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STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF WAKE 10 DHR 6465

YALONDA COLEMAN ) COLEMAN HEALTH FACILITY, ) Petitioner, ) ) v. ) DECISION ) DEPARTMENT OF HEALTH AND ) HUMAN SERVICES, ) Respondent. )

This matter came before Administrative Law Judge Joe L. Webster on June 28 and 29, and August 23, 2011 in Raleigh, North Carolina.

APPEARANCES

For Petitioner: Yalonda Evon Coleman Petitioner, pro se

For Respondent: Kathryn J. Thomas Assistant Attorney General N.C. Department of Justice P.O. Box 629 Raleigh, NC 27602

WITNESSES

For Petitioner: For Respondent: Petitioner Stephanie Alexander Johanna Edwards Delores Armstrong Kimberly Sauls Maryland Chenier Michiele Elliot

EXHIBITS

The following Exhibits were admitted on behalf of Petitioner: Exhibits 1 through 4, 6, 8-15

The following Exhibits were admitted on behalf of Respondent: Exhibits 1 – 48 ISSUES

Whether Respondent properly revoked Petitioner’s license; whether Respondent properly issued a summary suspension of Petitioner’s license; and whether Respondent properly assessed a continuing uncorrected Type A penalty of $74,500.

APPLICABLE STATUTES AND RULES

N.C. Gen. Stat § 122C, et seq. N.C. Gen. Stat. 131E-256 N.C. Gen. Stat. 150B, et seq. 10A NCAC 27D .0304 10A NCAC 27G, et seq.

PRELIMINARY MATTERS

During a hearing on Respondent’s Motion to Dismiss, after hearing testimony of Marcie Wood, administrative assistant responsible for mailing correspondence and notices from Respondent to petitioner, and considering Respondent’s Exhibits 1- 37, Respondent’s motion was denied.

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 Administrative Law Judge (“ALJ”) makes the following Findings of Fact. In making these Findings of Fact, the ALJ has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate facts for judging credibility, including, but not limited to the demeanor of the witnesses, 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 consisted with all other believable evidence in the case.

FINDINGS OF FACT

1. This matter is properly before the Office of Administrative Hearings, which has both personal and subject matter jurisdiction. The parties were properly noticed for hearing.

2. On October 15, 2010, Petitioner filed a Petition for a Contested Case Hearing with the Office of Administrative Hearings (“OAH”).

3. Petitioner operated Coleman Health Facility, Mental Health Licensure # 092-560, located at 219 Fuquay Springs Avenue, Fuquay-Varina, North Carolina under N.C. Gen. Stat. § 122C, Article 2, the licensing rule for Mental Health, Developmental Disabilities, and Substance Abuse Services, 10A NCAC 27G .5600a. Coleman Health Facility was a supervised living facility for adults with mental illness. In addition to providing treatment for mental illnesses of consumers, it is also required to provide treatment and supervision of medical conditions of those same consumers. (T p 149; R Ex 38, Exhibit B)

4. Facilities licensed under the 10A NCAC 27G .5600A rules for supervised living and treatment of adults with mental illness are also required to comply with the rule which require protection of clients from harm, abuse, neglect or exploitation found in 10A NCAC 27D.

MENTAL HEALTH LICENSURE SECTION

5. Stephanie Alexander is the Chief of the Mental Health Licensure Section of the North Carolina Division of Health Service Regulation. She is responsible for oversight of the regulatory responsibilities of the Mental Health Licensure Section which oversees mental health, developmental disabilities, and/or substance abuse residential facilities for individuals. She supervises approximately 77 staff which includes eight survey teams. (T pp 127-128)

6. In her capacity as Chief of the Mental Health Licensure Section, Ms. Alexander is familiar with the statutes and regulations governing the licensing and regulatory requirements for mental health, substance abuse, and developmental disability facilities in the state of North Carolina. (T p 133-134)

7. Michiele Elliot is the Eastern Branch Manager in the Mental Health Licensure Section. She has worked there for 11 years. Ms. Elliott is a registered nurse, she has a bachelor’s of science degree in nursing and has been a nurse for 22 years, primarily in psychiatric nursing. Prior to working in the Mental Health Licensure Section, she was an inpatient unit manager at Dorothea Dix Hospital. There are over 4,000 licensed mental health facilities in the state, and she is responsible for overseeing staff for approximately half of those facilities. (T pp 481-482)

8. Team leaders directly supervise surveyor teams which are comprised of approximately 8 surveyors each. When the team leader is not available for consultation by the surveyors, Ms. Elliott is available for consultation. Ms. Elliott is also responsible for working with the survey teams regarding questions about possible administrative actions. Ms. Elliott also participates in the quality assurance (“QA”) committee meetings to make sure that administrative actions are taken appropriately. (T pp 482-483)

9. Surveyors are responsible for conducting annual, compliance and follow-up surveys of mental health facilities. Surveyors are either nurses or social workers who have significant experience in the field managing group homes, private practice in social work or working as psychiatric nurses. Surveyor training includes orientation, six months of shadowing experienced surveyors and review of statements of deficiencies by team leaders and other managers while gradually assuming more responsibility. (T pp 128-130)

10. Surveyors review food services, water temperature, personnel files, fire drill records, medication records, and incident reports. They interview clients, case managers, families, schools, probation officers, psychiatrists, and medical doctors depending on the information they are attempting to obtain. (T p 248) Surveyors review staffing records, including personnel files for each person employed, and client records for each client. (T p 248) 11. Records for clients are required to contain assessments and an indication of progress toward goals. Client records are required to include an assessments completed prior to delivery of services, a treatment plan and medication administration records. Generally an initial assessment is completed by a Qualified Professional (“QP”) to determine whether the facility is able to meet the treatment needs of the clients. While a QP is required for initial licensure, a surveyor will check to ensure that the facility has a QP after the initial licensure. A QP is a safety net with training and education for staff who provide the services for clients to meet their goals. (T pp 248-249)

12. Treatment plans direct the treatment and habilitation that the facility is responsible for. Treatment plans should include residential goals, such as a client making his or her bed in the morning or meal making. Treatment plans include directions for unsupervised time by the client. If unsupervised time is included in the treatment plan, the surveyor will look for an assessment that show that the client can be safe in the community or in the home unsupervised. Generally, such an assessment includes input from the client’s treatment team which can include the psychiatrist, case manager, and guardian so that the treatment team in agreement that it is in the best interests of the client that the client has unsupervised time. (T p 251)

13. Treatment plans also include therapeutic strategies for dealing with a client’s mental illness such as encouraging a client to take their daily medications, attend to daily hygiene, to participate in activities with other people to increase social skills, and to comply with the rules of the facility (T p 251-252)

14. Facilities licensed as mental health facilities provide services 24 hours a day, seven days a week, 365 days a year. Personal care services are not regulated by the Mental Health Licensure Section. (T p 252)

15. If a client requires psychotropic medications, a drug regimen must be performed every six months. For example, if a client is self-administering medications, there must be a doctor’s order stating that the client may do so. Client refusals of medications are also required to be documented. Because certain medications are controlled substances, the facility must have a method to count where the medications have gone through their use or misuse. Staff who administer medications are required to have special training by a registered nurse. (T pp 250-251)

LICENSING OF MENTAL HEALTH GROUP HOMES

16. In order to be licensed as a mental health group home under 10A NCAC 27G .5600a, a facility operator must have policies and procedures outlined in the administrative code including policies and procedures dealing with medication requirements, qualified professional (“QP”) requirements, competencies of paraprofessionals, consumer assessments and treatment plans. For example, paraprofessionals must be supervised by a QP. (T pp 141-142) Facilities licensed as mental health group homes provide services to medically, emotionally and mentally fragile individuals. (T p 172)

17. Facilities licensed for supervised living and treatment of adults with mental illness are required to assess the individuals to whom they provide services so that the services are appropriate services. The treatment plan describes the consumer’s needs and includes strategies and interventions to meet those needs. In addition, the facility must maintain documentation to show progress and outcomes of those strategies and interventions. The facility is ultimately responsible for assuring that a treatment plan is in place, but it is usually put together by consulting with a case manager, social worker and other clinical professionals. (T pp 151-152)

18. In order to obtain a license, a facility must have a Qualified Professional (“QP”) in place as defined in the administrative code. (T p 192)

19. All facilities are required to comply with general regulations governing all facilities regulated by Respondent under 10A NCAC 27G as well as client rights rules. Applicants for licenses are provided with copies of the relevant regulations, and an initial survey is conducted with an applicant to ensure that the facility has copies of the applicable rules. (T p 237) In addition, the applicable statues and rules are available on the Division’s website. (T p 484)

20. The Mental Health Licensure Section surveys day treatment programs, methadone clinics, adolescent homes, substance abuse homes, as well as facilities serving individuals whose primary diagnosis is developmental disability. There is core set of rules which all providers are required to follow in addition to the rules for each type of program. (T p 247)

