South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
SCDHEC vs. Peachtree Manor Residential Care

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioners:
South Carolina Department of Health and Environmental Control

Respondents:
Peachtree Manor Residential Care
 
DOCKET NUMBER:
07-ALJ-07-0098-CC

APPEARANCES:
For the Petitioner:
Ashley C. Biggers, Esquire

For the Respondent:
James H. Harrison, Esquire
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter is before the Administrative Law Court (“ALC”) for a final order and decision following a contested case hearing pursuant to S.C. Code Ann. § 44-1-60 (Supp. 2007) and S.C. Code Ann. § 1-23-600(B) (Supp. 2007). Respondent Peachtree Manor Residential Care (“Peachtree”) challenges the decision of the South Carolina Department of Health and Environmental Control (“Department”) to revoke Peachtree’s license for alleged violations of 25A S.C. Code Ann. Regs. 61-84, Standards for Licensing Community Residential Care Facilities (Supp. 2007).[1] The Department cited Peachtree for approximately 100 alleged violations and claims that many of these present 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. See 25A S.C. Code Ann. Regs. 61-84 § 302 (Supp. 2007). Accordingly, the Department asserts that revocation of Peachtree’s license is appropriate. Peachtree argues that the penalty of revocation is excessive and that the evidence does not support a majority of the alleged violations.

After notice to the parties, the court held a hearing on August 15–17, 2007. Both parties appeared at the hearing. Evidence was introduced and testimony presented. On November 5, 2007, the court received additional testimony regarding evidentiary objections raised by the Department. After carefully weighing all of the evidence, the court finds that Peachtree’s license should be revoked.

GENERAL FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the 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 (“CRCF”) located in Winnsboro, South Carolina. Peachtree was first licensed by the Department to operate as a CRCF in January of 2006. It provides assisted living services to residents.

David A. Donnelly, Jr. (“Donnelly”) is the sole owner of Peachtree and Maryam Shareef is the licensed administrator. Donnelly also jointly owns Myrtlecrest Residential Care Home, a CRCF located in Richland County, South Carolina, with his wife Verna M. Donnelly.

During October and November 2006, the Department conducted multiple complaint investigations and a general inspection of the premises. On October 30, 2006, Department staff visited Peachtree and conducted a complaint investigation. Due to the receipt of numerous additional complaints, Department staff returned to Peachtree on November 14, 2006 to conduct a general inspection, a food and sanitation inspection, and multiple complaint investigations. Department staff again visited Peachtree on November 22, 2006, to conduct an exit interview regarding the November 14, 2006 inspections. It also investigated two additional complaints on that date. As a result of the investigations and the inspections, the Department cited Peachtree for numerous alleged violations of Regulation 61-84. Following the exit interview on November 22, 2006, the Department allotted Peachtree fifteen days to respond to the alleged violations. Peachtree obtained a ten-day extension of time.

The Department ultimately decided to revoke Peachtree’s license to operate as a CRCF based upon the history of citations at Peachtree; the seriousness and scope of the citations; the negative outcome or possible negative outcomes to residents as a result of the citations; the facility’s repeated failures to correct cited violations; its demonstrated inability to come into compliance with the regulation; and concern for the health, safety, and welfare of the residents. (Tr. 429-42) (Testimony of Dennis Gibbs, Dir. of Health Licensing). By letter dated December 5, 2006, the Department notified Peachtree of its decision to revoke Peachtree’s license. Attached to the letter was a summary detailing the basis for each individual citation. By letter dated December 20, 2006, Peachtree requested a Final Review of the Department’s decision by the Board of the Department. S.C. Code Ann. § 44-1-60(F) (Supp. 2007). After the Board declined review, Peachtree filed a Notice of Request for Contested Case Hearing before this court.

Previous Violations

On July 21, 2006, the Department initiated an enforcement action against Peachtree, issuing a monetary penalty against the facility for violations of Regulation 61-84. Peachtree appealed that decision to the ALC. Following a contested case hearing, the court issued a Final Order and Decision filed September 14, 2007. S.C. Dep’t of Health & Envtl. Control v. Peachtree Manor Residential Care, LLC, 06-ALJ-07-0765-CC (S.C. Admin. Law Ct., Sept. 14, 2007) (Kittrell, C.J.). The court found that Peachtree violated the following sections of Regulation 61-84 on the dates noted below:

Violation

Description

Date

Section 504(A)(3)

Class I

Requires that staff members receive training in management and care of persons with contagious and/or communicable diseases prior to resident contact

June 22, 2006

Section 504(A)(4)

Class I

Requires that staff members receive training in medication management prior to resident contact

May 31, 2006

June 22, 2006

Section 504(A)(7)

Class I

Requires that staff members receive training in OSHA standards regarding bloodborne pathogens prior to resident contact

June 22, 2006

Section 504(A)(10)

Class I

Requires that staff members receive fire response training within 24 hours of their first day of employment

June 22, 2006

Section 504(B)

Class I

Requires that staff members responsible for providing/coordinating recreational activities for the residents receive the appropriate training prior to contact with residents

May 31, 2006

June 22, 2006

Section 702

Class II

Requires a complete written assessment of the resident by a direct care staff member be conducted no later than 72 hours after admission

May 31, 2006

June 22, 2006


Section 703(A)

Class II

Requires the facility to develop an individual care plan for each resident, with participation by, as evidenced by their signatures, the resident, administrator (or designee), and/or the sponsor or responsible party when appropriate, within seven days of admission

May 31, 2006

June 22, 2006

Section 1101(A)

Class I

Requires a physical examination to be completed for residents within 30 days prior to admission

June 22, 2006

Section 1101(B)

Class I

Requires that the admission physical examination include a two-step tuberculin skin test

May 31, 2006

June 22, 2006

Section 1702(B)(1)

Class I

Requires that staff members and direct care volunteers have evidence of a two-step tuberculin skin test within three months prior to resident contact

May 31, 2006

June 22, 2006

Section 2203(A)

Class I

Requires fire alarm systems to be provided in accordance with National Fire Alarm Code, the Standard Building Code, and the State Fire Marshal Regulations

June 22, 2006

As a result of these violations, the court ordered Peachtree to pay a monetary penalty of $6,325.00.

GENERAL CONCLUSIONS 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. 2007) and S.C. Code Ann. § 44-1-60 (Supp. 2007). 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. 2007); 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. Burden of Proof

As stated above, “[i]n matters involving the assessment of civil penalties, the imposition of sanctions, or the enforcement of administrative orders, the agency shall have the burden of proof.” In the above-captioned matter, the Department seeks to sanction Peachtree by revoking its license and therefore the ultimate burden of proof is on the Department. See Stephen P. Bates, The Contested Case Before the ALJD, in South Carolina Administrative Practice & Procedure 161, 200-01 (Randolph R. Lowell & Stephen P. Bates eds., 2004) (discussing generally the burden of proof in administrative enforcement cases); Alex Sanders & John S. Nichols, Trial Handbook for South Carolina Lawyers § 9.3 at 390-92 (4th ed. 2007) (discussing the burden of proof in civil actions).

“The term ‘burden of proof’ has been used to describe two related but distinct concepts: the burden of production and the burden of persuasion.” 29 Am. Jur. Evidence § 155 (1994); see also Dir., Office of Workers’ Comp. Programs, Dep’t of Labor v. Greenwich Collieries, 512 U.S. 267, 272 (1994). The burden of persuasion refers to the duty to prove the truth of an issue by the quantum of evidence the law demands in the case in which the issue arises.[2] Sanders & Nichols, supra, § 9.1 at 387. The burden of production, or burden of going forward with the evidence, refers to the obligation of a party to proceed with evidence, at any stage of the trial, to make or meet a prima facie case. Id. § 9.1 at 387. Prima facie evidence is evidence sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted. LaCount v. Gen. Asbestos & Rubber Co., 184 S.C. 232, 240, 192 S.E. 262, 266 (1937). “The words [prima facie evidence] import that the evidence produces for the time being a certain result; but that result may be repelled.” Mack v. Branch No. 12, Post Exch., Fort Jackson, 207 S.C. 258, 272, 35 S.E.2d 838, 844 (1945).

As a trial progresses, the burden of production may shift from one side to the other as the respective parties present evidence. Sanders & Nichols, supra, § 9.1 at 387. The burden of persuasion, however, does not generally shift. Id. at 387. South Carolina courts have recognized that once a party establishes a prima facie case, the burden of production shifts to the opposing party. See Browning v. Browning, 366 S.C. 255, 262, 621 S.E.2d 389, 392 (Ct. App. 2005); Daisy Outdoor Adver. Co., Inc. v. S.C. Dep’t of Transp., 352 S.C. 113, 118, 572 S.E.2d 462, 465 (Ct. App. 2002);[3] Hadfield v. Gilchrist, 343 S.C. 88, 100, 538 S.E.2d 268, 274 (Ct. App. 2000).

