SC Administrative Law Court Decisions

After notice to the parties, a hearing before the ALJD was conducted on October 23, 2001. Upon review of the relevant and probative evidence and the applicable law, I find and conclude that the Facility repeatedly violated Sections 207(A), 207(C)(2), 402, 801, and 902 of S.C. Code Ann. Regs. 61-84. In addition, I find and conclude that the Facility repeatedly violated various sub-parts of Sections 504 through 506. Further, I find and conclude that the Facility did not violate Section 301(A) and did not repeatedly violate Section 2703(G). Finally, I find and conclude that the Facility must remit to the Department payment for penalties totaling $4050.00.

FINDINGS OF FACT

• Miles Residential Care is a "community residential care facility" as defined by Regulation 61-84, Section 101(E). It was licensed by the Department pursuant to the State Certification of Need and Health Facility Licensure Act, S.C. Code Ann. § 44-7-110, et seq. (Supp. 2001). The Facility is located in Columbia, South Carolina, and is licensed for seven beds.
• The Department conducts inspections of community residential care facilities to determine if the facilities are operating in compliance with Regulation 61-84. The Department conducts both general inspections and complaint investigations of facilities. The general inspections are conducted at least every twenty-four months, whereas the complaint inspections are evaluated and then conducted as DHEC's review of the complaints warrant.

• Complaints may come from a variety of sources including: staff at the facility; other state agencies such as the South Carolina Department of Mental Health; advocacy groups; home health nurses and the Veterans Administration. Also, local police departments and fire departments serving the facilities can call in complaints.
• During a general inspection, DHEC inspectors examine the entire facility to ensure that it is in compliance with Regulation 61-84. Complaint investigations focus primarily on the specific items in the complaint. However, inspectors can also investigate items at the facility that are not mentioned in the complaint. Complaint investigations are prioritized based on the severity of the complaint.
• When possible, inspectors visit facilities in teams so that one person can concentrate on reviewing maintenance at the facility while the other concentrates on medical records and other documentation required by Regulation 61-84.
• Following an inspection of a CRCF by the Department, an inspector presents the facility's administrator with a copy of a multi-page report enumerating any violations found at the facility. Prior to leaving a CRCF, the inspector often conducts an exit interview where the violations are explained. Within fifteen days, the facility must send a written response to the Department's report, indicating corrections that will be made, how they will be made, the date by which they will be made and how recurrences will be prevented.
• Monetary penalties are imposed based on the severity of the violations and their frequency. Regulation 61-84 classifies violations as Class I, II, or III, with Class I being the most serious. Licensees are put on notice regarding the severity of a violation by the designation at the end of each subsection in Regulation 61-84 as Class I, II or III.

INSPECTION HISTORY OF MILES RESIDENTIAL CARE FACILITY

• Between September 1999 and March 2001, the Department conducted nine complaint investigations, one Fire and Life Safety Inspection, and one general inspection of the Facility.

• The complaint inspections occurred on September 17 and 21, 1999; December 14, 1999; January 18, 2000; February 17, 2000; March 17, 2000; September 20, 2000; November 30, 2000; January 22, 2001; and February 13, 2001. The Fire and Life Safety Inspection occurred on December 29, 2000, and the general inspection occurred on March 22, 2001. Additionally, there were inspections of the Facility by an advocacy group, Protection and Advocacy for People with Disabilities, on February 9, 2000, and the Long Term Care Ombudsman Program on January 11, 2000, the report of which was received by DHEC on March 7, 2000.

• Betty Miles, the owner and administrator of Miles Residential Care, returned all of the Department's inspection reports with comments, stating how each alleged violation had been corrected or was not out of compliance with applicable regulations.

• Not all alleged violations cited in the inspection reports resulted in the assessment of penalties against Miles. However, the following is a list of alleged violations cited by several inspectors that did result in penalty assessments:

SECTION 207(A)

• On January 22, 2001, Darrell Crook, an employee of the Department assigned to health licensing, inspected the Facility. During that inspection, Crook examined the records of the facility and found only six names on the reports. However, there were seven residents in the facility at the time of the inspection.
• On March 22, 2001, Crook again inspected the Facility, and found that there were neither monthly statistics nor any dates of discharge of residents available for that month.

• The Department assessed a $100.00 penalty against the Facility for repeatedly violating Section 207(A), violations of which are considered "Class III" violations. The range of penalties for Class III violations is $100.00 to $500.00.

