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:
Lela G. Bellamy vs. SCDHEC

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Lela G. Bellamy, Administrator, Bellamy Community Care Home,

Respondent:
South Carolina Department of Health and Environmental Control
 
DOCKET NUMBER:
95-ALJ-07-0048-CC

APPEARANCES:
Sheila B. Smith, (pro se) Assistant Administrator, for Petitioner

William A. Ready, III, Attorney for Respondent
 

ORDERS:

ORDER AND DECISION

This contested case matter arises from the decision of the South Carolina Department of Health and Environmental Control ("DHEC") to deny the renewal of the community residential care facility license of Bellamy Community Care Home ("Bellamy"), Lela G. Bellamy, Administrator. Additionally, DHEC seeks assessment and enforcement of monetary penalties against Bellamy for violations of 25A S.C. Code Ann. Regs. 61-84 (1976 & Supp. 1994) and non-compliance with a May 9, 1994, DHEC Consent Order. A hearing was conducted in Conway, South Carolina, at the Horry County Courthouse, on July 10, 1995, during which the parties presented testimony and introduced exhibits, all of which have been carefully reviewed and considered. The license renewal is denied. All civil fines assessed to date are dismissed.

STATEMENT OF THE CASE AND DISCUSSION

DHEC seeks denial of the Bellamy community residential care facility license on the grounds that: (1) Bellamy violated the terms of a May 9, 1994 Consent Order; (2) Bellamy failed to pay assessed civil penalties; and (3) Bellamy committed repeated violations of DHEC

regulations. Bellamy presented evidence in mitigation and defense and promised further corrective action. Additionally, Bellamy requested that the Court order an installment payment schedule for payment of the civil fines assessed.

This case involves a small community residential care facility operated in an informal, family-oriented manner. The intention of the Administrator and her staff to provide residents with a safe, clean, and pleasant home is not questioned, nor is Bellamy's genuine concern and compassion for the facility's residents. It is unfortunate, however, that the compassion and intentions of the Bellamy staff did not result in consistent regulatory compliance with DHEC standards for a community residential care facility. Community care residents are entitled to specific standards of care set forth by regulation, and DHEC is charged with the duty of regulating and enforcing those standards on behalf of the residents and of the State. Whether from inadequate training, staffing, financial resources, managerial sophistication, procedural guidelines, or attention to detail, Bellamy is deficient in the level of care extended to its residents.

Bellamy was repeatedly given notice of regulatory violations and instructed to take corrective action. Some problems were corrected, but most were not. Most of the violations were minor, but some were serious. The cumulative effect of Bellamy's continuous regulatory non-compliance and inability to take corrective action is unacceptable. While there is no evidence of tangible, direct adverse effect to residents, the potential for harm exists. Particularly troublesome is Bellamy's inconsistent and unreliable method of dispensing and tracking medication administered to residents. Administering medication in unprescribed dosages or intervals, or worse, to the wrong resident, could have a devastating effect. Inaccurate record keeping prevents safeguarding against catastrophes.

Because of the history of recurring problems at Bellamy, the renewal application must be denied. In the absence of a license, however, the effect of imposing monetary fines upon Bellamy is altered. Except as a purely punitive measure, the assessment of a fine against a non-license holder serves no useful purpose. It is equitable to relieve Bellamy from the payment of the $13,800 sought by DHEC, in light of the non-renewal of the license and the fact that Bellamy's ability to pay the fines is greatly inhibited by no longer being in business.

It is this Court's wish that Bellamy Community Care Home could reopen in the future as a licensed facility. It should first make physical alterations to render the premises fit to be a residential care facility. Bellamy should also: (1) establish comprehensive record keeping procedures; (2) provide professional training for staff; (3) cooperate and regularly communicate with DHEC; and (4) reapply to DHEC for a license with either Ms. Sheila B. Smith or Linda B. Nichols as the applicant/administrator. Bellamy provides an affordable home for many who would otherwise be without care, and Mrs. Bellamy has a genuine concern for the well being of the residents. The rigors of managing the facility in compliance with the voluminous regulations require the full-time attention of the administrator, however. Ms. Smith or Ms. Nichols may be better suited for the administrative position, so that Ms. Bellamy could devote her energies exclusively to interaction with and care for the residents. This Court is without the authority to impose conditions for re-application or conditions for issuance of a new license, however, since such matters are not presently before the Court.

Ultimately, the primary concern in this matter must be for the residents of Bellamy. With its closure, DHEC must coordinate placement of the Bellamy residents to other facilities in the most professional and least disruptive manner possible.

FINDINGS OF FACT

By a preponderance of the evidence, I find the following facts:

(1) Lela G. Bellamy is the Administrator of Bellamy Community Care Home, a community residential care facility located at 3684 Sea Mountain Highway, Little River, South Carolina, Horry County.