3. CRCFs Generally

The South Carolina Department of Health and Environmental Control is responsible for 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). Pursuant to S.C. Code Ann. § 44-7-150(3) (2002), the Department promulgated 25A S.C. Code Ann. Regs. 61-84, Standards for Licensing Community Residential Care Facilities (Supp. 2007). Contained within Regulation 61-84 are the guidelines and provisions for the operation and administration of CRCFs.

All CRCFs licensed by the Department are subject to inspection and investigation at any time without prior notice. 25A S.C. Code Ann. Regs. 61-84 § 202(B) (Supp. 2007). Further, the 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.” Id. § 202(C). 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, initiate an enforcement action against a licensee resulting in the imposition of a monetary penalty upon the facility, or denial, suspension, or revocation of the facility’s license. Id. § 301. In determining whether to take an 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.

Id. § 302(E).


The regulations provide for three classes of violations. Id. § 302. Section 302 provides:

A.     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.

B.     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.

C.     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.

Id. (emphasis added).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

REGARDING SPECIFIC ALLEGED VIOLATIONS

1. General Evidentiary Matters

As an initial matter, the citation numbers referred to in this order were assigned immediately before the hearing at the court’s request solely to facilitate testimony and discussion. The citations corresponding to these numbers can be found on the summary sheet prepared by the Department, which was introduced into evidence as Petitioner’s Exhibit 1. Further, for the purposes of this contested case hearing, all of Peachtree’s employees and residents were assigned a letter to protect their privacy as required by S.C. Code Ann. § 44-7-315 (Supp. 2007). During the hearing and in all of the exhibits submitted to the court, the employees and residents were solely referred to by their assigned letter. Court Exhibit 1 consists of the master key that identifies the individual that corresponds to each letter. This exhibit was placed into evidence under seal.

During the contested case hearing, the Department objected to the admission of certain evidence submitted by Peachtree because the documents were not originals. In accordance with S.C. Code Ann. § 1-23-330(2) (Supp. 2007), the court conditionally admitted the documentary evidence into the record subject to the Department’s opportunity to compare the originals to the copies. By letter dated September 11, 2007, the Department informed the court that based on its comparison it objected to numerous documents. The Department’s objections fell into two categories. The Department objected to the first category of documents on the basis that the original was unavailable for comparison to the duplicate and to the second category of documents on the basis that discrepancies exist between the original provided to the Department and the duplicate offered at the hearing. In an order dated November 15, 2007, the court ruled that all of the documentary evidence submitted by Peachtree was admissible and that the Department’s objections went to the weight and probative value of the documentary evidence rather than to the admissibility.

For many of the alleged violations discussed below, Peachtree submitted to the court documentation to rebut the Department’s testimony regarding each citation. However, with regard to many of the documents submitted, the originals that Peachtree offered for comparison contain notable discrepancies. For example, the copy of the in-service training record for Employee FF, submitted as Respondent’s Exhibit 16, contains noticeable differences from the original that was submitted later. The purported original reflects that Employee FF viewed a forty-five minute video on Medication Administration and Management, while the copy states that the video was thirty minutes. Furthermore, for several of the citations, Peachtree submitted multiple copies of the same alleged document as different exhibit numbers and there were discrepancies among them as well. For example, Respondent’s Exhibit 49 is one of four copies of Resident C’s care plan submitted by Peachtree at the hearing of this matter. Respondent’s Exhibits 46, 55, and 57 also purport to be copies of Resident C’s care plan. However, there are discrepancies among the four copies, as well as the original provided by Peachtree following the hearing. Neither the purported original nor the document marked Respondent’s Exhibit 46 lists any recreational or social activities for the resident. However, Exhibits 49, 55, and 57 have information filled in for recreational and social activities in the very place that is blank on the original and on Exhibit 46. Exhibits 49 and 57 are also marked as being an “updated version” of Resident C’s care plan; however Exhibit 55, which does contain a description of recreational and social activities, is not marked as an “updated version.”

Furthermore, Peachtree was unable to locate the originals for numerous other documents it offered into evidence. Peachtree explained that the originals were unavailable for various reasons, such as that the originals often accompanied the patients to their doctor or hospital visits and the patients did not return with them. As discussed above, once the Department established a prima facie case with regard to a particular alleged violation, the burden shifted to Peachtree to rebut it. Based on the discrepancies discussed above between the copies and the originals of other exhibits, the court finds that these copies, without more, are insufficient to credibly rebut the Department’s evidence where there was clear Department testimony to support the citation.

Moreover, it is notable that the Department provided Peachtree ample opportunity to produce these documents prior to its decision to seek revocation of Peachtree’s license. Following the exit interview, during which the Department met with Peachtree and explained each violation, Peachtree was given fifteen days to provide the Department with any documentation that was not provided during the inspection. Peachtree obtained an additional ten days to submit this information to the Department. Peachtree did not submit any additional information to the Department during that time. Shareef testified that many of the documents were unavailable during the inspection because they were in a box in the office and had yet to be filed. However, Peachtree had twenty-five days to present these documents to the Department and failed to do so. This also weighs against the reliability of the documentation provided at the hearing that was unavailable to the inspectors or the Department.

2. Citations from October 30, 2006; November 14, 2006; and November 22, 2006

As stated above, the Department staff visited Peachtree on October 30, 2006; November 14, 2006; and November 22, 2006 to conduct multiple complaint investigations and a general inspection of the premises. During these visits, the Department staff determined that Peachtree was in violation of numerous sections of Regulation 61-84. These citations fall roughly into the following categories: record keeping, health and safety, employee training, medication administration and management, care planning, food and nutrition, and housekeeping and maintenance. The court will address each of the alleged violations by section below in order of appearance on the summary sheet. (Pet’r’s Ex. 1).

Section 401(A)

Citation Nos. 1 and 2 (Record Keeping)

Findings: The Department cited Peachtree on November 14, 2006 for violating § 401(A) of Regulation 61-84. The Department found that Peachtree did not have, at the time of its inspection, an established, written time period for review of its policies and procedures as required by § 401(A). Further, it found that the facility’s policies were not reviewed as needed. The evidence showed that the three individuals designated with the authority to admit, discharge, and transfer residents no longer worked at the facility at that time. Peachtree admitted that it did not have a written time period for review of its policies, but contends that the designation of persons with authority to admit, discharge, and transfer residents was posted on the wall in the facility office on November 14, 2006.

Conclusion: Section 401(A) requires that the facility develop and implement policies and procedures addressing each of the sections in Regulation 61-84 regarding resident care, rights, and the operation of the facility, which must be accessible at all times. 25A S.C. Code Ann. Regs. 61-84 § 401(A) (Supp. 2007). It further requires that the policies and procedures address the provisions of any special care offered by the facility, as well as a time period for review of all policies and procedures. Id. Based on the findings of fact stated above, the court concludes that Peachtree violated § 401(A) on November 14, 2006, a Class II violation.

Section 501(B)

Citation Nos. 3 and 4 (Health and Safety)

Findings: The Department cited Peachtree for violating § 501(B) of Regulation 61-84 on October 30, 2006 and again on November 14, 2006. On October 30, 2006, a Department inspector found that Employees V, Y, and Z and Volunteer AA, who were on duty at the time of the inspection, did not have a criminal background check on file.

On November 14, 2006, a Department inspector found that records for Employees BB, CC, and DD also lacked documentation of a criminal background check conducted by the South Carolina Law Enforcement Division (“SLED”). At the hearing, Peachtree offered evidence of a SLED check for these three individuals. (Resp’t’s Ex. 13, 14, and 15). The SLED check documentation for Employees BB and CC was not available to Department inspectors or to the staff assisting the inspectors in locating documents at the time of the November 14, 2006 inspection. The SLED check documentation for Employee DD revealed an arrest record, including a July 15, 1998 conviction of “criminal domestic violence first and second” and a February 18, 2005 arrest for criminal domestic violence.

Conclusion: Section 501(B) mandates that no staff members or direct care volunteers of a facility 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. 2007). South Carolina law requires that an employer providing direct caregiving, including a CRCF, must obtain a criminal background check prior to employing any direct caregiver. S.C. Code Ann. § 44-7-2910(A)(1), (B)(1)(d) (Supp. 2007). The criminal background check must be conducted by SLED. S.C. Code Ann. § 44-7-2920 (Supp. 2007).

The Department alleges that the facility must have documentation of SLED checks; otherwise, it is in violation of this section. In response, Peachtree asserts that the regulation does not require that these checks be available for Department review; rather, it prohibits Peachtree only from employing an individual who has “a prior conviction or [has] pled no contest [] for child or adult abuse, neglect, or mistreatment.” 25A S.C. Code Ann. Regs. 61-84 § 501(B) (Supp. 2007).[4] “Child or adult abuse,” “neglect,” and “mistreatment” are not defined in the regulation; nor does the regulation list specific crimes falling within this definition; nor does there appear to be a statutory or common law crime of “child or adult abuse, neglect, or mistreatment” by that name. However, the South Carolina Code does contain statutes regarding the specific crimes of “homicide by child abuse” (§ 16-3-85(A)(1)); “inflicting great bodily injury upon a child” (§ 16-3-95(A)); “abuse or neglect of a vulnerable adult resulting in death” (§ 43-35-85(F)); and “abuse or neglect of a vulnerable adult resulting in great bodily injury” (§ 43-35-85(E)).