21. A facility is required to provide two levels of staff – paraprofessionals and a qualified professional. (T p 256)

22. Under 10A NCAC 27G .0205, the facility is required to have strategies to meet the changing needs of this fragile population. (T p 238) The rules in 10A NCAC 27G in the .0200 section also establish the requirements for personnel, client records and clients services. (T p 243) For example, Rule 10A NCAC 27G .0204 establishes the requirements for the competencies of the paraprofessionals including that they be supervised by an associate professional or by a qualified professional (“QP”). (T p 241-242, 249)

23. 5600A facilities are licensed to serve adults with mental illness. The primary purpose of these facilities is to provide supervision and treatment in a residential setting. The bottom line for each client coming to the facility is that they require 24 hour, 7 days a week, 365 days a year supervision. If it serves a client’s treatment and functional abilities such that they can safely gain some independence an skills with community time or in the home alone, then those goals are incorporated into the treatment plan. (T p 486) A facility with this license is required to assess clients upon admission to determine whether they can safely provide for the clients’ needs and treatment. If a client has behavior such as refusal to take medication, wandering away from the facility, aggression or sex offender, the facility is responsible for developing strategies for interventions that will help the staff deal with the client on a day to day basis and maintain the client’s safety and the community’s safety. (T p 486)

24. The licensing rules provide a minimum standard for operating a mental health facility. (T p 487) TYPES OF SURVEYS

25. North Carolina General Statutes require annual surveys of all residential facilities. The annual survey focuses on the whether the treatment needs of the consumers are being met in a safe and healthy environment. During the survey, surveyors interview consumers and staff. Surveyors also observe the operations in the facility. If they see red flags, the surveyors follow up and expand the scope of the survey. (T p 131) Surveys are conducted through unannounced visits to the facility. A small group home with few or no problems may take a day to a day and a half. (T p 134-135)

26. Annual surveys are an overview of all the rule areas. Before conducting a survey, a surveyor will look at whether there have been deficiencies cited in prior surveys and whether measures have been put in place to address prior areas of deficiencies. (T p 254)

27. Complaint surveys are triaged by the complaint intake unit in order to determine their severity. Complaint surveys focus on investigating the complaint and focus on a specific rule area. If the surveyors see a red flag during a complaint survey, they will also follow-up and expand the scope of the survey. (T p 131, 254)

28. Annual and complaint surveys may result in a finding of deficiencies which may result in administrative action. (T p 131)

29. Follow-up surveys are conducted on various timelines depending on whether the surveyors have found a deficiency in a previous survey and whether there has been an administrative action. (T p 132)

30. Surveyors complete a statement of deficiencies (“SOD”) when they complete a survey. The SOD is a written document that lists the deficiencies by number, otherwise known as a “tag”. The first part of the tag is the rule. The second part of the tag is the “practice statement” which tells a provider what a surveyor has found that is out of compliance and gives concrete examples of the noncompliance. (T p 253-254)

LEVELS OF DEFICIENCIES AND TIME FRAME FOR COMPLIANCE

31. With a Standard deficiency, the facility has 60 days to correct, and the surveyors go back out after 75 to 90 days to allow the facility the time to correct and to assure that the facility has been operating in compliance. (T p 132)

32. A Type B deficiency is the result of a violation of a rule or regulation that is related to the health, safety, and welfare of a consumer, but does not result in serious physical harm or substantial risk of physical harm. The facility has 45 days to correct a Type B violation. (T pp 132- 133)

33. A Type A deficiency is the result of a violation of a rule or regulation that is related to actual physical harm or substantial risk for physical harm. The facility has 23 days to correct a Type A violation. (T p 133) 34. If a facility no longer has a license, but Respondent receives a complaint that a facility is operating without a license, then surveyors may go to the facility to see whether or not that facility should be a licensed facility. (T pp 204-205)

TYPES OF ADMINISTRATIVE ACTIONS

35. If a Type A violation is found, the facility will be assessed a monetary penalty which is a set amount. In addition, if the facility does not correct a Type B or Type A deficiency within the designated time frame, the facility is notified that a daily monetary penalty will be assessed for every day the deficiency is uncorrected. In addition to monetary penalties, other administrative actions are also possible. Monetary penalties may be appealed.

37. Suspension of Admissions. A Suspension of Admissions requires that the facility not admit any new consumers, but is allowed to continue to serve the individuals who are currently residing in the facility. Appeal rights are provided with the notification letter. (T p 138, 170) A Suspension of Admissions may be appealed.

38. Intent to Revoke. An Intent to Revoke letter is not an administrative action per se, and does not have appeal rights associated with it. However, it gives the licensee notice that the facility has 10 days to provide information which would cause the Mental Health Licensure Section to not go forward with revoking the facility’s license. (T p 138)

39. Notice of Revocation. Following an Intent to Revoke notification, if the facility does not provide any additional information and a follow up survey shows that the facility continues to be out of compliance, the Mental Health Licensure Section follows up with a Notice of Revocation. In the Notice of Revocation, the facility is given appeal rights (60 days) as required by N.C. Gen. Stat.§122C-24, § 150B-3(b), and §150B-23. (T pp 138-139, 169)

40. Summary Suspension of License. In rare instances, the Mental Health Licensure Section will issue a notice of Summary Suspension of License when there is a finding that there is imminent danger for the consumers in the facility. (T p 139) Summary suspension actions may be appealed.

PROCEDURE FOR DETERMINING ADMINISTRATIVE ACTIONS

41. When in the course of a survey a surveyor has found some deficiencies in practice which the surveyor has found that the scope and severity could be a Type B or Type A violation, before the surveyor concludes the survey, and before the surveyor exits the facility, the surveyor contacts the team leader to discuss whether the deficiency rises to the level of administrative action. Then, before the surveyor leaves the facility, the surveyor conducts an exit interview with the licensee or designee to review the deficient practice and to advise the licensee that the surveyor is recommending a Type B or Type A administrative action. (T pp 134-135)

42. After the surveyor finishes the statement of deficiencies (“SOD”), it is reviewed by the surveyor with the team leader. The SOD copies the actual administrative rule into the document (column 1 of the SOD). The explanation for the failure to comply with the rule follows the rule. (T p 147) If the findings in the SOD rise to the level of administrative action, then the SOD is reviewed by the quality assurance (“QA”) committee to determine whether the findings support the administrative action. If an administrative action is called for, the team leader drafts the appropriate administrative action letter for Stephanie Alexander’s signature. The letter includes the time frame for compliance as well as appeal rights. The letter also includes an offer by the Mental Health Licensure section to informally resolve the issue. Ms. Alexander reviews the letter and the SOD prior to signing the letter. (T pp 135-137)

43. An informal review allows the facility licensee to meet with Ms. Alexander, the branch manager and the team leader, and to provide additional information. After the informal review, the additional information is reviewed and a follow-up survey may be conducted to determine if the deficiency has been corrected. After making a decision about whether or not the original decision is being upheld or amended, the facility is sent a letter with that decision. (T pp 137-138; 483)

44. Generally, after a facility has received a SOD based on failure to provide supervision, the licensee puts in place policies and procedures to do assessments for unsupervised time. If the facility has a policy that is not working, the licensee might have to revise the current policies and procedures. The facility might have to develop better documentation. In addition, the licensee might have to put in place a more detailed assessment form to show that the treatment team has taken into account the relevant factors for assessing unsupervised time. If the assessment does not take into account new behaviors, or if a particular client has behaviors the facility has not dealt with before, the licensee may need to reevaluate the facility’s policies and procedures to ensure the health and safety of the consumers and the community. For example, if a consumer is abusing unsupervised time by not paying attention to the house rules, going out at night, not signing out, harassing neighbors, panhandling and begging cigarettes from neighbors, the facility licensee needs to show that the consumer has been reevaluated for determining why unsupervised time is still appropriate. (T p 150)

45. In cases where a licensee is not meeting the needs of clients, the Respondent expects that the licensee will engage in problem solving and documentation of steps they have taken to help the clients. (T p 512)

SURVEYS OF COLEMAN HEALTH FACILITY

March 2010 Survey

46. Johanna Edwards, RN, Facility Survey Consultant I, conducted an annual, a complaint and follow up survey of Petitioner’s facility in March 2010 which was completed on March 18, 2010. Ms. Edwards has been a registered nurse for 19 years and has always worked in psychiatric/mental health nursing, including psychiatric inpatient hospitals as well as community programs and substance abuse programs. This facility had a history of noncompliance with the licensing rules. (T pp 147, 153, 245, 235, Exhibit 3)

47. Ms. Edwards is familiar with the requirements of providing direct care to individuals with mental illness including documentation, establishing goals, administering and documenting medication administration, and supervising and training of personnel. (T p 246) Ms. Edwards received training to be a survey consultant which included becoming familiar with the regulations governing the licensing of facilities providing mental health services regulated by the Mental Health Licensure Section. (T p 247)

48. Ms. Edwards made the following findings as a result of her survey:

A.10A NCAC 27G .0202(A-E) Personnel Requirements

Ms. Edward reviewed prior survey tags which indicated that Petitioner’s facility had deficiencies with personnel requirements. Personnel requirements include criminal background checks, job descriptions, staff training requirements, supervision by a QP, and health care personnel registry checks. Petitioner did not have any personnel files for two staff employed in the facility. (T p 255) One purpose of a survey is to determine if staff is meeting the clients’ needs. (T p 258) Staff are required to have basic training including CPR, seizure management, and first aid training. (T p 259-260, R Ex 3)

