SC Administrative Law Court Decisions

This matter came before the Administrative Law Judge Division (ALJD) from an appeal by Pinewood Care Home, Inc., (Pinewood or the facility) of the Department of Health and Environmental Control's (Department or DHEC) revocation of its license to operate a community residential care facility, along with the issuance of a $30,950.00 civil monetary penalty. Pinewood is a community residential care facility located in Eastover, South Carolina, and is currently licensed for eighty-four residents. On April 16, 1999, the Department received a written request for a contested case hearing from Pinewood. Pursuant to S.C. Code Ann. § 1-23-600(C) (Supp. 1998) and Rule 12, ALJDRP, the Department transmitted this request to the ALJD on April 19, 1999. A hearing on the merits was conducted at the offices of the Administrative Law Judge Division on May 31, 2000 and June 1, 2000.

The issue presented for determination in this matter is whether the decision of the Department to issue Pinewood a civil monetary penalty and revoke Pinewood's license to operate a community residential care facility is consistent with S.C. Code Ann. § 44-7-110 et seq. (Supp. 1998), the State Certification of Need and Health Facility Licensure Act, and 25A S.C. Code Ann. Regs. 61-84 (1989 and Supp. 1998), entitled "Standards for Licensing Community Residential Care Facilities."

In license revocation actions, the licensing agency has the burden of proof. Therefore, in this case, the Department must establish by a preponderance of the evidence that the facility's license should be revoked and the penalty enforced. 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.C. 2d 225 (1955)). Additionally, the administrative law judge (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⁾ The caption, therefore, is amended to reflect the correct allocation of the burden of proof on the Department.

Having observed the witnesses and exhibits presented at the hearing and evaluated 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. Pinewood Care Home, Inc., is a "community residential care facility" as defined by 25A S.C. Code Ann. Regs. 61-84 §101 (E) (1989 and Supp. 1998). 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. 1998). Pinewood is located in Eastover, South Carolina. It is comprised of two buildings, the "old building" and the "new building." The old building's capacity is thirty beds. The new building's capacity is fifty-four beds.

3. The Department conducts inspections of community residential care facilities to determine if the facilities are operating in compliance with Regulation 61-84. "All facilities are subject to inspection at any time without prior notice by properly identified personnel of the Department." 25A S.C. Code Ann. Regs. 61-64 §102 (F) (1989 and Supp. 1998). The Department conducts both general inspections and complaint investigations of facilities. The general inspections are conducted at least every two years, whereas the complaint inspections are conducted as complaints are received. Complaints come from a variety of sources including: home health nurses; staff at the facility; other state agencies such as the South Carolina Department of Mental Health; advocacy groups; and the Veterans Administration. Also, local police departments and fire departments who go to the facilities call in complaints.

During a general inspection, a team of DHEC inspectors examines 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.

Following an inspection of a community residential care facility 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, the inspector also often conducts an exit interview where the violations are explained and the need to hold a future consultation, at the facility's request on topics chosen by the facility, is discussed. 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. 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⁾ The Department checks the prior history of the facility concerning each violation to determine the fine. If there was no prior infraction for the violation found, the Department imposes the lowest fine. Contrarily, if the facility has been cited for the violation previously, the fine is increased. The facility's record of numerous violations of 25A S.C. Code Ann. Regs. 61-84 (1989 and Supp. 1998), along with a history of repeat violations, lead to the Department's determination to revoke the facility's license and to issue a monetary penalty by letter dated March 25, 1999.

4. The Pinewood facility signed consent orders in 1988, 1989, 1991, and 1997 in response to violations of Regulation 61-84. As a result of those violations, Pinewood paid penalties totaling $14,000.00 during that period. The March 25, 1999 penalty letter, which informed the facility of the revocation and monetary penalty, referenced one general inspection held on October 28, 1998, and six complaint inspections. The dates of the six complaint inspections were: November 17, 1998; December 1, 1998; December 14, 1998; December 15, 1998; December 22, 1998; and January 28, 1999. During those inspections, numerous new and repeat violations were cited. Furthermore, some of the repeat violations cited by the Department go back to 1997.

The cited repeat violations demonstrate the facility's pattern of violations and history of noncompliance with Regulation 61-84. Simply put, Pinewood ranks in the bottom three facilities out of the approximately 560 community residential care facilities that DHEC licenses in this state.

