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). 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. 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); 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).
“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)).
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 (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. 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. 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, 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) |