify the Department in writing of the location where each resident was transferred, and their date of transfer;
G. To return the last license issued by the Department for Starlite Residential Home #2 to operate as a community residential care facility;
H. To notify the Department in writing of the date of closure; and
I. To notify the Department in writing of the storage location for resident records for the six years following the closure of the facility.
3. The facility understands that a licensed community residential care facility is a facility which offers room and board and which, unlike a boarding house, provides/coordinates a degree of personal care for a period of time in excess of 24 consecutive hours for two or more persons, 18 years old or older, not related to the licensee within the third degree of consanguinity. It is designed to accommodate residents’ changing needs and preferences, maximize residents’ dignity, autonomy, privacy, independence, and safety, and encourage family and community involvement. Included in this definition is any facility (other than a hospital) which offers or represents to the public that it offers a beneficial or protected environment specifically for individuals who have mental illness or disabilities. These facilities may be referred to as “assisted living” provided they meet the above definition of community residential care facility. In as much that the facility understands the definition of a community residential care facility, it agrees that it will not operate a community residential care facility at this location or any other location within the State of South Carolina without first obtaining a license from the Department.
4. If the facility fails to meet the requirements for closure as specified in this Consent Order, or should the facility operate a community residential care facility without first obtaining a license from the Department, the facility understands and agrees that the Department may call-in all or a portion of the suspended portion of the assessed penalty and/or may assess an additional penalty in accordance with S.C. Code Ann. § 44-7-320.
5. This Consent Agreement and Order constitutes the entire agreement between the parties with respect to the resolution and settlement of the matters set forth herein. The parties are not relying upon any representations, promises, understandings, or agreements except as expressly set forth within this Consent Agreement and Order.
6. Kenneth D. Nichols understands that this Consent Agreement and Order governs only the liability for civil sanctions arising from the matters set forth herein and does not affect or purport to affect any criminal liability or liability to any entity not a party to this order.
7. Both parties to this action consent to the withdrawal of the August 13, 2007 Final Order and Decision issued by the Administrative Law Court in this matter and consent to the substitution of this Consent Agreement and Order therefor.
AND IT IS SO ORDERED.
September 12, 2007
The Honorable John D. McLeod Date
Administrative Law Judge |
