SC Administrative Law Court Decisions

The Petitioner requested a contested case hearing regarding the revocation of the community residential care facility licenses of Sanders Care No. 1, and Sanders Care No. 2 by the South Carolina Department of Health and Environmental Control (Department). On May 30, 1997, the Department notified the Petitioner by certified/return receipt mail that, based upon the number of continuing violations and repeat violations, her licenses to operate as community residential care facilities were revoked. On June 16, 1997, pursuant to S.C. Code Ann. § 44-7-320 (B), Administrator Kennsel Bennett sent the Department a letter requesting a contested case hearing. The Department then forwarded this appeal to the Administrative Law Judge Division on July 3, 1997. After notice to the parties, a hearing on the merits was conducted at the offices of the Administrative Law Judge Division on November 4 and 5, 1997. For the following reasons, the Petitioner's licenses for Sanders Care No. 1 and Sanders Care No. 2 are revoked.

Any issues raised in the proceedings or hearing of this case but not addressed in this Order are deemed denied.

Should the licenses of Petitioner to operate Sanders Care No. 1 and Sanders Care No. 2, adult residential care facilities, be revoked?

In license revocation actions, the burden of proof is on the agency -- in this case, DHEC -- to establish by a preponderance of the evidence that the Petitioner's licenses should be revoked. See 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 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 true than not true." Sanders, Neese, and Nichols, South Carolina Trial Handbook, § 9:5 Quantum of Evidence in Civil Cases (1994), (citing Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225 (1955)). Additionally, the ALJ may consider "all pertinent information regarding the facility and the applicant." The ALJ is not restricted to reviewing information from only the current licensing year.⁽¹⁾

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, and considering the burden of persuasion by the parties, I make the following Findings of Fact by a preponderance of the evidence:

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

2. DHEC is the state agency charged with the licensing and inspection of "community residential care facilities." Sanders Care No. 1 and Sanders Care No. 2 are separate "community residential care facilities" as defined by S.C. Code Ann. Regs.§ 61-84 (101)(E). The facilities are licensed by the Department pursuant to S.C. Code Ann. § 44-7-110 et seq. (Supp. 1997), the State Certification of Need and Health Facility Licensure Act. Although each of the Sanders' facilities operates under a discrete license, Jackie Sanders Bennett is the Licensee of record for both facilities and Kennsel Bennett is the Administrator of record for both facilities. Ms. Bennett has been involved with the facilities since 1984, as the facilities were family-owned businesses.

3. Following a DHEC inspection, a surveyor presents a copy of a multi-page report enumerating any violations found at the facility to the Administrator. Prior to leaving, the surveyor conducts an exit interview during which he or she explains the violations and offers to hold a "consultation" at the facility's request on topics chosen by the facility. Within 15 days, the facility must send a written response to the Department's notice of violations, indicating corrections that will be made, how they will be made, and the date by which they will be made. If violations persist after repeated inspections, the Department sends its Assurance Team to the facility to inform the facility that continued violations may lead to the imposition of sanctions. Monetary penalties are imposed based on the severity of the violations and their frequency.⁽²⁾

4. Sanders Care No. 1 and Sanders Care No. 2 are both located in Anderson, South Carolina. Sanders Care No. 1 is licensed to house 10 residents and Sanders Care No. 2 is licensed to house 12 residents.

5. Between October 1995 and May 30, 1997, when the Department revoked Ms. Bennett's licenses to operate the facilities, the Department visited Sanders Care No. 1 and/or No. 2 seven times on either complaint investigations or inspections. The dates of those visits were: November 28, 1995; April 2, 1996; July 23, 1996; July 26, 1996; September 6, 1996; October 23/24, 1996; and March 27, 1997.

6. On November 28, 1995, DHEC inspected Sanders Care No. 1. The violations included, hot dog buns which were "stored in blood drippage from fish in a refrigerator near office," dead roaches and debris in the pots and pans, and a lack of soap in the kitchen. Additionally, a "continuously repeated violation" was the placement of unsecured toxic agents in the kitchen to which the mental health residents at the facility could have access.