When Ms. Edwards went to the facility at about 9:00 a.m. there was one staff person at the facility who stated that her responsibilities included cooking and cleaning, but not medication administration. Ms. Edwards observed the staff person cleaning and cooking, as well as interacting with the clients. Ms. Edwards was on site for most of the day. (T p 257) At the time of Ms. Edwards’s survey there were four clients in the facility. (T p 258-259)

B.10A NCAC 27G .0202(F-I) Personnel Requirements 10A NCAC 27G .0204 Training/Supervision Paraprofessionals

One client had a diagnosis of deep vein thrombosis and was on anticoagulant therapy with Coumadin which is a blood thinner. Not having CPR training was an issue because a person with this type of diagnosis could have a heart attack at any time. Another client was hypertensive and had an abnormal EKG. There was also a physician’s order to check the client’s blood pressure once a day. There was no record that that had been done, so the staff had no way of recognizing a trend in elevated blood pressure. One staff told Ms. Edwards that it had been several years since she had had CPR training. (T p 260-261) Petitioner arrived at the facility in the afternoon and brought personnel files. When Ms. Edwards asked her for additional documentation, Petitioner was unable to provide it. Petitioner told Ms. Edward that she had hired a QP who was in charge of the documents Ms. Edwards asked for. When Ms. Edwards contacted that person, she was told by the QP that nothing had been done. (T p 261)The rules required that the paraprofessional staff be supervised by qualified professionals, but that documentation must show that paraprofessionals are held to standards of competency and knowledge or skills for the population served. Petitioner was qualified as a paraprofessional, but she did not display or provide documentation to show that she was competent in that role. (T p 262) In addition, Ms. Edwards’s survey of the records of the facility indicated that there was a lapse in employing a QP. (T p 263; R Ex 3)

Ms. Edwards also determined that there was a client in the facility who was a registered sex offender who was on probation. There was no information in the records at the facility to indicate the conditions of his probation or the name of his probation officer. The registered sex offender was being allowed unsupervised time in a neighborhood with multiple children in it. The facility had no information or documentation as to the registered sex offender’s treatment. Ms. Edwards confirmed that the individual was a registered sex offender by looking at the sex offender registry. This individual had no treatment plan in place. This client was 22 years old and just prior to his admission to this facility had been hospitalized for the seventh time in a state psychiatric hospital. She found that this individual had a history of legal charges and jail time, and that he was noncompliant with medications. With no programmed activities or structure, clients wandered the neighborhood to the store or panhandled in the neighborhood. (T pp 263-266; R Ex 3)

C.10A NCAC 27G .0205(C-D) Assessment/Treatment/Habilitation Plan 10A NCAC 27G .0206 Client Records

The facility is required to maintain treatment plans. When Ms. Edwards requested client records she was referred to a two drawer filing cabinet which contained several random pieces of paper which she could not classify as a client record. The lack of significant documentation made performing the survey very difficult. She identified documents relating to five individuals who had resided at the facility. For one client she only found a medication administration. For another client she found only a discharge summary from a hospital. When Ms. Edwards asked Petitioner for more documentation, she was provided a very few more pieces of documentation. Ms. Edwards did not find treatment plans for any of the four clients currently residing in the facility. In total, the documentation did not meet minimum requirements for client documentation. The rules require that a treatment plan be put into place within 30 days of admission. One client had been there less than 30 days, but for three current clients and three former clients, Ms. Edwards was given no treatment plans. (T pp 266-267; R Ex 3)

The requirements for documentation were cited in the SOD and are found in 10A NCAC 27G . 0205 and .0206. The lack of documentation had been cited four times in the prior year. (T p 268, R Ex 3, pp 9-19) The main documents that Ms. Edwards was looking for included treatment plans, physician’s orders, assessments, emergency contact information including consents for treatment, medication administration, as well as documentation of progress or lack of progress in treatment goals. (T p 269; R Ex 3)

D.10A NCAC 27G .0207 Emergency Plans and Supplies

The facility also failed to meet requirements for emergency plans and supplies. Included in the required documentation, a facility must maintain documentation of fire and disaster drills. Ms. Edwards asked Petitioner for this documentation some of which was provided. However, the documentation showed that one client participated in a fire drill on a date prior to his admission to the facility. In addition, some of the records did not indicate the names of any clients who participated in the fire drill. (T p 271-272, R Ex 3 pp 20-21) E.10A NCAC 27G .0209 Medication Requirements

Ms. Edwards found that the medication requirements were not met. For example, for four of four current clients and five of five former clients, the facility did not have written orders of a physician for administering medications. In addition, the medication administration records (“MARs”) were not kept current. The medication administration record includes the directions for dosage and time of administration of the medication, as well as documentation that staff actually administered the medication according to the directions. In addition, the documentation failed to show that medications were administered by individuals who had been qualified by training to administer medication. While the staff told Ms. Edwards that one client had an order to be administered Coumadin 7.5 milligrams every day, staff at the facility advised her that his physician had increased the dosage, but there was not documentation to indicate that the order was implemented. Most of the MARs failed to include dosage or proper instructions for administration, but when the documentation included a requirement for administration such as twice a day, the documentation showed that medication was being given once a day. She found that blood pressure medications were not administered as ordered. She counted the number of times that the medication was administered and compared it with the number of pills left and the date the prescription had been filled, and found that there was leftover medication. Based on the number of times indicated that the medication should have been administered for one patient, he should have been out of that medication, but she found that there were several days of medications left. One staff that was on duty while Ms. Edwards was at the facility did not have the training to administer medications. A second staff that did have the training was unable to make it to the facility due to car trouble, so Petitioner came, but during the time the first staff member was there by herself there was no one to administer medications to any clients who might need it on an as needed basis. One client was out of the facility the first day Ms. Edwards was there, but Petitioner filled in the MAR for him indicating that she had administered his medication to him that day. When one client was ran out of medication, Petitioner did not provide transportation to that client to visit his doctor to obtain a prescription for further refills which led to an additional hospitalization of that client. (T pp 272- 276; R Ex 3, pp 22-44)

One of the things a surveyor looks for is scope and severity, that is, how many clients are affected and the seriousness in terms of possible or actual consequences of the failure to comply with the rules. In this case nearly all of the four out of four current clients and five out of five clients were affected by the failure to comply with the medications regulations which elevated the deficiency to a Type A violation. (T pp 277-279)

F.N.C. Gen. Stat. § 131E-256 Health Care Personnel Registry N.C. Gen. Stat. § 122C-80 Criminal History Record Check

Ms. Edwards found that Petitioner had failed to check the Health Care Personnel Registry as required by N.C. Gen. Stat. § 131E-256 for two current staff, and that the Petitioner had no personnel records for the QP at all. (T p 276, 282; R Ex 3, pp 44-45) Ms. Edwards also determined that Petitioner had failed to conduct criminal background checks on two current paraprofessionals and the QP as required by N.C. Gen. Stat. § 122C-80. (T p 284; R Ex 3, pp 44- 50) G.10 NCAC 27G .0404 (A-E) Operations During Licensed Period

Petitioner was licensed for 4 clients. The facility was found to exceed its licensed capacity by having 5 clients residing there at one time in November 2009 and 7 clients at one time in January 2010. (R Ex 3, p 51)

H.10 NCAC 27G .5602 Supervised Living - Staff

Ms. Edwards found that Petitioner had failed to comply with supervision requirements, including assessment for unsupervised time in the community for 3 of 4 current clients and for 4 of 5 former clients. Ms. Edwards noted that Petitioner had been cited for failing to comply with assessment for unsupervised time 5 times since March 2008. Records indicated that one client had a restraining order preventing him from going to one of the mental health centers, but was allowed outside the facility unsupervised. (T p 285- 288; R Ex 3, pp 50-60)

I.10 NCAC 27G .5603 Supervised Living - Operations

Because the facility failed to maintain a QP at all times, and because the facility failed to provide coordination of services with medical professionals, Ms. Edwards also found that Petitioner failed to comply with supervision and coordination of services required by 10A NCAC 27G .5603 including scheduling follow up appointments with medical personnel as well as failure to provide transportation to appointments scheduled.. (T pp 288-290; R Ex 3, pp 60-67) The Petitioner also confirmed that 2 of 4 staff had not had any of the required training for restrictive interventions as required by 10A NCAC 27E .0107. (R Ex 3, pp 70-73)

J.10A NCAC 27D .0304 Client Rights - Harm, Abuse, Neglect

Finally, due to the systemic failures at the Petitioner’s facility in providing training to staff and supervision and treatment to clients, and the potential and actual harm resulting in the failure to provide services as required under mental health licensing rules, Ms. Edward found that the clients’ rights to protection from harm, abuse, neglect and exploitation had been violated. (T pp 290-291; R Ex 3, pp 67-70)

49. Ms. Edwards requested additional information from Petitioner on March 17th, and then discussed her findings with her Team Leader, Bryson Brown. Petitioner spoke to Mr. Brown by telephone and advised that she had no further information to share. Ms. Edwards and Mr. Brown conducted an exit interview with Petitioner, gave her Ms. Edwards’ findings, and told her that they had concluded that they were going to cite her for Type A and Type B violations. At that time, Petitioner was asked to submit a plan of protection and a plan of correction. (T p 280, 292)

50. The plan of protection and the plan of correction submitted by Petitioner failed to address the issues that Ms. Edwards found in the course of her survey. (T p 292; R Ex 39)

51. After Ms. Edwards had prepared the SOD, her findings were reviewed with the QA committee. (T p 280-281) In addition, Ms. Edwards and Mr. Brown requested that the QA committee consider the evidence in regards to a suspension of admissions, intent for revocation, a Type A violation in medications, and two Type B violations. (T p 485)

52. On April 22, 2010, Respondent issued a Type A Administrative penalty of $1,000.00 against Petitioner for violation of 10A NCAC 27G .0209 Medication Requirements. The letter provides for notice of appeal rights which required filing an appeal within 30 days of the date of the letter as well as the offer to resolve the issues informally. (T p 147; R Ex 1) The letter also states that if the Petitioner wished to schedule an informal conference, she should call Michiele Elliott at the telephone number indicated in the letter. (T p 491) Petitioner did not appeal the $1,000.00 Type A penalty.