SECTION 207(C)(2)

• On December 14, 1999, Anthony Navarro, another DHEC employee assigned to Health Licensing, found that the electrical inspection report contained in the Facility's file was dated December 28, 1999, two weeks in the future from the date of Navarro's inspection. It appeared to Navarro that the year on the report had been altered with white-out.

• On March 22, 2001 Crook inspected the Facility and found neither a current heating inspection nor a current electrical inspection.
• The Department assessed a penalty of $200.00 against Miles for repeatedly violating Section 207(C0(2), violations of which are considered "Class II" violations. The range of penalties for Class II violations is $200.00 to $1,000.00.

SECTION 301(A)

• During the inspections conducted on September 17 and 21, 1999, Crook found that no doctor's orders for certain medications were present in the files of several residents who were being given those medications. ⁽⁵⁾
• During the inspection conducted on March 22, 2001, Crook found that there were no signed doctors' orders for medications being given to certain residents even though the records of those two residents indicated that the residents were taking medications requiring a doctor's order.
• The Department fined the Facility a penalty of $500.00 for repeatedly violating Section 505(B), a violation of which is a Class I violation. The minimum penalty for a second instance of a Class I violation is $500.00.

SECTIONS 504 and 505

• Several days prior to the inspection conducted on January 18, 2000, a resident, known to the Facility to wander, wandered off and did not return for several hours.
• On January 18, 2000, Crook found that the Incident Report documenting the incident was incomplete as it did not contain the date the resident had been missing.
• Also during the January 18 inspection, Crook found that a resident of the Facility had no admission record.
• During the January 22, 2001 inspection, Crook found that there was no documentation in the records of a resident that the resident had been in and out of the hospital on more than one occasion. Also, no records were available for a resident who stayed only for a day.
• The Department assessed a penalty of $1000.00 against the Facility for repeated violations of these sections, violations of which are Class I violations.

Section 506

34. During the inspection conducted on December 19, 1999, Navarro found that no documentation existed in the records of one patient that his care plan had been reviewed.

• During the inspection conducted on January 18, 2000, Crook found that the Facility did not possess a dated, complete care plan for one of its residents.
• During the March 17, 2000 inspection, Clark found that the care plan of one of the Facility's residents was incomplete.
• During the March 22, 2001 inspection, Crook found that the care plans of four residents were incomplete, lacking information regarding medications, goals, and approaches to accomplish goals, as well as lacking signatures.
• For a fourth violation of Section 506 as it pertains to individual care plans, the Department assessed a penalty of $1000.00 against the Facility.

Section 801

• During the December 14, 1999 inspection, Crook discovered an uncovered light switch, a worn-down wooden toilet seat, and construction materials lying about the Facility.
• During the March 17, 2000 inspection, Shelton Elliot, another DHEC health licensing inspector, discovered rusted and chipped tub bars in resident bathrooms; scarred, patched or unpainted walls throughout the Facility; torn floor covering in various places in the Facility; torn upholstery; and inoperable lamps.
• During the March 22, 2001 inspection, Clark found a gap at the bottom of a door leading to the staff area and loose dividers between resident toilets.
• The Department assessed a penalty of $500.00 against the Facility for repeatedly violating Section 801, violations of which are considered Class II violations.

Section 902(H)(2)

• During the December 14, 1999 inspection, Navarro found medications stored for a resident who was not longer in the Facility.
• During the March 22, 2001 inspection, Clark found medications stored in an unlocked cabinet for two residents who were no longer in the Facility.
• The Department assessed a penalty of $500.00 against the Facility for repeatedly violating Section 902(H)(2), violations of which are Class I offenses.

Section 2703(G)

• During the March 17, 2000 inspection, Elliot found an empty paper towel dispenser in the resident's bathroom.
• During the March 22, 2001 inspection, Clark found a bar of soap in the residents' shower.
• The Department assessed a penalty of $100.00 against the Facility for repeatedly violating Section 2703(G), the violation of which constitutes a Class III offense. For a second instance of a Class III violation, the minimum penalty is $100.00.
• For an assortment of violations occurring within a three year period, the Department assessed a total penalty against the Facility in the amount of $5400.00.