(2) Bellamy Community Care Home operates as a non-profit corporation.

(3) Bellamy Community Care Home submitted to DHEC a renewal application for a license to operate a community residential care facility, dated December 1, 1994.

(4) By letter dated December 21, 1994, Mr. Alan Samuels, DHEC Director of the Division of Health Licensing, informed Bellamy of DHEC's denial of the renewal request and returned the application.

(5) By letter dated December 22, 1994, Bellamy requested a contested case hearing to consider its renewal application.

(6) A contested case hearing was conducted July 10, 1995, at the Horry County Courthouse, in Conway, South Carolina.

(7) Sheila Smith is the daughter of Lela G. Bellamy and the Assistant Administrator of Bellamy Community Care Home. Sheila Smith represented Bellamy Community Care Home at the hearing.

(8) Bellamy has operated as a community residential care facility since approximately 1985.

(9) DHEC has conducted periodic site inspections of the facility, including mandatory annual inspections, interim inspections, and follow-up inspections to determine whether corrective action has been taken to remedy past violations.

(10) As a result of the October 9, 1990 annual inspection, DHEC cited Bellamy for violations of S.C. Code Ann. Regs. 61-84, §§ 204(B), (C), (D); 1003(B); 207(A) and (B); 302; 402(C) and (D); 504(H); 1102(B); 406(C); 801; 802(A) and (D); 2101(B) 5 and 6; 2103(G); 901(A) and (B); 902(C-E) and (L); 1008; 1009(A)1.

(11) On August 28, 1991, DHEC conducted an interim inspection of Bellamy. Repeat violations of S.C. Code Ann. Regs. 61-84 were noted and a civil fine of $5,300 was assessed against Bellamy.

(12) By Consent Order and Agreement dated December 10, 1991, Bellamy admitted the violations but questioned the severity of the civil penalty and presented mitigating factors. Corrective action was agreed upon, and Bellamy paid a civil penalty of $2,000. The $5,300 assessment was lowered to $5,000, with the payment of $3,000 conditionally suspended.

(13) On May 21, 1992, DHEC conducted an interim inspection of Bellamy. As a result of that inspection, DHEC cited Bellamy for repeat violations and pursuant to the terms of the December 10, 1991 Consent Order, required immediate payment of the outstanding portion of the previously assessed $5,000 fine.

(14) Upon Bellamy's written request to establish an installment plan for payment of the fine, DHEC, by letter dated August 11, 1992, allowed Bellamy to make two installment payments to satisfy the outstanding fine.

(15) As a result of the October 1, 20, and 29, 1992 annual inspection, DHEC cited Bellamy for violations of 25A S.C. Code Ann. Regs. 61-84, §§ 1008(B) 5(C); 2003.4(A); 209(B)4; 402(C); 506; and repeat violations of §§ 801 and 802(A).

(16) As a result of September 21, and October 26, 1993 annual inspections, DHEC cited Bellamy for repeat violations of S.C. Code Ann. Regs. 61-84, §§ 204(B); 204(D); 302; 402(C); 802; 801; 2706.1.A; and new violations of §§ 204(B)4; 205(A), (B), and (C); 209(B)1; 207(C)1 and 2; 1102(B and C); 306(F); 506; 903(H);1106(D); 801; 901(A, B, and C); 1006.3(b and c); 1201; 2501.4; 2703(F); 2002(A and B.1); 701(A); 1006(A)1; 1001; 1006(B).3(a) and .4(d); 1008(A)1 and (B)5 (c); 2003.4(A)(4).

(17) Bellamy and DHEC entered into a Consent Order and Agreement, signed by Lela G. Bellamy on April 20, 1994, and approved by DHEC Commissioner Doug Bryant on May 9, 1994. The Consent Order (admitted as part of the agency file as Respondent's Exhibit # 1) is incorporated herein by reference as part of this Order and Decision.

(18) As part of the May 9, 1994 Consent Order, Bellamy admitted committing violations of S.C. Code Ann. Regs. 61-84, §§ 204(B) (employee physical exams); 402(C) (medical reports of residents); 506(resident individual care plans); 801 (maintenance); 802(A) (general housekeeping); 901(A) (medicines); 901(B) (medication records); 1001(food service); and, 2501.4 and 2703(F) (water temperature control). DHEC assessed a total fine of $13,800.00 for the above violations, not to be imposed, however, unless Bellamy committed repeat or additional violations of S.C. Code Ann. Regs. 61-84 within the subsequent twelve months.

(19) As part of the May 9, 1994 Consent Order, Bellamy also agreed to take immediate steps to correct all violations in previous inspections and establish procedures to prevent future violations.

