SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter is before the Administrative Law Court on a Request for Emergency Hearing filed by the South Carolina Department of Health and Environmental Control (“Department”) on April 1, 2008. Pursuant to S.C. Code Ann. § 44-7-320(A)(3), on March 28, 2008, the Petitioner suspended the Respondent’s license to operate a community residential care facility based on its determination that conditions or practices existed in the facility that posed an immediate threat to the health, safety, and welfare of the residents. Section 44-7-320(A)(3) requires that “[w]ithin five days of the suspension a preliminary hearing must be held to determine if the immediate threatening conditions or practices continue to exist.”

Also currently pending before this court is a related enforcement action to revoke the license of Peachtree Manor Residential Care (“Peachtree”). See S.C. Dep’t of Health & Envtl. Control v. Peachtree Manor Residential Care, 07-07-0098-CC (S.C. Admin. Law Ct.). On April 1, 2008, the court announced its ruling to revoke Peachtree’s license. The letter ruling further informed the parties that a Final Order and Decision pursuant to S.C. Code Ann. § 1-23-350 (Supp. 2007) and Administrative Law Court Rule 29(C) with detailed findings of fact and conclusions of law would follow. Consequently, the issue before the court in the instant matter is whether “the conditions or


practices [] in [this] facility that pose[d] an immediate threat to the health, safety, and welfare of the residents” still exist such that the emergency suspension should remain in place pending the issuance of this court’s Final Order and Decision in Docket No. 07-ALJ-07-0098-CC.

After notice to the parties, the court held the emergency hearing on April 2, 2008. Both parties appeared at the hearing. Evidence was introduced and testimony presented. After carefully weighing all of the evidence, the court finds that the emergency suspension of Peachtree’s license should be upheld.

FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the emergency hearing and closely passed upon their credibility, and taking into consideration the burden of persuasion by the parties, the court makes the following Findings of Fact by a preponderance of the evidence.

Peachtree is a community residential care facility located in Winnsboro, South Carolina that provides assisted living services to residents. David A. Donnelly, Jr. is the sole owner of Peachtree and Ms. Maryam Shareef is the licensed administrator. Peachtree has experienced significant financial difficulties.

Peachtree previously maintained a contract with Palmetto Long Term Care Pharmacy (“Palmetto”) to provide prescription drugs and pharmaceutical consulting services for Peachtree. Palmetto generally provided prescription drugs for Peachtree residents pursuant to the “OPUS” system, in which individual doses of medications are provided in color-coded cassettes, separated into compartments for daily administration according to the time of day for the required dose.

On February 29, 2008, Palmetto informed Peachtree in writing that it was terminating the contract effective April 1, 2008 due to Peachtree’s failure to pay its entire balance owed. The letter stated that partial payment was not acceptable, and that full payment was required to avoid termination on that date. As the termination date drew closer, Palmetto attempted to contact Donnelly several times by telephone. Donnelly contacted Palmetto on Thursday, March 27, 2008, and offered partial payment on the contract. Palmetto reiterated its position that partial payment was insufficient and informed Peachtree that it would not provide any further prescription medications to Peachtree. The last set of cassettes provided by Palmetto to Peachtree included doses of certain residents’ medications through the evening of Thursday, March 27, 2008.

On the morning of March 28, 2008, Palmetto contacted the Department and informed it that Palmetto was no longer providing crucial medications to Peachtree and therefore believed that necessary medications were not available for administration to certain Peachtree residents. The Department sent inspectors to Peachtree that afternoon. The following medications, generally used for the purposes noted in the table below, that had been prescribed for ten of twelve Peachtree residents whose records were reviewed by Department inspectors were not made available for inspection on that date:^[1]

Additionally, the inspectors found that the food supply on the premises was insufficient for the number of residents. The Department cited Peachtree for violations of the licensing regulations. In addition, it determined that an “imminent threat to the health, safety, and welfare of the residents existed” and immediately suspended Peachtree’s license and evacuated the residents. (Pet’r’s Ex. 1).