In South Carolina, the elements of the crime of criminal domestic violence are as follows:

(1) (a) causing or (b) under circumstances reasonably creating fear of imminent peril offering or attempting to cause with the apparent present ability to do so;

(2) physical harm or injury;

(3) to a member;

(4) of the defendant’s household.

John R. Ferguson, Criminal Offenses in South Carolina 422-23 (3d ed. 2005); see also S.C. Code Ann. § 16-25-20(A). These elements differ from those for the crimes of homicide by child abuse, inflicting great bodily injury on a child, and abuse or neglect of a vulnerable adult. Id. at 285, 392-93; § 43-35-85(E), (F). Accordingly, in the absence of evidence as to the underlying facts of the incident leading to the charges against Employee DD, it is unclear whether the circumstances surrounding Employee DD’s conviction necessarily involved the abuse, neglect, or mistreatment of an adult or child as contemplated by the regulation.

Thus, while the Department submitted evidence that one of Peachtree’s employees was convicted of criminal domestic violence, the Department has not provided sufficient information surrounding this conviction to prove that it falls within the ambit of the crimes enumerated in the regulation that precludes employment of that employee. Therefore, based on the findings of fact stated above, the court concludes that the Department did not prove by a preponderance of the evidence that Peachtree violated § 501(B) on October 30, 2006 and on November 14, 2006.

Section 501(F)

Citation Nos. 5, 6, and 7 (Record Keeping)

Findings: On October 30, 2006, a Department inspector found that Peachtree lacked any written information or documentation regarding Volunteer V and cited Peachtree for violation of § 501(F). Peachtree admitted that it had no such written information for the volunteer.

On November 14, 2006, a Department inspector again cited Peachtree for violating § 501(F). The inspector found that the facility did not have employee records available for review for Employees EE and FF, who were present at the time of the inspection. He also found that there was no written job description in Employee BB’s records.

Peachtree admitted that it lacked records for Employee EE at the time of the Department’s inspection. Peachtree produced a copy of a record of in-service training for Employee FF at the hearing of this matter, which was admitted as Respondent’s Exhibit 16. After the hearing, Peachtree submitted a document it claimed to be the original of Exhibit 16. However, there were noticeable differences between the two documents, which obviously had been created at two different times. For example, the purported original reflects that Employee FF viewed a forty-five minute video on Medication Administration and Management, while the copy states that the video was thirty minutes. Further, although Peachtree claimed the document was at the facility on November 14, 2006, neither the Department’s inspectors nor Peachtree’s employees were able to locate the document at the facility on that date or within twenty-five days thereafter. Based on these discrepancies, the court finds that no weight should be given to Respondent’s Exhibit 16. Peachtree also submitted a document, Respondent’s Exhibit 17, reflecting job duties for Employee BB.

Conclusions: Section 501(F) requires facilities to keep accurate information regarding all staff members and direct care volunteers, including, at a minimum, a current address, phone number, and information regarding the individual’s health, personal, work, and training background. 25A S.C. Code Ann. Regs. 61-84 § 504(F) (Supp. 2007). Section 501(F) also requires the facility to assign all staff members and volunteers of the facility specific duties and responsibilities, which must be in writing and which must accord with the individual’s capacity. Id. Based on the findings of fact stated above, the court concludes that Peachtree violated § 501(F) on October 30, 2006 and again on November 14, 2006 with regard to Employees V, EE, and FF, a Class II violation.

Section 504(A)

Citation No. 8 (Employee Training)

Findings: On October 30, 2006, a Department inspector found that the documentation of in-service training in Employee Y’s record indicated that it was not done prior to resident contact and, as a result, cited the facility for violating § 504(A).

According to documentation submitted by Peachtree at the hearing as Respondent’s Exhibit 5, Employee Y received some training on May 6, 2006 and received additional training on August 1, 2006. Donnelly testified that the facility’s practice is to bring a new employee in for a half day to receive all required training prior to any resident contact. (Tr. 679). He further testified that the employees do not have contact with residents until all the training is completed. Donnelly was unclear as to when this particular employee had contact with residents, but Donnelly testified that none of his employees would have had resident contact prior to completion of training. (Tr. 678). With regard to this violation there were discrepancies between the two training dates on the employee’s training record, which Donnelly failed to explain. According to Respondent’s Exhibit 5, the employee in question did not receive “all their training” on August 1, 2006, but rather received a first round of training, though incomplete, on May 6, 2006. Furthermore, the training completed on May 6, 2006 is simply signed “Administrator” and, although predating Shareef’s employment by over two months, is in handwriting identical to the sections completed by Shareef after commencing her employment. Consequently, it appears that the form was completed post hoc, which undermines the credibility of the entire document.


Therefore, the court finds it reasonable to infer that when an employee’s date of employment precedes the employee’s training by a significant amount of time, the employee had contact with residents prior to the completion of the employee’s training. Peachtree failed to rebut the Department’s evidence that this employee had resident contact after the initial training on May 6, 2006 and before the additional training on August 1, 2006. Clearly, the employee in question had an employee record at Peachtree in May, June, and July of 2006, prior to completion of all training, which tends to show that this person was an employee of the facility during those months.

Conclusions: Section 504(A) requires that training be provided to all staff members and direct care volunteers prior to resident contact, as well as at a frequency to be determined by the facility but at least annually. 25A S.C. Code Ann. Regs. 61-84 § 504(A) (Supp. 2007). Based on the findings of fact stated above, the court concludes that Peachtree violated § 504(A) on October 30, 2006, a Class I violation.

Section 504(A)(1)

Citation No. 9 (Employee Training)

Findings: On November 14, 2006, a Department inspector cited the facility for violating § 504(A)(1) based on his determination that the records for Employees CC and DD did not contain evidence of basic first-aid training. The basis for his determination was the lack of employees’ initials or signature on the documentation evidencing this training. However, Peachtree offered the training documentation, Respondent’s Exhibits 18 and 19, which was signed by the provider of the training, Maryam Shareef. Employee CC received training in Basic First-Aid on July 16, 2006 and Employee DD received it on October 27, 2006. Employee CC and DD received the training prior to their dates of employment. (See Resp’t’s Ex. 22, 23).

Conclusions: 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 and 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. 2007). There is no requirement in § 504(A)(1) that the employee must initial or sign the training record. Peachtree produced credible evidence showing that Shareef administered the required training to Employees CC and DD prior to resident contact. Accordingly, based on the findings of fact stated above, the court concludes that the Department did not prove that Peachtree violated § 504(A)(1) on November 14, 2006.

Section 504(A)(2)

Citation No. 10 (Employee Training)

Findings: On November 14, 2006, a Department inspector found that the records of Employees BB, CC, and DD lacked evidence of vital signs training. No employee of the facility was designated in writing as having received training in vital signs. Therefore, the inspector cited the facility for violating § 504(A)(2).

Peachtree produced documents it claims establish that Employees BB, CC, and DD received vital signs training on October 8, 2006. (Resp’t’s Exs. 20, 21, and 22). According to Respondent’s Exhibit 23, the date of employment for Employee CC was July 17, 2006, which was several months before the employee received this training. Employee BB also commenced employment in July of 2006. Employee DD received the training before her date of employment. (See Resp’t’s Ex. 24).

Conclusions: Section 504(A)(2) requires that all designated staff members receive training in the procedures for checking and recording vital signs prior to resident contact. 25A S.C. Code Ann. Regs. 61-84 § 504(A)(2) (Supp. 2007). The files of Employees BB, CC, and DD lacked evidence of this training on November 14, 2006. Peachtree did not present reliable evidence showing that Employees BB and CC received vital signs training prior to resident contact. Based on the findings of fact stated above, the court concludes that Peachtree violated § 504(A)(2) with regard to Employees BB and CC on November 14, 2006, a Class I violation.

Section 504(A)(3)

Citation No. 11 (Employee Training)

Findings: On November 14, 2006, a Department inspector cited the facility for violating § 504(A)(3) based on his determination that records for Employees CC and DD did not contain evidence of training in contagious/communicable disease. The basis for his determination was the lack of employees’ initials or signature on the documentation evidencing this training.

In response to this citation, Peachtree offered Respondent’s Exhibits 23 and 24. These exhibits show that Employees CC and DD received the training at issue from Shareef prior to their dates of employment, and therefore, presumably prior to resident contact. Further, Employee DD received additional training on this topic from Duncan & Richardson Health Care Consulting Agency (“Duncan & Richardson”) prior to her date of employment.