53. Also on April 22, 2010, by cover letter from Johanna Edwards, RN, Respondent sent Petitioner a 73 page SOD which detailed the violations of licensing requirements for supervised living facilities for adults with mental illness. The letter states, among other things, the specific rule violations, the type of deficiencies found, the time frame for compliance for each type of deficiency, and notice that failure to comply will result in the assessment of an additional administrative penalty of $500.00 for each day the deficiency remains out of compliance. The surveyor’s letter specified a finding of a Type A violation, a Type B violations, re-cited Standard level deficiencies and additional Standard level deficiencies. (T p 147; R Ex 2 and 3) Petitioner did not submit any additional information to Respondent in response to the SOD. (T p 293)

54. On May 14, 2010, Respondent issued a Notice of Intent to Revoke License to the Petitioner based on substantial failure to comply with the provision of N.C. Gen. Stat. § 122C, Article 2, the licensing rules for Mental Health, Developmental Disabilities, and Substance Abuse Services, and N.C. Gen. Stat. § 122C, Article 3, Clients’ Rights for individuals with mental illness, developmental disabilities, or substance abuse issues, and that those violations endanger the health, safety, and welfare of the clients in the facility. The facility had a history of non- compliance, and the issues were rising in severity. The Petitioner was advised as to the steps she was required to take to bring the facility into compliance, including providing a statement with supporting documents to show that the facility was in compliance. (T pp 153-154; R Ex 5)

55.Also on May 14, 2010, Respondent was issued a Suspension of Admissions letter to Petitioner based on the documentation violations from the March 18, 2010 survey which indicated that conditions in the facility were found to be detrimental to the health and safety of the clients. Petitioner was also given appeal rights which required that she file an appeal within 20 days of the date of the letter, as well as an offer to resolve the issues informally with Respondent. (T p 154; R Ex 6) Petitioner did not appeal the Suspension of Admissions. (T p 494)

April 2010 Survey

56. Delores Armstrong, Facility Survey Consultant I, conducted a complaint survey of Petitioner’s facility in April 2010 which was completed on April 16, 2010. (T pp 155; R Ex 7) Ms. Armstrong has a B.S. in psychology. She has worked for the Division of Health Service Regulation for 11 years. Prior to that time she worked for Murdoch Center as a qualified professional (“QP”) for 13 years and for Johnston County Group Homes for 8 years. In her capacity as a survey consultant she is familiar with the rules governing the operations of mental health group homes. Ms. Armstrong conducts surveys using the same methods as Ms. Edwards. (T p 321-323)

57. Normally surveyors would not go back to a facility so soon after a prior survey had just been completed, but Respondent had received complaints which required that they investigate further. (T p 156, 495)

58. When Ms. Armstrong conducted the complaint survey for Petitioner’s facility, she interviewed staff and clients and reviewed documentation at the facility including treatment plans and staff records. She completed the complaint survey at Petitioner’s facility on April 16, 2010. (T p 324-325; R Ex 8)

59. Ms. Armstrong made the following findings, among others:

A.10 NCAC 27G .5602 Supervised Living - Staff

Administrative rules require minimum supervision of at least one staff at all times unless clients are properly assessed to remain in the home or the community for specified periods of time. Petitioner’s facility failed to have proper assessments for unsupervised time but the clients in the facility were left for significant periods of time unsupervised.

A client, who, among other things, was a registered sex offender with a history of legal charges and repeated hospitalizations, had violent outbursts and had threatened staff. When one staff took the client into the community they would pass little girls in little skirts and she told the client to turn his head. However, based on a review of the records at the facility, this individual was allowed to have unsupervised time in the community. Other staff expressed concern about the client having unsupervised time in the community. A neighbor reported that he saw the client out at all hours, and was aware that clients were often left completely unsupervised at night. The neighbor reported that he had a wife and young daughter he was concerned about protecting. A second neighbor reported that he saw the client at all hours outside of the facility wandering the neighborhood, and he would not allow his young children to play outside of their yard. The second neighbor also reported his observations of no staff being present at night. (T pp 328-331; R Ex 8, pp 2-5)

A second client had been diagnosed with severe chronic mental illness, history of alcohol abuse, hypertension, positive Hepatitis C, and had a restraining order. No records were found for an assessment of his ability to use unsupervised time safely in the facility or community. Ms. Armstrong interviewed this client’s case manager who had completed a treatment plan, but reported that when the case manager was at the facility to review the client’s treatment plan; both the staff and the facility operator were not present. Because this client had a doctor’s appointment, the case manager took the client to the doctor because there was no staff present to take him. The case manager reported that when he left the client at the facility after the appointment, there was no staff present. The case manager reported that this client had not been assessed for unsupervised time. (T p 329, 333; R Ex 8, pp 5-6)

Another client was diagnosed with severe mental illness and heard God talking to him, including thinking God was Satan and he was coming to kill them. This client reported having gotten money from neighbors. This client reported that he asked for money when he went to the store. Ms. Armstrong interviewed staff who reported that when this client was talking about God being Satan, when the client goes outside to have a cigarette, the staff had no way of preventing him from leaving the facility. (T pp 329, 333; R Ex 8, pp 6-8)

Ms. Armstrong also found medication administration records for another client, but found no other records. Petitioner reported that former staff had thrown other records away. Petitioner claimed that this client was allowed unsupervised time, but had no records showing that he had been assessed for safety. Staff reported that this client had outbursts, walked around in clothes he had “peed on”, and threatened staff with physical violence. Staff reported that this client went to neighbors houses for cigarettes. When a neighbor told him she didn’t smoke, the client “got in her face” and the neighbor was so frightened she almost gave her purse to him. Ms. Armstrong verified the report with the neighbor who was pregnant at the time of the incident. (T pp 329; R Ex 8, pp 8-9)

Ms. Armstrong made additional findings in a similar vein which showed that other clients did not have documentation indicating that they were permitted to have unsupervised time in the facility or in the community, and that staff reported that they left clients unsupervised. In addition, former staff reported that Petitioner had a tenant who was not a client or a member of the staff living at the facility for several months, and the tenant was left alone with the clients. Petitioner was aware of the tenant’s status, and had never performed a health care registry or criminal background check on him, and failed to ensure the safety of the clients. (T p 334; R Ex 8, pp 9-12)

Ms. Armstrong reviewed staff records and found that a staff did not have the required criminal check, no CPR training, no first aid training, or training on mental diagnoses of the clients in the facility. Ms. Armstrong interviewed this staff person who claimed to be a volunteer, and was only responsible for cooking for the clients. While Ms. Armstrong was in the facility, she heard the staff/volunteer yelling extremely loudly at a client. This staff/volunteer stated “he gets on my nerve,” and that she got so mad at the client that one night she locked him out of the house. Clients reported that often there was no staff in the facility. Ms. Armstrong called a 1:00 a.m. one night and a client answered and stated that there was no staff in the facility at that time. (T pp 328, 331-332; R Ex 8, pp 12-14)

B. N.C. Gen. Stat. § 122C-6 Smoking Prohibited.

Smoking in a mental health facility is prohibited at all times. Petitioner reported that clients complained because staff smoked in the facility, but clients were made to go outside to smoke. Petitioner told staff who were smoking in the facility that they could not do so.

C. 10A NCAC 27G .0304(b)(3) Maintenance of Elec., Mech, & Water Systems

A facility is required to maintain water systems in operating condition. Staff reported that the water had been turned off at the facility due to lack of payment. Ms. Armstrong reviewed the water bill records and found that the water had been cut off three times in the prior seven months. Petitioner told Ms. Armstrong that when the water was cut off she would go pay the bill so the water was not off for any length of time.