5. The penalty letter from the Department to Pinewood revoking the facility's license and imposing the monetary fine contained thirty-five Class I violations. The letter also cited fourteen Class II violations and fifteen Class III violations. The following violations were supported by the evidence.

6. Most of the Department's inspection reports were returned with comments from Dorothy Simpson, Pinewood's former administrator, regarding the corrective action taken by the facility. Repeatedly, she assured the Department that violations would not recur. The comprehensive inspection by the Department on October 28, 1998, contains these typical responses to cited violations by Ms. Simpson, who signed the report:

A. "Maintenance removed all rust from tubs and sinks. Periodic checks will be done to insure that this will not happen again. 11/04/98 completed."

B. "Box springs in rooms 1 and 4 in old building have been discarded and replaced. Staff will check mattress on a regular basis. 11/05/98 completed."

C. "Rooms 4 and 18 have been completely disinfected and urine odor is gone. Staff will ensure that all rooms are free from odors and trash. 11/03/98 completed."

D. "Staff (med-supervisors) have been inserviced on proper procedures when charting medication. Completed 11/8/98 Medication charting and giving will be checked daily."

Despite continual assurances by Ms. Simpson that violations had been corrected and would not recur, the Department continued to find new and repeat violations. Regulation 61-84 §102 (G) (1989 and Supp. 1998) requires that "[w]hen 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."

Also, the facility was cited on January 20, 1999 for failing to submit a reply to investigations conducted on June 12, 1998, August 5, 1998 and November 24, 1998. Then, on March 2, 1999, the facility was cited again for still not submitting a reply. The evidence supported each of the above citations. The Department assessed a penalty of $250.00 for these violations. I find that the assessed penalty is warranted.

7. On October 29, 1998, a patient was being restrained improperly without a doctor's order. The patient was tied in a chair by a sheet. Linda Blank, an employee of the Protection Advocacy for People with Disabilities, was told that the patient wandered, and that the staff would untie her at different times to allow her to walk and to go to the bathroom. ⁽³⁾ However, while Ms. Blank was in the new building for several hours, the patient was not untied at any time. Furthermore, nothing in the patient's record demonstrated any kind of doctor's order for restraint. Additionally, there was also documentation in a resident's file on December 22, 1998 that the resident was restrained in a wheelchair without a physician's order. 25A S.C. Code Ann. Regs. 61-84 § 305(B) (1989 and Supp. 1998) sets forth:

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. Residents certified by a physician as requiring physical restraint for more than twenty-four hours must be moved to an appropriate facility. An incident report shall be prepared any time physical restraints are used.

Therefore, the facility violated Section 305(B) of Regulation 61-84. The Department assessed the facility a $500.00 penalty for this violation. I find that the assessed penalty is warranted.

8. The Department asserted that the facility failed to procure nursing home placement for a resident demonstrating the need for a higher level of care. The Department cited the facility on December 22, 1998 for "not placing an individual that had a physician's note indicating that nursing home placement was being sought" in violation of 25A S.C. Code Ann. Regs. 61-84 § 403 (C) (1989 and Supp. 1998). Pinewood argued that it sometimes takes "several weeks" to secure placement in a nursing home. However, facility records show that this resident had still not been placed in a nursing home six months after the doctor ordered relocation. The facility was assessed a $500.00 penalty for this violation. I find that the $500.00 penalty assessment is warranted.

9. On October 27, 1998, a resident of Pinewood, documented by staff as a "wanderer," was not properly supervised. As a result of the facility's failure to supervise the resident, he wandered off the grounds and was struck by a moving vehicle. 25A S.C. Code Ann. Regs. 61-84 § 404 (B) (1989 and Supp. 1998) requires that "[c]ontinuous supervision shall be provided for any resident whose mental condition is such that his personal safety requires such supervision." On November 17, 1998, the Department cited the facility for violation of Section 404(B), a Class I violation. The Department assessed a $1,000.00 monetary penalty for this violation. I find that penalty is warranted based upon the evidence.

Pinewood also failed to contact the authorities until approximately three hours after the resident was known to be missing. The facility's policy and procedure for missing persons instructed the facility staff to notify the authorities after a search of at least thirty minutes. Additionally, Section 404(C) provides that "[i]n cases where a resident leaves the facility under circumstances which raise concerns about his/her safety, the following must be contacted immediately: next of kin or responsible person, sponsoring agency or any other agency providing services to the client and local law enforcement." Therefore, the facility failed to properly notify the local authorities after discovering the "wanderer" resident missing. This was a Class I violation of Section 404(C). However, the Department assessed no monetary penalty for this violation. Nevertheless, this violation is appropriate to consider in determining whether or not revocation of the facility's license is proper.