Conclusions: Section 504(A)(3) requires that all staff members receive training in management and care of persons with contagious and/or communicable diseases both prior to resident contact and then at least annually thereafter. 25A S.C. Code Ann. Regs.61-84 § 504(A)(3) (Supp. 2007). There is no requirement in § 504(A)(3) that the employee must initial or sign the training record. The credible evidence therefore showed that Shareef administered training for Employees CC and DD regarding contagious and communicable diseases prior to resident contact and further that Employee DD received additional training entitled “Contagious Disease” prior to resident contact. Based on the findings of fact stated above, the court concludes that Peachtree did not violate § 504(A)(3) on November 14, 2006.

Section 504(A)(4)

Citation No. 12 (Employee Training)

Findings: On November 14, 2006, the Department inspector determined that the records for Employees BB, CC, and DD contained documentation of two hours of “medicine training” by LTC Pharmacy. However, there was no documentation for any of the three employees showing that they had passed a competency and evaluation test as required by S.C. Code Ann. § 40-33-43 of the Nurse Practice Act. Peachtree alleges that these employees passed the competency test, but that LTC Pharmacy failed to return the test results to Peachtree.

Conclusions: 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. § 504(A)(4) (Supp. 2007). Further, § 40-33-43 provides that “[i]n community residential care facilities, the provision of medications may be performed by selected unlicensed persons with documented medication training and skill competency evaluation.” Based on the findings of fact stated above, the court concludes that Peachtree violated § 504(A)(4) on November 14, 2006, a Class I violation.

Section 504(A)(5)

Citation Nos. 13 and 14 (Employee Training)

Findings: On October 30, 2006, the Department’s inspector found that there was no documentation of in-service training regarding Employees Z and AA in the care of residents specific to their needs. On November 14, 2006, the Department’s inspector found that the records of Employees CC and DD did not contain any documentation of specific person care training, as evidenced by lack of the employees’ initials or signature.

Peachtree admitted that it lacked documentation of in-service training in specific patient care for Employee AA. With regard to Employees Z, CC, and DD, Peachtree offered Respondent’s Exhibits 6, 25, and 26. These exhibits reflect that the Employees Z, CC, and DD completed training in “Care of Persons Spacific [sic] to the Facility” on July 12, 2006 for Employee Z, on July 17, 2006 for Employee CC, and on October 27, 2006 for Employee DD. Although it appears that Employees CC and DD completed this training prior to their date of employment, there is no indication of the date of employment for Employee Z.

Conclusions: Section 504(A)(5) requires that staff be trained in specific patient care, such as Alzheimer’s Disease and/or related dementia, cognitive disability, etc., prior to resident contact, to include communication techniques, understanding and coping with behaviors, safety, activities, and other topics. 25A S.C. Code Ann. Regs. 61-84 § 504(A)(5) (Supp. 2007). Based on the findings of fact stated above, the court concludes that Peachtree violated § 504(A)(5) with regard to Employees Z and AA on October 30, 2006, a Class I violation.

Section 504(A)(6)

Citation No. 15 (Employee Training)

Findings: On November 14, 2006, the Department’s inspector found that Peachtree lacked documentation of training in the use of restraints for a designated staff member or members. The inspector cited the facility for violating § 504(A)(6). Peachtree introduced documentation at the hearing, marked as Respondent’s Exhibit 27, to show that an employee had training in “Non-Violent Crisis Intervention and Restraints” on July 15, 2006 at Myrtlecrest Residential Care Home. However, Peachtree was only able to produce a copy of the document, not an original. Further, neither the Department’s inspectors nor the staff members at Peachtree on November 14, 2006 were able to locate such documentation at the time of the inspection or within twenty-five days thereafter. Further, according to the testimony at the hearing this employee began working at Peachtree on July 10, 2006.

Conclusions: 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. 2007). Based on the findings of fact stated above, the court concludes that Peachtree violated § 504(A)(6) on November 14, 2006, a Class I violation.

Section 504(A)(7)

Citation No. 16 (Employee Training)

Findings: On November 14, 2006, a Department inspector found that Peachtree had no documentation of training in Occupational Safety and Health Administration (“OSHA”) standards/bloodborne pathogens in the records of Employees BB and DD. The inspector cited the facility for violating § 504(A)(7). Peachtree admitted that it had no documentation of such training for these two employees as of the time of the inspection.

Conclusions: 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. 2007). Based on the findings of fact stated above, the court concludes that Peachtree violated § 504(A)(7) on November 14, 2006, a Class I violation. Peachtree previously violated § 504(A)(7) on June 22, 2006. Thus, this is Peachtree’s second violation of § 504(A)(7) within a 36-month period.

Section 504(A)(8)

Citation Nos. 17 and 18[5] (Employee Training)

Findings: On November 14, 2006, a Department inspector found that none of the staff members present at Peachtree were certified in cardiopulmonary resuscitation (“CPR”) and found no documentation of training or certification in CPR for any staff member in the facility. However, he noted that the file for Employee BB contained a record of CPR training at Peachtree’s sister facility—Myrtlecrest. Also, at the time of arrival of the inspectors, approximately 8:30 a.m., an inspector found that none of the staff members present had CPR certification. The individual who stated to inspectors that she was the administrator indicated all in-service training is scheduled for “next Saturday.” The inspector cited Peachtree for violating § 504(A)(8).

Conclusions: Section 504(A)(8) requires the facility to ensure that there is at least one designated staff member or volunteer properly trained in CPR present in the facility whenever
residents are in the facility. 25A S.C. Code Ann. Regs. 61-84 § 504(A)(8) (Supp. 2007). Peachtree


presented evidence that Employee BB was properly trained in CPR and that Employee BB was present at the facility on November 14, 2006 when the Department inspectors arrived. Based on the findings of fact stated above, the court concludes that the Department did not prove a violation of § 504(A)(8) on November 14, 2006.

Section 504(A)(9)

Citation No. 19 (Employee Training)

Findings: On November 14, 2006, a Department inspector cited the facility for violating § 504(A)(9) based on his determination that Employee CC’s records did not contain evidence of training in confidentiality of residents’ records. The basis for his determination is the lack of employees’ initials or signature on the documentation evidencing this training. However, the training documentation was signed by the provider of the training, Maryam Shareef, and is dated July 18, 2006. (See Resp’t’s Ex. 30). Employee CC’s date of employment is July 17, 2006, the day after this training was provided. (See Resp’t’s Ex. 31). Further, Shareef testified at trial that she provided training in confidentiality to Employee CC prior to November 14, 2006.

Conclusions: Section 504(A)(9) requires that all staff members receive training in confidentiality of resident information and records and the protecting of resident rights, prior to resident contact and at a frequency to be determined by the facility, but at least annually. 25A S.C. Code Ann. Regs. 61-84 § 504(A)(9) (Supp. 2007). There is no requirement in § 504(A)(9) that the employee must initial or sign the training record. Based on the findings of fact stated above, the court concludes that the Department did not prove that Peachtree violated § 504(A)(9) on November 14, 2006.

Section 504(A)(10)

Citation No. 20 (Employee Training)

Findings: On November 14, 2006, a Department inspector cited the facility for violating § 504(A)(1) based on his determination that the records of Employees CC and DD did not contain evidence of fire response training. The basis for his determination is the lack of employees’ initials or signature on the documentation evidencing this training. In response to this citation, Peachtree submitted the in-service training records for these employees, Respondent’s Exhibits 31 and 32, which indicate that Employee CC received training in “Fire Protection” on July 16, 2006 and Employee DD received it on October 27, 2006. Both employees received the training before their dates of employment, and the training documentation for both employees was initialed by the provider of the training, Maryam Shareef.

Conclusions: Section 504(A)(10) requires that all staff members receive fire response training within 24 hours of their first day on the job in the facility. 25A S.C. Code Ann. Regs. § 504(A)(10) (Supp. 2007). There is no requirement in § 504(A)(10) that the employee must initial or sign the training record. Based on the findings of fact stated above, the court concludes that the Department did not prove a violation of § 504(A)(10) on November 14, 2006.

Section 504(A)(11)

Citation No. 21 (Employee Training)

Findings: On November 14, 2006, a Department inspector cited the facility for violating § 504(A)(1) based on his determination that the records of Employees CC and DD did not contain evidence of training in emergency procedures. The basis for his determination is the lack of employees’ initials or signature on the documentation evidencing this training. In response to this citation, Peachtree submitted the in-service training records and the training certificates for these employees, Respondent’s Exhibits 33 and 34, which indicate that Employee CC received training in basic first-aid including emergency procedures on July 16, 2006 and Employee DD received it on October 27, 2006. Both employees received the training before their date of employment, and the training documentation for both employees was initialed by the provider of the training, Maryam Shareef.

