ORDERS:
2.The State Certification of Need and Health Facility Licensure Act governs the
operation of CRCFs. S.C. Code Ann. §§ 44-7-250 (2002) provides that the Department “shall
establish and enforce basic standards for the licensure, maintenance, and operation of health
facilities and services to ensure the safe and adequate treatment of persons served in this State.”
Pursuant to that authority, Regulation 61-84, entitled “Standards for Licensing Community
Residential Care Facilities,” was promulgated to establish standards for the “licensure,
maintenance, and operation” of CRCFs. A Community Residential Care Facility is defined in
Regulation 61-84 §101(L) as:
A facility which offers room and board and which, unlike a boarding house,
provides/coordinates a degree of personal care for a period of time in excess
of 24 consecutive hours for two or more persons, 18 years old or older, not
related to the licensee within the third degree of consanguinity. It is
designed to accommodate residents' changing needs and preferences,
maximize residents' dignity, autonomy, privacy, independence, and safety,
and encourage family and community involvement. Included in this
definition is any facility (other than a hospital), which offers or represents
to the public that it offers a beneficial or protected environment specifically
for individuals who have mental illness or disabilities. These facilities may
be referred to as "assisted living" provided they meet the above definition of
community residential care facility.
“Personal Care” is defined as the provision of services that are “required by the individual care
plan or orders by the physician or other authorized healthcare provider or as reasonably
requested by the resident. . . .” 25A S.C. Code Ann. Regs. 61-84 §101(LL) (Supp. 2003). Such
services include assisting with the activities of daily living, being aware of the resident’s
whereabouts, and monitoring the resident while on the premises of the facility to insure his/her
safety and well-being. Id.
3.As set forth above, CRCFs must comply with the provisions of the State
Certification of Need and Health Facility Licensure Act and 25AS.C. Code Ann. Regs. 61-84
(Supp. 2003). Specifically, the licensee of a CRCF has the ultimate responsibility for
compliance with the regulations. See Regulation 61-84 § 101(FF). Furthermore, “[a]ll facilities
are subject to inspection/investigation at any time without prior notice by individuals authorized
by S.C. Code of Laws.” Regulation 61-84 § 202(B).
Penalty
4.In making the determination of whether to bring an enforcement action based
upon a facility’s violations, the Department shall consider:
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.
Regulation 61-84 § 301(E). When the Department determines that a facility is in violation of
any statutory provision or regulation relating to the operation or maintenance of such facility, the
Department, upon proper notice to the licensee, may impose a monetary penalty, deny, suspend,
or revoke licenses. Regulation 61-84 § 301. Additionally, Section 302 of Regulation 61-84
provides a schedule to be used as a guide to determine the amount of a monetary penalty.
Section 302 sets forth the different violation levels under which a licensee may be sanctioned.
Those levels are categorized as Class I, Class II, or Class III violations, with a Class I violation
being the most serious. The “Classes” are described under Section 302 as follows:
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.
Therefore, the penalty guidelines provided in Section 302 are used in conjunction with an
analysis of the factors listed in Section 301(E), the level of the violation and the frequency of the
violation within a thirty-six (36) month period. However, “[c]onsideration to . . . assess
monetary penalties is not limited to information relating to the current licensing year but
includes consideration of all pertinent information regarding the facility and the applicant.” S.C.
Code Ann. 44-7-320(A)(2) (2002). Furthermore, inherent in and fundamental to the powers of
an Administrative Law Judge, as the trier of fact in contested cases under the Administrative
Procedures Act, is the authority to decide the appropriate sanction when such is disputed based
on the facts presented at the contested case hearing. Walker v. South Carolina ABC Comm’n,
305 S.C. 209, 407 S.E. 2d 633 (1991).
The suggested penalties based upon the Respondent’s violations of Regulation 61-84 are
as follows:
a.Respondent failed to timely submit an acceptable written plan of correction after
being cited for violations of Section 202(D) on three occasions. This is a Class II
violation in which the suggested penalty is $1,000 to $3,000.