10. On January 28, 1999, Shelton Elliott of DHEC investigated a complaint that a patient's file contained information from a visit by a physician that did not really happen. As a result, the Department charged Pinewood with violating the following regulations:

A. Regulation 61-84 §§ 402(A) and 408 (1989 and Supp. 1998);

B. Regulation 61-84 § 402(C) (1989 and Supp. 1998);

C. Regulation 61-84 §§ 402(E) and 408 (1989 and Supp. 1998);

D. Regulation 61-84 § 504(B) (1989 and Supp. 1998); and

E. Regulation 61-84 § 504(H) (1989 and Supp. 1998).

The investigation confirmed that a clinic doctor had not seen the Pinewood patient as reflected in the patient's file. Additionally, the resident's record did not contain an accurate annual medical examination because the doctor did not sign the record. ⁽⁴⁾ Section 402(A) requires that "[t]he facility shall admit only those person[sic] whose needs can be met within the accommodations and services provided." There was no accurate documentation signed by a physician assessing the identified resident's level of care needs. Additionally, Section 402(E) requires that "[t]he facility is responsible for arranging for the residents' medical, dental and psychiatric care, and shall assist residents to keep appointments." The facility did not provide the resident with the services of a physician as documented in the resident's health record. These two violations were listed together in the same violation because Sections 402(A), 402(E) and 408 provide that the facility is responsible for making sure all physician visits are arranged and documented and that needs are assessed by a physician. The Department assessed a monetary fine of $1,000.00 for these violations. However, the Department did not establish a Class I violation. ⁽⁵⁾ Therefore, I find that the appropriate classification of this violation is Class II with a warranted penalty assessment of $500.00.

Section 402(C) requires that "[a] report of medical examination by a physician conducted no longer than thirty 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." The resident's record did not contain an accurate annual medical examination. The Department assessed a monetary fine of $5,000.00 upon the facility for this violation. However, only two violations of 402(C) are in evidence. The other incident of a violation of 402 (C) occurred during an inspection on November 17, 1998, in which it was found that there was no current physical examination attesting to the propriety of continued residential placement for three resident records reviewed. The maximum assessment for a second Class I violation is $2,000.00. Therefore, I find that the warranted assessment for this violation is $1,000.00.

Section 504(B) requires that "[a]n individual health record for each resident shall include as a minimum: . . . . Name, address and telephone number of individual's physician." The resident's record did not contain an accurate documentation of the resident's physician's name, address and phone number. The Department assessed a monetary fine of $1,000.00 for this violation. ⁽⁶⁾ However, since this is a Class II violation and is supported by the same facts as the above violations, I find the warranted assessment for this violation is $100.00.

Section 504(H) requires that "[a]n individual health record for each resident shall include as a minimum: . . . . Reports of medical examination at time of admission and other examinations." An October 31, 1998 medical examination record for a resident was inaccurate as to date and physician. The Department determined that this was a first offense Class I violation and assessed a monetary fine of $1,000.00. However, a violation of Section 504(H) is a Class III violation. Consequently, no monetary penalty is allowed for a first offense Class III violation. See 25A S.C. Code Ann. Regs. 61-84 § 103(D) (1989 and Supp. 1998). Nevertheless, the violation is appropriate to consider in determining whether suspension or revocation of Pinewood's license is proper.

11. Regulation 61-84 § 504 (G) (1989 and Supp. 1998) requires that "[a]n individual health record for each resident shall include as a minimum: . . . Reports of nurse's visits." On October 28, 1998, the facility violated Section 504 (G) when the records of a home health service's visits of a resident were not available for review by the Department. The facility was assessed a $100.00 penalty for this violation. I find that the assessed penalty is warranted.

Additionally, the facility violated 25A S.C. Code Ann. Regs. 61-84 § 505 (B) (1989 and Supp. 1998). Section 505 (B) requires that "[c]omplete and current entries shall be made in each resident's health record as indicated. All entries must be signed and dated. Such entries shall include, but not be limited to, the following: . . . Physician's orders and recommendations for all medication, treatment, diet, and procedures." However, on December 14, 1998, written physician's orders for medications and treatments that were documented as given were not observed in the health record reviewed. The facility was assessed a $1,000.00 penalty for this violation. I find that the evidence warrants the maximum penalty of $1,000.00 for this violation.