Conclusions: Section 504(A)(11) requires the facility to ensure that its staff is trained in emergency procedures/disaster preparedness within 24 hours of their first day on the job in the facility. 25A S.C. Code Ann. Regs. 61-84 § 504(A)(11) (Supp. 2007). There is no requirement in § 504(A)(11) that the employee must initial or sign the training record. Based on the findings of fact stated above, the court concludes that the Department did not prove that Peachtree violated § 504(A)(11) on November 14, 2006.

Section 504(B)

Citation No. 22 (Employee Training)

Findings: On November 14, 2006, a Department inspector found that no one at the facility had been designated or trained in recreational activities. A facility representative stated to the inspector that another Peachtree employee is generally responsible for coordinating activities, but there was no record available on site for that employee. The inspector cited Peachtree for violating § 504(B).

At the hearing of this matter, Peachtree supplied a document, marked Respondent’s Exhibit 35, showing that Employee FF had received training in recreational activities prior to her date of employment. (See also Resp’t’s Ex. 16). However, these documents were unavailable when the Department conducted its inspection.

Conclusions: 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. 2007). Based on the findings of fact stated above, the court concludes that the Department did not prove that Peachtree violated § 504(B) on November 14, 2006.

Section 504(C)

Citation Nos. 23 and 24 (Employee Training)

Findings: On October 30, 2006, a Department inspector found that there was no documentation of orientation in Employee AA’s record. The inspector cited the facility for violating § 504(C). Peachtree submitted documentation at the hearing, Respondent’s Exhibit 8, to show that Employee AA did receive such training but it does not indicate the employee’s date of employment. Peachtree was only able to produce a copy of the document, not an original. Further, neither the Department’s inspectors nor the staff members at Peachtree on October 30, 2006 were able to locate such documentation at the time of the inspection or within twenty-five days thereafter.

The facility was again cited for violating this section on November 14, 2006, based on the inspector’s determination that Employee DD’s record did not contain evidence of orientation to the facility. The basis for his determination is the lack of employees’ initials or signature on the documentation evidencing orientation. In response to this citation, Peachtree submitted the in-service training record for Employee DD, Respondent’s Exhibit 36, which indicates that Employee DD received orientation training on October 27, 2006. Employee DD received the training before her date of employment, and the training documentation was initialed by the provider of the training, Maryam Shareef.

Conclusions: Section 504(C) requires that all new staff members and volunteers be oriented to acquaint themselves with the organization and environment of the facility, specific duties and responsibilities of staff members and volunteers, and residents’ needs. 25A S.C. Code Ann. Regs. 61-84 § 504(C) (Supp. 2007). There is no requirement in § 504(C) that the employee must initial or sign the training record. Based on the findings of fact stated above, the court concludes that Peachtree violated § 504(C) on October 30, 2006, a Class I violation, but not on November 14, 2006.

Section 505(A)

Citation Nos. 25 and 26 (Health and Safety)

Findings: On October 30, 2006 a Department inspector found that Peachtree had no documentation of two-step tuberculin skin tests (“two-step TB test”) in the records of Employees Z and Y. Also, there was no evidence of a physical examination in one of those two employees’ records. Peachtree produced documents, admitted as Respondent’s Exhibits 9 and 10, at the hearing to show that the two employees in question had two-step TB tests, which were negative. Neither the Department inspectors nor Peachtree’s employees were able to locate these documents at the time of the Department’s inspection or within twenty-five days thereafter. The documents submitted at the hearing do not establish that the TB tests were done prior to resident contact.

On November 14, 2006 a Department inspector observed that Employee CC’s records contained an employment health assessment dated August 10, 2006, and the date of hire was June 25, 2006; thus, the employment health assessment was not done prior to resident contact. Peachtree submitted a document for this employee, Respondent’s Exhibit 37, which is the same document the Department reviewed at the time of the inspection. However, it does not show that the employee’s health assessment was done prior to resident contact.

That same day, an inspector found that Employee DD’s record contained an employment health assessment that was not signed by a physician or other authorized healthcare provider. Peachtree introduced a document, Respondent’s Exhibit 38, to refute this allegation. The health assessment document reviewed by the Department inspector at the time of the inspection was not signed by a physician.

Conclusions: 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. 2007). Based on the findings of fact stated above, the court concludes that Peachtree violated § 505(A) on October 30, 2006 and again on November 14, 2006, a Class I violation.

Section 604

Citation No. 27 (Record Keeping)

Findings: On November 14, 2006, a Department inspector found that Peachtree had failed to notify the Division of Health Licensing in writing within ten days of a change in the facility’s administrator. The in-charge person stated that she was the administrator. However, Department records listed a different individual. Peachtree admitted that it had not submitted proper notice of the change of administrator to the Department in that Verna Donnelly, the previous administrator of Peachtree, rather than a person authorized to act on behalf of Peachtree, notified the Department of the change.

Conclusions: Section 604 requires that the licensee notify the Department in writing within ten days of any change of administrator. 25A S.C. Code Ann. Regs. 61-84 § 604 (Supp. 2007). The notice must include at a minimum the name of the newly appointed administrator, the effective date of the appointment, and a copy of the administrator’s license. Based on the findings of fact stated above, the court concludes that Peachtree violated § 604 on November 14, 2006, a Class III violation. However, in light of the fact that Verna Donnelly provided all of the required notice in writing to the Department and the letter simply was not signed by the person authorized to act on behalf of the licensee, the court finds that this violation alone warrants no penalty.

Section 701(B)(2)

Citation No. 28 (Medication Administration and Management)

Findings: On November 14, 2006, a Department inspector cited Peachtree for violating § 701(B)(2). The violation is based upon the following observations by the inspector:

(1)               For Resident B, there was no documentation of a signed physician’s order for Ranitidine and Finastude.

(2)               For Resident C, there was no documentation of a signed physician’s order for Plavix, Ducosate, Claritin, Digitec, Avicept, Folic Acid, K-Dur, Celebrex, or Nitrostat.

(3)               For Resident D, although there were physician’s orders for the medications Bayer Aspirin, Fosomax, and Tenomin, these medications were not listed on the medication administration record (“MAR”) for the resident.

(Pet’r’s Ex. 1). Peachtree alleges that Resident B was never prescribed the above medications based on his hospital summary and his MAR; that Resident C was properly prescribed the nine medications based on his hospital discharge summary; and that Resident D’s family agreed to provide the medications listed above.

Conclusions: Section 701(B)(2) requires the facility to maintain specific documentation as to its residents to include, at a minimum, orders and recommendations for all medication, care, services, procedures, and diet from physicians or other authorized healthcare providers. 25A S.C. Code Ann. Regs. 61-84 § 701(B)(2) (Supp. 2007). This documentation must be completed prior to, or at the time of, admission, and subsequently as warranted. Id. Any verbal orders that are received by the facility must include the time of receipt of the order, description of the order, and identification of the individual receiving the order. Id. Based on the findings of fact stated above, the court concludes that Peachtree violated § 701(B)(2) with regard to Residents C, D, and E on November 14, 2006, a Class II violation.

Section 701(B)(6)

Citation No. 29 (Record Keeping)

Findings: On November 14, 2006, a Department inspector cited the facility because notes of observation were not signed by staff throughout the records of Residents C, D, E, and O. Peachtree admitted this violation.

Conclusions: Section 701(B)(6) requires the facility to maintain an organized record for each resident to include signed and dated notes of observation of the resident. 25A S.C. Code Ann. Regs. 61-84 § 701(B)(6) (Supp. 2007). Based on the findings of fact stated above, the court concludes that Peachtree violated § 701(B)(6) on November 14, 2006, a Class II violation.

Section 701(B)(8)

Citation No. 30 (Record Keeping)

Findings: On November 14, 2006, a Department inspector observed that the emergency medical care plan, name of physician, and payment plan were not documented in Resident O’s records. An emergency medical care plan and name of physician were not documented in Resident D’s record.

Although Peachtree submitted two documents, Respondent’s Exhibits 40 and 41, in response to these citations, the court finds that little weight should be given to these documents. The credibility of the documents is questionable due to discrepancies between two copies of Resident O’s emergency care plan, which were marked and admitted separately at the hearing as Exhibits 40 and 53. Although both documents purport to be the admission record for this resident, the two documents are clearly not photocopies of the same original document. Peachtree attempted to explain the discrepancies by stating that the resident in question was admitted first at its other facility, Myrtlecrest, and then later at Peachtree. However, both documents bear the same date, August 10, 2006, which Peachtree could not explain. This calls into question the reliability of both documents. Additionally, there are discrepancies between the original of Resident D’s admission record and the copy admitted at the hearing, calling into question the reliability of this document as well.

Conclusions: Section 701(B)(8) requires the facility to maintain an organized record for each resident to include provisions for routine and emergency medical care, including the name and telephone number of the resident’s physician, plan for payment, and plan for securing medications. 25A S.C. Code Ann. Regs. 61-84 § 701(B)(8) (Supp. 2007). Based on the findings of fact stated above, the court concludes that Peachtree violated § 701(B)(8) on November 14, 2006, a Class II violation.