b.Respondent failed to properly train the Facility’s staff in violation of Section
504(A) on four occasions. This is a Class I violation in which the suggested
penalty is $5,000.
c.Respondent failed to maintain notes of resident observation in violation of
Section 701(B)(6) on three occasions. This is a Class II violation in which the
suggested penalty is $1,000 to $3,000.
d.Respondent failed to maintain a photograph of each resident within the Facility’s
records in violation of Section 701(B)(10) on three occasions. This is a Class II
violation in which the suggested penalty is $1,000 to $3,000.
e.Respondent failed to develop and maintain individual care plans for its residents
in violation of Section 703 on three occasions. This is a Class II violation in
which the suggested penalty is $1,000 to $3,000.
f.Respondent failed to document that the Facility’s residents had been given
physical examinations within 30 days prior to their admission in violation of
Section 1101(A) on four occasions. This is a Class II violation in which the
suggested penalty is $2,000 to $5,000.
g.Respondent failed to properly store medications as required by Section 1206(A)
on two occasions. This is a Class I violation in which the suggested penalty is
$2,000 to $5,000.
h.Respondent failed to properly maintain a disaster plan as required by Section
1401 on four occasions. This is a Class II violation in which the suggested
penalty is $2,000 to $5,000.
i.Respondent failed to properly maintain its Facility in violation of Section 1601
(A) on five occasions. This is a Class II violation in which the suggested penalty
is $1,000 to $3,000.
j.Respondent failed to document that its staff had properly received tuberculin (TB)
skin tests in violation of Section 1702(B)(1) on three occasions. This is a Class I
violation in which the suggested penalty is $2,000 to $5,000.
k.Respondent failed to implement a Quality Improvement Plan in violation of
Section 1801 from October 17, 2001 to December 18, 2003. This is a Class II
violation in which the suggested penalty is $2,000 to $5,000.
The guidelines suggest a penalty ranging from $20,000 to $45,000 for these violations.
Respondent asserts that the penalty should be reduced because no residents were injured as a
result of any of the infractions in this case. In general, I recognize there is no evidence of any
documented injuries. Nevertheless, the purpose of the regulations is to ensure the safety and
welfare of the residents. The Department would not necessarily be informed of harm or
mistreatment of residents resulting from the failure to follow the regulations. In fact, the
regulations were implemented to safeguard residents because government officials cannot be at
the location twenty-four (24) hours a day.Furthermore, there were residents at the Facility for
which there was no documentation that they had received physical examinations prior to their
admission. Those residents potentially should not have been in the Facility.
Here, the licensee failed to make sufficient efforts to correct cited violations which
consequently resulted in a history of non-compliance. I, nonetheless, choose to depart from the
guidelines despite the fact that I find Respondent’s conduct patently lacking what should be and
is expected of a CRCF. Respondent was not punished for her numerous previous violations of
the regulations. Dennis Gibbs, Director of the Division of Health Licensing, testified that the
Department deferred imposing a penalty “as long as possible” in hopes that by the consultations
and repeated visits the issues with the Facility could be resolved. He added that penalties were
only imposed when “we absolutely feel that we’re compelled to.” Though the Department’s
delay in implementing the fines was not only understandable but laudable, the delay nevertheless
placed Respondent in the position of incurring a substantial monetary penalty in the
Department’s first enforcement action. Moreover, Respondent’s Facility only has two residents.
I find that given the very small size of Respondent’s business operation, the fines suggested in
the guidelines would exponentially impact the Facility. Additionally, the violations involving
Respondent’s failure to properly store medications were based upon the fact that the medication
was not protected from moisture. I do not believe that failing to protect medication from the
potential of a water leak below a sink warrants a fine of $2,000.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that Kountry Kare remit the sum of $10,000 to the Department within sixty
(60) days from the date of this Order.
AND IT IS SO ORDERED.
