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

SC Administrative Law Court Decisions

CAPTION:
SCDHEC vs. Southern Heritage Residential Care

AGENCY:
South Carolina Department of Health and Environmental Control

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

Respondent:
Southern Heritage Residential Care
 
DOCKET NUMBER:
01-ALJ-07-0127-CC

APPEARANCES:
Nancy S. Layman, Esquire, for DHEC

William T. Toal, Esquire, for the Respondent
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter came before the Administrative Law Judge Division (Division) at the request of the Respondent, Southern Heritage Residential Care (Southern Heritage), for a contested case hearing appealing the decision of the South Carolina Department of Health and Environmental Control (Department or DHEC) to revoke the Respondent's license to operate a community residential care facility and to impose a $7,300.00 civil monetary penalty. A hearing was held before me at the offices of the Division on October 16, 2001, and October 17, 2001, in Columbia, South Carolina.

BURDEN OF PROOF

The Department, through its Final Agency Determination letter dated February 22, 2001, is seeking the revocation of Southern Heritage's license based upon repeated violations of the Department's regulations. Basic principles of administrative law establish that an agency bears the burden of proof in an enforcement action. See Peabody Coal Co. v. Ralston, 578 N.E. 2d 751 (Ind. Ct. App. 1991); Shipley, South Carolina Administrative Law § 5-79, 5-80 (1989). Because the Department is seeking enforcement of its Final Agency Determination, it bears the burden of proof in establishing that Southern Heritage committed the alleged violations. The caption, therefore, is amended to reflect the correct allocation of the burden of proof in this matter.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits and arguments presented at the hearing of this matter, and taking into account the credibility and reliability of the evidence, I make the following findings of fact by a preponderance of the evidence:

General Findings

1. Notice of the time, date, place and nature of the hearing was timely given to the parties.

2. Southern Heritage is a community residential care facility (CRCF) as defined by 25A S.C. Code Ann. Regs. 61-84 §101 (E) (1989 & Supp. 2000) located in West Columbia, South Carolina. It was licensed by the Department pursuant to the State Certification of Need and Health Facility Licensure Act, found under S.C. Code Ann. §§ 44-7-110 et seq. (Supp. 2000). The CRCF is licensed to Jonathan Douglas and the Administrator of record listed with the Department was Roxanne Krolly.

3. The Department conducts complaint investigations, general inspections, follow-up inspections and fire/life safety inspections of residential care facilities pursuant to S.C. Code Ann. §§ 44-7-110 et seq. (Supp. 2000) to determine a facility's compliance with 25A S.C. Code Ann. Regs. 61-84 (1989 & Supp. 2000). General inspections, conducted at least every two (2) years, are of the entire facility and its records along with interviews of staff and residents. Additionally, complaint investigations are processed as the Department receives them and focus more narrowly on the subject of the complaint.

Following an inspection or investigation, the Department leaves a copy of its Compliance Report with the facility. The facility then has fifteen(15) days to respond to any cited violations by explaining corrective action the facility has taken (or will take), the means by which the facility will prevent recurrences of violations, and completion dates for those actions. Penalty actions, including the imposition of a monetary penalty and suspension or revocation of a CRCF license, are contingent upon the compliance history of the facility as well as the severity of the violations.

4. After a complaint investigation on January 18, 2001, the Department suspended the license of Southern Heritage for failure to comply with licensing standards. On January 23, 2001, a preliminary hearing was held on this matter in accordance with S.C. Code Ann. § 44-7-320(A)(3) (Supp. 2000) to review the Department's determination to suspend the Respondent's license. Afterwards, the Department revoked the license of Southern Heritage and imposed a monetary penalty of $7,300.00 on February 22, 2001.

Compliance History of Southern Heritage

5. In December 2000, the Department received a complaint regarding the Southern Heritage facility. In response to these allegations, Department inspectors began an investigation of the facility on January 11, 2001. A follow-up visit was made on January 17, 2001 to conclude the investigation and to conduct the exit interview for the report. (1) The January 2001 investigations revealed the following violations of 25A S.C. Code Ann. Regs 61-84 (1989 & Supp. 2000): (2)

a. A pre-employment physical for one of three (3) facility employees was unavailable for review in violation of Section 204(B), which provides that: "All employees who will have contact with residents shall have a physical examination by a physician prior to employment. . . ." This is a Class III violation. ($100.00).