7. DHEC also inspected Sanders Care No. 2 on November 28, 1995. On that date the door to the fire escape was "still sticking," roaches were in the upstairs bathroom, and medications for two residents were uncharted. Additionally, dead roaches were with food debris in the kitchen cabinets.

8. Administrator Kennsel Bennett, in responding to the November 28, 1995 violations, wrote that they had been corrected the next day.

9. When DHEC inspected Sanders Care No. 1 five months later on April 2, 1996, five (5) kitchen violations that had been previously cited had not been corrected. Responses from the facilities to DHEC provided assurance that all violations had thereafter been addressed.

10. On July 23, 1996, and July 26, 1996, DHEC inspected both facilities. On these dates there were numerous violations of R. 61-84. See, DHEC Exhibit #1 at 63 - 86. These violations included, in part, flies throughout the building, including the kitchen area; deficiencies in medication administration; unsealed food; and food on the ground. Furthermore, roaches were crawling out of kitchen cabinets, residents' drawers, on window sills, around tubs, and around parts of the furniture. In all, the two-day inspection revealed a total of 40 section violations of R. 61-84.

11. Beginning in July 1996, Myra Taylor, DHEC Inspector, went to both Sanders facilities on four or five occasions in which an Administrator was not present at the facility. In fact, on October 23, 1996, Ms. Taylor could not conduct the annual inspection because without an Administrator or staff member with authority at the location, she did not have access to necessary records, such as medical records of residents and staff personnel records.

12. After receiving a request from the Sanders' facilities for a consultation, Ms. Taylor met with Jackie Sanders Bennett, Kennsel Bennett and six other staff members at Sanders on September 11, 1996. During the consultation Ms. Taylor discussed the areas requested: housekeeping, medication, sanitation, and food preparation. She also discussed the maintenance of records and the need for accessibility of records by DHEC inspectors as well as fire safety inspectors.

13. A month later when Ms. Taylor returned to the facility on October 24, 1996, the facilities still had numerous violations. As Ms. Taylor testified, she ". . . didn't feel there was evidence of [her] consultation having effect on the operation of the facility."

14. The inspection of Sanders Care No. 1 on October 24, 1996, revealed thirteen (13) R. 61-84 section violations, including beef thawing at room temperature, dead roaches in one refrigerator, and spillage on the bottom of another. The inspection of Sanders Care No. 1 revealed violations of not charting medicines, numerous dead roaches and no records reflecting the annual physical exam of the clients or electrical inspection. The total violations for the facilities were five Class I violations, sixteen Class II violations and twenty-seven Class III violations. In other words, following the September 11, 1996 "consultative visit," during which the DHEC staff provided assistance to correct problems at the Sanders' facilities, the number of Class I and Class II violations increased at the October 24, 1996 inspection.

15. DHEC Assurance Team members Earl Bleakley and Gene Chestnut met with Licensee Jackie Sanders Bennett and Administrator Kennsel Bennett at the facilities on December 3, 1996. They informed the Bennetts that stricter staff supervision was necessary to prevent future violations. The Licensee was given a guide to self-inspection. In addition to stressing the importance of "remediating" the violations, the DHEC staff also ". . . reviewed with facility possible consequences that may occur if facility does not come into substantial compliance with R. 61-84." The Assurance Team also informed the Licensee that revocation was possible.

16. On March 27, 1997, DHEC made a comprehensive licensing and Fire and Life Safety inspection of Sanders Care No. 1 and 2. There were flies in Sanders Care No. 1 and children running in and out the back door. The house was generally not clean and "was poorly maintained." During the March 27, 1997 inspection of Sanders Care No. 1, 13 repeat violations were cited. Those repeat violations included, R. 61-84 Sections 204B; 204C, D; 402C; 801; 802; 802D; 803A; 804; 901B; 1003A; 1006B.1; 1008B.1; and 2002. "These violations address employees' TB test and employee physical, employee training, resident medical, maintenance, housekeeping, soiled linen, uncovered trash cans, outside areas, charting of residents' medications, not having a current menu posted, food being stored on the floor, nonfood contact surfaces not being kept clean, and local and state codes and standards."