60. Based on her findings, Ms. Armstrong determined that a Type A violation had occurred with regard to the failure to supervise clients and lack of client assessments for unsupervised time. She consulted with her Team Leader to discuss the issues found at the facility including the potential for harm to the clients. Because of the Type A violation, Ms. Armstrong then contacted the Petitioner to advise her of the preliminary findings, and to instruct her to submit a plan of protection to Respondent. (T p 326-327) Petitioner promised Ms. Armstrong that she would not allow the sex offender to have any unsupervised time. (T p 364)

61. In addition, Ms. Armstrong found Standard level deficiencies including failure to pay a water bill for the facility and smoking in the facility. (T p 327-328)

62. Petitioner submitted some documents in response to Ms. Armstrong’s request for plan of protection. (T pp 336-338; R Ex 40, 41 and 42) Petitioner’s plan of protection did not address the issues identified in the SOD. In her plan of correction, Petitioner outlined generally how she would fix each of the citations and promised to comply with the regulations. (T p 339; R Ex 42)

63. On May 14, 2010, by cover letter from Delores Armstrong, Facility Survey Consultant, Respondent sent Petitioner a 19 page SOD which detailed the violations of licensing requirements for supervised living facilities for adults with mental illness. The letter states, among other things, the specific rule violations, the type of deficiencies found, the time frame for compliance for each type of deficiency, and notice that failure to comply will result in the assessment of an additional administrative penalty of $500.00 for each day the deficiency remains out of compliance. The surveyor’s letter specified a finding of a Type A violation based on 10A NCAC 27G .5602(a) Supervised Living - Staff. (T pp 156, 171, 325-326; R Ex 7-8)

64. On May 17, 2010, Respondent issued a Type A Administrative penalty of $1,000.00 against Petitioner for violation of 10A NCAC 27G .5602(a) Supervised Living - Staff. The letter provides for notice of appeal rights which required filing an appeal within 30 days of the date of the letter as well as the offer to resolve the issues informally. This violation had previously been cited as a Type B violation. (T pp 147, 171, 173, 340; R Ex 7 & 9) Petitioner did not appeal this administrative action.

July 2010 Informal Conference

65. In July 2010, Petitioner requested an informal conference regarding the Type A, the intent to revoke and the suspension of admissions. Ms. Alexander met with Petitioner on July 28, 2010. They reviewed documents provided by Petitioner as well as Petitioner’s plan of correction to bring the facility back into compliance. (T p 174; R Ex 39, 41, 42, 44) The documents submitted to Respondent by Petitioner were very general in nature and failed to specifically establish who, what, when, where, why and how the plans were intended to be carried out. The plan indicated that Petitioner was going to work on putting into place a review of appropriate care and supervision by a doctor, and that the QP was working on needed updates to the facilities files, but failed to indicate that necessary changes had actually taken place. What Ms. Alexander looks for are revised policies and procedures that show changes to how the facility will make assessments as well as assessment documents of actual consumers in the facility. In this case, Petitioner was only making promises to fix the problems without having demonstrated that she had actually done the work to do so. (T pp 174-177; 497)

66. During the informal conference, Petitioner advised Respondent that she had hired a new QP, Walter Belk, but she did not have a lot of other information to provide. (T p 496) Petitioner also promised to provide additional documents for treatment plans for the clients as well as medication training, but she did not provide any additional documents. (T p 496)

67. After reviewing Petitioner’s documents, on August 12, 2010, Respondent sent Petitioner a letter advising her that the Intent to Revoke, the Suspension of Admissions and the Type A violation for 10A NCAC 27G .5602(a) Supervised Living Staff with $1,000.00 penalty were upheld. (T p 177-179; R Ex 14)

68. On August 12, 2010, Respondent issued a Notice of Revocation of License by letter to Petitioner. Once again, the letter listed the rule citations with which Petitioner had failed to comply. (T p 180-181; R Ex 15) After having concluded the review of Petitioner’s plans and actions, the revocation of license was the next step. Based on the letter, Petitioner was given 60 days from the date of the letter to file an appeal according to N.C. Gen. Stat. § 150B-3 and § 150B- 23. (T p 182, R Ex 15).

August 2010 Survey

69. Kimberly Sauls, Facility Survey Consultant I, conducted a follow up and complaint survey of Petitioner’s facility in August 2010 which was completed on August 16, 2010. (T pp 182, 380- 381; R Ex 22) Ms. Sauls has a bachelor of arts degree from ECU in psychology. She has worked as a Facility Survey Consultant for 6 years. Prior to that time she worked at Murdoch Center for 4 years, and prior to that time she worked as a group home manager for 2 years. Her job responsibilities include doing annual, complaint and follow-ups surveys. (T pp 379-380)

70. Ms. Sauls conducted a complaint investigation based on allegations related to client supervision as well as failure to maintain client records and staff personnel records. In addition, she was investigating allegations of failure to protect against harm, abuse, neglect and exploitation and that the facility was not being maintained. (T p 380)

71. Ms. Sauls made the following findings, among other things:

A.10A NCAC 27G .0202(A-E) Personnel Requirements

A facility is required to maintain staff records showing, among other things, minimum level of education, competency, work experience, and job responsibilities signed by staff as well as Health Care Personnel Registry checks, criminal background checks, training and other professional certification. (R Ex 22, pp 1-2)

Review of personnel records showed that the facility failed to have complete personnel records for 3 of 6 staff, including lack of records for a Qualified Professional (“QP”). In particular, for two staff persons, the facility had no records showing specific hire dates, and no documentation that the staff met minimum educational requirements or written job descriptions. She found no personnel records for the QP, including no specific hire date, no documentation of education, no written job description and no evidence of the QP’s experience or other qualifications for the position. (T pp 382-383; R Ex 22, pp 2-3)

Ms. Sauls interviewed Petitioner who claimed that one of the staff was never actually hired to work there, but was another staff member’s nephew. She claimed that she had decided not to hire him because she found out that he was a registered sex offender. For the other staff person with no personnel information, Petitioner claimed that she was waiting to have his personnel information faxed to her. She further stated that the QP did not have a personnel file, and that she was in the process of making one up. (T pp 382-383; R Ex 22, pp 3-4)

B.10A NCAC 27G .0202(f)-(I) Personnel Requirements

A facility is required to maintain staff records showing, among other things, that staff have received training specific to the services provided at the facility such as client rights and confidentiality, training to meet the needs of the clients in the treatment plan, training in infectious diseases and blood borne pathogens, and minimum staffing levels, i.e., one staff available in the facility at all times trained to provide first aid, seizure management, and CPR. (R Ex 22, pp 4-5)

Review of personnel records showed that the facility failed to have CPR and first aid training for 3 of 6 staff. The QP was cited as one of the staff members for whom Petitioner had no such documentation. Petitioner confirmed that she did not have such documentation for 3 staff, including the QP. (T pp 383-384; R Ex 22, pp 5-7)

C.N.C. Gen. Stat. § 122C-80 Criminal History Check.

A facility is required to complete a criminal record check on all staff. Ms. Sauls confirmed that Petitioner failed to complete a criminal record check for one staff, although she claimed that she had never hired that staff because she found out he was a registered sex offender. The registered sex offender had worked at the facility for a week, and at times he was the only staff person at the facility. (T p 384; R Ex 22, pp 7-12)

D.10A NCAC 27G .5602 Supervised Living - Staff

A facility is required to maintain at least one staff person at the facility at all times unless the clients’ treatment plans reflect that the clients are capable of remaining in the home or community without supervision. (T pp 385-387, 389; R Ex 22, pp 12-13)

Based on observation, interviews and review of the facility records, the facility failed to assess the clients’ ability to have unsupervised time in the home and community for 3 of 4 clients, and failed to reassess 1 client’s ability to continue to have unsupervised time. (R Ex 22, pp 13-14)

Records for one client revealed that he had serious mental health issues, obesity, and hypertension among other things, as well as a history of consuming alcohol on a daily basis to cope with life stressors. On August 10, 2010, Ms. Sauls reviewed a person centered plan (“PCP”) for this client but it revealed no date. The PCP indicated that the client should be supervised at all times, and that any deviation from the plan must first be approved by a case worker or social worker, unless for the purpose of spending personal time in the facility, home visits with parents, therapy appointments or other activities supervised by social workers or authorized mental health center staff. This client had not been assessed for any other unsupervised time. (R Ex 22, pp 14-15)

Records for second client showed a PCP with no specific date which revealed that the client had a history of smoking marijuana multiple times a week, and that the client has active court involvement for a criminal assault charge. Documentation revealed that the client was to be closely supervised at all times, and that any deviation from supervision required the approval of a case worker or social worker, unless for the purpose of spending personal time in the facility, home visits with parents, therapy appointments or other activities supervised by social workers or authorized mental health center staff. The second client had not been assessed for any other unsupervised time. (R Ex 22, pp 15-16)

Records for a third client showed a PCP with no specific date which revealed serious mental health issues, among other things. The PCP also indicated that this client had a history of consuming alcohol on a daily basis to cope with life stressors. Documentation revealed that the client was to be closely supervised at all times, and that any deviation from supervision required the approval of a case worker or social worker, unless for the purpose of spending personal time in the facility, home visits with parents, therapy appointments or other activities supervised by social workers or authorized mental health center staff. The second client had not been assessed for any other unsupervised time. (R Ex 22, pp 16-17)