CONCLUSIONS OF LAW

Based upon the foregoing findings of fact, I conclude, as a matter of law, the following:

• The Administrative Law Judge Division has subject matter jurisdiction of this case pursuant to S.C. Code Ann. § 13-7-85(C) (Supp. 1999) and S.C. Code Ann. § 1-23-310 et seq. (1986 & Supp. 1999).
• The Department, as the proponent of an order seeking sanctions against a private party, has the burden of proof in this case. ALJD Rule 29(B); see also Am. Jur. 2d Administrative Law § 360 (1994)(the burden of proof is on the party asserting the affirmative in an adjudicatory administrative proceeding); Peabody Coal Co. v. Ralston, 578 N.E.2d 751 (Ind. Ct. App. 1991); David E. Shipley, South Carolina Administrative Law 5-79, -80 (1989).
• The standard of proof in administrative proceedings is a preponderance of the evidence, absent an allegation of fraud or a statute or court rule requiring a higher standard. Anonymous v. State Bd. of Med. Exam'rs, 329 S.C. 371, 496 S.E.2d 17 (1998).
• The preponderance of the evidence means such evidence as, when considered and compared with that opposed to it, has more convincing force and produces in the mind the belief that what is sought to be proved is more likely than not true. Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225 (1955).
• The trier of fact must weigh and pass upon the credibility of evidence presented. See S.C. Cable Television Ass'n v. Southern Bell Tel. And Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). The trial judge who observes a witness is in the best position to judge the witness's demeanor and veracity and evaluate his or her testimony. See e.g., McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982).
• The State Certification of Need and Health Facility Licensure Act governs the operation of CRCFs. See S.C. Code Ann. §§ 44-7-250 to -370 and S.C. Code Ann. § 44-7-150(3). The Department is the state agency charged with the licensing and inspection of community residential care facilities, which promulgated the Standards for Licensing Community Residential Care Facilities, found at 25A S.C. Code Ann. Regs. 61-84 to regulate CRCFs. See id.
• S.C. Code Ann. § 44-7-260 requires that a valid license issued by DHEC for an individual to operate a CRCF. The licensee, or Administrator, is required to be familiar with the regulations and is responsible for maintaining the standards set forth in Regulation 61-84.
• The three classes of violations of the standards for licensing CRCFs, as described in Section 103 of Regulation 61-84, are as follows:

• Class I- those violations 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.
• Class II- those violations which the Department determines to have a direct or immediate relationship to the health, safety or security of the facility's residents.
• Class III- those violations which the Department determines are not serious in these regulations.

• Facilities which violate the laws regulating CRCFs are subject to sanction. S.C. Code Ann. § 44-7-320. Regulation 61-84, §103, provides that "the Department may deny, suspend, or revoke licenses or assess a monetary penalty for violations of provisions of law or departmental regulations."
• Additionally, Section 103(D) outlines the schedule to be used to determine the amount of the monetary penalty. The amount of the penalty depends on the frequency of the violation within a two year period.

• I find that the Facility violated the following provisions of Regulation 61-84:
• 207(A)- The Facility violated this section on at least two occasions when it failed to maintain adequate, current records, including monthly statistics and the dates certain residents were discharged. The assessed penalty of $100.00 is appropriate for a repeat violation of a Class III offense.
• 207(C)(2)- The Facility violated this section on at least two occasions when it failed to maintain current heating and electrical inspection reports. The assessed penalty of $200.00 is appropriate for a repeat violation of a Class II offense.
• 402- The Facility violated this section when it, on at least four occasions, failed to adequately maintain admission records for several residents and failed to ensure that a new resident was provided a physical exam attesting to the propriety of his placement in a CRCF. The assessed penalty of $1000.00 is an appropriate sanction for a fourth violation of a Class II offense.
• 505(A) and (B)-The Facility violated this section when it failed to obtain doctor's orders for certain medications before administering the medications to residents. In addition, the Facility violated this section when it failed to obtain doctor's orders for certain medications for at least two residents even though the records of those residents indicated that the residents were taking a medication requiring a doctor's order. The assessed penalty of $500.00 is an appropriate sanction for a repeat violation of a Class I offense.
• 504 and 505 (C) and (E)- The Facility violated various sub-parts of these sections when it failed to complete an Incident Report when a resident wandered off and to document a resident's transfer to and from the hospital. The Department seeks a $1000.00 penalty that it has, in all other instances in this case, reserved for a fourth violation of a Class I offense. The Department only identified two clear violations of these sections. Therefore, a more appropriate sanction for a second violation of a Class I offense is $500.00.
• 506- The Facility violated this section when it failed to maintain a complete care plan and admission record for all of its residents on at least four occasions. The assessed penalty of $1000.00 is an appropriate violation of a Class I offense.
• 801- The Facility violated this section when it failed to properly maintain a light switch and a toilet seat. However, some consideration is due the Facility for having constructions materials lying about, as well as having areas of the Facility is various stages of repair. It is unreasonable to require the Facility to properly maintain its structure, furnishings, and equipment without allowing the Facility to actually make repairs, which frequently results in less-than-tidy surrounds. Therefore, a more appropriate penalty for the Facility's violations of Section 801 is $250.00.
• 902- The Facility violated this section when it failed to dispose of medications stored for resident who had been discharged from the Facility. In addition, the Facility violated this section when it improperly stored the medications of some residents. The assessed penalty of $500.00 is appropriate for repeat violations of a Class I offense.

