ORDERS:
CONSENT ORDER AND AGREEMENT
FINDINGS OF FACT
The Parties to this litigation, wishing to end their differences prior to a hearing conducted
by an Administrative Law Judge, agree as follows:
1.The Department is the State agency designated to license and regulate renal dialysis
facilities within the State of South Carolina. S.C. Code Ann. §§ 44-7-110 et seq.
(2002); 25A S.C. Code Ann. Regs. 61-97 (Supp. 2002)..
2.On March 20, 2003, inspectors from the Department conducted an inspection of the
facility owned and operated by Gambro Healthcare, Inc., in Aiken, South Carolina
(“Aiken Facility”).
3.As a result of the inspection, Department inspectors issued a Licensing Standard
Compliance Report, which cited 42 violations of Regulation 61-97.
4.On April 4, 2003, the Department issued a letter to the Administrator of the Aiken
Facility indicating that as a result of the March 20th inspection, the Department was
suspending the Facility’s license and that it was imposing a civil monetary penalty of
$16,750.00.
5.The Aiken Facility objected to the findings of the Department and filed an appeal for a
contested case hearing in this matter. In addition to objections to specific citations,
the Aiken Facility asserted that the Department lacked the statutory authority to
impose both a suspension and monetary penalty on the Facility, and, instead, must
choose between imposing the suspension or the monetary penalty. To that end, on
June 4, 2003, the Aiken Facility filed a Motion for Summary Judgment requesting this
Court’s ruling on this issue. On July 28, 2003, this Court heard oral arguments on the
Motion and took the matter under advisement pending the parties’ further discussions.
6.By letter dated August 15, 2003 the Department agreed to the following:
a.“The hearing [in this matter] will be continued for 60 days from the date of Judge
Scott’s written Order approving the continuance.
b.“Beginning on the date of Judge Scott’s Order approving the continuance until 30
days from that date, the Division of Health Licensing does not plan to re-inspect
the Gambro-Aiken facility in order to give the facility time to come into substantial
compliance with Regulation 61-97. However, in the event of urgent need or
emergency the Division of Health Licensing will exercise its duties and authority
pursuant to S.C. Code Ann. § 44-7-250 (2002).
c.“Between day 31 and day 60 after the date of Judge Scott’s written Order
approving the continuance the Department will conduct an unannounced
comprehensive inspection of the Aiken Facility. If the facility is deemed to be in
substantial compliance, the Department will lift the current suspension of the
facility’s license. If not, the parties will proceed to a hearing and/or continue their
efforts to lift the suspension.
d.“The Department agrees to eliminate the monetary penalty assessed in the April 4,
2003, Enforcement Action letter.
e.“Previously scheduled depositions of Department witnesses will be postponed
indefinitely uinless or until it is determined that a hearing will be necessary.”
7.On October 14, 2003, the Department conducted an unannounced inspection of the
Aiken Facility and determined that the Facility was in substantial compliance with S.C.
Code Ann. §§ 44-7-110 et seq. and Regulation 61-97. As a result, the Department, by
letter dated October 16, 2003, lifted the suspension of the Aiken Facility’s license.
THEREFORE, IT IS AGREED
1.The Aiken Facility agrees to voluntarily dismiss this action.
2.The Department in no way waives its authority to enforce, by imposing additional
penalties or otherwise, all statutory and regulatory requirements for licensure of renal
dialysis facilities.
3.No additional statements, inducements or promises have been made by either party in
consideration for entering into this Consent Order and Agreement.
4.The Licensee understands that this Consent Order and Agreement governs only the above
penalty and action and does not affect or purport to affect any other liability, whether civil,
criminal, regulatory or other that may also exist as a result of these violations.
AND IT IS SO ORDERED.
_____________________________
Honorable C. Dukes Scott
Administrative Law Judge
November 10, 2003
Columbia, South Carolina |