17. Eleven additional violations were cited at Sanders Care No. 1 on March 27, 1997, including violations of R.61-84 Sections 209B1, 301A, 402D, 506, 902D,E, 902L, 1007B4, 1009.2, and 2703F, G. "These violations address the Resident Bill of Rights, supervision of individuals who are not residents of the facility, resident record not having plan to secure routing and emergency care for a resident, resident individual care plan, medication not being made inaccessible to residents, medication stored in refrigerator without being made inaccessible to residents, kitchen staff not wearing hair restraints, ice machine soiled, and hot water too hot."

18. The inspection of Sanders Care No. 2 on March 27, 1997, revealed repeat violations of R. 61- 84 Sections 204D; 402C; 506; 801; 802; 804; 901B; 901C; 1003A; 1006B1; 1008B1; 2002; and 2703F, G. These sections address employee inservice training, resident individual care plans, maintenance, housekeeping, outside areas, charting of resident medication, resident medication, menus, food storage, nonfood contact surfaces not clean, state and local codes, and hot water temperature.

19. Additional violations of R. 61-84 on March 27, 1997 at Sanders Care No. 2 included violation of Sections 209B1, 209D, 601B.1, 803A, 902J, 902L, 1006A.1, 1006B3.a., 1006B4, and 2801. These violations addressed "not having written description of available services in resident records, facility grievance not being posted, not having proper staff to resident ratio, trash can in kitchen was uncovered, loose pill was observed in one resident medication container and three tablets were observed in a medication cup in a medication closet, medication stored in a refrigerator was not kept inaccessible from residents, heavily dented can was observed in the pantry, temperature of reach in cooler was excessive, toxic agent was not kept stored inaccessible to residents, and an oxygen tank was stored unsecured and without a sign indicating that there should be no smoking in the area."

20. Additionally, inspection of the medication records revealed repeated violations of some of the same violations cited previously. There was also evidence of more residents than the licenses of Sanders No. 1 and No. 2 allowed.

21. The DHEC total violations for the Sanders facilities on March 27, 1997 were eight Class I violations, seventeen Class II violations and nine Class III violations. Seventeen of those violations were repeat violations.⁽³⁾ Many of the violations on March 27, 1997 could have been corrected without spending any money.

22. The State Fire Marshal Office (Fire Marshal), inspected Sanders Care No. 1 and No. 2 on November 16, 1995, September 6, 1996, and March 27, 1997. In his November 1995 inspection, Fire Marshal found residents' self-closing doors were not operational, the exit door to the fire escape was sticking, smoke detectors were not working and curtains were not flame retardant. In September 1996, Fire Marshal noted repeats of non-operational self-closing doors and inoperable smoke detectors. Additionally, fire extinguishers had not been inspected. In March 1997, among other violations noted were repeat violations of self-closing doors, inspections of fire extinguishers, use of extension cords, and cigarette smoking in a resident's room and cigarette butts being disposed of on the roof. In all, the facilities had been cited on six separate visits for inoperable smoke detectors.

23. Ms. Jackie Sanders Bennett has been the Licensee of both Sanders facilities since October 1995. Ms. Bennett testified that she "grew up in the residential care environment with [her] mother" and had been involved in Sanders' facilities from 1984 to 1992, and again from 1995 to 1997. She is therefore thoroughly familiar with all aspects of operating a residential care facility.