b. There was no documentation of disaster plan training for three (3) employees in violation of Section 204(C), which provides, in part, that: "Each employee shall be familiar with the facility's emergency/disaster plans." This is a Class II violation. ($100.00).



c. Five (5) of the residents' records failed to have the signature of the resident or responsible party acknowledging that the residents' Bill of Rights had been explained and two (2) failed to have the signature of the resident or responsible party acknowledging explanation of the grievance procedure. Section 209(B) provides that: "Each resident or his representative must be given by the facility a written and oral explanation of the rights, grievance procedures, and enforcement provisions of this section before or at the time of admission. Written acknowledgment of the receipt of the explanation by the resident or his representative shall be made a part of the resident's file." This is a Class II violation. ($100.00).



d. One of the records reviewed failed to have the signature of the resident or responsible party acknowledging explanation of the facility's charges and services in violation of Section 209(B)(1), which provides that: "Each resident and his representative must be informed in writing, prior to or at the time of admission, of available services and of related charges, including all charges not covered either under federal or state programs, or by other third party payers, or by the facility's basic per diem rate. Each resident and his representative must be informed in writing of any subsequent change in services or charges." This is a Class II violation. ($100.00).



e. There was no documentation of a current annual medical examination by a physician attesting to propriety of placement for four (4) long-term residents. Additionally, there was no documentation of pre-admission medical examinations by a physician attesting to the propriety of placement for four (4) other residents admitted to the facility within the last twelve (12) months in violation of Section 402(C). That section provides that: "A report of medical examination by a physician conducted no longer than 30 days before admission must be filed in the resident's health record. At a minimum, this report must be conducted annually and must address any special care requirement and attest to the propriety of residential care placement." This is a Class I violation. ($200.00).



f. The care plans for eight (8) of the residents were either not signed by the facility staff preparing the care plans or by the resident and/or responsible party. Additionally, six (6) of the residents' care plans were not dated and, therefore, it could not be determined if the care plans were current and updated or revised annually, as required pursuant to Section 506. Section 506 provides, in part, that: "The sponsor and the administrator (or designee) must develop an individual plan of care with the resident within 7 days of admission. These parties must sign the plan: the administrator (or designee), the resident, and when appropriate the sponsor." This is a Class II violation. ($100.00).



The facility timely responded to those violations on January 23, 2001. In that response, the facility assured the Department that all violations would be corrected and that signatures on required documents would be signed by the "proper parties" and attained "at the time of admission."

6. The Department contends that a resident's records failed to have the signature of the resident or responsible party acknowledging explanation of the facility's charges and services. Section 209(B)(4) provides that: "Each resident or his representative may manage his personal finances unless the facility has been delegated in writing to carry out this responsibility, in which case the resident must be given a quarterly report of his account." The Department's evidence concerning this violation was very vague. Therefore, I find that the Department failed to establish this violation.

7. No evidence was offered concerning the following violations of Regulation 61-84: Section 204(A - E) (cited 4/2/99); Section 901(B) (cited 4/2/99); Section 902(C) (cited 4/12/99);

Section 1003(A) (cited 1/11/01); Section 1005(A)(3) (cited 1/11/01); and Section 2002 (cited 9/28/99 and 1/17/01).

Complaint Investigation of Southern Heritage

8. On January 18, 2001, the day after the general inspection was concluded, the Department received a complaint that there was no staff at the Southern Heritage facility to provide care to the residents. After receiving the complaint, the Department immediately initiated an investigation. The Department's staff arrived at the facility at about 11:30 a..m., by which time a facility staff person was present, along with representatives from the South Carolina Department of Social Services (DSS), the Ombudsman's office, and the West Columbia Police Department (WCPD).

Southern Heritage is licensed for ten (10) residents, although nine (9) residents were living at the facility on January 18, 2001. When the Department's inspectors arrived, eight (8) residents were actually at the location. The residents were infirm, elderly ladies in their 70s and 80s who suffered from varying degrees of dementia and at least one of whom had been diagnosed as schizophrenic. The residents had been left unattended, without food or medication, on the night of January 17, 2001 through the morning of January 18, 2001. One resident, an incoherent elderly lady who was wedged between the mattress and the side railing of her bed and unable to extricate herself, was found by the WCPD officers on the morning of January 18, 2001. Upon discovering this resident, police officers called an ambulance to transport her to the hospital.