(20) It was agreed by the parties in the May 9, 1994 Consent Order, that future or repeat violations of licensing regulations or statutes may result in imposition of penalties or license revocation.

(21) As a result of an August 25, 1994 sanitation inspection, DHEC cited Bellamy for repeat violations of S.C. Code Ann. Regs. 61-84, §§ 1001; 1006(B)4(d); 902(D); and new violations of §§ 1004; 1003(A); 1009.2; 1006(B)1; 1008(B)6(a and b); 1007(B)1; and 803(A).

(22) As a result of a September 7, 1994 annual inspection, DHEC cited Bellamy for repeat violations of S.C. Code Ann. Regs. 61-84, §§204(B); 204(D); 207(C)1; 402(C); 506; 801; 802(A); 901(A and B); 1003(A); 2501.4(A); 2703(F); 2703(G); 2002(A); 601(B)1,2 and (C)1-6; 204(B and D); 205(A)1 and 2; and new violations of §§ 102(G); 301(A); 209(B); 402(D); 1003(D); 505(A and B); 901(C, D and E); 902(J and O).

(23) By letter dated October 21, 1994, DHEC informed Bellamy that because of violations of the May 9, 1994 Consent Order and of S.C. Code Ann. Regs. 61-84, and Bellamy's not being in substantial compliance with DHEC regulations, immediate payment of the $13,800 civil penalty assessed in the May 9, 1994 Consent Order was demanded.

(24) Team Advocacy Project is a governmentally funded organization which conducts unannounced inspections of facilities housing mentally ill residents. A report of the findings from the inspection are shared with the facility, DHEC, and other State agencies. The facility is asked to respond to the report and re-inspection follows.

(25) Members of Team Advocacy inspected Bellamy on November 2, 1994. The inspection report (Respondent's Exhibit #5) summarized on pp. 6-7:

The Team members' overall impression of Bellamy's CCH was poor. General cleanliness of both buildings was poor; medications were charted improperly; there were no activities provided to residents; and the menu was not being followed and substitutions were not noted.

(26) As a result of the Team Advocacy report, DHEC conducted a November 15, 1994 interim inspection of Bellamy.

(27) By letter dated December 1, 1994, Bellamy requested the establishment of a payment schedule to satisfy the outstanding civil penalties due. By letter dated December 9, 1994, DHEC denied the request and ordered closure of Bellamy by January 10, 1995.

(28) Members of Team Advocacy re-inspected Bellamy on April 24, 1995. In pertinent part on p.2, the re-inspection report (Respondent's Exhibit #6) states:

The Team members noted that NO PLAN OF CORRECTION had been submitted by the facility. Many of the problem areas identified during the initial visit had not been corrected. Team members were extremely concerned about repeated problems in the following areas: activities, dietary, medications, and housekeeping.

(29) As a result of a November 15, 1994 interim inspection, DHEC cited Bellamy for repeat violations of S.C. Code Ann. Regs. 61-84, §§ 1006(B)4(a and d); 1003(A); 803(A); 1008(B) 5(c); 102(G); 301(A); 506; 801; 2701.5; 207(C)1 and new violations of 1006(B)3(c); 1006(B)1; 1007(B)4; 1008(B)1; and 2801; §§ 102 (G); 301(A); 103; 203; 2701.5; 801; 802(A); 2002; 207(A); 204(C and D); 1106(D); 202; 501; 504; 505; 901(A, B, and E); 902(C-F); 803(A); 1003(A).

(30) The following violations, admitted by Bellamy in the May 9, 1994 Consent Order, were either not corrected or were repeated by Bellamy subsequent to the May 9, 1994 Consent Order:

(a) S.C. Code Ann. Regs. 61-84, § 901(A) (medicines);
(b) S.C. Code Ann. Regs. 61-84, § 901(B) (medication records);
(c) S.C. Code Ann. Regs. 61-84, § 802(A) (general housekeeping);
(d) S.C. Code Ann. Regs. 61-84, § 506 (resident individual care plans); and
(e) S.C. Code Ann. Regs. 61-84, § 801 (maintenance).

(31) Subsequent to each DHEC inspection resulting in violations, Bellamy has attempted explanation and/or correction of the problems cited.

(32) Bellamy's corrective action taken subsequent to the May 9, 1994 Consent Order did not bring the facility within substantial compliance of the terms of the Consent Order or applicable DHEC standards.

(33) Bellamy has experienced recurring compliance problems since 1986 in the area of medications and medical records, including: not charting medications when given; medications not being available at time prescribed to be given, and non-labeled medications found in plastic cups.

(34) Medical records of residents are incomplete or missing.

(35) Medications prescribed for residents were often missing fromthe medicine cabinet.

(36) The medication cabinet has contained medication which lacked adequate records.