12. 25A S.C. Code Ann. Regs. 61-84 § 506 (1989 and Supp. 1998) requires 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. . . .

A. The plan must describe:

1) The activities of daily living for which the resident requires assistance;

2) Medication regimen;

3) Requirements and arrangements for visits by or to health care providers; and

4) Recreational and social activities which are suitable or desirable.

B. The plan must delineate the responsibilities of the sponsor and of the facility in meeting the resident's needs, including provisions for the sponsor to monitor the care.

On October 28, 1998, a review of resident care plans revealed that the first four-out-of -four care plans reviewed were not signed by the resident/sponsor. The second four plans identified the needs of the residents but provided no care plan to meet those needs. The facility also was cited for violating this section on December 15, 1998. Beginning in March 1998, staff documented aggression in a resident and also that the resident attempted to run away. However, Pinewood's care plan did not address any procedure to address this resident's behavior. The Department assessed the facility the maximum penalty for a second Class II violation of $1,000.00. However, Pinewood was not assessed any penalty for the first violation. Therefore, I find that a penalty of $500.00 is warranted.

13. On December 1, 1998, the facility was cited for violating 25A S.C. Code Ann. Regs. 61-84 § 601 (B)(1) (1989 and Supp. 1998). The violation stemmed from an August 6, 1998 inspection where there were only two staff members observed and on duty at 11:16 a.m. to care for the twenty-eight residents in the old building. Additionally, at a November 17, 1998 inspection, facility records were reviewed and revealed that on November 8, 1998, there were only three staff members on duty for fifty-one residents. Regulation 61-84 § 601 (B)(1) (1989 and Supp. 1998) states: "In each building, there shall be at least one staff member for each ten residents or fraction thereof on duty during all periods of peak resident activity."

The Department imposed the maximum penalty of $5000.00 for this violation because Pinewood had also previously violated Section 601 (B)(1) on January 16, 1997 and January 22, 1997. However, no evidence was presented to establish these two violations at the hearing. The maximum assessment allowed by regulation for the second violation of a Class I offense is $2,000.00. See 25A S.C. Code Ann. Regs. 61-84 § 103 (D) (1989 and Supp. 1998). Additionally, Pinewood was not assessed any penalty for the previous violations. Therefore, I find that an assessment of $1,000.00 is warranted for this violation.

14. The facility violated 25A S.C. Code Ann. Regs. 61-84 § 801 (1989 and Supp. 1998) which states: "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." However, on October 28, 1998, Pinewood had torn upholstery on a furnishing, a rusted bathtub drain, continuously running water in a women's bath, a rusted tub door frame, a missing doorknob and peeling plaster on the walls. The Department assessed the facility $500.00 for a third Class II violation of Section 801. However, the above incident was the only violation of Section 801 shown by the evidence. Therefore, I find that the warranted assessment for this violation is $250.00.

15. The facility violated 25A S.C. Code Ann. Regs. 61-84 § 802 (1989 and Supp. 1998) on several occasions. This section states, in part:

A facility shall be kept neat, clean, and free from odors. Accumulated waste material must be removed daily or more often if necessary. There must be frequent cleaning of floors, walls, ceilings, woodwork, and windows. The premises must be kept free from rodent and insect infestation. Bath and toilet facilities must be maintained in a clean and sanitary condition at all times.

On October 28, 1998, live roaches were crawling out of dresser drawers in Rooms 14, 15, and 16 of the old building. Included in the October 28, 1998 violation were strong urine odors in residents' rooms, badly soiled furnishings, unsealed food in a resident's room, flies in the kitchen and in a resident's room and clutter on the floor of closets. On December 1, 1998, the facility was again cited for violating Section 802. That inspection revealed that live crawling insects were in resident rooms, resident furniture drawers, resident room closets and the second floor day room of the old building at the facility. Then, on December 15, 1998, there was a violation for a strong urine odor in the second floor men's bathroom of the old building. Furthermore, Dorothy Simpson, Pinewood's former administrator, admitted that the walls and floors were "badly soiled" throughout the old building. The facility was assessed a $500.00 monetary penalty for these three occurrences of a Class II violation. Though the facility was not assessed any penalty for the previous violations, I find that the evidence warrants an assessment of $500.00 for this third Class II violation.