24. Although Ms. Bennett became the Licensee of Sanders in 1995, she did not begin coming to the facilities regularly until March 1997. She left the operations of the facilities to her husband, Kennsel Bennett. Furthermore, during June, July, and August 1997, Mr. Bennett was at the facilities only "three or four times a month." Mr. Bennett ceased working at the facilities in approximately September 1997. After he left, the Licensee failed to notify the Department that the facilities were without a licensed Administrator. ⁽⁴⁾

25. Approximately during the first part of June 1997, Ms. Bennett hired Melinda Emory as the Administrator. Although the Administrator's examination is given quarterly, Ms. Emory had not taken the exam on the date of the hearing and is presently not licensed as an Administrator in South Carolina. Therefore, the facilities are presently being operated without a licensed Administrator.

26. In December 1996, Ms. Bennett began to implement a "plan of action" to begin to correct violations. She testified she spent between $30,000.00 and $50,000.00 repairing the roof, purchasing new kitchen dishes and utensils, painting, purchasing new furniture and curtains, cleaning up the outside area, and hiring new staff. However, these repairs did not begin until March 1997, and do not adequately mitigate the scope or severity of the continuous violations.

27. The Licensee, Ms. Bennett, failed to respond to the violations cited during the March 27, 1997 visit, and by May 30, 1997 the Department still had not received any response. By letter to the Licensee on May 30, 1997, DHEC revoked the licenses of both facilities.

28. In the Petitioner's case, between November 28, 1995, and October 24, 1997, the Department cited her facilities with nine (9) Class I violations, twenty-five (25) Class II violations and twenty-two (22) Class III violations of S.C. Code Ann. Regs. 61-84, Standards for Licensing Community Care Facilities at its Sanders Care No. 1 facility, and ten (10) Class I violations, twenty-one (21) Class II violations, and twenty-seven (27) Class III violations at its Sanders Care No. 2 facility.

29. Placement in a CRCF setting is by physician recommendation only. In short, residents of these facilities are unable to live alone, and they depend on their caretakers to watch over them and to assist them in the basic activities of everyday life. The ultimate responsibility for maintaining approved standards for the facility lies with the Licensee. In this case, the Licensee, Jackie Sanders Bennett, assumed that responsibility. She was the Licensee of record from October 1995 to May 30, 1997, at which time the Department revoked the licenses of both facilities. Her failure to respond in writing to the Department before and after the revocation of her licenses to operate the facilities indicates her indifference to the health, safety, and welfare of her CRCF residents.

30. The Department may consider all previous violations in determining the appropriate penalty. The Petitioner's attempts to mitigate the revocation of the licenses by correcting violations are inadequate and untimely given the facilities' history of noncompliance and the severity of the violations. I find that revocation of the licenses of Sanders No. 1 and No. 2 is the appropriate action in this case.

Based upon the above Findings of Fact and the testimony put forth in this case, I conclude the following as a matter of law:

1. The Administrative Law Judge Division has jurisdiction over this matter and is authorized to hear this case pursuant to S.C. Code Ann. § 1-23-310 through § 1-23-600 (Supp. 1997) and § 44-7-320(B) (Supp. 1997). Applicable to these contested case hearings are the Rules of Procedure for the Administrative Law Judge Division (May 5, 1997).

2. S.C. Code Ann § 44-7-110 et seq. (Supp. 1997), State Certification of Need and Health Facility Licensure Act, provides the authority for the Department to promulgate regulations relating to the operation of Community Residential Care Facilities.

3. S.C. Code Ann. Regs. 61-84 (Supp. 1997), Standards for Licensing Community Residential Care Facilities, is the applicable regulation governing Community Residential Care Facilities.

4. A valid license issued by the Department is necessary to operate a Community Residential Care Facility. S.C. Code Ann. § 44-7-260 (Supp. 1997).

5. The Licensee of a CRCF is required to be familiar with the Standards for Licensing Community Residential Care Facilities and is responsible for maintaining those standards in the facility. S.C. Code Ann. Regs. 61-84 Section 202 (Supp. 1997).