(37) Food items have been stored in an unsanitary manner.

(38) The facility is in a general state of poor housekeeping.

(39) Lela G. Bellamy is unable to fulfill all of the administrative functions required of a full-time administrator.

(40) DHEC seeks denial of Bellamy's license and collection of the outstanding civil fine assessed them pursuant to the May 9, 1994 Consent Order and DHEC letter dated December 9, 1994.

(41) Bellamy is unable to pay the DHEC assessed penalties.

(42) Approximately thirteen residents are under Bellamy's care.

CONCLUSIONS OF LAW

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

(1) This Court has jurisdiction in this case pursuant to S.C. Code Ann. §§ 1-23-600(E) and 44-7-320(B) (Supp. 1994).

(2) The standard of proof in weighing the evidence and making a decision on the merits at a contested case hearing is a preponderance of the evidence. National Health Corp. v. S.C. Department of Health and Environmental Control, 298 S.C. 373, 380 S.E. 2d 841 (Ct. App. 1989).

(3) Community residential care facilities must be licensed annually, with the filing of an application with DHEC by the applicant. S.C. Code Ann. §§ 44-7-270 and 44-7-280 (Supp. 1994).

(4) No community residential care facility shall be issued a license unless the facility and administrator/applicant comply with S.C. Code Ann. §§ 44-7-110, et seq. (Supp. 1994), and S.C. Code Ann. Regs. 61-84. S.C. Code Ann. § 44-7-290 (Supp. 1994).

(5) Pursuant to S.C. Code Ann. §§ 44-7-250 and 44-7-260(6) (Supp. 1994), DHEC is authorized to enforce the basic standards of licensure and operation of community residential care facilities.

(6) S.C. Code Ann. § 44-7-320 provides that a residential care facility license may be denied, suspended, or revoked, or a monetary penalty assessed, for violations of law or DHEC regulations.

(7) The terms of the DHEC Consent Order, approved May 9, 1994, are valid and binding, with the findings of fact contained therein admitted and conclusive.

(8) Bellamy violated the terms of the May 9, 1994 Consent Order and Agreement by committing repeat violations of S.C. Code Ann. Regs. § 61-84.

(9) Bellamy violated the terms of the May 9, 1994 Consent Order and Agreement by committing subsequent violations of S.C. Code Ann. Regs. § 61-84.

(10) Bellamy violated the terms of the May 9, 1994 Consent Order and Agreement by failing to make required corrective action to bring the facility into substantial compliance with S.C. Code Ann. Regs. § 61-84.

(11) DHEC has shown by a preponderance of the evidence that the Bellamy license renewal should be denied.

(12) The Bellamy license is denied for violation of provisions of S.C. Code Ann. Regs. 61-84. S.C. Code Ann. § 44-7-320(A)(1)(a).

(13) The Bellamy license is denied for conduct and practices detrimental to the health and safety of its residents, pursuant to S.C. Code Ann. § 44-7-320(A)(1)(c).

(14) Because Bellamy violated the terms of the May 9, 1994 Consent Order and Agreement, DHEC may demand payment of the assessed fine, according to the terms of the Consent Order; however, the DHEC determination that Bellamy must pay civil fines totalling $13,800.00, is a part of the subject of this contested case hearing, and may be modified or set aside pursuant to S.C. Code Ann. § 44-7-320(B) (Supp. 1994).

(15) An administrative law judge is authorized to exercise all those remedial powers as necessary to give effect to its order, in the same manner as a circuit court judge. S.C. Code Ann. § 1-23-630 (Supp. 1994).

(16) The denial or nonrenewal of a community residential care facility license does not operate as bar to future licensure of the facility or administrator. See S.C. Code Ann. § 44-7-320(D) (Supp. 1994).

(17) Pursuant to ALJD Rule 29(B), all issues raised in these proceedings not expressly addressed in this Order are deemed denied.

ORDER

IT IS HEREBY ORDERED that the renewal License to Operate a Community Residential Care Facility of Bellamy Community Care Home, with Lela G. Bellamy, Administrator, is denied.

IT IS FURTHER ORDERED that all fines assessed against Bellamy Community Care Home by DHEC to date are dismissed.

IT IS FURTHER ORDERED that Bellamy Community Care Home shall cease operations no later than ninety (90) days from the date of this Order; unless, however, a new applicant files an application as administrator of the facility and is licensed by DHEC prior to the expiration of ninety (90) days.

IT IS FURTHER ORDERED that DHEC must coordinate with Bellamy Community Care Home for the placement and relocation of the residents of Bellamy Community Care Home. If a new license is not granted for the facility, all residents of the facility must be relocated no later than ninety (90) days from the date of this Order.

AND IT IS SO ORDERED.

___________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

August 25, 1995

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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