9. After they arrived at the facility, the Department's staff interviewed representatives of the facility, DSS, the Ombudsman's office, the WCPD, and the residents. They reviewed resident records and toured the facility, both inside and out. The January 18, 2001 investigation revealed the following violations of 25A S.C. Code Ann. Regs. 61-84 (1989 & Supp. 2000): (3)

a. The license of the administrator of record was not posted in the facility. Section 203(C) provides that: "If licensure of administrators of community residential care facilities is required by statute, then provisions of the statute shall be complied with and shall supersede the provisions of subsections 203(A)(2) through (4)." Section B further provides that: "There shall be an individual designated in writing to act in the absence of the administrator." This is a Class I violation. ($200.00).



b. The residents were left unattended and unsupervised from sometime in the evening of January 17, 2001 until the morning of January 18, 2001 at approximately 10:00 a.m. Section 305 provides, in relevant part, that: "Residents shall be supervised at all times. . . ." Section 404(A) provides that: "There must be a responsible member of the staff actively on duty at all times that the facility is occupied and immediately accessible to all residents to whom the residents can report injuries, symptoms of illness, or emergencies and who is responsible for assuring that appropriate action is taken promptly. This responsible member of the staff is defined as a mature person of legal age, who through training or work experience, is capable of recognizing and reporting significant changes in the physical or mental condition of each resident." Section 601(B) provides, in part, that: "there shall be at least one staff member for each ten residents or fraction thereof on duty during all periods of peak resident activity." These are Class I violations. ($1,000.00).



c. The individual administering the medications on January 18, 2001, did not observe a resident taking her medicine. Section 901(A) provides that: "The licensee shall have readily available items necessary for proper administration of medications and for the rendering of first-aid. The administrator must ascertain that medications are in fact taken by the resident in accordance with the physician's orders." This is a Class I violation. ($200.00).





d. There was no documentation of the administration of evening medication for seven (7) of nine (9) residents on January 18, 2001. Section 901(B) provides that: "Medications cards/health records or acceptable substitutes for each resident shall be used and checked with the physician's orders to assure the proper administration of medications. Each dose administered or supervised shall be properly recorded on the resident's health record and will include the medication's name, dosage, mode of administration, date, time, and signature of the individual administering or supervising the taking of such medications." This is a Class I violation. ($500.00).



e. The records indicated that a patient's prescription for a particular medication had previously run out. Therefore, the facility administrator could not establish that the resident had actually been given that medication. Section 901(E) provides that: "The administrator shall assure that residents who are maintained on medication keep regularly scheduled medical check-up appointments, that timely refills of medicines are effected, and that residents do not run out of prescribed medicines." This is a Class I violation. ($200.00).



f. The person administering the medications on January 18, 2001 was administering medications that had been pre-set at an undetermined time. Section 902(C) provides, in part, that: "The licensee shall establish and maintain a procedure for ensuring that each resident has available only that medication in accordance with the physician's orders." Presetting a patient's medications is not prohibited by this regulation. However, I find that Ms. Davis' actions in administering medication from containers that she did observe being prepared was not a sufficient procedure to insure that the medication was administered in accordance with the physician's orders. This is a Class I violation. ($2,000.00).



g. Several residents' prescription medications were found "stored" in a staff member's purse. Section 902(D) provides that: "All medicine under the control of, and distributed by the facility shall be properly labeled and stored in a locked cabinet." This is a Class I violation. ($200.00).



h. Medications are required to be stored in a secured location. However, numerous medications were observed being stored throughout the residence in unsecured locations, e.g., in a bedroom (in a purse) and the kitchen. Section 902(F) provides that: "Medication for any resident whose physician has not authorized in writing the self-administration of his own medications shall not be left in the resident's room. All such medication shall be under the control of, and distributed by the administrator or the administrator's designee." This is a Class I violation. ($200.00).



i. Three (3) of the patients' medications in the facility had expired. Section 902(H)(1) provides, in part, that: "Residents' drugs shall be destroyed by the administrator and the destruction witnessed . . . when [t]he medicine has deteriorated or exceeded its safe shelf life. . . ." This is a Class I violation. ($200.00).



j. On January 18, 2001, the residents were not fed their morning meal until 12:30 p.m. and had not eaten since the evening meal of January 17, 2001. Section 1005(D) provides that: "Specific times for serving meals shall be established and followed." This is a Class II violation. ($100.00).