Section 701(B)(10)

Citation No. 31 (Record Keeping)

Findings: A Department inspector testified that on November 14, 2006, there was no photograph available in Resident O’s record. Peachtree introduced a photograph at the hearing, marked as Respondent’s Exhibit 42.[6] However, neither the Department’s inspector nor Peachtree’s employees present on November 14, 2006 that assisted the inspectors in gathering documentation for review were able to locate a photograph of the resident during the time of the inspection or within twenty-five days thereafter.

Conclusions: Section 701(B)(10) requires the facility to maintain an organized record for each resident to include a photograph of the resident. 25A S.C. Code Ann. Regs. 61-84 § 701(B)(10) (Supp. 2007). Although Peachtree asserts that this photograph was in the file on the date of the inspection, based on the findings of fact stated above, the court concludes that Peachtree violated § 701(B)(10) on November 14, 2006, a Class II violation.


Section 702

Citation Nos. 32 and 33 (Record Keeping)

Findings: On October 30, 2006, the inspector cited Peachtree for violating § 702. He testified that the 72-hour admission assessment for Resident A was incomplete because it did not address all items contained in § 101(I) of Regulation 61-84. Peachtree introduced an exhibit at the hearing that contained all of the required items.

On November 14, 2006, the 72-hour assessments were either unavailable for review or not signed by the individual completing the assessment for the records of Residents C, D, and E. At the hearing, Peachtree produced documents it claimed were the 72-hour assessments for the three residents in question, admitted as Respondent’s Exhibits 43, 44, and 45. However, Peachtree was unable to provide originals of these exhibits. Moreover, although Peachtree claimed at the hearing that the documents were somewhere at the facility at the time of the Department’s inspection, neither the Department’s inspectors nor Peachtree staff members accompanying them throughout the inspection were able to produce the documents at the time of the inspection or within twenty-five days following.

Conclusions: 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. 2007). Based on the findings of fact stated above, the court concludes that Peachtree violated § 702 on October 30, 2006 and again on November 14, 2006, a Class II violation. Peachtree previously violated § 702 on May 31, 2006 and on June 22, 2006. Thus, these are Peachtree’s third and fourth violations of § 702 within a 36-month period.

Section 703(A)

Citation Nos. 34 and 35 (Record Keeping/Care Planning)

Findings: On October 30, 2006, the individual care plan (“ICP” or “care plan”) for Resident A had not been reviewed and revised every six months; the initial care plan was performed on March 2, 2006. Peachtree admitted this violation.

On that date, the Department also found that there was no care plan available for review for Resident B, who was admitted on October 10, 2006. The care plan is required to be done within seven days of admission. The regulation defines an ICP as “[a] documented regimen of appropriate care/services or written action plan prepared by the facility for each resident based on assessment data and which is to be implemented for the benefit of the resident.” 25A S.C. Code Ann. Regs. 61-84 § 101(Y) (Supp. 2007). ICPs contain information about the patients such as their physician(s), mental state, dietary needs, and whether they need special assistance completing daily tasks. A senior ombudsman investigator explained that care plans should account for and contain a plan for a resident’s specific behavior. An ICP provides, at a glance, information crucial to the care of the resident.

Peachtree produced a document, Respondent’s Exhibit 12, at the hearing, which Peachtree claimed was the care plan for Resident B. Neither the Department’s inspectors nor Peachtree’s employees who accompanied the inspectors throughout their visit on October 30, 2006 were able to locate that document at the time of the inspection.[7] Nor did Peachtree produce it within twenty-five days. Therefore, the court finds little weight should be given to Exhibit 12.

On November 14, 2006, the individual care plans for Residents C and O were not signed by the resident or responsible party. Peachtree admitted that Resident C had not signed his care plan as of the time of the Department’s inspection but claimed that he was too weak to sign. (Tr. 583-85). Peachtree introduced a document marked Respondent’s Exhibit 47 to show that Resident O had made an “X” mark on the document, which was witnessed by the administrator. (Tr. 585-86). However, Peachtree also introduced another copy of that same document, marked Respondent’s Exhibit 50, in response to Citation No. 37; that copy lacked the information that the resident had been unable to sign his full name, and lacked a designation of a witness to a mark made by a resident. Based on these discrepancies the court finds that both Exhibits 47 and 50 should not be given any weight.

The Department also found on November 14, 2006 that the care plan for Resident D had not been updated since March 6, 2006. Peachtree submitted a document marked Respondent’s Exhibit 48, a copy of a care plan for Resident D dated September 8, 2006. After the hearing Peachtree submitted the original of Respondent’s Exhibit 48, which is also the original for Respondent’s Exhibits 51, 56, and 58. The purported original is in a different format and contains different information, which undermines the reliability of these exhibits. Therefore, the court finds that Exhibit 48 should be given no weight. Further, even if this document were genuine, it nevertheless was not timely updated, which Peachtree admitted at the hearing. (Tr. 587).

Finally, although Resident E was documented as being admitted on April 20, 2006, the resident’s care plan was documented as beginning June 26, 2006. Peachtree admitted this resident’s care plan was not timely prepared. (Tr. 588).

Conclusions: Section 703(A) requires the facility to develop an ICP for each resident, with participation by, as evidenced by their signatures, the resident, administrator (or designee), and/or the sponsor or responsible party when appropriate, within seven days of admission. 25A S.C. Code Ann. Regs. 61-84 § 703(A) (Supp. 2007). The ICP must be reviewed and revised as changes occur in the resident’s needs, and at least semi-annually. Id.

Based on the findings of fact stated above, the court concludes that Peachtree violated § 703(A) on October 30, 2006 and November 14, 2006, a Class II violation. Peachtree previously violated § 703(A) on May 31, 2006 and on June 22, 2006. Thus, these are Peachtree’s third and fourth violations of § 703(A) within a 36-month period.

Section 703(B)(1)

Citation Nos. 36 and 37 (Food and Nutrition/Care Planning)

Findings: On November 14, 2006, based on information received in a complaint, a Department inspector found that the ICP for Resident U did not address the resident’s special diet. According to a staff person at the facility on that day, the resident had not been eating the facility’s prepared meals and had used her personal monies to purchase other food items. The resident’s care plan did not address her eating habits, nor was it addressed in progress notes. Resident U was hospitalized due to low blood sugar. The Department cited the facility for this violation, which Peachtree did not contest.

On that same date, the Department also observed that the ICPs for Residents C, D, E, and O were incomplete in that they did not indicate “how much” care and “how often” care would be provided. At the hearing, Peachtree submitted documents purporting to be care plans for all four residents, marked as Respondent’s Exhibits 49, 50, 51, and 52.

Respondent’s Exhibit 49 is one of four copies of Resident C’s care plan submitted by Peachtree at the hearing. Peachtree’s Exhibits 46, 55, and 57 also purport to be copies of Resident C’s care plan. However, there are discrepancies between the four copies, as well as the original provided by Peachtree following the hearing. Neither the purported original nor the document marked Respondent’s Exhibit 46 lists any recreational or social activities for the resident. However, Exhibits 49, 55, and 57 have information filled in for recreational and social activities in the very place that is blank on the original and on Exhibit 46. Exhibits 49 and 57 are also marked as being an “updated version” of Resident C’s care plan; however Exhibit 55, which does contain recreational and social activity, is not marked as an “updated version.” Accordingly, the court finds the testimony of the Department inspector that this information was lacking when he viewed it on November 14, 2006 to be more credible.

Exhibit 50,[8] Resident O’s care plan, should be given no weight for the reasons set forth above under Citation Nos. 34 and 35.

Exhibit 51 is a copy of the same document marked Respondent’s Exhibits 48, 56, and 58, all of which purport to be copies of Resident D’s care plan. However, Peachtree submitted a purported original for Exhibits 48, 51, 56, and 58 after the hearing and the original document is clearly of a different format. Although Peachtree attempted to explain the differences, the court finds Peachtree’s explanation to be inadequate to credibly account for the discrepancies. Accordingly, the court finds that Exhibits 48, 51, 56, and 58 should be given no weight.

Exhibit 52 is a copy of Resident E’s care plan for which Peachtree was unable to provide an original. Based on the discrepancies between the copies of other exhibits submitted at the hearing and the originals later produced, the court finds that this document should be given little weight when compared with the Department’s evidence that the information was incomplete.

Conclusions: Section 703(B)(1) requires that the ICP for each resident address the needs of the resident, including activities of daily living with which the resident needs assistance, how much assistance, and who will provide that assistance and how often. 25A S.C. Code Ann. Regs. 61-84 § 703(B)(1) (Supp. 2007). Based on the findings of fact stated above, the court concludes that Peachtree violated § 703(B)(1) on November 14, 2006, a Class II violation.