Peachtree was not able to provide all of the prescribed medications for residents for the noon and 4:00 p.m. medication administrations on Friday, March 28. During the morning and early afternoon of March 28, the management of Peachtree attempted to secure from other pharmacies the necessary medications for administration to residents that evening and over the upcoming weekend. Additionally, it attempted to initiate a contract with a pharmacy to provide pharmaceutical services in place of Palmetto on a going-forward basis. Despite these efforts, Peachtree was not able to procure all of the necessary drugs for the upcoming Saturday, Sunday, and Monday (March 29-31, 2008).

On April 1, 2008, this court announced its ruling in a related action, Docket No. 07-ALJ-07-0098-CC, to revoke Peachtree’s license based upon previous regulatory violations. The revocation will become effective upon the court’s issuance of a written Final Order and Decision with findings of fact and conclusions of law as required by state law.

CONCLUSIONS OF LAW

Based upon the findings of fact stated above, the court makes the following conclusions as a matter of law.

1. Jurisdiction and Review

Jurisdiction over this case is vested with the South Carolina Administrative Law Court pursuant to S.C. Code Ann. § 1-23-600(B) (Supp. 2006) and S.C. Code Ann. § 1-23-370(c) (2005). The weight and credibility assigned to evidence presented at the hearing of a matter is within the province of the trier of fact. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992). Furthermore, a trial judge who observes a witness is in the best position to judge the witness’s demeanor and veracity and to evaluate the credibility of his testimony. See, e.g., Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996); Wallace v. Milliken & Co., 300 S.C. 553, 556, 389 S.E.2d 448, 450 (Ct. App. 1990). In presiding over this contested case, the court serves as the finder of fact and makes a de novo determination regarding the matters at issue. See S.C. Code Ann. § 1-23-600(B) (Supp. 2006); Marlboro Park Hosp. v. S.C. Dep’t of Health & Envtl. Control, 358 S.C. 573, 577-79, 595 S.E.2d 851, 853-54 (Ct. App. 2004); Brown v. S.C. Dep’t of Health & Envtl. Control, 348 S.C. 507, 512, 560 S.E.2d 410, 413 (2002).

2. Emergency Suspension

Section 44-7-320(A)(3) provides:

If in the department’s judgment conditions or practices exist in a facility that pose an immediate threat to the health, safety, and welfare of the residents, the department immediately may suspend the facility’s license and shall contact the appropriate agencies for placement of the residents. Within five days of the suspension a preliminary hearing must be held to determine if the immediate threatening conditions or practices continue to exist. If they do not, the license must be immediately reinstated. Whether the license is reinstated or suspension remains due to the immediate threatening conditions or practices, the department may proceed with the process for permanent revocation pursuant to this section.

(emphasis added). Additionally, S.C. Code Ann. § 1-23-370(c) (2005) provides that an agency may summarily suspend a license pending proceedings for revocation when it “finds that public health, safety or welfare imperatively requires emergency action.” Such “proceedings shall be promptly instituted and determined.” Id.

3. Conclusions

The Department established by a preponderance of the evidence that the statutory standards set forth in § 44-7-320(A)(3) as well as in § 1-23-370(c) are both met here. The evidence presented by the parties shows that, despite Peachtree’s laudable efforts to procure the medications and food that was indisputably lacking on March 28, 2008, Peachtree is simply not in a position at this time to reliably maintain a supply of the required medications. The Department established that many of these medications are crucial to the residents’ and the public’s health and well-being, as severe effects such as heart attack, stroke, psychotic episodes, and death may result if the medications are not properly and timely administered. Peachtree was not able to maintain its contract with Palmetto and failed to make advance plans for a smooth transition to another pharmaceutical provider despite having had ample notice of termination. Although Peachtree ultimately arranged for another pharmacy to provide medications beginning April 1, 2008, the evidence presented raises grave doubt as to Peachtree’s ability to maintain this contract. Particularly in light of the court’s stated decision to revoke Peachtree’s license based upon the evidence presented in Docket No. 07-ALJ-07-0098-CC, the court finds that the health and safety of the residents at issue imperatively requires that they be housed elsewhere pending the court’s final written order in the revocation action. Accordingly, the emergency suspension is upheld.

IT IS SO ORDERED.

______________________________________

PAIGE J. GOSSETT

Administrative Law Judge

April 7, 2008

Columbia, South Carolina