10. The Department contends that a resident of the facility had been restrained in bed by the use of bed rails in violation of Section 305(B). Section 305(B) requires that: "No physical restraint of any type shall be used in the facility except in cases of extreme emergency, and then only as ordered by a physician until appropriate medical care can be secured." In this case, the violation involved the alleged improper use of bed rails. Jerry Paul, the Department's Director of Health Licensing, presented the following testimony concerning the use of bed rails:

MR. PAUL: Now, we've discussed many a time with the nurses and all what the difference between someone being restrained in a bed with a bed rail versus someone using a bed rail for transfer purposes because it's not unusual to find a hospital type bed in a CRCF, and the difference is if the rail is up to keep the person in the bed, then it's a restraint. If the rail is there to allow the person to remove themselves from the bed like to transfer to a wheelchair, which is also very common, then it's not a restraint. But in either case we would go back to the record and look in the record and see what kind of medical notes we have about whether a physician had authorized the facility to use the bed rail to start with is the documentation for that.



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THE COURT: Let me ask you a few questions in this regard. If the individual is ambulatory and there are bed rails on the bed that are up, is that considered a restraint?



MR. PAUL: Not necessarily. Again, we would go back and look into the record to try to ascertain why that person had those bed rails. Now, they could be ambulatory, but they still may need those bed rails to like get into bed or get out of bed.



* * *

If the person is ambulatory and can get in and out of that bed on their own with those rails, then it would not be a restraint. But again, the way I'm going to back that up is I'm going to go to that medical record and that care plan and I'm going to look that up to try to find out why the facility is using a bed rail for that individual and the other thing ...



THE COURT: Is the care plan required or supposed to have a reference to a bed rail if it's used at all, even if it's used for transfer?



MR. PAUL: Yes, it should, again because of this ongoing issue about when is the bed rail a restraint and when is it used for transfer and also you can have multiple bed rails. You can [have] more than one bed rail on the bed.



No other evidence was offered concerning this violation. (4) Therefore, I find that the evidence failed to sustain this violation.

11. The Department contends that the light in the shower was hanging by two wires and the electric outlet cover was missing in the first bedroom from the kitchen in violation of Section 801. Section 801 provides that: "A facility's structure, furnishings and its component parts, and all equipment such as elevators, furnaces and emergency lights, shall be kept in good repair and operating condition." Southern Heritage admitted to the exposed wiring in the shower. However, the Department failed to prove that outlet cover was missing.

12. The Department contends that the first bed in the second bedroom off the kitchen had a urine-stained mattress and box springs and that unsecured toxic agents were observed throughout the facility. Section 802(A) provides, in part, that: "A facility shall be kept neat, clean and free from odors." The Respondent admitted that there was an odor of urine in two of the rooms but denied the remaining portion of the allegations. Furthermore, the Department offered no proof concerning the remaining allegations. I therefore find that the odor of urine existed in two rooms in violation of Section 802(A). This is a Class II violation with the Department seeking a $100.00 fine. However, the Department failed to prove the citations for the stained mattress and box springs and unsecured toxic agents.

13. No evidence was offered concerning violations of Section 1001, Section 1007 (B)(4), Section 1008(B)(5)(C) and Section 2703(G). Furthermore, the evidence failed to establish a violation of Section 802(C).

The Response of Southern Heritage to the Violations

14. The Respondent admitted that on the night of January 17, 2001 through midmorning of January 18, 2001, residents of Southern Heritage were left alone without any supervision and without access to food or medication and that the licensee did not check to see whether care was being provided to these residents, in contravention of Sections 305, 404(A), and 601(B). The Respondent also acknowledged that it had no disaster plan training (a violation of § 204(C)), that signed individual care plans were absent (a violation of § 506), a resident had run out of medication (a violation of § 901(E)), that sometimes medications were "preset" (a violation of § 902(C)), medicine was not stored in a locked cabinet (a violation of § 902(D)), and medicine was not under the control of the administrator (a violation of § 902(F)).

15. In its defense, the Respondent set forth that the rails were used on the resident's bed as a "safety precaution" to insure the resident did not roll out of bed and not as a "restraint," as the Department contends. The Respondent further set forth that though the rails were not specifically ordered by a physician, that the rails "came with the bed."

