STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF ALAMANCE 04 DHR 0633
______
THE BRAXTON HOME, )
ALFRED F. BRAXTON, )
Petitioner, )
)
- )
) DECISION
NORTH CAROLINA DEPARTMENT )
OF HEALTH AND HUMAN SERVICES, )
DIVISION OF FACILITY SERVICES, )
Respondent. )
______
THIS MATTER came on for hearing before the undersigned Beryl E. Wade, Administrative Law Judge, on October 27, 2004, in Raleigh, North Carolina.
APPEARANCES
Petitioner: Alfred F. Braxton, Pro se
The Braxton House
1517 Bentwood Drive
Graham, NC 27253
For Respondent: Wendy L. Greene
Assistant Attorney General
North Carolina Department of Justice
9001 Mail Service Center
Raleigh, NC 27699-9001
ISSUE
Whether Respondent acted erroneously, arbitrarily or capriciously, and failed to act as required by rule or law when it imposed a penalty of four thousand seven hundred thirty dollars ($4,730) against Petitioner for failure to timely comply with directed corrective actions to rectify violations of the statutes and regulations governing licensure of adult care homes.
Respondent’s exhibits 1 - 10 were admitted.
APPLICABLE STATUTES AND RULES
N.C. GEN. STAT. § 131D-2, -21, and 34
N.C. GEN. STAT. § 150B-23
10A NCAC 13G.0216
BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, the documents and exhibits received and admitted into evidence, and the entire record in this proceeding, the Undersigned makes the following findings of fact. In making the findings of fact, the Undersigned has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to the demeanor of the witness, any interests, bias, or prejudice the witness may have, the opportunity of the witness to see, hear know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent with all other believable evidence in the case. From the exhibits admitted into evidence and the sworn testimony of witnesses, the undersigned makes the following:
FINDINGS OF FACT
1. The Braxton Home is a six bed family care home located in Graham, North Carolina. As a licensed family care home the Braxton Home is subject to N.C. Gen. Stat. 131D-2 et seq, and 10 NCAC 42D. T pp. 26, 27
2. At all times relevant to this matter Al Braxton, was the administrator of the Braxton Home (collectively and interchangeably hereinafter “Petitioner”). Petitioner has been the administrator for over 15 years, and has received the requisite training and annual continuing education. As the home administrator, Petitioner was responsible for assuring that the facility is run in accordance with state laws and regulations. T pp. 24, 30, 31, 40, 41
3. At all times relevant to this matter Karen Martin was employed as an adult home specialist with the Alamance County Department of Social Services. Ms. Martin was responsible for monitoring the Braxton Home. T pp.119, 120, 121
4. Ms. Martin monitored the adult care homes by making unannounced and follow-up visits to see that the facilities under her jurisdiction were in compliance in licensure areas including, but not limited to, food service, medication, administration, staff records, and personnel records. At the end of every visit, Ms. Martin produces an Adult Care Monitoring Report, which is signed by the staff person on duty at the time of the visit. The Corrective Action Report outlines the monitoring visit findings. The reports are shared with facility staff on duty at the end of the visit. The staff member signs the report and the facility is given a copy. T pp. 121, 122; Resp. Exhs. 1,4, 5
5. When violations are identified, Ms. Martin had a choice of allowing the facility to design its own plan of correction, or for more serious offenses, directing the facility to enact a directed plan of correction. Directed plans typically require the facility to enact corrective actions more quickly because of they involve risks to the health and safety of residents. Facilities are offered technical support to carry out their directed corrective plans. T p. 124
6. On April 29, 2003, Ms. Martin conducted a routine unannounced monitoring visit to the Braxton Home. The facility’s supervisor-in-charge was present during the visit. Ms. Martin monitored the areas of staff records, resident records, and medication administration records. She found that in some areas the facility had made improvements since her last visit, but that there were deficiencies in the areas of staff records, medication administration, and admission paperwork. The Braxton Home had ongoing deficiencies in these areas. Ms. Martin wrote an Adult Care Monitoring Report. T pp. 125, 126, 127; Resp. Exh. 1