16. On December 1, 1998, Pinewood violated 25A S.C. Code Ann. Regs. 61-84

§ 901 (A) (1989 and Supp. 1998) because the facility was providing medications to residents prior to the prescribed time. Both Tanya Spann, Pinewood's office manager, and Dorothy Simpson, Pinewood's former administrator, were familiar with a staff member providing medications prior to the prescribed time, and did not think this was appropriate. Section 901 (A) requires that "[t]he administrator must ascertain that medications are in fact taken by the resident in accordance with the physician's orders." The Department imposed a $500.00 monetary assessment upon the facility for this first violation of Section 901 (A), a Class I offense. I find that the assessed penalty is warranted.

17. 25A S.C. Code Ann. Regs. 61-84 § 901 (B) (1989 and Supp. 1998) sets forth:

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 medications name, dosage, mode of administration, date, time, and signature of the individual administering or supervising the taking of such medications.

The facility committed numerous violations of Section 901 (B). On June 12, 1997, prescribed medication was not available for administration to a resident. Additionally, the investigation on June 12, 1997 revealed that two medications, Coumadin and Alprazolam, were not given to a patient per physician's order. On October 28, 1998, the facility committed a second violation of Section 901(B) when its employees precharted when the medications were given. Pinewood committed a third violation on December 14, 1998 because April 1998 and September 1998 medication administration records (MARs) were not available for review. Additionally, the August MAR only contained two of the five medications ordered at the time.

The Department assessed Pinewood a $5,000.00 monetary fine for four violations of Section 901(B). However, the Department presented no evidence at the hearing that established the alleged violation on March 7, 1997. Moreover, Pinewood was not assessed any penalty for the first or second violations. Therefore, I find that an assessment of $2,500.00 is a warranted penalty for this third Class I violation.

18. 25A S.C. Code Ann. Regs. 61-84 § 1005 (A)(1) (1989 and Supp. 1998) states that a facility must daily serve each resident the following:

Milk and milk products: Serve two or more cupfuls of fluid, whole evaporated, skim, dry or buttermilk. A two ounce serving of cheese, one-half cup of cottage cheese, or a serving of ice cream may serve as a milk substitute.

During an inspection on September 3, 1998, the facility's menus reflected that milk was offered at least twice a day. However, some residents rarely received milk. Furthermore, the food invoices revealed that during July and August of 1998, only eighteen gallons of milk were purchased for the eighty residents at the facility. Therefore, each resident would have only received an ounce or less of milk per person per day. However, a violation of Section 1005 (A)(1) is a Class III violation. Consequently, no monetary penalty is allowed for a first offense Class III violation. See 25A S.C. Code Ann. Regs. 61-84 § 103 (D) (1989 and Supp. 1998). Nevertheless, the violation is appropriate to consider in determining whether suspension or revocation of Pinewood's license is proper.

19. On October 28, 1998, ground beef was sitting on the top of a stove in the facility with the stove off. The meat registered a temperature of 56 degrees Fahrenheit. 25A S.C. Code Ann. Regs. 61-84 § 1006 (B)(3)(a) (1989 and Supp. 1998) requires, in part, that "[a]ll potentially hazardous food shall be maintained at safe temperatures (45 degrees Fahrenheit or below; or 140 degrees Fahrenheit or above), except during necessary periods of preparation and service." The Department assessed a monetary fine of $100.00 for this Class II violation. I find that the assessed penalty is warranted.

Additionally, the refrigerator in the old building did not have a thermometer on October 28, 1998. Regulation 61-84 § 1006 (B)(1) requires, in part, that "[w]hile being stored, prepared, served or transported, all food shall be protected from contamination and spoilage." However, no monetary penalty was assessed for that Class III violation. ⁽⁷⁾

20. 25A S.C. Code Ann. Regs. 61-84 § 1106 (C) (1989 and Supp. 1998) requires that:

a) A fire drill shall be conducted at least once every three (3) months for each shift. Efforts shall be made to ensure each employee participates in a fire drill once in any year.

b) Records of drill shall be maintained to report the date, time, and names of participating individuals and evaluation of the drill.

In addition to the Department's inspectors, other inspectors also visit community residential care facilities to ensure the facilities are in compliance with national standards for fire safety. In that capacity, Robert Axson, a safety specialist at the Dorn VA Medical Center in Columbia, conducted a fire drill at the new building at Pinewood on March 11, 1999. The evacuation time for Pinewood was "more severe than in most facilities." According to the National Fire Protection Association, facilities are classified by their evacuation times. ⁽⁸⁾ "Proper" evacuation means the residents should be capable of getting out in three minutes or less. "Slow" evacuation means the facility requires eight minutes to evacuate. "Impractical" evacuation means that it takes the facility greater than eight minutes to evacuate.