16. The Respondent argued that Ms. Hill, the staff member on duty the night of January 17, was required to call Ms. Davis if for any reason she could not be at the facility. Mr. Douglas, the licensee, also admitted that he was aware that Ms. Hill had a police record of two (2) or three (3) pages. (5) Additionally, Mr. Douglas knew Ms. Hill was living at the facility, sometimes for twenty-five (25) days at a time, that she had no room of her own at the facility, and that she kept her personal belongings in a resident's room.

Furthermore, the testimony of Mr. Douglas concerning the violations in this case lacks credibility. For example, Mr. Douglas testified to the following:

a. Although Roxanne Krolly's license was on the wall of the facility, Mr. Douglas claimed she was on a "leave of absence." However, she had been gone since October or November of 2000, she had not returned by the time of this hearing, and he knew of no plans for her return. He thought she was in Tennessee, perhaps getting married to a man who was terminally ill. Furthermore, in Ms. Krolly's absence, Mr. Douglas claimed he was the "acting administrator," although no such category of license exists. He also stated he was not aware he needed to inform anyone that Ms. Krolly was absent from the facility.



b. As "acting administrator," Mr. Douglas claimed to be spending between forty (40) to fifty (50) hours per week at Southern Heritage as well as between forty (40) to fifty (50) hours per week at another facility he owns in West Columbia, licensed as "Joy." Additionally, he claimed he spent between three (3) to ten (10) hours per week at a third facility, Cedar Acres, and also spent time at his employment agency, Quality Care.



License Suspension and Revocation

17. The Department suspended the license of Southern Heritage on January 18, 2001. Afterwards, the Department revoked the facility's license and imposed a monetary penalty of $7,300 on February 22, 2001. The Department set forth, through the testimony of Jerry Paul, that it suspended and ultimately revoked the Respondent's license for the following reasons:

a. The residents were left unattended and unsupervised by a caretaker from sometime in the evening of January 17, 2001 until the morning of January 18, 2001;



b. The administrator of record did not appear at the facility until in the afternoon; and



c. The morning medications were not given to the residents on January 18, and when a staff member finally did arrive and begin dispensing the medications, the staff member dispensed preset medications and did not observe whether the resident(s) actually ingested the medication.

Correction Plan

18. Mr. Douglas stated he would enact a plan of correction to prevent recurrences of residents being left alone. His plan is to have a "family member" living at the facility, two "assistants" working at the facility and another staff person at night. Additionally, he would have an "answering system" in place to call the facility hourly to insure staff were present. Mrs. Douglas testified the facility would have an on-call system in effect should they once again operate Southern Heritage. Someone would call to check on staff "every hour on the hour" during every 24-hour period at the Joy facility as well as at Southern Heritage.

CONCLUSIONS OF LAW

Based upon the above Findings of Fact, I conclude the following as a matter of law:

General Conclusions

1. The Department is the state agency charged with the licensing and inspection of community residential care facilities as defined by 25A S.C. Code Ann. Regs. 61-84 § 101(E) (1989 & Supp. 2000). The Division has subject matter jurisdiction over contested cases arising from enforcement disputes between the Department and community residential care facilities. S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2000) and S.C. Code Ann. § 1-23-600(B) (1986 & Supp. 2000) (procedures for contested cases); S.C. Code Ann. § 44-7-320(B) (Supp. 2000) (stating that an affected party may appeal a Department staff decision by requesting an adjudicatory hearing).

2. The standard of proof in an administrative proceeding is a preponderance of the evidence, absent an allegation of fraud, or a statute or court rule requiring a higher standard. Anonymous v. State Board of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998). Therefore, in weighing the evidence in this case, the findings of fact are determined by a preponderance of the evidence. Id. Furthermore, in civil cases, the burden of proof generally rests upon the party who asserts the affirmative of an issue. 29 Am. Jur. 2d Evidence § 127 (1994); Alex Sanders, et al., South Carolina Trial Handbook § 9:3 Party With Burden, Civil Cases (2000). Here, the Department, through its Final Agency Determination letter dated February 22, 2001, issued a civil monetary penalty of $7,300.00 and revoked the license of Southern Heritage. Consequently, the Department, as the Petitioner, has the burden of proving by a preponderance of the evidence that Southern Heritage violated S. C. Code Ann. §§ 44-7-110 et seq. (Supp. 2000), entitled "State Certification of Need and Health Facility Licensure Act," and 25A S.C. Code Ann. Regs. 61-84 (1989 & Supp. 2000), entitled "Standards for Licensing Community Residential Care Facilities."