6. A Community Residential Care Facility (CRCF) is defined in S.C. Code Ann. Regs.

61-84 Section 101.E (Supp. 1997) 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 . . . ." Personal assistance may include assisting in one or more of the following: helping the resident with activities of daily living; helping him or her to make appointments, to secure transportation in order to receive support services; being aware of the resident's whereabouts; monitoring the activities of the resident while on the premises of the residence to ensure his or her health, safety, and well-being. The degree of care given at a CRCF is largely dictated by the needs of its residents.⁽⁵⁾ A CRCF offers "or represents to the public that it offers" a "beneficial or protected environment specifically for the mentally ill or drug addicted or alcoholic . . . ." R. 61- 84 Section 101.E (Emphasis added).

7. The Administrator of a CRCF, among other duties, is in charge of all functions and activities within the facility, must be available and responsible within a reasonable time and distance, and must demonstrate adequate knowledge of the licensing regulations. S.C. Code Ann. Regs. 61-84 Section 203.A (Supp. 1997).

8. In the absence of the Administrator, there must be an individual designated in writing to act in his or her place. S.C. Code Ann. Regs. 61-84 Section 203.B (Supp. 1997).

9. S.C. Code Ann. § 44-7-320(A)(2) (Supp. 1997) provides: "Consideration 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."

10. S.C. Code Ann. § 44-7-320 (Supp. 1997) establishes the authority to impose monetary penalties against a facility or to deny, suspend, or revoke a facility's license.

11. In determining the appropriate action to take against a facility, the Department considers the following factors: "specific conditions and their impact or potential impact on health, safety or welfare; efforts by the facility to correct; overall conditions; history of compliance; any other pertinent conditions." S.C. Code Ann. Regs. 61-84 Section 103 (Supp. 1997).

12. Section 103 of R. 61-84 categorizes violations of the Standards for Licensing CRCF's 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." These violations require immediate correction unless the Department stipulates that a specific period of time is required for correction.

B. Class II violations are those which the Department determines to have direct or immediate relationship to the health, safety or security of the facility's residents other than Class I violations. These violations may be corrected within a specified period of time.

C. Class III violations are those which are not classified as serious in these regulations and may be corrected within a specified period of time.

13. The Department has proven by a preponderance of the evidence that the CRCF licenses at Sanders Care No. 1 and Sanders Care No. 2 should be revoked.

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

ORDERED that the Community Residential Care Facility licenses of Sanders Care No. 1 and Sanders Care No. 2 are revoked.

IT IS FURTHER ORDERED that:

1. Provisions be made immediately for the safe transfer of all current residents of both facilities to appropriate relocation facilities, along with the transfer of residents' medications, personal possessions and personal funds, and that the Department be informed in writing of the placement of each resident within fifteen (15) days and,

2. The Petitioner shall arrange for the preservation of all health records of all residents for the 10-year period prescribed by Section 503 of R. 61- 84, and notify the Department in writing within fifteen (15) days describing the arrangements made.

AND IT IS SO ORDERED.

Ralph King Anderson, III

Administrative Law Judge

Columbia, South Carolina

March 13, 1998

1. S.C. Code Ann. § 44-7-320(A)(2) (Supp. 1997) states: "Consideration 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."

2. R. 61-84 classifies violations as Class I, II, or III, with Class I violations being the most serious. Licensees are put on notice regarding the severity of a violation by the designation at the end of each sub-section in R. 61-84 as I, II, or III.

3. The repeat violations were as follows: 4 (Class I), 9 (Class II) and 1 (Class III).

4. Ms. Bennett's license as an Administrator was not re-issued by the Board of Long Term Care Administrators in 1997 and she has appealed that decision.

5. It is noteworthy that residents at Sanders Care No. 1 and No. 2 are needful people. As Ms. Bennett testified, "A lot of them [residents] look at me as their mother or their sister." R. 2 at 285, ll. 19 - 20. R. 2 at 285 - 286. The residents depend on Ms. Bennett , she testified, for their medication, for reminding them to bathe and shave, for their meals, and for taking them to the doctor or involving them in activities. "In a sense they remind me of children," she stated. R.2 at 286, ll. 14 - 15.