The fire drill was canceled after eleven and one-half minutes even though all the residents were not yet evacuated. Therefore, the fire drill conducted by Mr. Axson at Pinewood was classified as "impractical." Impractical means the building must contain a sprinkler system or have a rapid evacuation time of three minutes or less. In other words, as a result of the drill, it was impractical that the people could safely evacuate in time. Consequently, the only way veterans could be placed in Pinewood is if it was "sprinkled." The VA is still complying with its decision not to place veterans in the Pinewood facility as it does not contain a sprinkler system. The Department did not assess a monetary penalty for the violation. Nevertheless, the violation is appropriate to consider in determining whether or not revocation of Pinewood's license is proper.

21. There were other violations shown in evidence, for which the Department did not assess any monetary penalty. Nevertheless, those violations are appropriate to consider in determining whether or not revocation of the facility's license is proper. On October 28, 1998, those violations included:

a. The beds in resident rooms 1 and 2 in the old building were not provided with moisture-proof mattress or mattress covers in violation of Regulation 61-84 § 701 (A) (Class III);

b. Test kits for checking amount of sanitizing solution in 3-compartment sinks were not available for use in the old and new buildings in violation of Regulation 61-84 § 1008 (B)(5) and (6) (Class III);

c. A fire extinguisher in the new building B wing had its last annual inspection September 1997 and a pin was missing from a fire extinguisher in the downstairs hall of the old building in violation of Regulation 61-84 § 1102 (A) (Class III);

d. The emergency light would not illuminate when tested in the old building lower hall in violation of Regulation 61-84 § 1105 (Class III);

e. There was no liquid soap and/or paper towels at hand washing sinks in kitchen and laundry in the old building in violation of Regulation 61-84

§ 2703 (G) (Class III); and

f. Privacy curtains were not provided/available at tubs located in bathrooms of rooms 12 and 16 (wing B, new building) in violation of Regulation

61-84 § 2703 (J) (Class III).

22. On December 1, 1998, the Department cited the facility for violating 25 S.C. Code Ann. Regs. 61-84 § 903 (1989 and Supp. 1998). Section 903 sets forth:

Medication errors, drug reactions and resident accidents shall be reported immediately to the resident's physician and an appropriate entry recorded in the resident's health record and on an incident report which will be filed in the facility. Incidents, accidents, and/or sudden illness resulting in death, and serious injury or illness requiring hospitalization shall be reported, in writing, to the Division of Health Licensing of the Department within 10 days of the occurrence. (I)

The next of kin or responsible person and sponsoring agency must also be notified immediately of any occurrence of medication errors, drug reactions, change in resident's condition and resident accidents as well as other incidents which pose a threat to the safety of the resident. (I)

In its report of a death on April 24, 1998, the facility failed to indicate the time of a resident's death and whether the responsible party or sponsoring agency had been notified. The Department contends that indicating the time of death is necessary for a proper report and that the sample form DHEC gives to facilities calls for it. However, there is no specific violation of the regulation for failing to indicate the time of a resident's death. Nevertheless, the Department contends that the facility violated Section 903 because it failed to indicate whether the "responsible party or sponsoring agency" had been notified. I do not find that the evidence sufficiently established the Department's contention.

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 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 and Supp. 1998). The ALJD has subject matter jurisdiction over contested cases arising from the regulation enforcement disputes of community residential care facilities. S.C. Code Ann. §§ 1-23-310 to -390 (1986 & Supp. 1998) and S.C. Code Ann. §1-23-600 (B) (Supp. 1998) (procedures for contested cases); S.C. Code Ann. §44-7-320 (B) (Supp.1998) (stating that an affected party may appeal a Department staff decision by requesting an adjudicatory hearing).

2. A community residential care facility (CRCF) is defined in S.C. Code Ann. Regs. 61-84 § 101 (E) (1989 and Supp. 1998) 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 the resident make appointments and secure transportation in order to receive support services; being aware of the resident's whereabouts; and 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. A CRCF can also be a facility that "offers or represents to the public that it offers a beneficial or protected environment specifically for the mentally ill or drug addicted or alcoholic . . . ." Id.