Section 703(B)(2)

Citation No. 38 (Care Planning/Record Keeping)

Findings: On November 14, 2006, arrangements for visits to the physician were not addressed in the care plans of Residents O and E. Peachtree submitted two documents at the hearing in response to this citation, Respondent’s Exhibits 53 and 54. Exhibit 53 is a copy of an admission record for Resident O, one of two submitted by Peachtree at the hearing. (See also Resp’t’s Ex. 40). For the reasons set forth above under Citation No. 30, the court finds that no weight should be given to Exhibit 53. Exhibit 54 is a copy of a document for which Peachtree was unable to locate the original. Based on the discrepancies between the copies of other exhibits submitted at the hearing and the originals later produced, the court finds that Exhibit 54 should be given little weight when compared with the Department’s evidence that the information was lacking.

Conclusions: Section 703(B)(2) requires that the ICP for each resident describe requirements and arrangements for visits by or to physicians or other authorized health providers. 25A S.C. Code Ann. Regs. 61-84 § 703(B)(2) (Supp. 2007). Based on the findings of fact stated above, the court concludes that Peachtree violated § 703(B)(2) on November 14, 2006, a Class II violation.

Section 703(B)(4)

Citation No. 39 (Care Planning/Record Keeping)

Findings: On November 14, 2006, a Department inspector found that recreational/social activities were not addressed in Resident C’s ICP. The inspector cited the facility for violating § 703(B)(4).

Peachtree introduced a document in response to this citation, Respondent’s Exhibit 55, purporting to be the care plan for Resident C. This document is supposed to be the same document that Peachtree submitted as Respondent’s Exhibits 46, 49, and 57. For the reasons set forth above under Citations No. 36 and 37 discussing the discrepancies between these exhibits, the court finds that Respondent’s Exhibit 55 should be given no weight. Particularly disconcerting is the fact that Peachtree introduced Exhibit 55 specifically to refute the allegation that it failed to address Resident C’s recreational/social activities, as this area was blank on other versions of this document submitted at the hearing. Donnelly initially represented to this court during the hearing, in response to the Department’s assertion that Resident C’s care plan did not address social and recreational activities, that Exhibit 55 showed that Resident C’s care plan in fact addressed those topics. However, when Donnelly attempted to respond to the Department’s objection regarding the authenticity of these documents and attempted to explain the discrepancies, he denied having represented to the court that Exhibit 55 showed no violation of § 703(B)(4) had occurred. The court finds this to reflect poorly not only on the reliability of Respondent’s exhibits, but also on the credibility and veracity of Donnelly as a witness.

Conclusions: Section 703(B)(4) requires that the individual care plan describe recreational and social activities that are suitable, desirable, and important to the well-being of the resident. 25A S.C. Code Ann. Regs. 61-84 § 703(B)(4) (Supp. 2007). Based on the findings of fact stated above, the court concludes that Peachtree violated § 703(B)(4) on November 14, 2006, a Class II violation.

Section 703(B)(5)

Citation No. 40 (Food and Nutrition/Care Planning)

Findings: On November 14, 2006, a Department inspector observed that dietary requirements were not addressed in Resident D’s care plan. Peachtree submitted a document at the hearing purporting to be a copy of Resident D’s care plan, Respondent’s Exhibit 56. However, for the reasons set forth above under Citations No. 34 and 35 discussing this same document but submitted as Respondent’s Exhibit 48, the court finds that no weight should be given to Exhibit 56.

Conclusions: Section 703(B)(5) requires that the ICP for each resident describe the resident’s dietary needs. 25A S.C. Code Ann. Regs. 61-84 § 703(B)(5) (Supp. 2007). Based on the findings of fact stated above, the court concludes that Peachtree violated § 703(B)(5) on November 14, 2006, a Class II violation.

Section 703(C)

Citation No. 41 (Care Planning/Record Keeping)

Findings: On November 14, 2006, a Department inspector observed that the goals and dates of achievement were not adequately addressed in the ICPs of Residents C, D, E, and O. The inspector cited the facility for violating § 703(C). Peachtree submitted two documents, Respondent’s Exhibits 57 and 58, in response to this citation. However, for the reasons set forth above under Citations No. 34 and 35 as well as 36 and 37, the court finds that no weight should be given to either exhibit.

Conclusions: Section 703(C) requires that the ICP for each resident delineate the responsibilities of the sponsor and of the facility in meeting the resident’s needs, including specific goal-oriented objectives based on the needs of the resident, adjunct support service needs, other special needs, and the methods for achieving objectives and meeting needs in measurable terms with expected achievement dates. 25A S.C. Code Ann. Regs. 61-84 § 703(C) (Supp. 2007). Based on the findings of fact stated above, the court concludes that Peachtree violated § 703(C) on November 14, 2006, a Class III violation.

Section 801(D)

Citation No. 42 (Health and Safety)

Findings: On November 14, 2006, a Department inspector observed Resident C at Peachtree who had a foley catheter and percutaneous endoscopic gastrostomy (“PEG”) tube and who was in need of care beyond that which the facility is licensed to provide. There was no documentation that the facility had made arrangements to transfer this resident to a facility that could provide the appropriate level of care. The inspector cited Peachtree for violating § 801(D). Peachtree submitted a document, Respondent’s Exhibit 59, from a physician indicating that this resident had been receiving the appropriate level of care at Peachtree. The document was dated May 29, 2007.

Conclusions: Section 801(D) requires that a resident be examined by a physician or other authorized healthcare provider regarding the possible necessity for transfer to a higher level care facility if the resident’s condition changes to such a degree that nursing home care or the daily attention of a nurse may be required. 25A S.C. Code Ann. Regs. 61-84 § 801(D) (Supp. 2007). Pursuant to § 801(D), a resident must be transferred from a CRCF facility to a location that meets the resident’s needs within thirty days if the resident’s health requires continuous medical or nursing care. Id. Pursuant to § 810(D), the resident should have been examined by a physician at that time to determine whether the resident was appropriately placed in a CRCF. The May 29, 2007 letter, dated more than six months after the alleged violation, does not meet the requirements of the regulation. Based on the findings of fact stated above, the court concludes that Peachtree violated § 801(D) on November 14, 2006, a Class I violation.

Section 901(A)(3)

Citation No. 43 (Record Keeping)

Findings: On November 14, 2006, a Department inspector found that the service plans for Residents C, D, E, and O lacked advance notice requirements for changes in fee amounts. The inspector cited the facility for violating § 901(A)(3). Peachtree admitted this violation.

Conclusions: Section 901(A)(3) requires that the facility have a written agreement with the resident and/or the resident’s responsible party, to include a provision for advance notice requirements for changes in the facility’s fee amount. 25A S.C. Code Ann. Regs. 61-84 § 901(A)(3) (Supp. 2007). Based on the findings of fact stated above, the court concludes that Peachtree violated § 901(A)(3) on November 14, 2006, a Class III violation.

Section 901(A)(4)

Citation No. 44 (Record Keeping)

Findings: On November 14, 2006, a Department inspector reviewed the service plans for Residents C, D, E, and O and observed that the plans did not address the facility’s refund policy. The inspector cited the facility for violating § 901(A)(4). Peachtree admitted this violation.

Conclusions: Section 901(A)(4), which requires that the facility have a written agreement with the resident and/or the resident’s responsible party, to include a refund policy for when monies are to be forwarded to the resident upon discharge, transfer, or relocation. 25A S.C. Code Ann. Regs. 61-84 § 901(A)(4) (Supp. 2007). Based on the findings of fact stated above, the court concludes that Peachtree violated § 901(A)(4) on November 14, 2006, a Class III violation.

Section 901(A)(5)

Citation No. 45 (Record Keeping)

Findings: On November 14, 2006, a Department inspector found that the service plans for Residents C, D, E, and O did not document the date the resident is to receive his or her personal needs allowance. The inspector cited the facility for violating § 901(A)(5). Peachtree did not present any evidence rebutting the inspector’s testimony.

Conclusions: Section 901(A)(5) requires that the facility have a written agreement with the resident and/or the resident’s responsible party, to include the date the resident is to receive his or her personal needs allowance. 25A S.C. Code Ann. Regs. 61-84 § 901(A)(5) (Supp. 2007). Based on the findings of fact stated above, the court concludes that Peachtree violated § 901(A)(5) on November 14, 2006, a Class III violation.

Section 901(C)

Citation No. 46 (Health and Safety)

Findings: On October 30, 2006, a Department inspector cited Peachtree for failure to provide supervision for residents in need of physical monitoring, in violation of § 901(C). The purpose of the Department’s October 30, 2006 visit was to investigate a complaint stemming from the death of a resident at Peachtree on the previous evening. Resident A was wheelchair-bound; the facility allowed Resident B to push Resident A in the wheelchair outside of the facility. While Resident B was pushing Resident A alongside the road, Resident A was struck and killed by a vehicle. There was no evidence that Residents A and B left the facility by clandestine means or attempted to avoid detection by Peachtree staff; rather, it appears that they simply left the facility and grounds without the notice of any staff member.