3. A community residential care facility is defined in 25A S.C. Code Ann. Regs.61-84 § 101(E) (1989 & Supp. 2000) as:

[A] facility which offers room and board and which provides a degree of personal assistance for a period of time in excess of twenty-four consecutive hours for two or more persons, eighteen years old or older, unrelated to the operator within the third degree of consanguinity. 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 the mentally ill or drug addicted or alcoholic, or provides or purports to provide any specific procedure or process for the cure or improvement of that disease or condition.



Such facilities provide personal assistance with "daily living activities," such as "walking, bathing, shaving . . . making telephone calls, obtaining appointments . . . and other similar activities." Regulation 61-84 § 101(G).

4. CRCFs are licensed by the Department pursuant to S.C. Code Ann. § 44-7-260 (Supp. 2000). The licensee is charged with knowing the standards of Regulation 61-84 and is responsible for maintaining those standards in the facility. See Regulation 61-84 § 202. Additionally, Section 203 of Regulation 61-84 provides that: "There shall be an administrator of no less than 21 years of age in charge of all functions and activities within the facility who is available and responsible within a reasonable time and distance." (emphasis added).

Sanction Against the Licensee

5. Regulation 61-84 § 103 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 103 as follows:

a. Class I violations are those which the Department determines present an imminent danger to the residents or other occupants of 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 shall exist after expiration of said time shall be considered a subsequent violation.



b. Class II violations are those which the Department determines to have a direct or immediate relationship to the health, safety or security of the facility's residents other than Class I violations. The citation of a Class II violation shall specify the time within which the violation is required to be corrected. Each day such violation shall exist after expiration of said time shall be considered a subsequent violation.



c. Class III violations are those which are not classified as serious in these regulations. The citation of a Class III violation shall specify the time within which the violation is required to be corrected. Each day such violation shall exist after expiration of said time shall be considered a subsequent violation.



Furthermore, Section 103(D) sets forth the schedule of monetary penalty ranges the Department must follow when assessing a licensee a monetary penalty for violations.

S.C. Code Ann. § 44-7-320 (A)(1) (Supp. 2000) provides that "[t]he department may deny, suspend, or revoke licenses or assess a monetary penalty against a person or facility for:

(a) violating a provision of this article or departmental regulations; [or for]



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(c) conduct or practices detrimental to the health or safety of patients, residents, clients, or employees of a facility or service."

Furthermore, Section 102 (G) of Regulation 61-84 sets forth:

When noncompliances with the Licensing Standards are detected, the licensee will be notified of the violations and at the same time instructed, or requested to provide information, as to when such items will be corrected. If an item of noncompliance is of a serious nature and is not promptly corrected, a penalty may be invoked or a license may be denied, suspended, or revoked.

(1989 & Supp. 2000). As set forth above, Section 103(D) outlines the schedule to be used to determine the amount of a monetary penalty. (6) The amount of the penalty depends upon the frequency of the violation within a twenty-four (24) month period. However, "[c]onsideration to deny, suspend, or revoke licenses or 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." Section 44-7-320(A)(2). Additionally, in determining the appropriate action to take against a facility, Section 103 of Regulation 61-84 provides that the following factors are considerations: specific conditions and their impact or potential impact on health, safety or welfare; efforts by the facility to correct; overall conditions; history of compliance; [and] any other pertinent conditions.

6. The Respondent contends that the Department may cancel/suspend the license or fine the Respondent under Section 44-7-320, but cannot do both. As set forth above, both Section 44-7-320 and Regulation 61-84 §103 state that the Department "may deny, suspend or revoke licenses or assess a monetary penalty" for violations of law or regulations. (emphasis added). In Brewer v. Brewer, 129 S.E.2d 736 (1963) the South Carolina Supreme Court addressed the meaning of the word "or." The Court held that: "The word 'or' used in a statute imports choice between two alternatives and as ordinarily used means one or the other of two but not both." Id. 129 S.E.2d at 738. In making its decision, the Court discussed those situations in which "or" is construed to mean "and." One such instance is when a document has a doubtful meaning and the remaining portion of the document points to an intent that "and" is met. The second situation is when it would be absurd not to read "and." Moreover, the South Carolina Supreme Court held in State ex rel. Moody v. Stem, 213 S.C. 465, 50 S.E.2d 175 (1948) that:

The principle is well established that penal statutes are strictly construed, and one who seeks to recover a penalty for the failure on the part of the defendant to discharge some duty imposed by law, must bring his case clearly within the language and meaning of the statute awarding the penalty. Such laws are to be expounded strictly against the offender and liberally in his favor. And it is immaterial, for the purpose of the application of the rule of strict construction whether the proceedings for the enforcement of the penal law, be criminal or civil . . . .