7. On May 19, 2003, Ms. Martin conducted another visit to the Braxton Home. This visit was the follow-up of a complaint about the home involving the areas of resident rights, staff qualifications and supervision of residents. Ms. Martin interviewed staff and residents, and reviewed staff records. She found that there were required documents missing from the staff records. The assistant manager, or supervisor-in-charge, signed the Adult Care Monitoring Report at the end of the visit. Ms. Martin also found that the supervisor-in-charge’s criminal record included drug charges and that certain residents were allowed to use drugs at the facility. T pp. 128, 129, 139, 140; Resp. Exh. 1 p. 2
8. On June 20, 2003 Petitioner met with Ms. Martin at her office for an exit interview of the complaint investigation. The purpose of the meeting was to give Petitioner an opportunity to respond to the investigation findings or provide additional information. T p. 131; Resp. Exh. 1 p. 3
9. On July 1, 2003, Ms. Martin began the unannounced annual review of the Braxton Home. The annual review revealed, among others, deficiencies in the areas of medication administration records and resident records, in regards to their medical care and personal spending accounts, a care plan discrepancy. Petitioner signed the Adult Care Monitoring Report. T pp. 131, 132; Resp. Exh. 1 p. 4
10. By letter dated August 22, 2003, Petitioner informed the Braxton home of the results of the compliant investigation and forwarded a corrective action report. The corrective action report allowed Petitioner to notify DSS of its proposed corrective actions. Also attached to the letter was a directed corrective action plan of care needed to bring the facility back into compliance in regard to the more serious violations. T pp. 133, 134, 135 ; Resp. Exh. 3
11. Petitioner was directed to assure that: residents not be left alone; that the administrator earn the required number of continuing education unit; criminal record checks were conducted on the supervisor-in-charge; Health Care Personnel Registry checks were completed on the staff; staff be tested for tuberculosis; staff receive CPR training and continuing education; job descriptions were included in records as well as verification of education; resident medical exams were done where they were late; and medical forms, FL2s, be completed where incomplete. Medical examinations and current FL-2s are important to resident health and well-being because they inform care-givers of the resident’s level of care and health status, behaviors, sight, hearing and ambulation capacities, as well as whether the resident is incontinent, and the resident’s medications. Petitioner was also directed to timely perform assessments on newly admitted residents, get updated resident care plans, and get staff and residents are validated to perform basic nursing tasks such as self-administration of blood sugar checks. In addition, Petitioner was instructed to provide residents with telephone privacy, and properly document and carry out resident transfers from the Braxton Home to any other home, and correct resident rights violations. Staff medication qualification was another serious area Petitioner was directed to correct because unqualified staff were giving medication to residents. Some violations were to be immediately corrected. Petitioner was given either 14 or 30 days to enact the correction of other violations. Unqualified staff was to immediately cease dispensing medicine. T pp. 136- 162; Resp. Exh. 3
12. On September 5, 2003, Ms. Martin conducted a follow-up visit to the annual assessment. She noted that some improvements had been made in areas previously cited, but that there were continuing violations in the area of staff qualifications. There were also sanitation deficiencies that had been noted by the Health Department. T pp. 164, 165; Resp. Exh. 1 p. 1
13. Petitioner signed Ms. Martin’s August 22, 2003 report on September 6, 2003. Compliance with the corrective actions would be determined at follow-up visits. T p. 163; Resp. Exh.3
14. On September 12, 2003, Ms. Martin attempted to conduct another follow-up visit, but found that no one was at the home. T pp. 167, 168
15. On September 15, 2003, Ms. Martin conducted a visit to follow-up on Petitioner’s implementation of the directed plan of corrective action. She found that Petitioner had made progress on correcting some of the problem areas, but that she would need to return to verify other areas still to be corrected. Ms. Martin gave Petitioner some forms, and informed them that she was available for consultation. T pp. 168, 169; Rep. Exh. 4 p. 3