3. 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) (Supp. 1998). Additionally, 25A S.C. Code Ann. Regs. 61-84 (1989 and Supp. 1999), entitled "Standards for Licensing Community Residential Care Facilities," regulates 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. 1998). 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. 25A S.C. Code Ann. Regs. 61-84 § 202 (1989 and Supp. 1998).

5. Section 103 of 25A S.C. Code Ann. Regs. 61-84 (1989 and Supp. 1998) categorizes the three classes of violations of the standards for licensing CRCFs 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.

Pinewood committed violations of all three classes.

6. When a CRCF licensee is not in compliance with the licensing standards for CRCFs, 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 and Supp. 1998). CRCFs which violate the State Certification of Need and Health Facility Licensure Act and Regulation 61-84 are subject to sanction. S.C. Code Ann. § 44-7-320 (Supp. 1998). Specifically, Section 103 of Regulation 61-84 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, in determining the appropriate action to take against a facility, Section 103 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. Furthermore, Section 103 (D) outlines the schedule to be used to determine the amount of a monetary penalty. The amount of the penalty depends upon the frequency of the violation within a twenty-four 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." S.C. Code Ann § 44-7-320(A)(2) (Supp. 1998).

7. Pursuant to Regulation 61-84 § 503:

On discharge of a resident the health record shall be immediately completed and filed in an inactive file. Health records must be kept by the licensee and shall not be disposed of until ten (10) years have elapsed since discharge of the resident. Prior to the closing of a facility for any reason, the licensee must arrange for preservation of [health] records to ensure compliance with these regulations. The licensee must notify the Department, in writing, describing these arrangement.

(1989 and Supp. 1998).

8. 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.

9. The Department has proven by a preponderance of the evidence that the CRCF license at Pinewood Care Home, Inc., should be revoked. However, although a penalty of $10,300.00 may be warranted because the Department has proven that those violations occurred, I find that the severest penalty authorized by statute, that of revocation, is a sufficient penalty in this case.

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

ORDERED that the community residential care facility license of Pinewood Care Home, Inc. be revoked.

IT IS FURTHER ORDERED that:

1. Provisions be made immediately for the safe transfer of all current residents at the facility to appropriate relocation facilities, along with the transfer of residents' medications, medical records, personal possessions and personal funds, and that the Department be informed in writing of the placement of each resident within thirty (30) days from the date of this Order; and

2. Pinewood Care Home, Inc. shall notify the Department in writing within thirty (30) days from the date of this Order describing the arrangements it has made pursuant to Section 503 of Regulation 61-84 .

AND IT IS SO ORDERED.

Ralph King Anderson, III

Administrative Law Judge

January 5, 2001

Columbia, South Carolina

1. S.C. Code Ann. § 44-7-320 (A)(2) (Supp. 1998) 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. 25A S.C. Code Ann. Regs. 61-84 § 103 (A) - (C) 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 subsection in Regulation 61-84 as I, II, or III.

3. Ms Blank, as part of her job with the Protection Advocacy for People with Disabilities, inspects community residential care facilities and S.C. Department of Mental Health inpatient facilities.

4. The doctor's signature was misspelled on the record. Therefore, this finding is based upon the assumption that a medical doctor is capable of spelling his own name.

5. The department contends that the facility committed a Class I violation of 25A S.C. Code Ann. Regs. 61-84 § 408 (1989 and Supp. 1998). The only applicable Class I violation of Section 408 provides that "[t]he level of services and care appropriate to the needs of the residents shall include, as a minimum, all the provisions hereinafter provided, whether provided by the facility or from other sources. . . . (A) Supervision by a physician shall be provided to the resident as needed." However, the evidence did not establish that the resident needed any specific medical attention. Therefore, no alleged Section 408 violation was considered in determining the appropriate penalty in the case.

6. The Department cited this violation as a Class I violation. The penalty range for a first offense Class I violation is $200.00 to $1,000.00. See 25A S.C. Code Ann. Regs. 61-84 § 103(D). However, a violation of Section 504(B) is a Class II violation. Consequently, the penalty range is limited to between $100.00 to $500.00. Id.

7. No penalty is allowed for a first offense Class III violation.

8. The National Fire Protection Association is one association that sets standards throughout the United States concerning fire and life safety of residents in community residential care facilities. During his inspections Mr. Axson enforced the 101 life safety code, i.e., the National Fire Protection Association 101 [code] which is "pretty well [accepted] throughout the United States."