On August 5, 2010, Ms. Sauls observed all three clients at the facility alone unsupervised by staff. On August 6, 2010, Ms. Sauls observed all three clients at the facility alone unsupervised by staff. On August 12, 2010, Ms. Sauls reviewed a sign out sheet for the first client indicating that he had signed out into the community from 8/10/2010 to 8/12/2010. (R Ex 22, pp 17-18)

Interviews with each of the three clients revealed that they were allowed by the facility to have unsupervised time in the community and in the facility, and that staff left them at the facility for several hours at a time. On client reported that he walked to the convenience store unsupervised two or three times a day, that he had asked customers at the store, and neighbors, for money and cigarettes, and that he walked in the neighborhood several times a day unsupervised. The other clients reported similar unsupervised walks in the neighborhood. The convenience store manager had to ask one client to stop panhandling and harassing his customers. A neighbor reported that one of the clients approached a group of children playing basketball in the neighborhood and asked them to play. Another neighbor reported that she did not see staff at night or on weekends at the facility, and she had spoken to the Petitioner who refused to make an effort to resolve the issues of clients coming to the neighbors’ homes begging for cigarettes and money. Interviews with staff revealed that the clients are allowed to have up to 4 hours of unsupervised time a day, but that she was aware they had not been assessed for unsupervised time. Petitioner was interviewed by Ms. Sauls on August 6, 2010 and admitted to the circumstances, including the failure to assess these clients for unsupervised time in the community. (R Ex 22, pp 18-22) Ms. Sauls also reviewed the record of a fourth client who was diagnosed with psychosis disorder, impulse control disorder and hypothyroidism. On August 5, 2010 she reviewed his PCP which revealed he had a history of calling sex lines, viewing pornography on the computer, hiring a prostitute to perform services in the group home where he was living at the time, stealing credit cards, fraudulently obtaining money from others’ accounts, running away from group homes, has not developed independent living skills to live independently in the community, and not following the rules in other group homes. This client had requested four hours of unsupervised time between the hours of 8:00 a.m. and 9:00 p.m. An incident report from 7/29/2010 revealed that this client refused to follow the rules and left the group home at night returning the following morning at 5:00 a.m. A second incident report dated 7/30/2010 showed that the client had left the facility at night again, returning at 1:15 a.m. Ms. Sauls interview with the client revealed that he had only recently been limited to 4 hours unsupervised time, and prior to that he stayed out in the community as long as he wanted, but that he goes out most nights. Interviews with staff and neighbors revealed that this client walks in the community frequently, and that he sometimes stays out longer than 4 hours. Petitioner confirmed that this client was out of the facility for more than 4 hours, and that he had not been reassessed for his failure to comply with his plan and the rules. (R Ex 22, pp 22-25)

On August 10, 2010, Petitioner prepared a plan of protection in which she stated that she would not allow any of the clients to have unsupervised time until they had been properly assessed for unsupervised time. (R Ex 22, p 25)

Ms. Sauls noted that Petitioner’s facility had been cited 6 times for failure to supervise since March 31, 2008. (R Ex 22, p 25)

E.10A NCAC 27E .0107 Client Rights – Training on Alt. To Rest. Int.

A facility is required to implement policies and practices that emphasize alternatives to restrictive interventions, including training staff in communication skills and other strategies for creating an environment in which the likelihood of imminent danger of abuse or injury to clients or others is prevented. The rule provides for a long list of competencies that must be shown by staff and the content of the training required. ( R Ex 22, pp 26-29)

Ms. Sauls reviewed personnel records on 8/10/2010 and found that 3 of 6 staff had no documentation of training in alternatives to restrictive interventions. Interview with Petitioner revealed that the staff, including the QP, did not have the required training. (T pp 395-396; R Ex 22, pp 29-31)

F.Failure to Comply with the Notice of Suspension of Admissions

Pursuant to N.C. Gen. Stat. § 122C-23(g), Respondent issued a Suspension of Admissions letter to Petitioner on 5/14/2010 based on findings that the conditions at the facility were detrimental to the health an safe of the clients. Petitioner was prohibited from admitting any new clients after the date of that letter.

Based on Ms. Saul’s 8/5/2010 review of Petitioner’s records, one client was admitted to the facility on 6/30/2010, another was admitted to the facility on 7/13/2010, and a third client was admitted to the facility on 7/19/2010 in violation of the Suspension of Admissions action. (T pp 396-397; R Ex 22, pp 31-32)

Because of the continuing uncorrected Type A, in an exit interview, Ms. Sauls required Petitioner to provide a plan of protection. On 8/10/2010, Petitioner promised that the clients would have no unsupervised time until they were assessed for it. On 8/16/2010 Petitioner provided an addendum stating that she would ensure that all personnel training and documentation would be on file before an employee is allowed to work alone in the facility. (T p 392, 397; R Ex 43, 44, 45)

72. Ms. Sauls reviewed her findings with her Team Leader, Bryson Brown, and her SOD was also reviewed and approved by the QA committee. (T pp 397-399)

73. Based on the August survey, Respondent determined that Petitioner’s facility continued to remain out of compliance as the Type A violation. (R Ex 21 & 22) On September 3, 2010, by letter from Respondent to Petitioner, Respondent notified Petitioner that she was being assessed $500.00 per day for remaining out of compliance beyond the 23rd day after the April 18, 2010 survey (i.e., from May 9, 2010) through the date of the Notice of Revocation of License (August 12, 2010) for a total of 95 days for a total penalty amount of $47,500.00. The continuing deficiency was based on a failure to supervise consumers. Respondent was advised that she had 30 days from the date of the letter to file an appeal. (T pp 182-183, 198-199; R Ex 21 and 22)

74. Petitioner provided a plan of correction dated 9/12/2010 to Respondent along with a letter acknowledging the $47,500.00 penalty amount and requested a payment plan and she requested that her license not be revoked. (T p 504-505; R Ex 46) However, Petitioner’s plan did was not responsive to the August survey. It was Petitioner’s responsibility to arrange an informal meeting with Respondent, but she did not do so. (T p 505)

October 2010 Survey

75. Maryland Martin Chenier, Facility Survey Consultant I, conducted a limited follow up and complaint survey of Petitioner’s facility in late September and early October 2010 which was completed on October 4, 2010. (T pp 419; R Ex 27) Ms.Chenier has worked as a facility survey consultant for more than 5 years. She has a master’s degree in social work and a master’s degree in public health. She has worked in the area of mental health and developmental disabilities, at UNC, as well as in the public and private sector, including providing direct services and managing staff who provide those services. She has worked in the field for over 35 years. Her job responsibilities include doing annual, complaint and follow-ups surveys. (T pp 418-419)

76. Ms. Chenier initiated the survey of Coleman Health Facility on September 29, 2010 in response to complaints about failure to provide food, funds and medication. She was also doing a limited follow up based on the uncorrected Type A from the previous survey having to do with failure to supervise clients. (T p 420) She substantiated the complaint that the facility failed to provide medication as the rule requires, and that the facility failed to provide client funds as the rule requires. She also substantiated that the facility remained out of compliance in that the individuals in the facility continued to remain unsupervised. (T pp 421-422)

77. Ms. Chenier found the following, among other things:

A.10A NCAC 27G .0209(c) Medication Requirements

This rule has several components, but Ms. Chenier was looking specifically at the provision requiring that individuals receive their medication as ordered by the physician. In addition, she was looking to determine whether the medications were available so that they could be administered as ordered, whether the documentation required by rule was being maintained, and whether there were doctors’ orders for the medications being administered. (T p 422; R Ex 27, p 1)

Based on her review of the documentation at the facility, the facility failed to assure medications were being administered as ordered by a physician and failed to maintain current MARs for 3 of 4 clients. The facility also failed to secure a physician’s authorization for one client to self- administer medications. Specifically, some medications were not available at the facility.