The evidence regarding the physical abilities and needs for assistance of Residents A and B diverged. For example, Donnelly testified that Resident A was “pretty much in his full right mind.” (Tr. 514). However, Resident A’s most recent ICP indicates that he was schizophrenic and experienced “frequent”—one or more per week—episodes of delusional behavior. Further, all witnesses at the hearing agreed that Resident A was wheelchair-bound; however, his ICP states that he was ambulatory with crutches. As to Resident B, the ICP states that he “wander[ed]” but that he could be “redirect[ed]” by “allowing him to work maintenance.” (Resp’t’s Ex. 12). This strategy of redirection with maintenance chores would presumably be utilized during the day. At the hearing, however, Donnelly testified that Resident B “mainly wander[ed] at night” and would have difficulty finding his way back to his room. (Tr. 517-18). He further testified that Resident B’s wandering did not occur “so much during the day.” (Tr. 519). Despite this testimony, Donnelly stated that “[w]e pretty much had one staff member that was assigned . . . [t]o watch him.” (Tr. 520; see also Tr. 671-72). Donnelly also stated that Resident B had “some mental problems, some mental retardation or whatever.” (Tr. 514). However, Resident B’s ICP contains no notation to that effect. Regardless of these discrepancies, it is clear from the evidence that both Residents A and B had special conditions requiring supervision.

Donnelly testified that one staff member was “pretty much” assigned to watch Resident B “24/7” but that “[e]veryone had a responsibility, including myself, to watch Resident B.” (Tr. 520, 671-72). He further acknowledged that the staff member with primary responsibility was not present at Peachtree on the date of the accident and that he therefore had responsibility for Resident B, but left him in “the hands of the staff that was there at the time” while he went to the store. (Tr. 672). The evidence shows that no one at Peachtree was aware that two residents with special conditions were leaving the facility at approximately 7:00 p.m. in late October. Additionally, the evidence showed that although the facility contains eighteen security cameras with a monitor that displays all eighteen locations, no one physically oversees the monitoring station.

Conclusions: Section 901(C) requires that care and services at the facility be rendered effectively and safely in accordance with physician’s orders or the orders of other authorized healthcare providers, and that appropriate assistance in activities of daily living be provided to residents as needed. 25A S.C. Code Ann. Regs. 61-84 § 901(C) (Supp. 2007). It also states that the facility is to provide only those activities of daily living and only to the acuity levels that are specifically designated in the written agreement between the facility and the resident or the resident’s responsible party. Id. Based on the findings of fact stated above, the court concludes that Peachtree failed to provide adequate supervision to residents with special conditions, thus violating § 901(C) on October 29, 2006, a Class I violation.

Section 902(G)

Citation No. 47 (Record Keeping)

Findings: On November 14, 2006, Department inspectors found no documentation of accounting of residents’ funds for two residents, C and O, whose funds were managed by the facility. No financial records were available for either resident. The inspector cited the facility for violating § 902(G). Peachtree admitted the violation as to Resident C.

Conclusions: Section 902(G) requires facilities to make an accurate accounting of residents’ personal monies and maintain written evidence of purchases by the facility on behalf of the residents, as well as written authorization from the resident for the items and services purchased. 25A S.C. Code Ann. Regs. 61-84 § 902(G) (Supp. 2007). Based on the findings of fact stated above, the court concludes that Peachtree violated § 902(G) on November 14, 2006, a Class II violation.

Section 902(H)

Citation No. 48 (Record Keeping)

Findings: During the November 14, 2006 inspection, Department inspectors found no documentation of quarterly financial reports to residents whose funds were managed by the facility. The Department was unable to identify any specific residents who were not furnished with a quarterly report.

Conclusions: Section 902(H) requires facilities to provide residents with a quarterly report of the balance of the resident’s finances, regardless of the balance amount, which includes a zero balance. 25A S.C. Code Ann. Regs. 61-84 § 902(H) (Supp. 2007). Based on the findings of fact stated above, the court concludes that the Department did not prove that Peachtree violated § 902(G) on November 14, 2006.

Section 903(E)

Citation No. 49 (Record Keeping)

Findings: At the time of its inspection on November 14, 2006, the Department noted that there was no current month’s activity schedule posted. The Department cited the facility for violating § 903(E). However, the inspector who noted this violation was not present at the hearing and did not testify as to her observations. Donnelly testified that the schedule was posted.

Conclusions: Section 903(E) requires the facility to post a current month’s schedule in order for residents to be made aware of activities offered. 25A S.C. Code Ann. Regs. 61-84 § 903(E) (Supp. 2007). Based on the findings of fact stated above, the court concludes that the Department did not prove that Peachtree violated § 903(E) on November 14, 2006.

Section 1001(A)

Citation No. 50 (Record Keeping)

Findings: When Department inspectors visited Peachtree on November 14, 2006, they interviewed several residents who expressed fear of retaliation by staff members for speaking with inspectors. The facility was cited for violating § 1001(A). Peachtree asserts that the Department did not cite any state, federal, or local law or regulation that Peachtree had violated, and further that the Department did not point to any action by Peachtree that justified any real or perceived fear of retaliation.

Conclusions: Section 1001(A) requires the facility to comply with all current federal, state, and local laws and regulations concerning resident care, resident rights and protections, and privacy and disclosure. 25A S.C. Code Ann. Regs. 61-84 § 1001(A) (Supp. 2007). The court finds that the Department failed to prove based on the allegation at issue that Peachtree violated a state, federal, or local law or regulation constituting a violation of § 1001(A) on November 14, 2006.

Section 1001(H)

Citation No. 51 (Record Keeping)

Findings: On November 14, 2006, Department inspectors noted that the grievance/complaint procedure posted at Peachtree contained an incorrect telephone number for the Division of Health Licensing. Peachtree admitted the violation. Peachtree claimed that it did not receive notice of a new phone number from the Department when the telephone number for the Division of Health Licensing changed. According to the Department’s testimony, however, the telephone number for Health Licensing has not changed since either 2002 or 2003, long before the time Peachtree first became licensed by the State in January of 2006.

Conclusions: Section 1001(H) requires the facility to develop a grievance/complaint procedure to be exercised on behalf of the residents to enforce the Residents’ Bill of Rights which includes the address and the phone number of the Division of Health Licensing, and a provision prohibiting retaliation should the grievance right be exercised. 25A S.C. Code Ann. Regs. 61-84 § 1001(H) (Supp. 2007). Based on the findings of fact stated above, the court concludes that Peachtree violated § 1001(H) on November 14, 2006, a Class II violation.

Section 1101(A)

Citation No. 52 (Record Keeping)

Findings: On November 14, 2006, a Department inspector found that Resident C’s admission physical in his record was not signed by a physician. The inspector also found that the resident’s admission physical did not address the propriety for residential care placement and whether the resident could self-medicate. The inspector cited the facility for violating § 1101(A).

Peachtree submitted a copy of the resident’s admission physical at the hearing of this matter, marked Respondent’s Exhibits 61 and 62, in response to this violation. It later submitted the original document for comparison. The original document contained additional information in response to one of the questions, which was not included on the two copies provided at the hearing. Peachtree’s administrator admitted to marking new information on the document, which should have been filled out by a physician. Accordingly, the court finds that this affects the reliability of these exhibits and therefore gives them little weight.

Conclusions: Section 1101(A) states that a physical examination shall be completed for residents within thirty days prior to admission and at least annually thereafter. 25A S.C. Code Ann. Regs. 61-84 § 1101(A) (Supp. 2007). The physical examination shall address the appropriateness of placement of the resident in a CRCF. Id. Based on the findings of fact stated above, the court concludes that Peachtree violated § 1101(A) on November 14, 2006, a Class I violation.


Section 1101(B)

Citation No. 53 (Health and Safety)

Findings: During the November 14, 2006 visit, a Department inspector found that there was no documentation of the chest x-ray and results for Resident C, whose admission physical indicated that he had a positive purified protein derivative (“PPD”) test and chest x-ray conducted. Also, the inspector found that there was no documentation of a two-step TB test in Resident D’s records. The inspector cited the facility for violating § 1101(B).

Peachtree submitted a copy of the chest x-ray results for Resident C as Respondent’s Exhibit 62. Also, Peachtree submitted a copy of documentation of a chest x-ray performed on Resident D at the hearing, marked Respondent’s Exhibit 63. Peachtree claimed that no second TB test was required for Resident D because the patient had a chest x-ray performed.

Conclusions: Section 1101(B) requires that the admission physical examination include a two-step tuberculin skin test, as described in § 1702. 25A S.C. Code Ann. Regs. § 1101(B) (Supp. 2007). The regulation addresses the requirement of a chest x-ray only for situations where the TB test result is positive. Based on the findings of fact stated above, the court concludes that Peachtree violated § 1101(B) with regard to Resident D on November 14, 2006, a Class I violation. Peachtree previously violated § 1101(B) on May 31, 2006 and on June 22, 2006. Thus, this is Peachtree’s third violation of § 1101(B) within a 36-month period.

Section 1201(A)


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