_____________________________
Ralph King Anderson, III
Administrative Law Judge
February 15, 2005
Columbia, South Carolina 2. The State Certification of Need and Health Facility Licensure Act governs the
operation of CRCFs. S.C. Code Ann. §§ 44-7-250 (2002) provides that the Department “shall
establish and enforce basic standards for the licensure, maintenance, and operation of health
facilities and services to ensure the safe and adequate treatment of persons served in this State.”
Pursuant to that authority, Regulation 61-84, entitled “Standards for Licensing Community
Residential Care Facilities,” was promulgated to establish standards for the “licensure,
maintenance, and operation” of CRCFs. A Community Residential Care Facility is defined in
Regulation 61-84 §101(L) as:
A facility which offers room and board and which, unlike a boarding house,
provides/coordinates a degree of personal care for a period of time in excess
of 24 consecutive hours for two or more persons, 18 years old or older, not
related to the licensee within the third degree of consanguinity. It is
designed to accommodate residents' changing needs and preferences,
maximize residents' dignity, autonomy, privacy, independence, and safety,
and encourage family and community involvement. Included in this
definition is any facility (other than a hospital), which offers or represents
to the public that it offers a beneficial or protected environment specifically
for individuals who have mental illness or disabilities. These facilities may
be referred to as "assisted living" provided they meet the above definition of
community residential care facility.
“Personal Care” is defined as the provision of services that are “required by the individual care
plan or orders by the physician or other authorized healthcare provider or as reasonably
requested by the resident. . . .” 25A S.C. Code Ann. Regs. 61-84 §101(LL) (Supp. 2003). Such
services include assisting with the activities of daily living, being aware of the resident’s
whereabouts, and monitoring the resident while on the premises of the facility to insure his/her
safety and well-being. Id.
3. As set forth above, CRCFs must comply with the provisions of the State
Certification of Need and Health Facility Licensure Act and 25AS.C. Code Ann. Regs. 61-84
(Supp. 2003). Specifically, the licensee of a CRCF has the ultimate responsibility for
compliance with the regulations. See Regulation 61-84 § 101(FF). Furthermore, “[a]ll facilities
are subject to inspection/investigation at any time without prior notice by individuals authorized
by S.C. Code of Laws.” Regulation 61-84 § 202(B).
Penalty
4. In making the determination of whether to bring an enforcement action based
upon a facility’s violations, the Department shall consider:
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.
Regulation 61-84 § 301(E). When the Department determines that a facility is in violation of
any statutory provision or regulation relating to the operation or maintenance of such facility, the
Department, upon proper notice to the licensee, may impose a monetary penalty, deny, suspend,
or revoke licenses. Regulation 61-84 § 301. Additionally, Section 302 of Regulation 61-84
provides a schedule to be used as a guide to determine the amount of a monetary penalty.
Section 302 sets forth the different violation levels under which a licensee may be sanctioned.
Those levels are categorized as Class I, Class II, or Class III violations, with a Class I violation
being the most serious. The “Classes” are described under Section 302 as follows:
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.
Therefore, the penalty guidelines provided in Section 302 are used in conjunction with an
analysis of the factors listed in Section 301(E), the level of the violation and the frequency of the
violation within a thirty-six (36) month period. However, “[c]onsideration to . . . assess
monetary penalties is not limited to information relating to the current licensing year but
includes consideration of all pertinent information regarding the facility and the applicant.” S.C.
Code Ann. 44-7-320(A)(2) (2002). Furthermore, inherent in and fundamental to the powers of
an Administrative Law Judge, as the trier of fact in contested cases under the Administrative
Procedures Act, is the authority to decide the appropriate sanction when such is disputed based
on the facts presented at the contested case hearing. Walker v. South Carolina ABC Comm’n,
305 S.C. 209, 407 S.E. 2d 633 (1991).
The suggested penalties based upon the Respondent’s violations of Regulation 61-84 are
as follows:
a. Respondent failed to timely submit an acceptable written plan of correction after
being cited for violations of Section 202(D) on three occasions. This is a Class II
violation in which the suggested penalty is $1,000 to $3,000.