(citations omitted). Therefore, in construing the meaning of the statute and regulation in this case, the statute and regulation must be strictly construed against the Department.

Here, it would not be absurd to interpret the statute as requiring a choice between assessing a fine -- or suspending or revoking the Respondent's license. Furthermore, no portion of the statute clearly elucidates that the Legislature meant "and" for the word "or" in the statute or regulation. Accordingly, I find that I cannot issue an order canceling the license and fining the licensee.

7. 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. Walker v. South Carolina ABC Comm'n, 305 S.C. 209, 407 S.E. 2d 633 (1991). The Administrative Law Judge, as fact-finder, must impose a penalty based on the facts presented at the contested case hearing.

In making the decision of the appropriate penalty in this case, the interest and safety of the patients are a significant consideration. In this case, the precipitating incident was a major violation of the residents' safety: the residents were left alone for a significant period of time. Nevertheless, the licensee was not willful in committing the violations. In fact, though he hired an individual with an undisclosed criminal history, he had no reason to anticipate Ms. Hill's criminal act of abandoning the facility. He did have reason, however, to anticipate that accidents or emergencies might arise that prevent caregivers from being on the job. Though no specific departmental regulation requires that a licensee have a system to check on whether a caregiver remains at her post, it is a natural and logical requirement flowing out of the requirement that someone be present at all times. In spite of that potentiality, the licensee had no system in place to check on whether someone was in attendance.

I find that the proposed system of checking on the caregivers is adequate to promptly detect an absent caregiver. I also find that there is no pattern of injury threatening violations, which would necessitate closing the facility to protect the patients. Nevertheless, the negligence of the licensee and the multiplicity of the infractions warrants a significant suspension of the license in this case. However, as the Respondent's license has been suspended, I further find that a fine is not appropriate. (7)





ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the community residential care facility license of Southern Heritage Residential Care be suspended from February 22, 2001 to April 22, 2002.

IT IS FURTHER ORDERED THAT:

1. The Department be informed in writing within thirty (30) days of the date of this Order of the placement of each resident living at the facility on January 18, 2001; and

2. Southern Heritage shall notify the Department in writing within thirty (30) days from the date of this Order describing the arrangements it has made pursuant to § 503 of Regulation 61-84 regarding preservation of resident records.

AND IT IS SO ORDERED.

Ralph King Anderson, III

Administrative Law Judge



March 11, 2002

Columbia, South Carolina



1. The violations listed on the Department's February 22, 2001 Final Agency Determination included violations that dated back to 1999.

2. The fines levied by the Department are shown in the parentheses at the end of each violation.

3. Again, the fines levied by the Department are shown in the parentheses at the end of each violation.

4. However, the testimony concerning this violation was that the Department's examiner did not "recall" seeing an Order authorizing "physical restraint" and that he believed "it was being applied without an order." I sustained an objection to the examiner expressing his belief and asked that the question be rephrased.

5. Testimony was presented at the hearing that Ms. Hill was criminally charged for abandoning the facility.

6. Section 103 of Regulation 61-84 also provides that "the Department may deny, suspend, or revoke licenses or assess a monetary penalty for violations of provisions of law or departmental regulations."

7. In order to make a full ruling, however, I proceed to state what fines I would order were the imposition of a fine appropriate. Based on the evidence and the violations proven, I find that the fines imposed for each of the violations cited on January 17, 2001 and referenced in Finding of Fact # 5 would be appropriate. Furthermore, in light of the suspension and the reasons for the suspension, I find that a fine for violations of Sections 203C, 305, 404A, 601(B)(2), 901(B), 902(C), 902(D) and 1005(D) would be duplicative and therefore inappropriate. However, I find that the following fines would be appropriate for the respective violations occurring on January 18, 2001:



a. $100 for violation of Section 801;

b. $200 for violation of Section 901A;

c. $200 for violation of Section 901E;

d. $200 for violation of Section 902F;

e. $200 for violation of Section 902H(1).


Brown Bldg.

 

 

 

 

 

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