16. On October 1, 2003, Ms. Martin and Division of Facility Services nurse consultant Donna Hayes visited the Braxton Home together to conduct a medication review as a follow-up to the directed corrective action plan. They found numerous medication violations. On October 21, 2003, Ms. Martin and her supervisor, Susan York, conducted another medication review at the facility. T pp. 170-176; Resp. Exhs. 2, 6
17. Petitioner failed to bring the facility into compliance by October 1, 2003. When asked when the facility could comply with all of the items listed in the directed corrective action plan, Petitioner told the Division of Facility Services nurse consultant that it would attain compliance by October 13, 2003. T p. 183
18. On October 22, 2003, Ms. Martin sent a letter Dr. K.M. Kapur to verify his purported signature on a resident medical record, (FL-2), obtained from Petitioner. Dr. Kapur provided Ms. Martin a document with his authentic signature. The signature on the document on file at the facility did not match the authentic signature. In fact, Dr. Kapur’s office informed Ms. Martin that the doctor had not seen that particular resident since the resident entered the Braxton Home, as indicated on the FL-2, and they had not completed the FL-2 in question. T pp. 176- 180; Resp. Exh. 7
19. On October 23, 2003, after determining that the Braxton Home had failed to comply with the directed corrective plan of action, Ms. Martin notified the Department of Health and Human Services, Division of Facility Services and prepared a penalty proposal. The penalty proposal summarized the regulatory areas in which Petitioner failed to attain compliance. Petitioner was informed that a penalty was being considered, and was sent a copy of the proposal once it was completed. In addition, Ms. Martin asked DFS to conduct its own survey of the facility, and to consider suspending admissions to the facility due to the scope and severity of the violations. T pp. 180-185; Resp. Exh. 8
20. At all times relevant to this matter Ellen Walls was the assistant section chief of the Adult Care Licensure Section of the Division of Facility Services. Ms. Walls supervises the nurse consultants, who work directly with county Departments of Social Services. She supervised Donna Haynes, the nurse consultant who surveyed the Braxton Home upon Alamance County’s request for negative licensure action. T pp. 232-234
21. After Alamance County gave notice to Petitioner that the penalty process would be going forward, Donna Haynes, the nurse consultant, reviewed the information and assured that it was complete. After Ms. Haynes reviewed and approved the proposal, she forwarded to Ms. Walls. T pp. 236, 237
22. Petitioner was cited for Type B violations. Type B violations allow a facility an opportunity to correct the violations before penalties are considered. Penalties will be proposed if the facility fails to correct its violations within the specified period of time. Petitioner was given an opportunity to correct its violations before the penalty process was initiated. Upon receipt of the penalty proposal, Ms. Walls considered aggravating and mitigating factors, and decided upon a daily penalty within the legal limit. Ms. Walls found as an aggravating factor that the facility had been given an extended deadline and had failed to meet it. Taking into consideration the legal limits on penalty amounts, agency policy, and the type of violations Petitioner committed, Ms. Walls assigned the lowest level daily penalty of $25 per day. That amount was multiplied by the number of days Petitioner was out of compliance. A penalty proposal summary sheet was forwarded to Petitioner. A complete package of the information was forwarded to the Penalty Review Committee. T pp. 237-244; Resp. Exh. 9
23. On March 11, 2004, the Penalty Review Committee imposed a penalty of $4,730 on the Braxton Home for failure to comply with adult care home licensure regulations. Petitioner attended the meeting and was permitted to present information to the committee. T pp. 247-252; Resp. Exh. 10
24. Petitioner does not believe that the process was fair, or that the violations were properly substantiated. Petitioner testified that he was not given sufficient opportunity to present his perspective on the allegations and substantiated violations.