For example, a client admitted to the facility on 7/1/2010 from a hospital. The client was discharged with a limited amount of medication, and when that medication ran out, the doctor had provided the facility with prescriptions to be filled, but they were not filled. As a result, the client had an emergency hospital admission because he had not received his medication for a significant period of time. The emergency room visit was initiated by the client’s complaint of pain and dizziness and the staff’s recognition that the client was not lucid. Based on the client’s interview, doctor’s review and the staff interview, the client had not been taking a number of psychotropic medications. In the emergency room, the client required an injection of psychotropic medication to make him less psychotic. The staff purchased the client’s medications out of his own pocket after that. The client reported that the licensee told him that she did not have the money to purchase the medications. Ms. Chenier attempted to interview the Petitioner about the lack of medications and she deferred to the staff. (T pp 423-427, R Ex 27, pp 1-16)

In another instance, another client was not getting his medication according to doctor’s orders. The client was supposed to receive the medication PRN (“as needed”), but one staff administered it on a regular basis because he determined that it helped the client stay in control, so whether the client demonstrated agitation or not, or requested the medication or not, the staff administered the medication. The doctor had prescribed the medication to be administered only when the client was demonstrating agitation or anxiety. (T pp 427-428; R Ex 27, pp 1-16)

In another instance, a client who had been prescribed pain medication had not received the medication because it was not available. (T p 428; R Ex 27, pp 1-16)

In another instance, a client was administering insulin to himself, but he was not testing his blood sugar levels and there was no doctor’s order permitting him to self-administer the medication. (T pp 428-429; R Ex 27, pp 1-16)

Ms. Chenier looked at the medications themselves, whether it was dispensed by a pharmacy, the number of tablets dispensed, the medication administration records (“MARs”) including what the staff documented. She compares the prescription with the transcription of the dosage on the MAR and whether the staff has documented when they administered the medication and the dosage administered. (T pp 429-430; R Ex 27, pp 1-16)

B.10A NCAC 27G .5602 Supervised Living - Staff

This rule requires 24 hour supervision of clients unless a client has been assessed by the treatment team to determine how much unsupervised time they may safely have, if any. (T pp 430-431; R Ex 27, pp 16-17)

Ms. Chenier found that the rule was not met for 3 of 4 clients by failing to ensure that a minimum of one staff was present in the facility when the clients were present unless properly assessed for unsupervised time. She found that 3 individuals did not have updated assessments for unsupervised time and continued to be unsupervised in the facility. She found several documents indicating approval for unsupervised time signed by the clients and the licensee, or only by the doctor, but there was no indication that the treatment team had assessed the clients. The documents she found were insufficient to show that proper assessment had been carried out. Ms. Chenier interviewed staff, clients, and family members and determined that clients were being left unsupervised for long periods of time. She interviewed staff who stated that the clients were never left unsupervised. However, she personally observed the facility on 10/2/2010 at 5:45 p.m. and observed that no staff was at the facility when she attempted to enter the facility. Later on 10/2/2010 at 8:45 p.m. she observed no staff at the facility. On 10/3/2010, Ms. Chenier came to the door of the facility at 8:30 p.m. and observed that no staff was on the premises. On 10/4/2010, Ms. Chenier observed the facility from 7:10 a.m. to 8:05 a.m. when one staff arrived. Ms. Chenier remained at the facility until 9:30 a.m. and did not observe any staff leaving the facility. Clients reported long periods of time with no staff including over weekends. (T p 431-433, 438-440; R Ex 27, p 17-23)

C.10A NCAC 27G .5603 Supervised Living - Operations

This rule provides that the facility must provide coordination of services for clients, including getting clients to doctor’s appointments or therapy. (T p 433; R Ex 27, pp 23-24)

Ms. Chenier found that the Petitioner failed to comply with this rule because a client who was diabetic indicated that he had not been seen by a doctor, and his blood sugar levels had not been reviewed by a doctor. He had had several emergency room visits including one related to the lack of management of his diabetes. On 8/9/2010 the client was taken to the emergency room with abdominal pain, difficulty holding his urine, and intermittent diarrhea with occasional blood in his stool. The discharge instructions stated that the client was to be seen within 7 days by a gastroenterologist, along with a name, address and telephone number for the doctor and within 2 weeks by a general physician with a name, address and telephone number for the doctor. On 9/15/2010 the client was taken to the emergency room with severe abdominal pain, bloody urine and was disoriented. The client had been out of his psychiatric medications and was discharged with instructions to see his primary physician within 2-3 days. There was no indication that the client had done so. (T pp 433-434; R Ex 27, pp 25-26) In another instance, another client had lost 40 pounds in a very short period of time and his physician had asked that he be seen by a doctor, but staff stated the client had refused, yet they did not communicate with his original doctor to indicate that the client was resistant. (T pp 434; R Ex 27, pp 26-27)

D.10 NCAC 27D .0304 Client Rights – Harm, Abuse, Neglect

This rule was cited because of the severity of the findings and the continued noncompliance with other related issues, and Ms. Chenier found that the conditions at the facility rose to the level of neglect and exploitation. She cross referenced the prior tags. (T p 435; R Ex 27, pp 27-28)

E.10A NCAC 27F .0105(a-c) Client Rights - Client’s Personal Funds

This rule requires that, if the clients have funds that are managed by the facility, the facility must have specific records accounting for managing those funds. Based on client interviews, and the records provided by Petitioner, Ms. Chenier determined that clients were not receiving the funds they were supposed to receive, and Petitioner did not maintain appropriate documentation of how funds were dispersed to the clients. (T pp 435-436; R Ex 27, pp 30-33)

Ms. Chenier requested a copy of the policy for how the facility managed clients’ funds. She was never provided with it. Ms. Chenier also requested documentation of distribution of clients’ funds. Petitioner provided sheets of paper indicating that each client had $66.00 in their accounts at the beginning of each month, and that at the end of the month there was 0, and only Petitioner’s initials were on the documents. Clients reported that they only got a portion of the $66.00. One client has his parents manage his money which he uses to buy food because the facility does not have enough food. A guardian for one client has never received an accounting of the client’s funds. (T p 437; R Ex 27, pp 30-33)

Ms. Chenier asked to speak to Petitioner during the course of the survey, but Petitioner told her that the staff would be able to answer all of her questions. (T p 437)

Ms. Chenier reported her findings to her Team Leader, Bryson Brown and Branch Manager, Michiele Elliot. As a result of that conversation, and in order to verify continued lack of supervision, Ms. Chenier went back out to the facility several times over the weekend to find out if there was staffing in place. Having a surveyor go to a facility over the weekend was a very unusual circumstance, but they felt that Petitioner could not assure the safety of the clients. Based on Ms. Chenier’s findings of no staff supervision during her weekend visits to the facility, as well as the other conditions such as lack of medications and significant health issues of the clients at the facility, the decision was made that the persons who were living there were at imminent risk for harm and danger because they were being left unsupervised. (T pp 229-230, 441, 510) Ms. Chenier also determined that the original Type A was continuing to be uncorrected in the area of supervision. (T p 442)

78. On October 4, 2010, by letter from Respondent to Petitioner, Respondent notified Petitioner that Respondent was summarily suspending her license to operate the facility. When a summary suspension is being considered, Respondent has an emergency meeting with the surveyor, team leader, branch manager and, in consultation with the Attorney General’s Office, determine that the conditions at the facility present an imminent danger to the health, safety and welfare of the clients which required emergency action to protect the clients pursuant to 10A NCAC 27D .0304 Client Rights - Protection from Harm, Abuse, Neglect or Exploitation. Respondent was notified that all consumers must be removed from the facility as of that date. (R p 184-187, R Ex 24) Because the action was an emergency action, the SOD was not completed prior to the decision to summarily suspend Petitioner’s license. There is no rule that requires the SOD to be delivered to a licensee with the Summary Suspension notice letter. (T p 186-187, 227-228; R Ex 27) The letter was hand delivered by Maryland Chernier and Kimberly Sauls. When Ms. Chenier and Ms. Sauls arrived at the facility, Petitioner was not present. They asked staff to contact Petitioner who eventually arrived. Initially, Petitioner refused to accept the summary suspension letter, but eventually accepted it without signing for it. (T pp 210, 442-443, R Ex 24)

79. Nothing in the administrative code requires that a summary suspension of license cannot be imposed during the pendency of a Notice of Revocation. The time requirements for a summary suspension are separate and apart from the time requirements for a revocation. (T p 211)

80. On October 11, 2010, by letter from Respondent to Petitioner, Respondent notified Petitioner that she was being assessed $500.00 per day for remaining out of compliance beyond the 23rd day after the April 18, 2010 survey (i.e., from May 9, 2010) through the date of the follow up survey completed on October 4, 2010 for a total 149 days for a total penalty amount of $74,500.00, or the date of the Summary Suspension pursuant to N.C. Gen. Stat. § 122C-24.1. The statue mandates the assessment of the penalty. (T p 185, 510; R Ex 26) Petitioner was advised of her appeal rights.