• Despite the Department's arguments, I find that the Facility did not violate the following provisions of Regulation 61-84:
• 301(A)- Although the Facility was found to have beds set up in excess of the number it is licensed to have on two separate occasions, no violation of this section occurred. In one instance, three of the ten beds set up were staff beds. In the second instance, Miles admits having twelve beds set up. However, Miles set up the additional beds after she had transmitted her application and fees for a bed increase and after she spoke on the telephone with her team leader, DHEC Health Licensing Inspector Shelton Elliott, whom Miles, rightly or wrongly, believed gave her permission to set up the additional beds in anticipation of a bed increase ⁽⁶⁾. Therefore, the penalty of $500 assessed against the Facility for violating 301(A) is hereby vacated.
• 2703(G)- Although a DHEC inspector discovered a bar of soap in the resident shower during an inspection, no violation of 2703(G) occurred. The bar of soap belonged to a resident who forgot to remove it from the shower just before the inspector found it. Moreover, the Facility provides soap in dispensers for all of its resident bathrooms. Therefore, assuming that it violated 2703(G) when it allowed a paper towel dispenser to empty, the Facility has just one violation of 2703(G), a Class III, which carries no penalty on a first offense. Therefore, the penalty of $100.00 assessed against the Facility for a repeat violation of 2703(G) is hereby vacated.

During the hearing, Miles testified that she believed DHEC was "picking" on her or harassing her, primarily because the previous owner of her facility had a lot of problems. While I might agree that some of the items cited by DHEC may seem a bit trivial in the scheme of things (e.g., paper towel dispenser empty; worn armrests on chairs), it cannot be overemphasized that DHEC is charged with insuring that the residents of facilities such as Miles' receive the best possible care they can, as the health and safety of such residents lie almost completely in the hands of their caretakers. Further, DHEC presented ample evidence that it was justified in initiating each and every inspection of the Facility leading to a citation and/or penalty. Accordingly, Miles' argument that DHEC is harassing her with repeated inspections is without merit.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED that citations issued for violations of Section 301(A) of S.C. Code Ann. Regs. 61-84 is VACATED;

IT IS FURTHER ORDERED that the citation issued for the repeat violation of 2703(G) of S.C. Code Ann. Regs. 61-84, with respect to the bar of soap left in the shower, is VACATED;

IT IS FURTHER ORDERED that Respondent remit to the Department within 30 days of the date of this Order payment in the amount of $4050.00;

AND IT IS SO ORDERED.

__________________________________________

C. DUKES SCOTT

ADMINISTRATIVE LAW JUDGE

February 6, 2002

Columbia, South Carolina

1. Since the time the Department inspected the facility and penalties were assessed, Regulation 61-84 has been amended, effective July 27, 2001. However, because the facility was inspected and the penalties assessed pursuant to the old regulation, all references herein are to Regulation 61-84 (Supp. 2000), effective on May 24, 1991.

2. S.C. Code Ann. 44-7-110 et seq. (Supp. 2000).

3. 25A S.C. Code Ann. Regs. 61-84.

4. The March 22, 2001 inspection was also conducted because Clark had obtained information from the South Carolina Department of Health and Human Services ("HHS") that the Facility had received Optional State Supplement ("OSS") payments for eleven persons when the Facility is licensed for only seven. During the inspection, Clark noted that four persons identified by HHS as receiving OSS payments paid to the Facility were not find listed on any of the Facility's monthly statistical reports for a twelve month period. Although it has implied that something untoward might have occurred, DHEC has at no time set forth a firm allegation that the Facility improperly received OSS payments.

5. One of these medications, incidently, was the same medication that had, according to the person who made the complaint resulting in the September 1999 inspections, been incorrectly administered to the patient.

6. It is likely that DHEC's system of evaluating applications for bed increases contributed to Miles' confusion regarding the propriety of prematurely setting up additional beds: based on testimony presented during the hearing, it appears that the same inspectors who conduct compliance inspections also conduct evaluations of applications for bed increases. Given the frequency with which DHEC has inspected the Facility, it is little wonder that Miles might assume that any inspection she is made aware of in advance might be the inspection preceding a bed increase.