b. Respondent failed to properly train the Facility’s staff in violation of Section
504(A) on four occasions. This is a Class I violation in which the suggested
penalty is $5,000.
c. Respondent failed to maintain notes of resident observation in violation of
Section 701(B)(6) on three occasions. This is a Class II violation in which the
suggested penalty is $1,000 to $3,000.
d. Respondent failed to maintain a photograph of each resident within the Facility’s
records in violation of Section 701(B)(10) on three occasions. This is a Class II
violation in which the suggested penalty is $1,000 to $3,000.
e. Respondent failed to develop and maintain individual care plans for its residents
in violation of Section 703 on three occasions. This is a Class II violation in
which the suggested penalty is $1,000 to $3,000.
f. Respondent failed to document that the Facility’s residents had been given
physical examinations within 30 days prior to their admission in violation of
Section 1101(A) on four occasions. This is a Class II violation in which the
suggested penalty is $2,000 to $5,000.
g. Respondent failed to properly store medications as required by Section 1206(A)
on two occasions. This is a Class I violation in which the suggested penalty is
$2,000 to $5,000.
h. Respondent failed to properly maintain a disaster plan as required by Section
1401 on four occasions. This is a Class II violation in which the suggested
penalty is $2,000 to $5,000.
i. Respondent failed to properly maintain its Facility in violation of Section 1601
(A) on five occasions. This is a Class II violation in which the suggested penalty
is $1,000 to $3,000.
j. Respondent failed to document that its staff had properly received tuberculin (TB)
skin tests in violation of Section 1702(B)(1) on three occasions. This is a Class I
violation in which the suggested penalty is $2,000 to $5,000.
k. Respondent failed to implement a Quality Improvement Plan in violation of
Section 1801 from October 17, 2001 to December 18, 2003. This is a Class II
violation in which the suggested penalty is $2,000 to $5,000.
The guidelines suggest a penalty ranging from $20,000 to $45,000 for these violations.
Respondent asserts that the penalty should be reduced because no residents were injured as a
result of any of the infractions in this case. In general, I recognize there is no evidence of any
documented injuries. Nevertheless, the purpose of the regulations is to ensure the safety and
welfare of the residents. The Department would not necessarily be informed of harm or
mistreatment of residents resulting from the failure to follow the regulations. In fact, the
regulations were implemented to safeguard residents because government officials cannot be at
the location twenty-four (24) hours a day. Furthermore, there were residents at the Facility for
which there was no documentation that they had received physical examinations prior to their
admission. Those residents potentially should not have been in the Facility.
Here, the licensee failed to make sufficient efforts to correct cited violations which
consequently resulted in a history of non-compliance. I, nonetheless, choose to depart from the
guidelines despite the fact that I find Respondent’s conduct patently lacking what should be and
is expected of a CRCF. Respondent was not punished for her numerous previous violations of
the regulations. Dennis Gibbs, Director of the Division of Health Licensing, testified that the
Department deferred imposing a penalty “as long as possible” in hopes that by the consultations
and repeated visits the issues with the Facility could be resolved. He added that penalties were
only imposed when “we absolutely feel that we’re compelled to.” Though the Department’s
delay in implementing the fines was not only understandable but laudable, the delay nevertheless
placed Respondent in the position of incurring a substantial monetary penalty in the
Department’s first enforcement action. Moreover, Respondent’s Facility only has two residents.
I find that given the very small size of Respondent’s business operation, the fines suggested in
the guidelines would exponentially impact the Facility. Additionally, the violations involving
Respondent’s failure to properly store medications were based upon the fact that the medication
was not protected from moisture. I do not believe that failing to protect medication from the
potential of a water leak below a sink warrants a fine of $2,000.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that Kountry Kare remit the sum of $10,000 to the Department within sixty
(60) days from the date of this Order.
AND IT IS SO ORDERED.
_____________________________
Ralph King Anderson, III
Administrative Law Judge
February 15, 2005
Columbia, South Carolina |