81. On October 27, 2010, by letter from Respondent to Petitioner, Respondent notified Petitioner that she was being assessed a $2,000.00 Type A penalty for violation of 10 NCAC 27D . 0304 Client Rights - Protection from Harm, Abuse, Neglect or Exploitation based on the survey completed on October 4, 2010. Petitioner was advised of her appeal rights. (T p 511; R Ex 30)

82. The Summary Suspension on October 4, 2010 occurred during Petitioner’s 60 day appeal period during which Petitioner continued to have a valid license. (T p 186-187) Because Respondent does not have placement authority to move the clients, Respondent does not have the authority to physically move the consumers. However, Respondent notifies by telephone the local management entity, Social Services, and any other authority that might placement authority over the clients. Those authorities may come to assist with client placement depending on their own protocols. (T p 188-189)

83. On October 29, 2010, Petitioner sent an email to Respondent stating that she promised to do better in the future, but provided no information about systems or sort of interventions she would employ to assure that the clients received the care and services that they needed. (T p 506- 507; R Ex 48)

84. On November 4, 2010, by letter from Respondent to Petitioner, Respondent sent Petitioner a notice that the Revocation of License was in effect as of October 12, 2010. This letter was sent because there was no indication at that point that Petitioner had appealed the Notice of Revocation. (T p 189-190, 207; R Ex 35)

85. Throughout the process of reviewing surveys and Petitioner’s response to those surveys, Respondent reviewed Petitioner’s documents submitted over the course of the period from March through October 2010. (T p 190; R Ex 43, 44, 45, 46 and 47) Based on the information submitted by Petitioner, she did not submit anything that would cause Respondent to change any agency action taken through that time. Petitioner’s submissions were not clear or specific, nor did they contain any supporting policies, procedures, treatment plans or anything that would assist Respondent in determining that Petitioner had actually made any significant changes to correct the violations. (T p 191)

86. This facility was serving individuals with violent and disruptive behaviors, including a sex offender and individuals who were abusing alcohol and marijuana. One consumer was panhandling and bothering neighbors. There were young children in the neighborhood, and the neighbors were extremely upset by the behaviors of the consumers. In one instance, a consumer was harassing a pregnant neighbor for cigarettes. (T p 143)

87. Petitioner did not have a QP supervising the paraprofessionals. (T p 242)

88. Based on previous citations, the licensee was responsible for reassessing clients who were exhibiting disruptive behaviors and developing strategies for dealing with those behaviors. The licensee is responsible for coordinating services for the consumers. The licensee is responsible for making sure that consumers with unsupervised time do not present potential threat to themselves or others, and the Petitioner failed to do so. The Petitioner had forms showing that certain consumers had four hours of unsupervised time, but the forms failed to address the probation requirements for one consumer and, panhandling and harassing behaviors of others. (T p 144)

89. The surveys showed repeated failure to supervise consumers and to coordinate the medication requirements for the consumers in the facility. The March 2010 survey determined that there was a lack of supervision for medication for a consumer who was receiving incorrect amounts of Coumadin. (T p 143) The client was supposed to be receiving 2 Coumadin a day, but he was receiving just one a day. Coumadin is a blood thinner given to people who have blood clots and must be carefully regulated by a physician. (T p 151) A follow up survey in April 2010 showed that the citations were still uncorrected and the violation was elevated to a Type A. (T p 145) Another follow up survey in August 2010 showed that Petitioner had once again failed to correct the Type A. (T p 145)

90. The October 2010 survey found that a diabetic consumer alone all weekend without any supervision whatsoever. As a result he was not getting his glucose blood checks and his blood sugar was out of control. The consumer had been admitted to the emergency department twice. In order to make sure that Mental Health Licensure Section was moving appropriately with a Summary Suspension, the surveyor went out to the facility over the weekend and again found that there was no supervision of the consumers at all. (T pp 139-141)

91. Based on the repeated re-cites of unsupervised time and lack of coordination with medication, the Mental Health Licensure Section determined that Petitioner could not provide effective, safe treatment to the consumers. (T pp 144-145) Petitioner admitted that she had been cited for violating supervision requirements six or seven times. (T p 235) Petitioner also admitted that she was required to have 24 hour supervision of the clients. (T p 236)

92. By statute, a failure to correct a Type A results in a $500.00 per day penalty. When providers are assessed such a large penalty, they usually request an informal conference with Ms. Alexander, the branch manager and the team leader, and, by agreement, they are usually able to significantly reduce the amount of the penalty. (T p 145) Usually, providers are able to show that they have corrected the violations, and the penalty amount is reduced to 10 percent or less of the original penalty amount. In this case, the period of time for the penalty to accrue ended at the date of revocation, and the final amount for the uncorrected Type A was $74,000. (T p 145) Once a penalty amount is finalized, the controller’s office handles the collection of outstanding penalties. (T p 146)

93. Pursuant to N.C. Gen. Stat. § 122C-24.1,

Where a facility has failed to correct a Type A Violation, the Department shall assess the facility a civil penalty in the amount of up to one thousand dollars . . . for each day that the deficiency continues beyond the time specified in the plan of correction approved by the Department or its authorized representative.

94. Because the statute further states that a civil penalty shall not be less than $500.00 for a Type A violation, Respondent assessed a $500.00 per day penalty for Petitioner’s failure to correct the Type A violation. (T pp 197-198)

95. Petitioner testified on her behalf. Petitioner’s testimony was composed of her opinion about the legal authority for Respondent’s actions. (T pp 15- )

96. Petitioner’s testimony referenced Respondent’s documents. Petitioner claimed that Respondent’s notices of revocation (R Ex 35) and summary suspension (R Ex 24) were not valid under 27G .0405. Petitioner argued that Respondent did not have the authority to put a revocation into effect during a summary suspension. (T p 19) Also, Petitioner argued that the summary suspension did not provide a notice of deficiencies or a time frame to bring the facility into compliance. (R pp 17-18, 21) Petitioner also claimed that once her license was revoked, that the Respondent could not assess monetary penalties. (T p 23) Petitioner claimed damages based on Chapter 126, 25 NCAC Part 1B, and Pat Hovis v. Lincoln County Department of Social Services (98 OSP 1348). (T p 23-24)

97. On cross examination, Petitioner testified that under Administrative Code .5600A her facility provided residential care services, i.e., personal care services. Petitioner testified that she was not authorized to provide treatment. In Petitioner’s opinion, that meant that she was providing supervised living, but not actually treatment through professional care services. (T pp 26)

98. Respondent sent a letter dated April 22, 2010 to Petitioner assessing a $1,000 Type A administrative penalty based on findings from a survey of Petitioner’s facility which was completed on March 18, 2010. The April 22, 2010 letter cited a violation of 10 NCAC 27G .0209, medication requirements. (T pp 28-29; R Ex 1)

99. Respondent sent a second letter dated April 22, 2010, a cover letter for the “statement of deficiencies” from an annual, complaint and follow-up survey completed March 18, 2010. The letter advised Petitioner that she was required to develop a plan of correction to address those deficiencies. The first deficiency was a Type A violation cited for 10A NCAC 27G .0209, Medication Requirements, Tag V-118. Type B violations were also cited for staff and operations, and for failure to protect from harm, abuse, neglect, and exploitation. Petitioner was notified that failure to correct could result in an assessment of an additional administrative penalty of $500 per day. Petitioner was given 45 days from the date of the exit survey to correct the Type B violations. Failure to correct the Type B violations could result in an assessment of an additional administrative penalty of $200 per day for each day the deficiency remained out of compliance. (T p 32-36; R Ex 2)

100. The statement of deficiencies which accompanied Respondent’s letter identified as Respondent’s Exhibit 2 was 73 pages. (T pp 36-37; R Ex 3)

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has jurisdiction over the parties and the subject matter under Chapters 122C and 150B of the North Carolina General Statutes.

2. All parties have been correctly designated and there is no question as to misjoinder or nonjoinder.

3. A facility providing mental health services in the community is subject to the provisions of N.C. Gen. Stat. § 122C.

4. Based on repeated surveys of Petitioner’s facility over a seven month period of time, Respondent correctly concluded that Petitioner failed to operate Coleman Health Facility in compliance with the provisions of the licensing statutes and the regulations promulgated by Respondent. Petitioner was given numerous and repeated notices of the specific failures to comply with the regulations. 5. Petitioner was given numerous opportunities to correct her deficient operations. Her failure to make corrections of the deficiencies in the operation of Coleman Health Facility ultimately endangered the safety and welfare of the clients in her facility and community. In addition, Petitioner failed to protect her clients from harm, abuse or neglect.

6. Petitioner did not appeal several administration actions taken by Respondent including the Suspension of Admissions and at least two Type A penalty amounts.

7. Respondent properly followed the statutes and rules in taking the following actions:

A. Notice of Revocation dated August 12, 2010 with effective date October 12, 2010. B. Summary Suspension of License dated October 4, 2010 with effective date October 4, 2010. C. Assessment of a $500.00 per day penalty for each day the facility remained out of compliance for supervision requirements for 149 days for a total of $74,500.00.

DECISION

Based upon the foregoing findings of fact and conclusions of law, the undersigned finds that Respondent’s decisions to revoke Petitioner license, to summarily suspend Petitioner license, and to assess a penalty for continuing noncompliance with the statutes and rules governing the licensing of mental health facilities is supported by a preponderance of the evidence and is AFFIRMED.

NOTICE

The Agency that will make the final decision in this contested case is the North Carolina Department of Health and Human Services.

The Agency is required to give each party an opportunity to file exceptions to the decision and to present written arguments to those in the Agency who will make the final decision. N.C. Gen. Stat. § 150B-36(a). The Agency is required by N.C. Gen. Stat. § 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties’ attorneys of record and to the Office of Administrative Hearings.

In accordance with N.C. Gen. Stat. § 150B-36 the Agency shall adopt each finding of fact contained in the Administrative Law Judge’s decision unless the finding is clearly contrary to the preponderance of the admissible evidence. For each finding of fact not adopted by the agency, the agency shall set forth separately and in detail the reasons for not adopting the finding of fact and the evidence in the record relied upon by the agency in not adopting the finding of fact. For each new finding of fact made by the agency that is not contained in the Administrative Law Judge’s decision, the agency shall set forth separately and in detail the evidence in the record relied upon by the agency in making the finding of fact.

This the 20 th day of December, 2011.

______

Joe L. Webster Administrative Law Judge

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